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McKay v. Colvin

United States District Court, D. Massachusetts

June 30, 2014

KENNETH McKAY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner Social Security Administration, Defendant.


PATTI B. SARIS, Chief District Judge.


Plaintiff Kenneth P. McKay moves to reverse the Commissioner's denial of his application for Social Security Disability Insurance benefits under 42 U.S.C. ยง 405(g), arguing that the Administrative Law Judge ("ALJ") erred by failing to find that plaintiff's left shoulder impairment was a disabling impairment. Defendant moves to affirm the decision of the Commissioner. The Court DENIES both plaintiff's Motion to Reverse (Docket No. 15), and defendant's Motion to Affirm (Docket No. 20). The Court VACATES the Commissioner's decision that plaintiff is not disabled under the Social Security Act, and the case is REMANDED for further proceedings consistent with this order.


Plaintiff was twenty-eight years old when he filed his application for Social Security Disability Insurance benefits on December 10, 2009. R. 18 (Docket No. 14). He had previously worked as a personal care attendant, delivery driver, metal worker, retail manager, security guard, laborer, store clerk, and dishwasher. Id . Plaintiff alleged that his disability made him ineligible to work beginning December 4, 2009, due to rheumatoid arthritis of the spine and multiple disc herniations. R. 70. His initial request was denied. R. 70-72. Plaintiff alleged worsening pain and asthma as the basis for disability in his request for reconsideration, which was denied on November 2, 2010. R. 74-76. On August 22, 2011, roughly three months before his administrative hearing, he was in a motor vehicle accident that hurt his left shoulder. R. 396-97.

A. Medical History

Plaintiff's shoulder impairment is the main issue on review before the Court.[1] At 1:30 p.m. on August 22, 2011, plaintiff arrived at the North Shore Medical Center/Salem Hospital Emergency Department after a motor vehicle accident, complaining of pain in his left shoulder. R. 396. The "ED Physician Documentation" notes indicate that his symptoms were moderate at worst but "aggravated by movement." Id . After an exam, the physician concluded that plaintiff's "[range of motion] [was] painful, with all movement, " and that he had "tenderness over the deltoid, left side." Id . Plaintiff's X-ray showed "no fracture or dislocation, " and the "[s]oft tissues, bony structures and joint spaces [were] normal." R. 472. Plaintiff was discharged with a diagnosis of shoulder sprain, placed in a sling, and told to follow up with an orthopedic doctor. R. 397.

On September 13, 2011, plaintiff had his first visit with Wei Yang, M.D., a specialist in Internal Medicine at The Medical Group in Beverly, MA. R. 479, 485. Dr. Yang's treatment notes from this visit state that plaintiff "had multiple visits here [at the Medical Group] for chronic pain involving his upper and lower back, left shoulder, hips and knees. Pain has been constant, 7/10, for the past two years." R. 485. She also wrote that "[n]othing seems to be able to control his pain... except for Vicodin which he uses sparsely and seems to take the edge away.'" Id . Dr. Yang recorded that plaintiff's "pain [was] exacerbated from a recent [motor vehicle accident] on 8/22/11 during which he was rear-ended. He now [complains of] constant 8/10 left shoulder pain and worsening upper and lower back pain, making him unable to work. The [X-ray] for spines were negative." Id . Her physical exam of plaintiff's left shoulder showed "no deformity, swelling or erythema [redness of the skin], positive tenderness over the anterior, lateral and upper shoulder, limited [range of motion] for extension, abduction, external rotation, unable to lift arm above the shoulder." R. 487-88. Under the "Neurologic" section of the physical exam, she wrote: "No gross motor or sensory deficits, [c]erebral function intact with normal sensation. Deep tendon reflexes are normal and symmetrical. Muscle strength 4/5 with left upper ext[remity] due to pain." R. 488. Dr. Yang's "impressions" included a "likely rotator cuff injury, " and she recommended an "MRI [magnetic resonance imaging scan] and orthopedic consult, [and] pain control with Vicodin until [plaintiff] sees Northshore pain management." Id.

According to Steven M. Defossez, M.D., an MRI on September 20, 2011, revealed "mild to moderate tendinopathy [disease of a tendon] of the anterior aspect of the distal infraspinatus [a thick muscle in the rotator cuff] tendon. There is mild distal supraspinatus [a small muscle in the upper back] tendinopathy. The distal teres minor [an elongated muscle in the rotator cuff] tendon and subscapularis [a large muscle connecting several bones in the shoulder] tendon appear intact. No significant fatty atrophy of any of the rotator cuff muscle bellies is identified." R. 493. After reviewing these results, Dr. Defossez noted his "impression" that plaintiff suffered from "[m]ild/moderate distal supraspinatus tendinopathy" and "[m]ild distal supraspinatus tendinopathy, " but that "[n]o rotator cuff tear [was] identified." R. 494.

On October 12, 2011, plaintiff went to the Northeast Hospital Corporation Emergency Room with a chief complaint of left shoulder pain "worse than it has been." R. 491. Joshua Lerner, M.D., examined plaintiff and found "the left shoulder reveals no asymmetry when compared with the right, " a "tenderness to palpation superiorly and posteriorly over the left shoulder, " "no signs of a shoulder effusion, " and "some mild tenderness when I adductor [sic] the shoulder passively and less tenderness with flexion and extension." R. 491-92. Dr. Lerner's impression was that plaintiff suffered from "left-sided shoulder pain, chronic, and secondary to tendinopathy of the infraspinatus and sepraspinatus distally." R. 492. He discharged plaintiff with a prescription for Vicodin and a sling and recommended that plaintiff "call tomorrow for an appointment [with a shoulder specialist] as soon as possible." Id.

At a follow-up appointment on October 24, 2011, Dr. Yang noted that plaintiff was "having 8/10 back pain as baseline and 10/10 pain when using his left shoulder. He could not raise his left arm over his shoulder. He can only hold his new baby of 6 weeks old for 5 minutes.... He is waiting for his insurance approval in order to [follow up] with Northeast [Hospital] [s]houlder [specialist] Dr. Mc[L]aughlin." R. 480. Dr. Yang made the same notes in the Physical Exam section regarding the left shoulder and neurologic findings as she had at the previous appointment on September 11, 2011. R. 482, 487-88. For his shoulder pain, she recommended exercise and warm compressions, a follow-up with the shoulder specialist, and a refill of the Vicodin prescription. R. 483.

B. Treating Physician Medical Source Statement

On October 6, 2011, after examining plaintiff during his first appointment and reviewing the MRI results, Dr. Yang completed a medical source statement to assist a determination by the Social Security Administration ("SSA") of plaintiff's ability to do workrelated activities. R. 476-79. Dr. Yang wrote up her assessment before plaintiff visited the Northeast Hospital Emergency Room on October 12, 2011, and before his follow-up with her on October 24, 2011. R. 480-84, 491-92. On this form, Dr. Yang stated that plaintiff had the following limitations due to his impairments: plaintiff can "occasionally lift and/or carry" less than 10 pounds, plaintiff can only stand and/or walk for less than 2 hours in an 8hour workday, and plaintiff has a reaching limitation in all directions. R. 476-77. As justification for the reaching limitation, Dr. Yang wrote, "Patient has left shoulder rotator cuff tendinopathy. Any activities including overhead which exacerbate the pain should be avoided for the tendinopathy to heal." R. 477. Dr. Yang also noted pushing ...

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