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Boggs v. Colvin

United States District Court, W.D. Pennsylvania

April 28, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.




Wesley D. Boggs ("Plaintiff"), brings this action pursuant to 42 U.S.C. § 405(g) and U.S.C. § 1383(c)(3), seeking review of the final determination of the Commissioner of Social ("Defendant" or "Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403 ("the Act"). This matter comes before the Court on cross motions for summary judgment. (Docket Nos. 12, 16). For the following reasons, Plaintiff's Motion for Summary Judgment is denied and Defendant's Motion for Summary Judgment is granted.


Plaintiff applied for DIB on November 3, 2010, alleging a disability onset date of April 30, 2005. (R. at 120).[1] On December 10, 2010, Plaintiff amended his alleged disability onset date to September 1, 2005. (R. at 124). He alleged "spinal fusions with complications" as his disabling impairment. (R. at 154). Plaintiff's claim was denied on December 9, 2010. (R. at 74). He requested a hearing before an Administrative Law Judge ("ALJ") which was held before ALJ Joanna Papazekos on April 20, 2012. (R. at 33-59, 72, 79).

The ALJ denied Plaintiff's claim for DIB in a decision dated May 15, 2012. (R. at 15-25). Plaintiff's request for review of the ALJ's decision by the Appeals Council was denied on June 25, 2013, at which time the ALJ's decision became the final decision of the Commissioner. (R. at 1, 8). Plaintiff filed a Complaint in this Court on August 27, 2013. (Docket No. 3). Defendant filed an Answer on November 15, 2013. (Docket No. 5). On January 15, 2014, Plaintiff filed a Motion for Summary Judgment and a Brief in Support. (Docket Nos. 12, 13). Defendant's Motion for Summary Judgment and Brief in Support were filed on March 3, 2014. (Docket No. 16). This matter has been fully briefed and is ripe for disposition.


A. General Background

Plaintiff was born on November 11, 1967 and was forty-four years old[2] at the time of the hearing. (R. at 37). Plaintiff was involved in a car accident in 2004, after which he complained of pain in his back and neck. (R. at 270, 300, 317). He underwent surgery on September 27, 2005 to repair injuries to his lumbar spine. (R. at 306, 457). On October 28, 2005, Plaintiff underwent a second procedure to remove damaged hardware installed during the first surgery. (R. at 449). Plaintiff told his physicians that he was involved in a second car accident in 2008 and was further injured. (R. at 993). He alleged during the hearing that he was constantly in pain but was able to find some relief while sitting in a reclining chair. (R. at 45).

B. Employment History

Plaintiff worked as a manager for an insurance restoration service from 1990 to 1999, where he painted and hung drywall (heavy, skilled work). (R. at 55). Although Plaintiff initially testified that he had not worked since his alleged onset date of September 1, 2005, Plaintiff admitted to working as a secretary for three to four hours a day in 2008. (R. at 39). He was fired from this position after less than a year for being unqualified. (R. at 40).

C. History of Medical Treatment

i. Dr. Gerald Werries, M.D.

Plaintiff was treated by Gerald J. Werries, M.D., an orthopedic surgeon, from 2004 to 2009. (R. at 518, 1029). At his first visit with Dr. Werries on May 12, 2004, Plaintiff explained that he had been rear-ended by another driver and was suffering from low back pain and muscle spasms. (R. at 522). He denied leg pain or weakness and rated his pain between four and eight on a scale of ten. ( Id. ). Overhead activity and standing exacerbated his symptoms but they were relieved by physical therapy, stretching exercises, steroids, and pain medication. (R. at 522). Plaintiff was able to return to his job with duty restrictions. ( Id. ). Dr. Werries noted that an MRI showed mild degenerative disc disease. (R. at 523). When he returned on July 7, 2004, Plaintiff reported that his symptoms had improved but he suffered low back spasms after standing for longer than one hour at work. (R. at 520). Dr. Werries recommended trigger point injections of his neck and lower back. (R. at 521). He was placed on a modified work duty regime of standing for no longer than one hour at work. ( Id. ).

Plaintiff told Dr. Werries on September 22, 2004 that his back pain had improved since his last visit and he felt great. (R. at 518). He still suffered from intermittent back pain which he rated between two and three out of ten. ( Id. ). Back injections which he started receiving that month had significantly reduced his pain. (R. at 324, 518). He was instructed to continue the pain clinic injections and physical therapy exercises. ( Id. ). Plaintiff returned to Dr. Werries on December 8, 2004 reporting significant pain reduction. (R. at 220). He was very pleased with his results but continued to have pain in his neck and shoulder. ( Id. ).

He reported on February 9, 2005 that physical therapy helped but he still suffered back and shoulder pain. (R. at 683). Plaintiff had a full range of motion in his cervical spine and he denied any weakness or numbness. ( Id. ). Dr. Werries referred Plaintiff to Gerald J. Ross, M.D., who completed a radiology report on February 16, 2005. (R. at 318). Dr. Ross observed some posterior osteophytic spurring on a vertebrae but it did not encroach Plaintiff's spinal cord. ( Id. ). The remaining cervical vertebra and intervertebral discs were observed to be normal. ( Id. ).

Plaintiff's pain was unchanged when he returned to Dr. Werries on March 2, 2005. (R. at 681). He told Dr. Werries that massage therapy was ineffective and joint injections were followed by increased lower back pain. ( Id. ). His symptoms were exacerbated by lifting. ( Id. ). Ultram[3] and Celebrex[4] provided minimal relief. ( Id. ). On April 20, 2005, Plaintiff told Dr. Werries that his lower back pain had been aggravated days earlier while he was standing on a ladder. (R. at 679). His medications provided minimal relief. ( Id. ).

Plaintiff presented to Dr. Werries on August 24, 2005 complaining of pain in his lower back and left thigh. (R. at 506). He told Dr. Werries that a disc decompression procedure[5] he underwent at Allegheny General Hospital on August 18, 2005 had not relieved his symptoms and using a brace had aggravated his pain. (R. at 506, 266-267, 306). Dr. Werries recommended that Plaintiff return for follow-up after undergoing an MRI. (R. at 507). On August 31, 2005, Plaintiff complained of worsening symptoms including severe low back pain and pain in his right buttock radiating into his thigh. (R. at 594). Dr. Werries recommended surgery to treat lumbar spondylosis. (R. at 595).

On September 27, 2005, Dr. Werries performed an "L3-L4-L5 laminectomy foraminotomy with an L3 to S1 posterolateral fusion with the use of iliac cred bone graft, local autograft, allograft instrumentation along with placement of a posterior lumbar interbody fusion at L4-5 and L5-S1". (R. at 306, 457). The preoperative report indicated lumbar spondylosis as Plaintiff's preoperative and postoperative diagnosis. (R. at 308). There were no complications. (R. at 308, 312). In a report completed prior to discharge, Dr. Werries noted that Plaintiff's pain was under control and he was able to ambulate with minimal difficulty. (R. at 306). Plaintiff was discharged on September 30, 2005 with instructions to continue wearing a brace and taking pain medication. (R. at 306-307).

Plaintiff told Dr. Werries on October 12, 2005 that he was doing well since his surgery but suffered increasing pain in his thighs. (R. at 502). His back pain was minimal. ( Id. ). Both of Plaintiff's surgical scars were well healed with no signs of infection. ( Id. ). X-rays from this visit showed excellent alignment of the screws and grafts with no sign of hardware failure. ( Id. ). On October 19, 2005, X-rays indicated a possibility of Plaintiff's bone graft becoming dislodged. ( Id. ). Dr. Werries confirmed on October 26, 2005 that X-rays showed a questionable dislodgement of the bone graft and recommended removal of the hardware. (R. at 449, 498-499, 668).

Dr. Werries admitted Plaintiff to Ohio Valley General Hospital for removal of the hardware on October 28, 2005. (R. at 449). Plaintiff tolerated the surgery well and there were no complications. (R. at 449). His pain was controlled and he was discharged two days later. ( Id. ). He was prescribed Oxycontin and Percocet. (R. at 455).

Dr. Werries opined on November 9, 2005 that Plaintiff had done very well since surgery. (R. at 534). He reported reduced leg and back pain and Plaintiff no longer required OxyContin but still took Percocet and Celebrex. ( Id. ). Plaintiff characterized his condition as "very well" on December 14, 2005, reporting minimal back pain and mild pain from the surgical incision. (R. at 536). He felt that his symptoms had improved by sixty to seventy percent. ( Id. ). His ability to stand or walk for longer periods of time was improved. ( Id. ). He still used a cane to ambulate but told Dr. Werries it was "mostly for security reasons." ( Id. ).

On January 11, 2006, Dr. Werries concluded that Plaintiff could return to a modified work duty. (R. at 544). Plaintiff told Dr. Werries that his most recent back injection provided minimal relief but physical therapy was helping and he was "doing fairly well." (R. at 661). Dr. Werries advised Plaintiff to start aqua therapy and wean himself off of narcotics. (R. at 662). Plaintiff was assessed with the following limitations: must have the ability to change position as needed; may not lift more than twenty-five pounds; not able to climb ladders; occasionally able to bend, climb stairs, crawl, squat, reach, push/pull, or grasp; and occasionally able to engage in fine manipulation or repetitive motion. ( Id. ).

Plaintiff was "doing fairly well" on February 22, 2006 since his last visit and reported that physical therapy and aqua therapy were helping to strengthen his legs. (R. at 659). He reported that the pain in his anterior thigh had been resolved but he still suffered from persistent lower back pain as well as pain over his bone donor site. ( Id. ). Although he continued to suffer from pain, he reported that his symptoms were lessened since surgery and he was pleased with the results of his treatment. ( Id. ). The vocational limitations as assessed during his most recent visit were unchanged. (R. at 540).

He again reported "doing fairly well" on May 31, 2006. (R. at 657). His pain was aggravated by walking up and down stairs but sitting provided relief. ( Id. ). He had a negative straight leg raise result. ( Id. ). On August 30, 2006, Plaintiff told Dr. Werries that the last injection he received provided no relief and his back pain and spasms had increased. (R. at 655). X-rays showed no sign of instability or hardware failure but Dr. Werries noted the possibility of posterior displacement of the graft. ( Id. ). Plaintiff had a positive straight leg raise on the left. ( Id. ). He was given a prescription for Percocet, Celebrex, and Flexeril.[6] (R. at 656). An MRI was recommended to rule out nerve root impingement. ( Id. ).

On September 6, 2006, Plaintiff reported improvement in his back pain since taking Flexeril but still suffered from intermittent pain radiating down his left buttock and into his thigh. (R. at 653). An MRI revealed no significant nerve root impingement. ( Id. ) Dr. Werries recommended that Plaintiff start epidural steroid injections[7] of the lumbar spine. ( Id. ). Plaintiff returned to Dr. Werries on November 8, 2006 after receiving three steroid injections. (R. at 652). He reported that he was "doing fairly well" and that his back pain was tolerable with medication and the injections. (R. at 652).

Plaintiff told Dr. Werries on February 7, 2007 that steroid injections provided "significant relief" for his pain for two to three weeks after each injection. (R. at 650). He continued to experience pain in his left buttock, radiating down his left thigh. ( Id. ). Aqua therapy helped his symptoms along with Lyrica and Celebrex. ( Id. ). He had reduced his use of Percocet. ( Id. ).

On May 30, 2007, Plaintiff told Dr. Werries that he was "doing fairly well" and his pain usually ranked between one and two out of ten. (R. at 648). OxyContin, Lyrica, and Celebrex were effective at reducing his pain. ( Id. ). He told Dr. Werries on September 26, 2007 that he was able to live with his back pain. (R. at 995).

When he returned on November 5, 2008, Plaintiff told Dr. Werries that he had been rear-ended in another car accident two days earlier and was suffering from increased back pain which radiated down his leg into his left thigh. (R. at 993). Plaintiff was wearing a safety-belt at the time of the accident and the airbag was not deployed. ( Id. ). Dr. Werries made the following physical findings: fairly labored gait; difficulty arising from a seated position; slow cadence; and difficulty walking on his heels and toes. ( Id. ). He had a positive straight leg raise. ( Id. ). At his next visit on November 12, 2008, Plaintiff reported that his symptoms had improved. (R. at 992). His gait was fairly normal, he could rise from a seated position with less difficulty, and he was able to walk on his toes and heels without difficulty. ( Id. ). An MRI of his spine taken on November 9, 2008, two days after his second car accident, showed no change when compared with an MRI taken before the accident. ( Id. ). Dr. Werries recommended physical therapy. ( Id. ).

Plaintiff did not return to Dr. Werries until December 23, 2009, at which time he complained that spinal injections provided temporary relief but he still suffered from lower back pain. (R. at 1029). He complained of constant pain in his left calf and thigh and felt that his symptoms were worsening. ( Id. ). X-rays of Plaintiff's lumbar spine showed "excellent alignment of the pedicle screws, adequate posterolateral gutters, excellent alignment of interbody spacers, and no signs of hardware failure." (R. at 1030). Once again, Plaintiff had a negative straight leg raise report. ( Id. ). An EMG study showed mild nerve root irritation. ( Id. ). The record does not indicate that Plaintiff received any further treatment from Dr. Werries.

ii. Back and Neck Injections with Dr. Alka Kaushik, M.D.

Plaintiff was given a series of injections by Alka Kaushik, M.D., at North Hills Pain Management from 2004 to 2007. (R. at 258, 765). On August 25, 2004 Dr. Kaushik opined that an MRI of Plaintiff's spine, taken after his first car accident, was within normal limits. (R. at 784). Yet, Dr. Kaushik began performing joint injections of Methylprednisone[8] on September 14, 2004. (R. at 324). Plaintiff consistently tolerated this procedure well. (R. at 324-328, 581, 770-771, 785-786, 788-790). In fact, he reported complete pain relief after the first procedure. ( Id. ).

On October 27, 2004, Plaintiff's spasms and pain were decreased. (R. at 262). His lower back pain was only aggravated by standing and walking but was relieved while at rest. ( Id. ). Dr. Kaushik reviewed his MRI showing that the lumbar spine was within normal limits. ( Id. ). Plaintiff returned to Dr. Kaushik on October 29, 2004 and acknowledged significant but temporary relief. (R. at 326). On November 18, 2004, Dr. Kaushik signed a treatment note practically identical to the one completed after the previous visit. (R. at 258). On November 23, 2004, Dr. Kaushik performed a rhizotomy, which Platintiff tolerated well and prescribed Percocet. (R. at 327). ( Id. ). Plaintiff told Dr. Kaushik on January 26, 2005 that he had experienced one hundred percent relief over the past two to three weeks. (R. at 777). His pain had increased, however, when he returned on February 16, 2005. ( Id. ). Plaintiff's injection was administered by Mark LoDico, M.D., on April 3, 2006. (R. at 581). When he returned on April 24, 2006, he told Dr. LoDico that the previous injection relieved his pain for two days. ( Id. ).

He complained of intense pressure during the procedure on November 3, 2006 and Dr. Kaushik suggested he consider trigger point injections.[9] (R. at 787). Plaintiff reported a fifty to sixty percent reduction in pain when he returned on November 15, 2006. (R. at 773). Dr. Kaushik performed trigger point injections on December 29, 2006 which Plaintiff tolerated well. (R. at 786). On January 17, 2007, Dr. Kaushik noted that Plaintiff's pain was "fairly well controlled." (R. at 771). Plaintiff returned on February 23, 2007 and Dr. Kaushik performed a nerve block which he tolerated well. (R. at 785). A month later, Dr. Kaushik noted that Plaintiff's pain was "well controlled" and instructed him to continue taking his medication. (R. at 767). His symptoms were unchanged when he saw Dr. Kaushik on May 13, 2007. (R. ...

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