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Anthony andrews v. Michael J. Astrue

October 17, 2012


The opinion of the court was delivered by: Judge Nora Barry Fischer



Anthony Andrews ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial 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. §§ 404-434 ("Act"). The record has been developed at the administrative level, and the parties have brought cross-motions for summary judgment. For the following reasons, the Court finds that the decision of the Administrative Law Judge ("ALJ") is supported by substantial evidence. Accordingly, Plaintiff's Motion for Summary Judgment (Docket No. 8) is DENIED, and Defendant's Motion for Summary Judgment (Docket No. 10) is GRANTED.


Plaintiff applied for DIB on June 18, 2009, alleging both physical and mental impairments with a disability onset date of August 10, 2007. (R. at 122-23, 154-55).*fn1 Following the initial denial of his application on January 11, 2010 (R. at 72-76), a hearing was held before an ALJ on February 24, 2010 at which Plaintiff and a vocational expert appeared and testified (R. at 28-69). The ALJ issued his unfavorable decision to Plaintiff on April 27, 2011. (R. at 12-23). Plaintiff filed a request for review by the Appeals Council, which was denied on March 12, 2012, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1-4). Having exhausted all administrative remedies, Plaintiff filed his Complaint in this Court on May 11, 2012. (Docket No. 4). On July 16, 2012, Defendant filed his Answer. (Docket No. 5). Subsequently, Plaintiff filed his Motion for Summary Judgment with Brief in Support on August 13, 2012. (Docket Nos. 8-9). Defendant filed his cross-motion and supporting brief on September 4, 2012. (Docket Nos. 10, 12).


A. General Background

Plaintiff was born on August 17, 1967 and was forty-three years of age at the time of his hearing. (R. at 122). He lived in Cardele, Pennsylvania with his wife, his six-year-old son, and a stepson who is sixteen years old. (R. at 30, 46, 144). Plaintiff is a high school graduate and completed two years of computer training at a community college in 1989. (R. at 152, 552). His past relevant work history consists mostly of clerical and customer service jobs. (R. at 157, 160-61). Plaintiff reported that he stopped working at his last job as a material handler for Dick's Sporting Goods because he was injured on the job. (R. at 145).

Though Plaintiff previously had a driver's license, he did not drive at the time of his hearing because he had failed to renew it. (R. at 168). His daily activities mostly consisted of watching television, using the Internet on his home computer, and cooking dinner each night, which took him approximately one to two hours. (R. at 165-67). He reported that he was the primary caregiver of his young son, who was four years old at the time Plaintiff filed for DIB.

(R. at 165). Besides completing domestic activities, sometimes Plaintiff spent his day with his family at the mall or Walmart "walk[ing] around for awhile." (Id.). In his self-report, Plaintiff claimed that he could sit for, at most, 30 minutes and was able to walk up to one mile before needing to rest for 15 minutes; however, he stated that he did not require an ambulatory device.

(R. at 170-71).

B.Medical History

In his Disability Report, Plaintiff claimed that a back injury, diabetes, and depression limit his ability to work.*fn2 (R. at 145). His list of medications relevant to his back condition consisted of amitriptyline,*fn3 "HCD,"*fn4 Neurontin,*fn5 and Tizanidine*fn6 at the time of his hearing. (R. at 151, 185). He reported that he was helped by medication, which typically takes about 30 minutes to take effect and lasts all day. (R at 173-74). He does not engage in alcohol or tobacco use. (R. at 319).

1. Plaintiff's Back Injury -- June 2006

Plaintiff sustained a work-related back injury on June 13, 2006 after he lifted a heavy box while working as a material handler at the distribution center of Dick's Sporting Goods. (R. at 42, 194). The next day, Plaintiff sought treatment at Uniontown Hospital, where he was diagnosed with a soft tissue injury. (R. at 194). Following a referral by his primary care physician, Dr. Andrew Stroh, an MRI of Plaintiff's lumbar spine was taken at Frick Hospital on August 14, 2006, which revealed small central disc bulges at L4-L5 and L5-S1. (R. at 186, 242-43). Dr. Stroh treated Plaintiff with Flexeril*fn7 and Celebrex,*fn8 and prescribed physical therapy. (R. at 194).

2. Evaluations by Dr. Rich Kozakiewicz, M.D. -- October 2006, April 2007

Subsequently, Plaintiff filed a claim for workers' compensation benefits, which was evaluated on October 9, 2006 by a specialist in physical medicine and rehabilitation, Dr. Rich Kozakiewicz, M.D. of Pennsylvania Physical Medicine, Inc., located in Greensburg, PA. (R. at 194). Dr. Kozakiewicz reviewed the images of Plaintiff's MRI and reported that they showed "mild degenerative changes most notable at L5-S1." (Id.). His impression was that Plaintiff suffered "minimal residuals of work-related lumbosacral sprain/strain"; however, Dr. Kozakiewicz maintained that Plaintiff was capable of full-time, full-duty employment. (R. at 195). Recommending a brief course of chiropractic care and a daily home program, Dr. Kozakiewicz referred Plaintiff to Midtown Chiropractic for treatment by Dr. Craig Weimer, D.C. (Id.).

On October 16, 2006, Plaintiff appeared for his first session with Dr. Weimer. (R. at 222-24). He reported experiencing constant pain at an intensity level of five (5) on a pain scale of one (1) to ten (10). (R. at 222). Dr. Weimer diagnosed Plaintiff with sacrolitis, post sprain strain, and low back pain. (R. at 224). Throughout his physical therapy appointments that October, Plaintiff took Flexeril and Tramadol*fn9 in addition to anti-inflammatories, and his conditions improved with chiropractic treatment: on October 27, 2006, Plaintiff reported that his pain had decreased to a level of three (3) to four (4) out of ten (10) on the pain scale, and at his next appointment with Dr. Weimer on October 30, 2006, Plaintiff reported that he was "feeling a lot better." (Id.).

Plaintiff followed up with Dr. Kozakiewicz on October 30, 2006, who opined that Plaintiff had "definitely" benefitted from chiropractic treatment and the home exercise routine.

(R. at 192). Dr. Kozakiewicz reported that Plaintiff experienced only minimal stiffness in the right lumber area; his impression was that the minimal residuals of Plaintiff's work-related injury were "largely resolved" and that "full time full work duties continue to be medically appropriate." (Id.).

On November 6, 2006, Dr. Weimer noted "continued improvement" in Plaintiff's condition. (R. at 224). Despite Plaintiff's reports of some increase in his back pain throughout his other appointments in November, Dr. Weimer attributed his pain to "mild overuse exacerbation" and did not adjust the current treatment protocol. (R. at 225). On December 4, 2006, Dr. Weimer diagnosed Plaintiff with subluxation and mechanical back pain. (R. at 225-226). Again, on December 8, 2006, Plaintiff reported some increase in his back pain associated with lifting and stocking tasks at work, but Dr. Weimer noted that his pain had been reduced "quite a bit" through treatment. (R. at 226). On January 3, 2007, Plaintiff informed Dr. Weimer that he had been using a molded back brace at work and found it to be very helpful, commenting that he had very little pain at work. (Id.). Dr. Weimer noted that Plaintiff's pain had improved and that his range of motion was within normal limits. (Id.). Moreover, on January 8, 2007, Dr. Weimer reported that Plaintiff's complaints were "improved in comparison to the last visit" and "mild." (Id.). At subsequent appointments in January and February 2007, Dr. Weimer remarked that Plaintiff's condition had improved, and Plaintiff rated his pain as a two (2) or three (3) out of ten (10). (R. at 227). At appointments later in February and into April 2007, Plaintiff claimed to suffer from increased back pain, but Dr. Weimer attributed these complaints to lifting tasks at work. (R. at 227-28).

When Plaintiff returned to see Dr. Kozakiewicz on April 9, 2007 due to "ongoing low back pain during work activities," Dr. Kozakiewicz nonetheless reported that Plaintiff's physical examination that day looked "quite good." (R. at 191). According to Dr. Kozakiewicz, no new injury had occurred; he opined that "[f]ull time full work duties remain medically appropriate," and he explicitly stated that he did not recommend further chiropractic care. (Id.).

3. Examinations byDr. Rajesh C. Shah, M.D. -- June, August, September 2007

On June 11, 2007, Dr. Rajesh C. Shah, M.D., a specialist in internal medicine, performed a physical examination of Plaintiff at his Brownsville, PA office. (R. at 319). At this time, Plaintiff reported that he wore a back brace at work for support and that he treated his back pain with over-the-counter medication. (Id.). Upon examination, Dr. Shah ordered blood work after noting tenderness over Plaintiff's lumbosacral spine and told Plaintiff to follow up in one month.

(R. at 320).

On July 30, 2007, Plaintiff was admitted to the emergency room at Uniontown Hospital because he could not open his eye, which was red and swollen. (R. at 363). Dr. Bruce E. Teich, M.D. examined Plaintiff and diagnosed him with conjunctivitis with a corneal abrasion. (R. at 363-64). Dr. Teich excused Plaintiff from work for two days and referred him to an ophthalmologist named Dr. Sobol, who prescribed Plaintiff eye drops and a patch for his eye. (R. at 323, 363-64).

According to Plaintiff, after returning to work following his eye infection, he reinjured his back while lifting a box and was subsequently absent for four weeks. (R. at 414-15). Thereafter, Plaintiff followed up with Dr. Shah on August 13, 2007, complaining that his back pain had increased over the past three weeks, causing him to have trouble tying his shoes and to awaken frequently in the night with pain radiating into his legs. (R. at 323). Plaintiff reported that he had been assigned light duty tasks at work, but still was required to lift heavy weights at times. (Id.). Dr. Shah diagnosed Plaintiff with acute worsening of chronic low back pain and prescribed him Medrol,*fn10 Darvocet, and Neurontin. (R. at 324). Dr. Shah provided a written excuse to Plaintiff's employer indicating that Plaintiff was "to stay on light duty and not lift anything for the next three weeks." (Id.).

When Plaintiff followed up with Dr. Shah on August 20, 2007, he reported that his back pain had improved since starting Neurontin, though he described it as a seven (7) out of ten (10) on the pain scale. (R. at 321). Thereafter, Dr. Shah referred Plaintiff to physical therapy at Redstone Rehabilitation Services in Uniontown, PA. (R. at 217-19).

Plaintiff was initially evaluated by Catherine Petrucci, a physical therapist, on August 22, 2007, at which time his movements were guarded. (R. at 218-19). Ms. Petrucci set a goal of six weeks for Plaintiff to return to full-duty work and for his pain to be, at most, a three (3) out of ten (10) on the pain scale. (Id.) On August 27, 2007, Plaintiff told Ms. Petrucci that he was having trouble completing his home exercises, but she observed that he could "move more easily" following treatment that day. (R. at 215). She recommended modifications to Plaintiff's lifting technique in order "to help him return to work"; however, she commented that Plaintiff's material handler position required particular duties, such as moving boxes of "varying weight and shapes" within "space constraints," that could make it difficult for him to return to "this job." (Id.).

When Plaintiff returned for physical therapy on August 29, 2007, he told Ms. Petrucci that his back pain had slightly decreased and that he did not have any pain radiating down his legs. (R. at 214). However, at his appointment the very next day, Plaintiff claimed that his pain had increased so much that sitting for 30 minutes was difficult. (R. at 213). On September 12, 2007, Plaintiff reported a "significant increase" in his lower back pain for which he could find no relief, but he said that his pain "varies day to day." (R. at 208). Ms. Petrucci observed that Plaintiff's movements were "stiff and guarded" and that he showed a "slow cadence for ambulation," but his mobility appeared to have nevertheless improved. (Id.).

Plaintiff followed up with Dr. Shah on September 17, 2007, who noted: "Sometimes [Plaintiff] feels good and sometimes he does not feel good." (R. at 325). Dr. Shah recommended that Plaintiff undergo another MRI, since his last one had been conducted over a year ago. (Id.). Dr. Shah then wrote a note to Plaintiff's employer limiting him to light duty work until he could be examined by a back surgeon. (R. at 326).

4. Evaluation by Dr. Kozakiewicz -- October 2007

On October 3, 2007, Dr. Kozakiewicz performed another independent medical examination of Plaintiff, noting that he had evaluated and treated Plaintiff "on multiple occasions." (R. at 187). Dr. Kozakiewicz referenced his April 9, 2007 examination of Plaintiff, at which time he found that Plaintiff was "anatomically intact" and the "only 'finding' on physical exam was non-anatomical tenderness to the barest of light touch." (R. at 187). Further, he added that he gave Plaintiff "the benefit of the doubt" at the April examination by "not frankly stat[ing] that [Plaintiff] was fully recovered at that juncture." (R. at 187-88). Although Dr. Shah had been excusing Plaintiff from work, Dr. Kozakiewicz reported that there was "no objective medical basis for the disability that has been in place since [August 2007]." (R. at 188-89).

Dr. Kozakiewicz determined that "[Plaintiff] has fully recovered from his lumbosacral sprain/strain," and gave the following reasons to support his assessment: (1) Plaintiff had no anatomically-based neuromusculoskeletal deficits; (2) Plaintiff's physical examination records were inconsistent and "none [were] supportive of any medical pathology"; (3) Plaintiff's MRI results were normal; (4) Plaintiff's clinical presentation was "not at all consistent with any lumbosacral nerve root dysfunction"; and (5) Plaintiff's subjective complaints had increased since his last evaluations, to which Dr. Kozakiewicz commented that "[t]his alone makes no medical sense." (R. at 188-89). Therefore, Dr. Kozakiewicz found that there was "no medical basis" for Plaintiff's adoption of a "disabled lifestyle," and that "[w]ith no work-related impairment present, there is in turn no basis for any work-related disability." (R. at 189). Thus, he concluded that Plaintiff was "objectively medically capable of full time gainful employment without restrictions no later than [October 3, 2007]," and he signed an affidavit of recovery, releasing Plaintiff back to work. (R. at 190, 235-36).

5. Initial Examinations by Dr. Alan J. Cappellini, D.C. and Dr. John K-S Lee, M.D.

Subsequently, Plaintiff came under the care of Dr. Alan J. Cappellini, D.C., whom his wife "knew about," based on an apparent referral by Dr. Shah. (R. at 245). Plaintiff's first appointment with Dr. Cappellini was on November 1, 2007 at the Grandview Medical Center in Uniontown, PA, at which time he described injuring his back at work in June 2006 and again in August 2007, reporting moderate to severe low back pain that radiated into his legs. (R. at 206). That day, x-rays and an MRI were taken of Plaintiff's back at Uniontown Hospital, revealing degenerative disc disease at the L5-S1 level. (R. at 196, 305-307, 373, 573).

Thereafter, Dr. Cappellini provided Plaintiff with a note to "remain off of work," which read: "Due to a work related injury, [Plaintiff] is disabled from gainful employment. He is to refrain from work and remain at reduced activity pending further notice." (R. at 207, 233). Dr. Cappellini reiterated that Plaintiff was to remain at reduced activity on November 8, 2007. (R. at 204). On November 15, 2007, in response to a questionnaire required by Plaintiff's employer in conjunction with his workers' compensation claim, Dr. Cappellini reported that Plaintiff was "totally incapacitated at this time" and that it was "undetermined" when he could return to work.

(R. at 230).

Subsequently, Dr. Cappellini referred Plaintiff to Dr. John K-S Lee, M.D., a Board Certified Physiatrist, at Jefferson Pain and Rehabilitation Center. (R. at 203, 414-18). In his written correspondence to Dr. Lee preceding Plaintiff's visit, Dr. Cappellini opined that Plaintiff had been "shuffled through the panel providers," who Dr. Cappellini believed had "failed to accurately diagnose, direct, and coordinate treatment" of Plaintiff's condition. (R. at 229). Dr. Cappellini diagnosed Plaintiff with "substantial loss of disc space," "positive root irritation signs on clinical exam," and "a pain avoidance behavior." (Id.). Dr. Cappellini asserted that Plaintiff's back pain stemmed from his injury at work and rendered him "disabled from his time of injury occupational duties." (Id.).

Plaintiff saw Dr. Lee for the first time on November 20, 2007, presenting with a "moderate degree of muscle spasms along his mid and low back" and walking "slowly with back guarding." (R. at 416). Dr. Lee diagnosed Plaintiff with a lumbar sprain, sciatica,*fn11 sacroiliitis, a bulging disc and annular tear, and "flare ups" of pre-existing asymptomatic degenerative disc disease at the L5-S1 level resulting from the work-related injury. (R. at 417). Dr. Lee administered nerve block injections to Plaintiff before recommending a "functional capacity evaluation" and "spinal function sort test" in order "to evaluate [Plaintiff's] residual ...

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