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Irvin v. Berryhill

United States District Court, M.D. Pennsylvania

July 6, 2017

John Irvin Plaintiff
v.
Nancy A. Berryhill, [1]Acting Commissioner of Social Security Defendant.

          MEMORANDUM

          Honorable Richard P. Conaboy United States District Court Judge

         I. Background.

         We consider here the appeal of Plaintiff John Irvin from an adverse decision of the Social Security Administration (“SSA”) or (“Agency”) regarding his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Plaintiff's claims were initially denied at the administrative level on July 11, 2013. Plaintiff then requested a hearing before an administration law judge (“ALJ”) and received one on April 8, 2015 before ALJ Michael F. Colligan. On May 20, 2015, the ALJ issued a decision denying Plaintiff's applications for benefits whereupon Plaintiff requested review by the Appeals Council. On August 4, 2016, the Appeals Council affirmed the ALJ's decision. Plaintiff has appealed to this Court which enjoys jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).

         Plaintiff's applications for DIB and SSI are predicated on his allegation that he became disabled on March 6, 2013. Plaintiff claims that his alleged disability is a result of a left shoulder injury status post arthroscopy, left shoulder DJD, cervical degenerative disc disease, asthma/COPD, Raynaud's disease, urticaria, and bilateral basal arthritis of the thumbs.

         II. Testimony Before the ALJ.

         On April 8, 2015, Plaintiff testified before the ALJ. He was accompanied by his attorney, Stephen J. Hogg. Also testifying was a vocational expert (“VE”), Dr. Paul Anderson. Plaintiff testified that he was 54 years of age on the date of the hearing, that he was right-handed, that he graduated from high school, that he served in the military, and that he had training as a barber and held a license as a barber manager. (R.at 30).

         Plaintiff stated that he had briefly worked at two jobs after his alleged onset date. He could not recall the identity of the first employer but identified Amazon as the second employer. The first job had been as a cashier at a truck stop. The job at Amazon was work in a warehouse. Plaintiff stated that the work at Amazon was full-time but that he was forced to quit “when my thumbs came into play.” (R.31-21). Before his alleged onset date Plaintiff stated that he had worked as a self-employed barber and as a barber in shops owned by others. Before that, Plaintiff worked for the Pennsylvania Bureau of Worker's Compensation and the Pennsylvania Liquor Control Board as a clerk doing general office work. Even earlier in his career Plaintiff had worked as a van driver transporting indigent persons to medical appointments, school, and work. Plaintiff's work history goes back to the mid 1980's. (R.32-33).

         In March of 2013, Plaintiff stopped working as a barber due to pain in his left shoulder. At that time working for one day would so exacerbate his left shoulder pain that he would need to take several days off for the pain to subside. As of the date of his hearing (April 8, 2015) Plaintiff described his shoulder as “better than it was” but stated that he still has pain. The pain is aggravated if he tries to raise his arm to shoulder level. This makes it difficult to work as a barber. He also testified to a problem with his thumbs that began in the summer of 2014. The problem with his thumbs required surgery which was helpful to some degree. However, as of April 8, 2015, he still had difficulty pinching or holding objects and has little power in his grip. (R.33-35). Plaintiff also testified that he has been asthmatic since he was a child and that, while his asthma is always present, it is typically well-controlled by mediation like Combivent and Symbicort. (R.36).

         Upon questioning by his attorney, Plaintiff explained that since March of 2013 his problems with his thumb function would not permit him to work as a barber full-time. These symptoms included extreme stabbing pain at the base of his thumbs that, once started, would persist for hours. Even more problematic was his left shoulder and this was so even after undergoing shoulder surgery in 2013. He also began experiencing problems in his right shoulder at some indeterminate time in 2013, but the right shoulder problem is not as serious as that in his left shoulder. He estimated that he cannot lift more than ten pounds overhead with his left arm and that his right arm is somewhat stronger. He stated also that he has more mobility in his right shoulder than in his left. (R.37-41). Plaintiff then testified to neck problems that he characterized as a “ratching wrench” or a “popping”. He also stated that he has a hard time turning his head and that when his neck “pops” it produces pain that lasts for seconds. He also stated that he still drives but finds it impossible to wrap his thumbs around the wheel. He holds the bottom of the steering wheel against his palms and exerts upward pressure as needed to turn the wheel. (R.42).

         Plaintiff also testified that he suffers from urticaria and Raynaud's disease.[2] Both these conditions result in a discoloration of the hands caused by poor circulation. Wet or cold weather aggravates both conditions. These conditions are characterized by itching, swelling and hives. During the winter Plaintiff states that these symptoms are a daily occurrence. While these conditions have been present since Plaintiff's alleged onset date, the Plaintiff was initially diagnosed with these conditions in 1985 or 1986. Plaintiff also experiences bilateral numbness in his hands and feet as a result of his urticaria and Raynaud's disease. These symptoms prevent his participation in activities such as climbing a rope, archery, using a rifle, and bicycling. His ability to handle things is also compromised because his hands lack sensitivity. (R.42-45).

         While complaining that he is sometimes short of breath, Plaintiff indicated that he could walk from one half mile to a mile without becoming winded. He could not, however, provide any estimate of his walking pace. He also stated that, after walking about one mile, pain in his lower back begins to appear. (R.46-47).

         In describing a typical day since his alleged onset of disability in March of 2013, Plaintiff stated: that he gets up and makes coffee and something for breakfast; that he does the laundry as needed but uses only his right hand to complete that task; that his back pain limits his standing and walking; and that after his shoulder surgery in September of 2013, he was “pretty limited” for an unspecified time. He stated further that when he worked in the Amazon warehouse - -at a time after his alleged onset date - -he was putting in ten hour days pushing carts that weighed up to 450 pounds. This became difficult “after a while” due to pain in his neck and back and the problems with his thumbs. Plaintiff stated that he would no longer be capable of doing the work he did at the Amazon work site. (R.48-50).

         Also testifying was Dr. Paul Anderson, a VE. Dr. Anderson discussed the classifications of the jobs that Plaintiff had performed in the past. He described Plaintiff's various work experiences as light and skilled (barber); medium and semi-skilled (van driver); and light and unskilled (cashier). Dr. Anderson also responded to a hypothetical question from the ALJ that asked him to assume an individual the same age as the claimant and of the same educational level and work history. He was asked to further assume that the individual would be capable of light work in terms of exertion and would have additional restrictions in that he would require an air-conditioned work environment and one in which there would be no exposure to temperature extremes or dust and fumes beyond what would be expected in a well-maintained home or office setting. Additional limitations would include: no reaching above shoulder level with the left arm; and no climbing involving ladders, ropes, or scaffolds. (R.50).

         After outlining the above-described hypothetical question, the ALJ asked the VE whether jobs existed in the national economy within the capacities stated in the hypothetical question. The VE then stated that the hypothetical individual would be capable of performing as a cashier, an information clerk, or an usher. The VE added that the classifications he specified for the various jobs that he mentioned were consistent with publications of the United States Department of Labor (R.51-52).

         The Plaintiff's counsel then asked the VE whether his opinion of the hypothetical individual's ability to do the various jobs he had identified would change if that hypothetical individual was incapable of fingering, feeling, and handling more than occasionally. The VE responded that, given these additional limitations, all the jobs he had identified would be precluded. (R.53).

         III. Relevant Medical Evidence.

         A. Dr. Keith Cordischi.

         Dr. Cordischi treated Plaintiff at the Lebanon Veteran's Hospital. In May of 2013, Dr. Cordischi saw Plaintiff for an evaluation of his left shoulder. He indicated that an MRI of Plaintiff's left shoulder revealed a large spinoglenoid cyst, suprascapular nerve lesion, and loose bodies in the shoulder joint. Dr. Cordischi noted also that Plaintiff denied numbness or tingling but that he had pain with overhead reaching maneuvers and could not maintain the left shoulder in a static position, such as for cutting hair. (R.370-71). Dr. Cordischi noted that Plaintiff was a candidate for arthoscopic surgery of the left shoulder to alleviate the aforementioned conditions. (R.371).

         The arthroscopic procedure was performed in September of 2013 and Plaintiff experienced significant benefit from it. On October 30, 2013, Dr. Cordischi assessed that Plaintiff was doing very well and had minimal pain referable to his left shoulder. Dr. Cordischi stated: “The patient is doing amazingly well given the extent of his injury and surgery.” (R.575). In January of 2014, Dr. Cordischi saw Plaintiff for a scheduled follow-up visit. The progress notes of that visit indicate that Plaintiff continued to progress and was “in very bright spirits and is very motivated.” (R.572). In April of 2014, Dr. Cordishci saw Plaintiff once again and authored progress notes indicating: “The patient has done an outstanding job rehabbing left shoulder and I emphasize to him the importance of keeping up with his left shoulder home rotator cuff/periscapular exercise program. I provided him with a note today allowing him to return to full unrestricted duties at work.... We agree that I will see him back on a p.r.n. basis in the future, and that we have both been quite pleased with the results of his surgery, given the extent of his shoulder pathology.” (R.552).

         On July 6, 2014, the Plaintiff called the VA to report that he felt like he re-injured the bicep that Dr. Cordischi had repaired. This happened while he was exercising and felt a sudden “pop” and experienced some slight pain. (R.540). This incident prompted a return to Dr. Cordischi on July 28, 2014 incident to which Dr. Cordischi assessed left shoulder pain and a possible biceps tendon rupture. (R>537). Dr. Cordischi ordered an MRI of Plaintiff's left shoulder which was performed on August 11, 2014. That MRI demonstrated: (1) post operative changes in the left shoulder; (2) tear of the supraspinatus tendon with probable vertical split tear of the long head of the biceps tendon anchor; and (3) a ganglion cyst in the subacromial region. (R.517).

         B. Dr. Daniel P. Healy, M.D.

         On August 8, 2014, Plaintiff saw Dr. Healy with complaints of pain in both thumbs. The pain was concentrated at the base of the thumbs. Dr. Healy's notes indicate that this bilateral thumb pain affected Plaintiff's “power pinch” and general ability to grip objects. Dr. Healy read x-rays of Plaintiff's thumbs that he interpreted to indicate basal joint arthritis involving both the basal and scaphotrapezial joints in both thumbs. Dr. Healy's notes reflect his plan to perform resection surgery at the basal joint of both Plaintiff's thumbs. (R.583).

         Dr. Healy performed a right thumb basal joint arthroplasty on Plaintiff on September 2, 2014. (R.585). On October 15, 2014, Dr. Healy observed that Plaintiff still lacked full mobility in his right thumb and that he was experiencing minimal tenderness on palpation. He stated that he would re-examine Plaintiff in six weeks and that ...


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