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Alvin Hardmon v. Michael J. Astrue

October 24, 2011

ALVIN HARDMON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Vecchiarelli Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Alvin Hardmon ("Plaintiff"), challenges the final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("the Commissioner"), denying Plaintiff's applications for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("the Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

I. PROCEDURAL HISTORY

On July 6, 2006, Plaintiff submitted applications for DIB and SSI and asserted a disability onset date of April 1, 2005. (Tr. 35.) The applications were denied initially and upon reconsideration, so Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 35.) A hearing was scheduled for November 20, 2008, but it was postponed at Plaintiff's request. (Tr. 35.) On July 15, 2009, an ALJ held Plaintiff's hearing by video conference. (Tr. 35.) Plaintiff appeared, was represented by an attorney, and testified. (Tr. 35.) A vocational expert ("VE") also appeared and testified. (Tr. 35.) On August 7, 2009, the ALJ found Plaintiff not disabled. (Tr. 42.) On September 13, 2010, the Appeals Council declined to review the ALJ's decision, so the ALJ's decision became the Commissioner's final decision. (Tr. 1.)

On November 9, 2010, Plaintiff timely filed his complaint to challenge the Commissioner's final decision. (Doc. No. 1.) On March 5, 2011, Plaintiff filed his Brief on the Merits. (Doc. No. 15.) On May 18, 2011, the Commissioner filed his Brief on the Merits. (Doc. No. 18.) Plaintiff did not file a Reply Brief.

Plaintiff asserts two assignments of error: (1) the ALJ improperly assessed the credibility of Plaintiff's subjective complaints of pain; and (2) the ALJ based his residual functional capacity ("RFC") determination on his personal medical opinion rather than the record evidence.*fn1

II. EVIDENCE

A. Personal and Vocational Evidence

Plaintiff was 44 years old on the alleged disability onset date (Tr. 40), and was 48 years old on the date of his hearing (Tr. 12). He has at least a high school education and is able to communicate in English. (Tr. 40.) He has past relevant work as a production machine operator and delivery driver. (Tr. 40.)

B. Medical Evidence

On December 14, 2005, Plaintiff underwent a physical examination by Dr. Thomas Fuller, M.D. (Tr. 242-43.) Dr. Fuller noted that Plaintiff's medical history included, among other things, hypertension, degenerative disc disease of the spine, and cervical radicular pain. (Tr. 242.) Upon examination, Dr. Fuller found Plaintiff had a tender right sciatic notch; Plaintiff's straight leg raise on the left was positive at 40 degrees; and a straight leg raise on the right was "impossible." (Tr. 243.) X-rays showed moderate osteoarthritis in the right hip, mild osteoarthritis in the left hip, and mild facet hypertrophy in the lower lumbar spine. (Tr. 243.)

On January 13, 2006, Plaintiff was examined by resident physician Dr. Sepideh Haghpanah at the Department of Physical Medicine and Rehabilitation, under the supervision of Dr. Michael Harris, M.D., and upon referral from Dr. Fuller, for a consultation on Plaintiff's low back pain. (Tr. 311.) Dr. Haghpanah reported the following upon physical examination. Plaintiff had normal range of motion in his back and left hip, but limited range of motion with pain in his right hip. (Tr. 313.) A palpatory examination of Plaintiff's back revealed no evidence of tenderness, spasms, or trigger points; however, Plaintiff had a positive straight leg raise on the right that induced hip pain and radicular pain to his ankle. (Tr. 313.) Plaintiff's motor strength was normal in his upper and lower extremities except to the extent that his hip pain limited him. (Tr. 313.) Dr. Haghpanah diagnosed Plaintiff with degenerative joint disease in both hips with significant limitations of movement in the right hip. (Tr. 313.) Dr. Haghpanah recommended that Plaintiff take Voltaren and Vicodin, consider injection treatments for the right hip, use an assistive device, and see an orthopedic physician to obtain information on surgical options. (Tr. 313.)

On March 9, 2006, Plaintiff presented to Dr. J.D. Eubanks, M.D., with complaints of right buttock and posterolateral thigh pain and associated numbness that sometimes extended down to his ankle. (Tr. 320.) Dr. Eubanks indicated that Plaintiff reported the following. Plaintiff had suffered his pain for the past several months, and the pain presently rated at 9 on a scale between 1 and 10 in severity. (Tr. 320.) The pain was not caused by a traumatic event. (Tr. 320.) The week before, his pain was so severe that he was unable to walk. (Tr. 320.)

Dr. Eubanks reported the following upon physical examination. Plaintiff favored his right side when he walked, but he had full motor strength and negative straight leg raises with both legs. (Tr. 320.) He complained of pain in his right hip. (Tr. 320.) Dr. Eubanks noted that Plaintiff's history and examination were "consistent with possible piriformis syndrome v. sciata," and that he would begin Plaintiff's treatment with "simple things" such as physical therapy. (Tr. 320.)

On May 19, 2006, Plaintiff presented to Dr. Harris for a follow up on his right hip pain. (Tr. 331.) Dr. Harris reported the following. An MRI of Plaintiff's right hip on January 23, 2006, revealed moderate to severe osteoarthritis with an acetabular labral tear and subchondral cystic changes. (Tr. 331.) Plaintiff's pain had not resolved. (Tr. 331.) The orthopedics department, however, recommended that Plaintiff continue with conservative treatment. (Tr. 331.) Plaintiff reported that he took Vicodin and Voltaren, which seemed to help him, but that he was "very limited" with standing on his right side. (Tr. 331.) Plaintiff had marked limitations in the range of internal rotation in his right hip, but there were no indications of instability. (Tr. 331.) Dr. Harris recommended that Plaintiff obtain a steroid injection in his right hip, continue taking Vicodin and Voltaren, and undergo physical therapy. (Tr. 332.)

On May 24, 2006, Plaintiff obtained a steroid injection in his right hip. (Tr. 262.) On July 26, 2006, Plaintiff presented to Dr. Shu Que Huang, M.D., for a follow up on his right hip pain. (Tr. 335.) Dr. Huang observed that Plaintiff used a cane to ambulate. (Tr. 335.) Dr. Huang reported that Plaintiff's steroid injection in May decreased Plaintiff's pain for only a couple of days, but provided "in general 25-30% relief after injection compared to his baseline." (Tr. 335.) Dr. Huang further reported that Plaintiff's pain was "better controlled on Oxycontin," and that Plaintiff rated his present pain at 5 on a scale to 10 in severity. (Tr. 335.)

On August 25, 2006, state agency reviewing physician Dr. W. Jerry McCloud, M.D., assessed Plaintiff's physical RFC as follows. (Tr. 341-48.) Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently. (Tr. 342.) He could sit, stand, and walk for a total of about 6 hours in an 8-hour workday with normal breaks. (Tr. 342.) His abilities to push and pull were not limited except to the extent that he was limited in his abilities to lift and carry. (Tr. 342.) He could occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; but he could never climb ladders, ropes, and scaffolds. (Tr. 343.) He had no manipulative, visual, communicative, and environmental limitations. (Tr. 344-45.) Dr. McCloud opined that Plaintiff's symptoms were attributable to a medically determinable impairment, but that Plaintiff's symptoms were disproportionate to what should be expected. (Tr. 346.) Dr. McCloud specifically noted that Plaintiff's need for a cane to walk and alleged inability to lift more than 10 pounds were not supported by the medical evidence. (Tr. 246.)

On September 8, 2006, Plaintiff presented to Dr. Haghpanah for a follow up on his right hip pain. (Tr. 352.) Dr. Haghpanah indicated that Plaintiff reported the following. Plaintiff's pain was worse, rating at 7 out of 10 in severity. (Tr. 352.) The pain was sharp, located in his right hip, and radiated to his back and right thigh. (Tr. 352.) The pain became worse with activity and better with rest. (Tr. 352.) Plaintiff used a cane for ambulation. (Tr. 352.) The steroid injection in May 2006 provided Plaintiff with some relief, so Plaintiff hoped to repeat the procedure. (Tr. 352.)

On November 28, 2006, state agency reviewing physician Dr. Maria Congbalay, M.D., reviewed Dr. McCloud's August 25, 2006, assessment of Plaintiff's physical RFC and affirmed Dr. McCloud's findings. (Tr. 362.)

On June 1, 2007, Plaintiff presented to Dr. Haghpanah for a follow up on his right hip pain. (Tr. 392.) Dr. Haghpanah indicated that Plaintiff reported the following.

Plaintiff had significant pain relief in his right hip after a second steroid injection, but his left hip hurt and recently became worse. (Tr. 392.) He also suffered occasional pain in his right calf. (Tr. 392.) He had "transient" relief of pain in his left hip after a steroid injection. (Tr. 393.) His pain prevented him from working. (Tr. 393.) Dr. Haghpanah noted that Plaintiff's Oxycontin medication controlled Plaintiff's pain at a level of 2 out of 10 in severity. (Tr. 394.) Dr. Haghpanah recommended that Plaintiff continue to take Voltaren and Oxycontin, continue ...


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