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Pefley v. Astrue

March 17, 2010

THOMAS A. PEFLEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Paul D. Borman United States District Judge

Paul D. Borman United States District Judge

Mark A. Randon United States Magistrate Judge

OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION GRANTING THE COMMISSIONER'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 21); (2) DENYING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO. 22); AND (3) DISMISSING THE ACTION

Before the Court are Plaintiff Thomas A. Pefley's January 29, 2010 Objections (Dkt. No. 22) to Magistrate Judge Mark A. Randon's Report and Recommendation on Cross-Motions for Summary Judgment (Dkt. No. 21). The Commissioner filed a response to Plaintiff's Objections on February 12, 2010. (Dkt. No. 23.)

The Court now reviews the Objections, Report and Recommendation, and pertinent parts of the record de novo pursuant to 28 U.S.C. § 636(b).

I. BACKGROUND

A. Procedural History

Plaintiff has not objected to the facts as set forth in the Magistrate Judge's Report and Recommendation and portions of that Report and Recommendation are adopted here, and supplemented in part. Plaintiff filed the instant claims on May 4, 2006, alleging that he became unable to work on October 1, 2005. (Tr. 135.) The claim was initially disapproved by the Commissioner on August 25, 2006. (Tr. 96.) Plaintiff requested a hearing and, on June 25, 2008, Plaintiff appeared with a non-attorney representative before Administrative Law Judge (ALJ) Dean C. Metry, who considered the case de novo. In a decision dated July 18, 2008, the ALJ found that Plaintiff was not disabled. (Tr. 13.) Plaintiff requested a review of this decision on July 22, 2008. (Tr. 12.) The ALJ's decision became the final decision of the Commissioner when, after the review of additional exhibits*fn1 (AC-1, Tr. 11), the Appeals Council denied Plaintiff's request for review (Tr. 8); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

B. Facts

Plaintiff was born on May 14, 1968, and was 47 years old at the time he filed his claim and 50 years old on the date of the ALJ's decision. (Tr. 13, 135.) Plaintiff worked for 14 years as a construction laborer and pipe layer and last worked at this job in 2006. (Tr. 36-37; 179-186.) In his claim for disability benefits, Plaintiff claimed that the following illnesses, injuries, or conditions limited his ability to work: "Hernia in abdomen and throat problems and arthritis in hands and feet, severe joint pain and pain in back."

At the hearing before the ALJ, Plaintiff testified that hand, neck, and foot pain prevented him from working. (Tr. 37.) He stated that arthritis in his hands caused him difficulty closing his fingers to his palms. (Tr. 42-43.) Plaintiff also testified he had a great toe "hammertoe" deformity. (Tr. 44.) Plaintiff further testified he injured three fingers on his left hand on a saw. (Tr. 40, 42.) Plaintiff indicated to the ALJ that he was restricted in fully closing the fingers on his left hand. (Tr. 40.) On questioning from his attorney, Plaintiff testified that he had problems also with his right hand and that the inability to touch the palm of his hand with his fingers was more related to his arthritis. (Tr. 43.) Plaintiff stated that he prepared simple meals for himself (Tr. 193), but said his wife helped him dress. (Tr. 192.) He testified he spent his day watching television and alternating between sitting, standing, and lying down. (Tr. 40.) He testified he had to use a cane to walk (Tr. 47), that he could walk ten feet before he had to sit down, and that he could stand for five minutes. (Tr. 48.) Plaintiff testified he had concentration and memory difficulties as well. (Tr. 41.) He stated that he took Attention Deficit Disorder ("ADD") and antidepressant medication. (Tr. 41.) Plaintiff said his wife did most of the household chores. (Tr. 40, 193.)

Plaintiff began treating with Dr. Hampton Mansion, M.D. in July, 2005, for arthritis and gout. (Tr. 248-54.) In October and November 2005, Plaintiff sought care for vomiting with weight loss and was treated for Barrett's Esophagitis. (Tr. 226-29.) His work-up included an abdominal CT scan, which revealed spinal spondylosthesis and spondylosis at L5-S1. (Tr. 232.) Between November 2005 and January 2006, Plaintiff's physician, Mansion, diagnosed osteoarthritis; Plaintiff complained of aching hands and back with cold water and redness, tenderness, pain and swelling in the "MTP" joints. (Tr. 237-38.) Dr. Mansion prescribed Suboxone. (Tr. 237-38.) On January 20, 2006, Dr. Mansion informed Plaintiff he could no longer prescribe Suboxone to him based upon evidence of Plaintiff's continued use of prescription and illicit substances. (Tr. 236.)

Beginning in February 2006, and continuing for almost two years, Plaintiff received care from Beech Daly Medical Center. (Tr. 483-537; 308-12.) Initially, Plaintiff complained of joint swelling and pain. (Tr. 308.) His reported medical history included gout, ADD, reflux, Barrett's Esophagitis, and rheumatoid arthritis. (Tr. 308.) On examination, Plaintiff had swelling in the third MCP joint of his right hand, and tenderness in the MTP joint of his right foot with a bunion and a hallux valgus deformity. (Tr. 309.) March 2006 radiology studies of Plaintiff's right hand showed erosion of the distal third metacarpal joint with possible spurring and arthritis. (Tr. 306.) Plaintiff's doctor prescribed medications for his pain. (Tr. 309-11.)

Plaintiff was treated by orthopedist Daniel Morrison, D.O., in May, 2006 for evaluation of his hands. (Tr. 275.) Dr. Morrison said Plaintiff had obvious advanced rheumatoid disease. (Tr. 275.) He said Plaintiff had swelling about the metacarpophalangeal joints of both hands which made him quite debilitated in regards to function. (Tr. 275.) Dr. Morrison said Plaintiff had limited grip strength, pain, and thick nodules about the MCP and also the PIPJ at the thumb base. (Tr. 275). Dr. Morrison said he did not see Plaintiff as a surgical candidate and recommended a rheumatology referral. (Tr. 275.) A cervical spine x-ray performed on May 8, 2006, showed mild degenerative changes of the cervical spine. (Tr. 356.) Also on May 8, 2006, x-rays of Plaintiff's hands revealed mild degenerative changes and x-rays of Plaintiff's feet showed hallus valgus deformity of the big toe with degenerative changes and heel spurs. (Tr. 356.)

On May 18, 2006, podiatrist Alan Schram, D.P.M., evaluated Plaintiff on referral from Dr. Wright, and noted that Plaintiff had clinical and radiographic evidence of a severe congenital metatarsus adductus deformity that had led to a prominent bunion of the big toe and rigid second toe with hammer syndrome. (Tr. 283.) Dr. Schram said because the conditions were so severe, rigid, and showing degenerative joint changes, there was very little that could be done conservatively and that pain would persist. (Tr. 283.) He recommended anti-inflammatory medications for pain and inflammation and modified shoe gear. (Tr. 283.) Dr. Schram noted surgery could remedy the conditions, but that Plaintiff would be in recovery for twelve weeks before returning to work (the first six weeks of which he would be non-weight bearing). (Tr. 283.)

Between May and August 2006, Plaintiff received treatment from Howard Wright, D.O. (Tr. 45-419). At his initial evaluation with Dr. Wright, Plaintiff complained of weight loss and history of rheumatoid arthritis, a bad back, and a bad neck. (Tr. 357.) Plaintiff indicated he had been taking Vicodin for ten years (up to twenty per day), but wanted to start Suboxone for pain. (Tr. 357.) Plaintiff also asked for referral to a psychiatrist. (Tr. 357.) Dr. Wright said Plaintiff appeared healthy and in no distress. (Tr. 359.) He had a normal gait but had swollen and tender hands with trigger fingers, and he had some swelling in his feet. (Tr. 359.) On mental status examination, Plaintiff was oriented with appropriate judgment, normal memory, appropriate mood and affect, no suicidal or homicidal ideations, and no apparent response to internal stimuli. (Tr. 360.) Dr. Wright said Plaintiff's rheumatoid arthritis and neck pain had remained stable; his joint pain, back pain, and gout were unchanged; and his hypertension was improved. (Tr. 360.) Dr. Wright advised Plaintiff regarding his diet and advised him to engage in regular, sustained exercise for at least thirty minutes three to four times per week. (Tr. 362.) He prescribed numerous medications, including Suboxone. (Tr. 360-61.) Plaintiff returned one week later complaining of pain, but stating that Suboxone helped. (Tr. 366.) Dr. Wright continued to refill Plaintiff's prescriptions, including Suboxone. (Tr. 366-69, 372-73, 378-81, 385, 392, 400- 01, 410.)

Later in May 2006, and in June 2006, Dr. Wright noted Plaintiff had tenderness about the head and neck musculature (Tr. 374, 380), and prescribed Cymbalta for depression and medication for ADD as well. (Tr. 375.) Plaintiff continued to be oriented with appropriate mood and affect, intact memory (except for impaired remote memory on one occasion in July), ability to give personal history, and demonstrated understanding of activities, consequences, his needs, and social situations. (Tr. 368, 375, 380, 394, 403, 418.) Dr. Wright said Plaintiff's depression and ADD improved with medication and were stable. (Tr. 361, 381, 387, 403, 418.) Dr. Wright noted that Plaintiff's gait was intact and that his station and posture were normal. (Tr. 374.) Dr. Wright also noted that Plaintiff's cervical status had improved. (Tr. 376.)

Plaintiff was treated at the emergency room on June 3, 2006, after he injured his left hand with a power saw. (Tr. 544-552.) An X-ray revealed fractures along the proximal phalanges of the index, middle, and ring fingers. (Tr. 551.) Plaintiff underwent a repair of the extensor tendons of the index, middle, and ring fingers, open reduction and K-wire fixation and stabilizing of the fractures of the proximal phalanx of the index, middle, and ring fingers, and there was a laceration on the left ring finger, which was repaired. (Tr. 549.)

In June and July 2006, Plaintiff received follow-up treatment from hand surgeon Robert Barbosa, D.O., for the power saw injury to his left hand. (Tr. 316-22, 414; 542-71.) Plaintiff underwent surgical repair to the tendons of both fingers and bone graft of the middle finger. (Tr. 316, 566-68.) X-rays after the surgery showed excellent position of the hardware and bone graft in the left middle finger. (Tr. 316.) Plaintiff was to wear a cast for another two weeks. (Tr. 316.) On follow-up in early August 2006, Dr. Barbosa noted Plaintiff was still on non-work status but would have wire removed in two weeks and then begin a more structured rehabilitation program. (Tr. 414.)

On June 17, 2006, Plaintiff was again seen by Dr. Wright who noted that Plaintiff's arthritis was worsening but that his gouty episodes had ceased and that his gait and posture again were normal. (Tr. 393-394.) Plaintiff saw Dr. Wright again on July 11, 2006, and Dr. Wright noted stable neck and low back pain and stable rheumatoid arthritis as well as normal gait and posture. (Tr. 402-403.).

On July 24, 2006, Plaintiff underwent a consultative evaluation with Cynthia Shelby-Lane, M.D. (Tr. 331-41). Dr. Shelby-Lane noted that Plaintiff walked with a slight right-sided limp, but had a normal stance. (Tr. 335.) He did not use a cane or aid for walking and was able to slowly tandem walk, heel walk, and toe walk. (Tr. 335.) Plaintiff was able to squat and bend ninety percent of the distance and recover. (Tr. 335.) Dr. Shelby-Lane reported that Plaintiff had a fair muscle tone without flaccidity, spasticity, or paralysis. (Tr. 336.) He could perform all postural ranges of motion, including sitting, standing, stooping, carrying, pushing, pulling, buttoning clothes, tying shoes, dressing and undressing, squatting, getting on and off the examination table, and climbing stairs. (Tr. 339.) Plaintiff wore a hand immobilizer on his left hand and had no range of motion or grip strength on the left; he had full grip strength (4/5) on the right. (Tr. 335-36.) Dr. Shelby-Lane's impression was abdominal pain history with hernia repair, Barrett's Esophagitis, history of rheumatoid arthritis, history of chronic back pain, history of left hand injury, and history of depression. (Tr. 336.)

Also on July 24, 2006, Plaintiff underwent a consultative psychological evaluation with Nick Boneff, Ph.D. (Tr. 323-30.) Plaintiff complained of trouble sleeping and mood swings, but said he was generally cheery and denied any history of psychiatric hospitalization or any use of psychiatric medications. (Tr. 325-26.) Plaintiff said he was in mental health treatment at the VA and had been diagnosed with post-traumatic stress disorder (PTSD), but he really thought he had bipolar disorder. (Tr. 326.) Plaintiff described a history of alcohol and drug abuse, but denied any present use. (Tr. 326.) Dr. Boneff observed that Plaintiff was in contact with reality, with no evidence of thought disorder. (Tr. 327.) Plaintiff was hyperverbal, and he appeared to have possibly been exaggerating his symptoms. (Tr. 327.) His moods were somewhat tangential and circumstantial. (Tr. 327.) Plaintiff said he sometimes heard his name being called, and felt plotted against by people in general such as the doctor who examined him earlier. (Tr. 327.) Plaintiff was oriented, able to repeat three digits forward, but not two backwards; he recalled only one of three objects after a three minute delay; and he knew the current president but not the past one. (Tr. 328.) He was able to name five large cities, and he was able to perform serial seven ...


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