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Benyak v. Colvin

United States District Court, Western District of Pennsylvania

September 10, 2014

DAVID V. BENYAK Plaintiff,




Plaintiff commenced this action seeking review of the decision of the Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”). The record was developed at the administrative level and the parties have filed cross motions for summary judgment. For the reasons set forth below, plaintiff’s motion for summary judgment will be granted to the extent it seeks to have the decision below vacated and the matter remanded for further proceedings, the Commissioner’s motion for summary judgment will be denied and final judgment will be entered in favor of plaintiff and against the Commissioner.


A. Procedural History

Plaintiff filed an application for disability benefits on September 20, 2010, alleging disability since June 15, 2010. R. 118. The application was denied on November 17, 2010. Id. A hearing was held before an ALJ on October 6, 2011. R. 21-53. Plaintiff, plaintiff’s friend Kelly Knot, and a vocational expert (VE) testified. Id. The ALJ rendered a decision on January 11, 2012 denying plaintiff’s application. R. 7-9. On April 19, 2013, the Appeals Council denied plaintiff’s request for review, making the ALJ’s decision the final ruling of the Commissioner. R. 1-5. This civil action followed.

B. General Background

Plaintiff was born on November 17, 1965, and was 44 years of age on June 15, 2010. R. 26. He had an eleventh grade education and had not received a GED. R. 29. Plaintiff is divorced and lives with his two daughters and girlfriend, Kelly Knot. R. 27. Plaintiff had a 10 year work history as a machine shop grinder and a cut-off saw operator in a family/self-owned business. Plaintiff ceased work and began leasing this business in 2006. R. 29-30. Plaintiff had not worked since 2006 and supported himself by leasing the building and selling the equipment in the machine shop. Id. Plaintiff had sufficient earnings to maintain an insured status through December 31, 2010. Consequently, to be entitled to DIB plaintiff had to establish that he became disabled on or before that date. See 42 U.S.C. § 414(a).

Plaintiff’s work in the machine shop required him to lift 25-40 pounds, cut steel, perform light grinding and do some paperwork. R. 30-31. This work was medium and semi-skilled in exertional/task level. R. 45-46. Plaintiff indicated he was no longer able to do the tasks necessary to perform this work. R. 31.

Plaintiff indicated his onset date was June 15, 2010 because he fell and injured himself. R. 26. Plaintiff did not seek immediate medical attention after the fall.

Plaintiff generally can perform the activities of daily living such as bathing and dressing himself, although it takes him longer because of pain. R. 31. He takes pain medication on a daily basis and when his pain increases he also uses a hot massage pad and hot baths. Id. He shifts from sitting, standing and walking at various intervals as well. Id. He watches television, reads the newspaper and does the family bills. Id.

Plaintiff can drive and travel in a car, but he does these things only when necessary. R. 147. He talks on the telephone and visits with friends that stop by occasionally. R. 148.

C. Medical Evidence

1. Physician and Medical History

On February 16, 2010, plaintiff sought follow-up treatment with his primary care physician, Joseph DiCroce, M.D., after suffering a fall on ice approximately six weeks earlier. R. 204. Plaintiff complained of pain in sacral region of his spine and indicated he was “staying off of it” to cope with the pain. Id. Dr. DiCroce’s impression was a “sacral fracture” and he continued plaintiff on Vicodin for pain and Flexeril for a muscle relaxer. R. 204, 199.[2]

On August 17, 2010, plaintiff first sought medical treatment with Dr. DiCroce following the fall on June 15, 2010. Plaintiff again presented with complaints of pain associated with a sprain or fracture in the sacral region. R. 203. Neurological testing revealed he could not dorsiflex his right foot and had developed an ongoing right foot drop. Id. Dr. DiCroce indicated plaintiff had a right foot drop, hyperlipidemia and COPD. Id. He continued plaintiff on his medications for pain management.[3] Id. at 203, 199. Dr. DiCroce also referred plaintiff for a battery of testing from specialists regarding his back pain and right foot drop. R. 193, 208, 183.

On August 23, 2010, plaintiff underwent a magnetic resonance image (“MRI”) conducted by Dr. Ramsey, M.D. R. 193. The testing revealed the following:

1. Disc herniations are present at L3-L4 and also at L4-L5.
2. At L3-L4, there is a mild to moderate focal central spinal stenosis. There is a mild posterocentral herniated nucleus pulposus at this level. There is mild bilateral lateral recess stenosis.
3. At L4-L5, there is a moderate to marked focal central spinal stenosis. There is a broad-based disc herniation at L4-L5. There is bilateral recess stenosis at the L4-L5 level.
4. At L5-S1, there is left lateral recess stenosis.

R. 194.

On September 02, 2010, an electrodiagnostic evaluation was performed by Dr. Arthur T. Androkites, M.D., to investigate plaintiff’s continued reports of pain, loss of feeling in the right foot, and right leg numbness among other symptoms. R. 208. Plaintiff presented with a history of constant right knee pain, numbness and tingling in the right foot, right leg weakness, right extremity weakness and lower back pain. Id. These symptoms had been present for a considerable period of time, and arose at night as well. Id. They were worsened by walking, sitting and standing. Id. Dr. Androkites concluded that a “systemic review” was “positive for [these limitations].” Id.

Plaintiff presented with atrophy in the right tibialis anterior. R. 209. Reduced motor strength was revealed in the right tibialis, tibialis posterior, extensor halluces longus, and peronei. Id. Straight leg maneuvering was negative bilaterally. Id.

Dr. Androkites reported that the electrophysiological study was “abnormal.” Id. Plaintiff’s right common peroneal motion response was only 20% of the normal response on the left side. Id. While the right superficial peroneal sensory response was of normal amplitude, the EMG needle examination demonstrated the following:

Chronic neurogenic changes involving right tibialis anterior, right peroneus muscles. There was sparing of right flexor digitorum longus, right biceps short head, and right lumbosacral paraspinal muscles. Left tibialis anticus was spared as well. This abnormal electrophysiological study is suggestive of right L5 radiculopathy of chronic duration. However, a more distal entrapment involving the sciatic nerve or peroneal nerve is also possible. In any event, this appears to be a lower motor neuron pathology. Correlation with lumbosacral MRI is recommended to rule out L5 or L4 nerve root entrapment.


On September 20, 2010, plaintiff was seen by Dr. David S. Zorub, M.D., Chief of Neurological Surgery at UPMC Shadyside Hospital. R. 183. Plaintiff presented with weakness in the right foot with associated numbness which was made worse with activity. Id. Motor examination revealed gross atrophy of the right perinea and foreleg with complete foot drop on the right. Id. Plaintiff also had plantar extensor weakness and could not walk on his toe or heel on the right foot. Id. There was sensory loss over the dorsum of the right foot as well as the outer aspect of the foot. Straight leg raising maneuvers were negative. Id. Plaintiff was able to perform flexion and extensions without restriction. Id.

Dr. Zorub observed that the electrodiagnostic studies confirmed an L5 radiculopathy and an MRI documented spinal canal stenosis with a broad-based disc herniation and bilateral recess stenosis at L4-L5 as well as stenosis at L3-L4 and L5-S1. Id. Dr. Zorub recommended that plaintiff undergo flexion and ...

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