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Manley v. Commissioner of Social Security

August 3, 2009

ROBIN C. MANLEY PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Robin C. Manley ("Plaintiff") brings this suit under section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. section 405(g), to review a final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for benefits. For the reasons discussed below, the Court affirms the Commissioner's decision.

I. FACTS

A. Procedural History

Plaintiff applied for Social Security Disability and Supplemental Security Income benefits on February 2, 2004. On April 20, 2004, the applications were denied. On June 23, 2004, Plaintiff filed an untimely request for a hearing. After demonstrating good cause for the late filing of her request for a hearing, a video teleconference hearing was held before an Administrative Law Judge ("ALJ") on November 9, 2005.

In a decision dated December 2, 2005, the ALJ found that Plaintiff was not disabled. On March 18, 2006, the Appeals Council denied the request for review. Plaintiff commenced the present action on May 19, 2006 seeking review of the Commissioner's decision. See Complaint (Dkt. No. 1).

B. Medical History

Plaintiff was born on January 17, 1962. She initially applied for Supplemental Security Income and Disability Insurance Benefits on February 2, 2004. T 40.*fn1 She has a high school diploma, but no further education beyond high school. Id. at 252. She has past relevant work as a cashier, fast food worker, packer, and circuit board maker. Id. at 253-55. In 2003, Plaintiff reported earning $314.13 for the year. Id. at 18.

Plaintiff alleges disability due to a torn right rotator cuff, depression, and asthma. In March of 2002, Plaintiff sustained an injury to her right shoulder while moving boxes at work. Notwithstanding the injury, Plaintiff continued to work. T 157-58. In May of 2002, while carrying a box of tomatoes, Plaintiff's arm gave way and she was taken to the Emergency Room. Id. at 134.

Plaintiff was referred to Dr. Reuben J. Washington. T 157. On June 3, 2002, Dr. Washington found Plaintiff to have a strain of the right shoulder with tendinitis and degenerative joint disease of the right AC joint. Id. at 158. Dr. Washington prescribed a course of physical therapy. Id. A follow-up exam on June 24 revealed that Plaintiff continued to experience pain. Id. Dr. Washington treated Plaintiff with injections of Aristospan and Marcaine, which did not prove to be helpful. Id. at 159. Dr. Washington ordered an MRI, which revealed impingement syndrome secondary to degenerative changes to the right AC joint. Id. In September 2002, Dr. Washington performed decompression surgery on Plaintiff's right shoulder, followed by physical therapy. Id. Dr. Washington opined that Plaintiff was "making very good progress with her physical therapy after her surgery" and released her for work on December 8, 2002. Id. Plaintiff returned to Dr. Washington complaining of some pain after returning to work. Plaintiff also complained of numbness and tingling in her fingers. Plaintiff was not seen by Dr. Washington after January 30, 2003. Id.

On February 19, 2003, Plaintiff was treated by Dr. Mark J. Costenbader. T 100. Dr. Costenbader performed an Arthrogram of the Plaintiff's right shoulder, which revealed a full thickness rotator cuff tear. Id. at 101. In October of 2003, Dr. Costenbader performed a right shoulder arthroscopy. Id. at 104. As of March 2004, Plaintiff's physical therapist concluded that Plaintiff "has progressed well," but noted that she continued to complain of pain. Id. at 108. It was noted that Plaintiff did not "want us to use modalities for pain because the pain is not that bad." Id. Plaintiff was prescribed an exercise program to help improve her range of motion. Id. Her range of motion was found to have "improved but is limited due to end range pain." Id.

Plaintiff was treated by Dr. Helen Wong from April 2004 through November 2005. Dr. Wong noted that the Plaintiff continued to have pain in her right shoulder, despite the two previous surgeries. See generally T 202-19. Dr. Wong recommended that Plaintiff continue with physical therapy and to continue taking Bextra, Flexeril, and Darvocet to manage her pain. Id. at 217, 219. At her January 14, 2005 visit, Plaintiff reported experiencing pain. Id. at 213. Dr. Wong recommended surgery. Id. Dr. Wong performed a right shoulder arthroscopy and debridement. Id. at 208. During the operation, Dr. Wong found the labrum to be intact, the biceps to be intact, evidence "of a minimal partial rotator cuff tear on the joint surface which is tagged," no full extension of the bursal site, an adequate previous acromioplasty, and "small calcification of the AC joint resection area." Id. Post surgery, Plaintiff continued to complain of right shoulder pain. Id. at 205. Dr. Wong prescribed a Transcutaneous Electrical Nerve Stimulation ("TENS") Unit for home use. Id. Dr. Wong's medical assessment, dated November 11, 2005, noted that Plaintiff could only occasionally lift and carry ten pounds, could stand and walk two hours in an eight hour work day, and could sit six hours in an eight hour work day. Id. at 231-32. Dr. Wong found that Plaintiff could occasionally use her right hand and frequently use her left hand for fine manipulation, could frequently use her left hand for simple grasping, could frequently feel, and could occasionally balance and stoop. Id. at 232-33. Dr. Wong found that Plaintiff could never kneel, crouch, crawl, climb, reach, push or pull. Id. at 233.

Plaintiff was treated by LCSW Catherine Bump and Dr. Royle Miralles at the Wayne Community Counseling Center ("WCCC") from September 2002 through November 2002, and again from May 2004 through January 2006. T 248. Plaintiff was diagnosed as having a depression disorder not otherwise specified. Id. The report from Ms. Bump and Dr. Miralles, dated January 23, 2006, noted "symptoms of sadness, anger, suicidal thoughts, lack of interest in activities and inability to sleep" related to Plaintiff's shoulder injury. Id. Ms. Bump and Dr. Miralles opined that Plaintiff's depression is a result of the pain from her shoulder injury and her "inability to do everyday activities and frustration that she can't work." Id. In an assessment dated November 4, 2005, Ms. Bump opined that the Plaintiff "would have difficulty in any job relating with others or work that increased her pain level." Id. at 228. Additionally, this assessment noted Plaintiff's "many medical limitations" and that Plaintiff's medications might affect her memory and thought organization. Id.

On March 24, 2004, Dr. Sandra Boehlert performed a consultative orthopedic examination of Plaintiff. T 185-88. Plaintiff complained of shoulder pain and noted a history of asthma. Id. at 185. Plaintiff was found to engage in numerous activities of daily living, including "cooking, cleaning, laundry, and shopping with help from her husband as she is unable to do any heavy lifting because she has pain and her husband also helps her with personal hygiene." Id. at 186. Upon examination, Plaintiff's gait was found to be normal. She was able to fully squat and walk on heels and toes without difficulty. Her stance was normal. She required no assistance getting on or off the examining table. She was able to rise from a chair without difficulty. Plaintiff's hand and finger dexterity was found to be intact, with full grip strength bilaterally. With respect to her cervical spine, Plaintiff was noted to have full flexion, extension, lateral flexion, and rotary movements bilaterally. Id. at 187. The right shoulder was noted to have limited forward elevation to 140E and abduction to 135E. There is normal adduction and internal/external rotation. The left shoulder has full ROM. Full ROM of elbows, forearms, and wrists bilaterally. No joint inflammation, effusion, or instability. The right shoulder is tender to palpation. Strength 5/5 in proximal and distal muscles. No muscle atrophy. No sensory abnormality. Reflexes physiologic and equal.

Id. at 187. Dr. Boehlert's diagnosis was "[r]ight shoulder pain with mild decreased range of motion, status/post rotator cuff repair times 2." Id. at 188. Plaintiff's prognosis was "fair." Id. It was concluded that "[t]he right upper ...


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