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Grella v. Colvin

United States District Court, M.D. Pennsylvania

September 9, 2014

ROBERT GRELLA, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM TO DENY PLAINTIFF'S APPEAL Docs. 10, 11, 15, 16

GERALD B. COHN, Magistrate Judge.

I. Procedural History

On August 18, 2009, Robert Grella ("Plaintiff") protectively filed an application for Title II Social Security Disability benefits ("DIB"), with an onset date of January 17, 2006 (Tr. 17).

This application was denied, and on January 11, 2011, a hearing was held before an Administrative Law Judge ("ALJ"), where Plaintiff testified and was represented by counsel. (Tr. 31-74). On April 21, 2011, the ALJ issued a decision finding that Plaintiff was not entitled to DIB because Plaintiff could perform reduced range of light work (Tr. 21-22, Finding No. 5). On August 22, 2012, the Appeals Council denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On October 23, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g), to appeal the decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1.

On December 17, 2012, Commissioner filed an answer and administrative transcript of proceedings. Docs. 9, 10. In January, February, and March 2013, the parties filed briefs in support. Docs. 11, 15, 16. On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. On June 9, 2014, Plaintiff notified the Court that the matter is ready for review, and the parties consented to Magistrate Judge jurisdiction. Doc. 18.

II. Standard of Review

When reviewing the denial of disability benefits, we must determine whether the denial is supported by substantial evidence. Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec. , 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood , 487 U.S. 552, 564 (1988); Hartranft v. Apfel , 181 F.3d 358, 360. (3d Cir. 1999); Johnson , 529 F.3d at 200.

This is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only "more than a mere scintilla" of evidence. Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). It may be less than a preponderance. Jones , 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner's determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986).

To receive disability or supplemental security benefits, Plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A).

Moreover, the Act requires further that a claimant for disability benefits must show that he has a physical or mental impairment of such a severity that: "he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

III. Relevant Facts in the Record

A. Background

Plaintiff, who was only forty-three years old on his alleged disability onset date (Tr. 25, Finding No. 7), is a younger individual according to the Commissioner's Regulations. 20 C.F.R. § 404.1563 (2012). He lives with his parents and his eleven-year-old son (Tr. 37). He has a high school education and past work experience in construction and driving a fork lift (Tr. 163, 168). His past relevant work is as a warehouse worker (heavy unskilled work) and forklift worker (medium semi-skilled work) (Tr. 25). Plaintiff worked as a supervisor/construction worker, prior to his onset date of January 17, 2006, when he was 43 years of age. He had previously obtained a GED. Pl. Br. at 1, Doc. 11.

The instant appeal stems from Plaintiff's initial application of disability, filed on August 18, 2009 (Tr. 17). Pl. Br. at 1, Doc. 11. Plaintiff alleges disability due to "depression, bipolar disorder, spinal herniation of the mid and lower back, left arm pain, neck fusion at C5 and C6, missing disc in back, and carpal tunnel" (Tr. 162). He reported that he cannot lift anything or sit for long periods, he does not want to leave the house, and he isolates himself (Tr. 162).

Plaintiff also reported that he is able to care for his personal needs, attend Alcoholics Anonymous (AA) meetings and counseling sessions, launder clothes, clean the house, mow the lawn, prepare meals, drive his son to school and help him with homework, go outside daily, walk his dog, shop in stores, watch television, and read (Tr. 174-78). He also indicated that he could pay bills, count change, handle a savings account, and use a checkbook/money orders (Tr. 177).

Plaintiff indicated that he can follow written instructions "good, " and he gets along with authority figures (Tr. 179-80). He admitted that his treating physicians never prescribed a cane or other assistive device, and he revealed that his arm pain improved after surgery (Tr. 180, 182). Plaintiff reported that he treated his pain with physical therapy and biofeedback (Tr. 182). He also reported that he took hot showers and received massage therapy (Tr. 182).

B. Relevant Medical Evidence

1. Evidence Relevant to Plaintiff's Physical Impairments

On January 17, 2006, Plaintiff fell from a ladder while working (Tr. 228). He began treatment with Matt Vegari, M.D., for complaints of severe headaches, and neck, back, and shoulder pain (Tr. 233). Upon examination, Dr. Vegari observed limitations in the range of motion of Plaintiff's neck and shoulders, tenderness in his thoracic spine, and severe lumbo-sacral paraspinal muscle spasm (Tr. 234). He recommended physical therapy and a series of facet blocks, and he prescribed pain medication (Tr. 235). He opined that Plaintiff could not lift more than three to five pounds or engage in pushing or pulling (Tr. 235).

On March 6, 2006, Dr. Vegari reviewed Plaintiff's MRI studies. MRI of Plaintiff's thoracic spine revealed a compression fracture and a bulging disc, a cervical spine MRI revealed a herniated disc and neural foraminal narrowing, and a lumbar spine MRI revealed herniated discs (Tr. 236). Physical examination revealed limited range of motion at Plaintiff's neck and left shoulder, lumbosacral paraspinal muscle spasm, and joint tenderness, but neurological examination findings were unremarkable (Tr. 236). Plaintiff reported that he was performing physical therapy and had received a facet block in the thoracic region (Tr. 236). Dr. Vegari advised Plaintiff to continue these measures and take pain medication (Tr. 237).

On August 16, 2006, Dr. Vegari's colleague, Slobodan Miric, M.D., recorded Plaintiff's complaints of mid-back and left shoulder pain, and opined that Plaintiff was temporarily totally disabled (Tr. 238).

On October 2006, orthopedic surgeon Richard Obedian, M.D., evaluated Plaintiff and reviewed his MRI studies (Tr. 305). Physical examination revealed tenderness and limited range of motion, but was otherwise unremarkable (Tr. 306). Neurological examination results were normal (Tr. 306). An MRI of Plaintiff's lumbar spine revealed herniation, disc desiccation, and right lateral intraforaminal disc herniation; an MRI of Plaintiff's cervical spine revealed mild disc desiccation throughout, mild broad herniation, and mild narrowing of the neural foramina; and an MRI of Plaintiff's left shoulder revealed acromioclavicular (AC) joint hypertrophy without impingement, and no evidence of recurrent full-thickness rotator cuff tear (Tr. 307). Plaintiff reported that his shoulder pain was intermittent, but grew worse with overhead activity (Tr. 305). Although he complained of constant, unremitting, radiating neck pain, he reported that facet joint blocks of his lower spine provided relief of his mid-lower back pain (Tr. 305).

Dr. Obedian diagnosed rotator cuff sprain, lumbar intervertebral disc without myelopathy, displacement of cervical intervertebral disc, shoulder impingement syndrome, cervical degenerative disc disease, and thoracic sprain (Tr. 307). He administered a cortisone injection to Plaintiff's shoulder, which provided excellent relief of Plaintiff's pain (Tr. 307). Dr. Obedian also recommended anterior cervical discectomy and fusion (ACDF) for Plaintiff's cervical spine (Tr. 307).

Plaintiff reported improvement of his pain when he returned to Dr. Miric on February 12, 2007 (Tr. 239). Dr. Miric encouraged Plaintiff to continue taking Percocet and urged him to use over-the-counter thermal patches as needed for pain (Tr. 239). He opined that Plaintiff should not engage in pushing, pulling or lifting more than ten pounds (Tr. 239). Dr. Miric rendered the same opinion on March 12, 2007 (Tr. 241).

Plaintiff was stable on April 30, 2007 (Tr. 242). He reported an 80% reduction of his pain after receiving facet blocks on May 8, 2007, and experienced additional relief after a series of blocks performed on June 1, 2007 (Tr. 243-44).

Plaintiff underwent arthroscopic surgical repair of a torn rotator cuff on June 5, 2007 (Tr. 395-96). During a post-surgery examination on June 15, 2007, orthopedic surgeon Robert Michaels, M.D., observed excellent shoulder range of motion and advised Plaintiff to begin gentle physical therapy (Tr. 347). On July 2, 2007, Dr. Michaels opined that Plaintiff was healing well despite experiencing pain after lifting his child (Tr. 347). He advised Plaintiff to continue physical therapy (Tr. 382).

Plaintiff returned to Dr. Miric on July 3, 2007, and reported that he recovered well from surgery but experienced pain after lifting his son (Tr. 247). Dr. Miric advised Plaintiff to continue pain medication, receive additional facet blocks, and avoid pushing, pulling, and lifting more than ten pounds (Tr. 247).

Upon examination on August 10, 2007, Dr. Michaels observed excellent range of motion, good strength, negative drop arm test, and negative impingement sign (Tr. 382). He advised Plaintiff to continue physical therapy (Tr. 382). Plaintiff reported improvement in his strength, stating that he felt better than he did prior to surgery (Tr. 382).

Upon examination on August 31, 2007, Dr. Miric observed full strength in Plaintiff's upper extremities and tenderness in his cervical and thoracic spine (Tr. 248). He opined that Plaintiff was temporarily totally disabled (Tr. 248). On September 28, 2007, Plaintiff complained of pain in his neck, shoulder, and mid-back, but admitted that facet blocks caused a decrease in his pain (Tr. 249). He also reported relief in his lumbar spine (Tr. 249).

When Plaintiff returned to Dr. Michaels on October 10, 2007, he complained of pain with overhead movement, but admitted that he was improving overall (Tr. 382). He described numbness and tingling into his ring and pinky fingers, and Dr. Michaels observed a weak positive impingement sign (Tr. 382). Dr. Michaels diagnosed Plaintiff with status-post left shoulder arthroscopy and consequential left ulnar neuropathy at the elbow (Tr. 382). He also concurred with the opinion of Plaintiff's Workman's Compensation independent medical examination (IME) doctor, who recommended vocational retraining and advised Plaintiff to continue physical therapy (Tr. 383). On November 7, 2007, Plaintiff reported significant pain relief after undergoing an intraarticular left shoulder injection (Tr. 250).

On December 7, 2007, Plaintiff complained of pain in his left shoulder, as well as numbness and tingling radiating into his pinky finger, but admitted that it improved with physical therapy (Tr. 383). Although Dr. Michaels opined that Plaintiff was moderately partially disabled, he opined that Plaintiff could work if he did not lift over thirty pounds, repeatedly bend, perform overhead work, or work at heights (Tr. 383).

On February 6, 2008, Plaintiff reported less numbness and tingling; his shoulder range of motion was nearly full, and he had a negative impingement sign and good rotator cuff strength (Tr. 358).

In March 2008, Plaintiff reported that his shoulder was "status quo" (Tr. 384). On April 11, 2008, Plaintiff reported that he was diligently performing an independent exercise program, and his shoulder felt somewhat better (Tr. 385). Dr. Michaels opined that Plaintiff had moderate partial disability according to New York State's Workman's Compensation guidelines (Tr. 385).

On May 15, 2008, Dr. Miric advised Plaintiff to continue physical therapy and to apply a local muscle rub ointment for cervical spasm (Tr. 253). On June 11, 2008, he advised Plaintiff to continue physical therapy and pain medication (Tr. 274). Plaintiff reported that he wished to take classes to change his profession (Tr. 274). On July 16, 2008, Dr. Miric opined that Plaintiff's electromyogram (EMG) study was consistent with right carpal tunnel syndrome and cervical root irritation (Tr. 277). An MRI of Plaintiff's left shoulder revealed a bone bruise and evidence of prior rotator cuff surgery, but no new tear (Tr. 277). He opined that Plaintiff remained temporarily totally disabled (Tr. 278).

Despite Plaintiff's complaints of pain in June 2008 and September 2008, Dr. Michaels opined that, overall, Plaintiff's left shoulder range of motion was quite good (Tr. 385-86).

Upon examination of Plaintiff's left shoulder on October 24, 2008, Dr. Michaels observed a positive impingement sign, rotator cuff weakness, and mild restriction in motion (Tr. 386). He performed an injection at Plaintiff's shoulder (Tr. 386). In November 2008, he opined that Plaintiff's range of motion was good and that Plaintiff had reached maximum medical improvement (Tr. 387). On January 16, 2009, Plaintiff complained of pain in the shoulder girdle (Tr. 387). Dr. Michaels opined that Plaintiff experienced ongoing cervical radiculopathy superimposed on his shoulder condition (Tr. 388). In both March and April 2009, Dr. Michaels observed limited range of motion in Plaintiff's neck, and an MRI revealed disc herniation with thecal sac impingement and disc disease (Tr. 363). Dr. Michaels diagnosed cervical radiculopathy and opined that Plaintiff was completely disabled from returning to his occupation (Tr. 363).

On July 2, 2009, Dr. Michaels again opined that Plaintiff was completely and totally disabled from returning to his occupation (Tr. 390). An August 13, 2009 examination was unremarkable, and Dr. Michaels opined that Plaintiff was "certainly" doing better following shoulder surgery, and his cervical spine continued to be his main problem (Tr. 391).

On August 26, 2008, Plaintiff experienced significant pain relief after a series of facet blocks administered by pain specialist Ajay Kumar, M.D. (Tr. 294). On October 2, 2008, Dr. Kumar advised Plaintiff to continue a home stretching and strengthening program, and to continue using his pain medication (Tr. 300).

On October 17, 2008, Dr. Miric observed tenderness in Plaintiff's cervical spine, but noted that he had full muscle strength (Tr. 301). He advised Plaintiff to continue his pain medication (Tr. 301).

During an examination on December 3, 2008, with Dr. Miric's colleague, Fuhai Li, M.D., Plaintiff complained of tenderness in his cervical spine, but reported that his pain remained stable on medication (Tr. 314). An MRI study on Plaintiff's cervical spine, conducted on April 8, 2009, revealed evidence of degenerative changes, herniation, and foraminal narrowing, but no evidence of stenosis, lesion, or compression (Tr. 317). Dr. Li observed no significant changes since Plaintiff's previous study (Tr. 317). On April 20, 2009, Dr. Li examined Plaintiff, observed limited range of motion and tenderness in his neck and left shoulder, and opined that Plaintiff was completely disabled (Tr. 319-20).

On May 19, 2009, pain management specialist Daniel Brietstein, M.D., observed pain with flexion and extension of Plaintiff's cervical spine (Tr. 326). However, he also observed equal and symmetrical neuromuscular strength in Plaintiff's upper ...


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