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Mark C. Sampson v. Michael J. Astrue

March 28, 2011

MARK C. SAMPSON PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dickinson R. Debevoise U.S.S.D.J.

NOT FOR PUBLICATION

OPINION

Plaintiff, Mark C. Sampson, filed a complaint challenging the Appeals Council‟s denial of his request for review of the Administrative Law Judge‟s ("ALJ") decision that his disability under sections 216(i) and 223(f) of the Social Security Act ended as of January 1, 2006 because his medical condition had improved, he was capable of sedentary work, and there were jobs in the national economy that he could perform.

Procedural Background

Plaintiff, was awarded SSDI benefits in 2003 based on a diagnosis of acute lymphatic leukemia ("ALL"). After a 2005 review of Plaintiff‟s medical condition, the Social Security Administration ("SSA") determined that Plaintiff‟s medical condition improved as of January 1, 2006. After timely filing a Request for Reconsideration, Plaintiff had a hearing before a New Jersey disability examiner. The examiner affirmed the SSA‟s decision. Plaintiff timely filed a Request for a Hearing, and after a June 25, 2008 hearing, the ALJ found that Plaintiff‟s medical condition improved, that he was capable of sedentary work and that there was work in the national economy that he could perform. On July 9, 2009 the Appeals Council denied Plaintiff‟s request for review, and the complaint was filed on September 8, 2009.

The Facts

Plaintiff's Background

Plaintiff was born on February 6, 1960. (R. 236). He was 48 at the time of the hearing. He had one year of college and served six years in the Marines. (R. 510:25-511:5). Plaintiff then held various jobs such as a bouncer, bounty hunter and automobile salesman. (R. 512:5-6). His last reported earnings were in 2002. (R. 49).

Medical History Reports

In 1993, Plaintiff was in a car accident. (R. 232). As a result of this accident, a plate with screws was placed in his left hip. In addition, due to a problem with a traction device while he was in the hospital, two screws were left in his lower leg. (R. 489; 514:5-18).

In 2002, Plaintiff was stabbed in the abdomen and hospitalized for seven days. (R. 190). He developed a hernia as a result of this stabbing. (R. 515:23-516:5).

In June 2002, Plaintiff was diagnosed with diabetes. He was prescribed glyburide, which he was taking at the time of the hearing. (R. 182: 142).

Shands Jacksonville -- Treatment for ALL

In March 2003, Plaintiff was admitted to Shands Jacksonville, where he was diagnosed with ALL and hepatitis C. (R. 168). He had no complaints of neuropathy at that time. (R. 171). For two years, his leukemia was treated with, among other drugs, vincristine, Cytoxan and neupogen. (R. 169, 203, 246).

By July 2005, Plaintiff‟s leukemia was in remission. He developed sensory neuropathy in his feet, which Dr. Pham, his treating physician, rated as moderate to severe. (R. 201, 203). He also had an episode of edema in his legs, which was evaluated by Dr. Dennis, M.D. (R. 208). In November 2005, Dr. Pham rated his neuropathy as severe. (R. 239). By March 2006, the neuropathy progressed to his hands. (R. 236). In spite of this, Plaintiff stated that he was thinking about going back to work. (Id.) Among other medications, Dr. Pham prescribed morphine and methadone for his neuropathy. (R. 203, 236, 237, 238). Dr. Pham was unsure of the cause of the neuropathy and tentatively identified it as diabetic neuropathy. ("The neuropathy (sensory) . . . I think, is due to diabetes mellitus.") (R. 201).

Dr. Takach -- Non-Examining Medical Consultant

Dr. Takach, M.D., completed an RFC Questionnaire on December 20, 2005, noting that there was a source statement regarding Plaintiff‟s physical capabilities in the file, although there was no RFC in the file. (R. 223-30, esp. 229, 230). The only source statement in the record relating to Plaintiff‟s capabilities was a single page in which Dr. Pham described the sensory neuropathy as causing pain and numbness in Plaintiff‟s feet, but Plaintiff‟s gait was "OK." (R. 201). Dr. Takach did not dispute that Plaintiff had sensory neuropathy. (R. 224, 228). He completed an RFC Questionnaire which stated that Plaintiff could sit six hours per day and stand or walk three hours per day. (R. 224). He opined that Plaintiff should never climb a ladder, rope or scaffold and that he should not be exposed to temperature extremes. (R. 225, 227).

Dr. Brigety -- Non-Examining Medical Consultant

On July 3, 2006, Dr. Brigety, M.D., completed an advisory RFC Questionnaire, noting, in contrast to Dr. Takach‟s statement, that there was no statement in the file regarding Plaintiff‟s physical capacities. (R. 363-70, esp. 369). He questioned whether the neuropathy was due to chemotherapy rather than diabetes and found the complaints of pain credible. (R. 365, 368). He opined that Plaintiff could sit about 6 hours in a workday and stand or walk four hours in a workday. (R. 364). He opined that Plaintiff could "occasionally" climb a ladder, rope and scaffold, as well as crouch or crawl, but did not see the need for any environmental limitations. Dr. Brown -- State Psychological Examiner

On January 5, 2006, James Brown, Ph.D., interviewed Plaintiff. He reported that Plaintiff said he experienced sleep variability and that he isolated himself from friends and family. (R. 231, 234). He reported that Plaintiff was able to dress, bathe, groom himself, cook and prepare food, do general cleaning, laundry, shopping, manage money and drive. (R. 234). Dr. Brown noted that Plaintiff‟s mood was depressed and he appeared sad. (R. 233). He observed a shuffling gait. (R. 232). He concluded that Plaintiff‟s prognosis was fair. He recommended that Plaintiff obtain treatment to "help deal with the challenges and realities of his situation." (R. 234).

Dr. Brown completed an RFC Questionnaire on January 25, 2006 concluding that Plaintiff did not meet a listing for an affective disorder. (R. 293-305).

Dr. Patel -- Treating Internist

By September 2006, Plaintiff had moved to New Jersey and saw Dr. Patel, M.D. Plaintiff complained of generalized body ache, feet pain, numbness and burning in both his feet. (R. 383). Dr. Patel noted mild decreased sensations as well as redness and inflammation on the feet. (Id.)

Dr. Fishkin -- Treating Oncologist

Dr. Fishkin, M.D., examined Plaintiff on November 22, 2006 to monitor the Ommaya reservoir and port-a-catch through which the chemotherapy had been administered. (R. 244). He found that "vibratory sensation is intact." (R. 390).

Dr. Freeman -- Treating Pain Specialist

Dr. Freeman, D.O., treated Plaintiff fourteen times from September 2006 through March 18, 2008. (R. 438-70). Dr. Freeman attributed the neuropathy to the effects of chemotherapy.

(R. 467).

At virtually every visit, Plaintiff complained of pain, numbness, burning and/or tingling:

9/11/06: "Symptoms are exacerbated with lying down and constant with no significant relief." "Significant neuropathy." Pain described as constant 7 out of 10 points, "sharp stabbing in nature with dull aching episodes as well . . . shooting pain, pins and needles, numbness, tingling, aching, cramping and spasm." (R. 468). 9/25/06: "Overall symptoms are unchanged." (R. 467). 10/30/06: "Overall his symptoms are unchanged." (R. 466). 11/29/06: Complained that methadone was not providing any benefit. Lyrica*fn1 helped his symptoms and was increased. (R. 461). 12/13/06: "[D]id not tolerate Kadian.*fn2 Stated it did not provide him any significant benefit. He continues to have pain which is in low back radiating down the bilateral lower extremity." Switched from Kadian to MS Contin.*fn3

(R. 460). 12/27/06: Notes there is still burning pain. Lyrica stopped in the past. MS Contin prescribed at 60mg 3x/day. (R. 459). 2/5/07: Some burning, pins, needles and numbness. MS Contin dosage increased to 200mg/12 hr. (R. 458, 459). 3/12/07: Less numbness and tingling. (R. 457). 5/10/07: "[C]ontinues to have pain radiating down the bilateral lower extremity." Aching pain. MS Contin dosage 100mg 2x/day. (R. 456). 6/7/07: "Overall symptoms unchanged."" [C]ontinues to have leg pain with associate [sic] numbness and tingling."

(R. 448). 8/16/07: "Continues to have pain in the joint, hands as well as bilateral lower extremity." Pains in the left abdominal region; "sharp, shooting at times." (R. 447). 11/5/07: New problem of low back pain, sharp, stabbing, shooting with radiation down the lower extremity. (R. 446). 12/17/07: "He continues to have required medication management for his neuropathy." Pain is in lower back region and radiates down the lateral lower extremity. (R. 442). 3/18/08: Pain in low back radiates distally. (R. 439).

Dr. Freeman tried various medications to help control the neuropathy, such as Kadian and Lyrica, but ultimately, Plaintiff remained on morphine. (R. 460, 461).

On August 16, 2006, Plaintiff had a titer of 40 for rheumatoid arthritis and a titer of 2 on May 18, 2007. (R. 398, 408).

By November 2007, he developed low back pain, described as a sharp shooting pain. An MRI revealed lumbar disc herniation at L4-L5 and disc bulging at L5-S1. (R. 445). By March 25, 2008, he had two epidural steroid injections, which relieved his pain by about 50%. (R. 439-42). On March 18, 2008, Dr. Freeman wanted to schedule a third injection in three months. (R. 439).

Dr. Freeman completed an RFC Questionnaire which opined that Plaintiff could only sit for 2 hours per eight hour day and that he could only sit for 20 minutes before having to stand. Plaintiff would then have to stand for 45 minutes before he would have to sit. (R. 477*fn4 ). He would need to take 6-7 unscheduled breaks during a workday and rest for 20 minutes before returning to work. (R. 431). Breaks would be needed because of muscle weakness, pain, paresthesia and numbness and the adverse effects of his medication. (R. 431). He has impaired sleep and his medication causes drowsiness and sedation. (R. 429, 430).

Dr. Perdomo -- Examining Psychologist

Dr. Perdomo, Ph.D., examined Plaintiff on April 24, 2008. (R. 471-475). He reported that Plaintiff said that he feels tired all the time. Dr. Perdomo concluded that Plaintiff‟s pain may completely affect his ability to function at a job. Like Dr. Brown, he suggested ...


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