United States District Court, D. Delaware
CLIFTON M. THOMAS, Plaintiff,
CAROLYN W. COLVIN,  Commissioner of Social Security, Defendant
For Clifton M. Thomas, Plaintiff: Angela Pinto Ross, LEAD ATTORNEY, Doroshow, Pasquale, Krawitz, Siegel & Bhaya, Wilmington, DE.
For Michael J. Astrue, Commissioner of Social Security Administration, Carolyn W. Colvin, Defendants: Dina White Griffin, Patricia Anne Stewart, Social Security Administration - Region III, Philadelphia, PA.
REPORT AND RECOMMENDATION
Sherry R. Fallon, United States Magistrate Judge.
Plaintiff, Clifton M. Thomas (" Thomas" or " plaintiff") appeals from a decision of Carolyn W. Colvin, the Commissioner of the Social Security Administration (" Commissioner" or " defendant"), denying his claims for disability insurance benefits (" DIB"). This court has jurisdiction pursuant to 42 U.S.C. § 405(g).
Presently before the court are cross-motions for summary judgment filed by Thomas and the Commissioner. (D.I. 16, 20) Thomas asks the court to reverse the Commissioner's decision and remand with instruction to award benefits, or in the alternative reverse and remand for further proceedings in accordance with applicable law and regulations. (D.I. 16) For the following reasons, I recommend that the court grant-in-part Thomas' motion for summary judgment, deny the Commissioner's motion for summary judgment, and remand the matter for further administrative proceedings.
A. Procedural History
Thomas filed claims for DIB on February 7, 2005, alleging disability since June 30, 2004. (Id. at 7) On June 23, 2005, the Social Security Administration denied his DIB benefits claim. (D.I. 11 at 53) Thomas requested a hearing before Administrative Law Judge (" ALJ"), and a video hearing was held on October 24, 2007. (Id. at 20) On October 27, 2007, Thomas amended his application for benefits to reflect a disability onset date of June 3, 2006. (Id. at 475) Thomas requested a supplemental hearing, which was conducted on October 9, 2008 by video hearing. (Id. at 20) Thomas was represented by counsel, and a vocational expert (" VE") testified at both hearings. (Id.)
On November 5, 2008, the ALJ issued a decision finding that Thomas was not disabled and could perform a limited range of light work available in the national economy. (Id. at 24-25, 29) The Appeals Council denied Thomas's request for review on September 5, 2009. (Id. at 12) On January 29, 2010, Thomas filed the present action for review of the final decision. (D.I. 2)
B. Factual Background
i. Medical History
Thomas underwent multiple procedures on his knees between 1994 and 2003. On January 13, 2003, Alex Bodenstab, M.D., performed partial knee replacements on both of Thomas's knees. (D.I. 11 at 136-37) Four months after Thomas's surgery, he reported to Dr. Bodenstab that both of his knees were bothering him, but principally the left knee. (Id. at 189) Dr. Bodenstab noted that Thomas had full knee extension and could flex them to about 125 degrees or more, but indicated that there was a small effusion present in each knee. (Id.)
Thomas was treated for his knee discomfort by Conrad K. King, Jr., M.D., a physical medicine and rehabilitation specialist, from June 4, 2003 to January 23, 2006. (Id. at 238-71, 355-70) An examination of Thomas's knees, on June 4, 2003, revealed well-healed surgical scars, eighty to eighty-five percent bilateral range of motion, bilateral tenderness with residual swelling, and no erythema. (Id. at 270) Dr. King diagnosed internal derangement of both knees with chronic synovitis despite extensive conservative treatment and surgical intervention, and prescribed Oxycontin. (Id. at 270-71) Thomas reported severe pain and difficulty walking at each subsequent visit. (Id. at 238, 240, 242-43, 265, 268) However, he also indicated that he was able to perform activities of daily living when taking his medications. (Id. at 245, 249, 251, 255-56, 261, 267)
From August 2004 to March 30, 2005, Dr. King certified that Thomas was totally incapacitated for work. (Id. at 244-54) On March 30, 2005 to August 17, 2005, Dr. King released Thomas to sedentary work with no standing and walking except to get to and from work, breaks, or lunch. (Id. at 240-41, 362, 364, 365, 366) In a Residual Functional Capacity Questionnaire on September 19, 2005, Dr. King diagnosed internal derangement of the right knee, degenerative joint disease of both knees and degenerative disc disease of the lumbar spine. (Id. at 280) Dr. King opined that Thomas would constantly have pain severe enough to interfere with his attention and concentration needed to do unskilled work. (Id. at 280-81) He was limited to walking a half a block at one time; sitting for four hours and standing and walking less than two hours; and Thomas would need unscheduled breaks three to five times a day lasting about fifteen to twenty minutes. (Id. at 282) Dr. King stated Thomas could lift less than ten pounds frequently, ten pounds occasionally, and twenty pounds rarely. (Id.) He would have good and bad days and would be absent more than four days per month due to treatment and health problems. (Id. at 283)
Dr. Anne Aldridge, a state agency medical consultant, reviewed Thomas's medical records on June 17, 2005. (Id. at 272-79) Dr. Aldridge found that Thomas could lift twenty pounds occasionally, ten pounds frequently, stand or walk for a total of at least two hours in an eight-hour workday, and sit for a total of about six hours in an eight hour workday. (Id. at 273) Despite these findings, Dr. Aldridge provided her opinion that Thomas' " RFC is for Sedentary, consistent with TSO in this partially credible claimant." (Id. at 274)
Multiple physicians from Singson Medical Group treated Thomas seven times between December 2004 and October 2005. (Id. at 285-306) Thomas complained of knee pain of seven on a scale of ten during these office visits, and was prescribed Percocet for the pain. (Id. at 285, 291, 292, 295, 298, 301, 304)
In October 2005, Thomas reported ongoing right knee pain to Dr. King. (Id. at 359) Upon examination, Dr. King found that Thomas had full range of motion in the right knee; discomfort on extremes of flexion; weakness on resisted flexion and extension; and peripatellar tenderness and swelling. (Id. at 357, 359) In December 2005, Thomas reported that he had persistent pain in his right knee, and that bending motions, sitting, standing, and stair-climbing exacerbated his pain. (Id. at 356) In January 2006, Dr. King referred Thomas to Ganesh R. Balu, M.D., for chronic pain management. (Id. at 355)
Dr. Balu treated Thomas for right knee pain from February 2006 to December 2007. (Id. at 371-91, 434-36) He diagnosed post-traumatic arthritis of the right knee, prescribed Oxycontin and Percocet, and noted that Thomas was receiving conservative care. (Id. at 371-91, 434-36) Examinations showed knee joint line tenderness, crepitus, a mildly antalgic gait, decreased range of motion, and minimal swelling. (Id. at 371-91, 434-36) Dr. Balu noted that Thomas was using a cane for ambulation, but also indicated that there was no significant change in his knee condition in November 2006. (Id. at 380) In February 2007, Dr. Balu suggested Thomas may need a total knee replacement. (Id. at 377)
From November 2005 to July 2008, Jeffrey Kerner, D.O., was Thomas's primary care physician, and his treatment records show that Thomas consistently complained of knee pain. (Id. at 397-420, 438-68) In December 2007, Dr. Kerner noted palpable cracking and swelling of the knees. (Id. at 456) In January 2008, Dr. Kerner discussed a possible total knee replacement and noted Thomas's knees were cracking and had minimal swelling. (Id. at 451-52)
Dr. Kerner completed a Residual Functional Capacity Questionnaire August 12, 2008 and diagnosed Thomas with degenerative arthritis of both knees, hypertension, generalized anxiety, and low back pain. (Id. at 438) Dr. Kerner opined that Thomas would frequently experience pain or other symptoms severe enough to interfere with attention and concentration needed to perform even simple work tasks; was limited to sitting, standing, or walking less than two hours in an eight hour work day; would need unscheduled breaks every two to three hours; and was limited to lifting ten pounds occasionally, twenty pounds rarely, and fifty pounds never. (Id. at 439-40) Thomas would have good and bad days and on average miss more than four days per month due to the impairments. (Id. at 441)
During a consultative physical evaluation by Yong K. Kim, M.D., on February 6, 2008, Plaintiff had reduced flexion and extension in both knees; mild tenderness in the knees without swelling; normal knee stability; normal motor strength in the lower extremities; and no muscle atrophy. (Id. at 422-23) He had an antalgic gait that favored the left lower extremity; was able to stand and walk on his toes and heels with difficulties due to increasing pain in his low back and knees; and was able to walk without an assistive device. (Id. at 421-23)
In Dr. Kim's Medical Source Statement, he opined that Thomas could lift eleven to twenty pounds occasionally, and up to ten pounds frequently, lift and/or carry ten pounds frequently, sit for five hours total, stand for two hours total, and walk for three hours total in an eight-hour day; sit for thirty minutes, stand for twenty minutes, and walk for twenty minutes at a time without interruption. (Id. at 428-29)
Depression treatment records from Singson Medical Group, in 2005, show that Thomas was prescribed Xanax for anxiety. (Id. at 291, 294, 296-97, 299-300, 303)
On April 26, 2006, Frederick Kurz, Ph.D., performed a consultative psychological evaluation. (Id. at 328) Thomas told Dr. Kurz that he had depression and anxiety. (Id.) On mental status examination, Thomas was appropriately dressed, fully oriented, courteous, and cooperative; maintained normal eye contact; was able to follow directions and answer questions; had a flat affect; spoke in sentences that were relevant, goal-directed, intelligible, and coherent; and did not exhibit any signs of thought processing disorders, hyperactivity, distractibility, impulsivity, delusions, or hallucinations. (Id. at 329) Testing established that Thomas read at a high school level. (Id. at 330) Dr. Kurz noted that Thomas appeared to function within the average range of intelligence and displayed only mild indications of depression. (Id.) Dr. Kurz assigned Thomas a global assessment of functioning (" GAF") score of 60. (Id.)
On May 4, 2006, Patricia Lifrak, M.D., performed an initial psychiatric consultation. (Id. at 394-96) Thomas stated that he was feeling depressed. (Id. at 394) Dr. Lifrak diagnosed major depression; prescribed medication; and assigned Thomas a GAF score of 55 to 60. (Id. at 396) In July 2006, Thomas stated he was less depressed and that he felt " a lot better." (Id. at 393) During his third, and final, visit with Dr. Lifrak on October 3, 2007, Thomas stated that he felt more depressed over " life activities" and that he wanted to " get SSI." (Id. at 392)
On June 8, 2006, Hillel Raclaw, Ph.D., a state agency psychological consultant, reviewed the evidence in the record and determined that Thomas had an affective disorder that caused mild limitations and was non-severe. (Id. at 343)
In 2007, Thomas consistently complained of depression to Dr. Kemer, and was prescribed Xanax for his symptoms. (Id. at 397-401, 403-04, 411, 455, 457) In August 2007, Thomas expressed that his depression was worsening and that he was isolating himself and not sleeping well. (Id. at 400), In July 2008, Thomas told Dr. Kemer that he had a good energy level and " felt well emotionally." (Id. at 444)
Thomas is five feet seven inches tall. (Id. at 286) He weighed 241 pounds in October 2004; 236 pounds in January 2005; 236 pounds in May 2005; 240 pounds in October 2005; 240 pounds in October 2007; and 232 pounds in February 2008. (Id. at 286, 290, 302, 311, 422, 483) On each of these dates, Thomas's body mass index (BMI) exceeded 30.0. The state agency medical ...