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John J. Savko v. Electronic Filing

February 15, 2011

JOHN J. SAVKO, PLAINTIFF
v.
ELECTRONIC FILING MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



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

OPINION

I. INTRODUCTION

John J. Savko ("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 supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 -- 1383f ("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 for Summary Judgment will be denied.

II. PROCEDURAL HISTORY

Plaintiff filed for SSI with the Social Security Administration on August 20, 2007, claiming an inability to work due to disability as of February 1, 1990. (R. at 149)*fn1 . Plaintiff was initially denied benefits on December 3, 2007. (R. at 69). A hearing was scheduled before Administrative Law Judge ("ALJ") James Bukes for March 27, 2009, and Plaintiff appeared to testify represented by counsel. (R. at 45). A vocational expert, Charles M. Cohen, also testified.

(R. at 45). Two prior hearings had been scheduled before another ALJ on January 8 and November 25, 2008, and Plaintiff was absent for both hearings. (R. at 69 -- 70). ALJ Bukes issued his decision denying benefits to Plaintiff on May 13, 2009. (R. at 10 -- 24). Plaintiff filed a request for review of the ALJ‟s decision by the Appeals Council, which request was denied on January 28, 2010, 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 July 2, 2010. Defendant filed his Answer on September 7, 2010. Cross motions for summary judgment followed.

III. STATEMENT OF THE CASE

A.General Background

Plaintiff was born November 10, 1956, and was fifty years of age at the time of his administrative hearing before ALJ Bukes. (R. at 149). Plaintiff is a high school graduate, but has no post-secondary education. (R. at 49). At the time of the hearing, Plaintiff was unemployed and lived with one of his brothers, a diabetic, for whom he provided care. (R. at 48, 51, 281). Plaintiff was never married and has no children. (R. at 281).

Plaintiff had previously subsisted on SSI from 1989 until 2005, as a result of complications arising from a serious car accident in 1989. (R. at 47, 69). Plaintiff suffered severe trauma to the right side of his body, particularly his right arm and leg, and required surgery to repair fractures. (R. at 308, 346, 348). Plaintiff also complained of neck and lower back pain following the incident. (R. at 346). A fusion of the L5 and S1 vertebrae in Plaintiff‟s lower back was performed to treat his symptoms. (R. at 362, 407). Plaintiff has no significant history of full-time work, and mostly performed odd-jobs until his prior period of disability began. (R. at 49 -- 51).

B.Treatment History -- Physical

The record indicates that Plaintiff was seen by orthopedic surgeon Ari Pressman, M.D. beginning in August of 2005 for right knee pain secondary to his car accident. (R. at 456). Plaintiff‟s right knee began to worsen after December of 2006, and Plaintiff followed up with Dr. Pressman in December of 2007. (R. at 456). Dr. Pressman noted that Plaintiff suffered some restriction in his range of motion, as well as some tenderness around the right knee. (R. at 456). X-rays of the knee showed mild degenerative change. (R. at 456). Magnetic resonance imaging ("MRI") showed some evidence of a meniscal tear and mild degenerative change in the knee. (R. at 456). Dr. Pressman recommended Plaintiff undergo arthroscopy. (R. at 456). The arthroscopy was performed on April 9, 2008. (R. at 442). Tearing of the lateral meniscus was noted, and multiple loose bodies were removed from the knee. (R. at 442).

At a follow-up in May of 2008, Plaintiff‟s right knee showed improvement. (R. at 441). However, the surgical procedure revealed greater damage than expected, and moderate degenerative changes. (R. at 440 -- 41). Depending upon Plaintiff‟s progress, Dr. Pressman felt that partial knee arthroplasty may need to be considered for further repair. (R. at 441). By June of 2008, Plaintiff was experiencing the same problems of which he complained prior to the arthroscopy. (R. at 439). X-rays continued to show moderate degenerative changes, and Dr. Pressman wished to continue to monitor Plaintiff‟s right knee before looking into further surgery.(R. at 439).

Plaintiff again presented with knee pain in July of 2008. (R. at 438). At that time, however, Plaintiff complained of pain in his right and left knees. (R. at 438). Dr. Pressman observed that the pain was more of an ache than mechanical pain. (R. at 438). Plaintiff‟s right knee was worse than his left, and Dr. Pressman prescribed anti-inflammatories and injected Plaintiff‟s right knee. (R. at 438). Dr. Pressman also examined Plaintiff‟s head and neck and found him to be within normal limits. (R. at 438).

At his last visit with Dr. Pressman on record in October of 2008, Plaintiff continued to complain about right knee pain. (R. at 436). Dr. Pressman opined that Plaintiff had experienced significant relief for several months following his surgery, but has since worsened and now complained of losing his balance. (R. at 436). Plaintiff had a full range of motion, despite x-rays showing some severe degenerative arthritic changes. (R. at 436). Dr. Pressman did acknowledge, however, that Plaintiff experienced significant knee pain. (R. at 436). His right knee also gave out and could become painful when Plaintiff was active. (R. at 436). Dr. Pressman concluded -- in conjunction with Plaintiff‟s pain physician -- that arthroplasty of the right knee would benefit Plaintiff, as his right knee was a substantial problem. (R. at 436). Dr. Pressman recommended that Plaintiff have an MRI of his spine to rule out the possibility that his back was causing his leg to give out, and not his knee. (R. at 436).

Plaintiff had undergone neurological evaluations in June and September of 2006 due to his complaints of neck pain and headaches. (R. at 329, 333 -- 34). Plaintiff complained of anxiety, depression, increased stress, some weight loss, and some sleep loss secondary to his pain. (R. at 329, 333 -- 34). Physical examination showed a decrease in the range of motion in Plaintiff‟s neck, but Plaintiff was otherwise normal and his gait was normal. (R. at 329, 333 34). Following an MRI of his cervical spine, the evaluating doctor found degenerative arthritic changes, multilevel disc disease, a small disc herniation, and mild central canal stenosis. (R. at 329, 333 -- 34). An MRI of the brain showed signal changes which may have been symptomatic of small vessel disease or a demyelinating disease. (R. at 329, 333 -- 34). Plaintiff was not a surgical candidate, and it was recommended that he try physical therapy and go to a pain clinic.

(R. at 329, 333 -- 34). Physical therapy did improve Plaintiff‟s headaches. (R. at 329, 333 -- 34). In February of 2006, Plaintiff was seen by Thu Le, M.D. at the Jefferson Pain and Rehabilitation Center ("Pain Clinic"). (R. at 346 -- 49). Plaintiff complained of neck and back pain -- primarily back pain -- that created an aching burning sensation often radiating down into his right leg. (R. at 346). Plaintiff informed Dr. Le that his pain was constant and was exacerbated one to two times a month for a few days at a time. (R. at 346). Associated headaches were also regularly suffered. (R. at 346). Plaintiff‟s pain was significantly worsened by lifting, exercise, prolonged sitting, prolonged standing, and prolonged walking. (R. at 346). Forceful use, movement, cold or damp weather, cough, and sneezing could worsen his pain somewhat. (R. at 346). At the time, Plaintiff‟s pain was eight on a scale of ten -- ten being most severe. (R. at 347). He had been experiencing level ten pains regularly, however. (R. at 347).

Plaintiff reported that he could sit no more than two hours, stand no more than thirty minutes, walked no more than thirty minutes, occasionally lift twenty-five pounds, frequently lift ten pounds, and could not lift above shoulder height. (R. at 347). Plaintiff also claimed he had difficulty lifting heavy grocery bags and heavy weights. (R. at 347). Dr. Le noted tenderness of the lower back, mild muscle spasm of the back and neck, and some pain and limitation in his range of motion. (R. at 348). Plaintiff‟s gait was normal and he could stand on his heels and toes, however. (R. at 348). Plaintiff was diagnosed with discogenic lumbago, right sciatica, cervicalgia, bilateral lumbar facet arthropathy, and chronic pain syndrome. (R. at 349). Plaintiff received injections for his pain and was prescribed pain medications. (R. at 349).

Plaintiff visited the Pain Clinic fairly consistently until September of 2008. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). During this time, Plaintiff‟s complaints primarily concerned his neck and lower back; it was not until May of 2008 that Dr. Le made notations regarding pain in Plaintiff‟s right knee. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). Plaintiff‟s diagnoses typically included a combination of the following disorders: cervical facet arthropathy, cervical sprain/ strain, cervical spondylosis, cervicogenic cephalgia, lumbar facet arthropathy, lumbar sprain/ strain, anterolisthesis of L5-S1, lumbago, and headache. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05).

At his visits, Plaintiff reported his pain typically ranged between six and ten on a scale of ten -- ten being the most severe. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). In September of 2006, Plaintiff reported to Dr. Le that he had no difficulty with sleep onset or maintenance, however, beginning in January of 2008, Plaintiff began to complain of difficulty with his sleep. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). Plaintiff reported constant pain, but Dr. Le usually indicated that medication and injection allowed Plaintiff to be more active. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). Over the course of his treatment at the Pain Clinic, Plaintiff was given approximately ten injections for pain in his back and/ or neck. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). Plaintiff was also consistently prescribed pain medications. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05).

Pain in Plaintiff‟s neck and back was found to decrease anywhere from forty five to sixty percent following his injections and use of pain medications. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). The effects of the injections could last for several weeks, while the effects of the pain medications lasted several hours. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). Dr. Le regularly noted that Plaintiff could do heel and toe stands, and appeared only to be in mild to moderate discomfort. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). Tenderness was often noted over Plaintiff‟s back and neck. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05). Muscle spasm ranging from mild to severe was also noted. (R. at 238 -- 44, 329 -- 34, 360 -- 77, 390 -- 93, 398, 401 - 05).

An MRI of the cervical spine ordered by Dr. Le in February of 2006 noted some disc bulging and degeneration, but no compression of the spinal cord or narrowing of neural foramen.

(R. at 405). The results were otherwise unremarkable. (R. at 405). An MRI of the lumbrosacral spine at the same time, showed some post-operative changes, disc degeneration, and grade I anterolisthesis, but no herniation, spinal or neural foramen narrowing. (R. at 404). An electromyography ("EMG") study -- also in February of 2006 -- showed some bilateral peripheral polyneuropathy of Plaintiff‟s lower extremities, indicative of S1 -- S2 sacral radiculopathy. (R. at 402). An x-ray ordered by Dr. Le in September of 2008 -- at the end of Plaintiff‟s recorded visits to the Pain Clinic -- showed the fusion of ...


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