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Parker v. Colvin

United States District Court, W.D. Pennsylvania

August 29, 2014

TIMOTHY ALLEN PARKER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION Re: ECF NOS. 12 & 14.

MAUREEN P. KELLY, Magistrate Judge.

I. RECOMMENDATION

It is respectfully submitted that the Motion for Summary Judgment filed by Plaintiff [ECF No. 12] be denied. It is further recommended that the Motion for Summary Judgment filed by Defendant [ECF No. 14] be granted and that the decision of the Commissioner denying Plaintiff's application for supplemental security income benefits be affirmed.

II. REPORT

A. Procedural History

Plaintiff Timothy Parker brought this action pursuant to 42 U.S.C. § 1383(c), seeking review of the Commissioner of Social Security's final decision denying his application for supplemental security income (ASSI@) under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. § 1381-1383f.

Plaintiff protectively filed for SSI benefits on July 2, 2007, alleging an onset of disability of January 18, 2007, due to diabetes, muscle wasting in his legs, (atrophy), a right torn rotator cuff, and cancer.[1] (Tr. 148-158). The claim was denied initially on March 27, 2008, with a finding that Plaintiff was not disabled due to any of the conditions identified by Plaintiff. (Tr. 113-117).

At Plaintiff's request, a hearing before an Administrative Law Judge was held on December 8, 2009. Plaintiff was represented by counsel and testified in support of his claim. In addition, an impartial vocational expert appeared at the hearing. On January 13, 2010, the ALJ issued his decision, indicating that while plaintiff suffered severe impairments including substance abuse disorder, left knee osteoarthritis, cervical and lumbar arthritis, degenerative disc disease, diabetes mellitus, and bipolar disorder, none of his impairments met the criteria for a listed impairment as set forth in 20 CFR Part 404, Subpart P, Appendix 1. In particular, the ALJ determined that the objective medical evidence, as well as the opinion evidence of record, failed to support Plaintiff's allegations of mental or physical disability. (Tr. 84-91).

Plaintiff sought review with the Social Security Administration Appeals Council, and on March 31, 2011, the Appeals Council remanded the case for a specific assessment of plaintiff's physical and mental limitations including: (1) whether or not Plaintiff was capable of performing work-related mental activities; (2) whether Plaintiff's prior employment as a fry cook was performed at a substantial gainful activity level to qualify as past relevant work; (3) whether his position as a fry cook was inconsistent with findings of moderate mental limitations; (4) whether Plaintiff's assessed limitations and maximum residual functional capacity were supported by evidence of record; (5) the effect of Plaintiff's assessed limitations on his ability to find appropriate employment in the national economy, resolving any conflicts between the occupational evidence provided and the information in the Dictionary of Occupational Titles; and, (6) whether, if disabled, Plaintiff's drug addiction and alcoholism are contributing factors material to the determination of disability. (Tr. 77-79). A hearing was held on September 27, 2011, at which time Plaintiff, who was represented by counsel, and a vocational expert (AVE@) were called to testify. (Tr. 15). The ALJ issued a decision on March 8, 2012, finding that Plaintiff is capable of performing the requirements of several light unskilled jobs that exist in the national economy and, thus, is not disabled as defined under the Act. (Tr. 30). The Appeals Council denied Plaintiff's request for review on July 18, 2014, making the ALJ's decision the final decision of the Commissioner. (Tr. 5). Plaintiff filed this civil action seeking judicial review of the ALJ's decision.

B. Factual Background

In seeking review of the ALJ's decision, Plaintiff challenges only: (1) the vocational expert's testimony regarding employment identified as within Plaintiff's physical and mental capabilities, and (2) whether the ALJ included the physical limitations identified by the consultative examiner in her residual functional capacity assessment as it related to Plaintiff's ability to use and lift his arms. Since the issues addressed are relatively narrow, the Court will only set forth those facts pertinent to the instant motions and will not include a complete recitation of Plaintiff's extensive medical and drug and alcohol treatment history.

1. Relevant Medical Records

The medical records submitted to the Court span thousands of pages. These records are primarily reflective of Plaintiff's treatment for persistent drug and alcohol abuse.

With regard to Plaintiff's complaints of intractable knee pain not improving with physical therapy, Plaintiff underwent an MRI of his left knee on May 14, 2008, which found normal ligaments and muscle, with "trace" joint effusion and "mild chondromalacia." (Tr. 932). There is no further objective evidence of knee impairments, and all subsequent exams either showed good range of motion, muscle strength and no effusion.

As to Plaintiff's complaint of shoulder pain, Plaintiff relates a history of shoulder pain stemming from a 1999 car accident. Plaintiff received chiropractic treatment for the years 2006 through 2009 for left shoulder pain, which significantly helped and resulted in normal results for strength upon testing. (Tr. 1187, 3345). In the year leading up to the hearing of this matter, Plaintiff was seen by his primary care physician, Hugh Shearer, D.O., at Butler Medical Associates for recurring pain in both his right and left shoulder. (Tr. 4630-4634). Beginning in 2010, Plaintiff's initial complaints related to his left shoulder rotator cuff injury, for which Plaintiff was referred to a specialist, and treated with Vicodin for pain. (Tr. 4630). However, over the course of the following year, Plaintiff had a "left shoulder procedure" "at Bethesda, " "and had injection of stem cells. [He] reports that the left shoulder is doing very well with that." (Tr. 4630).

Soon after his left shoulder pain resolved, on May 25, 2011, Plaintiff sustained a fall and injured his right shoulder. (Tr. 4731). Plaintiff was transported by ambulance to the Butler Memorial Hospital Emergency Room, where x-rays revealed mild degenerative disease of the right shoulder joint and no evidence of fracture or dislocation. Plaintiff was provided ice and a splint, with a sling. He was prescribed a short course of hydrocodone (4 pills) and Motrin for pain. (Tr. 4732-4733). Plaintiff was also instructed to follow up with his primary care physician. Id.

Two days later, Plaintiff was seen by Dr. Shearer, (Tr. 4630), who examined Plaintiff and found a decreased range of motion resulting from pain. Dr. Shearer prescribed ice and hydrocodone for pain. (Tr. 4631). Dr. Shearer also ordered an MRI, which revealed a SLAP[2] lesion with swelling of the suraspinatus tendon, but otherwise a normal shoulder with mild joint arthrosis and no ligament, bursa or muscle injury. (Tr. 4635-4636). Plaintiff returned to Dr. Shearer on June 24, 2011, and obtained a second prescription for Vicodin and instructions for home exercise with directions related to the importance of performing range of motion exercises to prevent "frozen shoulder." Plaintiff was told to return in four weeks if he was "still having problems." (Tr. 4629). There are no records indicating that Plaintiff ever returned to Dr. Shearer or to any other medical provider for further treatment or issues related to either his left or right shoulder. Plaintiff's testimony during the hearing of this matter reflects some continued problems with his left shoulder and hand, making it difficult on some days to pick up or hold more than a cup of coffee; however, there are days when he "could pick up ...


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