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Boulware v. Colvin

United States District Court, D. Delaware

March 10, 2015

MARK C. BOULWARE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner Of Social Security, Defendant.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Plaintiff Mark C. Boulware ("Boulware" or "Plaintiff") filed this action against Defendant Carolyn W. Colvin, Commissioner of the Social Security Administration (the "Commissioner" or "Defendant")[1] on January 18, 2013. (D.I. 2) Plaintiff seeks judicial review, pursuant to 42 U.S.C. §405(g), of a decision on August 18, 2011, by Administrative Law Judge ("ALJ") Susanne Lewald, denying his claims for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act, respectively. See 42 U.S.C. §§ 401-434, 1381-1383(f).

Presently before the court are cross-motions for summary judgment filed by Plaintiff (D.I. 18) and the Commissioner (D.I. 20). Plaintiff asks the court to enter an award of benefits. (D.I. 22 at 2) The Commissioner requests that the decision of the ALJ be affirmed. (D.I. 21 at 2) For the reasons set forth below, I recommend that the court DENY Plaintiff's motion for summary judgment and GRANT the Commissioner's cross-motion for summary judgment.

II. BACKGROUND

A. Procedural History

On August 27, 2009, Plaintiff filed an application for DIB and SSI, alleging that he has been disabled since August 1, 2008. (D.I. 13 at 38-40) Plaintiff's claims for benefits were denied initially on January 21, 2010 ( Id. at 42-46), and again on reconsideration on May 25, 2010 ( Id. at 49-54). On June 28, 2010, Plaintiff filed a written request for a hearing. ( Id. at 55)

On July 19, 2011, the ALJ held an administrative video hearing. ( Id. at 17-37) Plaintiff and a vocational expert, Stephen Hughes ("VE"), appeared and testified. ( Id. ) On August 18, 2011, the ALJ issued a decision finding that Plaintiff was not disabled under §1614(a)(3)(A) of the Social Security Act and therefore could perform light work, which included Plaintiff's past positions as a retail manager and sous chef. ( Id. at 10, 12-15) The Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. ( Id. at 1-4)

B. Factual Background

Plaintiff last worked in Nevada at Jimmy's Cheyenne Market ("Jimmy's"), from June to December of 2010. ( Id. at 33, 34) At Jimmy's, Plaintiff performed a variety of cooking and cleaning jobs, including working as a fry cook and running the hot deli. ( Id. ) A letter from the owner of Jimmy's reports that Plaintiff originally worked 30 hours per week. ( Id. at 115) At the administrative hearing, Plaintiff testified that his hours were reduced to 16 to 24 hours per week in July or August of 2010. ( Id. at 32) Plaintiff terminated his employment at Jimmy's in December 2010 due to marital issues unrelated to his claimed disability. ( Id. at 31-32)

1. Medical History

Plaintiff has three severe impairments: lumbar spine pain, diabetes mellitus with peripheral neuropathy, and an umbilical hernia. ( Id. at 234-40, 306, 237)

a. Lumbar Spine Pain

On January 11, 2010, Plaintiff was examined by Karl Fazekas, M.D., [2] as part of a disability evaluation. ( Id. at 234-240) Dr. Fazekas administered an x-ray of Plaintiff's cervical spine and the report showed a straightening of the cervical spine, possibly due to muscle spasms, though there were no definite acute compression fractures. ( Id. at 240) The report also showed that Plaintiff's disc spaces, soft tissues, and posterior elements appeared grossly intact. ( Id. ) Dr. Fazekas' evaluation of Plaintiff indicated a normal gait and full range of motion of Plaintiff's cervical and lumbar spine. ( Id. at 236-39)

In his functional assessment of Plaintiff, Dr. Fazekas' diagnostic impression was low back pain with full range of motion on exam, myopia and early left cataract with good corrected vision, diabetes mellitus, hypertension, moderate obesity, and an umbilical hernia. ( Id. at 237). Dr. Fazekas reported that Plaintiff could stand and/or walk for 8 hours in an 8 hour workday and could sit for 8 hours or more in an 8 hour workday. ( Id. at 238) Dr. Fazekas also noted that if Plaintiff needed time during the day to alternate between sitting and standing, standard breaks and lunches alone would provide sufficient relief. ( Id. ) Dr. Fazekas found that Plaintiff could frequently climb ramps/stairs, balance, stoop/bend, crawl, crouch/squat, and kneel and could occasionally climb ladders/scaffolds. ( Id. ) There were no other limitations noted with regards to reaching, fingering, handling objects, hearing, seeing, speaking, or travelling. ( Id. )

On May 16, 2010, Karyn Doddy, M.D., a state agency physician, reviewed Plaintiff's medical record and other evidence and affirmed the opinion of Dr. Fazekas that Plaintiff is capable of light work. ( Id. at 301).

On December 14, 2010, Plaintiff's physician, Elleston Rucker, M.D., reported that Plaintiff was "totally disabled" and that the proposed treatment/limitations would be lifelong. ( Id. at 302). However, Dr. Rucker also reported a "fair" prognosis and his treatment indicates regular, routine follow up visits with Plaintiff and normal physical examinations of Plaintiff. ( Id. at 303-318)

b. Diabetes Mellitus with Peripheral Neuropathy

Since at least 2003, Plaintiff has had non-insulin dependent diabetes mellitus (NIDDM) for which Plaintiff takes oral medications. ( Id. at 235, 306). Plaintiff may soon require insulin due to poor control over his blood sugar levels. ( Id. ) However, Plaintiff's records show no end-organ damage and no hospitalizations due to his diabetes mellitus. ( Id. at 303-318) Plaintiff was prescribed medication for diabetic neuropathy, but as of December 14, 2010, Plaintiff's extremities were within normal limits and he has an intact neurological exam without deficit. ( Id. at 313, see also Id. at 235)

c. Umbilical Hernia

During Plaintiff's January 11, 2010 examination, Dr. Fazekas noted a small umbilical hernia. ( Id. at 237) Due to the umbilical hernia, Dr. Fazekas recommended that Plaintiff lift and/or carry no more than 20 pounds occasionally and 10 pounds frequently. ( Id. ) Dr. Fazekas also recommended that Plaintiff be restricted from moving machinery.[3] ( Id. at 239)

2. The Administrative Hearing

a. Plaintiff's Testimony

Plaintiff was fifty-two years old at the time of the hearing. ( Id. at 20) He lives in an apartment with the son of his separated wife. ( Id. at 21) Plaintiff finished high school and completed one or two semesters of culinary school. ( Id. at 22)

Plaintiff receives Food Stamp benefits, but has no other source of income. ( Id. at 40) The Department of Social Services provides him with a medical card that allows Plaintiff to see a doctor. ( Id. at 29)

Plaintiff worked at Jimmy's as a fry cook and at the hot deli from June through December of 2010. ( Id. at 31) He was originally scheduled to work 30 hours per week, though he testified that his hours were reduced in July or August to 16 to 24 hours a week due to lack of business.[4] ( Id. at 31-32) He terminated his employment in December 2010 to travel to Montana for personal marital reasons. ( Id. ) Plaintiff also stated that he is a Jehovah's ...


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