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Mann v. Astrue

United States District Court, D. Delaware

July 2, 2014

CALVIN A. MANN, Plaintiff,
MICHAEL J. ASTRUE, [1] Commissioner of Social Security, Defendant.


GREGORY M. SLEET, District Judge.


This action arises from the denial of Calvin A. Mann's ("plaintiff') claim for Social Security benefits. On February 24, 2009, plaintiff filed this appeal from a decision of the Commissioner of Social Security (the "Commissioner"), denying Social Security disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. (D.I. 2.) Administrative Law Judge Melvin D. Benitz (the "ALJ") issued a written decision denying plaintiffs claim for disability benefits on January 6, 2007 (the "ALJ's decision"). (D.I. 14 at 15-24.) This court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). In his application, plaintiff claimed he became disabled beginning on December 3, 1998, due to nerve damage and problems with his left arm and wrist. (D.I. 14 at 74, 78-82.) Following the Social Security Administration's ("SSA") denial of his claim, both initially and upon reconsideration, plaintiff requested a hearing before the ALJ. ( Id. at 41, 48, 50.) A hearing before the ALJ occurred on November 14, 2006, where testimony from plaintiff and an impartial vocational expert, Beth Kelley (the "VE") was provided. ( Id. at 372-408.) On January 6, 2007, the ALJ issued a written decision concluding plaintiff was not disabled and, therefore, was not entitled to DIB or SSI. ( Id. at 15-24.) On January 15, 2009, the Social Security Appeals Council declined plaintiff's request for review of the ALJ's decision. ( Id. at 5, 10.) Plaintiff filed a timely appeal with this court on February 24, 2009. (D. I. 2.) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 17, 21.) For the reasons that follow, the court will deny plaintiff's motion for summary judgment and grant defendant's motion for summary judgment.


Plaintiff was born on August 27, 1958. (D.I. 14 at 39, 376.) His highest educational degree is a high school diploma. ( Id. at 376.) His alleged disability dates to December 3, 1998. ( Id. ) Plaintiff contends the ALJ improperly failed to consider whether he met the requirements for an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1, and the ALJ's hypothetical question to the VE was deficient. (D.I. 18 at 22-26.)

A. Medical Evidence

On December 3, 1998, plaintiff suffered a comminuted displaced fracture of the left distal radius as a result of a ten foot fall to a hardwood floor while working as a drywall hanger and finisher. (D.I. 14 at 109, 376.) On the same day, Dr. James Marvel performed a closed reduction and applied external fixation to properly align the fractured fragments in his wrist. ( Id. at 109, 113.) Plaintiff was discharged from the hospital the following day after post reduction x-rays revealed satisfactory position of the pin placement and fracture fragments. ( Id. at 109.)

On December 17, 1998 during a follow-up evaluation, an x-ray showed a probable fracture of the left fifth finger. ( Id. at 167.) The wrist pin fixation was "in good position." ( Id. ) Plaintiff was prescribed Percocet to manage his pain. ( Id. ) On January 5, 1999, Dr. Marvel noted plaintiff reported pain and hypesthesia, or decreased sensation, in his left hand, however, his wrist fracture was healing despite "some slight radial shortening." ( Id. at 165.) Plaintiff was again prescribed Percocet. ( Id. ) On January 26, 1999, plaintiff complained of continued pain, discomfort, tenderness, and numbness. ( Id. at 164.) Dr. Marvel found no significant swelling of the wrist and progressive healing had continued. ( Id. ) Shortly thereafter, plaintiff contacted Dr. Marvel's office reporting he slammed his left hand in the car door, and requested additional pain medication. ( Id. ) Percocet was again prescribed. ( Id. )

On February 5, 1999, the external fixator was removed. ( Id. at 163.) On February 16, 1999, Dr. Marvel noted plaintiff's continued lack of feeling in his left fifth finger, no significant swelling and a healing fracture. ( Id. ) The doctor prescribed physical therapy three times per week for four weeks. ( Id. ) Plaintiff started occupational therapy on February 22, 1999, and attended through July 21, 1999. ( Id. at 149-51.) The occupational therapist observed plaintiff as having a negative attitude, disinterested and unmotivated on multiple occasions. ( Id. at 119, 121-24.) Plaintiff missed multiple appointments, and was angry and abusive during one appointment. ( Id. at 119, 121, 125.) Although instructed to bring his drywall tools to therapy, plaintiff refused to do so. ( Id. at 119-22.) Ultimately, the occupational therapist reported that plaintiff "would greatly benefit" by returning to work, as he was "capable of performing most drywalling duties" as of the July 20 appointment. ( Id. at 120.)

During therapy, plaintiff sought a second opinion from Dr. Bruce Topol on March 15, 1999, who noted "degenerative changes of the left hand, greater than expected for age, with demineralization." ( Id. at 159.) The following day, Dr. Marvel indicated the fracture was well healed, some deviation of the fifth finger, continued numbness, and "evidence of ulnar nerve damage." ( Id. at 161.) Dr. Marvel suggested plaintiff try returning to work. ( Id. ) Dr. Topol referred plaintiff to a neurologist, and on March 23, 1999, Dr. Robert Varipapa diagnosed plaintiff with severe ulnar neuropathy, which required surgery. ( Id. at 117.)

On April 16, 1999, plaintiff returned to Dr. Topol for a pre-surgery examination, who noted the orthopedic injuries had "healed very nicely, " but numbness, decreased range of motion, and decreased strength in the left hand were evident. ( Id. at 154.) On April 19, 1999, Dr. Topol performed a neurolysis of the ulnar nerve in the left distal forearm and proximal wrist. ( Id. at 156-57.) On August 19, 1999, Dr. Varipapa noted post-surgery improvement of the neuropathy compared with plaintiff's March 23 evaluation. ( Id. at 115-16.)

On August 26, 1999, plaintiff saw Dr. Errol Ger, an orthopedic hand specialist, for complaints of pain and weakness in the wrist, and a tingling sensation in the little and ring fingers. ( Id. at 210.) Plaintiff reported to Dr. Ger that he could not hold a pan of mud in his left hand, as required for his job, and was not trained to do any work other than installing drywall. ( Id. ) Dr. Ger noted plaintiff's reduced grip strength of 35 pounds in the left hand, compared with 80 pounds in the right hand; and pinch strength of 8 pounds in the left hand compared with 22 pounds in the right hand. ( Id. at 211.) X-rays showed a healed wrist fracture with malunion, and an "obvious" shortening of the radius and loss of angulation of the distal radius. ( Id. ) Dr. Ger recommended plaintiff undergo a corrective osteotomy to recreate normal angulation of the distal radius, and concluded plaintiff could not work as a drywall hanger. ( Id. at 212.)

On September 30, 1999, plaintiff returned to Dr. Marvel, who reported "full range of motion with the exception of a few degree lack of dorsiflexion, " and "full supination and [two-thirds] of the arc of pronation." ( Id. at 160.) Dr. Marvel agreed with Dr. Ger's evaluation, but noted his concern that a corrective osteotomy "may not improve [plaintiff's] functional ability or his motivation for return to work." ( Id. ) Dr. Marvel referred plaintiff to Dr. Peter Townsend, a surgeon, and on October 8, 1999, plaintiff reported to Dr. Townsend that his symptoms were worse than before the neurolysis. ( Id. at 237.) On November 1, 1999, Dr. Townsend performed a revised ulnar nerve release, scar revision, carpal tunnel release, and a left ulnar shortening osteotomy, which included the placement of an ulnar plate. ( Id. at 169-82, 236.) His cast was removed on January 7, 2000 with plaintiff reporting "expected stiffness and soreness, " and no change in his paresthesia. ( Id. at 233.) At that time, Dr. Townsend noted plaintiff could work full-time, but without use of his left arm or hand. ( Id. at 333.)

Dr. Townsend referred plaintiff to physical therapy, which began on January 12, 2000. ( Id. at 187.) His wrist was evaluated as having good restorative potential. ( Id. ) Plaintiff continued physical therapy while incarcerated from March to April 2000. ( Id. at 207.) In June 2000, plaintiff reported very good relief of his wrist pain" to Dr. Townsend, however the paresthesia and weakness continued. ( Id. at 233.) On June 19, 2000, Dr. Ger examined plaintiff and noted he was "not fit to return to his previous-full time work without restriction" due to the limited strength in his left hand, but was able to work with both hands "within the tolerance of his pain and limited grip strength." ( Id. at 208-09.) On September 1, 2000, Dr. Townsend agreed with Dr. Ger's assessment of plaintiff's work restrictions. ( Id. at 332.)

On May 31, 2001, Dr. Ger indicated plaintiff could not return to drywall installation, but was capable of full-time light duty work. ( Id. at 205.) Dr. Ger also noted that "maximum medical improvement ha[d] been reached." ( Id. ) On August 6, 2001, plaintiff underwent surgery, performed by Dr. Townsend, to remove the ulnar plate due to complaints of pain and discomfort. ( Id. at 232, 341-44.) On November 30, 2001, plaintiff reiterated complaints of persistent pain in his wrist to Dr. Townsend, who permanently restricted him from lifting more than ten pounds with his left hand, or climbing to an unprotected height. ( Id. at 225, 227.)

On February 18, 2002, a state agency medical consultant reviewed plaintiff's medical record in conjunction with his December 2001 application for DIB. ( Id. at 189-96.)

The consultant determined plaintiff had a residual functional capacity ("RFC") sufficient for performing medium work, with limitations on carrying more than ten pounds with his left hand and exposure to machinery, vibration, and temperature extremes. ( Id. ) On May 21, 2002, Dr. Ger examined plaintiff, who complained the pain was present "about [ninety percent] of the time, " with a shock-like sensation occurring "about [eighty percent] of the time." ( Id. at 202.) Dr. Ger stated that "[he] would not advise any further medical or surgical treatment." ( Id. at 203.)

On January 10, 2003, Dr. Jay Fried of the Delaware Disability Determination Service ("DDS") performed a physical examination and concluded plaintiff had no functional use of his left hand, and would benefit from more pain medication and additional job skills to help him adapt to working primarily with his right hand. ( Id. at 214-15.)[2] On January 16, 2003, Dr. Vinod Kataria performed another residual functional capacity ("RFC") assessment and determined plaintiff could perform light work, with limited pushing, pulling, handling, and exposure to vibration and machinery. ( Id. at 216-23.)

Plaintiff returned to Dr. Townsend on March 14, 2003, complaining about the virtual uselessness of his hand and frequent pain radiating up his arm. ( Id. at 224.) Dr. Townsend determined plaintiffs "reported pain and limitation of function [was] of unknown etiology" and his "[s]ubjective complaints [were] now out of proportion to [the] objective findings." ( Id. ) Plaintiff then began seeing Dr. Sami Moufawad in April 2003 for pain management relating to his wrist, arm, and neck. ( Id. at 243-46.) Dr. Moufawad diagnosed cervical radiculitis and left ulnar neuropathy, and prescribed several pain medications, which plaintiff failed to take regularly despite the relief they provided. ( Id. at 249-50.)

On August 17, 2003, Dr. Anne Aldridge performed a third RFC assessment regarding plaintiff's 2002 claim for DIB, and reached the same conclusion as Dr. Kataria: plaintiff was capable of engaging in light work, with limited pushing, pulling, handling, and exposure to vibration and machinery. ( Id. at 259-66.) In December 2003, plaintiff complained of continuous burning and pain in his left wrist, and pain radiating from his neck and down his arm. ( Id. at 247.) Dr. Moufawad recommended a regular exercise program and offered a trial of epidural steroid injections, which plaintiff declined. ( Id. ) Plaintiff was diagnosed with osteoporosis in March 2004. ( Id. at 271.)

Dr. Aldridge again reviewed plaintiff's medical records in April 2004 in connection with his claim for DIB and SSI. She concluded he was capable of a limited range of light work, mostly sedentary, with limited exposure to cold, wetness, or vibration, no frequent lifting over five pounds, and only occasional lifting of ten pounds. ( Id. at 280-87.) Dr. Irwin Lifrak examined plaintiff on October 24, 2004, and suggested degenerative joint disease with possible disc and nerve damage, but reported plaintiff could sit for six to seven hours, stand for six hours, climb stairs, lift up to twenty pounds with his right hand, and occasionally lift ten pounds and frequently lift five pounds with his left hand. ( Id. at 291.) Dr. Kateria performed a fifth RFC assessment in which he again concluded that plaintiff was capable of performing light work. ( Id. at 294-301.) In November 2005, Dr. Vineet Puri ordered an MRI of plaintiff's cervical spine ...

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