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Morris v. Commissioner of Social Security

United States District Court, Sixth Circuit

August 28, 2013

JAY BRADLEY MORRIS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION AND ORDER

JAMES R. KNEPP, II, Magistrate Judge.

INTRODUCTION

Plaintiff Jay Bradley Morris seeks judicial review of Defendant Commissioner of Social Security's decision to deny Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The district court has jurisdiction under 42 U.S.C. § 405(g) and 1383(c)(3). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 17). For the reasons given below, the Court affirms the Commissioner's decision denying benefits.

PROCEDURAL BACKGROUND

On September 25, 2010, Plaintiff filed applications for DIB and SSI claiming he was disabled due to left hip pain, arthritis, and depression. (Tr. 176-85, 243). He alleged a disability onset date of October 23, 2005. (Tr.176). His claims were denied initially (Tr. 87-92) and on reconsideration (Tr. 93-98). Plaintiff then requested a hearing before an administrative law judge (ALJ). (Tr. 113). Plaintiff (represented by counsel), a vocational expert (VE), and social worker Ken Woods testified at the hearing, after which the ALJ found Plaintiff not disabled. ( See Tr. 14, 34). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1); 20 C.F.R. §§ 404.955, 404.981, 416.1455, 416.1481. On July 10, 2012, Plaintiff filed the instant case. (Doc. 1).

Plaintiff filed previous applications for DIB and SSI on April 19, 2007. (Tr. 17). These claims were denied initially on August 28, 2007, and on reconsideration December 27, 2007. (Tr. 17). Plaintiff did not request a hearing. (Tr. 17). At the ALJ hearing in the instant case, Plaintiff requested the prior applications be reopened. (Tr. 17). The ALJ denied the request because Plaintiff failed to show good cause as required by the regulations. (Tr. 17); Anderson v. Comm'r of Soc. Sec., 195 F.App'x 366, 369 (6th Cir. 2006) (Federal courts do not have jurisdiction to review an ALJ's decision not to reopen a prior application absent a colorable constitutional claim.). Since Plaintiff has not asserted a constitutional claim, the prior determinations are final, and the relevant time period for this case begins on December 28, 2007. (Tr. 17).

FACTUAL BACKGROUND

Personal and Vocational History

Born June 21, 1960, Plaintiff was 50 years old at the time of the ALJ hearing. (Tr. 18, 41). Plaintiff completed high school and spent two years in vocational school for small engine repair and agricultural mechanics. (Tr. 248). His past work experience included line worker, car washer, laborer, and press operator. (Tr. 225, 250). Plaintiff's wife died in 2006 and he lived in an apartment with his 19 year old daughter. (Tr. 42). Plaintiff took care of a cat, a spider, and a turtle. (Tr. 61).

During the hearing, Plaintiff testified he cut an elderly man's grass once a week using a push mower. (Tr. 49). He said it took him an hour with one fifteen minute break. (Tr. 49). He said he had constant pain in his hip, and intermittent pain in his lower back and neck. (Tr. 53). He testified Aleve helped his pain. (Tr. 53). In a disability report, Plaintiff said his hip and back problems caused him excruciating pain when standing or walking up and down stairs. (Tr. 243). He said he could not bend, stretch, or stand for any period of time. (Tr. 243). He also said he suffered from depression and experienced good and bad days. (Tr. 61). On bad days, Plaintiff said he would sit around and not eat right. (Tr. 61). Plaintiff also claimed he heard voices and said his deceased wife tried to contact him via cell phone. (Tr. 61-62).

Ken Woods, Plaintiff's case manager at Columbiana County Mental Health Center testified Plaintiff said he heard voices and claimed his deceased wife tried to contact him through his cell phone. (Tr. 65). He said Plaintiff stopped taking his medication at times, which caused overwhelming distress. (Tr. 65). Mr. Woods also testified Plaintiff did not have the ability to function or hold down gainful employment, even on medication. (Tr. 67-68).

Medical Evidence - Physical Impairments

On October 29, 2008, Plaintiff saw Dr. Lakhani for a consultive examination. (Tr. 380-83). Plaintiff reported the only medication he took was over the counter Rolaids. (Tr. 380). He said he quit his job washing cars in February 2007 because the company was sold. (Tr. 380). Plaintiff explained he twisted his back on the job in 1999 while pulling a 40 pound steel bathtub onto a roller. (Tr. 381). Since then, he said he had lower back pain about four to five times per week. (Tr. 381). He also experienced pain while bending or carrying 20 pounds of groceries up the stairs to his apartment. (Tr. 381). He had hip pain mostly in the morning or after sitting for fifteen minutes. (Tr. 381). He said he could walk three blocks before stopping, stand ten-to-fifteen minutes before resting, and carry 20-30 pounds for short distances. (Tr. 381). Plaintiff reported no history of anxiety, depression, mental illness, or hallucinations. (Tr. 381).

On examination, Plaintiff's gait and ambulation were normal without the use of ambulatory aids. (Tr. 381). Straight leg testing was normal but there was moderate tenderness in the left lumbosacral area, and lumbar flexion was limited secondary to lumbar pain. (Tr. 382). Plaintiff had no muscle wasting or sensory loss and deep tendon reflexes were 5/5 in the upper and lower extremities. (Tr. 382). An x-ray of Plaintiff's hip showed well maintained joint spaces but mild sclerotic changes in the acetabulum. (Tr. 382). An x-ray of his lumbosacral spine showed minimal degenerative changes on L4, tiny spur formations on L3, and first degree spondylolithesis on L5-S1. (Tr. 382). Dr. Lakhani found Plaintiff's left hip and lumbar pain were possibly due to degenerative joint disease. (Tr. 383). He found Plaintiff's memory, concentration, and understanding were good. (Tr. 383). Functionally, he found Plaintiff could possibly walk three blocks and carry 20-30 pounds for short distances. (Tr. 383).

In December 2008, state agency physician Anton Freihofner, M.D., assessed Plaintiff's physical residual functional capacity (RFC) and concluded he could lift up to 50 pounds occasionally and 25 pounds frequently, stand and/or walk for about six hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. (Tr. 417-24). As support, Dr. Freihofner cited diagnostic studies and clinical findings contained in the record. (Tr. 418). He specifically found Plaintiff could perform medium duty work with frequent postural limitations. (Tr. 418-19). State agency physician William Bolz, M.D. affirmed Dr. Freihofner's assessment on April 3, 2009. (Tr. 429).

Physical therapist Brian Rafferty saw Plaintiff at Salem Community Hospital (Salem) for a Functional Capacity Evaluation (FCE) on December 3, 2008. (Tr. 437-43). Plaintiff reported "having more difficultly performing manual labor jobs due to his chronic back and left hip pain and increasing weakness." (Tr. 437). Mr. Rafferty concluded Plaintiff demonstrated poor tolerance for sustained activities, dynamic lifting, and pushing and pulling, and his overall strength and endurance was limited by complaints of pain, fatigue, and decreased balance. (Tr. 437). He found Plaintiff could perform light and sedentary work according to Department of Labor standards. (Tr. 437).

On March 11, 2010, Plaintiff sought treatment at Salem for indigestion and a skin lesion on his forehead. (Tr. 447). On examination, Plaintiff had no back pain, joint stiffness, joint swelling, or swelling of extremities. (Tr. 447). Plaintiff had a normal gait, posture, and sensation in his upper and lower extremities. (Tr. 449). A month later, Plaintiff had surgery to remove the skin lesion on his forehead, which was diagnosed as basal cell cancer. (Tr. 451).

Plaintiff sought routine care at Lisbon Community Health Center (Lisbon) in 2010. (Tr. 455-56, 458-63). He was treated for gastroesophageal reflux and skin cancer on his scalp. (Tr. 455, 460). On November 15, 2010, Dr. Cola noted Plaintiff had more energy and was feeling better, and overall Plaintiff said he was doing well. (Tr. 455). Dr. Cola remarked, "He had his social worker in the office with him [] and the social worker did not voice any concerns or have any problems either." (Tr. 455). He addressed Plaintiff's medical conditions - gastroesophageal ...


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