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Donald Cathey v. Commissioner of Social Security

May 10, 2012

DONALD CATHEY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

I. INTRODUCTION

Plaintiff Donald Cathey ("Plaintiff") seeks judicial review of an administrative decision denying his claim for disability benefits under the Social Security Act, Title II (the "Act"). Pending before the Court is Plaintiff's motion for summary judgment and the cross-motion for summary judgment of defendant Commissioner of Social Security ("Commissioner"). Plaintiff filed his complaint on August 27, 2010. (Doc. 1.) Plaintiff filed his summary judgment motion on April 13, 2011. ( Doc. 13.) The Commissioner filed his summary judgment cross-motion and opposition on May 12, 2011. (Doc. 14.) Plaintiff filed his Reply Brief on May 27, 2011. (Doc. 15.) This matter was reassigned to the Honorable Barbara A. McAuliffe on October 17, 2011 (Doc. 16.) The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to United States Magistrate Judge Barbara A. McAuliffe for findings and recommendations to United States District Judge Lawrence J. O'Neill.

II. BACKGROUND

A. Overview of Administrative Proceedings

On March 2, 2007, Plaintiff applied for disability insurance benefits under Title II of the Social Security Act. (Administrative Record ("AR") at 96-102.) Plaintiff alleges he has not been able to work since September 20, 2006 due to a shoulder replacement procedure, right shoulder pain, back pain and pain in his legs and feet. (AR at 119.)

Plaintiff's application was initially denied and denied again on reconsideration. (AR at 54-55.) Plaintiff requested a hearing before an administrative law judge (the "ALJ") (AR at 71), and testified at a hearing on April 15, 2009. (AR at 22-54.) In a decision dated July 13, 2009, the ALJ found that Plaintiff was not disabled as defined by the Act because he could perform his past work as a civil drafter. (AR at 9-21.) The Appeals Council denied review on June 29, 2010. (AR at 1-3.) Plaintiff filed this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1.)

B. Plaintiff's Background and Work Experience

Plaintiff was born on July 31, 1952. (AR at 26.) Plaintiff is 6'3" tall and weighs approximately 300 pounds. (AR. at 26). Plaintiff graduated from high school and attended two or three years of college, but did not receive a degree. (AR at 27, 125.) Plaintiff received graphic arts training and worked as an art coordinator/digital artist screen maker from April 1985 through October 2003, and as a CAD drafter from October 2003 through September 2006. (AR at 27, 106, 125.) Plaintiff previously worked at Tri-Tech graphics, but stopped because the company closed. (AR at 26-8.) Prior to Tri-tech's closing, Plaintiff was put on state disability due to pain in his left shoulder, neck and head. (AR at 28.)

Plaintiff injured in left shoulder in 1989 while picking up a heavy silk screen at work. (AR at 169.) Plaintiff underwent arthroscopic surgery to stabilize his shoulder in 1990. (AR at 169.) Plaintiff had a follow-up surgery the next year, and a third surgery subsequently thereafter. Id. In 2003, Plaintiff underwent a total joint replacement, which appeared to benefit his range of motion, but did not relieve his pain. Id. Plaintiff eventually developed pain in his right shoulder due to arthritis and overuse. Id.

C. Plaintiff's Testimony At the Administrative Hearing

On April 15, 2009, Plaintiff provided testimony at an administrative hearing before an ALJ to dispute a previous determination that Plaintiff was not entitled to disability insurance benefits. (AR at 24.) Plaintiff's counsel was present. (AR at 24.)

Plaintiff testified that the following medical problems keep him from working: diabetes, neuropathy of his legs and feet, lower back pain, hip pain, pain in his right and left shoulder, neck pain, carpal tunnel, pain and numbness in both hands. (AR at 30.) Plaintiff testified his diabetes causes pain to radiate into his feet and legs at least two to three times a day, for anywhere from ten minutes to an hour - and that his legs then go numb. (AR at 30.) Standing makes this condition worse. (AR at 30.) Plaintiff is currently taking pain medication, codeine with Tylenol 3, Tramadol, Ultram ER, Oxycodone. (AR at 44.) These medications are helpful, however, the pain medication impacts his ability to concentrate, and Plaintiff can only concentrate for 15-20 minutes before he tends to have trouble. (AR at 46-7.)

Plaintiff claims to have good range of motion in his left shoulder, however, not without a great deal of pain. (AR at 33.) Plaintiff has difficulties raising his right arm above his shoulder. (AR at 33.) Plaintiff was previously receiving Cortisone shots into his shoulder and neck to help with the pain from his treating physician, but stopped because his insurance lapsed and his treating physician was no longer on his new carrier's list of in-network physicians. (AR at 36-37.)

Plaintiff currently lives in a house with his wife. (AR at 26.) Plaintiff testified that he has a driver's license, and drives, but can not drive long distances due to pain and numbness in his legs. (AR at 26.) Plaintiff helps his wife with laundry, sweeps the floor, but does not do any other chores around the house. (AR at 45.) Plaintiff also goes shopping. (AR at 46.) In a typical day, Plaintiff wakes in the morning, checks his blood sugar, injects himself with diabetes medication and has breakfast. (AR at 39.) Once Plaintiff's medication "kicks in," Plaintiff "generally tr[ies] to go outside and feed the cats and walk around." (AR at 39.) Plaintiff then spends the remainder of his day at his house intermittently standing and sitting. (AR at 39-40.) Plaintiff reads books, watches television and carves on occasion, however, the carving is now difficult due to the pain in his shoulder and hands. (AR at 40.) Plaintiff now carves about two to three times a week. (AR at 40.)

Plaintiff testified that out of an eight hour day, Plaintiff lies down for about 30 minutes, sits for about six hours, and spends an hour and a half standing and walking around. (AR at 34.) Plaintiff testified that he does these activities intermittently, as he can not stay sitting constantly, and needs to move around. (AR at 34.) While Plaintiff is sitting, Plaintiff generally elevates his feet about waist high due to the numbness and pain in his legs. (AR at 35.) Plaintiff testified that if he keeps his feet down while sitting, his legs swell with water. (AR at 35.) Plaintiff takes water pills for this symptom, which causes dehydration, dizziness, and frequent urination. (AR at 35-36.)

Plaintiff testified that the longest he can be on his feet at one time is for 15 minutes. (AR at 30.) Plaintiff testified he can sit for up to an hour. (AR at 31.) Plaintiff testified that in an eight hour day, Plaintiff could only reach out forward for a total of 10-15 minutes. (AR at 33.) Plaintiff testified he could only use his hands for about twenty minutes before he would have to rest them for a couple hours. (AR at 34.) Plaintiff testified that the most he could lift was an 18 pound bag of dog food. (AR at 42-43.) Plaintiff testified in an eight hour work day with normal breaks, Plaintiff could stand for three hours, sit for six or seven hours, but not constantly for any of these activities. (AR at 45, 47.) Plaintiff also stated that he would need to have his feet up at 90 degrees in order to sit for 6 or 7 hours. (AR at 47.)

1. Testimony of the Vocational Expert, Judith Negerian

During the administrative hearing, the ALJ called upon a vocational expert (the "VE") to provide testimony regarding Plaintiff's ability to perform his past relevant work as a drafter. The ALJ posed two hypothetical questions to the VE. The first hypothetical was for a 56 year old individual with past relevant work experience as a drafter and screen maker. This individual has a combination of severe impairments and retains residual functional capacity of lifting and carrying 20 pounds occasionally, 10 pounds frequently, retains the ability to stand, walk, and sit six hours each, ability to climb ropes, ladders, and scaffolds, as well as occasionally reach overhead with the non-dominant left upper extremity. (AR at 50.) The VE testified that such a hypothetical person could perform his past work as a drafter. (AR at 50.)

For the second hypothetical question, the hypothetical individual had the same impairments and residual functional capacity as the first hypothetical individual, however, this person has the residual functional capacity to lift and carry 18 pounds maximum, walk one hour total, stand three hours total, sit six to seven hours maximum, has difficulty raising the right dominant upper extremity over the shoulder level, as well as difficulty reaching to the front bilaterally. This individual also has difficulty using the hands bilaterally. This individual must also lie down 30 minutes per day and elevate the lower extremities during the day. (AR at 50-51.) The VE testified that such an individual could not perform their past jobs, nor any other job which exists in the national economy. Id.

Plaintiff's counsel, Mr. Milam, asked the VE an additional hypothetical, which assumed the same parameters as in the first hypothetical, however, with a restriction to occasional reaching in all directions. The VE stated such a person could not work as a civil drafter, nor any other job in the national economy. (AR at 51.)

D. Medical History

1. Dr. Ara Soghomonian

Dr. Ara Soghomonian was Plaintiff's primary care physician from 1993 to 2009. (AR at 214-320.) The Record contains over one hundred pages of Dr. Sogomonian's examination notes and observations regarding Plaintiff's condition. (AR at 214-320.)

Dr. Soghomonian's handwritten notes, while largely illegible, present the following relevant observations on Plaintiff's condition: (1) joint pain (AR at 279, 268); (2) obesity (AR at 277, 254, 252, 249, 248); (3) pain in his feet (AR at 277); (4) pain, swelling, numbness and discoloration of the legs and feet (AR at 259, 258, 255, 250, 238, 237, 233, 222, 219, 218); (5) pain and limited motion in his shoulders. (AR at 250, 243)

On July 7, 2007, Dr. Soghomonian wrote that Plaintiff suffered from hypertension, diabetes, degenerative osteoarthritis, post right shoulder arthroplasty, chronic obstructive pulmonary disease, and sleep apnea. Dr. Soghomonian concluded that, in his opinion, Plaintiff's prognosis was poor, and Plaintiff was disabled. (AR at 180.) Dr. Soghomonian, however, did not offer any opinions on Plaintiff's residual functional capacity, or specifically address Plaintiff's working limitations.

2. Malcolm E. Ghazal

Sometime in 2003, Dr. Malcolm Ghazel performed Plaintiff's left shoulder replacement. (AR at 16, 162.) In July of 2006, Plaintiff followed up with Dr. Ghazal. (AR at 16, 162.) At that time, Dr. Ghazel stated Plaintiff had complained of some instability in his left shoulder, and that Plaintiff was not using his left shoulder very much. (Ar at 162.) However, Dr. Ghazal noted that Plaintiff had nearly full range of motion in his left shoulder, and Plaintiff was not experiencing episodes of subluxations. (AR at 162.) In August of 2006, Plaintiff against followed up with Dr. Ghazal. (AR at 163.) At this time, Plaintiff complained of minor episodes of subluxation whenever he reached for something. (AR at 163.) Dr. Ghazal recommended physical therapy. (AR at 163.) Dr. Ghazel, however, did not offer any opinions on Plaintiff's residual functional capacity.

3. Dr. Kurt V. Miller, M.D.

On September 14, 2006, Plaintiff met with Neurology specialist Dr. Kurt Miller. (AR at 164-5.) At the time, Plaintiff was unable to work the past two weeks due to the pain in his shoulders. Id. Dr. Miller noted Plaintiff was experiencing pain in both his shoulders. Plaintiff could not raise his right arm above shoulder level, and his left arm could only be raised about 10-15 degrees above his shoulder. (AR at 164.) Dr. Miller listed additional objective findings that Plaintiff's shoulder was suffering from a decreased range of motion and decreased shoulder girdle muscle bulk. Id.

Dr. Miller diagnosed Plaintiff with shoulder degeneration and, taking notice of Plaintiff's mood and disposition, diagnosed Plaintiff with depression. (AR at165.) Dr. Miller listed Plaintiff as TTD, or temporary total disability. Id. Dr. Miller questioned whether Plaintiff's shoulder condition could be fixed, and wrote the "shoulder will be perm[antly] disabled." Id. Dr. Miller also wrote Plaintiff would eventually need shoulder replacement surgery, and that Plaintiff should apply for disability. Id. Dr. Miller, however, did not offer any opinions on Plaintiff's residual functional capacity, or discuss Plaintiff's specific work limitations.

4. Dr. Thomas J. O'Laughlin

Dr. Thomas O'Laughlin, a physiatrist and one of Plaintiff's treating physicians, examined Plaintiff ...


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