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Cook v. Commissioner of Social Security Administration

September 27, 2010


The opinion of the court was delivered by: Amy Reynolds Hay Chief Magistrate Judge



Marc C. Cook ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f ("Act"). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. Nos. 7, 13). The record has been developed at the administrative level. For the following reasons, Plaintiff's Motion for Summary Judgment will be GRANTED, to the extent it seeks a remand for reconsideration, and DENIED, to the extent it seeks reversal and entry of final judgment in favor of Plaintiff.


Plaintiff filed for DIB and SSI with the Social Security Administration July 25, 2007, claiming an inability to work due to disability as of July 1, 2006. (R. at 111-120).*fn1 Plaintiff was initially denied benefits on November 20, 2007. (R. at 70-74). A hearing was scheduled for February 4, 2009, and Plaintiff appeared to testify, represented by counsel. (R. at 41, 11-40). A vocational expert, William Reid, also testified. (R. at 11). The Administrative Law Judge ("ALJ") issued his decision denying benefits to Plaintiff on April 2, 2009. (R. at 62-69). Plaintiff filed a request for review of the ALJ's decision by the Appeals Council, which request was denied on July 31, 2009, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1-3).

Plaintiff filed his Complaint in this court on September 29, 2009. Defendant filed his Answer on December 11, 2009. Cross-motions for Summary Judgment followed.


A. General Background

Plaintiff was born June 21, 1962, and was forty six years of age at the time of the hearing before the ALJ. (R. at 16). Plaintiff served in the U.S. Army from 1981 until 1983. (R. at 116). Plaintiff has three sons and one daughter, none of which live with him. (R. at 16). Plaintiff supported himself on public welfare and attended ITT Technical Institute for computer engineering and electronics. (R. at 18). Plaintiff began his training program in 2006, and at the time of the hearing had approximately a year of school remaining. (R. at 18).

B. Medical History

Plaintiff's primary care physician was Paul Sung, M.D. Plaintiff's first visit with Dr. Sung with regard to complaints of back pain, was February 24, 2001. (R. at 172). Dr. Sung noted that Plaintiff suffered from chronic lower back pain at the time. (R. at 172). Plaintiff was also noted as having a cocaine abuse problem. (R. at 172). Plaintiff's next visit with Dr. Sung regarding his back pain was not until September 21, 2006. (R. at 173). At this appointment, Plaintiff complained of back pain, and Dr. Sung diagnosed his condition as chronic lower back pain. (R. at 173). Dr. Sung ordered a consult with an orthopedic surgeon and prescribed Motrin for Plaintiff's discomfort. (R. at 173).

On or about November 27, 2006, Plaintiff visited with orthopedic surgeon Stuart A. Gardner, M.D. as per Dr. Sung's instructions. (R. at 178). Dr. Gardner noted that Plaintiff had been suffering from lower back pain going on four years. (R. at 178). An x-ray taken for the orthopedic examination showed mild degenerative changes in the lower spine. (R. at 178). Dr. Gardner observed tenderness in Plaintiff's lumbar paraspinal region and left scroiliac joint region. (R. at 178). Plaintiff showed flexion in the lumbar spine to fifty degrees with observed discomfort. (R. at 178). Plaintiff also exhibited discomfort when bending to the sides. (R. at 178).Dr. Gardner diagnosed Plaintiff with chronic low back pain with LS strain. (R. at 178). Plaintiff was prescribed Voltaren and physical therapy, and Dr. Gardner recommended regular walking. (R. at 178). While Plaintiff was unsure of whether he should continue to work due to his back, Dr. Gardner suggested that Plaintiff continue his employment. (R. at 178). This was Plaintiff's only visit in the record with Dr. Gardner.

There is no record of Plaintiff visiting any doctor for his lower back pain until January 9, 2007. (R. at 180). On that date, Dr. Sung wrote a letter on behalf of Plaintiff to a Jury Selection Committee in Lawrence County, Pennsylvania, asking that Plaintiff be excused from jury duty because of a history of back pain that rendered him unable to walk or sit for long periods. (R. at 180). Dr. Sung felt that in light of Plaintiff's condition, he should not serve as a juror. (R. at 180). Medical notes from January 9 indicate that Dr. Sung again diagnosed Plaintiff with chronic lower back pain, and - at Plaintiff's request - recommended a consult with a pain management clinic. (R. at 175).

An examination on June 12, 2007, led Dr. Sung to again diagnose Plaintiff with chronic lower back pain, and he prescribed physical therapy and Motrin for pain. (R. at 174). Dr. Sung's notes also indicated that Plaintiff wanted to consult with a pain clinic. (R. at 174).

Plaintiff did not visit with Dr. Sung again until January 25, 2008. (R. at 202). Dr. Sung again noted that Plaintiff suffered from chronic lower back pain. (R. at 202). A September 23, 2008 examination had the same result. (R. at 203). At this examination, Dr. Sung recommended that Plaintiff have another orthopedic consultation with regard to his back pain. (R. at 203). This is the last visit with Dr. Sung in the record. (R. at 203).

Following Dr. Sung's recommendation, Plaintiff was examined regarding his back pain at Tri Rivers Surgical Associates, Inc. - a practice specializing in orthopedic surgery and musculoskeletal medicine - on February 10 and 24, 2009. (R. at 211). There, Plaintiff was seen by physical medicine and rehabilitation specialist Edward D. Reidy, M.D. (R. at 211). Dr. Reidy reviewed x-rays and magnetic resonance imaging ("MRI") scans of Plaintiff's spine. (R. at 211-15). Plaintiff's chief complaint was lumbar spine pain with slight radiation into the left leg. (R. at 212). Plaintiff was noted as not working and ...

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