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David Vaughn v. Michael J. Astrue

August 10, 2012


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.



David Vaughn ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying his claims for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff filed his application on June 16, 2008 alleging disability since September 25, 2007 due to degenerative disc disease, osteoarthritis of the cervical spine, and osteoarthritis of the shoulders (AR 101-102; 118).*fn1 His application was denied and he requested and was granted an administrative hearing before an administrative law judge ("ALJ") (AR 88-93).

Following a hearing held on October 22, 2009 (AR 26-69), the ALJ concluded, in a written decision dated November 3, 2009 that Plaintiff was not entitled to a period of disability or DIB under the Act (AR12-20). Plaintiff's request for review by the Appeals Council was denied (AR 1-6), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). Plaintiff filed his complaint challenging the ALJ's decision, and presently pending before the Court are the parties' cross-motions for summary judgment. For the following reasons, both motions will be denied and the matter will be remanded to the Commissioner for further proceedings.


Plaintiff was 48 years old on the date of the ALJ's decision and has a high school education (AR 19; 125). He has past relevant work experience as an assembler and contractor (AR 119). Plaintiff claims disability based on his alleged mental and physical impairments.

Medical History

A.Physical impairments

The medical records reveal that Plaintiff had several left-shoulder surgeries, including a full replacement on January 14, 2005, and a reversion on January 26, 2006 (AR 281; 297-298; 557-559). Plaintiff has also been treated by Robert Bazylak, M.D. for complaints of inter alia, chest pain (AR 357). His diagnostic studies have yielded normal results (AR 358-359; 364-365; 469).

Plaintiff began treatment with James Macielak, M.D. on August 24, 2007 for evaluation of his cervical spine upon referral by Vincent Paczkoskie, M.D. (AR 351-352). Plaintiff complained of pain in his neck, shoulders, and spine, and tingling in his extremities (AR 351). Plaintiff's spine had mild tenderness and he was limited in side bending, right greater than left (AR 351). There was a limited range of motion of Plaintiff's left shoulder, but his strength was otherwise normal (AR 351). Conservative treatment was recommended (AR 351-352).

Plaintiff underwent physical therapy from August 28, 2007 to October 5, 2007 (AR 239-242). He reported that while his symptoms persisted, his pain was less intense (AR 239). His therapist reported that Plaintiff's pain decreased and his range of motion increased (AR 239). On August 29, 2007, an MRI of Plaintiff's cervical spine revealed only minimal spinal stenosis at C5-6 and C6-7, and an MRI of his thoracic spine was normal (AR 337-338).

Plaintiff returned to Dr. Macielak on October 8, 2007 and complained of increased pain, and Dr. Macielak found Plaintiff's forced Spurling's test was positive for pain radiating into the upper extremities (AR 349).

Plaintiff was seen by D & R Pain Management for injection therapy on October 18, 2007 (AR 400-401). He complained of severe cervical pain, bilateral shoulder pain and headaches (AR 400). Physical examination revealed diffuse cervical tenderness and suboccipital tenderness (AR 400). He was diagnosed with degenerative disc disease of the cervical spine and herniated cervical disc syndrome, and a cervical epidural was administered (AR 400). On November 1, 2007, Plaintiff reported 50% improvement in his symptoms and he received another injection (AR 398). On November 8, 2007, Plaintiff exhibited good range of motion with minimal cervical tenderness, and injection therapy was administered (AR 395).

Plaintiff was seen by Vincent Paczkoskie, M.D. on March 12, 2008 for left shoulder pain (AR 279). Plaintiff stated that he felt a sharp pain the previous week after pulling and lifting (AR 279). Dr. Paczkoskie found his surgical wound to be well healed, his deltoid was functional, there was gross weakness to belly press and lift off, and he had mild discomfort on external rotation (AR 279). X-rays revealed a well-seated total shoulder replacement (AR 279). Dr. Paczkoskie formed an impression of probable left subscapularis re-tear and ordered diagnostic studies (AR 279). A left shoulder arthrogram dated March 13, 2008 revealed a rotator cuff tear (AR 336).

Plaintiff returned to Dr. Macielak on March 27, 2008 and reported that injection therapy had provided significant pain relief for two and one-half months, reporting only "minimal" pain during that time period (AR 348). Plaintiff stated that his neck pain, headaches and upper extremity pain had returned, especially in the trapezius bilaterally (AR 348). Physical examination revealed limited side bending of Plaintiff's neck, and decreased range of motion of the left shoulder (AR 348). There were no strength deficits of the upper extremities (AR 348). Dr. Macielak recommended that he undergo shoulder surgery first followed by cervical surgery (AR 348).

Plaintiff was seen by Dr. Bazylak on April 15, 2008, who reported that his subscapulais had deteriorated and scared and that he had limited mobility in his left shoulder (AR 355). On April 17, 2008, Plaintiff had surgery to repair his left shoulder performed by Joseph Iannotti, M.D. (AR 587-588). Dr. Iannotti reported that Plaintiff had "very good" pain control postoperatively (AR 587). By April 30, 2008 Plaintiff had only "modest" pain and his deltoid was functioning well (AR 583). On May 27, 2008, Dr. Iannotti noted that Plaintiff's repair was intact and he was to avoid heavier lifting until approved for physical therapy (AR 579).

Plaintiff returned to D & R Pain Management on June 17, 2008 and began a second series of cervical injections (AR 393). Plaintiff's cervical range of motion had decreased, and it was noted that his MRI showed marked degenerative changes throughout the cervical area (AR 393). A cervical epidural was administered (AR 393).

On July 22, 2008, Plaintiff reported no relief from the previous injection, and continued to complain of cervical pain (AR 391). Cervical tenderness and marked suboccipital tenderness was noted (AR 391). Plaintiff received a cervical epidural injection and a left occipital nerve block (AR 391). When Plaintiff returned on August 5, 2008, he reported that the nerve block had "helped quite a bit" and that he had minimal discomfort in his neck and shoulders (AR 388). Injection therapy had not, however, alleviated his severe headaches, and he reported some dizziness as well (AR 388). Plaintiff had minimal tenderness in the cervical area and his range of motion had improved (AR 388). There was no tenderness in the suboccipital area (AR 388). He was diagnosed with herniated cervical disc syndrome, headaches, etiology unknown, and possible hypertension (AR 388). Injection therapy was not administered due to Plaintiff's elevated blood pressure and vertigo symptoms (AR 388).

Plaintiff complained of persistent headaches when seen by Dr. Bazylak on August 6, 2008 (AR 473). His neck was tender on physical examination, and he was diagnosed with headaches and cervical spondylosis (AR 473). A CT scan of Plaintiff's head dated August 11, 2008 was reported as normal (AR 497).

When seen by Dr. Bazylak on August 19, 2008, Plaintiff complained of chest pain, shortness of breath and headaches (AR 472). It was noted that Plaintiff was "disabled because of shoulder pain" (AR 472).

On September 18, 2008, Mary Ellen Wyszomierski, M.D., a state agency reviewing physician, reviewed the medical evidence of record and concluded that Plaintiff could occasionally lift ten pounds, frequently carry ten pounds, stand and/or walk for a total of six hours in an 8-hour workday, sit for about six hours in an 8-hour workday, and was limited in his upper extremities from performing forceful pushing and pulling activities (AR 425). She further found Plaintiff could occasionally climb, balance, stoop, kneel, and crouch, but never crawl, and that he was limited in reaching in all directions (AR 426-427). She noted that Plaintiff's self-described daily activities were significantly limited and she concluded that they were "somewhat consistent" with the medical evidence (AR 430). She concluded, however, that Plaintiff would "recover sufficiently prior to 4/17/09" (AR 430).

An MRI of Plaintiff's cervical spine dated January 19, 2009 showed no significant change in the small central disc protrusion at the C6-7 level as compared to the August 2007 study (AR 488). There was also no significant change from the disc bulge and central canal stenosis seen at the C5-6 level (AR 488). There was straightening of the cervical alignment with mild reversal of cervical lordosis at the C5 level (AR 488).

On January 29, 2009, Plaintiff was seen by Dr. Paczkoskie for evaluation of his left shoulder (AR 499). Plaintiff reported weakness and pain with overhead activities (AR 499). Dr. Paczkoskie found decreased range of motion of Plaintiff's cervical spine and trapezial tenderness with lateral bending (AR 499). He also found some weakness on belly press, as well as on abduction and external rotation (AR 499). He found no gross instability and his deltoid was functional (AR 499). Dr. Paczkoskie formed an impression of "painful left total shoulder" and degenerative disc disease of the cervical spine (AR 499). He reported that Plaintiff was "obviously very disabled" from these conditions and could not return to his contractor job (AR 499). He recommended retraining "in a more light to sedentary duty status" (AR 499).

Plaintiff continued to report neck pain to Dr. Macielak in February and March 2009 (AR 516-519). On March 17, 2009, Dr. Bazylak found Plaintiff had cervical spine tenderness and left sided upper extremity weakness (AR 472). Dr. Bazylak diagnosed Plaintiff with cervical degenerative disc disease with radiculopathy (AR 472). On March 27, 2009, Plaintiff underwent a cervical discectomy and fusion surgery 505-510).

On April 9, 2009, Dr. Macielak reported that Plaintiff was doing well and had no significant pain or spasm, and that his range of motion was "quite good" (AR 504). By May 12, 2009, Plaintiff reported that he had full range of motion in both upper extremities and normal strength (AR 503). Dr. Macielak advised Plaintiff he could engage in physical activities if he avoided exerting himself (AR 503).

When seen by Dr. Macielak on June 25, 2009, Plaintiff reported increased neck pain and daily headaches (AR 502). Dr. Macielak noted Plaintiff's "sudden deterioration," and physical examination revealed a "marked" loss of range of motion on lateral rotation, increased paracervical and trapezial spasm to the left, and tenderness over the left AC joint (AR 502). No manual motor deficits were noted in his left upper extremity (AR 502). A cervical MRI dated June 30, 2009 revealed status post cervical fusion of the C5 through C7 levels (AR 482). There was also a resolution of the disc protrusion at C6-7, and a decrease in the size of the C5-6 disc bulge (AR 482).

On August 11, 2009, Dr. Macielak noted that Plaintiff's cervical MRI showed no significant changes (AR 501). Plaintiff exhibited positive Tinel's at the cubital tunnel, left greater than right, with limited left upper extremity strength in both external and internal rotation at the shoulder (AR 501). He was diagnosed with cubital tunnel syndrome,*fn2 left greater than right (AR 501). On August 17, 2009, Plaintiff reported recurrent neck pain at his office visit with Dr. Bazylak (AR 471). An electrophysiological evaluation of Plaintiff's upper extremities on August 19, 2009 was reported as normal (AR 465-468).

When seen by Dr. Macielak on September 1, 2009, he found that Plaintiff had positive Tinel's at the elbow (AR 500). He observed that Plaintiff's EMG study did not show any evidence of radiculopathy, neuropathy or peripheral entrapment, and that his MRI demonstrated that the cervical spine looked "structurally" appropriate (AR 500).

On September 26, 2009, Dr. Bazylak summarized his treatment of Plaintiff and rendered an opinion relative to ...

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