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Campbell v. Colvin

United States District Court, Third Circuit

January 23, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant


WILLIAM W. CALDWELL, District Judge.

I. Introduction

Plaintiff, Randy S. Campbell, seeks judicial review of a decision denying him disability benefits under the Social Security Act. See 42 U.S.C. ยงยง 401-433. The defendant is Carolyn W. Colvin, the Acting Commissioner of Social Security.[1]

In support of his claim, Campbell alleged several exertional and non-exertional impairments, but the case comes down to whether he is disabled stemming from an operation on his right ankle that fused the joint, early degenerative joint disease of the left knee and lumbar discogenic disease.

Plaintiff filed his application for benefits on October 27, 2008, alleging an onset date for disability of September 15, 2008. (Tr. 194).[2] Campbell amended the onset date to September 1, 2009. (Tr. 15, 46). The ALJ denied benefits on July 23, 2010. Based on an application made on August 19, 2010, Plaintiff was found to be disabled beginning on July 24, 2010. (Tr. 2). This case thus involves a period of disability of about eleven months.

Plaintiff argues that the administrative law judge (ALJ) made the following errors in denying his claim. First, she did not explain why Plaintiff's impairments did not meet or equal listing 1.02, major dysfunction of a joint, or listing 1.03, surgical arthrodesis of a major weight-bearing joint. Second, her opinion that Plaintiff had the residual functional capacity to do light work was not supported by substantial evidence. Third, she did not apply the proper legal standards in rejecting the opinion evidence of his family physician and the opinion of a treating physical therapist that supported the conclusion Plaintiff could not do light work. Fourth, Plaintiff is disabled under Grid Rule 201.09 when he is properly considered as only being able to do sedentary work or less. Fifth, when posing his hypothetical to the vocational expert, the ALJ failed to include limitations on Plaintiff's ability to read, write, use language correctly, and make change, so that the vocational expert's testimony is not substantial evidence of work Campbell can do.

II. Background

A. Work, Health and Medical History

Campbell was fifty-one years old at his alleged onset date. (Tr. 21). He attended regular classes in school (Tr. 40), and left school after completing the ninth grade (Tr. 39). He worked as a laborer from 1974 until 2008. (Tr. 266, 223). At the June 2010 hearing, Plaintiff testified that he was laid off in September 2008 from his last job because he could no longer do it - lifting manhole covers, big bags of cement, and climbing in and out of manholes. (Tr. 59). However, others were laid off at the same time as part of a company-wide layoff that became permanent in March 2009. (Tr. 34).

As part of his October 2008 disability application, in November 2008 function reports, Plaintiff and his wife stated that his activities included the following: feeding/walking his dog twice a day around the block, preparing meals, cleaning the house, mowing the lawn, loading the dishwasher, washing laundry, doing a little yard work, driving a car, shopping for household goods and food, paying bills, counting change, handling a savings account, and using a checkbook. (Tr. 228-46). His hobbies included watching sports and doing crossword puzzles. (Tr. 232). He also spent time with family members, and went to church, his children's homes, and the movies. (Tr. 232, 243). He said he could walk a quarter to one-half a mile and used a cane only "once in a while." (Tr. 233-34).

He could not pay attention for "too long" and could not follow written instructions "100 per cent." (Tr. 233). He can add, subtract and do simple arithmetic. (T. 40). He sometimes has trouble reading because he does not understand "big words." (Tr. 40).

Some twenty-seven years ago Plaintiff's right ankle was injured after he was assaulted by another man at a private club. (Tr. 60). He had his first surgery on the ankle then and over the years it deteriorated. (Tr. 49, 60). In March 2009, Dr. Michael F. Mitrick, a treating orthopedic surgeon, diagnosed him with end-stage arthritis of the right ankle and recommended an arthrodesis, a right ankle fusion. (Tr. 418). In June 2009, Dr. Mitrick examined Plaintiff. In addition to his ankle, Plaintiff complained of low back pain and pain running down his right leg. (Tr. 421). Plaintiff was able to ambulate and perform activities of daily living. (Tr. 421). Dr. Mitrick diagnosed: (1) end-stage arthritis in the right ankle; (2) evidence of early right radiculopathy; (3) early degenerative joint disease of the left knee; and (4) lumbar discogenic disease. (Tr. 422). In July 2009, Dr. Mitrick again noted that Plaintiff could ambulate and perform activities of daily living. (Tr. 423). Plaintiff's back pain had improved with a prescribed painkiller but other areas of concern remained the same. (Tr. 423). The left knee had fairly decent motion and good strength and stability. (Tr. 423).

On August 28, 2009, Dr. Suzette Song performed the arthrodesis. (Tr. 428-29). In a note five days after surgery, Dr. Song noted the corrected ankle position looked good and there was no ankle motion. Plaintiff was also complaining of severe pain in the right foot and ankle. (Tr. 426). In a note a week after surgery, Dr. Song noted the ankle position was still good and no motion was found. (Tr. 427). In a note three weeks after surgery, Dr. Song noted that the position remained good with no motion and sensation was intact. (Tr. 430).

Plaintiff testified at the June 2010 hearing that following the surgery (since September 2009), his ankle has been swollen all the time and he has had pain in his ankle every day, all day long. (Tr. 49). He walks with a limp. (Tr. 49). His lower back hurts all the time. (Tr. 49-50). He cannot lift heavy items. (Tr. 64). He drives his wife to the grocery store, but she does the shopping. He will carry light bags. (Tr. 65). In regard to housework, he runs the sweeper once and a while but his wife does a lot of it. (Tr. 65). His wife mows the grass or they hire someone to do it. (Tr. 71). Their house is two stories and he tries to avoid going up the stairs too often. (Tr. 65). During the day, he lies on a recliner chair, up to seven hours a day, and sometime stays there all night because it would be too painful to go upstairs. (Tr. 56, 70). He has given up on fishing and playing sports. (Tr. 66).

On November 19, 2009, some three months after the operation, Dr. Song examined Plaintiff. Plaintiff reported right ankle pain on a daily basis, especially when sitting for extended periods. Dr. Song noted swelling was improved but still present. (Tr. 435). An X-ray of the ankle showed a well positioned and coaptated ankle joint with the screws in good position. The fusion looked good. (Tr. 435).

On December 3, 2009, Plaintiff was seen by a physical therapist for potential treatment by way of physical therapy. (Tr. 442). At that time, he was complaining about pain in the right ankle and leg and bilateral knee pain. (Tr. 442). He denied any distal lower extremity numbness or paresthesia. (Tr. 442). He reported that standing on his legs for as little as ten minutes significantly increased his symptoms, that it was difficult to walk on uneven surfaces, to walk longer than ten minutes, or climb stairs. (Tr. 442). Plaintiff had good flexibility of the right hamstrings, was able to transfer from a sit to stand with handrail assistance, was able to stand on a level surface, demonstrating knee flexion and extension for weight shifting onto the right lower extremity to control balance. On December 10, 2009, Plaintiff saw Dr. Ann L. Ramage, his family physician who has been treating him for fifteen years. (Tr. 45). Plaintiff reported right ankle pain and lower back pain. She noted ankle swelling. (Tr. 457-58).

Plaintiff started weekly physical therapy. (Tr. 442-450). Subsequent reports on that therapy revealed the following. On December 28, 2009, Plaintiff was able to achieve heel strike and foot flat while ambulating but was unable to perform push-off. On December 30, 2009, Plaintiff reported he uses his cane only seldomly when the pain is increased. (Tr. 449). Overall, Plaintiff noticed that therapy resulted in improvements, including reduced pain and increased tolerance on his feet. (Tr. 449). He also stated his lower extremity had not given way since the operation. (Tr. 449). On January 5, 2010, Plaintiff reported that the mobility of his ankle had improved since beginning physical therapy. (Tr. 452).

On February 2, 2010, Plaintiff was discharged from physical therapy in the office to a home exercise program. Plaintiff still complained of ankle and forefoot pain, pain while walking without shoes, and an inability to walk on all surfaces without significant loss of balance. (Tr. 553). Plaintiff reported that he had not made significant progress with regard to his pain symptoms. (Tr. 553). He did believe the therapy increased his strength. (Tr. 553). The physical therapist noted an inability to walk on uneven surfaces and that Plaintiff could climb stairs but had to use two ...

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