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Floyd Thomas v. Commissioner of Social Security

August 31, 2011

FLOYD THOMAS, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Pisano, District Judge:

Not for publication

OPINION

Plaintiff Floyd Thomas ("Plaintiff") appeals the decision of the Commissioner of Social Security ("Commissioner") denying his request for Disability Insurance Benefits ("DIB"). The court has jurisdiction to review this matter under 42 U.S.C. §§ 405(g) and decides this matter without oral argument. The Court finds that the record provides substantial evidence supporting the Commissioner's decision that Plaintiff is not disabled. Accordingly, the Court affirms the Commissioner's decision.

I.BACKGROUND

Plaintiff was born February 8, 1972, and at the time of this appeal was thirty-nine years old. (Administrative Record ("R") 115). He completed school through the tenth grade and worked as a forklift operator and sanitation worker. (R. 121-124). On February 16, 2002, Plaintiff suffered an injury at work and subsequently underwent a left leg, above-knee amputation. (R. 120, 123). He has not worked since December 31, 2006, the alleged onset date, due to pain in his left leg. (R. 27-28, 120).

A. Procedural History

Plaintiff filed an application for DIB on March 6, 2007, alleging that he was disabled due to the amputation of his left leg. (R. 42, 95). The Social Security Administration denied his claim both initially and on reconsideration. (R. 45, 50). Upon Plaintiff's request, a hearing was held before an Administrative Law Judge (the "ALJ").

(R. 18, 53). On July 24, 2009, the ALJ issued a written decision denying Plaintiff's claim. (R. 6-17). On July 16, 2010, the Appeals Council denied Plaintiff's request for a review of the hearing, and the ALJ's decision became the final decision of the Commissioner. (R. 1-5).

Thereafter, Plaintiff filed a complaint in this Court alleging that the ALJ's decision was not based on substantial evidence. Specifically, Plaintiff argues that the ALJ: (1) failed to accord adequate weight to the opinion of his treating physician; (2) failed to include all of his impairments in the hypothetical question posed to the vocational expert (the "VE"); (3) failed to take into account his non-exertional impairments in determining his residual functional capacity ("RFC"); (4) failed to consider the side effects of his medications; (5) erred in properly evaluating his subjective complaints; and (6) failed to follow the "slight abnormality" standard in finding that his back pain and herniated disks were non-severe. Plaintiff asks this Court to remand the case for reconsideration.

B. Factual History

Plaintiff has a tenth grade education and worked as a forklift operator for nine years and sanitation worker for six months. (R. 121). As a forklift operator, Plaintiff's job responsibilities included loading and unloading trucks, processing supply and work orders, and driving a forklift. (R. 121). Plaintiff stated that he used machines, tools, and equipment and frequently lifted 50 pounds or more. (R. 121). As a sanitation worker, Plaintiff loaded trash into garbage trucks. He was required to stand all day and lift 20 to 100 pounds. (R. 26). The VE testified that Plaintiff's job as a forklift operator was "heavy" in its exertional capacity and "semi-skilled"; and that his work as a sanitation worker was "very heavy" and "unskilled". (R. 36).

On February 16, 2002, Plaintiff was involved in a motor vehicle accident at work and subsequently underwent a left leg, above-knee amputation. (R. 21, 120). The record is not clear on Plaintiff's work history since that date. At the hearing on July 1, 2009, Plaintiff testified that, after losing his leg, he worked part-time for Wal-Mart for six months in 2005 and then collected worker's compensation payments. (R. 24). However, in a disability report dated March 20, 2007, Plaintiff reported that he worked as a janitor for Wal-Mart from September 2003 to December 2006. (R. 120-121). Plaintiff's earning statements also indicate that he worked for Wal-Mart from 2003 to 2006 and that his earnings posted were "regular" wages. (R. 103).*fn1

Treatment notes from May 2006 by Dr. Coplin, M.D. indicate that Plaintiff suffered from phantom pain, swelling and severe low back pain, and that he would need to be out of work for several weeks. (R. 188-189). Dr. Coplin also stated that, although Plaintiff's skin integrity was good, there was sensitivity at the distal end of his stump and, at that time, Plaintiff was unable to wear his prosthetic. (R. 188). He prescribed Plaintiff Vicodin ES and Celebrex. (R. 188-189). In a report to the Hartford Life Insurance Company, dated May 31, 2006, Dr. Coplin stated that Plaintiff suffered from phantom pain and low back pain. (R. 185). He also assessed that Plaintiff could stand for less than 2 hours a day, walk less than 2 hours, sit between four and eight hours, lift or carry less than two hours, reach/work overhead less than an hour, push or pull for less than an hour and drive for less than two hours. (R. 186). On June 28, 2006, Dr. Coplin stated that Plaintiff could return to work. (R. 184).

On September 13, 2006, Dr. Coplin reported that Plaintiff was doing "fairly well" and could be evaluated for a new limb. (R. 180). On October 24, 2006, Dr. Coplin stated that Plaintiff was awaiting a prosthetic unit which would "improve his gait and station dramatically." (R. 178). He also reported that Plaintiff was ambulating freely and independently and could continue his work activity at Wal-Mart. (R. 178). In November 2006, Plaintiff was fitted for a new prosthetic leg. (R. 127-133). On December 5, 2006, Dr. Coplin reported that Plaintiff was ambulating well with his new prosthetic and that he was doing "fairly well" on his pain medication. (R. 177). Plaintiff was taking Valium and Vicodin ES during this time. (R. 177-180).

On January 16, 2007, Dr. Coplin stated that Plaintiff was having phantom pain and anxiety related to his accident in 2002. (R. 176). However, in a letter to Diana Cortez, a vocational rehabilitation counselor, dated March 13, 2007, Dr. Coplin stated that Plaintiff's prognosis was "excellent" and that he did not have any restrictions with regard to work or daily activities. (R. 174). On August 7, 2007, Dr. Coplin reported that Plaintiff had severe lower back pain and significant tenderness in his left lower lumbar parsipinal muscles. (R. 172). He concluded that Plaintiff may have either a lumbar sprain or a herniated disk and prescribed him Duragesic, Neurontin, and Oxycontin for his pain. (R. 172). He also stated that an MRI scan of the lumbar spine may be warranted to rule out a herniated disk. (R. 172).

Upon filing his application for DIB, Plaintiff completed a function report questionnaire dated March 22, 2007. (R. 134-141). Plaintiff reported that, due to his leg, he can no longer run, dance, climb, jump or ride a motorcycle; he has trouble sleeping; he has difficulty lifting, squatting, bending, standing, kneeling and climbing stairs; and he cannot walk very far before needing to stop and rest. (R. 135, 138). He also stated that he uses crutches, a wheelchair and a cane, in addition to his artificial limb. (R. 140). Despite this, Plaintiff reported that he cooks meals for his family; cleans up around the house; helps his children with their homework; cleans his fish tank; shops and pays bills; fishes, watches movies and plays catch with his kids; goes to church on Sundays; and drives a car. (R. 134-138).

Physical therapy notes from Healthsouth, dated September 6, 2007, indicate that Plaintiff was having difficulty with his balance and gait due to his new prosthetic; and that he thought his pain was a 7 on a scale of 0 to 10, with 10 being the worst. (R. 201-203). However, treatment notes from November 2007 through January 2008 show that Plaintiff's conditions improved once treatment was administered. (R. 207-213). On November 28, 2007, Plaintiff's physical therapist at Healthsouth reported that Plaintiff received a new socket for his prosthetic and that his balance was good. (R. 211-212). The notes also state that Plaintiff stopped taking Oxycontin for his pain. (R. 211-212). On December 5, 2007, December 27, 2007, and January 4, 2008, Plaintiff reported that he had no pain. (R. 208-210).

On September 19, 2007, Dr. Robert Walsh, a state medical consultant, conducted a physical residual functional capacity assessment of Plaintiff. (R. 193-200). Dr. Walsh reported that Plaintiff could occasionally lift 20 pounds and frequently lift 10 pounds. (R. 194). He also stated that, in an eight-hour workday, Plaintiff could stand and/or walk for six hours, sit for six hours and engage in unlimited pushing or pulling. (R. 194). With regard to postural limitations, Dr. Walsh reported that Plaintiff could balance, stoop and occasionally climb ramps and stairs; but that he could not kneel, crouch, crawl or climb ladders, ropes and scaffolds. (R. 195). Finally, Dr. Walsh stated that Plaintiff should avoid all exposure to extreme cold and hazards such as machinery and heights. (R. 197). He assessed that Plaintiff could perform light work. (R. 198).

In a residual functional capacity assessment, dated January 12, 2009, Dr. Coplin reported that Plaintiff suffered from phantom pain, but that he showed a "good response" to pain management. (R. 214). He also stated that Plaintiff could only walk one city block without rest or severe pain; and that Plaintiff's pain and other symptoms were constantly severe enough to interfere with his attention and concentration at work. (R. 215). Dr. Coplin reported that Plaintiff could only sit for 30 minutes at one time, stand for 15 minutes, lift and carry 10 pounds and that he could never climb ladders. (R. 215-216). He concluded that Plaintiff would need a job that permits him to shift position at will from sitting, standing or walking, and that he would need to take unscheduled breaks during an eight hour work day. (R. 216).

At the hearing on July 1, 2009, Plaintiff testified that he suffers from constant phantom pain in his left leg; and that the pain feels a "real heavy electric current" running through his stump to the bottom of his foot. (R. 27). He stated that he takes Roxicodone, Oxycontin and Ambien daily, and that these drugs make him "relaxed and drowsy." (R. 27). With regard to functional limitations, Plaintiff testified that he could only sit for half an hour before his back starts hurting and his stump starts contracting. (R. 28). He also stated that he could only stand for 15 or 20 minutes at a time; and that, in an eight hour work day, he could sit for two or three hours and stand for three hours. (R. 28-29). Finally, Plaintiff reported that he can only walk about a block before his leg gives out or he feels too much pain. (R. 29-30).

Under questioning from the ALJ, Plaintiff stated that he cooks for himself and his family, cleans the house, helps his children with their homework and occasionally watches his grandson during the day. (R. 33). He stated, however, that it is hard for him to stand for long periods of time, and that he gets around the house primarily on crutches.

(R. 34). When he is cooking in the kitchen, he uses a wheelchair. (R. 34). Plaintiff testified that he enjoys fishing, watching movies and playing catch with his children, but that has trouble doing these things. (R. 34-25). He also shops for food and household goods, but takes as long as he needs to do so. (R. 34).

II. LEGAL STANDARDS

A. Establishing Disability

In order to be eligible for DIB benefits, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A person is disabled for these purposes only if his physical and mental impairments are "of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

Social Security regulations set forth a five-step, sequential evaluation procedure to determine whether an individual is disabled. See 20 C.F.R. § 404.1520. For the first two steps, the claimant must establish (1) that he has not engaged in any "substantial gainful activity" since the onset of his alleged disability, and (2) that he suffers from a "severe impairment" or "combination of impairments." 20 C.F.R. § 404.1520(a)-(c). The claimant bears the burden of establishing these first two ...


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