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Willis v. Astrue

United States District Court, D. Delaware

March 14, 2014

LEWIS D. WILLIS, Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

MARY PAT THYNGE, Magistrate Judge.

I. Introduction

Plaintiff, Lewis D. Willis ("plaintiff") appeals the decision of Michael J. Astrue, the Commissioner of Social Security ("defendant"), denying his claim for Social Security Disability Insurance Benefit ("DIB") under Title II of the Social Security Act ("Act").[1] Currently before the court are the parties' cross-motions for summary judgment.[2]

II. Jurisdiction

A district court has the jurisdiction to review an administrative law judge's ("All") decision in a Title II DIB case once it becomes the final decision of the Commissioner.[3] A decision of the Commissioner becomes final when the Appeals Council either affirms or denies review of an ALJ decision, or when a claimant fails to appeal the ALJ's decision within 60 days of an unfavorable ruling[4]

Here, the ALJ's decision is the final decision of the Commissioner because the Appeals Council denied plaintiff's request for appeal.[5] Therefore, this court has jurisdiction to review the ALJ's decision.

III. Procedural Background

On April 15, 2009, plaintiff filed a Title II application for a period of DIB, alleging his disability began February 22, 2009.[6] The claim was initially denied on December 18, 2009, [7] and upon reconsideration on May 19, 2010.[8] Thereafter, plaintiff filed a written request for an administrative hearing on July 14, 2010.[9]

On December 20, 2010, ALJ Judith Showalter held a video hearing to determine whether plaintiff was disabled under ยงยง 216(1) and 223(d) of the Act and to determine if the insured status requirements under the same sections were me[10] Plaintiff, represented by counsel, testified as to his disability.[11] Also testifying at the hearing was Beth Kelly, an impartial vocational expert ("VE").[12]

After the hearing, the ALJ determined plaintiff was not disabled within the meaning of the Act from February 22, 2009 to February 10, 2011, the date the opinion issued.[13] The ALJ's decision became final when the Appeals Council denied plaintiff's request for review.[14]

IV. Factual Background

Plaintiff was 45 years old at the time of his alleged onset date of disability, February 22, 2009.[15] By the time of the hearing, he was 47 years of age.[16] Plaintiff has consistently alleged an inability to work due to shoulder impairments and degenerative disk disease of the lumbar spine.[17]

Medical Evidence

Plaintiff is insured for disability benefits until June 30, 2014.[18] Prior to the onset of his alleged disability, plaintiff worked as an electrician.[19] The job of an electrician is a skilled position, and is generally performed at a medium level of exertion, but the VE testified plaintiff may have performed his job at a heavy exertion level, lifting more than 50 pounds on occasion.[20]

A. Back and Leg Pain and Treatment

In February 2008, plaintiff was seen by his treating physician, Dr. Robert Kopecki ("Kopecki"), for back and leg pain.[21] Kopecki prescribed Oxycodone, [22] and also ordered a MRI of plaintiff's lumbar spine which was performed on April 2, 2008.[23] The physician evaluating the MRI found dextroscoliosis, lower thoracic and diffuse lumbar disc desiccation with annular bulge, and bilateral foraminal narrowing in plaintiff's spine.[24] At the follow-up visit after the MRI, Kopecki noted plaintiff complained of continued lower back pain that radiated down his right leg.[25] On May 30, 2008, Kopecki determined plaintiff was a poor candidate for epidural injections as a result of his hemophilia.[26] Kopecki later observed, on January 20, 2009, plaintiff was trying to work, but suffered continued pain and walked with his back flexed. His prescriptions for Oxycodone and Oxycontin were refilled.[27] Kopecki subsequently wrote a letter indicating plaintiff suffered lower back and leg pain from a 2003 motor vehicle accident, and was a poor candidate for surgery or injections due to hemophilia.[28] As a result, Kopecki concluded plaintiff could not sit for extended periods of time and favored long-term disability for him.[29]

Plaintiff continued to report back pain throughout 2009 and Kopecki wrote another letter, dated August 4, 2009, indicating plaintiff suffered a leg deformity due to a motor vehicle accident, along with continued chronic back pain which prevents him from sitting or standing for long periods of time and represents a permanent disability precluding full-time work.[30] Concomitantly, Kopecki completed a Multiple Impairment Questionnaire ("MIQ") where he diagnosed chronic lower back pain resulting from severe lumbar disc disease and leg pain due to the previous fracture.[31] Kopecki also pointed out on the MIQ that plaintiff can only walk short distances and walks with his back flexed.[32] Kopecki also opined plaintiff could only sit or stand for less than one hour at a time, occasionally lift up to 10 pounds, and was significantly limited in terms of repetitive reaching, handling, fingering, and lifting.[33] Kopecki also noted plaintiff suffers fatigue and rated his pain as 7 out of 10.[34] In addition, Kopecki indicated plaintiff would need unpredictable breaks every 10 minutes for 10-20 minutes, and would miss work more than 3 times per month.[35] Plaintiff continued to report chronic back and leg pain; Kopecki noted tenderness and positive straight leg raising on October 21, 2009.[36]

B. Shoulder Pain and Treatment

On July 2, 2008, plaintiff complained of right shoulder pain.[37] Kopecki ordered a MRI which revealed a Hill-Sachs type deformity and an irregularity of the superior labrum with a possible underlying superior labral tear.[38] Plaintiff was evaluated by Dr. Brian Galinat ("Galinat") for his shoulder pain, who administered a subacromial injection and prescribed Ultram.[39] Upon follow-up, plaintiff reported continued pain and consented to arthroscopic rotator cuff repair.[40]

In advance of his shoulder surgery, plaintiff was examined by Dr. Philip Blatt ("Blatt") for evaluation of his hemophilia.'[41] Blatt noted plaintiff is a hemophiliac with hepatitis C and instructed him on pre-operative measures.[42] On March 18, 2009, plaintiff underwent the shoulder procedure performed by Galinat.[43] Upon follow-up, plaintiff continued to report shoulder pain and characterized it as worse than prior to the surgery.[44] Galinat continued to prescribe narcotic pain medications until April 23, 2009 when he instructed plaintiff to only seek pain medication from his primary care physician because of issues with denial of prescriptions due to multiple prescribers.[45] An X-ray performed on April 3, 2009 indicated continued Hill-Sachs deformity and separation due to widening of the acromioclavicular space.[46] In an undated letter, faxed on September 9, 2010, Dr. Michael Lankiewicz reported plaintiff suffers from hemophilia B and recurrent bleeds in his shoulder joint making full-time work difficult.[47]

V. Administrative Law Hearing

A. Plaintiff's Testimony

At the hearing, plaintiff testified he was an electrician, but stopped working in February 2009, [48] due to his shoulder issues. Plaintiff indicated his surgeon advised a shoulder replacement would be needed in the future because it was "bone on bone, " but it could not be performed for 10 years.[49] Plaintiff then testified Kopecki told him such surgery could be performed now, but without health insurance, he could not afford the operation.[50] Plaintiff noted his hemophilia also prevents surgical intervention due to bleeding risks.[51] Plaintiff stated his back problems and left leg issues prevented return to work.[52] Plaintiff further explained he missed substantial time from work of 4-5 days per month for 2-3 months prior to his onset date.[53]

According to plaintiff, after the March 2009 shoulder surgery, his shoulder is worse and requires a replacement.[54] Due to pain, he takes Oxycodone, morphine and MS-Contin, as well as Celebrex for arthritis and Paxil for depression.[55] Plaintiff characterized his shoulder pain as 5 out of 10 with medication and 10 without, which occurs daily, and causes limited range of motion.[56] Plaintiff also testified a prior motorcycle accident in 2003 caused his original back injury and ...


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