United States District Court, M.D. Pennsylvania
For Thomas Thompson, Plaintiff: Joshua Borer, LEAD ATTORNEY, Abrahamsen, Conaboy & Abrahamsen, P.C., Scranton, PA; Michael J. Parker, LEAD ATTORNEY, Abrahamsen Conaboy & Abrahamsen PC, Scranton, PA.
For Carolyn Colvin, Defendant: Justin J. Blewitt, U.S. Attorney's Office - Social Security, Scranton, PA.
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE. JUDGE BRANN.
REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND THE CASE TO THE COMMISSIONER FOR FURTHER PROCEEDINGS
REPORT AND RECOMMENDATION Docs.
1, 7, 8, 9, 10
GERALD B. COHN, UNITED
STATES MAGISTRATE JUDGE.
I. Procedural Background
Thomas Thompson (" Plaintiff") twice applied for disability insurance benefits (" DIB") under Title II of the Social Security Act, 42 U.S.C. § § 401-434. First, on March 4, 2009, Plaintiff protectively applied for DIB, alleging a disability onset date of March 19, 2007. (Administrative Transcript (Doc. 8), hereinafter, " Tr." at 48). After the claim was denied at the initial level of administrative review (Tr. 48), the ALJ held a hearing on April 9, 2010. (Tr. 48). On May, 20, 2010, the ALJ found that Plaintiff was disabled within the meaning of the Act for a " closed period"  from January 1, 2008, through January 1, 2010. (Tr. 48). Lastly, the ALJ determined that beginning on January 2, 2010, medical improvement occurred, and Plaintiff had a residual functional capacity for a full range of sedentary work. (Tr. 48, 55).
Plaintiff protectively filed the second DIB application, on August 30, 2010, alleging a disability onset date of January 4, 2008, due to pain in his neck, head, arm, hand, and right leg. (Tr. 58). Plaintiff's claim was denied at the initial level of administrative review. (Tr. 75-79). On July 10, 2012, the ALJ held a hearing at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified. (Tr. 24-43, 80-81). On July 25, 2012, the ALJ found that Plaintiff was disabled within the meaning of the Act from January 1, 2008, through January 1, 2010, but had not been disabled since January 2, 2010, through July 25, 2012, the date of the administrative decision (Tr. 19).
On August 14, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 6-7), which the Appeals Council denied on August 28, 2013, thereby affirming the decision of the ALJ as the " final decision" of the Commissioner. (Tr. 1-5).
On October 21, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) and pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. (Doc. 1). On January 28, 2014, the Commissioner (" Defendant") filed an answer and an administrative transcript of proceedings. (Doc. 7, 8). On March 14, 2014, Plaintiff filed a brief in support of the appeal (Doc. 9 (" Pl. Brief")). On April 16, 2014, Defendant filed a brief in response. (Doc. 10 (" Def. Brief")). On November 5, 2014, the Court referred this case to the undersigned Magistrate Judge. The deadline had passed for Plaintiff to file a reply brief.
II. Relevant Facts in the Record
Plaintiff was born on September 14, 1962, and thus was classified by the regulations as a younger person through the date of the ALJ decision on July 25, 2012. 20 C.F.R. § 404.1563 (c). However, because at the time of the ALJ decision Plaintiff was within a few months of reaching the age of fifty, Plaintiff falls within the " borderline situation" contemplated by subsection (b), thus qualifying him as a " person closely approaching advanced age" under subsection (d) at the time of the ALJ decision. 20 C.F.R. § 404.1563 (b) through (c). The highest level of education Plaintiff completed is the twelfth grade (Tr. 55, 73). Plaintiff's past relevant work includes working as a medical supply distribution associate, and distribution coordinator and team leader from April 1981 to January 2008. (Tr. 73) Plaintiff's past relevant work required frequently lifting 25 pounds and occasionally lifting 100 pounds. (Tr. 55).
A. Summary of Relevant Treatment Records for Closed Period of Disability from January 1, 2008 through January 1, 2010
On March 19, 2007, Plaintiff sustained a work-related injury. (Tr. 52, 300, 313). Plaintiff was unloading trucks at his former job when he fell on ice, landing on his neck and the back of his head. (Tr. 52, 300, 313, 481). Plaintiff was taken to the emergency room where he was given some pain medications and released back to work. (Tr. 52, 300, 313, 481). However, Plaintiff continued to have problems with constant headaches and pain in his neck. (Tr. 52, 300, 313). From April 18, 2007, to February 27, 2008, Dr. Bernard M. Weintraub, M.D. treated Plaintiff with pain medications. (172-178). In a treatment record dated November 28, 2007, Plaintiff reported continued cervical pain radiating into his head despite treatment. (Tr. 174). In a treatment record dated January 10, 2008, Plaintiff reported experiencing radiating pain into his right shoulder and Plaintiff had to stop working. (Tr. 173). Dr. Weintraub sent the Plaintiff for an MRI of his cervical spine, which he underwent on February 19, 2008. (Tr. 173, 220-221, 621-622).
The February 2008 MRI revealed disc disease at the level of C5-C6 with a posterior disc herniation detected and a small focal disc herniation/disc osteophyte complex along the left posterior aspect of the disc space at C6-C7. (Tr. 621). Specifically, Dr. Rebecca Johnson, M.D., concluded that at C5-C6, there existed a " moderate concentric disc bulge . . . with a super imposed broad-based left paracentral/left foraminal disc herniation . . . ." (Tr. 622). Dr. Johnson further concluded that there was " [e]xtruded disc material located within the left neural foramen results in mass-effect upon the exiting nerve root" in addition to " moderate right foraminal narrowing." (Tr. 622). From May 02, 2007, to July 16, 2008, Plaintiff underwent physical therapy with Donald Hubard, PT. (Tr. 213-268).
From March 18, 2008, to August 19, 2008, Plaintiff underwent three epidural steroid injections (with Spine Surgery Associates & Discovery Imaging, P.C.: Drs. James W. Dwyer, Paul P. Vessa); however, his symptoms did not improve. (Tr. 269-272, 474). In a record from Somerset Surgical Center dated April 2, 2008, it was noted that after Plaintiff's first epidural steroid injection on March 18, 2008, Plaintiff experienced increased pain in the right shoulder and arm, had a temperature of 103 degrees, and went to the emergency department. (Tr. 272). During the emergency department visit, on March 25, 2008, Plaintiff underwent a CT scan, which showed degenerative changes in Plaintiff's lower cervical region without any evidence of any spinal stenosis or neural foraminal stenosis. (Tr. 191-192, 291-292).
From March 20, 2007, to November 29, 2010, Plaintiff was under the primary care of Dr. J. Roberto Vergara, M.D., with Sussex County Medical Associates. (Tr. 421-493). In a treatment record dated October 23, 2007, Dr. Vergara noted that Plaintiff had persistent and recurring neck pain since the March 2007 injury and recommended that Plaintiff again consult Dr. James W. Dwyer (spine surgeon and physical therapy, see Tr. 272, 508), obtain a new MRI, or seek an additional pain management consultation. (Tr. 476). In a treatment record dated October 14, 2008, Dr. Vergara noted that Plaintiff's right temple was sensitive with a protruding vein. (Tr. 472). Dr. Vergara noted that Plaintiff had seen Dr. Valenza four times to address persistent neck and right temporal pain, and that Dr. Dwyer suggested that Plaintiff undergoes surgery. (Tr. 472). In subsequent visits, Plaintiff continued to report of headaches and neck pain. (Tr. 421-472).
In a treatment record dated March 30, 2009, Dr. Jennifer E. Horn, D.O. (with Sussex County Medical Associates) noted that Plaintiff was trying acupuncture and had a history of trying three epidurals and two rounds of physical therapy. (Tr. 468). Plaintiff sought a second opinion regarding the necessity of neck surgery. (Tr. 468). Dr. Horn also observed that Plaintiff had " high doses of pain [prescription] over time [without] significant relief. [Plaintiff reported wanting] quality of life back, possibly wants to work again." (Tr. 468).
In a treatment record dated April 16, 2009, Plaintiff was evaluated by Dr. George S. Naseef, M.D., an orthopedic surgeon. (Tr. 313-314). Dr. Naseef summarized Plaintiff's treatment history and observed that Plaintiff had decreased sensation in his C6 dermatome, and decreased range of motion of his cervical spine by ten degrees. (Tr. 314). Comparing radiographs taken the day of the visit with those taken two years prior, Dr. Naseef noted that there had been advanced degenerative changes at the CS-6 level, with enlarged osteophytes. (Tr. 314). Dr. Naseef reviewed the 2008 MRI and found that it showed " moderate concentric disc bulge off to the left-hand side with extruded disc material in the neural foramen, as well as disc osteophyte complex, worse on the right than the left at C6-7." (Tr. 314). Dr. Naseef further noted that there was " neuroforaminal narrowing, however, off to the right-hand side at the C5-6 level." (Tr. 314). Dr. Naseef concluded that Plaintiff had right upper extremity radiculopathy, and recommended a new closed MRI and an EMG of Plaintiff's bilateral upper extremities. (Tr. 314).
On April 30, 2009, subsequent MRI scanning of Plaintiff's cervical spine was performed. (Tr. 315). Dr. Rebecca Johnson, M.D., found that the April 2009 MRI showed evidence of interval progression of disc disease at the C5-6 level which was increasing the central canal and right neural foraminal narrowing secondary to the presence of a concentric disc bulging and superimposed bilateral foraminal disc herniation. (Tr. 315). According to Dr. Johnson, although the left foraminal herniation appeared stable, the right neural foraminal disc herniation appeared to have slightly increased which resulted in moderate-to-severe right foraminal narrowing without any cord compression. (Tr. 315). On May 7, 2009, EMG and nerve conduction studies were completed, and Dr. Neal R. Dunkelman determined that the studies did not reveal any evidence of radiculopathy or neuropathy. (Tr. 325-326). The findings were confirmed by Dr. Dwyer in a record dated May 13, 2009. (Tr. 322).
On May 13, 2009, Dr. Dwyer noted that Plaintiff continued to experience severe axial neck pain with radiation to the right occipital region, right interscapular pain, and right upper extremity pain. (Tr. 322). Dr. Dwyer noted that the symptoms remained severe despite exhaustive conservative treatment, including epidural injections, physical therapy, acupuncture, and pain management. (Tr. 322). Dr. Dwyer opined that Plaintiff remained totally disabled as he has been for several months due to his intractable pain and the significant MRI findings. (Tr. 322). Dr. Dwyer recommended that Plaintiff proceed with " anterior cervical discectomy and fusion or artificial disc replacement at the C56 level, " in other words, neck surgery. (Tr. 322). Dr. Dwyer stated that after the surgery, it may be possible for Plaintiff to return to " some sort of gainful employment." (Tr. 322).
In a record dated September 24, 2009, Dr. Naseef recommended neck surgery and discussed the risks and benefits of surgical intervention including " bleeding, infection, need for further surgery, chronic pain, failure of the surgery to relieve the pain, pseudoarthrosis, blood clots, death, paralysis, and blindness." (Tr. 347). On September 28, 2009, Dr. Vergara cleared Plaintiff for neck surgery to be performed by Dr. George Naseef on October 5, 2009. (Tr. 463). In a treatment record dated November 23, 2009, Dr. Horn noted that three days prior to the scheduled surgery date, Plaintiff decided not to have cervical fusion (neck surgery). (Tr. 427). Plaintiff also decided to try " IDD therapy" (Intervertebral Differential Dynamics Therapy) and manual manipulation with Drs. Shaw and Newton, having fifteen out of eighteen treatments as of the time of the record. (Tr. 427). Plaintiff reported improvement due to the alternate treatment and had discontinued all pain meds " abruptly" about one month prior to the November 2009 visit and was possibly experiencing withdrawal symptoms. (Tr. 427). In a record dated March 31, 2010, Dr. Vergara noted that Plaintiff had been doing well with his chiropractor, Dr. Shaw and spinal decompression. (Tr. 225). Dr. Vergara noted that Plaintiff chose to defer surgery given that he felt better due to decompression. (Tr. 225). Dr. Vergara concluded that Plaintiff still had cervical disc displacement without myelopathy. (Tr. 225).
B. Relevant Treatment History and Medical Opinions Relating to Disability after January 1, 2010
1. George S. Naseef, M.D. -- Medical Questionnaire, March 8, 2010
In a medical questionnaire dated March 8, 2010, Dr. Naseef reported that he had treated Plaintiff from April 2009 to September 2009. Dr. Naseef indicated that Plaintiff's diagnosis of cervical degenerative disc disease was objectively confirmed by an MRI taken on April 30, 2009, however, the diagnosis of upper extremity radiculopathy was not supported by an EMG taken on May 7, 2009, and the diagnosis of " cervical HNP" was not supported by an x-ray taken on April 16, 2009. (Tr. 409). In response to a question regarding symptoms or limitations that would preclude Plaintiff from engaging in sustained gainful work, Dr. Naseef replied " discogenic pain, degenerative changes and upper extremity radiculopathy." (Tr. 409).
2. Sussex County Medical Associates: J. Roberto Vergara, M.D.; Jennifer E. Horn, D.O. -- Treatment Records, from May 31, 2010, to November 24, 2010
In a record dated March 31, 2010, Dr. Vergara noted that Plaintiff had been doing well with his chiropractor, Dr. Shaw and spinal decompression. (Tr. 425). In a telephone message dated November 24, 2010, Plaintiff reported that he had been doing IDD therapy for his back problems, but workman's comp will no longer pay. (Tr. 462). Plaintiff reported that although he did not need pain medication while he underwent the IDD therapy, after discontinuing IDD therapy, the pain returned. (Tr. 462).
In a report dated November 29, 2010, Plaintiff complained of neck pain. (Tr. 421). Dr. Vergara noted that Plaintiff had been seeing Dr. Shaw two to three times weekly for chiropractic adjustments and had been getting relief from the adjustments. (Tr. 421). Dr. Vergara noted that Plaintiff has not had any pain medications for the past year with the exception of occasionally taking Advil for his neck and right-sided discomfort. (Tr. 421). In the March 2010 and November 2010 records, Dr. Vergara concluded that Plaintiff still had cervical disc displacement without myelopathy. (Tr. 421). Dr. Vergara observed no posterior tenderness in the spine. (Tr. 422).
3. Barry Kurtzer, M.D. -- Consultative Examination Report, January 27, 2011
In a report dated January 27, 2011, Dr. Kurtzer summarized Plaintiff's medical history since his fall on March 18, 2007. (Tr. 551). Dr. Kurtzer noted that in spite of trying physical therapy, epidurals and treatment at the Kessler Institute, Plaintiff still complained of neck, arm, and shoulder pain, particularly on the right side. (Tr. 551). Dr. Kurtzer noted that although Plaintiff's current chiropractic treatments somewhat helped, Plaintiff reported continued pain in spite of the IDD (spinal decompression). (Tr. 552). Plaintiff also reported that he believed that he was unable to work. (Tr. 552). A multivitamin was the only medication listed. (Tr. 552). Dr. Kurtzer observed that there was tenderness on the lateral movements of Plaintiff's neck and tenderness on the cervical spinal muscles. (Tr. 553). Dr. Kurtzer observed that Plaintiff had " full range of motion, however, there [was] some pain elicited." (Tr. 553).
4. Robert M. Pearl, D.C. (Chiropractor) -- Practitioner's Report of Independent Medical Evaluation, June 24, 2011
In an independent medical evaluation dated June 24, 2011, Dr. Pearl summarized Plaintiff's medical history. (Tr. 616). Dr. Pearl stated that he reviewed records from Dr. Shaw. (Tr. 617). Plaintiff reported that his past treatment included twenty sessions of decompression therapy from Dr. Shaw, a chiropractor. (Tr. 616). Plaintiff reported that while the decompression treatment from Dr. Shaw provided some relief, after he discontinued, his symptoms returned. (Tr. 616). Plaintiff reported seeing Dr. Gugleman for pain management as well as another doctor for pain management. Plaintiff reported that he was also contemplating having neck surgery. (Tr. 616).
Dr. Pearl noted that at the time of the examination, Plaintiff was not taking any medications for any chronic diseases. (Tr. 617). Although Plaintiff stated a history of falling and injuring his cervical spine in March 2007, Dr. Pearl also indicated that Plaintiff did not have any history of prior injuries or accidents. Compare (Tr. 616) with (Tr. 617). Dr. Pearl noted current symptoms of back, head, and right arm pain with associated numbness and weakness. (Tr. 617). Upon cervical examination, Dr. Pearl observed: 1) flexion was reduced to 40 degrees (normal is 45 degrees); 2) left lateral bending was reduced to 35 degrees (normal is 40 degrees); 3) right lateral bending was reduced to 30 degrees (normal ...