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Fuller v. Berryhill

United States District Court, D. Delaware

March 28, 2017


          Gary C. Linarducci, Jason L. Thompson, LINARDUCCI & BUTLER, New Castle, DE. Attorneys for Plaintiff.

          David C. Weiss, Acting United States Attorney, and Patricia A. Stewart, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE.

          Nora Koch, Acting Regional Chief Counsel, Region IE, and Evelyn Rose Marie Protano, Assistant Regional Counsel, SOCIAL SECURITY ADMINISTRATION - REGION III OFFICE OF GENERAL COUNSEL, Philadelphia, PA. Attorneys for Defendant.


          Stark, U.S. District Judge


         Plaintiff Martin Benjamin Fuller ("Fuller" or "Plaintiff') appeals from a decision of Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("the Commissioner" or "Defendant"), denying his claims for disability insurance benefits ("DIB") under Title II, 42 U.S.C. §§ 401-434, of the Social Security Act. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g). Before the Court are cross-motions for summary judgment filed by Plaintiff and the Commissioner. (See D.I. 8, 10)

         Plaintiff seeks DIB from October 31, 2010 through the present (see D.I. 9 at 1) or, in the alternative, asks for remand and further proceedings before the Commissioner (see Id. at 18). The Commissioner requests that the Court affirm-the decision denying Plaintiffs application for benefits. (See D.I. 11 at 20)

         For the reasons set forth below, the Court will grant in part and deny in part Plaintiffs * and Defendant's motions for summary j udgment.


         A. Procedural History

         On April 1, 2011, Plaintiff filed a Title II application for disability insurance benefits. (See D.I. 5 ("Tr.") at 159) Plaintiffs application was denied at the initial level of administrative review on April 26, 2012 (see Id. at 101) and was denied on reconsideration on July 18, 2012. (See Id. at 108) After a hearing before an Administrative Law Judge ("ALJ") on February 18, 2014 (see Id. at 29), the ALJ issued a decision on March 7, 2014, finding that Plaintiff did not have a disability within the meaning of the Social Security Act because his alleged conditions were not severe enough to prevent him from working. (See Id. at 25) Plaintiff filed a request for review of the hearing decision and order, which was denied. (See Id. at 1) Thus, the ALJ's decision of March 7, 2014 became the Commissioner's final decision. (See id.)

         On June 25, 2015, Plaintiff filed suit in the District of Delaware, seeking judicial review of the Commissioner's denial of benefits. (See D.I. 1) The parties completed briefing on their cross-motions for summary judgment on December 23, 2015. (See D.I. 12)

         B. Factual History

         Plaintiff was 48 years old at the onset of his alleged disability. (See Tr. at 32) He has a GED and previously worked as a K-9 police officer. (See Id. at 35-36) Plaintiff contends that he cannot work because he has right shoulder problems, including capsulitis, tendonitis, and degenerative disc disease. (See Id. at 33, 42)

         Plaintiffs last insured date for purposes of DIB was December 31, 2011. (See Id. at .3.2-33)

         1. Plaintiffs Testimony

         On February 18, 2014, Plaintiff testified before the ALJ in support of his petition for benefits. (See Id. at 33-57) Plaintiff said that he took disability retirement from his job as a K-9 police officer because he was injured in the neck and right shoulder. (See Id. at 38, 42) He testified that he could not lift anything with his right hand because of numbness in his fingers. (See Id. at 50) To manage his pain, Plaintiff takes over-the-counter pain relievers and uses ice, heat, and hot tub therapy. (See Id. at 45, 61) Plaintiffs daily activities include watching television and performing light household chores. (See Id. at 55) Plaintiff also rests during the daytime to alleviate his pain. (See Id. at 56) Since injuring his neck and right shoulder, Plaintiff has developed anxiety and depression. (See Id. at 53) Plaintiff takes medications for anxiety and depression, but his depression has "gotten worse." (Id. at 59)

         2. Doctors' reports

         a. Dr. Edward R. Stankiewicz

         Plaintiff began seeing Dr. Stankiewicz in February 2010 for pain in his right shoulder due to his work injury and continued to see him for the same condition through March 2011. (Id. at 238-73) Upon examining Plaintiff on multiple occasions, Dr. Stankiewicz found that Plaintiffs neck was "supple, " but found "right shoulder tenderness." (E.g., Id. at 259, 261, 263, 265, 267) During his visits with Dr. Stankiewicz in 2010, Plaintiff complained of "pain and loss of full function in the right shoulder" (id. at 259) and a lack of "full range of motion" in his right shoulder (id. at 255). In response to such concerns, Dr. Stankiewicz prescribed Plaintiff several medications during this period, including Cipro, Nexium, Flagyl, Hydrocortisone, Percocet, and Lexapro. (See Id. at 256, 258, 260)

         b. Dr. Mark Case

         Plaintiff began seeing Dr. Case in January 2011. (See Id. at 286) Dr. Case characterized the severity of Plaintiffs neck pain as "moderate" and the severity of his shoulder pain as "mild." (Id. at 288) According to Dr. Case, Plaintiff had a "decreased range of motion" due to his neck pain and a "loss of function" due to his shoulder pain. (Id.) On February 3, 2011, Plaintiff underwent an MRI of the cervical spine. The MRI results indicated that Plaintiff had a "bilateral uncovertebral spur, contributing to mild foraminal narrowing" at ¶ 3-C4 and had a "right uncovertebral spur, contributing to right foraminal narrowing" at ¶ 4-C5. (Id. at 282) Additionally, Plaintiff had a "mild posterior disc bulge with small central disc protrusions with annular tear" at both C5-C6 and C6-C7. (Id.) While reviewing the results of the MRI, Dr. Case noted that Plaintiffs neck pain and shoulder pain were "worsening" and referred him to physical therapy. (Id. at 296-97) Dr. Case also prescribed Lexapro, Nexium, and Zithromax. (Id. at 295) During Plaintiffs last follow-up visit in 2011, Dr. Case again noted that Plaintiffs neck pain and shoulder pain were "worsening" (id. at 307-08) and prescribed Lidoderm in addition to Lexapro, Nexium, and Zithromax (see Id. at 306).

         Dr. Case completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) on June 27, 2013. (Id. at 382-88) Dr. Case indicated that Plaintiff could continuously lift up to 10 pounds and occasionally lift up to 50 pounds, but could never lift above 51 pounds. (See Id. at 382) He noted that Plaintiff could sit, stand, and walk for up to one hour each during an eight-hour workday and "alternat[e]" between the three during the remaining five hours. (Id. at 383) Additionally, Dr. Case noted that Plaintiff could never reach, handle, feel, push, or pull with his right hand, but could occasionally perform all those tasks with his left hand and could occasionally finger with both hands. (See Id. at 384) According to Dr. Case, Plaintiff could occasionally climb stairs and ramps, but never climb ladders or scaffolds, balance, kneel, stoop, crouch, or crawl. (See Id. at 385) Dr. Case concluded that Plaintiffs pain was "incapacitating" and that medications would "severely limit [Plaintiffs] effectiveness in the workplace due to distraction, inattention, drowsiness, etc." (Id. at 388)

         c. Residual Functional Capacity ("RFC") Assessments

         The ALJ utilized the findings of three experts in making his RFC determination: Dr. Vinod Kataria; state agency consultant Dr. Dianne Bingham; and the vocational expert, Samuel Eldleman. Drs. Kataria and Bingham assessed Plaintiff in April and March 2012, respectively, as part of the initial review of Plaintiffs application. (See Id. at 82, 86) The vocational expert testified at the hearing before the ALJ on February 18, 2014. (See Id. at 67)

         Dr. Kataria found that Plaintiff had exertional limitations. (See Id. at 82) Despite such limitations, Dr. Kataria noted that Plaintiff could occasionally lift up to 20 pounds and frequently lift up to 10 pounds. (See Id. at 83) Dr. Kataria also found that Plaintiff had postural limitations, but could sit, stand, or walk, with normal breaks, for "[a]bout [six] hours in an [eight-hour] workday." (Id.) Lastly, Dr. Kataria concluded that Plaintiff had certain manipulative limitations: Plaintiffs ...

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