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Dick v. Colvin

United States District Court, W.D. Pennsylvania

July 15, 2014

DOUGLAS D. DICK, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION

TERRENCE F. McVERRY, District Judge.

I. Introduction

Plaintiff, Douglas D. Dick, brought this action pursuant to 42 U.S.C. § 405(g), for judicial review of the final determination of the Commissioner of Social Security that denied his application for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381-1383f (West 2012). The parties have filed cross-motions for summary judgment with briefs in support. (ECF Nos. 10-13). The record has been thoroughly developed at the administrative level. (ECF No. 8-1 through 8-10). Accordingly, the motions are ripe for disposition. For the following reasons, the Commissioner's motion will be GRANTED, and Plaintiff's motion will be DENIED.

II. Background

A. Facts

Plaintiff was born on September 8, 1960, making him 49 years old as of the date he filed his application and 50 years old as of the date of the administrative hearing. As a result, he is considered a "person closely approaching advanced age" under the regulations.[1] See 20 C.F.R. § 404.1563(d). He is a high school graduate with past relevant work experience as a delivery driver (medium, semi-skilled work) and telemarketer (sedentary, semi-skilled work). (R. 17). Plaintiff alleges disability as of January 1, 2000, [2] due to post traumatic stress disorder ("PTSD"), asthma, a bad left knee, hearing loss, and kidney stones (R. 9, 115, 137). The record reflects that he has not engaged in substantial gainful activity since he filed his application. (R. 11).

Plaintiff was incarcerated from 1995 until January 28, 2010.[3] (R. 32). In March 2009, a physician with the North Carolina Department of Corrections completed an activity restriction form, indicating that Plaintiff was unlimited in his ability to stand, walk, and sit; and limited to climbing one flight of steps, lifting 70 pounds, and pushing and pulling 100 pounds. (R. 249-50). The form also indicated that Plaintiff had to sleep on the bottom bunk because of his impairments. (R. 250). That assessment was re-affirmed in December 2009. (R. 203-04).

Very shortly after his release from prison, Plaintiff presented to Dr. Robert Bazylak's office "for a medical assistance employment assessment form." (R. 263). According to Dr. Bazylak's notes, Plaintiff complained of a history of gallbladder and renal stones, depression, hearing loss, and allergic rhinitis. (R. 263). Dr. Bazylak also noted that Plaintiff was unable to walk or stand for long periods of time because of pain in his knees. (R. 263). Based on this single visit, Dr. Bazylak completed a Health-Sustaining Medication Assessment form for the Pennsylvania Department of Welfare, in which he indicated that Plaintiff was temporarily disabled because of kidney stones, gallbladder stones, and PTSD/depression. (R. 265).

In late March 2010, Plaintiff was seen by Dr. Walter Beh in connection with his kidney stones. (R. 275). Dr. Beh's notes reflect that Plaintiff was "a well-nourished white male... who is in no acute distress." (R. 276). His examination was unremarkable, and he displayed a "[g]ood range of motion throughout all extremities." (R. 277). Dr. Beh diagnosed him with kidney stones and gastroesophageal reflux disease and also found that he was "hard of hearing." (R. 277). On April 5, Plaintiff underwent bilateral extracorporeal shockwave lithotripsy to break up his kidney stones. (R. 279). After the procedure, Dr. Beh noted that the stones were barely visible and "only mildly obstructive, " and that Plaintiff tolerated the procedure well. (R. 281-82).

On April 22, 2010, state agency medical psychologist Michelle Santilli, Psy.D., completed a mental RFC assessment in relation to Plaintiff's SSI claim. (R. 285). She found Plaintiff to be moderately limited in all areas of social functioning and adaption but not significantly limited in all other areas. (R. 284-85). Accordingly, in her view, Plaintiff was able to meet all of the basic mental demands of competitive work on a sustained basis despite the limitations arising from his depressive disorder, PTSD, and personality disorder. (R. 286). Dr. Santilli also completed a Psychiatric Review Technique Form, in which she opined that Plaintiff did not meet or equal any of the Listed Impairments. (R. 287-99).

Plaintiff returned to Dr. Bazylak's office on May 13, 2010 for another disability form, complaining of back and knee pain, which allegedly prevented him from being able to walk or stand for long periods of time. (R. 310). Plaintiff reported that the pain had been around for some time and that he had had knee surgery in the early 1990s. (R. 310). Dr. Bazylak's notes reflect that Plaintiff also reported having a history of asthma, for which he used an inhaler, but he nonetheless continued to smoke half a pack of cigarettes daily. (R. 310). Upon examination, Dr. Bazylak found slight swelling in Plaintiff's knees and pain with walking, but no instability or laxity. (R. 310). With regard to Plaintiff's back, Dr. Bazylak noted that Plaintiff had some tenderness in the L1-2 area, pain, and a limited range of motion. (R. 310). Dr. Bazylak completed a medical source statement in which he indicated that Plaintiff could occasionally lift and carry 100 pounds, but could only stand and walk for one hour or less in an eight-hour workday, and only sit for two hours in an eight-hour workday. (R. 312). He also noted that Plaintiff was limited in his ability to push and pull because of his PTSD and arthopathy, and although he could occasionally bend, balance, and climb, he could never kneel, stoop, or crouch. (R. 312). Dr. Bazylak did not identify any other limitations. (R. 313). This is the last record from Dr. Bazylak.

On May 27, 2010, Plaintiff was seen by Dr. Juan Mercado to establish care for his allegedly ongoing back pain. (R. 364). No examination results were documented during this visit. (R. 361). Plaintiff returned to Dr. Mercado's office on June 18, 2010, for a driver's license physical. (R. 361). Plaintiff had no specific complaints, although he had recently had an upper respiratory infection and had been using his inhaler more often. (R. 361). Dr. Mercado's examination did not reveal any remarkable findings, and Plaintiff displayed a full range of motion in all of his joints. (R. 363).

On June 22, 2010, Plaintiff had a consultation regarding his back pain with Dr. Michael Jurenovich, an orthopedic surgeon. (R. 403). According to Dr. Jurenovich's notes, Plaintiff's back pain began in 1981, and although he visited a chiropractor on occasion, he had not had surgery to address his complaints. (R. 403). Plaintiff reported that his back pain had worsened since his release from prison, with the pain having started to radiate down his legs. (R. 403). Plaintiff displayed pain when his lower lumbar spine area was touched. (R. 403). Straight leg raises were mildly positive in both legs at 90 degrees, and back x-rays were unremarkable, though they did show some mild arthritis. (R. 402). Left knee x-rays were also unremarkable, though they too showed some arthritis. (R. 402). Based on these tests, Dr. Jurenovich diagnosed Plaintiff with lumbar disc disease, with mild, bilateral leg radiculopathy. (R. 403). He also scheduled Plaintiff for an MRI and EMG study of his lower back, the results of which were normal. (R. 403).

Dr. Abu Ali, a non-examining a state agency consultant, completed a physical RFC assessment on June 30, 2010. (R. 374). Dr. Ali noted that Plaintiff's primary diagnosis was COPD, with a secondary diagnosis of lower back pain with radiculopathy. (R. 374). Based on his review of Plaintiff's medical records, he opined that Plaintiff could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds; stand and walk for at least 2 hours in a workday; sit for about six hours in a workday; and occasionally engage in postural activities. (R. 375-76). However, he was found to be unlimited in his ability to push and pull and engage in manipulative activities. (R. 377). Furthermore, no environmental limitations were noted. (R. 377).

On August 31, 2010, Plaintiff saw Dr. Howard Phillips at Hermitage Orthopedics and Sports Medicine, on referral from Dr. Mercado. (R. 387). According to Dr. Phillips, Plaintiff had been having trouble with his left knee for about six months, after having first injured it in 1985. (R. 390). Plaintiff graded the knee pain as a 5/10. (R. 390). Examination of Plaintiff's left knee showed a possible mild effusion, and he had both medial and lateral joint line tenderness. (R. 390). Dr. Phillips also reported that x-rays showed "bone on bone in the lateral compartment and other degenerative changes." (R. 390). At the end of the visit, Dr. Phillips informed Plaintiff that he would probably eventually have to undergo a total knee replacement. (R. 390). For the time being, however, Plaintiff's pain was treated with an injection. (R. 390).

On October 6, 2010, Plaintiff was referred to Dr. Patel for mental health treatment. (R. 487). As reflected in Dr. Patel's Adult Psychosocial Assessment, Plaintiff complained of the following problems: depression, anxiety, mood swings, and PTSD, which stemmed from an incident that occurred while he was in the military when four men "chased him and beat him." (R. 487). Dr. Patel noted that Plaintiff denied both suicidal and homicidal ideation, though he had previously attempted suicide in 1992. (R. 487). Dr. Patel also noted that Plaintiff had received counseling while he was in jail. (R. 487). A mental status exam ("MSE") revealed a depressed mood but was otherwise unremarkable. (R. 489). Based on the exam, Dr. Patel assessed a current GAF score of 60 and a highest past year score of 70. (R. 489). Plaintiff sought treatment from Dr. Patel once more in 2010 and then four times in 2011, and although Dr. Patel's notes are largely unintelligible, it appears that Plaintiff's mental health condition remained unchanged throughout this period. (R. 490-94).

In December 2010, Plaintiff was seen by Dr. David Yeropoli and Joanne Moncello, C.N.S., for a psychiatry consultation prior to establishing care with the Veterans' Administration. (R. 445). Plaintiff was observed to be easily engaged and talkative. (R. 445). He reported that he used to be an outgoing guy, but that changed when he joined the military. (R. 445). He also indicated that he was "attacked" by six men when he was in the military. (R. 445). Ever since the attack, he had been nervous, jumpy, distrustful, and suffered nightmares. (R. 445). Despite these problems, Plaintiff had not received any significant psychiatric care throughout his adult life, though Dr. Yeropoli did note that Plaintiff had recently started to see Dr. Patel and had been prescribed medications for his mental health issues. (R. 445). A MSE revealed that Plaintiff was alert, oriented, pleasant and cooperative. (R. 446). His gait was within normal limits, his ...


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