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Honkus v. Colvin

United States District Court, W.D. Pennsylvania

January 16, 2015

JEFF S. HONKUS, Plaintiff,
CAROLYN W. COLVIN[1], Acting Commissioner of Social Security, Defendant.




Jeff S. Honkus ("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 ("Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"). 42 U.S.C. §§ 401-433. Presently before the court are cross-motions for summary judgment. The record has been developed at the administrative level. For the reasons set forth below, plaintiff's motion will be denied, the Commissioner's motion will be granted, and final judgment will be entered in favor of the Commissioner and against plaintiff.


A. Procedural History

Plaintiff filed an application for benefits on April 8, 2011 alleging disability since January 30, 2007.[2] R. 12. The application was initially denied on January 8, 2011. R. 56-60. At plaintiff's request, a hearing was held before an ALJ on October 4, 2012. R. 28-43. Plaintiff, represented by counsel, appeared and testified. R. 31-39. An impartial vocational expert, Mary Beth Kopar, also testified. R. 39-42. The ALJ rendered a decision on December 27, 2012 denying plaintiff's application. R. 9-27. On December 5, 2013, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. R. 1-6. This civil action followed.

B. General Background

Plaintiff was born on November 9, 1963, making him forty-three years of age on his alleged on-set date and forty-eight years of age at the time of the hearing. R. 31, 44. He is a college graduate. R. 147, 192. Plaintiff is single and has no children. R. 127-28, 204. He lives with his longtime girlfriend. R. 145, 168, 407.

Plaintiff worked for ten years as a pharmacist. R. 52-53, 147, 155-162. Plaintiff had sufficient earnings to maintain insured status through December 31, 2012. R. 12, 143. 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 as a pharmacist required him to lift less than two pounds frequently, stand for six to eight hours, and sit for up to two hours. R. 155-162. This work was light and skilled in exertional/task level. R. 21. Plaintiff was no longer able to do the tasks necessary to perform this work. R. 169. Plaintiff had not worked since January 28, 2007, with the exception of six weeks of part-time employment from August through September of 2007.[3] R. 147, 200.

Plaintiff alleged disability due to degenerative disc disease, status post-microdiscectomy. The record indicates that he suffers from multiple physical impairments, including chronic low back pain with radiculopathy, lower extremity edema, venous insufficiency, and a hydrocele. Plaintiff alleged that all of these surfaced or became more pronounced after a November 16, 2006 work-related back injury and subsequent surgery on January 29, 2007. R. 146.

Plaintiff is less active than he was prior to his injury. R. 169. His ability to perform the activities of daily living is limited by the inability to concentrate or stand for long periods. R. 168-177. He generally can take care of his personal needs, such as bathing and dressing, but he has some difficulty due to pain. R. 34, 169. He is usually able to drive. R. 171-72. Plaintiff is able to keep monthly doctor's appointments and shops regularly for necessities. Id . He does very little house or yard work, but may do a load of laundry once a week. R. 34, 170-71. Plaintiff does not prepare his own meals, but is able to reheat food in the microwave, toaster or oven. R. 34, 170. He enjoys talking on the phone a few times each week and listens to talk radio daily. R. 172-73.

When plaintiff is experiencing pain, he spends a great deal of time lying on his back with a heating pad and a pillow supporting his lower back. R. 169, 176. He uses a back brace, warm moist heat and stretching to treat his pain. R. 176, 233, 388. He occasionally uses a TENS unit. R. 176. Plaintiff uses compression stockings to treat his lower extremity edema. R. 176. He also takes a variety of medications, which help him get through the day. R. 34, 176.

Plaintiff testified that his medications give him many side effects, including drowsiness, decreased concentration, stomachache, severe headaches and dizziness. R. 175-76. He assertedly has to elevate his legs as much as seventy-five percent of the day, depending on his activities, due to edema. R. 35-37. Plaintiff also testified that he uses a cane daily. R. 34-35.

C. Medical Evidence

1. Physician and Medical History

On November 16, 2006, plaintiff moved a computer monitor at work and immediately felt sharp pain in his lower back. R. 233, 263. Plaintiff's lower back pain increased over several weeks. Id . Plaintiff also developed pain and numbness in his left lower leg and numbness in his left hand. Id . Plaintiff visited the emergency room at Presbyterian Hospital, where he was advised to undergo additional testing and to continue his then current medication regimen for chronic lower back pain.[4] R. 263, 560.

On December 18, 2006, plaintiff went to Chiropractic Family Health Center. R. 204. He reported constant pain in his lower back radiating to his leg and foot, which he described as burning, tingling, throbbing and sharp. R. 204-05. Dr. Shawn Richey performed an orthopedic evaluation, which was positive for Valsalva's, Braggards, Straight Leg Raise, and Kemps Test. R. 205. Dr. Richey noted severe muscle spasm and taught and tender fibers in plaintiff's lumbar area and ordered MRIs. R. 205-06.

On December 18, 2006, plaintiff had a lumbar MRI at North Pittsburgh Imaging. R. 207. It revealed disc herniation at L4-5 and L5-S1 and bulging discs at L1-2 and L3-4. Id .

On January 4, 2007, plaintiff was evaluated by neurosurgeon Matt El-Kadi, MD, Ph.D. R. 233, 388. Plaintiff presented with constant, severe low back pain that radiated into his left leg and foot. Id . He also experienced moderate, intermittent pain radiating into his right leg and foot, but only when fatigued. Id . Plaintiff had experienced only minimal relief from conservative treatment that included rest, position changes, stretching, a heating pad, and OxyContin, Oxycodone, and Neurontin. R. 209, 233, 388. Dr. El-Kadi recommended that plaintiff have a microdisectomy to relieve pressure from the nerve roots. R. 389. He advised that the nerve roots might heal once the pressure was removed, but there was no guarantee that the surgery would relieve plaintiff's symptoms. Id . Plaintiff elected to have the surgery. R. 210, 389.

On January 29, 2007, plaintiff underwent back surgery. R. 211. Dr. El-Kadi performed a hemilaminectomy and microdisectomy at L4-5 and a hemilaminectomy at L5-S1. Id . There was no disc herniation at the L5-S1 level, but plaintiff did have lateral recess stenosis. Id . Dr. El-Kadi was able to decompress both nerves and the lateral recess stenosis at L5-S1. Id . His operative notes reflect that plaintiff had a congenitally small canal, very bulky facets, and a significant hypertrophic facet joint on his left side. Id . Plaintiff experienced a discernible improvement in his radicular symptoms post-operatively and was discharged from UPMC Passavant the following day. R. 209.

On February 8, 2007, Dr. El-Kadi examined plaintiff. R. 384. Plaintiff reported an eighty-five to ninety percent improvement in his symptoms, but he continued to experience mild lower left extremity pain and severe pain in his right lower extremity. Id . Dr. El-Kadi prescribed physical therapy and scheduled a one-month follow up to assess plaintiff's return to work. Id .

On February 23, 2007, plaintiff visited Robinson Physical Therapy and Health Center, Inc., for an evaluation by Scott Colombo, PT, CSCS ("PT Colombo"). R. 293. Plaintiff reported experiencing radicular symptoms and sharp and intermittent pain in his lower back, particularly when moving from a supine position. Id . He explained that he had to be able to stand and reach to perform his job. Id . Plaintiff reported to physical therapy on February 26, February 28, and March 7, 2007, but did not attend therapy on March 2 or March 5, 2007. R. 289-297.

On March 8, 2007, plaintiff followed up with Dr. El-Kadi. R. 228, 382. Plaintiff again reported an eighty-five to ninety percent improvement in his symptoms, but continued pain in his right lower extremity and residual numbness. Id . Dr. El-Kadi ordered additional MRI testing to evaluate plaintiff's symptoms and address his return to work. Id .

Plaintiff attended physical therapy on March 9 and March 14, 2007, but missed or canceled appointments on March 9, March 12, and March 16, 2007. R. 283-86.

On March 26, 2007, plaintiff had an MRI of his lumbar spine. R. 222. It revealed that plaintiff had large posterior intervertebral disc herniations on the right at L4-5 and at the focal left posterior at L5-S1. Id . The interpreting radiologist noted post-operative scar and granulation tissue at the left L4-5 and L5-S1 levels. Id . The MRI also revealed evidence of degenerative disc disease and mild to moderate spinal stenosis at L3-4 from mild degenerative disc bulge and mild facet hypertrophy. Id .

On April 4, 2007, plaintiff returned to physical therapy. R. 278. PT Colombo determined that plaintiff's cervical, upper extremity, lower extremity and forward bend ranges of motion were all normal. Id . Plaintiff had a ten degree limit in right side bending and his backward bending was five degrees past neutral. Id .

On May 2, 2007, Dr. El-Kadi examined plaintiff, who was still experiencing numbness and weakness in his left hand. R. 226, 380. Plaintiff reported a ninety percent improvement in his left lower extremity. Id . Dr. El-Kadi's neurological exam was unremarkable, other than a positive Tinel's sign at the left elbow. Id .

Plaintiff had not followed Dr. El-Kadi's March 29, 2007 instructions to obtain a functional capacity evaluation. R. 226, 282, 380. Dr. El-Kadi emphasized the importance of the exam and advised plaintiff to return to work based on the recommendations of his physical therapist. Id . Dr. El-Kadi discharged plaintiff from acute care. Id .

On May 15, 2007, plaintiff had a functional capacity evaluation. R. 263-66. PT Colombo determined that plaintiff could perform light-medium work, but recommended four weeks of work hardening. R. 266. Plaintiff began work hardening on June 18, 2007, and attended additional sessions on June 20, June 21, June 22, and June 25, 2007. R. 253-57.

On June 26, 2007, plaintiff presented to physical therapy with bilateral pitting edema in his lower extremities. R. 246, 249, 250. He also had shortness of breath with exertion and reported a recent weight gain of twenty pounds. Id . Due to the sudden onset of edema and plaintiff's family history of heart disease, PT Colombo discharged plaintiff from physical therapy and advised him to contact a cardiologist. Id .

On June 29, 2007, cardiologist Jeffrey J. Teuteberg, M.D., evaluated plaintiff. R. 406-08. Dr. Teuteberg noted a slight improvement in plaintiff's edema, to 2 to 3 bilaterally. R. 406. Plaintiff reported that he had been keeping his feet elevated during the day. Id . He also had pressure in his chest, including some ...

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