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Idegwu v. Colvin

United States District Court, Third Circuit

November 18, 2013

ROXIE L. IDEGWU, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

MARY PAT THYNGE, Magistrate Judge.

I. INTRODUCTION

On September 14, 2012, plaintiff Roxie L. ldegwu ("plaintiff') filed this action against defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("defendant").[1] Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a decision by defendant denying her application for disability insurance benefits ("DIS") under Title II of the Social Security Act. Presently before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, the court recommends plaintiff's motion for summary judgment be denied, and defendant's cross-motion for summary judgment be granted.

II. BACKGROUND

A. Procedural History

On July 16, 2009, plaintiff filed her application for DIS, claiming she was disabled beginning on October 10, 2006 due to osteoarthritis, diabetes, high blood pressure, and degenerative disc disease status post-arthroscopic surgery.[2] Plaintiff amended her onset date prior to the administrative hearing to allege disability since October 26, 2009.[3] Plaintiff's application was denied initially on November 4, 2009, and on reconsideration on January 8, 2010.[4] On February 9, 2010, plaintiff filed a written request for a hearing.[5]

A hearing before Administrative Law judge ("ALJ") Judith A. Showalter was conducted on December 16, 2010.[6] Plaintiff, represented by counsel, testified at the hearing.[7] Adena Leviton, an impartial vocational expert ("VE"), also appeared at the hearing.[8] On January 28, 2011, the ALJ issued a written decision denying plaintiff's application for DIN.[9] The ALJ noted plaintiff's insured status expired on September 30, 2010, and therefore, she was required to establish disability on or before that date in order to be entitled to a period of disability and DIB.[10] After review of the evidence, the ALJ held plaintiff was not disabled under sections 216(1) and 223(d) of the Social Security Act.[11] Specifically, the ALJ found plaintiff had sever impairments, including obesity, degenerative joint disease of the bilateral knees, and degenerative disc disease of the cervical spine, but nonetheless had the residual functional capacity to perform simple unskilled light work as defined in 20 C.F.R. § 404.1567(b).[12] The ALJ further found plaintiff could perform said work, except that she can only stand and walk for 2 hours in an 8 hour workday, sit for 6 hours in an 8 hour workday, with posturals that are occasional, but no climbing of a rope, ladder or scaffold, and no frequent handling, fingering and feeling.[13] The ALJ also determined plaintiff was to avoid working overhead and concentrated exposure to extreme cold or hazards.[14]

Plaintiff's subsequent appeal to the Appeals Council was denied, as the Council concluded there was no basis for reviewing the ALJ's decision.[15] The ALJ's decision, therefore, constitutes the final decision of the Commissioner.[16]

Having exhausted all administrative remedies, plaintiff now seeks judicial review of this decision under 42 U.S.C. § 405(g).[17] Plaintiff sought and received an extension of time to file a motion for summary judgment.[18] On March 21, 2013, plaintiff moved for summary judgment.[19] On April 22, 2013, defendant filed a cross-motion for summary judgment.[20]

B. Factual Background

Plaintiff was born on August 12, 1957.[21] She was over fifty years old throughout the period at issue, and is considered "closely approaching advanced age" at all times relevant to her DIB application.[22] Plaintiff is a high school graduate and went to college for two years.[23] Plaintiff has prior vocational experience as a residential counselor assisting people with disabilities, and working as a substance abuse and/or HIV educator.[24]

At the time of the ALJ hearing, plaintiff lived with her husband, her 14-year-old son, and a boarder who rented a room from her.[25] Furthermore, plaintiff was able to drive, [26] feed herself, [27] use the microwave, [28] prepare sandwiches, [29] cook small meals three times a week, [30] shop for food, [31] maintain her personal care, [32] perform some household cleaning, [33] wash laundry once a week, [34] play games, [35] shop on the computer, [36] and attend church.[37]

1. Medical Evidence

Prior to the alleged onset date, plaintiff was involved in a motor vehicle accident in October 2006.[38] As a result, she complained of injury to her knee, shoulder pain, and neck pain.[39] An MRI of her left knee showed evidence of a tear of the posterior horn medial meniscus, minimal grade II chondral changes in the medial compartment and patellofemoral compartment, small joint effusion with mild synovitis, and intact cruciate and collateralligaments.[40] An MRI of her neck revealed cervical disc disease, but no nerve root or spinal cord compression, and no stenosis or cord displacement.[41] Prior to the automobile accident, plaintiff treated with Ganesh Balu, M.D. ("Dr. Balu") and Obimbola Osunkoya, M.D. ("Dr. Osunkoya"), for complaints of lower back pain and hand pain.[42]

Plaintiff continued to treat with Drs. Balu and Osunkoya with complaints of neck, back, leg, and shoulder pain.[43] Plaintiff began treatment with Glen D. Rowe, D.O., P.A. ("Dr. Rowe"), on February 21, 2007, for knee and neck paint caused by the motor vehicle accident.[44] Dr. Rowe diagnosed her neck pain as a strain and recommended knee surgery after trying physical therapy and injections.[45] On April 4, 2007, Dr. Osunkoya during his pre-operation examination, found that plaintiff retained normal gait, power, and tone in all extremities with no loss of sensation.[46] On April 11, 2007, plaintiff underwent left knee surgery.[47] Plaintiff improved following surgery, [48] and in June and July, underwent a series of Supatz injections, which were "moderately beneficial."[49]

Plaintiff continued to treat with Drs. Rowe, Balu, and Dr. Osunkoya for complaints of neck, knee, and back pain in 2008.[50] On April 25, 2008, Dr. Balu conducted an EMG study, which showed evidence of left-sided C6 radiculopathy, but the condition was "mild in nature, " with no evidence of cubital tunnel syndrome or carpal tunnel syndrome.[51] On June 5, 2008. Dr. Balu diagnosed plaintiff with a left shoulder impingement, and found decreased range of motion, but no focal weakness in her arms.[52] Thereafter, Dr. Balu treated plaintiff with medication[53] and Dr. Rowe administered injections to her knee.[54]

On or about October 27, 2008, [55] Dr. Rowe completed a medical source statement and physical to determine plaintiff's ability to perform work related activities on a day-to-day basis in a regular work setting.[56] Dr. Rowe indicated plaintiff could occasionally lift fifty pounds, but could frequently lift ten pounds, and was able to stand and walk at least two hours in an eight-hour work day.[57]

On November 5, 2008, Dr. Osunkoya found plaintiff exhibited normal gait with normal power and tone in all extremities, and no loss of sensation.[58] As a result, he told plaintiff to exercise regularly, and at a minimum briskly walk two miles, three to five times per week.[59]

On October 25, 2009, Dr. Irwin Lifrak, M.D. ("Dr. Lifrak") performed a consultative examination and found plaintiff had a mild limp, was able to get on and off the examining table without assistance, had full muscle tone in her legs, and full grip strength, and showed no evidence of muscle atrophy.[60] However, Dr. Lifrak found plaintiff had a reduced range of motion in her knees, left shoulder, lower spine, and knees.[61] Nevertheless, Dr. Lifrak concluded plaintiff could stand for a total of three to four hours, and lift up to ten pounds with her right hand and five pounds with her left.[62]

On October 29, 2009, Dr. Joyce Goldsmith, M.D. ("Dr. Goldsmith"), a state agency consultant, completed a physical residual functional capacity assessment and found plaintiff could lift ten pounds frequently, and could stand and/or walk for at least two hours in an eight-hour workday.[63] On January 8, 2010, Anne C. Aldridge, M.D. ("Dr. Aldridge") summarily affirmed Dr. Goldsmith's report.[64]

In October and November 2010, Dr. Balu noted plaintiff had been advised to pursue therapies that she did not want to try and slowly reduced her medication.[65] On November 16, 2009, Dr. Osunkoya examined plaintiff who complained of static back pain, tender lower back, mild spasm, limited range of motion, but she denied neck pain.[66] Dr. Osunkoya advised plaintiff to briskly walk two miles, three to five times per week and limited her to "no lifting [greater than] 30 lbs."[67]

In May 2010, plaintiff was evaluated by Dr. John Ashby, M.D. ("Dr. Ashby"), who found she exhibited a moderately antalgic gait with limited range of motion, but normal manual muscle testing for neck pain.[68] On July 1, 2010, Dr. Ashby performed an EMG which showed mild carpal tunnel syndrome, chronic C8 radiculopathy with mild ulnar neuropathy, and chronic C6 radiculitis with the left being worse than the right.[69] Dr. Ashby treated plaintiff with medication and referred her to a specialist, Matthew Handling, M.D., for her complaints of hand pain.[70]

On August 11, 2010, Dr. Handling treated plaintiff for her complaints of hand pain; her musculoskeletal exam was negative except for her complaints of difficulty with her hands.[71] Dr. Handling found plaintiff had an active range of motion without pain in both wrists, but decreased wrist strength.[72] As a result, he administered an injection and instructed her to wear a brace.[73]

On November 2, 2010, Dr. Osunkoya evaluated plaintiff for complaints of lumbar pain, left knee stiffness, and numbness in her hands.[74] Plaintiff denied neck pain and stated she was "doing fine."[75]

On November 4, 2010, Dr. Ashby completed a Physical Residual Functional Capacity questionnaire where he opined that plaintiff could sit, stand, or walk less than two hours in an eight-hour workday, and could occasionally lift less than ten pounds.[76]

On November 30, 2010, Dr. Jie Zhu, M.D. ("Dr. Zhu") examined plaintiff, and noted a lumbar x-ray on September 19, 2009 showed trace anterolisthesis and loss of disc height, and moderate facet arthopath.[77] Dr. Zhu found plaintiff's gait to be normal, with full range of motion in her lower back, arms, and legs, her muscle strength as grossly normal, and her sensation to light touch was grossly intact.[78]

C. The Vocational Expert's Testimony At The Administrative Law Hearing

Adena Leviton, a vocational expert ("VE"), testified at the Administrative Law Hearing.[79] The ALJ asked the VE whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity.[80] The VE testified, that given all of these factors, the individual was able to perform the requirements of representative occupations such as: officer helper - 1, 000 jobs in the local economy, 170, 000 jobs in the national economy; assembler - 400 jobs in the local economy, 385, 000 jobs in the national economy.[81]

D. The ALJ's Decision

Based on the evidence and testimony, the ALJ determined in her January 28, 2011 opinion, that plaintiff was not disabled and not entitled to 018.[82] The ALJ's findings are summarized as follows:

1. The claimant last met the insured statute requirements of the Social Security Act on September 30, 2010.
2. The claimant did not engage in substantial gainful activity during the period from her alleged date of October 26, 2009 through her date last insured of September 30, 2010 (20 CFR 404.1571 et seq. ).
3. Through the date last insured, the claimant had the following severe impairments: obesity, degenerative joint disease of the bilateral knees, degenerative disc disease of the cervical spine (20 CFR 404.152(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, ...

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