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Howard v. Colvin

United States District Court, D. Delaware

April 28, 2015

LEON G. HOWARD, Plaintiff,
CAROLYN COLVIN, Commissioner of Social Security, Defendant.


MARY PAT THYNGE, District Judge.


Leon G. Howard ("plaintiff') filed this action pursuant to 42 U.S.C. § 1383(c)(3) against Carolyn Colvin, Acting Commissioner of Social Security ("defendant"), on March 19, 2014. Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision by the Social Security Administration denying his claim for disability insurance benefits ("DIB") under the Social Security Act ("SSA").[1] Currently before the court are the parties' cross motions for summary judgment. For the reasons stated below, the court will grant and deny in part plaintiff's motion for summary judgment, and grant and deny in part defendant's motion for summary judgment.


Under 42 U.S.C. § 405(g), a district court has jurisdiction to review an Administrative Law Judge's ("ALJ") decision once it becomes the final decision of the | Commissioner.[2] A decision of the Commissioner becomes final when the Appeals Council either affirms the ALJ decision, denies review of the decision, or when the claimant fails to appeal the decision within 60 days after an unfavorable ruling.[3]

In the instant matter, the Commissioner's decision became final when the Appeals Council denied review of the ALJ's decision against plaintiff. Thus, this court has jurisdiction to review the ALJ's decision.


On March 29, 2010, plaintiff filed an application for DIB alleging disability as of February 16, 2010. The claims were denied initially on October 26, 2010, and upon reconsideration on February 24, 2011. Plaintiff then timely requested a review hearing before an ALJ. A hearing before ALJ Melvin D. Benitz was held on April 10, 2012. The ALJ denied disability status to plaintiff under the SSA on April 19, 2012. After the denial, plaintiff requested review from the Appeals Council on May 16, 2012 which was denied on September 24, 2013. On July 7, 2014 plaintiff moved for summary judgment and defendant cross-moved on August 22, 2014.


Plaintiff was forty-two years old at the onset of the alleged disability. Plaintiff has a high school education and previously worked as an inventory clerk at a hospital, assistant manager of a hardware store, and a sales clerk. His alleged disability is a result of "extreme fatigue and shortness of breath that often prevent him from performing even basic activities."[4]

A. Medical Evidence

Plaintiff suffers from a wide variety of medical issues, but his overall compliant is that he experiences fatigue and shortness of breath, or dyspnea.[5] None of his treating physicians have offered a specific diagnosis for his condition.[6] Prior to the alleged onset date, plaintiff was diagnosed with Adult Onset Still's disease, Crohn's disease, and depression, among other diagnoses.[7] The symptoms of fatigue and shortness of breath began in late 2009 and early 2010.[8]

Amir Quefatich, M.D. ("Dr. Quefatich") treated plaintiff in February 2010.[9] With regard to dyspnea on exertion, Dr. Quefatich found multi-factored symptoms of asthma, muscle weakness, obesity, and deconditioning played a significant role.[10] On a follow up visit for worsening symptoms, Dr. Quefatich found no evidence of significant lung infiltrations or effusions on a recent CAT scan, with PFTs showing only "mild obstructive airway disease without significant restriction or diffusion defect."[11] At a subsequent follow up visit, although the etiology of the dyspnea on exertion was unclear, Dr. Quefatich ruled out lung problems after a cardiopulmonary stress test.[12]

During the same time, plaintiff was treated by rheumatologist Ivonne Herrera, M.D. ("Dr. Herrera").[13] Before the disability onset date, Dr. Herrera treated plaintiff for joint pain.[14] Dr. Herrera noted plaintiff could not work, and developed "severe shortness of breath and feels exhausted with minimal activity."[15] Dr. Herrera further reported plaintiff did not improve with medication.[16] Ultimately, Dr. Herrera was unable to identify the etiology for plaintiff's symptoms and a specific diagnosis. Since she was unsure whether plaintiff should be evaluated by a rheumatologist or a pulmonary physician, plaintiff was referred to a specialist at Johns Hopkins Myositis Center ("Johns Hopkins").[17]

On May 28, 2010, plaintiff began treating with Thomas Lloyd, M.D. ("Dr. Lloyd") at Johns Hopkins.[18] Dr. Lloyd noted that six months prior, plaintiff experienced severe bronchitis which progressed to "severe dyspnea on exertion with only walking, for example 100 feet to his mailbox, " with the shortness of breath becoming significantly worse in February 2010.[19] Dr. Lloyd reported plaintiff had seen a number of rheumatologists and pulmonologists in Delaware who were unable to determine the etiology of his dyspnea.[20] Additionally, Dr. Lloyd noted occasional arm and leg cramping and difficulty rising from a chair, getting off the floor, climbing steps, [21] and a history of hand tremors.[22] Dr. Lloyd concluded since plaintiffs muscle strength was normal with no evidence of an irritable myopathy, an underlying diagnosis of myositis was "very unlikely."[23] Since Dr. Lloyd was unable to ascertain the etiology of plaintiffs severe dyspnea on exertion, he recommended an evaluation by a rheumatologist.[24]

Plaintiff was referred to Carol Ziminski, M.D. ("Dr. Ziminski"), a rheumatologist at Good Samaritan Hospital.[25] Dr. Ziminski examined plaintiff on June 16, 2010 and found no evidence of an underlying cardiopulmonary disease, and no joint symptomatology for any rheumatological condition.[26] During a follow up visit on September 23, 2010, Dr. Ziminski noted no signs of myopathy and was unable to diagnose a specific rheumatic disease.[27]

On August 12, 2010 plaintiff was evaluated by Beshara Helou, M.D. ("Dr. Helou") at Delaware Disability Determination Service.[28] At that time, plaintiffs main complaints were severe fatigue and shortness of breath which prohibited work.[29] Regarding fatigue, Dr. Helou recorded that plaintiff suffered "[s]evere deconditioning... disproportionate to his workup."[30] Dr. Helou found his pulmonary and cardiovascular status stable and questioned whether an underlying collagen disease process was causing fatigue.[31]

Plaintiff returned to Dr. Lloyd on October 22, 2010, on the recommendation of Dr. Theresa Michelle who diagnosed the dyspnea as probably caused by a neurological problem.[32] At this appointment, plaintiff stated his symptoms stabilized over the last four months.[33] Dr. Lloyd assessed that the most likely cause was an unclear neurogenic etiology for diaphragmatic weakness.[34] An electromyography ("EMG") test and muscle biopsy were performed.[35] Based on the results of the EMG, Dr. Lloyd concluded that the dyspnea on exertion was not caused by a nerve or muscle problem.[36] The muscle biopsy revealed minor myopathy.[37]

Dr. Lloyd referred plaintiff to Noah Lechtzin, M.D. ("Dr. Lechtzin"), a pulmonologist at Johns Hopkins University.[38] Dr. Lechtzin evaluated plaintiff on May 9, 2011 and found that "[w]hile no exact diagnosis has been confirmed, he has biopsy evidence of myopathy and it is my opinion that he has respiratory muscle weakness contributing to his symptoms, " which would not improve within the next twelve months.[39] Dr. Lechtzin further concluded some mild diaphragmatic weakness may continue.[40]

Plaintiff saw Fran D. Kendall, M.D. ("Dr. Kendall") on February 7, 2012 for a consultative exam.[41] Dr. Kendall noted plaintiff suffered from "weakness, exercise intolerance and fatigue" for two years.[42] He also noted plaintiff's previous tests, including the EMG which showed "mild, non irritable myopathy, " disclosed no clear etiology.[43] Dr. Kendall recommended plaintiff follow up with Johns Hopkins regarding residual muscle weakness and offered a referral to Baylor Genetics Laboratory for mitochondrial enzymology and to Dr. Haller for glycolytic enzyme studies.[44]

Finally, plaintiff was evaluated by Payam Sotanzadeh, M.D. and Stephen Reich, M.D. at the University of Maryland.[45] The doctors concluded the previous biopsy of February 18, 2011 indicated mild, but not abnormal myopathy.[46] They determined fatigue was limited to plaintiff's lower extremities with none evidenced in the upper extremities, [47] since "he was able to do 20 sit-ups from a sitting position without using hands to a standing position in less than 60 seconds."[48] Further, plaintiff demonstrated no fatigue when counting to 40.[49]

B. Physical Residual Functional Capacity Evaluation j

A physical residual functional capacity evaluation ("RFC") was completed by Gurcharan Singh, M.D. ("Dr. Singh"), a state agency physician, on February 16, 2010.[50] Dr. Singh determined plaintiff could occasionally lift and/or carry twenty pounds and frequently lift and/or carry ten pounds, stand and/or walk for six hours and sit for a total of six hours in an eight hour workday, and push/pull without limitation.[51] Dr. Singh based his conclusions on Dr. Helou's August 12, 2010 exam which "found claimant in no apparent distress."[52] Dr. Singh further noted plaintiff could occasionally climb, stoop, kneel, crouch and crawl, but should not balance, with no limits regarding manipulation, vision, or communication.[53] Lastly, Dr. Singh found plaintiff should avoid concentrated exposure to extreme cold, extreme heat, hazards, and fumes, odors, dusts, gases, poor ventilation, and the like.[54]

C. Physical Capacities Evaluations

Plaintiff underwent several physical capacities evaluations by his treating physicians. On April 7, 2011, his primary care physician, Harry Anthony, M.D. ("Dr. Anthony"), concluded plaintiff could sit for four hours and stand/walk for two hours a work day with alternate sitting and standing, and could not perform fine hand manipulation or repetitive hand motion tasks, such as typing, due to tremors.[55] He further noted plaintiff could occasionally lift up to ten pounds, and never climb, balance, kneel, crouch, or crawl, but could occasionally stoop or reach above shoulder level.[56] Dr. Anthony diagnosed plaintiff as suffering from disabling fatigue and disabling pain.[57]

Dr. Herrera performed a physical capacities evaluation on April 12, 2011, finding plaintiff suffered from severe fatigue.[58] Unlike Dr. Anthony, however, Dr. Herrera did not conclude plaintiff's pain was disabling.[59] Dr. Herrera determined plaintiff could occasionally lift up to ten pounds, sit for two hours, and stand for one hour during an eight hour work day.[60] She recommended plaintiff never climb, balance, kneel, crouch, crawl or reach above shoulder level, and only occasionally stoop.[61] In a later evaluation on January 23, 2012, Dr. Herrera reported plaintiff could occasionally lift up to twenty pounds and occasionally climb, stoop, kneel, crouch, crawl or reach above shoulder level, but never balance.[62] He also determined plaintiff continued to experience disabling fatigue.[63]

Dr. Lechtzin performed a physical capacities exam on December 20. 2011, finding plaintiff experienced disabling fatigue.[64] Similar to Dr. Herrera, Dr. Lechtzin did not find that the pain was disabling.[65] He recommended plaintiff could lift/carry up to five pounds occasionally, never climb, kneel, crouch, or crawl, and occasionally balance, stoop, or reach above shoulder level.[66] He found plaintiff could stand/walk for one hour during an eight hour work day, but could use his hands for repetitive motion and fine manipulation.[67] Interestingly, during a subsequent physical capacities evaluation on February 16, 2012 Dr. Lechtzin noted plaintiff could occasionally lift up to twenty ponds, but continued having disabling fatigue.[68]

D. Administrative Law Hearing

At the hearing before the ALJ on April 10, 2012, plaintiff was represented by counsel and testified. An independent ...

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