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Webber v. Colvin

United States District Court, Third Circuit

January 2, 2014

JAMES G. WEBBER, Plaintiff,
CAROLYN W. COLVIN, Acting Comm'r of Soc. Sec., Defendant.


SYLVIA H. RAMBO, District Judge.

In this appeal from a decision of the Commissioner of Social Security denying Disability Insurance Benefits and Supplemental Security Income, Plaintiff claims the administrative decision concluding that he has not been under a disability as defined by the Social Security Act is not supported by substantial evidence and contains errors of law. For the following reasons, the court will affirm the decision of the Commissioner.


A.Procedural History

On May 8, 2007, Plaintiff, James G. Webber, protectively filed applications for Title XVI Supplemental Security Income ("SSI") and Title II Disability Insurance Benefits ("DIB"). (Doc. 1, ¶ 5; Doc. 9, ¶1.) Plaintiff claimed disability beginning on May 1, 2006 (Doc. 10-5, p. 2 of 29), and listed the illnesses, injuries, or conditions that limited his ability to work as "bulging disc, degenerative disc disease and arthritis, cramping in feet up through the knees, severe back pain, continuous numbness in arms, hypertension, ... sharp, shooting pain in... biceps, [and] mild depression." (Doc. 10-6, p. 3 of 58.) He added that severe pain caused him "great distress when [he] tries to bend, squat, sitt [sic] and standing [sic]." ( Id. ) The Social Security Administration initially denied Plaintiff's application by decision dated September 7, 2007. (Doc. 10-4, pp. 2, 7 of 42.) On October 5, 2007, Plaintiff filed a timely Request for Hearing before an Administrative Law Judge ("ALJ"). (Doc. 10-4, p. 14 of 42.) ALJ Timothy Wing held a hearing on November 18, 2008, at which Plaintiff and Karen Kane, a vocational expert, testified. (Doc. 10-2, p. 69-104 of 104.) ALJ Wing issued an unfavorable decision to Plaintiff on November 26, 2008 (Doc. 10-3, pp. 15-18 of 21), which was remanded for further proceedings by the Appeals Council by order dated June 25, 2010 ( Id. . at p. 19 of 21). On November 16, 2010, ALJ Sridhar Boini conducted a supplemental hearing, at which time both Plaintiff and Gerald Keating, a vocational expert under contract with the Office of Disability Adjudication and Review, testified. (See Doc. 10-2, pp. 28-68 of 104.)

B.Plaintiff's General Background

Plaintiff was born in the United States on July 27, 1981 (Doc. 10-6, p. 9 of 58), and at all times relevant to this matter was considered a "younger individual, "[1] whose age would not seriously impact his ability to adjust to other work. 20 C.F.R. § 404.1563(c). Plaintiff has a seventh grade education and is able to communicate in English. (Doc. 10-6, p. 7 of 58; Doc. 10-2, p. 75 of 104.) As of the date of the hearings, Plaintiff was approximately five feet and eleven inches tall and weighed between 276 and 284 pounds.[2] (Doc. 10-2, p. 75 of 104.) Plaintiff lived with his disabled wife and three-year-old daughter. ( Id. . at p. 76 of 104.) Plaintiff had prior relevant work experience as a warehouse packer and dishwasher. (Doc. 10-6, p. 4 of 58.)

C.Medical Records

1.Musculoskeletal Impairments

Plaintiff underwent a L4-S1 lumbar decompression with L5 laminectomy in November 2005 (Doc. 10-8, p. 3 of 56), and was thereafter cleared for regular duty work in February 2006 (Doc. 10-7, p. 22 of 93). In May 2007, Plaintiff reported that he was experiencing back pain after he started a new job that required him to lift 24 pounds. ( Id. at p. 24 of 93.) His treating physician, Dr. Emma Rubin, temporarily restricted Plaintiff from working. ( Id. ) Two months later, Plaintiff returned to Dr. Rubin with complaints of chronic headaches. ( Id. at p. 25 of 93.)

Three months thereafter, Plaintiff returned to Dr. Rubin with reports of back pain, for which Dr. Rubin ordered an MRI. ( Id. . at p. 69 of 93.) The MRI showed post-operative changes at the L5 vertebral level, with minimal enhanced scar tissue, degenerative disc disease at the L4-5 and L5-S1 levels, a stable small right paracentral disc protrusion that caused a minimal impression on the thecal sac, a stable small central disc protrusion at the L5-S1 level which was causing mild narrowing of the anterior epidural fat, and mild stable neural foraminal narrowing at the L4- and L5-S1 levels. ( Id. . at p. 73 of 93.) Dr. Rubin treated Plaintiff by way of prescribing medication. ( Id. . at p. 64 of 93.)

On August 17, 2007, Dr. Barry Minora, a consulting physician, indicated that Plaintiff complained of pain in the center of his lower back and had limited range of motion of his lumbar spine, but had full range of motion of his cervical spine, and of his upper and lower extremities. ( Id. . at p. 39 of 93.) With respect to Plaintiff's physical abilities, Dr. Minora found, inter alia, as follows:

[Plaintiff] had 5/5 strength bilaterally in all extremities. His DTRs were intact. His ability to perform fine and dexterous movements with his upper extremities were within normal limits. Fine and gross hand movements of both within normal limits. The gait and neurologic status was within normal limits. He had 5/5 strength in all extremities. As far as his range of motion and physical activities chart, he had normal range of motion in the shoulders, elbows, wrists, and fingers. motion was noted on supination and pronation. ranges of motion with wrist with palmer flexion, radial deviation, ulnar deviation, and dorsiflexion. The was normal range of motion with the knee with flexion, extension and normal range of motion with the knee with flexion, extension and normal range of motion of the hip with forward flexion and backward extension. Interior and exterior rotation, abduction and adduction were all within normal limits. At the cervical spine, lateral flexion, flexion, extension, and rotation all within normal limits. The lumbosacral spine was limited to approximately 40 degrees with flexion, extension, and lateral flexion was normal with left and right. Dorsiflexion of the ankle and plantar flexion were also within normal limits.

( Id. . at p. 40 of 93.) Dr. Minora presented the following opinion regarding Plaintiff's work-related physical abilities:

[Plaintiff] could probably frequently lift or carry 10 pounds. Standing and walking, I saw no limitation. Sitting, I saw no limitation. Pushing and pulling would be limited in both the upper and lower extremities because of previous back injury to approximately 10 pounds. He can occasionally bend, kneel, stoop, crouch, bounce, climb, or crawl. Other physical functions, I saw no limitations. Environmental restrictions, there was no limitation.

( Id. ) Several months thereafter, Plaintiff was evaluated by Dr. P. Shripathi Holla, a neurological surgeon. ( Id. . at p. 62 of 93.) Dr. Holla noted that Plaintiff was not currently taking medication, and did not need surgery, but that losing approximately fifty pounds would "help him substantially." ( Id. )

Plaintiff saw Dr. Rubin numerous times during 2008; however, his reports of back pain were inconsistent. (See generally id.) Dr. Rubin did not find any medical or physiological abnormalities related to Plaintiff's back. (See id.) Plaintiff requested Dr. Rubin to complete disability paperwork on November 10, 2008. (Doc. 10-8, p. 21 of 56.) Dr. Rubin identified extreme functional limitations inconsistent with full time work. (Id. at pp. 18-20 of 56.) In Plaintiff's follow-up visit to Dr. Rubin in February 2009, Plaintiff claimed he had intermittent pain in his neck. ( Id. . at p. 36 of 56.) Plaintiff also complained of back pain "since last Wednesday, " and requested a medication change to treat the pain, for which Dr. Rubin prescribed ibuprofen. ( Id. . at p. 35 of 56.) During a follow up two weeks thereafter, Plaintiff reported that he felt much better. ( Id. . at p. 34 of 56.) Plaintiff next saw Dr. Rubin in March 2010, and complained of numbness in his left upper arm, but Dr. Rubin noted that Plaintiff was not in acute distress. ( Id. . at p. 33 of 56.) During his next follow up in July 2010, Plaintiff indicated he had pain in left shoulder, but again was not in acute distress. ( Id. . at p. 32 of 56.) In August 2010, Plaintiff visited Dr. Rubin again following a fall injuring his left ankle. ( Id. . at p. 31 of 56.) The medical records related to that visit do not indicate that Plaintiff complained of back pain. ( Id. ) On December 5, 2010, Plaintiff reported to the Community Medical Center with complaints of sharp, non-radiating back pain that had began the previous day while Plaintiff was bending over. (Doc. 10-9, p. 59 of 67.) Plaintiff was treated with pain medications, which he reported were effective in reducing the pain. (Id. at pp. 62-63 of 67.) An MRI on Plaintiff's spine noted that vertebral height was normal without compression deformity and that visualized disk spaces were unremarkable with no evidence of fracture. ( Id. . at p. 67 of 67.)

2.Psychological Impairments

With regard to Plaintiff's mental health issues, records show that Plaintiff was evaluated in October 2005, and diagnosed as having a depressive disorder, not otherwise specified, and a global assessment functioning score of 65. (Doc. 10-7, p. 15 of 93.) Although prescribed, Plaintiff did not take medication because the "situation that cause[d] the anxiety and depression" was eliminated after Plaintiff's "mean neighbor moved." ( Id. . at p. 19 of 93.) Thus, in November 2005, Plaintiff reported that he felt "great." ( Id. )

On August 2, 2007, Plaintiff saw Dr. Ali Nourian for a consultative psychological evaluation. ( Id. . at p. 31 of 93.) Plaintiff reported that he had been experiencing depression secondary to his being unemployed. ( Id. . at p. 32 of 93.) The record contains Plaintiff's self reports of back pain, which he claimed adversely affected his sleep. ( Id . Dr. Nourian reported that Plaintiff had difficulty with concentration and persistence, mostly due to his weight problem and chronic back pain, and was diagnosed as having a depressive disorder, not otherwise specified, secondary to a medical problem. (Id. at pp. 34-35 of 93.)

Dr. William Flock, a state agency psychologist, performed a psychological evaluation of Plaintiff as part of his examination for the social security administration on August 23, 2007, and stated that Dr. Nourian's narrative report did not support the identified limitations. ( Id. . at p. 54 of 93.) Moreover, Dr. Flock opined that Plaintiff had mild restrictions of activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence, or pace, and zero episodes of decompensation. ( Id. . at p. 52 of 93.) Dr. Flock also concluded that Plaintiff could follow simple commands, accept supervision, adapt to changes, and maintain persistence and pace. ( Id. . at p. 54 of 93.) Dr. Flock opined that Plaintiff did not suffer from a severe impairment. (Id. at pp. 42, 54 of 93.)

On February 11, 2008, Plaintiff visited the Scranton Counseling Center for purposes of a psychological evaluation. ( Id. . at p. 79 of 93.) The record indicates Plaintiff was referred to the institution by his lawyer, listed the chief complaint as ongoing depression, and listed several psychological stressors, including his attempts to get disability, financial issues, and arguing with his wife. ( Id. . at p. 80 of 93.) Plaintiff's depression was treated by prescribed medications and adult outpatient therapy, and Plaintiff was ultimately discharged in March 2010 as improved. (Doc. 10-8, p. 29 of 56.) In August 2010, Plaintiff returned to Scranton Counseling Center, with the chief complaint of anger issues. ( Id. . at p. 43 of 56.) Plaintiff's mood, affect, and thought processes were described as anxious, appropriate, and coherent, respectively. ( Id. . at p. 52 of 56.) Plaintiff appeared to have good judgment, adequate concentration, and adequate attending skills. ( Id. . at p. 53 of 56.) At this time, Plaintiff had a global assessment functioning score of 55, and again was diagnosed as having a depressive disorder, not otherwise specified. ( Id. . at p. 54 of 56.)

C.Hearing Testimony

Plaintiff testified that, although the back surgery in November 2005 initially provided him relief from pain, he was unable to work due to his suffering from, what amounted to, debilitating pain in his lower back and ...

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