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Beverly v. Colvin

United States District Court, D. Colorado

February 22, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff Ernie Beverly appeals Defendant’s (the “Commissioner”) final administrative decision denying his claim for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (the “Act”). Jurisdiction in this appeal is proper pursuant to 42 U.S.C. § 405(g). Oral argument would not materially assist in the determination of this appeal. After consideration of the briefs and the record, I affirm the Commissioner’s decision.

I. Statement of the Case

A hearing on Plaintiff’s claim was held before an administrative law judge (the “ALJ”) on January 3, 2013. On January 10, 2013, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act. The Appeals Council denied Plaintiff’s request for review thereby rendering the ALJ’s January 10, 2013 decision the Commissioner’s final decision for purposes of my review. Plaintiff timely filed this appeal seeking review of the Commissioner’s final decision.

II. Statement of Facts

A. Background

Plaintiff was born on September 4, 1958, making him 50 years old at the time of his alleged disability onset date of April 29, 2009. Administrative Record (“AR”) 26. Plaintiff has high school education and has worked in the past as a security guard and as a janitor. Id. Plaintiff alleged disability due to a shoulder injury suffered on the job. AR 241.

B. Relevant Medical Evidence

Plaintiff’s November 20, 2008 on-the-job, left shoulder injury was first treated with physical therapy. AR 532-545. Plaintiff had surgery on his left shoulder on April 30, 2009 but reported that the surgery failed to improve his symptoms. AR 320. On September 14, 2009, Plaintiff was assessed with persistent pain and decreased range of motion in his left shoulder. Id. An MRI showed evidence of subacromial bursitis; anterior acromial spur; acromioclavicular arthritis; and an inferiorly directed distal clavicle spur. AR 308.

On December 1, 2009, Michael Hewitt, M.D., performed an arthroscopy with revision subacromial decompression, distal clavicle coplaning, and superior labral debridement on Plaintiff’s left shoulder. AR 308. Plaintiff continued with physical therapy after the December 1, 2009 shoulder surgery but was no longer improving as of March 25, 2010. AR 326 - 401.

In April of 2010, Plaintiff was evaluated by Albert Hattern, M.D., in connection with his workers’ compensation claim. With respect to Plaintiff’s work capabilities, Dr. Hattern referred to a functional capacity evaluation completed by Select Physical Therapy on April 19, 2010. AR 549. This evaluation stated that Plaintiff could frequently reach in all directions. AR 552.

Plaintiff reported right knee pain in October of 2010, and an x-ray showed “[s]uperficial soft tissue swelling overlying the anterior proximal tibia” that “could represent bursitits” and “[c]orticated fragment likely accessory ossificiation center or old truama.” AR 657 & 659. X-rays were again taken of Plaintiff’s right knee, as well as his left toe and shoulder in September of 2012. AR 598-600. These x-rays showed no acute osseus abnormality or significant degenerative change in Plaintiff’s right knee (AR 599); moderate degenerative change in Plaintiff’s left toe (AR 598); and the evolution of Plaintiff’s “degenerated left AC joint ... from a pattern of cortical irregularity on either side of the joint to a smoother appearance of the cortex with minimal penciling of the lateral clavicle” in Plaintiff’s left shoulder (AR 600).

At a consultative exam performed by Jennifer Lomonaco McClean, M.D., on June 1, 2011, Plaintiff reported that he was able to cook, clean, and care for himself and responded appropriately during the exam. AR 579-80. Dr. McCLean opined that Plaintiff had no manipulative restrictions with his right arm and could have “occasional activity” with his left arm but was “unlikely to be able to participate in any overhead activity.” AR 583. Dr. McClean further stated that she did not question Plaintiff’s ability to participate in a complex or stressful work environment. Id.

C. Plaintiff’s Disability Hearing

A hearing was first scheduled on Plaintiff’s disability claim for October 15, 2012 but was continued to January 3, 2013 so that Plaintiff could obtain new counsel. AR 34-5. At the hearing on January 3, 2013, Plaintiff testified that his ability to work was affected by his left shoulder that he injured on the job and by pain in his right knee and left toe. AR 47- 50. Plaintiff testified that he was performing his current, part-time job as a janitor by using his right arm only and that he had to take 15-30 minutes breaks every one and a half hours during his five hour shift. AR 63-64. Plaintiff further testified that he was in special education ...

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