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Maloney v. Berryhill

United States District Court, D. Delaware

March 27, 2017

EUGENE J. MALONEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant

          Eugene J. Maloney, Wilmington, Delaware. Pro se Plaintiff.

          David C. Weiss, Acting United States Attorney, Office of the United States Attorney, Wilmington, Delaware and Heather Benderson, Special Assistant United States Attorney, Office of the General Counsel, of the Social Security Administration, Philadelphia, Pennsylvania.

          Of Counsel: Nora Koch, Regional Chief Counsel, Region III and Kimberly Varillo, Assistant Regional Counsel, of the Social Security Administration, Philadelphia, Pennsylvania.

          MEMORANDUM OPINION

          STARK, U.S. District Judge

         I. INTRODUCTION

         Plaintiff Eugene L. Maloney ("Maloney" or "Plaintiff'), who proceeds pro sc and has been granted leave to proceed in forma pauperis, appeals from the decision of Defendant Nancy A. BerryhilL Acting Commissioner of Social Security ("Commissioner" or "Defendant"), denying his application for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI") under Tides II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).[1] Presently pending before the Court are cross-morions for summary judgment filed by Maloney and the Commissioner.[2](D.L 15, 18) For the reasons set forth below, the Court will deny Plaintiffs motion for summary judgment and will grant Defendant's morion for summary judgment.

         II. BACKGROUND

         A. Procedural History

         Maloney filed his application for DIB on January 22, 2013, and for SSI on February 1, 2013, alleging disability as of December 15, 2010, due to bursitis, basil cell carcinoma skin cancer, and neck, shoulder, and wrist impairments. (D.I. 9-5 at 2-12; D.I. 9-6 at 14) The application was denied on March 6, 2013, and upon reconsideration on July 16, 2013. (D.L 9-3 at 22-23, 46-47) Maloney filed a request for a hearing on August 15, 2013. (D.I. 9-4 at 20-21) A hearing was held before an Administrative Law Judge ("ALJ") on December 8, 2014. (D.L 9-2 at 36-62) The ALJ issued a decision finding that Maloney was not disabled under the Act. (Id. at 17-35) Maloney filed a request for review by the Appeals Council and submitted additional evidence that was considered. (D.I. 9-3 at 3, 5; D.I. 9-11 at 1-66; D.I. 9-12 at 1-28) After considering whether the ALJ's action, findings, or conclusion was contrary to the weight of the evidence of record, the Appeals Council found no basis for changing the ALJ's decision and denied Maloney's request for review on August 27, 2015, making the ALJ's decision the final decision of the Commissioner. (D.I. 9-2 at 2-16)

         On October 28, 2015, Maloney filed a Complaint seeking judicial review of the ALJ's decision. (D.I. 2) Maloney moved for summary judgment on February 3, 2017, and the Commissioner filed a cross-motion for summary judgment on March 7, 2017. (D.I. 15, 18)

         B. Medical Evidence

         Right Wrist.

         On June 23, 2009, Maloney was seen by Dr. Helen Ting ("Dr. Ting") with complaints of right wrist pain. (D.I. 9-7 at 55) Maloney explained that eight to nine months earlier, when he was using clippers while pruning, he heard a crack and has had right wrist tenderness ever since. (Id.) Maloney was prescribed physical therapy, steroids, anti-inflammatories, and a brace. (Id. at 56-57) He was referred to several hand surgeons, including Dr. J. Douglas Patterson ("Dr. Patterson"). (Id. at 57)

         Maloney was seen by Dr. Patterson on June 29, 2009, with complaints of right radial wrist pain, worsening since August 2008. (Id. at 38) Maloney complained of daily pain. (Id.) A June 2009 MRI of Maloney's right wrist revealed scaphoid lunate advanced collapse (SLAC) wrist. (Id. at 39-40) Upon physical examination, Maloney was in no acute distress, with normal sensibility to light touch, normal capillary refill and turgor and tight intrinsics. (Id. at 38) He had a slight decrease of range of motion on the right side. (Id.) Dr. Patterson administered a steroid injection, and recommended splinting, therapy, and follow-up in one month. (Id.) In January 2013, Maloney presented to Dr. Ting with complaints of right wrist pain and right shoulder pain, with shoulder pain as the chief complaint (Id. at 61)

         Right Shoulder. Maloney has a history of right shoulder pain. (D.I. 9-7 at 67-69; D.I. 9-8 at 36-40, 44-45) In April 2013, he underwent right shoulder arthroscopy, limited debridement of SLAP[3] lesion, and open rotator cuff repair. (D.I. 9-8 at 48-51) In June 2013, during post-surgery office visits, Maloney reported that his status was improving, and his orthopedic surgeon, Dr. Charles Hummer, III ("Dr. Hummer") made note of acceptable post-operative ranges of motion. (D.I. 9-9 at 17-18) In July 2013, Dr. Hummer noted that Maloney's range of motion was acceptable, and that Maloney continued to show slow improvement. (Id. at 15) Dr. Hummer agreed with Maloney's request for a respite from formal physical therapy. (Id.)

         A January 2014 EMG of Maloney's right upper extremity was essentially normal, and physical examination revealed intact sensation in Maloney's hand with a grip strength of four out of five. (D.I. 9-9 at 23) Maloney complained of numbness in the right upper extremity (greater in the right arm) and right arm weakness. (Id.) When Maloney was seen on March 17, 2014, he complained of moderate pain, which was constant and worsening. (Id. at 1) Conservative treatment options were discussed with Maloney, and he was advised that the next surgical step would be a total shoulder replacement. (Id.) As of November 24, 2014, Maloney had right shoulder active painful range of motion with limiting factors of pain. (D.I. 9-12 at 5) As of March 17, 2015, Maloney continued with conservative treatment, received cortisone injections to the right shoulder, stated that his symptoms were moderate, and continued to have active painful range of motion. (Id. at 16-17)

         Left Shoulder. In September 2011, Maloney presented to Dr. Ting with tightness and left shoulder pain, but denied arm weakness, tingling, or radiation into the arm. (Id. at 58) Maloney was prescribed anti-inflammatory medication for one month and physical therapy. (Id. at 60) In January 2013, Maloney reported that the left shoulder had improved on its own. (Id. at 61) In August 2013, Maloney complained of left arm pain and numbness. (D.I. 9-9 at 39) An MRI of the left shoulder was ordered and it revealed a near full thickness to full thickness tear of a rotator cuff tendon and mild osteoarthritis. (Id. at 39, 51) A November 2013 EMG evaluation of the left upper extremity was essentially normal, although it did reveal evidence of left ulnar entrapment neuropathy at the elbow consistent with cubital tunnel syndrome of chronic duration. (Id. at 44-47)

         In December 2013, Maloney was seen at Premier Orthopedics and described his left arm pain as moderate to severe, occasional and fluctuating without radiation, and further reported that he was not in that much pain and declined the offered cortisone injection. (Id. at 8) Medical notes indicate that upon review of the images, it was not believed that Maloney had a full thickness tear, and clinically he had tenderness over the biceps tendon and AC joint, which are signs of impingement. (Id.) Maloney had satisfactory left shoulder range of motion and strength. (Id.) As of November 24, 2014, Maloney had normal, active pain-free range of motion of the left shoulder. (D.I. 9-12 at 5) As of March 17, 2015, Maloney continued with conservative treatment, received cortisone injections to the left shoulder, stated that his symptoms were moderate, and continued with normal active pain-free range of motion in the left shoulder. (Id. at 16-17)

         Back. Maloney has a history of back pain. In June 2009, Maloney presented for treatment, reporting neck pain and cervical strain symptoms. (D.I. 9-7 at 56) Maloney complained of headache and cervical neck pain in August 2013, and a cervical spine MRI taken on August 23, 2013 revealed degenerative changes throughout the cervical region, superimposed on congenital narrowing of the bony spinal canal. (D.I. 9-9 at 39-41; D.I. 9-10 at 24-31)

         A November 19, 2014 MRI revealed no significant change of the moderate spinal canal and neural foraminal stenoses, essentially stable moderate degenerative discogenic disease with disc osteophyte complexes, and arthrosis of the facet and uncovertebral joints from C3 to C7 levels, except for mild increase in the size of moderate central, left lateral disc protrusion at ¶ 5-C6, causing moderate to severe spinal canal and neural foraminal stenoses with mild compression of the spinal cord without intramedullary signal. (D.I. 9-10 at 24-31)

         A January 2014 EMG of the right upper extremity was essentially normal with no evidence of right cervical radiculopathy or myopathy. (D.I. 9-9 at 42) As of January 3, 2014, Maloney denied neck pain. (Id. at 42) A November 2014 cervical spine MRI revealed essentially stable moderate degenerative disc disease. (D.I. 9-10 at 28; D.I. 9-12 at 21) On March 30, 2015, Maloney underwent a left C3-C7 facet joint nerve ablation. (D.I. 9-12 at 23-26)

         2014 Automobile Accident. Maloney was involved in a motor vehicle accident on June 18, 2014. Maloney he did not present to the hospital after the accident even though he had pain. (D.I. 9-10 at 16) On June 27, 2014, Maloney presented to his primary care provider with complaints of pain in the side base of his head and lower back, was diagnosed with acute cervical and lumbar strain, and prescribed medication. (D.I. 9-9 at 31; D.I. 9-10 at 16) On July 23, 2014, Maloney sought chiropractic care for neck pain, associated headaches, and left shoulder pain. (D.I. 9-10 at 16) He provided a history of neck and shoulder pain mosdy on the right, and reported that he had been asymptomatic at die time of the June 2014 accident. (Id.) Maloney described immediate moderate to severe neck pain and stiffness, progressively worsening; gradual onset of headaches in the temple region, progressively worsening, moderate to severe; and left shoulder pain as a gradual onset, progressively worsening, sharp and aching. (Id. at 16-17) The chiropractic treatment did not include the right shoulder. (Id. at 2-20) Chiropractor Dr. John J. Mahoney, II, DC ("Dr. Mahoney") reported that Maloney improved with each visit and responded well to conservative treatment. (D.I. 9-10 at 2, 5, 10, 11)

         Assessments of Plaintiffs Ability to Perform Work. On March 6, 2013, State agency physician Darrin Campo, M.D. ("Dr. Campo"), reviewed Maloney's records and conducted a physical residual functional capacity ("RFC") assessment. He determined that Maloney could occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk about 6 hours in an 8 hour day; sit about 6 hours in an 8 hour day; and is limited in pushing and/or pulling in the right upper extremities. (D.I. 9-3 at 8) Dr. Campo determined that Maloney was also limited to pushing and/or pulling 25 pounds occasionally, and 10 pounds frequendy, with his right upper extremity. (Id. at 8-9) Dr. Campo opined that Maloney was limited to occasional overhead reaching with the right upper extremity and had environmental limitations of avoiding concentrated exposure to cold, vibration, and hazards. (Id.) State agency physician, Carl Bancoff, M.D. ("Dr. Bancoff'), reviewed additional medical evidence concerning Maloney's right shoulder and affirmed Dr. Campo's assessment. (Id. at 30-31)

         On November 24, 2014, Dr. Hummer, Plaintiffs treating orthopedist, completed a medical source statement of ability to do work-related activities (physical) and assessed that, due to rotator cuff tendonitis and shoulder osteoarthritis, Maloney could lift and carry less than 10 pounds occasionally; stand and/or walk for one hour; could never push and/or pull with his upper extremities; and could occasionally push and/or pull with his lower extremities. (D.I. 9-10 at 32-33) As to postural limitations, Dr. Hummer opined that Maloney could occasionally climb stairs, bend, stoop, and balance, rarely kneel and crouch; and never climb ramps, ladders, ropes, and scaffolds. (Id.). As to manipulative limitations, Dr. Hummer opined that Maloney could occasionally feel, rarely handle and finger, and never reach in all directions (including overhead), and environmentally should avoid temperature extremes, humidity/wetness, and hazards. (Id.) Dr. Hummer's assessment was supported by a positive Hawkin's test - bilateral, bilateral elevated shoulders in scapular plane of approximately 100 degrees and positive impinging signs, decreased shoulder strength, and active painful range of motion with limiting factors of pain. (Id. at 33)

         C. Administrative Hearings

         An administrative hearing took place on December 8, 2014, before the ALJ, with testimony from Maloney, who was represented by counsel, and vocational expert Christina Cody ("VE"). (D.L 9-2 at 36-62)

         1. Maloney's Testimony

         Maloney was 55 at the time of the hearing. (Id. at 42) He has a high school education and one year of college. (Id.) Maloney testified that he last worked in June 2009 as an asset control supervisor at Cablenet Services until he was laid off due to downsizing. (Id. at 42-43, 45) Maloney collected unemployment until December 2010 and during this time looked for work of a simpler nature than what he had performed. (Id. at 43) Maloney testified that he ...


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