The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Craig Steven Schaffold ("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 ("Act"). This matter comes before the Court on cross motions for summary judgment. (Doc. Nos. 5, 9). The record has been developed at the administrative level. For the following reasons, Plaintiff‟s Motion for Summary Judgment will be granted in part and the matter will be remanded to the Commissioner with direction to grant benefits consistent with an onset date of November 13, 2007.
Plaintiff filed for DIB with the Social Security Administration July 12, 2007, claiming an inability to work due to disability as of February 6, 2007. (R. at 72)*fn1 . Plaintiff application initially was denied on September 14, 2007. (R. at 48 -- 51). A hearing was scheduled for May 11, 2009, and Plaintiff appeared to testify represented by counsel. (R. at 19). A vocational expert, Frances Kinley, also testified. (R. at 19). The Administrative Law Judge ("ALJ") issued his decision denying Plaintiff's application on May 19, 2009. (R. at 9 -- 18). Plaintiff filed a request for review of the ALJ‟s decision by the Appeals Council, which request was denied on December 3, 2009, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1 -- 5).
Plaintiff filed his Complaint on January 26, 2010. Defendant filed his Answer on April 1, 2010. Cross motions for summary judgment followed.
III. STATEMENT OF THE CASE
The relevant facts are limited to those records that were available to the ALJ when rendering his decision. All other records newly submitted*fn2 to the Appeals Council or this Court will not be considered. See DISCUSSION, infra at 13.
Plaintiff was born on July 5, 1970, and was thirty-eight years of age at the time of the administrative hearing. (R. at 72). Plaintiff attended high school until twelfth grade and then attended a vocational technical school. (R. at 22). Plaintiff lived with his wife, a three year old son, and a one year old daughter. (R. at 28). Following his second back surgery, Plaintiff and his wife switched traditional family roles, and Plaintiff became a full-time homemaker.
Plaintiff was last employed just prior to his February 6, 2007 surgery. (R. at 22). His most recent job involved filling, grinding, and assembling body molds for an orthotics and prosthetics company. (R. at 22). This required Plaintiff to lift between thirty and fifty pounds.
(R. at 23). When Plaintiff‟s back first became problematic, he was moved to the pediatric department of the company, where the lifting typically ranged between ten to twenty pounds. (R. at 23). Plaintiff‟s jobs required frequent postural maneuvering, and he was on his feet for up to nine hours a day. (R. at 24). Plaintiff also worked a second job wherein he installed plate and tempered glass in residential and commercial settings. (R. at 24).
Plaintiff began treatment with orthopedic surgeon Vincent J. Silvaggio, M.D., on October 23, 2001, because of lower back pain symptomatic of degenerative disc disease. (R. at 212). Plaintiff was found to suffer from multi-level degenerative disc disease, and as a result underwent lumbar decompression at the L3-L4 level, and decompression and fusion at the L4-L5 level on October 24, 2005. (R. at 202, 213). The surgery included both a lateral mass fusion and a posterior lumbar interbody fusion. (R. at 213). In the months following the surgery, Plaintiff‟s pain was almost completely resolved. (R. at 213).
On June 7, 2006 Plaintiff visited Dr. Silvaggio for follow-up. (R. at 202). Plaintiff was sent for an MRI, as his back had worsened following several good months after his surgery. (R. at 202). Plaintiff‟s back had recently "popped," and he was experiencing back pain and some numbness in his feet. (R. at 202). The MRI showed only a small protrusion at the L4-L5 level, and an annular tear at the L2-L3 level. (R. at 202). Dr. Silvaggio felt that if given some time, Plaintiff‟s new pain would be resolved. (R. 202).
However, a subsequent MRI on June 14 showed degenerative disc disease at the T11-T12 level, mild facet arthropathy at the L1-L2 level, broad based asymmetric disc bulge and annular tear slightly more prominent than in previous imaging studies at the L2-L3 level, new laminectomy defect and central disc bulge with associated left paracentral protrusion at the L3-L4 level, some scar enhancement and fluid collection at the L4-L5 level, and a minor disc bulge and facet arthropathy at the L5-S1 level. (R. at 171). By August 8, 2006, Plaintiff complained of greater pain when trying to care for his then only child. (R. at 199). Plaintiff had good strength in his lower extremities and was negative for straight leg-raising. (R. at 199). Dr. Silvaggio believed that the disc protrusion and annular tear were the pain generators. (R. at 199). Plaintiff was prescribed medication and an epidural injection for pain. (R. at 199). The injection reduced Plaintiff‟s pain from 8 to 5 out of 10. (R. at 170).
The record shows Plaintiff‟s first visit to his primary care physician Sandra C. Sauereisen, M.D., following his first surgery was August 28, 2006. (R. at 234). Dr. Sauereisen noted back pain, radiating to the leg with paresthesias and leg weakness. (R. at 235). At the time, Dr. Sauereisen prescribed vicodin for Plaintiff‟s pain, and diagnosed him with worsening back pain, arthritis of the back, and degenerative disc disease. (R. at 236).
Over the next several months, Drs. Silvaggio and Sauereisen observed that Plaintiff‟s pain continued unabated. (R. at 197, 231). Further MRI‟s showed degenerative disease of the spine and broad-based disc bulging. (R. at 195). Despite the fact that Dr. Silvaggio found Plaintiff always had good strength in his lower extremities and was negative in straight leg-raising, eventually his physical condition and resultant pain had deteriorated to the point at which a second surgery was determined necessary to provide relief. (R. at 194 -- 95).
Plaintiff underwent "metal removal lumbar spine, exploration fusion mass, lumbar decompression L2-3, L3-4, lumbar fusion L3-4 with globus instrumentation, local bone, bone bank bone, and OP1 bone graft, posterior lumbar interbody fusion L3-4 with globus cage pack with local bone, re-insertion of instrumentation" on February 12, 2007. (R. at 161 -- 64).
At a March 1, 2007 follow-up examination, Plaintiff‟s surgery was noted as having been completed successfully, the wound had healed well, and Plaintiff‟s strength in his lower extremities and leg-raising was good. (R. at 192). Then, on March 8, Plaintiff returned to see Dr. Silvaggio because of the onset of left leg pain running from his back to his groin, and through his thigh. (R. at 188). X-rays and lateral flexion-extensions showed no apparent problems at the surgical site. (R. at 188). Dr. Silvaggio felt Plaintiff was experiencing some nerve tension and prescribed some new pain medications. (R. at 188). Despite continuing to have good lower extremity strength and straight leg-raising, Plaintiff‟s leg pain subsequently improved little, and he still experienced pain in the back and buttocks. (R. at 186). Dr. Silvaggio thought that physical therapy would help resolve Plaintiff‟s ongoing pain. (R. at 186).
Plaintiff began a course of physical therapy on April 2, 2007 for rehabilitation following his second surgery. At his initial evaluation, Plaintiff had decreased lumbar lordosis, his lumbar spine flexion was 3 out of 4, and his extension was 2 out of 4. (R at 134). Plaintiff was noted as requiring skilled physical therapy, but his rehabilitation potential was good. (R. at 134). However, during the course of his physical therapy Plaintiff consistently complained of back and leg pain. (R. at 130 -- 34).
On April 18, 2007, Plaintiff returned to Dr. Silvaggio‟s office and was examined by Jeffery A. Baum, M.D., after lifting his twenty-six pound son and hearing a "pop‟ in his back. (R. at 185). Thereafter, Plaintiff suffered a great deal of back pain. (R. at 185). No leg pain was reported, but Plaintiff noticed numbness in his left thigh, and Dr. Baum observed a lot of spasm in Plaintiff‟s back. (R. at 185). No changes were noted at Plaintiff‟s surgical site, and Dr. Baum was unsure what was causing Plaintiff‟s pain. (R. at 185). Dr. Baum recommended that Plaintiff ease his physical therapy routine, continue to take muscle relaxants and pain medication, and monitor his symptoms until his next appointment with Dr. Silvaggio. (R. at 185).
By May 3, 2007, however, Plaintiff was reporting increased back and left leg pain. (R. at 184). Plaintiff‟s pain was also continuing into the night. (R. at 184). While Plaintiff exhibited good strength in his lower extremities and negative straight leg-raising, Dr. Silvaggio recommended that Plaintiff undergo an MRI and remain off work. (R. at 184). An MRI was subsequently conducted, and on May 16 Dr. Silvaggio found evidence of new and worsened disc herniation at L2-L3, left sided, with nerve compression. (R. at 159, 183). Plaintiff was prescribed injections and additional pain medications. (R. at 183). Dr. Silvaggio also ordered Plaintiff to remain off work. (R. at 183).
On June 21, 2007, Plaintiff‟s failure to improve physically and reduce his pain lead Dr. Silvaggio to conclude that he could not return to work, and was likely permanently disabled. (R. at 182). Dr. Silvaggio sent Plaintiff to see Brian Cicuto, D.O., for pain management. (R. at 182). If Plaintiff was able to relieve his pain with Dr. Cicuto, Dr. Silvaggio believed he might be able to return to work. (R. at 182).
Dr. Cicuto first saw Plaintiff on July 20, 2007. (R. at 275). He observed that Plaintiff had recently been trying some pool exercises and had seen some relief from his symptoms. (R. at 276). Dr. Cicuto recommended Plaintiff begin a pain management program. (R. at 276). At his next appointment with Dr. Cicuto, Plaintiff was noted as having been compliant with his exercise regimen and in taking his medications. (R. at 271). Some reduction in symptoms was noted. (R. at 271). Dr. Cicuto encouraged Plaintiff to engage in normal daily activities as much as possible, including spending time with his children. (R. at 271). Plaintiff‟s movement, posture, sitting, and standing saw improvement, but his lumbar mobility was reduced with extension. (R. at 271).
In September of 2007, Plaintiff continued to experience significant back and bilateral leg pain, and had difficulty finding comfortable positions and staying active. (R. at 321). Plaintiff was also having difficulty caring for his son. (R. at 321). Despite continuing pain management with Dr. Cicuto, and good lower extremity strength and negative straight leg-raising, Dr. Silvaggio concluded that Plaintiff could not return to work because his pain would prevent him from being productive in a work environment. (R. at 321).
According to Dr. Silvaggio, in spite of continuing conservative management measures, Plaintiff‟s back pain did not abate. (R. at 213). Degenerative disc disease and disc protrusion resulted in nerve root compression causing significant back and leg pain. (R. at 214). Dr. Silvaggio finally concluded on November 13, 2007, that as a result of Plaintiff‟s physical condition and resultant back pain, he would not be able to maintain substantial gainful employment. (R. at 214).
Dr. Cicuto again saw Plaintiff March 9, 2008, and noted that Plaintiff was exercising properly, participating in normal daily activities, and maintaining his pain with medication. (R. at 265). Dr. Cicuto did note that he was concerned that Plaintiff was overmedicating. (R. at 265). Dr. Cicuto observed that Plaintiff may require further surgery to relieve symptoms, but that for the time being Plaintiff was attempting to avoid additional surgery with independent pain management. (R. at 265). Dr. Cicuto concluded that Plaintiff was doing reasonably well, though he had reduced lumbar extension. (R. at 265). He recommended Plaintiff engage in the Interdisciplinary Pain Rehab Program, but Plaintiff was unable to because his responsibilities in caring for his children at home did not allow him the time. (R. at 265).
Over the next several visits, Dr. Cicuto did not note any major changes in Plaintiff‟s condition. (R. at 326 -- 28). Plaintiff was staying active and had been maintaining his independent pain management routine well. (R. at 326). However, Plaintiff still had difficulty transitioning from sitting to standing, and had increased tightness in his lower back. (R. at 326). Plaintiff‟s intent to consult with a new neurosurgeon for potential treatment was considered a good idea by Dr. Cicuto. (R. at326). Dr. Cicuto diagnosed Plaintiff with ...