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Tomas Brizuela v. Michael J. Astrue

December 28, 2012


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



Tomas Brizuela ("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 claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff filed his applications on September 25, 2008 alleging disability since February 2, 2008 due to back problems (AR 85-91; 106).*fn1 His application was denied (AR 51-55), and following a hearing held on April 1, 2012 (AR 25-48), the administrative law judge ("ALJ") issued his decision denying benefits to Plaintiff on August 31, 2010 (AR 10-19). Plaintiff's request for review by the Appeals Council was subsequently denied (AR 1-5), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the Plaintiff's motion will be denied and the Commissioner's motion will be granted.


Plaintiff was 34 years old on the date of the ALJ's decision and has a general equivalency diploma (AR 17-18; 29). He last worked as a steel fitter until February 2, 2008 (AR 13).

The medical records reveal that Plaintiff injured his back in March 2006 during an altercation with security guards at a casino (AR 149; 162). An MRI dated June 15, 2006 revealed a large central to left L5-S1 disc herniation (AR 154). In August 2006, Plaintiff underwent a lumbar discectomy performed by William Diefenbach, M.D. and returned to his normal activities (AR 173; 175).

Plaintiff was seen by Dr. Diefenbach at Saint Vincent Neurosurgery in February 2008 and reported that while playing ping pong he coughed and felt a "pop" in his back, followed by radiating pain down his left leg (AR 175). He further reported difficulties with daily activities and that his pain was only alleviated by lying down (AR 175). An MRI of Plaintiff's lumbar spine dated February 5, 2008 revealed a herniated disk at the L5-S1 level on the left, effacing the S2 nerve root in the lateral recess (AR 177; 193).

On March 5, 2008, Plaintiff underwent a lumbar discectomy performed by Dr. Diefenbach for his recurrent herniated disk (AR 175). The next day, it was reported that Plaintiff was able to walk "very well" and he was discharged in stable condition (AR 206). When seen for follow-up on March 19, 2008, Plaintiff complained of left sacroiliac joint pain and left foot paresthesia, but denied any leg pain (AR 170). It was noted that Plaintiff's gait was steady with a "significant antalgic*fn2 appearance" (AR 170). Plaintiff was prescribed a Medrol Dosepak (AR 170).

On April 21, 2008, physical therapy was recommended (AR 170). On April 30, 2008, Plaintiff underwent an initial evaluation for physical therapy (AR 270). He reported that his recent surgery had been successful but he complained of intermittent radicular pain (AR 270). On physical examination, Plaintiff exhibited a limited range of motion on extension and flexion activities exacerbated his symptoms (AR 270). His muscle strength was 4/5, and his symptoms were immediately reduced through "simple prone lying and correction of posture" (AR 270). Plaintiff was to undergo various treatment modalities and was instructed in a simple home exercise program (AR 270). At his appointment on May 12, 2008, Plaintiff reported that he was only able to play eight holes of golf because of radiating pain (AR 274).

On July 2, 2008, Plaintiff telephoned Saint Vincent Neurosurgery and reported that he felt he should continue to remain off work because he was unable to stand for more than two hours and was undergoing physical therapy (AR 169). Contact was made with Plaintiff's physical therapist on July 3, 2008, who reported that Plaintiff had stopped attending physical therapy for approximately one month, but had returned to therapy the previous week (AR 169). Plaintiff's therapist stated that Plaintiff had not "communicated there was anything wrong" and had reportedly been coaching baseball (AR 169). Daniel Muccio, M.D., requested that Plaintiff schedule an office visit to discuss his return to work (AR 169).

Plaintiff returned to Saint Vincent Neurosurgery on July 7, 2008 and was seen by Dr. Muccio (AR 173). Dr. Muccio noted that Plaintiff's radicular pain had improved, but he continued to have residual left buttock pain with increased activity (AR 173). Plaintiff reported that he had been coaching little league and while acting as a catcher he noticed increased pain, and since then had avoided squatting and bending (AR 173). On examination, Dr. Muccio found Plaintiff in no apparent distress, with a minimally tender back and a normal gait and stance (AR 173). He prescribed a Medrol Dosepak, extended Plaintiff's physical therapy treatment for one month, and ordered an MRI (AR 173). Dr. Muccio informed Plaintiff that he could perform light work (AR 173).

On July 14, 2008, Plaintiff reported to his physical therapist that his back hurt as a result of prolonged sitting on a bench and standing in long lines at a monster truck rally (AR 278). An MRI of Plaintiff's lumbar spine dated July 16, 2008 was unremarkable (AR 241). On July 28, 2008, Plaintiff reported to his physical therapist that he was "very sore" after walking up and down "a lot of stairs" (AR 280).

Plaintiff reported to his physical therapist on August 1, 2008 that he was sore secondary to being on his feet "a lot" (AR 281). On August 6, 2008, Plaintiff reported increased soreness secondary to playing tennis (AR 282). He indicated that he had no problems with daily activities, but still had some intermittent nerve pain (AR 282). Plaintiff's therapist reported that his strength was "grossly good-normal" and that Plaintiff was very active at home (AR 285). He reported that Plaintiff had minor intermittent radicular symptoms that were provoked by his compromised posture and body mechanics (AR 285). He recommended that Plaintiff be released to return to work in some capacity or undergo a functional capacity evaluation (AR 285).

On August 8, 2008, Plaintiff stated to his physical therapist that he was "still sore from playing tennis" (AR 282). On August 11, 2008, Plaintiff telephoned Saint Vincent Neurosurgery and was "upset" that he had been directed to obtain pain medication from his primary care physician (AR 168). Plaintiff stated that he "did not care" what the MRI results revealed and that he continued to have pain (AR 168). He was scheduled for an appointment with Dr. Muccio (AR 168). On August 13, 2008, Plaintiff reported to his physical therapist that he still had nerve pain and low back pain, but thought it was due to the physical exertion of jumping several times to catch a baseball the prior week (AR 283).

On August 21, 2008, Plaintiff was seen by Dr. Muccio and complained of low back pain radiating into his left buttock with an inability to stand for more than thirty minutes without severe pain (AR 171). He also reported some left leg weakness, but denied any numbness or paresthesias (AR 171). On examination, Dr. Muccio found Plaintiff in no apparent distress and his gait and stance were normal (AR 171). He reviewed Plaintiff's MRI and observed that there was no residual or recurrent nerve root compression (AR 171). Dr. Muccio noted that Plaintiff "continue[d] to report high pain levels postoperatively" (AR 171). He decided to keep Plaintiff off work for the following eight weeks, ordered additional diagnostic studies, and referred him to Jithendra Rai, M.D., a pain management specialist (AR 171-172).

On September 3, 2008, Plaintiff was seen by his physical therapist and reported almost constant "nerve pain" (AR 289). He had grossly good strength and his straight leg raising test was positive, but he had only "intermittent radicular symptoms, more prevalent with prolonged standing" (AR 289). Due to Plaintiff's limited progress, it was recommended that Plaintiff continue to exercise at a fitness center (AR 289).

An EMG/NCV study conducted on September 5, 2008 was mildly abnormal, revealing a "very mild" SI radiculopathy without evidence of active denervation (AR 179). No additional lumbosacral radiculopathy or isolated mononeuropathy of the left leg was seen (AR 179).

Plaintiff was seen by Dr. Rai on September 18, 2008, and described his pain as constant, aching, and sharp with burning radiation down his left leg (AR 331). He indicated that it affected his activities and was exacerbated by prolonged walking and standing (AR 331). He claimed that physical therapy had been ineffective and that it was only relieved by lying down (AR 331). Plaintiff denied any lower extremity weakness or problems with balance (AR 331). Dr. Rai noted that Plaintiff sat comfortably in the chair (AR 331). On physical examination, Dr. Rai found Plaintiff had mild tenderness in his lumbar spine and severe tenderness over the left sciatic notch (AR 331-332). Plaintiff had a restricted lumbar range of motion in all planes, and his straight leg raising test "appear[ed]" to be positive on the left (AR 331-332). Dr. Rai found Plaintiff had full muscle strength in his legs, normal deep tendon reflexes, normal sensation, and a normal gait (AR 332). Dr. Rai formed an impression of lumbar radiculopathy and lumbar disc displacement, recommended that Plaintiff undergo a lumbar epidural steroid injection, and prescribed Lortab (AR 332).

An MRI dated October 22, 2008 revealed a small left-sided recurrent disc herniation at the L5-S1 level and a posteriorly displaced nerve root (AR 182; 190). On October 23, 2008, Plaintiff had a caudal epidural injection administered by Dr. Rai (AR 330). A post-mylographic CT scan of Plaintiff's lumbar spine dated November 5, 2008 revealed pool filling of the left S1 nerve root sleeve and soft tissue density in the ventral left lateral aspect of the same area (AR 187; 190).

On January 15, 2009, Plaintiff underwent a consultative examination performed by John Kalata, D.O. (AR 290-295). Dr. Kalata noted that Plaintiff walked with a "sort of limping gait" favoring his left leg (AR 290). Plaintiff reported "unbearable pain" involving his lower back and left leg, exacerbated by sitting and standing (AR 290-291). On physical examination, Dr. Kalata found that Plaintiff could only raise his left leg about ten degrees and right leg fifteen degrees (AR 294). He could not walk on his heels or toes or crouch (AR 294). Plaintiff's reflexes were diminished but no atrophy was observed (AR 295). Dr. Kalata's impressions were, inter alia, chronic discogenic disease of the lumbar spine and severe sciatic neuritis on the left side (AR 294).

Dr. Kalata assessed Plaintiff's ability to perform work-related physical activities, opining that Plaintiff could only frequently lift and carry 2-3 pounds, occasionally lift and carry 10 pounds, stand for 1 hour or less, sit for 3 hours, and occasionally kneel (AR 296-297). Dr. Kalata further opined that Plaintiff was limited in his pushing and pulling abilities with his ...

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