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Jarvis v. Colvin

United States District Court, D. Maryland, Southern Division

September 27, 2016

DEREK N. JARVIS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          THOMAS M. DIGIROLAMO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff pro se Derek N. Jarvis[1] 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 applications for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 20), Defendant's Motion for Summary Judgment (ECF No. 21), and Plaintiff's Opposition to Defendant's Motion for Summary Judgment (ECF No. 23).[2] 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. 21) is GRANTED, Plaintiff's Motion for Summary Judgment (ECF No. 20) is DENIED, and the Commissioner's final decision is AFFIRMED.

         I Background

         Plaintiff was born in 1960, has two years of a college education, and previously worked as a customer service representative. R. at 19, 298, 303. Plaintiff protectively filed applications for DIB and SSI on July 28, 2011, alleging disability beginning on October 23, 2009, due to back, neck, and knee pain from a motor vehicle accident. R. at 18, 266-74, 294, 297. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 87-124, 131-55. On February 19, 2014, ALJ Eugene Bond held a hearing in Washington, D.C., at which Plaintiff pro se and a vocational expert (“VE”) testified. R. at 26-42. On March 28, 2014, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of October 23, 2009, through the date of the decision. R. at 11-25. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on June 11, 2015. R. at 1-7. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).

         On July 29, 2015, Plaintiff filed a pro se 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

         A. Opinion Evidence

         Following Plaintiff's motor vehicle accident on October 23, 2009, Joel Fechter, M.D., on December 18, 2009, examined Plaintiff (R. at 363-66, 384-86, 395-97, 400-02), who complained of neck and low back pain, as well as numbness and tingling in the left upper extremity. R. at 364, 384, 395, 400. The ALJ noted in his decision:

[Plaintiff] reported using Motrin for pain relief. On examination, Dr. Fechter noted tenderness to the paraspinal muscles, as well as the midline bilaterally in the lumbar and cervical spine, and range of movement with pain in both areas. X-rays revealed “reversal of the normal cervical lordosis and some diffuse mild disc space narrowing” in the cervical spine and “mild spur formation” at ¶ 4 and L5 in the lumbar spine. Dr. Fechter assessed [Plaintiff] with cervical and lumbar strains and recommended physical therapy, as well as use of Ibuprofen and Fexmid.”

R. at 18.

         On October 19, 2011, Doriscine Colley, M.D., conducted a consultative musculoskeletal examination of Plaintiff (R. at 353-58):

[Plaintiff] presents with persistent lower back and neck pain but also reports knee and a shoulder pain. He states these symptoms stem from being in multiple auto accidents between 1987-2009. He underwent a brief courses [sic] of therapy after each accident and may have had some x-rays but never told that he needed surgery or blocks. He denies having had any MRIs. He states he would get better after each accident but his symptoms would soon flare up again. His most recent accident was in October 2009 and he reports having had a cervical and lumbar spine x-rays which revealed arthritic changes as well as bone spurs in the lumbar spine. He reports slipping on some snow in late 09 which resulted in a [right] knee injury. During that time he experienced some swelling of that knee. He states he was able to undergo some therapy for the knee but his knee never improved. More recently he reports [right] heel and [left] shoulder pain which has not been evaluated.
He has been diagnosed with mild kidney failure since 1992 but it has not gotten worse, which [Plaintiff] attribute[s] this to taking alternative or homeopathic regimen. He is not taking any prescribed medications. He is not under doctors [sic] care at this time because he does not have any health coverage. He reports sensory changes described as tingling in the base of the neck and sometimes into the [left] fingers. He denies bowel or bladder changes. He has [a] back and or knee brace which he did not wear today. Functional limitations expressed by [Plaintiff] include reaching, lifting, bending, walking more than 2 blocks, standing more than 5 minutes, sitting more than 60 minutes, [and] lying more than 60 minutes. On the scale of 0 to 10 with zero being pain free and 10 being excruciating pain, [Plaintiff] expresses his current pain level at 9-10/10 for the neck and back, 7-8 for the [right] heel and only expresses discomfort not pain in the [right] knee. He is presently taking [over-the-counter] pain medications. There are no medical records to review.

R. at 353. On examination, Dr. Colley noted Plaintiff's “[n]ormal gait and station with good cadence and foot placement[, ] i.e. heel-toe movement.” R. at 354. “No limp. [Plaintiff] is able to come up on his heels and toes without difficulty. [Plaintiff] demonstrated an erect and functional posture. No ambulatory aide [sic] required.” R. at 354. Dr. Colley also noted a negative result on straight-leg-raise testing.[3] R. at 354. Dr. Colley further evaluated Plaintiff's functional status:

[Plaintiff] able to sit, stand, and go from supine to prone and back to standing independently. He self limited with all lifting on the [right] and avoid lifting using the [left] upper limb. He was able to bend forward but did not pick up light stool. He was able to squat, stoop and carry light objects. He is able to go up and down stairs with railing independently using a normal alternating pattern.

R. at 354. Dr. Colley opined that, “[d]ue to the reported underlying mild Kidney Failure, his medications would have to be chosen carefully.” R. at 355. The ALJ noted that “Dr. Colley found no neurological deficits, loss of strength, or limitation of range of movement. She opined that [Plaintiff] ‘most likely' had some underlying degenerative changes, but remained ‘very functional.'” R. at 18; see R. at 354-55.

         On October 28, 2011, a state agency medical consultant, Nisha Singh, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”). R. at 90-92, 97-99. Dr. Singh opined that Plaintiff could (1) lift and/or carry fifty pounds occasionally and twenty-five 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. R. at 91, 98. Because of his low back and right knee pain, Plaintiff occasionally could climb, stoop, and kneel, and he could balance, crouch, and crawl without limit. R. at 91-92, 98-99. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 92, 99. Dr. Singh opined that Plaintiff's statements were partially credible. R. at 92, 99. On May 14, 2012, another state agency consultant, Bert Spetzler, M.D., found that Plaintiff's impairments were not severe. R. at 110, 120.

         On February 23, 2012, Plaintiff was involved in another motor vehicle accident. R. at 360. At an urgent care center the following day, Ishtiaq Malik, M.D., treated Plaintiff, who complained of back and shoulder pain. R. at 359-62. Plaintiff did not complain, however, of any foot symptoms; tingling or numbness; or knee, neck, leg, or arm pain. R. at 360.

         B. Hearing Testimony

         1. ...


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