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Stickel v. Colvin

United States District Court, W.D. Pennsylvania

October 23, 2014





Edward A. Stickel ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his applications for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1600 et seq., and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 404-434. The record has been developed at the administrative level and the parties have brought cross-motions for summary judgment. For the following reasons the Court finds that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence. Accordingly, Plaintiff's Motion for Summary Judgment (Docket No. 9) is granted, in part, and denied, in part, and Defendant's Motion for Summary Judgment (Docket No. 12) is denied.


On February 3, 2011 and February 7, 2011, Plaintiff applied for SSI and DIB, respectively, (R. at 13), [1] alleging physical disability starting May 18, 2007. ( Id. ). His initial claim was denied on April 11, 2011. ( Id. ). He then requested a hearing by an ALJ, which was granted. (R. at 82). On August 14, 2012, a hearing was held before ALJ Leslie Perry-Dowdell, which Plaintiff attended with counsel, Valerie Sylves, Esquire. (R. at 28). Plaintiff and a vocational expert, Charles M. Cohen, [2] each testified. (R. at 28-39). On October 18, 2012, the ALJ issued an unfavorable decision, finding that Plaintiff was not disabled. (R. at 13-21). On November 1, 2012, Plaintiff filed a request to the Appeals Council to review the ALJ's decision, (R. at 7-9), and such request was denied on February 10, 2014. (R. at 1-6).

On March 25, 2014, Plaintiff, having exhausted all administrative remedies, filed a Complaint in this Court. (Docket No. 3). Defendant filed her Answer on May 30, 2014. (Docket No. 6). On June 27, 2014, Plaintiff filed a Motion for Summary Judgment, Concise Statement of Material Facts and Brief in Support. (Docket Nos. 9, 10, 11). Defendant filed a Motion for Summary Judgment and supporting brief on July 30, 2014. (Docket Nos. 12, 13).


A. General Background

Plaintiff was born on April 27, 1964 and was forty-three years old on the date of his alleged disability onset and forty-eight years old on the date of the ALJ's decision denying benefits. (R. at 19, 149, 154). In his applications for SSI and DIB, Plaintiff alleged disability due to chronic obstructive pulmonary disease ("COPD")[3], chronic low back pain due to a bulged disk, an enlarged liver, and tinnitus.[4] (R. at 149-160). Plaintiff is a high school graduate, with 2 years of college, (R. at 180), and he served in the United States Air Force from June of 1985 to April of 1988. (R. at 149, 156). He is divorced and has no children. (R. at 150, 508). His work history consists of positions as a dishwasher, stock person, machine operator, and home care provider. (R. at 180, 186). He was laid off at his last position as a home care provider on May 10, 2004. (R. at 179). He was living in Alaska from February through October of 2009, at which time he returned to Pittsburgh to help care for his mother who was afflicted with Alzheimer's. (R. at 298).

Plaintiff previously applied for both SSI and DIB on September 29, 2005 but his claims were denied at the hearing level in a decision dated May 17, 2007.[5] (R. at 41). In a Function Report-Adult dated March 6, 2011, Plaintiff indicated that he lived in a house with his parents, and engaged in daily activities such as cleaning and doing laundry, cooking small meals, looking after his parents, doing jig-saw puzzles, watching television, and using the computer. (R. at 195, 197).

B. Medical History

1. Chronic Low-Back Pain

Plaintiff has had chronic low back pain since the 1980s, which he attributes to injuries sustained during his service in the Air Force.[6] (R. at 300). An MRI performed on his lumbar spine in 2002 showed degenerative changes, a diffuse bulge, and an annular tear/small hernia in his L5-S1 disc[7]. (R at 299).

Plaintiff lived in Alaska for part of 2009, and reportedly received treatment for his back pain and COPD at the VA in Alaska from February 15, 2009 through October 30, 2009. (R. at 182). Shortly after returning to Pittsburgh from Anchorage, Alaska, Dr. Joan Mavrinac diagnosed Plaintiff with acute exacerbation of chronic low back pain during an emergency room visit on November 23, 2009 and administered two 1-mg Dilaudid[8] IVs. ( Id. ). Plaintiff then had a follow-up appointment with Dr. Russell Traister, on December 7, 2009. (R. at 285-86). During this visit, Plaintiff presented with constant numbness on his right leg and left lateral 2 fingers. (R. at 289). He also suffered from shooting pains intermittently down his right buttock and leg, reported pain in every position except for lying on either side, and the pain forced him to walk with a limp. ( Id. ). He was observed walking with an antalgic gait. (R. at 290). Dr. Traister noted that Plaintiff presented degenerative changes in his lumbar spine, in addition to a diffuse bulge, and annular small tear. ( Id.). As a result of the worsening pain in Plaintiff's back, Dr. Traister recommended that Plaintiff be given a repeat MRI. (R. at 291).

On January 26, 2011, Plaintiff activated the EMS and was transported by the Rostraver/West Newton ES Service to the Monongahela Valley Hospital ER with abdominal pain. (R. at 350). While awaiting the paramedics in his driveway, he stated that he had pain in his back that was aggravated by deep breathing. ( Id. ). When he arrived at the Emergency Department of Monongahela Valley Hospital, Plaintiff complained of pain radiating from his right side to his back. (R. at 256). During that visit, he saw Dr. Robert Smith who ordered a CT scan of his abdomen, and prescribed protonix[9]. (R. at 264). The main finding of the CT scan consisted of multiple non-obstructive bilateral renal calculi[10], the largest of which was approximately 6mm in diameter and located in the left kidney. (R. at 269).

Plaintiff underwent another CT scan on February 11, 2011. (R. at 330). Analysis of the scan revealed, along with the non-obstructive bilateral renal calculi, a straightening of the lumbar spine compatible with possible muscle spasms, moderate to marked narrowing of the L5-S1 disc space, and moderate to marked degenerative disc disease at L5-S1. (R. at 330-32). Plaintiff was prescribed tramadol[11] and flexeril[12] for pain control. (R. at 345).

During an April 29, 2011 visit to the VA Hospital at Oakland, Plaintiff reported with a loss of normal lumbar lordosis[13] and a suggestion of minimal retrolisthesis[14] at the L5-S1 level. (R. at 328). There were also degenerative changes with marginal osteophyte formation and sclerosis. ( Id. ). A CT scan indicated degenerative changes of the lumbosacral spine. (R. at 330).

Plaintiff was admitted as an inpatient to the Jefferson Regional Medical Center from May 14, 2011 to May 17, 2011 with ureterolithiasis[15] and a urinary tract infection. (R. at 364). He was subjected to cystoscopy[16], retrograde, and a stent was inserted. ( Id. ). During this visit, it was noted that Plaintiff had full musculoskeletal range of motion. (R. at 356). Plaintiff discussed physical therapy for his back pain. (R. at 334). He stated that he did not have a vehicle, which presented a problem for him because physical therapy occurs more than once weekly and the VA van only operated on Fridays. ( Id ). Following his hospital stay, on June 1, 2011, Plaintiff was administered extracorporeal shock wave lithotripsy as an outpatient at Jefferson Regional Medical Center. (R. at 367). During the procedure the kidney stone appeared to break up. (R. at 367). Plaintiff returned to Jefferson Regional Medical Center on June 23, 2011 to have the stent removed. (R. at 402).

On December 2, 2011, Plaintiff was examined by Rhonda S. Wingrove, M.D. (R. at 483). Dr. Wingrove noted that Mr. Stickel had been provided a chest x-ray on November 25, 2011 and opined that he suffered from musculoskeletal strain. (R. at 484). She instructed the use of heat and ice and prescribed Vicodin[17] 5-500 mg to use for the pain. ( Id. ).

On January 11, 2012, Plaintiff presented to Dr. Wingrove with complaints of back pain radiating into his ribs and he was then referred to Paul Depippo, M.D. (R. at 490). X-ray imaging noted that he did not sustain a rib fracture on this occasion. (R. at 510). But, the objective findings included that the bony and soft tissues demonstrate degenerative changes of the thoracic spine. (R. at 510-512).

In March of 2012, Plaintiff presented to the emergency room at the Jefferson Regional Memorial Hospital with left flank pain which he said had persisted for three months without any resolution. (R. at 387-389). It was noted as likely musculoskeletal in nature but x-rays were negative. ( Id. ). In April of 2012, Plaintiff again sought treatment complaining of pain in his rib area. A "new" minimally displaced fracture of Plaintiff's tenth posterior rib was noted on a CT ...

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