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Sizer v. Colvin

United States District Court, Second Circuit

December 3, 2013

TIMOTHY SIZER, Plaintiff,
v.
CAROLYN W. COLVIN, and COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Plaintiff, Timothy Sizer ("Sizer" or "Plaintiff"), brings this action pursuant to the Social Security Act § 216(i) and § 223, seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence in the record and is contrary to applicable legal standards.

On July 10, 2013, the Commissioner moved for judgment on the pleadings pursuant to 42 U.S.C. § 405 (g) on the grounds that the findings of the Commissioner are supported by substantial evidence. On August 5, 2013 Plaintiff cross-moved for summary judgment seeking to reverse the Commissioner's decision judgment. For the reasons set forth below, this Court finds that there is substantial evidence in the record to support the Commissioner's decision. Therefore, the Commissioner's motion for judgment on the pleadings is granted and the Plaintiff's motion is denied.

PROCEDURAL HISTORY

On November 23, 2009, Plaintiff filed an application for DIB and SSI under Title II, § 216(i) and § 223 of the Social Security Act, alleging a disability since October 18, 2008 arising from a left hip injury. T. 194, 213. Plaintiff's claim was denied on January 19, 2010. T. 131-133. At Plaintiff's request, an administrative hearing was conducted on May 26, 2011 before an Administrative Law Judge ("ALJ") at which Sizer testified and was represented by counsel. T. 94-115.

On June 10, 2011, the ALJ issued a Decision finding that Sizer was not disabled within the meaning of the Social Security Act ("the Act"). T. 120-27. On October 24, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's Decision the final decision of the Commissioner. T. 1-3. This action followed.

BACKGROUND

Plaintiff is a 48 year old high school graduate who had worked doing janitorial and cleaning work for a maintenance company off and on from 1982 through December 31, 2006. T. 194-196. Plaintiff did general cleaning work including lifting and carrying old furniture and garbage which required him to lift 50 pounds or more frequently. T. 196.

In his application, Sizer claimed that he could not walk, sit or stand for a long period of time. T. 207. He was able to prepare hot meals for himself on a daily basis as well as do simple chores around the house such as wash the dishes. T. 208-09. Sizer claimed that he could only walk one block before needing to rest and uses a cane for longer distances. T. 212.

A. Medical History

X-rays taken of the left hip on January 15, 2007 showed "severe degenerative osteoarthritis with subchondral sclerosis and cyst formation and loss of joint space." T. 293. X-rays taken of the hip on May 14, 2008 showed severe degenerative osteoarthritis with loss of joint space superiorly. T. 274.

On December 11, 2008, Plaintiff was treated at the Strong Health Clinic for left hip pain. T. 237. X-rays from July, 2008 demonstrated arthritic changes in the left hip including subchondral sclerosis and subchondral cysts in both the femoral and acetabular side. T. 237. Plaintiff was diagnosed with "moderate to advanced left hip arthritis" and treated with conservative management including anti-inflammatories, and physical therapy. T. 237-38. Plaintiff was told that at some point in the future he would need surgery to include total joint arthroplasty. T. 238.

On March 31, 2009, Dr. Walter Beecher, a family medicine practitioner of Woodward Health Center began treating Plaintiff for left hip pain which Plaintiff claimed was worsening. T. 272. Examination showed Plaintiff's left hip was tender laterally and painful at flexion and external rotation. T. 272. Plaintiff was told to continue taking Ibuprofen and Flexeril three times a day and was referred for physical therapy. T. 272.

Dr. Beecher examined Plaintiff on October 22, 2009 for worsening left hip pain. T. 268. Sizer complained of steady ache, poor sleep and some instability with falls. He also claimed that Advil was not helping much. T. 268. Dr. Beecher advised Plaintiff to continue Ibuprofen and Flexeril three times a day and referred Plaintiff for more physical therapy. He also provided the written excuse requested by Plaintiff from the Department of Social Services ("DSS") work program. T. 268.

An Independent Medical Examination of Sizer was conducted on January 6, 2010 by Dr. Sandra Boehlert. T. 241-244. Plaintiff complained of left hip pain that throbbed with sitting, lying or standing too long. T. 241. He also reported shooting pain in this groin. T. 241. Plaintiff was taking Ibuprofen for hip pain and Albuterol for asthma. T. 241. Plaintiff reported that he was able to cook, clean, do laundry and shop as necessary. T. 241. He cooked six days a week, shopped twice a month and showered, bathed and dressed himself daily. T. 241.

Dr. Boehlert observed full flexion, extension, lateral flexion and rotary movement in the cervical and lumbar spine. T. 243. Plaintiff did have decreased range of motion in the left hip with interior rotation limited to 20 degrees, exterior rotation to 20 degrees but full flexion and extension. T. 243. Abduction was also limited to 20 degrees and there was marked pain. The right hip had full range of motion. T. 243. Although he appeared to be in no acute distress and had a normal gait, Sizer was not able to walk on his heels and toes without severe left hip pain. T. 242. He squatted only one third of the way down with left hip pain. T. 242. He needed no assistive devices and was able to get on and off the exam table without assistance. T. 242.

Dr. Boehlert diagnosed Plaintiff with "severe left hip pain, possible acute sprain" and "chronic musculoskeletal disease." T. 243. Dr. Boehlert concluded that Plaintiff had acute limitations which were moderate to marked to heavy exertion in a standing position. T. 243.

A Residual Functional Capacity Assessment Form was completed on January 15, 2010 by D. O'Connor. T. 245-250. Plaintiff was assessed to be able to lift occasionally 20 pounds, frequently lift 10 pounds and stand or walk a total of about six hours in an eight hour work day. T. 246. Plaintiff was assessed to be able to sit for a total of about six hours in an eight hour workday and have unlimited ability to push or pull. T. 246. The report noted that Plaintiff was diagnosed with moderate to advanced left hip arthritis, mild arthritic changes in the right hip and that he was treated conservatively with medication and physical therapy. T. 246. There were no postural, manipulative, visual, communicative nor environmental limitations found. T. 247-248. O'Connor noted Dr. Boehlert's finding that Plaintiff's claims of pain were not completely credible pointing out that he was only taking Motrin and Vicodin as needed and was not using a cane to ambulate despite his claim that he needed one. T. 249.

Plaintiff had an appointment with Dr. Beecher on February 16, 2010 to review paperwork. T. 320. Dr. Beecher provided Plaintiff with a prescription for more physical therapy and completed a DSS form. T. 320. Plaintiff was continued on Ibuprofen and Flexeril. T. 320.

Dr. Beecher examined Plaintiff on May 18, 2010 for hip therapy. T. 264. Plaintiff was taking Ibuprofen and Flexeril three times a day and was prescribed Vicodin to take as needed for severe pain. T. 264. Dr. Beecher referred Plaintiff to an orthopedist for evaluation and injection therapy. T. 264.

Plaintiff was examined by Dr. Beecher on July 15, 2010 for left hip pain. T. 260. The medical notes indicate that Plaintiff requested a doctor's excuse for DSS from a work requirement. T. 260. Dr. Beecher advised Plaintiff to continue with Ibuprofen, Flexeril and Vicodin as needed ...


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