United States District Court, D. Nebraska
MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
WARREN K. URBOM, Senior District Judge.
John W. Combs filed a complaint on December 18, 2012, against Michael J. Astrue, who was then serving as Commissioner of the Social Security Administration. (ECF No. 1.) Combs seeks a review of the Commissioner's decision to deny Combs' application for (1) disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., and (2) Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C §§ 1381 et seq. The defendant has responded to the plaintiff's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 10-11.) In addition, pursuant to my order of March 20, 2013, (ECF No. 13), each of the parties has submitted a brief in support of his or her position. (See generally Pl.'s Br., ECF No. 14; Def.'s Br., ECF No. 19.) After carefully reviewing these materials, I find that the Commissioner's decision must be affirmed.
On June 15, 2009, Combs protectively filed applications for disability insurance benefits under Title II and SSI benefits under Title XVI of the Act. (See ECF No. 11, Transcript of Social Security Proceedings (hereinafter "Tr.") at 166-72.) After his applications were denied initially and on reconsideration, (id. at 91-94, 98-108) the plaintiff requested a hearing before an administrative law judge (hereinafter "ALJ"). (Id. at 26.) This hearing was conducted on August 9, 2011. (Id. at 27-48.) The ALJ ordered a consultative examination, and a supplemental hearing was held on January 5, 2012. (Id. at 49-84.) In a decision dated February 24, 2012, the ALJ concluded that Combs was not entitled to disability insurance benefits or SSI benefits. (Id. at 7-25). The Appeals Council of the Social Security Administration denied Combs' request for review. (Id. at 1-6.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Combs seeks judicial review.
II. SUMMARY OF THE RECORD
A. Medical Evidence
Combs alleged that his disability began on June 10, 2009. (Tr. at 10.) He was born on April 11, 1964, and was 45 years old on the date of the alleged onset of his disability. (Tr. at 18.) He has at least a high school education and is able to communicate in English. (Id.)
Prior to the alleged onset date, Combs sustained a work-related injury to his left shoulder on May 19, 2008, while working for Cyc Construction, Inc. (Tr. at 240.) An MRI on June 11, 2008, indicated an intrasubstance tear of his rotator cuff, and he had associated tendinitis. (Tr. at 240, 249.) Michael Morrison, M.D., recommended that Combs take part in outpatient physical therapy to improve range of motion and shoulder girdle strengthening and that he take antiinflammatory medication. Combs was restricted at work from using his arm to reach, lift, or carry. (Id.)
Combs saw Morrison on July 18, 2008, for continued pain on the outer aspect of his left upper arm. (Id. at 245.) He also reported that his left arm was shaking. (Id.) Morrison did not have any explanation for the shaking. Combs was advised to use a sling for comfort as needed. (Id.) Combs was later evaluated by neurology about numbness in his entire left arm. He was advised to resume rehabilitation and anti-inflammatory medication. (Id. at 243.) Morrison also completed an effusion (aspiration) of Combs' knee, and he was advised to use ice and return as needed. (Id. at 244.)
By August 15, 2008, Combs reported to Morrison that his shoulder pain had diminished. Morrison determined that Combs' left shoulder rotator cuff strength and partial tear had healed. (Id. at 242.) Combs was advised that he could return to work on August 18, 2008, without restriction. (Id. at 240.)
On March 5, 2009, Combs was diagnosed as being HIV positive. (Id. at 290.)
On June 11, 2009, while in Memphis, Tennessee, Combs was playing basketball when he heard a pop in his knee and he was unable to straighten it. (Id. at 265.) X rays showed a tiny bone fragment at the inferior margin of the patella, fluid in the joint capsule, and soft tissue swelling in the patellar bursa, indicating a possible injury to the patella tibial ligament. (Id. at 275.) Combs had surgery for a left patellar tendon rupture on June 12. (Id. at 265.) Combs was placed in a cylinder cast and was discharged the next day. He was allowed to bear weight as tolerated, but not to perform straight leg raises. He was given Percocet for pain. (Id. at 265.) At the same time, Combs complained of pain in his wrist, but X rays showed no bone, joint, or soft tissue abnormality. (Id. at 272.)
On a disability determination form for Social Security completed by Combs' sister on July 13, 2009, Combs indicated that he has nagging pain in his low back, arm, and left leg all the time which interferes with his sleep, and that he takes two naps of 20 to 30 minutes each day. (Id. at 185-86.) Medications do not help most of the time. (Id. at 186.) Combs indicated that he was able to do all types of work before his injury. (Id. at 187.) But at the time of his disability determination he needed help from his sisters and mother to bathe, put on his clothes and shoes, care for his hair, shave, and get up and down from the toilet. (Id. at 188.) Combs said he needed reminders to take care of his personal needs and grooming and to take medicine. (Id. at 189.) He did not prepare his own meals because of arm and leg pain, and he could not complete any household chores by himself. (Id.) He was living with his parents and did not have income. (Id.) Combs stated that his hobbies and interests were watching television, playing video games, and fishing, but said he had not fished since his injury. (Id. at 191, 203.)
At the time, Combs was using crutches. (Id. at 193.) He indicated that he was unable to stand for a long period of time, could not walk up and down stairs or any distance, could not do any yard work, and could not carry heavy loads. (Id. at 202.) He said he could walk about 10 minutes as long as he was wearing a knee brace. (Id. at 203.) He said he could sit for about 30 minutes and then had to stand because of his knee pain. (Id. at 203.) He could not drive, he said, because his knee was swollen, and he could not put any pressure on the knee. (Id. at 202.) Combs said he could run errands only if escorted by another person and he could ride in a handicapped cart. (Id. at 203.)
Combs said he suffered from dizziness, fatigue, and depression. (Id. at 204.) He said he was not able to run, play basketball, work, or ride his bicycle. (Id. at 205.) He was taking oxycodone, Tylenol, and Advil. (Id.) Combs said his knee pops and his legs feel heavy and go numb, making it difficult to stand, walk, or sit. Weather changes and cold weather could increase his symptoms. His symptoms improved if he elevated his leg, did stretching exercises, and rested. (Id. at 219.) The pain sometimes spread into his hips, he declared, and on a good day, his pain level was three out of 10, and on a bad day it was eight out of 10. He said he had two to three good days each week. (Id.)
On August 13, 2009, Combs saw T. Kevin O'Malley, M.D., in Omaha, Nebraska, about his knee surgery. At that time, Combs had full extension of his knee, but still had persistent effusion. He could do a straight leg raise with a brace on and flexed easily to about 40 or 50 degrees. (Id.). He also complained of shoulder pain, but because of the need to use crutches for his knee injury, the shoulder would be addressed in the future. (Id. at 303.) Examination of the left shoulder showed decreased range of motion with decreased internal and external rotation and abduction. He had tenderness over the coracoid process and over the distal clavicle. He had pain with internal and external rotation. His rotator cuff muscles appeared to be intact, and he had some weakness in his supraspinatus. (Id.) Combs was advised to continue physical therapy, and an MRI of the shoulder was planned. (Id. at 304.)
On September 16, 2009, O'Malley reported that Combs was able to do a straight leg raise and had no extensor lag. He had full extension of his knee and flexed to 90 degrees. He reported he still had some sensation of giving way in the knee, which O'Malley said was understandable due to the size of his significantly atrophic quadriceps. Combs also reported a recent fall when he was not wearing the brace. X rays showed that patellar height appeared to be unchanged. (Id. at 298.)
On the same date, Combs saw Jack A. McCarthy, M.D., about his left shoulder. (Id. at 299.) He had been able to return to fairly functional activity, but following a more recent fall, Combs noted some significant limitations in his ability to abduct his shoulder and to work out away from his body. He described most of his discomfort over the anterosuperior aspect of the glenohumeral joint. The physical exam showed no evidence of spasms or radiculopathy. Combs had mild discomfort with abduction and external rotation, but did not have any crepitation, swelling, and/or additional intraarticular changes. (Id.) He had some weakness to his rotator cuff, but no loss of rotator cuff function. An MRI showed no tear in the rotator cuff, but showed some tendinosis of the subscapularis as well as the supraspinatus. (Id.) The assessment was "left shoulder pain with possible SLAP versus anterior glenohumeral injury verus (sic) subscapularis injury." (Id.) McCarthy gave Combs an injection of Marcaine and Depo-Medrol and recommended that, after completing rehabilitation from his extensor mechanism reconstruction, further intervention for the shoulder might be considered. (Id. at 299-300.)
By October 14, 2009, Combs had full extension of the knee and could do a straight leg raise without difficulty. (Id. at 333.) He was directed to continue physical therapy. O'Malley said Combs had made very good progress and he had high hopes that he would continue to do well. (Id.) X rays taken on November 30, 2009, showed degenerative changes in the patellofemoral joint as would be expected with his significant crepitus. (Id. at 332.)
Combs began physical therapy on August 26, 2009, for left lower extremity decreased strength, decreased range of motion, and pain. (Id. at 301.) At the time, Combs was wearing an immobilizing brace and using a single crutch. He rated his pain at eight out of 10 and was taking prescription strength Tylenol for pain relief. He was also using ice each day for inflammation. (Id.) He was given instructions for home exercises including quadriceps strengthening, hip adduction and abduction, left ankle dorsiflexion stretch, and left hamstring stretch. (Id.) Combs cancelled two physical therapy appointments on September 14 and September 18 and failed to come to his appointments on September 11 and September 23. (Id. at 315.) As of September 25, he had attended two visits. Combs was making slow progress and he had a difficult time making it to physical therapy sessions. (Id.)
Combs missed an appointment on October 23, 2009. By October 26, Combs reported that he was no longer using a crutch, but he was still wearing a knee brace. (Id. at 336.) Combs attended physical therapy on November 11 and November 30, but he missed four subsequent visits and was discharged on January 22, ...