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Ferraro v. Colvin

United States District Court, M.D. Pennsylvania

January 5, 2015

JAMES FERRARO, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL DOCS. 1, 11, 12, 15, 17

GERALD B. COHN, Magistrate Judge.

REPORT AND RECOMMENDATION

I. Procedural Background

On October 27, 2009, James Ferraro ("Plaintiff") protectively filed an application as a claimant for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, with an alleged disability onset of May 1, 2008.[1] (Administrative Transcript, hereinafter, "Tr." at 9 (Doc. 11)). On October 19, 2010, Plaintiff's claim was denied at the initial level of administrative review. (Tr. 135-138). At Plaintiff's request, on March 16, 2012, an administrative law judge ("ALJ") held a hearing at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified. (Tr. 10). On May 24, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 7-19). On July 5, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 5-6), which the Appeals Council denied on August 20, -, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-4).

On October 18, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1. On January 16, 2014, the Commissioner ("Defendant") filed an answer and an administrative transcript of proceedings. Doc. 10, 11. On February 27, 2014, Plaintiff filed a brief in support of the appeal ("Pl. Brief"). Doc. 12. On April 10, 2014, Defendant filed a brief in response ("Def. Brief"). Doc. 15. On November 5, 2014, the Court referred this case to the undersigned Magistrate Judge. On November 17, 2014, Plaintiff filed a letter notifying the Court that a reply brief would not be filed. Doc. 17.

II. Relevant Facts in the Record

Plaintiff was born on August 23, 1955, and thus was 52-years-old on the alleged disability onset date and 54-years-old when he was last insured for benefits. (Tr. 12). He completed high school (Tr. 194), and previously worked as sanitation worker, mail sorter and mobile caterer. (Tr. 15-16, 96-98). Between 1989 and 1991, Plaintiff sustained an elbow fracture and subsequently was recommended a "disability retirement" from his job as a sanitation worker. (Tr. 75, 269, 318). In January 2008 Plaintiff sustained a shoulder injury. (Tr. 229-228). Plaintiff alleges disability due to a combination of impairments including avascular necrosis of the shoulder and an elbow impairment. (Tr. 12, 14, 75, 96). The ALJ found that Plaintiff last met the insured requirements of the Act on December 31, 2009. (Tr. 12).

A. Relevant Treatment History and Medical Opinions

1. NYC Employee Retirement System - Medical Board Examination and Report, November 21, 1991

A November 1991 Medical Board report recommended a "disability retirement" due to an injury to the right elbow that Plaintiff reported in an application filed September 13, 1991. (Tr. 318). In the interview for the November 1991 report, Plaintiff stated that he suffered an elbow injury which resulted in immediate swelling. (Tr. 318). Following the injury, Plaintiff sought emergency care at a hospital, had x-rays taken, and it was determined that Plaintiff had a "nondisplaced fracture of the radial head with a chipped fracture of this portion of the radius" with associated soft tissue swelling. (Tr. 318). Plaintiff was treated with a cast by orthopedist Dr. Yussef. (Tr. 318). Plaintiff reported continued pain and swelling after the cast was removed and was told that he needed surgery. (Tr. 318). The November 1991 report referenced medical records from Dr. Harvey Grable dated July 31, 1991; and August 12, 1991, wherein Dr. Grable opined that Plaintiff sustained a fracture involving the larger part of the radial head of the right elbow. According to Dr. Grable, the prognosis for Plaintiff's regaining full use of the right elbow was poor since an excision of the radial head had not been done within the proper timeframe. (Tr. 318). Dr. Grable stated that Plaintiff lost a complete range of motion for the right elbow with 30 degrees lack of extension and 30 degrees lack of supination. (Tr. 318). Dr. Grable added that Plaintiff's flexion and pronation were normal and surgery would only marginally improve Plaintiff's condition and would unlikely result in Plaintiff regaining full use of the right elbow. (Tr. 318). Dr. Grable further opined that it would be unlikely that Plaintiff would be able to return to his regular duties in his sanitation work. (Tr. 318). In the November 1991 report, Plaintiff complained of pain, swelling and limitation of motion of the right elbow. (Tr. 318). Upon examination, the right elbow did not show any swelling, and had complete supination with a normal range of pronation. (Tr. 318). During the November 1991 examination, it was further noted that Plaintiff lacked thirty degrees of full flexion and thirty degrees of extension of the elbow. (Tr. 318). The Medical Board also noted that Plaintiff had slightly less gripping power on the right than the left. (Tr. 319).

2. Natale Falanga, M.D., Treating Physician - Records, June 14, 1993, to December 20, 2010

Dr. Falanga has treated Plaintiff from 1993 to 2010. (Tr. 224-256, 273-284). In a treatment record dated June 28, 1994, it was noted that Plaintiff's right arm appeared to be three to four centimeters shorter than the left arm and had a decreased range of motion. (Tr. 240). In a treatment record dated June 24, 1999, Plaintiff reported having slammed his finger in a car door and Dr. Falanga examined the left thumb and index finger and noted swelling. (Tr. 246). In a treatment record dated January 13, 2008, Dr. Falanga noted that there was a history of a fall and Plaintiff reported shoulder pain. (Tr. 247, 291, 309, 311). Upon evaluation, Dr. Falanga noted no evidence of fracture or dislocation of the right shoulder, a "band-like area of sclerosis involving the humeral head, " and concluded that such observations were suggestive of avascular necrosis. (Tr. 247). Dr. Falanga also noted areas of periosteal reaction involving the very lateral aspect of the scapula, most prominently near the glenoid, as well as acromioclavicular join degenerative changes. (Tr. 247, 291). On January 11, 2008, Plaintiff reported falling on his shoulder that morning, and that the shoulder hurt upon movement with a level of pain similar to a tooth ache.' (Tr. 229-228). Dr. Falanga observed that the right shoulder was tender to any movement and planned for x-rays of the right shoulder. (Tr. 228). On January 18, 2008, Plaintiff returned for treatment of his right shoulder pain. (Tr. 227). Dr. Falanga noted crepitus of the left shoulder and minimal crepitus of the right shoulder. (Tr. 227). Although Dr. Falanga found no evidence of fracture; there was a suggestion of avascular necrosis of the right humeral head. (Tr. 227). Plaintiff reported that his right shoulder felt better since the previous visit and Dr. Falanga referred Plaintiff for an MRI of the right shoulder and humeral head. (Tr. 227). A handwritten note dated December 10, 2009, indicated that the office was trying to set up an MRI, and another note dated February 4, 2010, stated that the MRI of the shoulder was denied. (Tr. 226).

3. Pocono Medical Center, James J, Gallagher, M.D., Radiologist - Records, January 13, 2008

In a treatment record dated January 13, 2008, Radiologist Dr. Gallagher noted that Plaintiff's right shoulder did not demonstrate any evidence of a fracture or dislocation. (Tr. 247, 291, 309, 311). Dr. Gallagher observed that there was a band-like area of sclerosis involving the humeral head which was suggestive of avascular necrosis. (Tr. 247, 291, 309, 311). Dr. Gallagher also noted areas of periosteal reaction involving the very lateral aspect of the scapula which was most prominent near the glenoid and observed acromioclavicular joint degenerative changes. (Tr. 247, 291, 309, 311).

4.Gregory J. Menio, M.D., Treating Physician - Records, March 19, 2010, to May 31, 2011

In a consultative letter to Dr. Falanga dated March 19, 2010, Dr. Menio noted a history of right shoulder pain since January 2008. (Tr. 244, 275, 302, 304). Plaintiff reported that the shoulder pain increased with activity and improved with rest. (Tr. 244, 275, 302, 304). Dr. Menio noted x-rays of Plaintiff's shoulder which "raise the question of avascular necrosis" and noted a history of hypertension, diabetes, and arthritis. (Tr. 244, 275, 302, 304). Upon examination, Dr. Menio further observed that Plaintiff's right shoulder had full range of motion, 5/5 strength, no instability or tenderness, and no supraspinatus weakness. (Tr. 244, 275, 302, 304). Dr. Menio further reported that he took two x-rays of Plaintiff's shoulder and concluded ...


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