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Wilkerson v. Colvin

United States District Court, D. Maryland, Southern Division

May 14, 2014

MICHAEL WILKERSON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THOMAS M. DiGIROLAMO, Magistrate Judge.

Michael Wilkerson ("Plaintiff") seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 10) and Defendant's Motion for Summary Judgment (ECF No. 12).[1] Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner's decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant's Motion for Summary Judgment (ECF No. 12) is GRANTED, Plaintiff's Motion for Summary Judgment (ECF No. 10) is DENIED, and the Commissioner's decision is AFFIRMED.

I

Background

Plaintiff was born in 1987, has a GED, and previously worked as a seasonal worker, cleaner, store stocker, and security guard. R. at 18, 60, 66. On May 18, 2010, Plaintiff applied for SSI, alleging disability beginning on September 9, 1987 (later amended to September 6, 2009), due to back injury and depression. R. at 13, 59, 164-70, 189. The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 171-75, 178-82. On May 14, 2012, ALJ Eugene M. Bond held a hearing in Washington, D.C., at which Plaintiff and a vocational expert ("VE") testified. R. at 186-99. On June 14, 2012, the ALJ issued a decision finding Plaintiff not disabled since the alleged onset date of disability of September 6, 2009. R. at 10-20. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on April 12, 2013. R. at 5-9, 185. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. § 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

On June 14, 2013, Plaintiff filed a complaint in this Court seeking review of the Commissioner's decision. Upon the parties' consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

II

Summary of Evidence

The ALJ noted in his decision that Plaintiff had fallen from a three-story building and had broken his back on September 6, 2009, "sustaining an L1 compression fracture to both anterior and posterior elements." R. at 15. While hospitalized, Plaintiff "underwent a T11 through L3 fusion with laminectomies on September 9, 2009." R. at 15. "Following the procedure, [Plaintiff] underwent physical therapy and occupational therapy which were prescribed." R. at 15. "On September 13, 2009, [Plaintiff] was doing well and ambulating to the bathroom. He had 5/5 strength in his legs bilaterally." R. at 15; see R. at 116-29.

On June 16, 2010, Plaintiff reported that "he no longer has symptoms in his lower extremities" and "stated that his spine does not cause him any significant pain, and he is doing well following his surgery." R. at 16; see R. at 132.

A. State Agency Medical Consultants

On August 10, 2010, S. Rudin, M.D., assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 136-43. Dr. Rudin opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling with the upper and lower extremities. R. at 137. He could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 138. Further, Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 139-40.

On February 3, 2011, T. Spurgeon, M.D., found insufficient evidence of a mental impairment. R. at 145-58. Dr. Spurgeon noted the lack of a current mental status examination and that Plaintiff was not cooperating with efforts to contact him. R. at 157.

B. James M. Weiss, M.D.

On March 23, 2011, Dr. Weiss, an orthopedic surgeon, noted the following:

[Plaintiff] has residual neurologic symptoms and chronic back pain. The likelihood is he has a nonunion because of his smoking. He certainly is disabled from the heavy type of labor that he does and should try to seek disability for this. He would have to have vocation retraining to do some type of sedentary work.... Stopping smoking would be... another... thing he could do to try to improve his chances of having the possibility of having some overall improvement.

R. at 162.

Almost a year later, on March 16, 2012, Dr. Weiss reiterated his opinion that Plaintiff is disabled from the heavy type of labor that he had done prior to his injury and this would be the case for the foreseeable future as he likely has a nonunion in his lumbar spine and ultimately if he were to stop smoking, likely would need to undergo revision surgery.

R. at 160. Sedentary work would be limited, "as he can only sit for about an hour and he does not have the education to perform ...


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