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Boomer v. Astrue

June 12, 2008


The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge


Plaintiff Walter O. Boomer (the "plaintiff") brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), codified at 42 U.S.C. §§ 405(g), seeking review of the final decision of the defendant Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying plaintiff's claim for disability insurance benefits under the Act. For the reasons stated below, the Commissioner's decision will be affirmed.


The following facts and procedural history are set forth in the plaintiff's brief (Doc. No. 5), and the court accepts them as true for the purpose of this appeal. Where these facts differ from the record, where facts are omitted, or in the interest of clarifying plaintiff's facts, the facts will be supplemented as needed by undisputed facts from the record.

Plaintiff developed pain in his right buttock, neck, back and right shoulder after a work related accident on June 22, 1999. Pursuant to the accident, plaintiff's treating orthopedist, Dr. Wirth, diagnosed a strain of the right rotator cuff, cervical facet dysfunction, and a strain of the lumbar spine. Wirth prescribed anti-inflammatories, muscle relaxants and physical therapy, as well as Motrin for pain relief, and kept plaintiff out of work.*fn2 Plaintiff discontinued the July 1999 physical therapy prescribed by Wirth as he found it had not helped him. Doc. No. 5 at 3. Plaintiff indicated that he continued with the physical therapy as long as he could, but it only aggravated his pain. R:145. The record reveals that he completed three physical therapy sessions between July 1 and August 16, 1999, when he was discharged from physical therapy on August 3, 1999 for non-compliance. R: 270-71.*fn3 Dr. Wirth referred plaintiff to physiatrist Dr. Ahmad A. Sultan, M.D. ("Sultan").

On August 3, 1999, Dr. Edwin Moehler ("Moehler"), the evaluating physician for the employer's Workers' Compensation carrier, diagnosed plaintiff as having a mild-to-moderate temporary disability, and advised plaintiff that he was capable of work which permitted him to alter his position between sitting, standing and walking as needed, limited carrying with his upper extremities, and plaintiff was not to be exposed to potential physical altercations. Doc. No 5 at 4. Moehler released plaintiff back to light duty work in August of 1999, with a notation that if plaintiff had not returned to full duty by October 1, 1999, he should be reevaluated. R:341. Plaintiff's work attempt proved unsuccessful, and plaintiff left his light duty assignment after just five days. R:420. On September 2, 1999, plaintiff saw orthopedist James E. Striker, M.D. ("Striker")for a second opinion. Striker stated that plaintiff's plain x-rays and his MRI scans of the sacrum and SI joints were essentially normal, there was no disc herniation, and that there was a very mild bulge in the cervical spine at C-6, but with no nerve entrapment. Striker opined that plaintiff was suffering from a contusion, noting that it would take plaintiff many months to fully recover, and suggested that plaintiff have a steroid injection. Id.; R:270-71.

On September 3, 1999, Sultan wrote Wirth that he had directed plaintiff to undergo physical therapy two to three times a week for four weeks. Plaintiff had been taking over the counter aspirin and Motrin; Sultan started plaintiff on Celebrex and Ultram. On October 29, 1999, Sultan reported that plaintiff had completed a course of physical therapy with limited improvement. Sultan also upgraded his medications to include Zanaflex. R:196. On March 20, 2000, Sultan reported that plaintiff's pain was reported as 7 on a scale of 1-10. Sultan opined that plaintiff's had failed to respond to conventional treatment, and Sultan deemed plaintiff's condition to be permanent and partial. R:194. On May 22, 2000, Sultan noted plaintiff's continuing lower back pain radiating down to his right lower extremity, with no new injury and no participation in physical therapy. Plaintiff reported his pain as an 8 on the 1-10 scale of pain. Sultan reported that he substituted Vioxx for the Daypro plaintiff was then taking. R:193.

On June 6, 2000, plaintiff was examined by the SSA's orthopedic consultant, Dr. Amelita Balagtas ("Balagtas"). Balagtas found that plaintiff had pain in the lower back, neck, right shoulder, but ruled out musculoskeletal origin and bursitis. Balagtas opined that plaintiff would have some limitations in activities that required bending, lifting, prolonged sitting and standing, overhead hand activities and activities requiring lifting, carrying, and reaching involving the right upper extremity. Doc. No.5 at 6. Plaintiff continued treatment with Sultan for ongoing pain. Sultan's office notes reiterated no change in plaintiff's condition, but that he was continuing with prescription medications for his pain.

An MRI of plaintiff's right shoulder performed on September 27, 2001, some fifteen months after the accident, showed hypertrophy of the AC joint and the suggestion of inflammation and possible impingement. R:235. An MRI of plaintiff's cervical spine performed on December 1, 2001 showed a herniated disc with mild mass effect upon the cervical cord and abutting the C6 nerve root, as well as a disc bulge at C6-7. R:221.

On November 19, 2002, plaintiff was seen by neurologist Dominic SetteDucati, M.D. ("Sette-Ducati"), who documented plaintiff's chronic right shoulder, knee, neck and low back pain, and found that plaintiff could lift and carry only up to twenty pound occasionally and less than ten pounds frequently, could stand and/or walk less than two hours a day, could sit for about six hours a day, could never climb, kneel or crawl, and was limited with regard to overhead reaching. Doc. No. 5 at 9. Sette-Ducati found that plaintiff walked with a lumbering gait, caused in part by overweight, and that his inability to bend down to more than 65 degrees was caused in part by his weight and pendulous abdomen. Sette-Ducati opined that "[t]his patient's diagnosis is not clear. It could be anything from hypothyroidism to fibromyalgia. He warrants further clinical evaluation." R:359.

Plaintiff continued treating with Sultan through 2002, complaining of chronic pain, and continued taking multiple prescribed medications, including the opioid Lortab (R:357) and chronic intake of Vioxx. R:380. Despite an early intolerance of Lortab by plaintiff (R:356), by March 29, 2004, plaintiff was still taking Lortab, and being counseled against its intake on a regular basis as it could cause dependency. R:402. In June of 2004, plaintiff was reporting the intensity of pain as 9 on the 0-10 scale of pain, and reporting that Lortab, Bextra, and Flexeril only gave him limited relief. R:404.

Plaintiff filed an application for a period of disability and disability insurance benefits on March 20, 2000, alleging multiple severe impairments resulting from the accident. After his claim was denied at the initial and reconsideration levels, a hearing was held in front of an administrative law judge ("ALJ") on February 14, 2001. On April 27, 2001, the ALJ issued an unfavorable hearing decision, finding that the plaintiff was not disabled within the meaning of the Act. Claimant successfully appealed the ALJ's decision, and this case was remanded to the ALJ for further proceedings. On June 6, 2001, while the administrative appeal from the first claim was pending, plaintiff filed a second application for disability insurance benefits. The second application was also denied at the initial level, and the two claims were consolidated.

A second hearing was held on February 23, 2003, and on June 14, 2003, the ALJ issued an unfavorable decision. Claimant filed a request for review of the ALJ's hearing decision and once again briefed his arguments to the Social Security Appeals Council ("Appeals Council"). On February 9, 2005, the Appeals Council denied review, and the June 14, 2003 unfavorable hearing decision became the Commissioner's final decision on the plaintiff's application of benefits. Plaintiff filed his appeal of the Commissioner's decision in this court on March 3, 2005.

In his appeal, the plaintiff raises three issues with the court. The plaintiff contends that (1) the Commissioner did not properly evaluate the plaintiff's credibility with regard to his allegations of disabling pain; (2) the Commissioner's residual functional capacity assessment is not supported by substantial evidence in the record; and (3) the Commissioner's conclusion that the plaintiff was not ...

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