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Casey v. Colvin

United States District Court, Middle District of Pennsylvania

August 27, 2014

DON CASEY, Plaintiff



On November 15, 2012, Plaintiff, Don Casey, filed this appeal[2] under 42 U.S.C. § 405 for review of the decision of Defendant denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiffs application for DIB will be affirmed.


Plaintiff protectively filed[3] his application for Title II and Title XVI social security disability insurance benefits on March 2, 2010, and alleged his disability began on October 15, 2009. (Tr. 89-90, 153).[4] The application was initially denied by the Bureau of Disability Determination[5] on May 11, 2010. (Tr. 91-100).

On June 8, 2010, Plaintiff requested a hearing before an administrative law judge. (Tr. 101). A hearing was held on May 4, 2011 before administrative law judge Sharon Zanotto ("ALJ"), at which Plaintiff and Paul A. Anderson, a vocational expert ("VE"), testified. (Tr. 22-88). On May 16, 2011, Plaintiffs counsel sent a follow-up letter with arguments for entitlement to benefits. (Tr. 216-17). On May 17, 2011, the ALJ issued a decision denying Plaintiffs application finding, inter alia, that Plaintiff has the residual functional capacity ("RFC") to perform light work, except that he requires alternating positions at will, and that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Tr. 7-18).

On July 15, 2011, Plaintiff filed a request for review with the Appeals Council. (Tr. 5-6). On September 28, 2012, the Appeals Council concluded that there was no basis upon which to grant Plaintiffs request for review. (Tr. 1-4). Thus, the ALJ's May 17, 2011 decision stood as the final decision of the Commissioner.

Plaintiff filed the instant complaint in this Court on November 15, 2012. (Doc. 1). On January 24, 2013, Defendant filed an Answer and Transcript from the SSA proceedings. (Docs. 9-10). On April 24, 2013, Plaintiff filed a brief in support of his complaint; on May 16, 2013, Defendant filed her brief in opposition. (Docs. 13-14). Plaintiff did not file a reply brief, and the appeal is now ripe for disposition.

Disability insurance benefits are paid to an individual if that individual is disabled and insured, that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the date last insured. It is undisputed that Plaintiff met the insured status requirements of the SSA through September 30, 2011. (Tr. 156, 164). Plaintiff was born in the United States on November 3, 1962, and at all times relevant was considered a "younger individual"[6] whose age would not seriously impact his ability to adjust to other work. (Tr. 36); 20 C.F.R. §§ 404.1563(c).

Plaintiff completed high school and has specialized training in masonry. (Tr. 169). His employment records indicate that he held the following jobs: laborer, mason, and sanitation worker. (Tr. 170, 195). At the May 4, 2011 hearing, the VE noted that Plaintiffs work history is "primarily bricklayer, construction" which is "[h]eavy, skilled, " and "some brief periods in the janitorial field" which is "[m]edium, unskilled." (Tr. 81).

Plaintiff asserted that he became disabled on October 15, 2009, while employed as a sanitation worker at the Carlisle Fairgrounds. (Tr. 215). The impetus for his claimed disability is gout. (Tr. 215).

At the May 4, 2011 hearing and in his follow-up letter, Plaintiffs counsel argued that Plaintiffs gouty arthritis diagnosis falls under Listing 1.02, major dysfunction of a joint, thus entitling him to benefits. (Tr. 29, 215). Counsel further argued that his flare-up or outbreak periods, in which Plaintiff is completely unable to work, exceed three (3) days a month, resulting in Plaintiffs inability to sustain work activity on a regular and continuing basis. (Tr. 30-31).

The hearing transcript reveals that the ALJ reviewed Plaintiffs medical records prior to the hearing, was knowledgeable on the symptoms and results of gout, and objectively questioned Plaintiff about his treatment and symptoms. (Tr. 39-69). At the May 4, 2011 hearing, Plaintiff testified that he had been battling gout for the last twenty (20) years and that it has been getting progressively worse. (Tr. 39). He stated that he suffers from extreme gout one (1) to three (3) times a month which causes him to be bedridden, to walk with a limp, or to be unable to close his left hand, for three (3) to five (5) days at a time. (Tr. 39, 64). Plaintiff stated that in October of 2009, he was unable to work two (2) of the Carlisle Production car shows because it required him to stand all day which his gout prevented. (Tr. 42). Upon questioning, Plaintiff testified that in 2010 the only flare-ups that required treatment in the emergency room ("ER") and that completely incapacitated him were in March and November. (Tr. 51). The ALJ questioned Plaintiff about his lack of treatment from January 7, 2008, through September of 2010, despite the alleged disability onset occurring in October of 2009. (Tr. 57-60). Plaintiff testified that he was no longer on medication in 2009 because he had no insurance and could not afford it. (Tr. 70). Plaintiff testified that at the time of the hearing he was having a flare-up, and he demonstrated the swelling in his left hand and his inability to bend or straighten his little finger. (Tr. 72).

At the hearing, the VE testified that due to his symptoms Plaintiff would be unable to perform either of his past jobs because of his exertional and sit-stand limitations, but that there is other work in the economy he could perform, such as a surveillance system monitor, nut sorter, cashier, and parking lot/entertainment industry. (Tr. 82-85). When questioned regarding Plaintiff missing work for periods during his flare-ups, the VE stated that "[n]ormally we say two days per month is permitted, " and that some employers would tolerate more missed days and some would not. (Tr. 86). The VE testified that sixty-percent to fifty-percent of the jobs he listed would not tolerate an employee missing three (3) to five (5) work days every two (2) months, and that missing such work with less than two (2) to three (3) months in between would be "more problematic." (Tr. 86-87).

Medical Records [7]

On March 6, 2010, Plaintiff was admitted on crutches in mild distress to Carlisle Regional Medical Center and was treated by Cloyd Gatrell, M.D., for pain in multiple areas. (Tr. 235-37, 285-87). Intake forms indicated a twenty-year history of gout treated with Allopurinol and Indomethacin, but that Plaintiff had been out of medications since December and was having a "gradual flare-up of pain in right foot, ankle, knee, and right hand." (Tr. 236, 285). His uric acid levels were abnormal. (Tr. 327). Plaintiff was able to ambulate independently and could perform all activities of daily living without assistance. (Tr. 239). The onset of the severe pain (rated 10 out of 10 and treated with a morphine injection) was gradual due to running out of gout medicine in December. (Tr. 239). Radiology tests were conducted of the right hand showing "an old deformity of the distal tuft of the 2nd digit" and "[n]o radiographic evidence of acute bone or soft tissue abnormality [was] visualized." (Tr. 281, 323). The impression given was an acute exacerbation of gout due to medication non-compliance, hypertension due to medication noncompliance, and mild hypokalemia. (Tr. 237, 286). Upon discharge, Plaintiff was instructed to follow up with his primary care physician, Louis A. Hieb, M.D., and was prescribed Prednisone and Colchincine. (Tr. 238 & 287).

Plaintiff walked with a "normal gait" into the Carlisle Regional Medical Center emergency room ("ER") on March 9, 2010 with abdominal pain and saw Laura Crim, M.D., for nausea, vomiting, and diarrhea. (Tr. 223-34 & 290-94). Dr. Crim's impression was gastroenteritis. (Tr. 225, 292).

On April 27, 2010, Plaintiff was evaluated by Mark P. Holencik, D.O., F.A.O.A.O. (Tr. 256). Plaintiff informed he suffered from gout for twenty (20) years in his right big toe at the first metatarsophalangeal ("MTP") joint, but has developed gout in multiple joints including: his right knee, which has been aspirated multiple times and treated with cortisone injections; his right hand at the third MTP joint; and his right heel. (Tr. 256). Plaintiff reported his right knee is "always painful and swollen, " and Dr. Holencik found Plaintiff to be "quite honest about his condition and abilities and no way tries to amplify his problem." (Tr. 257). Plaintiff stated he could sit for a few hours and stand for up to an hour when not having "an attack, " but he is having a couple of attacks a month and "probably correctly feels that the frequency of those attacks is not compatible with holding down a job both in terms of physical function and attendance." (Tr. 257). Plaintiff noted he first tried Indsin and Allopurinol, but switched to Colchicine daily and Prednisone for flare-ups. (Tr. 257). Plaintiff expressed concerns that he thought he had rheumatoid arthritis and refused to take medication for his blood pressure. (Tr. 257). He reported his last day of work was October of 2009. (Tr. 257). Examination showed the following: difficulty toe walking with a rigid and painful right first MTP joint which is swollen; heal walking was intact; there was no pain from internal rotation of the hips in a seated position; and a "quite tender first MTP joint with virtually no mobility on the right with a normally mobile first MTP on the left." (Tr. 258). There was "clearly a chronic inflammatory process involving ...

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