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Moaty v. Colvin

United States District Court, E.D. Virginia, Alexandria Division

July 6, 2015

KHALED M. ABDEL MOATY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

MEMORANDUM OPINION

JOHN F. ANDERSON, Magistrate Judge.

This matter is before the court on cross-motions for summary judgment. Plaintiff seeks judicial review of the final decision of Carolyn W. Colvin, Acting Commissioner of the Social Security Administration ("Commissioner"), denying plaintiff's claim for disability insurance benefits under Title II of the Social Security Act. The Commissioner's final decision is based on a finding by the Administrative Law Judge ("ALJ") and Appeals Council for the Office of Disability Adjudication and Review ("Appeals Council") that claimant was not disabled as defined by the Social Security Act and applicable regulations.[1]

On April 28, 2015, plaintiff filed a motion for summary judgment along with an incorporated memorandum in support. (Docket no. 17). Thereafter, defendant submitted a motion for summary judgment (Docket no. 18), a memorandum in support (Docket no. 19), and a memorandum in opposition (Docket no. 20). The two briefs submitted on behalf of the Commissioner are identical. (Docket nos. 19, 20). The plaintiff having chosen to forego submitting a reply brief, the court finds this matter ripe for disposition. For the reasons set forth below, plaintiff's motion for summary judgment (Docket no. 17) will be denied; the Commissioner's motion for summary judgment (Docket no. 18) will be granted; and the Commissioner's final decision will be affirmed.

I. PROCEDURAL BACKGROUND

Plaintiff submitted his application for disability insurance benefits on June 30, 2011, alleging a disability onset date of May 27, 2011. (AR 202). Plaintiff's application also indicated that plaintiff filed (or intended to file) for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.[2] On October 12, 2011, the Social Security Administration sent plaintiff a notice of disapproved claim that provided, in part: "We are writing about your claims for Social Security and Supplemental Security Income (SSI) disability benefits. Based on a review of your health problems you do not qualify for benefits on either claim." (AR 102-07).

On November 9, 2011, plaintiff signed a form entitled "Appointment of Representative, " authorizing Julie H. Heiden, Esq. to act on plaintiff's behalf with respect to "claim(s) or asserted right(s) under: Title II (RSDI) [and] Title XVI (SSI)." (AR 109). Counsel submitted this form to the Social Security Administration along with a request for reconsideration on November 9, 2011. (AR 109, 112). On March 7, 2012, after conducting an independent review of the available medical evidence, the Social Security Administration found that the previous determination denying plaintiff's claim was proper. The notice of reconsideration explained plaintiff's ability to appeal the decision to an ALJ within 60 days. (AR 113).

Plaintiff's "Request for Hearing by Administrative Law Judge" was received by the Office of Disability Adjudication and Review on May 7, 2012. (AR 120). Following a conversation with the plaintiff, the Social Security Administration summarized the relief sought as follows:

I disagree with the determination made on my claim for Disability-Work or Child Benefits because I do not believe the full nature and extent of my condition was considered nor was my complete medical file reviewed when the determination was made regarding my eligibility for disability benefits.

(AR 121). Thereafter, the Social Security Administration scheduled a hearing on May 29, 2013 in Washington, D.C. (AR 130), subsequently amended to June 17, 2013 (AR 148), and again to September 9, 2013 (AR 178). During the hearing on September 9, 2013, plaintiff provided testimony at the direction of counsel and answered questions posed by the ALJ. (AR 31-60). A vocational expert appeared by phone. (AR 34). On October 15, 2013, Judge Thawley issued a written opinion denying plaintiff's claim for disability insurance benefits under Title II of the Social Security Act. In reaching this decision, the ALJ concluded that plaintiff had not been under a disability within the meaning of the Social Security Act (sections 216(i) and 223(d)) from May 27, 2011 through October 15, 2013. (AR 13-25).

On December 13, 2013, plaintiff filed a request for review with the Appeals Council, claiming that the ALJ

erred in finding the Claimant does [not] have an impairment or combination thereof that does meet the severity of the listed; erred in finding the Claimant has residual functional capacity to perform light work, erred in finding there are jobs that exist in significant numbers the Claimant could perform; and erred in finding the Claimant has not been under a disability from May 27, 2011 to present.

(AR 8). The Appeals Council denied plaintiff's request for review on November 17, 2014. (AR 1-3). As a result, the ALJ's decision became the final decision of the Commissioner. As stated in the "Notice of Appeals Council Action, " plaintiff was given sixty (60) days to file a civil action challenging the decision. (AR 1-3). The notice also provides: "We assume you receive this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period." (AR 2). On January 21, 2015, plaintiff filed this civil action seeking judicial review of the Commissioner's final decision. (Docket no. 1). On May 7, 2015, an order of referral was entered following the parties' consent to the exercise of jurisdiction by a United States Magistrate Judge. (Docket nos. 22, 23). This case is now before the court on cross-motions for summary judgment. (Docket nos. 17, 18).

II. STANDARD OF REVIEW

Under the Social Security Act, the court's review of the Commissioner's final decision is limited to determining whether the decision was supported by substantial evidence in the record and whether the correct legal standard was applied in evaluating the evidence. See 42 U.S.C. ยง 405(g); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hays, 907 F.2d at 1456 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record, or where the ALJ has made an error of law, the district court must reverse the decision. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

In determining whether the Commissioner's decision is supported by substantial evidence, the court must examine the record as a whole, but may not "undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (alteration in original) (citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). The Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. See Perales, 402 U.S. at 390. Moreover, the Commissioner is charged with evaluating the medical evidence and assessing symptoms, signs, and medical findings to determine the functional capacity of the claimant. See Hays, 907 F.2d at 1456-57. Overall, if the Commissioner's resolution of conflicts in the evidence is supported by substantial evidence, the district court must affirm the decision. See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).

III. FACTUAL BACKGROUND

A. Plaintiff's Age, Education, and Employment History

Plaintiff was born in 1965 and was forty-eight years old at the time of the ALJ's decision. (AR 24). Plaintiff was raised and educated in Egypt, where he completed four years of college. (AR 48, 241). In September 1991, plaintiff immigrated to the United States and began working for his uncle at a local food store. Plaintiff later worked as a butcher and "meat manager" at various retail food stores from 1993 to 2011. (AR 254). Plaintiff's primary responsibilities included processing deliveries, assisting customers, and managing other employees. (AR 37). In January 2011, plaintiff began experiencing symptoms associated with vertigo and sought treatment once those symptoms began affecting his ability to work. (AR 365). Medical records indicate that plaintiff stopped working in May 2011 due to dizziness, tinnitus, and recurrent falls. (AR 240, 397-98).

B. Summary of Plaintiff's Medical History[3]

A review of the submitted medical records indicates that plaintiff began experiencing some form of physical impairment following a work-related injury on July 4, 2006. (AR 331). Subsequent physical examinations and MRIs revealed a labral tear of the right shoulder and a meniscus tear in the right knee. (AR 331). Plaintiff attempted non-surgical treatment through medication and physical therapy until September 21, 2006, when plaintiff underwent an arthroscopic procedure to repair the medial meniscus in his right knee. (AR 321). Plaintiff made slow but significant progress through physical therapy and was cleared to return to full-duty work after reaching "maximum medical improvement" on March 12, 2007. (AR 330-31). Plaintiff also achieved full range of motion in the right shoulder with no instability and no impingement. (AR 330). In a report dated March 28, 2007, Marc B. Danziger, M.D. ("Dr. Danziger") indicated that the right shoulder could become symptomatic, but concluded that further medical treatment was not necessary at this time. (AR 332).

Despite several physical examinations indicating medical improvement, plaintiff continued to report joint pain in his right knee, right shoulder, and lower back throughout 2007 and 2008. (AR 334-50). Beginning in May 2007, plaintiff complained of recurring joint pain in both his right knee and right shoulder. (AR 333). Shortly thereafter, a second MRI of plaintiff's right knee revealed a re-tear of the medial meniscus and a small lateral meniscus tear. (AR 334). Dr. Danziger suggested an arthroscopic procedure to address the re-tear, which was completed on July 26, 2007. (AR 334-35). Plaintiff made significant progress during the recovery period and expected to return to full-duty work in September 2007. (AR 336).

On September 4, 2007, plaintiff began discussing options related to the surgical repair of his right shoulder, which was diagnosed as a superior labral tear from anterior to posterior ("SLAP") and rotator cuff tendonitis. (AR 337, 340). On November 27, 2007, Dr. Danziger recommended addressing those injuries through a right shoulder arthroscopy. (AR 340). During this time, plaintiff's employer required a full-year of work before allowing medical leave. (AR 341). As a result, plaintiff continued light duty deskwork until coverage for the surgery and subsequent medical leave could be obtained. (AR 341-42). On March 13, 2008, plaintiff underwent arthroscopic surgery on his right shoulder. (AR 343). Plaintiff successfully completed physical therapy, obtaining nearly full range of motion by May 20, 2008. (AR 346). Plaintiff's right shoulder reached "maximum medical improvement" in July 2008, while treatment continued to focus on medial joint line tenderness in his right knee. (AR 347).

Despite improvement in the right shoulder, plaintiff continued to experience medial joint line pain in his right knee. (AR 345-47). A re-tear of the meniscus was suspected, but an MRI revealed only a questionable lateral meniscus tear with all other major ligaments intact. (AR 346). On July 11, 2008, x-rays confirmed cervical disc narrowing and aggravation of underlying degenerative disc disease in plaintiff's neck with radiculopathy. (AR 348). Plaintiff returned for a follow-up evaluation on July 22, 2008 to discuss alternative treatment options, including an MRI of the neck and epidural steroids. (AR 348-49). On August 5, 2008, Dr. Danziger ordered an MRI of the lower back and cervical spine to confirm a diagnosis of degenerative disc disease. During this time, medical records indicate that plaintiff spent several months either on leave or performing "light work" in other departments. (AR 347).

The administrative record contains limited references to plaintiff's medical treatment during 2009 and 2010. As a result, a summary of relevant medical records has been limited to the information available. Upon referral by his primary care physician, plaintiff presented to the Colon, Stomach, & Liver Center, LLC and the Loudoun Endoscopy Group on October 20, 2010 with complaints of painful bowel movements and bloody stool. (AR 394). Although the initial physical exam was unremarkable, the attending gastroenterologist recommended a colonoscopy "to rule out any IBD or malignancy." (AR 394-95). The procedure was performed on December 9, 2010 without complication and plaintiff was discharged with treatment instructions related to internal hemorrhoids. (AR 395). Another post-operative entry reveals that plaintiff was prescribed 10 mg of Bentyl following the procedure on December 9, 2010. (AR 393). Lastly, a letter provided by the Virginia Spine Institute indicates plaintiff sought consultation for "acute onset of back pain while at work approximately one year ago in February 2010... [but] did not seek further care as he thought it would get better." (AR 437).

On March 22, 2011, plaintiff presented to Daniel Hwang, M.D., ("Dr. Hwang") an ear, nose, and throat specialist, for a physical examination. (AR 372-74). Treatment notes reveal that plaintiff complained of "dizziness with head movement, right side tinnitus, [and] hearing loss for several years" and was referred to a neurologist and an audiogram and ENG test were ordered. (AR 373-74). On April 4, 2011, Robert Richard, M.D. ("Dr. Richard") conducted a comprehensive neurological examination at the Neurology Center of Fairfax, Ltd. (AR 464). The examination revealed vertigo when moving from a right supine to vertical position that did not extinguish on subsequent retesting, potential episodic reduced hearing in the right ear, and no observable nystagmus, with the remainder of the exam categorized as "normal." ( Id. ). Dr. Richard instructed plaintiff to return for a ...


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