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Scott Michael Fennell v. Michael J. Astrue

December 23, 2010


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing



Scott Michael Fennell ("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") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 ("the Act"). This matter comes before the Court on cross-motions for summary judgment. The record has been developed at the administrative level. For the following reasons, Plaintiff's motion will be granted in part and denied in part, defendant's motion will be denied, and the matter will be remanded with direction to grant benefits consistent with an onset date of May 12, 2006.


Plaintiff filed for DIB with the Social Security Administration on April 26, 2005, claiming an inability to work as of July 23, 2002. (R. at 40).*fn1 Plaintiff initially was denied DIB on November 7, 2005. (R. at 60 - 63). A hearing was scheduled for February 6, 2007, and Plaintiff appeared and testified, represented by counsel. (R. at 787). A vocational expert, Karen Krull, also testified. (R. at 787). The Administrative Law Judge ("ALJ") issued his decision denying Plaintiff's application on April 13, 2007. (R. at 9 - 23). Plaintiff sought review of the ALJ's decision by the Appeals Council, which denied his request on April 29, 2009, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 5 - 7).

Plaintiff filed his Complaint on June 3, 2009. Defendant filed his Answer on January 22, 2010. Cross-motions for Summary Judgment followed.


A. General Background

Plaintiff was born on April 3, 1972, and was thirty four years of age at the time of the administrative hearing. (R. at 40, 787). He is a high school graduate with an Emergency Medical Technician Certificate. (R. at 791). Plaintiff was working as a carpenter when he was involved in a rear-end automobile collision on July 23, 2002. (R. at 791). The collision caused injury to his neck. (R. at 792). At the time of the administrative hearing, Plaintiff was divorced, had a five year old son, and was living with his parents. (R. at 724, 796, 799, 801).

B. Treating Physicians

Plaintiff was examined by Anna Mathew, M.D., immediately after the accident on July 23, 2002. (R. at 459). He complained of pain on the left side of his neck which was radiating down his left shoulder. (R. at 459). Plaintiff felt a sharp, shooting pain with certain movements, and reported difficulty raising his left arm above his head and moving his neck. (R. at 459). He experienced no numbness, weakness, or tingling in his arms. (R. at 459). Dr. Mathew examined Plaintiff and found tenderness and muscle spasm on the left side of Plaintiff's neck. (R. at 459). Plaintiff's range of motion in his neck and left shoulder also were limited. (R. at 459). He was diagnosed with cervical strain status post whiplash injury. (R. at 460). Plaintiff was limited to light work, and was to avoid lifting more than 20 pounds, working above shoulder level, pushing or pulling, and hammering and sawing. (R. at 460).

Plaintiff's neck condition and pain worsened progressively over the next several visits with Dr. Mathew. (R. at 455 - 56, 458). On August 19, 2002, following magnetic resonance imaging ("MRI") of Plaintiff's neck, Dr. Mathew determined that Plaintiff had a disc herniation between his C6 and C7 vertebrae. (R. at 453). Plaintiff was ordered to stop working until evaluated by a neurosurgeon. (R. at 453).

Plaintiff underwent a cervical discectomy and interbody fusion at C6-C7. (R. at 451). On October 4, 2002, at an examination with Dr. Mathew following the surgery, Plaintiff was found to be progressing well; his left arm pain was decreasing, his graft placement and alignment were good, and his incision site was healing well. (R. at 451). However, on October 11, 2002, Plaintiff was seen by Dr. Mathew complaining of increasing neck pain, shooting pains in the shoulders, arms, and neck, and an inability to sleep due to pain. (R. at 450). Dr. Mathew noted significant tenderness of the neck, muscle spasms, and marked limitation in range of motion. (R. at 450).

Plaintiff's increased pain and symptoms persisted over the next several visits with Dr. Mathew. (R. at 286, 442, 443, 446). X-ray and MRI scans of Plaintiff's neck initially showed no abnormal results. (R. at 286, 442, 443, 446). At a December 16, 2002 appointment, Dr. Mathew noted that Plaintiff's fusion had not taken; Plaintiff's neurosurgeon placed Plaintiff on a bone stimulator, but cautioned that he may require further surgery. (R. at 442). Dr. Mathew noted that Plaintiff continued to experience significant pain and limited range of motion. (R. at 438 - 41). Plaintiff was limited to doing only sedentary work. (R. at 438 - 41). Plaintiff relied increasingly on pain medication to cope with his physical condition. (R. at 438 - 41).

James H. Uselman, M.D., was Plaintiff's neurosurgeon and performed his discectomy and fusion on September 9, 2002. (R. at 178, 281, 668). Following Plaintiff's surgery, testing conducted by Dr. Uselman indicated that the results of the operation were normal and there was no evidence of further herniation or nerve compression. (R. at 178). Plaintiff's neck alignment was good, and Dr. Uselman described Plaintiff's MRI results as "quite good." (R. at 178).

Yet, at a December 5, 2002 visit with Dr. Uselman, it was determined that Plaintiff's fusion was not taking. (R. at 278). Plaintiff was prescribed a bone stimulator to aid in the fusion of his C6 and C7 vertebrae. (R. at 278). At a January 9, 2003 visit, Dr. Uselman noted that Plaintiff continued to complain of pain, and ordered additional testing and treatment at a pain clinic. (R. at 466). By February 13, 2003, Plaintiff's neck was still giving him significant difficulty, and a bone scan showed that Plaintiff's fusion had failed. (R. at 243). Plaintiff was scheduled for a revision surgery to fix the fusion. (R. at 243).

On March 7, 2003, Plaintiff underwent a revision surgery with Dr. Uselman. (R. at 474 -76). The old plates and screws were removed, as was the first bone graft. (R. at 474 - 76). A new bone graft - taken from Plaintiff's hip as opposed to a donor - was placed at the fusion site, and a larger plate and longer screws were used to secure the C6 and C7 vertebrae. (R. at 474 -76).

By April 10, 2003, Dr. Uselman noted that Plaintiff had healed well after the revision surgery, and his strength was good. (R. at 464). Plaintiff continued to report neck pain, and significant hip pain. (R. at 464). Plaintiff's arm pain had resolved. (R. at 464). X-rays of Plaintiff's neck were "quite good." (R. at 464).

Plaintiff had a final visit with Dr. Uselman on June 5, 2003. (R. at 463). Dr. Uselman noted that Plaintiff's hip pain had finally settled down, although his neck pain persisted. (R. at 463). Plaintiff reported that some pain occasionally radiated down his right arm. (R. at 463). With respect to diagnostic testing, imaging of Plaintiff's spine showed fusion. (R. at 463).

A functional capacity evaluation conducted by Plaintiff's physical and occupational therapists on August 1, 2003, indicated he physically was capable of performing light work, lifting up to twenty pounds occasionally and ten pounds frequently, and using a negligible amount of force constantly to move objects. (R. at 217 - 20, 494 - 505).

Plaintiff began seeing neurologist Antoin Munirji, M.D., on July 10, 2003, for neck pain and headaches. (R. at 358). Plaintiff was provided with a prescription for Vicodin for pain, and was advised to participate in occupational therapy because he would not be capable of returning to his former work. (R. at 358). On July 28, 2003, Dr. Munirji released Plaintiff for "light duty" work. (R. at 221). Electromyography ("EMG") nerve conduction testing conducted by Dr. Munirji on July 18, 2003, was "essentially normal," but Dr. Munirji opined that because such testing cannot measure the smallest nerve fibers conveying pain, it was still possible that mild radiculopathy,*fn2 myofascial pain syndrome,*fn3 or other causes of pain and numbness could exist. (R. at 648). Accordingly, Plaintiff's release for work limited him to: one to four hours standing/walking; three to five hours sitting; and no lifting over fourteen pounds. (R. at 221).

According to Dr. Munirji's treatment notes, Plaintiff's condition remained relatively unchanged through March 5, 2004 - although Plaintiff began to mention that he was feeling depressed on September 19, 2003. (R. at 632-43). However, on April 14, 2004 Dr. Munirji found that Plaintiff was suffering from severe pain, ordered an MRI of Plaintiff's neck and contemplated referring Plaintiff to a pain clinic depending upon the MRI findings. (R. at 630-31). Plaintiff was diagnosed with cervical radiculopathy. (R. at 630).

On May 13, 2004, Dr. Munirji noted Plaintiff continued to suffer from severe neck pain, and diagnosed Plaintiff with cervical radiculopathy and C4-C5 disc protrusion after reviewing the most recent cervical MRI. (R. at 626-27). Dr. Munirji also noted Plaintiff's continuing depression. (R. at 626-27). EMG testing was again performed on Plaintiff on May 18, 2004, and as before, revealed "essentially normal" results. (R. at 624). Also, as before, Dr. Munirji opined that because such testing cannot measure the smallest nerve fibers conveying pain, it was still possible that radiculopathy, myofascial pain syndrome, or other causes of pain and numbness could exist. (R. at 624).

By June 11, 2004, Plaintiff's worsened symptoms led Dr. Munirji to conclude that Plaintiff was completely disabled. (R. at 620). Plaintiff was diagnosed as suffering from cervical radiculopathy. (R. at 620-21). He was referred to neurosurgeon Dr. Bookwalter to determine if surgical intervention could improve his pain. (R. at 620). On July 12, 2004, Plaintiff also was referred to Dr. Hsu for rehabilitation and pain management. (R. at 618). Dr. Munirji indicated that Plaintiff was then referred for a diagnostic psychological evaluation by Dr. Hsu. (R. at 617). At a September 7, 2004 examination, Dr. Munirji concluded that other than offering pain medication, there was nothing more that could be done to treat Plaintiff. (R. at 614). Plaintiff continued to suffer significant neck pain and was diagnosed with cervical injury status post surgery. (R. at 614-15). By October 7, 2004, Dr. Munirji concluded that Plaintiff had reached maximum medical improvement, and noted that he suffered from chronic cervical radiculopathy.

(R. at 612).

Dr. Munirji observed relatively few changes in Plaintiff's condition through June 10, 2005, and continued to prescribe pain medication for severe neck pain. (R. at 592 - 612). At the final June 10 appointment, Dr. Munirji considered Plaintiff's neck surgeries to have been failures, and opined that Plaintiff now suffered from cervical injury status post surgery. (R. at 592-95). Plaintiff also continued to exhibit depression. (R. at 592). Plaintiff was continued on pain medications, and was again considered to have reached maximum medical improvement.

(R. at 592). Dr. Munirji stated that Plaintiff could not be expected to work on a regular basis because of his symptoms, and despite good strength. (R. at 592).

Neurosurgeon J. William Bookwalter, M.D., examined Plaintiff on May 18, 2004, following a referral from Dr. Munirji. (R. at 176). He noted that Plaintiff's range of motion in the neck was severely limited. (R. at 176). Upon review of an MRI, Dr. Bookwalter observed some post-operative changes at Plaintiff's fusion site. (R. at 176). A small herniation was noted at the C4-C5 level. (R. at 176). Spasm in the neck was also considered to be a cause of discomfort and numbness in Plaintiff's extremities. (R. at 176). Dr. Bookwalter recommended Plaintiff undergo an EMG, myelogram, and computed tomography ("CT") scan. (R. at 176).

On May 24, 2004, following the recommended studies, Dr. Bookwalter confirmed bulging of the disc at the C4-C5 level, as well as some mild degenerative changes at the fusion site. (R. at 622). Dr. Bookwalter did not believe surgery would help Plaintiff's condition. (R. at 622). He believed that Dr. Hsu may be able to help rehabilitate Plaintiff. (R. at 622). In the meantime, Dr. Bookwalter recommended maintaining Plaintiff on total disability. (R. at 622).

Plaintiff began seeing Gin Ming Hsu, M.D. - board certified in physical medicine and rehabilitation, pain management, and spinal cord injury medicine - on June 15, 2004. (R. at 668). Plaintiff described his pain to Dr. Hsu as constant aching and stabbing pain, occasionally radiating down the arms. (R. at 668). Plaintiff also claimed that he suffered from frequent headaches, and his combined pains made sleeping difficult. (R. at 668). Physical therapy had provided Plaintiff with no relief. (R. at 668). Dr. Hsu found Plaintiff in moderate discomfort with tenderness in the neck and lower cervical spine. (R. at 669). Plaintiff's neck had extremely limited range of motion. (R. at 669). His upper extremity strength was five out of five. (R. at 669). Plaintiff's reflexes and sensation in his upper extremities were grossly intact and he had a full range of motion. (R. at 669).

Plaintiff was diagnosed as suffering chronic neck pain with a history of herniated disc at C6-C7 status post surgery, radiculopathy, myofascial pain, and enthesopathy.*fn4 (R. at 669). Dr. Hsu recommended pain medications, physical therapy, and cortisone injections. (R. at 669). Plaintiff also was to begin seeing Dr. Diliscia for psychological treatment and support. (R. at 669). Plaintiff's condition remained largely the same through further visitations with Dr. Hsu. (R. at 654 - 57, 112 - 13, 132 - 42). Plaintiff was regularly noted as visiting Dr. Diliscia for his psychological issues. (R. at 654 - 57, 112 - 13, 132 - 42).

Plaintiff also was referred to board certified pain management specialist Alfred S. Tung, M.D., by Dr. Hsu, for additional treatment. (R. at 127-28). Dr. Tung examined Plaintiff on August 3, 2004. (R. at 127-28). He noted that a recent CT myelogram showed scarring at the C6-C7 level of Plaintiff's spine, worsening disc bulging at the C4-C5 level, and multi-level degenerative changes. (R. at 127). It was noted that, for the most part, prior treatments for Plaintiff's pain were ineffective. (R. at 127). A past history of depression also was noted. (R. at 127). Dr. Tung observed that Plaintiff was anxious and depressed. (R. at 128). Though Plaintiff's deep tendon reflexes were normal, his range of motion in the cervical spine was limited, he had hypesthesia*fn5 around the palmer surface of his left hand, and tenderness over his C5-6-7-T1 spine and left C4-5-6 paravertebral area. (R. at 128). Pain around Plaintiff's right anterior/superior iliac spine and scar area also were observed. (R. at 128). Plaintiff was diagnosed with cervical and left upper extremity pain status post surgery, disc herniation, cervical radiculitis, cervical sprain, myofascial syndrome, and meralgia paresthetica.*fn6 (R. at 128). Dr. Tung provided Plaintiff with nerve blocks and injections which provided good relief to his arm, but only slight relief for deep cervical pain. (R. at 128).

On April 12, 2005, Plaintiff met with Dr. Hsu and stated that he thought he was becoming addicted to his pain medication and the addiction was negatively affecting his mood.

(R. at 654). Dr. Hsu recommended reducing the use of pain medication. (R. at 654). Over the course of treatment with Dr. Hsu, Plaintiff continued to complain of fear of becoming addicted to pain medication. (R. at 650). By May 24, 2005, Plaintiff's ...

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