Wilson v. Astrue, Civil No. 4:11cv102

• Decision Date: 29 September 2012
• Docket Number: Civil No. 4:11cv102
• Parties: JERRY WILSON, Plaintiff v. MICHAEL J. ASTRUE, Commissioner of Social Security
• Court: U.S. District Court — Eastern District of Virginia

JERRY WILSON, Plaintiff

v.MICHAEL J. ASTRUE, Commissioner of Social Security

Civil No. 4:11cv102

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION

Decided: September 29, 2012

Decided: October 1, 2012

OPINION AND ORDER

This matter comes before the Court on Jerry Wilson's ("Plaintiff") objections to the Report and Recommendation of the Magistrate Judge.See generally Pl.'s Objs. to Rep. and Rec. of Mag. Judge, ECF No. 16.For the reasons stated herein, the Court: (1)REJECTS the Magistrate's Report and Recommendation, ECF No. 16;(2)DENIES the Plaintiff's Motion for Summary Judgment, ECF No. 9;(3)DENIES the Defendant's Motion for Summary Judgment, ECF No. 11;(4)REVERESES the Commissioner's disability determination; and (5)REMANDS the case for a rehearing pursuant to the Court's authority under 42 U.S.C. § 405(g).

I.PROCEDURAL BACKGROUND

Plaintiff filed an application for Disability Insurance Benefits on May 8, 2009(R. 124-131),¹ alleging disability since October 26, 2007 due to knee injury, back and neck pain, high blood pressure, and high cholesterol.R. 124, 165.The Social Security Administration deniedPlaintiff's application initially, R. 67-77, and on reconsideration, R. 78-89.Plaintiff requested and received an administrative hearing on August 9, 2010 before Administrative Law Judge ("ALJ")Tom Duann.R. 40-66.The ALJ issued a decision denying Plaintiff's claim on August 27, 2010.R. 14-24.On May 5, 2011, the Appeals Council denied Plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the Commissioner of the Social Security Administration ("Commissioner").R. 1-5.The Appeals Council did, however, receive and make part of the evidence Exhibits11E, 10F, and 11F. R. 4(referencing: (1)Exhibit11E, R. 208-13;(2)Exhibit10F, R. 428-71; and (3)Exhibit11F, R. 472-515).

Plaintiff brought an action under 42 U.S.C. § 405(g), seeking judicial review of the decision of the Commissioner that denied Plaintiff's claim for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act.Compl., ECF No. 1.Defendant filed an answer on September 15, 2011.Def.'s Answer, ECF No. 5.The action was referred to the United States Magistrate Judge Tommy E. Miller pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C),Rule 72(b) of the Federal Rules of Civil Procedure, andRule 72 of the Rules of the United States District Court for the Eastern District of Virginia on cross-motions for Summary Judgment.Order, ECF No. 7.On November 7, 2011, Plaintiff Wilson filed a Motion for Summary Judgment.Pl.'s Mot. for Summ. J., ECF No. 9.The Defendant followed with a response to Plaintiff's motion, and his own Motion for Summary Judgment, on December 6, 2011.Def.'s Mot. for Summ. J., ECF No. 11;Def.'s Mem. In Supp. of Mot. forSumm. J., ECF No. 12.The Plaintiff filed a response in support of his motion on December 21, 2011.Pl.'s Resp., ECF No. 13.

On July 2, 2012, Magistrate Judge Miller filed a Report and Recommendation whichrecommends that the final decision of the Commissioner be affirmed.Mag. Judge's Rep. and Rec. 29, ECF No. 14.Pursuant to 28 U.S.C. § 636(b)(1)(c), Plaintiff filed written objections to the Magistrate Judge's Report and Recommendation on July 17, 2012.Pl.'s Objs. to the Rep. and Rec. of the Mag. Judge, ECF No. 14.The Defendant responded to those objections on July 31, 2012.Def.'s Resp. to P.'s Objs. to the Rep. and Rec. of the Mag. Judge, ECF No. 16.

II.FACTUAL BACKGROUND

A.Medical Evidence in the Record

Plaintiff was born in 1961. R. 124.He graduated from high school, served in the U.S. Army for four years, and worked as a sheet metal mechanic for Northrop Grumman Shipbuilding ("Northrop") until October 26, 2007, when he sustained a left knee injury while at work.R. 137-40, 165-66, 302, 305, 393.Plaintiff received temporary total disability benefits through Workers' Compensation between October 30, 2007 and September 4, 2008, and temporary partial disability benefits beginning on September 5, 2008.R. 132-33.

On October 30, 2007, Plaintiff underwent an MRI of his left knee, which revealed evidence of a tear of the medial meniscus, a possible tear of the lateral meniscus, small joint effusion, advanced chondromalacia patella and patellofemoral degenerative changes, and intact ligaments.R. 307-08.

In November 2007, Plaintiff sought medical treatment for his left knee at York River Orthopaedic Clinic.R. 393.He was treated by Hugh M. Bryan III, M.D., an orthopaedic surgeon, who recommended that Plaintiff undergo a left knee arthroscopy.R. 390-92.

From November 13, 2007 to November 28, 2007, Plaintiff was assigned the following temporary restrictions: (1) no vertical ladders, inclined ladders, crawling, kneeling or squatting; (2) climbing stairs to and from the job only; and (3) occasional standing, twisting, and use of footcontrols.R. 297.

On December 4, 2007, Plaintiff underwent left knee arthroscopy and debridemen.R. 337, 388.It was noted that he suffered from moderate degenerative joint disease changes, particularly in the medial compartment, large osteophytes, and a degenerative tear of the medial meniscus.Id.From December 4, 2007 to January 3, 2008, Plaintiff was required to stop working completely.R. 294-95.

On January 3, 2008, Plaintiff was released to sedentary work only.R. 294, 386.Dr. Bryan completed a disabled parking placard application indicating that, from January 2008 to April of 2008, Plaintiff was unable to walk without the use of, or assistance from, any of the following: another person, brace, cane, crutch, prosthetic device, wheelchair or other assistive device.R. 293.

In follow-up examinations with Dr. Bryan in January and February 2008, plaintiff reported persistent pain and swelling, with slight improvement.R. 383, 386.Plaintiff attended physical therapy and was prescribed a cane, as well as Feldene, a nonsteroidal anti-inflammatory drug.R. 383-86.

In March 2008, Plaintiff reported doing some light activities, but ambulation was limited to 30 minutes before he had to take a break.R. 383.Dr. Bryan diagnosed Plaintiff with persistent pain post knee arthroscopy, and some underlying degenerative joint disease.R. 383.He allowed Plaintiff to gradually increase his activities, including increasing his driving restrictions to four hours per day.R. 383.

Plaintiff underwent physical therapy at Tidewater Physical Therapy from December 2007 through April 2007, at which time his range of motion was within normal limits, and his kneeflexion/extension strength was 4/5. R. 320-330.

Between March 2008 and May 2008, Plaintiff received a series of intraarticular steroid injections and supartz injections in his left knee.R. 381-83.In April 2008, Plaintiff was able to walk for one hour at a time and ascend stairs sequentially with pain after two to three flights.R. 382.He was unable to completely mow his lawn.R. 382.

In June 2008, Dr. Bryan noted that Plaintiff was doing reasonably well and had minimal knee pain.R. 380.Plaintiff reported that he was attempting to obtain light duties at work or find a new job.R. 380.In a Physical Abilities Form, dated June 11, 2008, Dr. Bryan opined that Plaintiff was temporarily restricted to: (1) lifting 20 pounds; (2) no climbing of ladders; (3) climbing stairs only to and from the job; (4) occasional (1-2.5 hours) crawling, kneeling, and squatting; (5) frequent (2.5-5.0 hours) bending, standing, twisting, and use of foot controls.R. 285.

In September 2008, based on Dr. Bryan's release to light duty work, Plaintiff was ordered by Workers' Compensation to work as a security guard for another employer because Northrop did not have light duty work available for him.R. 159, 165.Plaintiff worked part-time as a security guard from September 2008 to January 2009.R. 140-41, 157, 165-66.

In November 2008, Plaintiff complained of neck pain arising from his work in the security guard shack.R. 379.He also complained of pain radiating down his lower back.R. 378-79.Andrea B. Crawford, M.D., a colleague of Dr. Bryan, noted that Plaintiff had a prior MRI of his cervical spine in 2005, which had shown some spinal stenosis.R. 378.On examination, Plaintiff exhibited decreased range of motion in his neck with some tenderness just below his occiput.R. 379.He had no tenderness of his lower back.R. 378.Dr. Crawfordsuggested that Plaintiff consider putting "a rear view mirror up and get a swivel chair" to help him.R. 378.Dr. Crawford prescribed Soma, a muscle relaxant, in addition to Feldene, and advised Plaintiff to continue doing neck exercises.R. 375-76, 378.

In January 2009, Plaintiff reported episodes of fairly severe knee pain that occurred one to two times per week for a brief duration.R. 373.He also reported improvement with regard to his neck and lower back pain.R. 373.Dr. Bryan noted that Plaintiff was still working in a guard shack and that he had been able to do his duties reasonably well.R. 373.In a Physical Abilities Form, dated January 12, 2009, Dr. Bryan reported that Plaintiff was still restricted to: (1) lifting 20 pounds; (2) no climbing of ladders; (3) climbing stairs only to and from the job; (4) occasional (1-2.5 hours) crawling, kneeling, and squatting; (5) frequent (2.5-5.0 hours) bending, standing, and twisting.R. 281.

Plaintiff reported that he stopped working as a security guard in January 2009 because he was never called back by the employer to work or given additional hours.R. 157, 165.Plaintiff indicated that his medical condition did not cause him to stop working.R. 157.

In April 2009, Plaintiff complained of ongoing left knee pain.R. 371.Plaintiff could ambulate moderate distances, but experienced pain when doing yard work or a significant amount of walking.R. 371.Plaintiff's gait and station were normal.R. 371.X-rays of Plaintiff's left knee showed moderate...