United States District Court, D. Delaware
C. Linarducci, Jason L. Thompson, LINARDUCCI & BUTLER,
New Castle, DE. Attorneys for Plaintiff.
C. Weiss, Acting United States Attorney, and Patricia A.
Stewart, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Wilmington, DE.
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.
U.S. District Judge
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)
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)
reasons set forth below, the Court will grant in part and
deny in part Plaintiffs * and Defendant's motions for
summary j udgment.
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.)
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)
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)
last insured date for purposes of DIB was December 31, 2011.
(See Id. at .3.2-33)
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)
Dr. Edward R. Stankiewicz
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)
Dr. Mark Case
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).
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)
Residual Functional Capacity ("RFC")
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)
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: