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White v. Colvin

United States District Court, M.D. Pennsylvania

August 28, 2014

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


WILLIAM J. NEALON, District Judge.

On July 29, 2013, Plaintiff, Brette Lamont White, filed this appeal[2] under 42 U.S.C. § 405 for review of the decision of the Commissioner of Social Security denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 400-403, and for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's application for DIB and SSI will be affirmed.


Plaintiff protectively filed[3] his application for DIB and SSI on August 3, 2010. (Tr. 15).[4] The claims were both initially denied by the Bureau of Disability Determination ("BDD")[5] on January 25, 2011. (Tr. 15). On March 8, 2011, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 15). A hearing was held on April 19, 2012 before administrative law judge Randy Riley ("ALJ"), at which Plaintiff and vocational expert, Sheryl Bustin ("VE"), testified. (Tr. 20, 61). On May 3, 2012, the ALJ issued a decision denying Plaintiff's claims because, as will be explained in more detail infra, Plaintiff could perform less than a full range of sedentary work with the option to alternate between sitting and standing at will such as that performed by a dowel inspector. (Tr. 18, 22).

On May 18, 2012, Plaintiff filed a request for review with the Appeals Council. (Tr. 10). On May 31, 2013, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 1-3). Thus, the ALJ's decision stood as the final decision of the Commissioner.

Plaintiff filed the instant complaint on July 29, 2013. (Doc. 1). On November 13, 2013, Defendant filed an Answer and Transcript from the Social Security Administration ("SSA") proceedings. (Docs. 10 and 11). Plaintiff filed his brief in support of his complaint on December 27, 2013. (Doc. 13)[6]. Defendant filed his brief in opposition on January 21, 2014. (Doc. 14). Plaintiff filed a reply brief on January 30, 2014. (Doc. 15). The matter is now ripe for review.

Disability insurance benefits are paid to an individual if that individual is disabled[7] 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 meets the insured status requirements of the Social Security Act through March 31, 2014. (Tr. 17).

Plaintiff was born in the United States on November 12, 1966, and at all times relevant to this matter was considered a "younger individual"[8] whose age would not seriously impact his ability to adjust to other work. 20 C.F.R. §§ 404.1563(c); (Tr. 21).

Plaintiff obtained his GED, and can communicate in English. (Tr. 146-147). His employment records indicate that he previously worked as a delivery man. (Tr. 157).

The records of the SSA reveal that Plaintiff had earnings in the years 1984 through 2010. (Tr. 132). His annual earnings range from a low of no earnings from 1995 to 1998 to a high of $14, 248.05 in 2006. (Tr. 132). His total earnings during those twenty-six (26) years were $88, 951.59. (Tr. 132).

Plaintiff's alleged disability onset date is June 2, 2010. (Tr. 143, 146, 148). The impetus for his claimed disability is a combination of left shoulder and back impairments and obesity. (Tr. 147). In a document entitled "Function Report-Adult" filed with the SSA in October of 2010, Plaintiff indicated that he was single and lived with a friend. (Tr. 169). He noted that he could dress, shower, do dishes, and take out small bags of trash, and was able to prepare meals on a daily basis, do laundry, iron, clean for a half hour, rake leaves, and grocery shop. (170-172). He could pay bills, count change, handle a savings account, and use a checkbook. (Tr. 172). He could not drive due to a suspended license, but used public transportation and the "cat share a ride" program. (Tr. 172).

Regarding his concentration and memory, Plaintiff denied having memory problems or needing special reminders to take care of his personal needs and to take his medicine. (Tr. 171). He also stated that he did not need anyone to accompany him when he left his house. (Tr. 173). He could pay attention for "as long as needed, " and followed written and spoken instructions "very well." (Tr. 174).

Socially, Plaintiff talked to his friends on the phone on a daily basis, and went to appointments and church. (Tr. 193). He also watched tv and read books. (Tr. 173). In the function report, when asked to check items which his "illnesses, injuries, or conditions affect, " Plaintiff did not check talking, hearing, seeing, memory, concentration, understanding, following instructions, using hands, and getting along with others. (Tr. 174). Regarding medications, Plaintiff reported that he took Flovent and Advair for asthma, and hydrocodone for pain. (Tr. 178).

At his hearing, Plaintiff alleged that the following combination of physical problems prevented him from being able to work since June of 2010: (1) lower back pain; (2) bilateral shoulder pain; (3) asthma; and (4) obesity. (Tr. 38-41). In terms of physical limitations, he testified that he could not bend over to touch his toes, but could get his socks and shoes on by pulling up a leg. (Tr. 33). He could not squat down to pick something up from the ground, and could only climb four (4) or five (5) stairs and walk half a block before having to stop to rest due to lower back pain. (Tr. 33-34). He testified that he could stand for approximately twenty (20) to thirty-five (35) minutes, but could then only sit for ten (10) to twenty (20) minutes before experiencing pain down his left side. (Tr. 35). Medication only helped for a short time before the pain continued to worsen. (Tr. 36). He testified that he could carry between ten (10) and twenty (20) pounds with his left hand, "but with the help of [his right] hand, [he] could lift much more." (Tr. 39, 174). At the time of the hearing, Plaintiff was using a cane that was not prescribed to him by a doctor. (Tr. 36-37). He claimed that he could no longer cook, do yard work, shop, or do the laundry. (Tr. 32-33).


Before the Court addresses the ALJ's decision and the arguments of counsel, Plaintiff's relevant medical records will be reviewed in detail, beginning with records from his alleged disability onset date of June 2, 2010.

On August 17, 2010, Bravein Amalakuhan, M.D. of Pinnacle Health evaluated Plaintiff's left shoulder pain and lower left back pain complaints. (Tr. 224). This examination revealed pain in the left shoulder upon motion, pain with straight leg raising to thirty (30) degrees, and pain in the left lower lumbar region on palpation. (Tr. 224). Plaintiff reported that his pain worsened with prolonged standing. (Tr. 224). Dr. Amalakuhan prescribed Tramadol for pain. (Tr. 225).

On October 4, 2010, Plaintiff had an appointment with Gregory Hanks, M.D. at the Orthopedic Institute of Pennsylvania ("OIP") for an evaluation of his shoulder and neck pain, and finger numbness and locking. (Tr. 211). An examination revealed a normal sensory and motor exam of the hand, slight pain with range of motion in the neck, palpable crepitus in the subacromial region of the left shoulder, weakness in abduction and forward elevation graded at four (4) out of five (5), and positive Hawkins and Neer impingement testing. (Tr. 211). Plaintiff was diagnosed with left shoulder probable full-thickness rotator cuff tear, AC joint degenerative disease with worsening symptoms, and finger numbness with a history of locking of unknown etiology. (Tr. 211). On October 18, 2010, Dr. Hanks confirmed an MRI's report that Plaintiff had a full-thickness rotator cuff tear in his left shoulder, degenerative joint disease, and a slightly high-riding humeral head. (Tr. 213). Dr. Hanks discussed surgical options to repair Plaintiff's left shoulder because a prior repair on his right shoulder for a similar problem gave Plaintiff favorable results. (Tr. 211-213).

On October 19, 2010, Plaintiff presented to Dr. Amalakuhan for a follow-up appointment. The treatment notes for this visit are illegible. (Tr. 221). Plaintiff complained of continued left shoulder pain, decreased grip strength, and pain on movement of his arm. (Tr. 219-220). He reported that the Tramadol prescribed was not helping his pain, and scheduled left rotator cuff surgery for November 26, 2010. (Tr. 220).

On October 27, 2010, Plaintiff had an appointment at Pinnacle Health's Comprehensive Occupational Rehabilitation Center for an electrophysiologic evaluation. (Tr. 271). The conclusion of this study was normal. (Tr. 271-272). The report stated the following:

There is currently no electrophysiologic evidence of median, ulnar or radial nerve entrapment/neuropathy within the left upper extremity at this time. Needle EMG analysis of all selected muscles representing the C5-T1 myotomes on the left was normal, which decreases the chances of a more proximal brachial plexopathy or cervical nerve root derangement.

(Tr. 272).

On November 12, 2010, Plaintiff visited Balint Balog, M.D. for his low back and left sciatic pain that reportedly dated back to a car accident in 2002. (Tr. 267). The examination revealed: Plaintiff was six (6) feet tall and weighed two hundred sixty-four (264) pounds; guarding with lumbar spine mobility; positive straight leg raising on the left to eighty (80) degrees and negative on the right to ninety (90) degrees; left sciatic notch tenderness; trace patellar reflexes bilaterally; and tingling and sensory deficit in the left lower extremity. (Tr. 267-268). Dr. Balog diagnosed Plaintiff with low back and left sciatic pain and disc herniation versus stenosis. (Tr. 268). Dr. Balog recommended an MRI to further investigate these issues. (Tr. 268).

On November 19, 2010, an MRI of the lumbar spine showed disc bulging at L3-4 and L4-5 with facet arthropathy and stenosis, central disc bulging at L2-3 with central canal stenosis, a left paracentral disc bulge at L5-S1 with mass effect on the left lateral recess and facet arthropathy causing mild canal stenosis and moderate left neuroforaminal stenosis, and a mild disc bulge at S1-2 with mild facet arthropathy and canal stenosis. (Tr. 269-270).

On November 26, 2010, Dr. Hanks performed a left shoulder arthroscopy with debridement of labral tears and undersurface cuff fraying, a rotator cuff repair, and distal clavicle resection on Plaintiff. (Tr. 250-251). On December 2, 2010, on a Public Welfare form, he declared that Plaintiff was temporarily disabled for twelve (12) months or more beginning on November 26, 2010 to June 26, 2012 based on disc herniation, left sciatic pain, a left rotator cuff tear, and AC degenerative joint disease. (Tr. 296). He based his opinion on physical exams, review of the medical records, clinical history, and appropriate tests and diagnostic procedures. (Tr. 296).

Plaintiff's first post-surgical follow-up with Dr. Hanks was on December 8, 2010. (Tr. 265). Plaintiff reported that the pain was bearable during the day. (Tr. 265). The examination revealed normal bruising and minimal discomfort on rotation of the left shoulder. (Tr. 265). Dr. Hanks was able to raise Plaintiff's shoulder in a forward elevation up to eighty (80) degrees comfortably. (Tr. 265).

At a second post-surgical follow-up with Dr. Hanks on January 5, 2011, Plaintiff noted his left arm was very stiff. (Tr. 263-264). An examination revealed he had a painful arc on motion in the shoulder at sixty (60) degrees and raising up to one hundred (100) degrees. (Tr. 264). Dr. Hanks prescribed physical therapy, prednisone for post-surgical inflammation, and Ultram for pain. (Tr. 264).

On January 7, 2011, Plaintiff had a follow-up appointment with Dr. Balog. (Tr. 263). An examination revealed absent left Achilles reflex, trace right Achilles reflex, a painful range of motion in the left sciatic notch, and marked left sciatic notch tenderness. (Tr. 263). Dr. Balog reviewed results of a recent MRI, and diagnosed Plaintiff with left-sided lumbosacral radiculitis with L5-S1 disc herniation and composite lateral recess stenosis. (Tr. 263). On January 20, 2011, Plaintiff underwent an epidural injection of L5-S1. (Tr. 284-285).

On March 23, 2011, Plaintiff had a follow-up with Dr. Hanks for left shoulder pain that went down his left side and for difficulty raising his left arm above ninety (90) degrees. (Tr. 286). Dr. Hanks' examination revealed a painful arc above ninety (90) degrees, scapulothoracic dysrhythmia and persistent weakness, and tenderness in the scapula. (Tr. 286). Plaintiff received a second epidural on March 25, 2011 at the L5-S1 level. (Tr. 287-288).

On April 8, 2011, Plaintiff had an appointment with Dr. Balog. (Tr. 291). Plaintiff reported that the two (2) epidural injections helped somewhat, but that he still had some radiation of pain down to his left leg. (Tr. 291). Dr. Balog reported that Plaintiff was still functional, but that he had to stop periodically when walking. (Tr. 291). On examination, he moved slowly, grimaced and expressed pain when he changed position from sitting to standing, had a positive straight leg raise in the left leg at ninety (90) degrees and negative in the right to ninety (90) degrees, and had no focal sensory deficits. (Tr. 291). Plaintiff was diagnosed with chronic low back pain, including L5-S1 left-sided disc protrusion and S1 radiculitis. (Tr. 291). Plaintiff agreed that "he is not severe enough at this point to warrant any surgical intervention at this level." (Tr. 291).

On October 20, 2011, Michael Fernandez, M.D. evaluated Plaintiff for leg and back pain, and found a moderately positive straight leg raise for the left leg. (Tr. 292). Plaintiff was diagnosed with chronic low back pain with left lumbar ...

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