Morder v. Colvin

216 F. Supp. 3d 516, 2016 U.S. Dist. LEXIS 146611, 2016 WL 6191892
CourtDistrict Court, M.D. Pennsylvania
DecidedOctober 24, 2016
DocketCase No. 3:16-CV-213
StatusPublished
Cited by16 cases

This text of 216 F. Supp. 3d 516 (Morder v. Colvin) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morder v. Colvin, 216 F. Supp. 3d 516, 2016 U.S. Dist. LEXIS 146611, 2016 WL 6191892 (M.D. Pa. 2016).

Opinion

MEMORANDUM

Honorable Richard P. Conaboy, United States District Judge

I. Procedural Background.

We consider here Plaintiffs appeal from a decision of the Social Security Administration (“SSA” or “Agency”) denying his application for Disability Insurance Benefits (“DIB”). Plaintiff initially alleged a period of disability beginning June 30, 2011. (R.12). After appearing and testifying at a hearing before an administrative law judge (“ALJ”) on June 18, 2014, Plaintiff amended his alleged onset date to October 21, 2011. (Id.). The ALJ issued an unfavorable decision on July 9, 2014 (R.9-24) whereupon Plaintiff filed a Request for [518]*518Review with the Appeals Council. (R.7-8). The Appeals Council denied Plaintiffs request for review (R.6) and said denial constitutes a Final Decision of the SSA. Accordingly, this matter is properly before this Court pursuant to 42 U.S.C. § 405(g). The parties have briefed (Docs. 12-17 and 19) their respective positions and this matter is now ripe for disposition.

II. Testimony Before the ALJ.

A hearing was conducted by ALJ Reana K. Sweeney on June 18, 2014. Plaintiff was represented at the hearing by Attorney Steven M. Serra. The Plaintiff testified and additional testimony was taken from Michael Kibler, a vocational expert.

Plaintiffs testimony may be summarized as follows. He was born on August 10,1972 and was 41 years of age at the time of the hearing. He resides with his girlfriend and her daughter. He applied for unemployment compensation on June 20, 2011 and received unemployment compensation benefits until they were exhausted at the end of September, 2013. During this time he held himself out as available to work. He stated, by way of clarification, that he considered himself capable of performing only part-time driving jobs during that time frame. He also indicated that he applied for 10-20 jobs of this type while receiving unemployment compensation. (R.31-34).

Plaintiff also testified that he filed a workmen’s compensation case in which he alleged that he suffered a work-related injury on March 10, 2011. He explained that his original onset date in his Social Security application was June 30, 2011, the date that his employer no longer had part-time light duty work available for him. Plaintiff indicated further that he tried to perform light duty office work but he could not sustain it because he was unable to sit in a chair as the position required. His workmen’s compensation case settled on March 7, 2012, and he stated that he settled the case on the advice of his attorney. He could not recall whether he had filed workmen’s compensation eases before the claim he settled in March of 2012. The claim he settled was characterized as a low back strain. (R.35-37).

Plaintiff stated that he was 5' 7" tall and weighed about 195 pounds. He is right-hand dominant. He holds a valid driver’s license and has completed the twelfth grade. He is fluent in English and can do simple arithmetic. He has neither served in the military nor been incarcerated in the last 15 years. His work history includes employment at Sam’s Club, Costco, C & S Wholesale, and Central Pennsylvania Food Bank. He stated that he returned to work one time after October 21, 2011 and that his employer, for whom he drove a van, was Yellow Breeches Educational Center. The employment with Yellow Breeches began after his unemployment compensation ran out and continued through the end of 2013. During that time he worked 20 hours per week at $12.00 per hour. He never asked for full-time work and it was never offered him. He was still employed with Yellow Breeches at the time of the hearing but was not actively working because Yellow Breeches (a school) was off for the summer. (R.37-43).

Plaintiff stated that he had his first back surgery, a laminectomy in 2003. He had a subsequent back surgery, a fusion, later in 2003. The hardware from the fusion was removed in early 2004. He has had no additional surgery since 2004. Plaintiff has not had any inpatient hospitalizations due to his back symptoms since his onset date, October 21, 2011. He did undergo a course of physical therapy in 2011 before his onset date and an additional course of physical therapy after his onset date. These courses of physical therapy lasted several months. Plaintiff has had no additional physical therapy from the end of 2011 [519]*519through the end of 2013. He stated that, at one point, he used an H-Wave unit for a short time in 2011. He had some injections to alleviate his back pain at some point but could not recall if those were administered before or after his onset date. He uses a low back brace “a couple hours a day” when he is walking or sitting. He takes it off when he is reclining. (R.44-47).

Plaintiff stated that Dr. Morganstein had given him a regimen of exercise and stretching to perform. He did the exercises for a time but stopped because he felt that they weren’t working. He continued to perform the stretching as prescribed. When Plaintiff applied for jobs after settling his workmen’s compensation claim- he would indicate that he could not lift more than 10-15 pounds, could not frequently twist, kneel, bend or climb, could walk only short distances, could sit for only short periods, and needed to shift positions frequently. He testified that he spends 10 minutes twice each day walking on a treadmill. (R.48-49).

Plaintiff suffered his work-related injury while lifting a ten pound case. Subsequently, he treated with Dr. Morganstein. He saw Dr. Morganstein every 3-4 months but saw his physician’s assistant more frequently. He typically spends 10-15 minutes with Dr. Morganstein on those occasions that he sees him personally. The doctor typically measures his range of movement, revises his medications, and advises him on how to take them correctly. He denied receiving a full physical examination at any time from the physician’s assistant. (R.50-51).

Plaintiff described his “typical day” as follows. He arises at 5:30 a.m. and immediately takes a shower. He then watches television until it is time to transport the kids to school. He takes no medication before he returns home at approximately 8:00 a.m. He works a split schedule. The first shift is from 6:40 a.m. to 8:00 a.m. and the second shift is from 2:30 to 3:30 p.m. Between 8:00 a.m. and 2:30 p.m. he reclines on the couch and watches television. At 3:30 when he returns from his second shift he prepares dinner and then lays down again. When his girlfriend and her daughter return home after 5:00 p.m., he is unable to engage in any physical activities with them. He has taken Oxycodone to relieve his pain every day for 2-3 years. He takes 4-6 Oxycodone tablets each day. He takes the medication between shifts, that is between 8:00 a.m and 2:30 p.m each day. They help to alleviate his pain, but he does not think he could perform a full-time job because he would need to take the Oxycodone at work and feels that he could not work effectively while under the influence of the medication. He does not recall telling his physician about any side effects he experiences as a result of taking Oxyco-done. (R.52-58).

Upon questioning by his attorney, Plaintiff stated that he experiences drowsiness and dizziness as side effects of his medication. He said that both the Oxycodone and a muscle relaxant that he uses only at night produce these effects. He stated further that he had mentioned these side effects to Jamie Walters, Dr.

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Bluebook (online)
216 F. Supp. 3d 516, 2016 U.S. Dist. LEXIS 146611, 2016 WL 6191892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morder-v-colvin-pamd-2016.