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Patrick T. Mulvany v. Commissioner of Social Security

April 7, 2011

PATRICK T. MULVANY,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on July 26, 2007. In the application, plaintiff claims that disability began on January 1, 2007. Plaintiff claims that disability is caused by a combination of "osteoarthritis, degenerative joint disease/arthritis, severe pes planus, flat feet, and obesity" which give rise to "debilitating symptoms including chronic pain, sit/stand/walk limitations, impaired sleep, the need to lie down and rest during the day, the need to frequently change position, and impaired concentration, persistence, and pace." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on February 29, 2009, before Administrative Law Judge ("ALJ") Michael J. Seng. In an August 20, 2009, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant suffers from osteoarthritis, a severe impairment;

2. The claimant's severe impairment does not meet or medically equal any impairment listed in the regulations;

3. The claimant has the residual functional capacity to perform the full range of light work; and

4. Based on plaintiff's age, education, work experience, and residual functional capacity, the Medical-Vocational Guidelines direct a conclusion of "not disabled."

After the Appeals Council declined review on January 26, 2010, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

June 13, 2006 -- Dr. Garrett noted that plaintiff complained of pinching in his back when raising from a flexed position. Objectively, plaintiff's low back revealed no tenderness, though painful range of motion was noted. Straight leg raising was negative. Plaintiff's weight was 235 pounds.

February 20, 2007 -- Plaintiff reported to Dr. Garrett with complaints of continuing knee, shoulder, wrist, foot, and back pain. On objective examination, plaintiff was not in any acute distress. There was a full range of motion in the shoulders and knees. Pain was noted in the lumbar spine, though straight leg raising was negative. Motor strength and sensation were normal, and plaintiff was able to heel-to-toe walk. Plaintiff's weight was 233 pounds.

February 24, 2007 -- Dr. Garrett's treatment notes indicate that plaintiff reported with rib pain secondary to a fall from a ladder the preceding month. No abnormal findings were noted on objective examination. Plaintiff's weight at the time was 231 pounds.

April 12, 2007 -- Treatment notes provided by Dr. Garrett reflect that plaintiff presented with complaints of joint pain in his shoulders, elbows, and knees bilaterally. On physical examination, Dr. Garrett reported: "the shoulders show a full range of motion. There is no effusion. The joints are free from swelling, warmth, or redness." As to the knees, Dr. Garrett noted: "The knees are normal and have a full range of motion. There is no effusion, redness, or tenderness. The patella is normal. There is no joint instability or joint line tenderness." Regarding plaintiff's elbows, Dr. Garrett observed: "The elbows show a full range of motion. There is no effusion. The joints are free from swelling, warmth, or redness." Dr. Garrett diagnosed unspecified joint pain. Plaintiff's weight at the time was 234 pounds.

August 28, 2007 -- Plaintiff submitted a Function Report. He stated that he lives in a house alone. For a typical day, plaintiff described: "I get up take shower and get dressed then I have my coffee, breakfast then I watch the news and read the paper. Then sometimes I will go outside and water the plants & lawn wash down driveway then have some dinner and read & watch some TV. Then get ready for bed." He stated that he needs help with his shoes and, sometimes, washing his back. Plaintiff stated that he usually cooks once or twice a week and complains that he "can't BBQ like I use to." He stated that he irons his clothes every day and also does dishes. He stated that he drives a car and can do so alone. He shops "every other week 2 to 3 hours." Plaintiff stated that he is able to handle all money related matters. For physical limitations, plaintiff listed difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, concentrating, and using his hands. He stated that he can finish what he starts, can follow written and spoken instructions, and can get along with authority figures. He also stated that he can handle stress and changes in routine.

On this same date, plaintiff's girlfriend -- Silvia Rios -- submitted a third-party Function Report. Ms. Rios reported that plaintiff lives in a house with her. Her description of plaintiff's typical day was substantially the same as the description offered by plaintiff. She also agreed with plaintiff that he needs help with some dressing and bathing activities, but no help with money related matters. Ms. Rios reported that plaintiff has difficulty with lifting, squatting, bending, standing, reaching, sitting, walking, kneeling, stair climbing, concentrating, and using his hands. She also stated that plaintiff can only walk "about a block" before needing to rest for about 10 minutes.

November 5, 2007 -- Agency examining doctor Philip Seu, M.D., performed a comprehensive internal medicine evaluation. Dr. Seu obtained the following subjective history:

1. JOINT PAIN: The claimant reported that he has a long history of construction work that he has been doing most of his life. He reported that he has had the onset of joint pain for the last three years. The joints mostly involved are his back and his elbows but he also has pain in his wrists and hands. He reported that he has had increasing difficulty doing construction work, bending, squatting, and lifting. He has had no problems with swelling in the joints. He has seen physicians and has been prescribed pain medication and anti-inflammatory drugs. He has had x-rays done and was told he had "arthritis." He underwent a pain management program and has taken Vicodin and has tied going back to construction work but has been unable to do so. Of note, he reported that he had right knee surgery secondary to trauma in 1992.

2. LOW BACK PAIN: The claimant reported a 2-3 year history of low back pain. The pain is across the lumbar region. There is no radiation to his legs or upper back. He had x-rays done as well as an MRI and was told he had "arthritis." The pain is worse with bending or with prolonged sitting. He has been treated with anti-inflammatory agents which have only provided partial relief.

As to activities of daily living, plaintiff reported the following:

The claimant reported that he does light chores around the house such as washing his driveway or watering his plants. He reported he cannot do any heavy lifting. He has hired a gardener because he cannot do his yard work. He goes for short walks for exercise.

On physical examination, Dr. Seu diagnosed polyarthralgia secondary to degenerative joint disease, chronic low back pain, and hypertension. Dr. Seu ...


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