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Joyce Genwright v. Michael J. Astrue

February 17, 2012



This matter is before the Court on Plaintiff's complaint (Doc. #1), seeking review of the final decision of the Commissioner of the Social Security Administration (the Commissioner) denying her claim for disability insurance benefits (DIB). Plaintiff filed a legal brief in support of the complaint (Doc. #10). Defendant filed his brief in support of the decision to deny disability benefits (Doc. #12). Both parties consented to the exercise of jurisdiction by a magistrate judge, and the case has been referred to the undersigned by the Order of Reference dated December 1, 2011 (Doc. #16). The Commissioner has filed the transcript of the underlying administrative proceedings and evidentiary record.*fn1

Upon review of the record, the Court found the issues raised by Plaintiff were fully briefed and concluded oral argument would not benefit the Court in its making its determinations. Accordingly, the matter has been decided on the written record. For the reasons set out herein, the decision is AFFIRMED.


Plaintiff, Joyce Genwright, was born in December of 1960 (Tr. 31). Thus, she was forty-eight (48) years old on the date of the ALJ decision. The record establishes that Plaintiff is left-hand dominant and lives with her dependent daughter (Tr. 32). Plaintiff earned an Associate of Arts degree in Criminal Justice and an Associate of Science degree in Paralegal Studies. Id. She has past relevant work as a document reviewer, legal clerk, mold machine operator, office clerk, process server, receptionist and substitute teacher (Tr. 45-49, 176).

On May 4, 2005, the initial alleged onset date, Plaintiff was involved in a motor vehicle accident in which she suffered a variety of injuries, including a dislocated left shoulder (Tr. 254). A CT scan taken on the same day as the accident showed "bilateral nasal bone fractures . . .[,] extensive amount of extraluminal air within the deep and superficial soft tissues of the neck . . . [and a] congenital fusion at C4-C6" (Tr. 256-57).

Plaintiff began treatment with Gary Kitay, M.D., of Jacksonville Orthopaedic Institute on July 7, 2005 and continued to see him periodically until July 12, 2006 (Tr. 297-356). A MRI of the left shoulder taken on July 21, 2005 showed post-traumatic changes without evidence of a rotator cuff tear (Tr. 260-61). After reviewing the results of the MRI, Dr. Kitay diagnosed Plaintiff with "[h]istory of left shoulder dislocation with bony Bankart [and] left frozen shoulder in the setting of axillary neuropathy*fn2 " and suggested a neurolysis of the left shoulder (Tr. 329-30). Plaintiff underwent the neurolysis and manipulation under anaesthesia in January 2006 (Tr. 297-300). Plaintiff saw Dr. Bruce Steinberg of the same practice on June 5, 2006, for a second opinion regarding further treatment options (Tr. 305-306). Dr. Steinberg recommended a second surgery, of which there is no record Plaintiff ever underwent.*fn3 Id.

Plaintiff attended physical therapy to increase her cervical and left shoulder range of motion (ROM) and to reduce pain from May 17, 2005 through July 6, 2005, under the order of Dr. Malozak, D.O. (Tr. 283-95). Apparently on Dr. Kitay's recommendation, Plaintiff continued physical therapy from July 7, 2005 until August 31, 2005 (see Tr. 264-82).*fn4 While Plaintiff's ROM improved during therapy, Plaintiff reported no relief from her pain. See id. On June 16, 2006, Dr. Kitay agreed Plaintiff could continue modified work and her prior work status of no overhead use and no lifting more than five pounds with the left arm" would remain in place (Tr. 303-04). On that date and again on July 12, 2006, Dr. Kitay found that Plaintiff had reached maximum medical improvement with a partial permanent impairment rating (PPI) of twenty-three percent (23%) (Tr. 302-04).

It should be noted that Plaintiff worked full-time as a receptionist during part of her treatment period with Dr. Kitay (see, e.g., 309, 316). Plaintiff made no changes in her duties after Dr. Kitay ordered work restrictions. See id. Furthermore, Plaintiff admitted to Dr. Kitay that she tolerated the work (Tr. 309) Presumably because of the substantial gainful activity (SGA) during this time, Plaintiff's counsel and the ALJ discussed amending the alleged onset date of the disability from the date of the accident to March 1, 2007, the date Plaintiff last worked at her receptionist job (Tr. 53-54)*fn5 . While the ALJ did not definitively rule on the change, his decision reflects the amended date (Tr. 13).

At the request of the Division of Disability Determination (DDS), Plaintiff presented to Lynn Harper-Nimock, M.D. for a consultation on July 16, 2007 (Tr. 358-64). Dr. Harper-Nimock diagnosed Plaintiff with degenerative joint disease of the cervical spine and left shoulder, status post rotator cuff surgery of the left shoulder and obesity (Tr. 360). She found Plaintiff had "moderate limitations for pushing, pulling, overhead lifting, and prolonged standing" (Tr. 360). Medical Consultant Sondra Waugaman filled out a Physical Residual Functional Capacity Assessment form on July 19, 2007, and "limited [Plaintiff's] lifting, carrying, pushing, and pulling to 20/10 lbs. and walking and standing to 6 hours" (Tr. 372).

The record shows Plaintiff next treated with Jorge Caballero, D.O., at the Family Medical Center from August 29, 2007 to February 12, 2009 (Tr. 436-61, 479-82). During this time, Plaintiff complained of left shoulder pain and limited mobility, depression, anxiety, and irritability. Id. On September 24, 2007, Dr. Caballero ordered x-rays of the cervical spine, lumbar spine, left shoulder, and left knee, then diagnosed C4-C6 congenital fusion, lumbar osteophytes, and joint space narrowing in the left knee (Tr. 449-51). Dr. Caballero recommended Plaintiff start another round of physical therapy. Id.

A MRI of the left shoulder was taken on January 15, 2008 showed "supraspinatus tendonosis without evidence of rotator cuff tear and no evidence of direct impingement by the acromion or acromioclavicular joint" (Tr. 439-40). It also showed a "blunted and somewhat thin anterior superior labrum, perhaps representing a normal anatomic variant or perhaps an old injury." Id. On January 31, 2008, Plaintiff returned to Dr. Caballero for a cortizone shot to relieve her left shoulder pain (Tr. 438,480). In March 2008, Plaintiff presented underwent EMG/NCV*fn6 testing, which is the most recent test of this type in the record (Tr. 436). The NCV was within normal limits, and the EMG showed "decreased recruitment but no denervation potentials." Id.

On February 3, 2009, Dr. Caballero wrote a narrative opinion letter to ALJ Droker (Tr. 462-63). Dr. Caballero set forth restrictive work limitations for Plaintiff, including no pushing or pulling, occasional to frequent reaching with the right arm only, no overhead work with either arm, no writing or typing, no lifting with the left arm and lifting only 5-10 pounds occasionally with the right arm. Id. He further restricted Plaintiff to working at face level only, with "very little flexion/extension or side rotation of the neck" and required that she keep a flexible work schedule to accommodate her frequent need to lie down. Id.

Dr. Caballero referred Plaintiff to Dr. Bahri for an orthopaedic evaluation in February 2009 (Tr. 483). Dr. Bahri ordered a follow-up MRI of the left shoulder, which showed "marked thinning of the supraspinatus and infraspinatus tendons, consistent with chronic tears" (Tr. 483-85). Based upon the MRI results, Dr. Bahri recommended surgery (Tr. 483). Plaintiff underwent an arthroscopy of the left shoulder with Fady El-Bahri, M.D., in September 2009, but the findings from that surgery are not included in the record (see Tr. 488). Plaintiff continued physical therapy and followed up with both Dr. Bahri and Dr. Caballero through the end of September 2009, where the record ends (Tr. 436, 488).

In May 2009, Plaintiff presented to Peter Knox, M.Ed., Psy.D., for a psychiatric consultation (Tr. 465). Dr. Knox diagnosed "major depression, somatization disorder (prominent hypochondriacal features), negativistic disorder, pain issues, [and] living and occupation issues" (Tr. 474). He found a past and current GAF of 50 (Tr. 475).*fn7 Dr. Knox found Plaintiff had minor limitations in understanding and remembering complex instruction, making judgments on complex work-related decisions, and carrying out complex instructions. Id. He also found Plaintiff had moderate limitations in interacting with the public, supervisors and co-workers, and responding appropriately to the usual work situations and changes in a routine work setting (Tr. 476).


Plaintiff protectively filed an application for DIB with the Social Security Administration on May 30, 2007 (Tr. 145-46). Plaintiff initially alleged an onset of disability of May 4, 2005. Id. At the administrative hearing, Plaintiff's counsel suggested amending the alleged onset of disability to March 1, 2007 due to Plaintiff's earnings in 2006 and 2007 (Tr. 53). Plaintiff alleged she was unable to work due to frozen left shoulder with nerve damage, neck stiffness, and a loss of ROM in the left shoulder (Tr. 211-18). The application was denied initially and upon reconsideration. An administrative hearing was held on February 26, 2009, but was continued without testimony to allow Plaintiff to seek a psychiatric evaluation (Tr. 64-65).

The final administrative hearing was held on October 20, 2009, in Jacksonville, Florida, before Administrative Law Judge (ALJ) Robert Droker (Tr. 30-61). Plaintiff appeared and testified at the hearing, as did vocational expert ("VE") Mr. Ted Mitchell (Tr. 30). Plaintiff was represented at the administrative hearing by attorney Lori Gaglione (Tr. 73). The ALJ issued the decision denying Plaintiff's claim for DIB on November 12, 2009 (Tr. 11-22). Plaintiff requested review of the hearing decision by the Appeals Council, but the request was denied (Tr. 1-5). Thus, the ALJ's decision became the final decision of the ...

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