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Kuncher v. Astrue

September 16, 2009


The opinion of the court was delivered by: Conti, District Judge.



Plaintiff Kelly Kuncher ("Kuncher" or "plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of the final determination of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33. The parties filed cross-motions for summary judgment, and the record was developed at the administrative level.


Plaintiff filed an application for DIB benefits on October 15, 2004, alleging disability since March 31, 2003, due to back pain and depression. (R. at 26, 58, 74, 81, 344.) Plaintiff's claims were initially denied, and he filed a timely request for an administrative hearing. (R. at 28-32, 36.) A hearing was held on December 8, 2005, in Latrobe, Pennsylvania, before an administrative law judge (the "ALJ"). (R. at 332-69.) Plaintiff was represented by counsel, and an impartial vocational expert (the "VE") also appeared and testified. (Id.) The ALJ issued an unfavorable decision on March 28, 2006, finding that plaintiff was "not disabled" within the meaning of the Act. (R. at 11-21.) The ALJ's decision became the Commissioner's final decision on January 11, 2008, when the Appeals Council denied plaintiff's request for review.

(R. at 5-7.) Plaintiff's administrative remedies being exhausted, he now brings the instant action seeking review of the Commissioner's final decision, and the matter is before this court on the cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.


Kuncher was born on April 9, 1962. (R. at 26.) He is currently forty-seven years old and was forty-two years old at the time he applied for benefits and forty-three years old at the time of the administrative hearing. (Id.) Under the Commissioner's regulations, applicants under the age of 50 are considered "younger individuals" and their age is not considered a significant impediment in their ability to acclimate to unfamiliar occupational circumstances. 20 C.F.R. § 416.963.

Kuncher earned his GED in 1980 and completed building trade maintenance vocational training that same year. (R. at 79.) Kuncher's past relevant work experience consists of twenty-plus years as a construction laborer, in which he primarily performed jackhammer work. (R. at 75-76.) Construction labor is considered to be very heavy work and unskilled. (R. at 358.)

Kuncher discontinued working in construction in March 2003*fn1 due to his back pain and "other reasons." (R. at 75.)

In December 1998, Kuncher underwent a lumbar discectomy at L5-S1 (back surgery) on the left side. (R. at 138.) His back pain returned, however, in March 2003, necessitating the discontinuance of his labor activities. (R. at 184.)

Kuncher was seen at the Latrobe Area Hospital on May 20, 2003, for complaints of severe lower back pain. (R. at 183.) He was treated by Daniel DiCola, M.D. ("Dr. DiCola") with painkillers and prescribed physical therapy. (R. at 126, 183.) Kuncher completed twelve physical therapy sessions in four weeks, concluding on July 3, 2003; the physical therapist noted Kuncher had made progress toward his expected goals, although he was still limited with respect to some daily chores and tasks. (R. at 124-25.)

Kuncher was seen by Dr. DiCola on July 17, 2003, for a recurrence of his lower back pain. (R. at 180.) Kuncher was prescribed an MRI, x-ray and pain medication at this visit. (Id.)

Daniel J. Muccio, M.D., F.A.C.S. ("Dr. Muccio") evaluated the test results on October 6, 2003. (R. at 138-39.) Dr. Muccio opined:

It is my impression that Mr. Kuncher developed back and right leg pain secondary to a disc herniation at L4-5 on the right. He developed back and left leg pain due to irritation of his prior operative site. He has been treated conservatively and most of his symptoms have resolved. For that reason, I recommended continued conservative care. We scheduled him for a CT guided epidural cortisone injection at L4-5. He is to contact us three days after the injection. If he responds favorably, we could consider completing a three-injection series. Other treatment options would include additional physical therapy. Ultimately, if his left buttock symptoms remain refractory to conservative care, we could consider scheduling a myelogram and post-myelographic CAT scan in order to be absolutely certain that there is no evidence of left S1 nerve root compression.

(R. at 139.)

Kuncher received the three steroid injections between October and December 2003. (R. at 193-95.) Kuncher visited Dr. DiCola on February 3, 2004, again complaining of severe back pain, and was given a prescription for pain medication. (R. at 179.)

Following the completion of his steroid injection therapy, Kuncher had a follow-up appointment on February 12, 2004, with Dr. Muccio. (R. at 137.) At that time, Dr. Muccio noted that Kuncher responded well to the treatment and that surgery was not recommended because Kuncher was not experiencing radicular symptoms. (Id.) Dr. Muccio prescribed a Medrol dosepak because Kuncher recently aggravated his back condition by performing a lifting and twisting motion. (Id.)

On August 5, 2004, Kuncher returned to Dr. DiCola's office with complaints of low back pain radiating down the back of the left leg into the left foot, with numbness and tingling in the left leg. (R. at 176.) Additionally, Kuncher was experiencing pain radiating around the right hip into the right groin. (Id.) Kuncher was prescribed painkillers and ordered to undergo an MRI. (Id.)

An MRI of the lumbar spine was performed on August 24, 2004, at Latrobe Area Hospital, which revealed at "L4-5 small right-sided disc protrusion, similar to the 8/8/03 MRI," and "L5-S1 post-surgical changes, including enhancing scar tissue surrounding the left S1 nerve root sleeve in the central canal, similar to the previous exam." (R. at 292.)

Dr. DiCola referred Kuncher to Michael J. Rutigliano, M.D. ("Dr. Rutigliano"), who evaluated Kuncher on August 27, 2004, and concluded, "[b]ecause of the persistent nature of his symptoms and his failure of conservative measures, he has been offered a re-exploration L5-S1 discectomy, as well as decompression at L4 for the significant stenosis present at that level. Due to the severity of his symptoms, he would like to proceed with the above-mentioned operation."

(R. at 206.) Dr. Rutigliano performed the surgery on August 31, 2004, at Latrobe Area Hospital.

(R. at 154.) Dr. Rutigliano discharged Kuncher the next day, noting "excellent resolution of his radicular pain." (R. at 149.)

Kuncher was seen again by Dr. Rutigliano on September 9, 2004, at which time Dr. Rutigliano was "pleased to report [that Kuncher's] radicular pain ...

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