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Milburn v. Colvin

United States District Court, W.D. Pennsylvania

July 3, 2014

ROBERT R. MILBURN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

ARTHUR J. SCHWAB, District Judge.

I. Introduction

Plaintiff, Robert R. Milburn ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act (the "Act"), seeking judicial review of the final decision of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for supplemental security income ("SSI"). The parties have submitted Cross-Motions for Summary Judgment on the record developed at the administrative proceedings. For the following reasons, Plaintiff's Motion for Summary Judgment (ECF No. 13) will be GRANTED in part insofar as it seeks a vacatur of the decision of the Commissioner of Social Security and a remand for further administrative proceedings consistent with this Opinion, and DENIED in part to the extent that it requests an award of benefits. The Commissioner's Motion for Summary Judgment (ECF No. 15) will be DENIED, and the administrative decision of the Commissioner will be VACATED and remanded for further proceedings consistent with this Memorandum Opinion.

II. Procedural History

On or around July 12, 2010, Plaintiff filed an application for SSI, alleging disability beginning January 20, 2009 due to bipolar disorder. (R. 139-45, 168-75.)[1] The claim was initially denied on September 15, 2010. (R. at 72-76.) On October 20, 2010, Plaintiff filed a written request for hearing pursuant to 20 C.F.R. § 416.1429, et. seq. (R. at 79-81.) An administrative hearing was held on November 21, 2011, in Johnstown, Pennsylvania, before Administrative Law Judge ("ALJ") Charles Pankow. (R. at 32-69.) Plaintiff, who was represented by counsel, appeared and testified. (R. at 36-56.) Irene Montgomery, an impartial vocational expert ("VE"), also testified. (R. at 56-60.) In a decision dated February 14, 2012, the ALJ determined that Plaintiff was not disabled within the meaning of the Act. (R. at 16-31.) The Appeals Council denied Plaintiff's request for review on August 1, 2013 (R. at 1-6), thereby rendering the ALJ's decision the final decision of the Commissioner in this case.

Plaintiff commenced the present action on September 30, 2013 seeking judicial review of the Commissioner's decision. (ECF No. 1.) Plaintiff filed a Motion for Summary Judgment on March 6, 2014. (ECF No. 13.) Defendant filed a Motion for Summary Judgment on April 4, 2014. (ECF No. 15.) These motions are the subject of this Memorandum Opinion.

III. Statement of the Case

A. The ALJ's decision

In his decision denying SSI to Plaintiff, the ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since July 12, 2010, the application date (20 C.F.R. § 416.971 et seq. ). (R. at 21.)
2. The claimant has the following severe impairments: chronic pain syndrome, mild acromioclavicular joint hypertrophy, mild degenerative joint disease of the hip, depression, a major depressive disorder, anxiety, and a generalized anxiety disorder (20 C.F.R. § 416.920(c)). (R. at 21.)
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). (R. at 22.)
4. The claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b) except he cannot reach above shoulder level with the dominant right upper extremity; and he must avoid exposure to vibration.
Further, the claimant is limited to unskilled work, requires a low stress environment defined as few changes in work settings, no fast-paced or quota-production standards; and he can have only occasional contact with the public, co-workers, and superiors. (R. at 24.)
5. The claimant was unable to perform any past relevant work (20 C.F.R. §416.965). (R. at 26.)
6. The claimant was born on January 23, 1961, and was 49 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. § 416.963). (R. at 26.)
7. The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.968). (R. at 26.)
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2). (R. at 26.)
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 416.969 and 416.969(a)). (R. at 26.)
10. The claimant has not been under a disability, as defined in the Social Security Act, since July 12, 2010, the date the application was filed (20 C.F.R. §416.920(g)). (R. at 27.)

B. Background Facts and Medical evidence

Plaintiff is a former journeyman plasterer with an eighth grade education and a GED equivalency. (R. 37, 234.) In the early 1990s, he suffered injury to his hip and shoulder when some scaffolding collapsed on him. (R. 44, 213.) He did not have insurance, so he did not receive any treatment for his injuries and instead took ibuprofen and aspirin. (Id.) He claims that he stopped working after being hospitalized with pneumonia in 2005 because he could not get full-time work due to his injuries. (R. 37-38, 234.)

The evidence of record shows that Plaintiff began treating with Robert L. Brodsky, M.D., a family medicine physician, on July 30, 2009. (R. 213.) As of that date, Plaintiff presented with complaints of chest pain and shortness of breath and a history of right shoulder and hip pain stemming from his work-related injury some fifteen years prior. Because he had been taking ibuprofen chronically, Plaintiff was concerned about abdominal fluid retention and possible liver damage. He could not raise his arm above 90 degrees and complained of stiffness and cracking of his right hip and well as chronically painful movement. (Id.) Upon examination, Plaintiff was alert, comfortable, and in no apparent distress, but he did show signs of pain in his right hip when changing positions transiently and limited range of motion in his right shoulder. (R. 214-15.) Dr. Brodsky assessed: (1) elevated blood pressure, (2) chronic shoulder and hip pain, (3) abdominal discomfort, not clearly from ascites as Plaintiff had suspected, and (4) chest pain and shortness of breath. (R. 215.) Plaintiff underwent an EKG which showed no acute changes or arrhythmias. He was taken off ibuprofen and started on tramadol as needed for pain. (R. 215.) Blood test results were normal except for Plaintiff's very high lipid levels. (R. 218.) As a result, Dr. Brodsky planned to discuss cholesterol lowering medication with Plaintiff in order to reduce his risk of heart disease. (R. 218.)

In September 2009, Plaintiff returned for a follow-up visit with Dr. Brodsky. (R. 207.) At that time, Plaintiff reported that the tramadol helped but did not completely control his pain. Plaintiff was not following any particular diet and was consuming a lot of red meat. Dr. Brodsky assessed hyperlipidemia with very high risk levels, elevated blood pressure, and tobacco use. He started Plaintiff on simvastatin to address his hyperlipidemia and counseled Plaintiff on regulating his blood pressure and preventing cardiovascular disease by improving his diet, losing weight, and ceasing tobacco use. (R. 208.) Dr. Brodsky noted that Plaintiff was going to begin monitoring his blood pressure and that he might need to consider medication based on subsequent readings. (Id.)

The following month, Plaintiff underwent x-rays of his right shoulder and hip. Images revealed mild AC joint hypertrophy of the right shoulder with no fracture or erosion of the bone. A healing fracture at the right sixth rib was suspected but the glenohumeral joint was preserved. (R. 292.) Images of Plaintiff's right hip showed mild degenerative joint disease but no fracture or bone erosion. It was noted that the prominent bone at the femoral head-neck ...


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