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Cola v. Colvin

United States District Court, W.D. Pennsylvania

May 7, 2015

ALBERT J. COLA, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


CYNTHIA REED EDDY, Magistrate Judge.[1]

I. Introduction

Plaintiff Albert J. Cola ("Cola" or "Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"). See 42 U.S.C §§ 401-434. Each party has submitted cross motions for summary judgment, (ECF Nos. 8 and 15), and the record has been fully developed at the administrative proceedings. For the reasons which follow, Cola's Motion for Summary Judgment, (ECF No. 8), will be denied, and the Commissioner's Motion for Summary Judgment, (ECF No. 15), will be granted.

II. Procedural History

Cola protectively filed for DIB on September 27, 2011, alleging onset of disability on September 1, 2011. (R. at 105-11).[2] The application was denied by the state agency on January 27, 2012. (R. at 43-55). Cola responded on May 22, 2012, by filing a timely request for an administrative hearing. (R. at 61-63). He received notice on April 18, 2013 that the hearing would be held on August 27, 2013. (R. at 80-96). Just over a week before that hearing was to take place, Cola filed a waiver of his right to personally appear at it. (R. at 103-04). Cola explained he would be unable to appear because his anxiety disorder prevented him from driving into the city and he was unable to find anyone else who could take him. (Id. ). However, Cola did submit a 10-page statement on August 21, 2013 detailing his condition. (R. at 164-73). On August 27, 2013, the administrative hearing was held in Pittsburgh, Pennsylvania before Administrative Law Judge ("ALJ") Leslie Perry-Dowdell. (R. at 23-27). Cola did not appear. (R. at 25). As such, the only testimony taken during the hearing was that of an impartial vocational expert, Samuel E. Edelmann ("Edelmann"). (R. at 25-27).

In her decision dated September 11, 2013, the ALJ determined that Cola was not "disabled" within the meaning of the Act since the alleged onset date of disability, so his claims for disability benefits were denied. (R. at 11-19). Three days before requesting Appeals Counsel review of the ALJ's decision on October 28, 2013, (R. at 7), Cola submitted another 10-page statement setting forth the reasons he disagreed with it, (R. at 173-83). The Appeals Counsel denied Cola's request for review on September 15, 2014, thereby making the ALJ's decision the final decision of the Commissioner in this case. (R. at 1-5). Cola had been unrepresented throughout the administrative process. (ECF No. 9, at 1).

Cola, now with counsel, commenced the present action on October 28, 2014, seeking judicial review of the Commissioner's decision. (ECF No. 3). Cola and the Commissioner filed cross motions for summary judgment on January 14, 2015 and April 22, 2015, respectively. (ECF Nos. 8, 15). These motions are fully briefed and ripe for disposition.

III. Statement of Facts

A. Background

Cola was born on July 21, 1952, making him 61 years old at the time of the administrative hearing. (R. at 124). He graduated high school and then subsequently completed nearly enough college credits to earn an associate's degree. (R. at 201). After some early work experience in bowling alleys, in a mailroom, and bartending, Cola began working at country clubs in 1987. (R. at 202-03). Most recently, he worked as a locker room attendant at Hillcrest Country Club from April of 2001 until November of 2010, (R. at 163), when he was involved in a seasonal layoff. (R. at 106). He was subsequently "not asked back." (R. at 203).

B. Medical History

Cola reports that he began experiencing problems at age 12 related to Crohn's Disease and severe ulcerative colitis. (R. at 202). When he was 16, he says he "underwent subtotal colectomy as well as ileostomy and significant lysis of adhesion." (R. at 192). He was fitted with an ileostomy bag, which he has had to use ever since. (Id. ). Still, he struggles with "chronic abdominal pain and discomfort." (R. at 202). In 1989, Cola says he started seeing a chiropractor for headaches. (R. at 160). These headaches reportedly became worse in 1997, after Cola was involved in a "head-on" automobile collision. (Id. ). Cola says this accident also caused him to begin suffering from "anxiety, panic attacks and bouts of depression." (Id. ).

Cola has been treating with Dr. Surinder S. Bajwa ("Dr. Bajwa") since 1994. (R. at 131). Medical evidence of record reflects seven visits taking place between May 17, 2010 and May 29, 2012. (R. at 184-91, 208-11). At the first of these visits, Dr. Bajwa noted that Cola had a past medical history of "[s]tatus post colectomy for granulomatous colitis, mild panic disorder, hyperlipidemia, hypertension, headaches." (R. at 188). In response to Cola's assertion that he "still gets headaches off and on, " Dr. Bajwa agreed to "give him Vicodin sparingly." (Id. ). Dr. Bajwa also assessed Cola as having gastro esophageal reflux disease, after Cola mentioned that "[h]e still gets heartburn off and on." (Id. ). Aside from Vicodin, Dr. Bajwa inventoried Cola's then-current medications to include Prevachol, Prevacid, Xanax, Atenolol, and HCTZ. (Id. ). Dr. Bajwa also recommended that Cola have blood work completed, referring him to "the lab that does it for a reduced rate for people who do not have insurance." (Id. ). Cola was to see Dr. Bajwa again in six months. (Id. ).

At his next visit on November 22, 2010, Cola explained that he "still gets headaches and back pain." (R. at 187). However, he denied chest pain, shortness of breath, or cough. (Id. ). Dr. Bajwa noted that Cola "[s]eem[ed] to be stable with [the] current regimen, " and left his medications unchanged. (Id. ). On May 16, 2011, Cola returned to Dr. Bajwa for his next six-month visit. (R. at 186). He again complained of "headaches off and on, " and mentioned that he had been under stress because of being laid off. (Id. ). Dr. Bajwa noted nothing out of the ordinary following an examination and review of Cola's labs. (Id. ). Cola was again instructed to return in six months. (Id. ).

This time Cola returned to Dr. Bajwa on August 16, 2011, only three months after his previous visit. (R. at 185). Cola complained of "numbness on the right side of the face and right side of the tongue, " and was unable to close his right eye. (Id. ). However, he did not have a headache. (Id. ). Dr. Bajwa found nothing else of note upon examination, assessed Cola as having "[r]ight sided paralysis, " and prescribed Prednisone. (Id. ). Given Cola's lack of insurance, he did not want to get additional testing, and Dr. Bajwa did not think doing so was "absolutely necessary." (Id. ). Cola followed up on August 23, 2011, when Dr. Bajwa noted that Cola's Bell's palsy was "getting better." (R. at 184). Dr. Bajwa reduced Cola's Prednisone dose and did not issue new prescriptions for either Xanax or Vicodin, while keeping all other prior medications in place. (Id. ).

Cola's next visit to Dr. Bajwa took place on November 25, 2011. (R. at 191). Cola was again complaining of "headaches off and on" and "[o]ccasional abdominal discomfort." (Id. ). Upon examination, Dr. Bajwa found that Cola's blood pressure was high, at 140/100. (Id. ). However, Cola's Bell's palsy had "markedly improved." (Id. ). Changes to Cola's medication regimen included replacing HCTZ with Lisinopril HCTZ and renewing prescriptions for Xanax and Vicodin. (Id. ). Cola was to "stay with atenolol 50 mg daily for the time being, given for his headaches." (Id. ).

On November 30, 2011, Cola took part in a consultative exam conducted by Dr. Hadi Firoz ("Dr. Firoz"). (R. at 192-200). Cola reported to Dr. Firoz that he was applying for disability because of "chronic abdominal pain as well as shortness of breath." (R. at 192). Cola represented that his abdominal pain ranged in severity between a six and seven out of ten. (Id. ). At the time of this examination, he would rate the pain as a six. (Id. ). Cola described this pain as a "crampy, gassy type of pain throughout his abdomen without radiation, " which "gets worse after eating." (Id. ). There would occasionally be nausea associated with this pain, but no vomiting. (Id. ).

Cola related to Dr. Firoz that he has to empty his ileostomy bag between four and five times per day. (R. at 193). He also reported that "over the past few years, [he] has been feeling more short of breath, especially with activity." (Id. ). However, there was no associated chest pain, lightheadedness, dizziness, syncope, cough, or hemoptysis. (Id. ). Cola also mentioned "chronic headaches, frontal in nature for which he takes Vicodin every six hours as needed. (Id. ). Cola relayed his belief that his headaches had gotten worse after his automobile accident. (Id. ).

With the exception of "some tenderness along the periumbilical area, " and "some tympany to percussion with no masses palpable, " Dr. Firoz's examination of Cola uncovered nothing of note. (R. at 194-95). Specifically, with respect to Cola's lungs, Dr. Firoz noted "[e]qual expansion of both lungs fields. Good air movement bilaterally. No wheezes, rales, or ronchi." (R. at 195). A cardiac exam verified a "[r]egular rate and rhythm.... [with n]o murmurs, rubs, or gallops appreciated." (Id. ). Finally, Cola's extremities had "[f]ull range of motion.... [with n]o cyanosis, clubbing, or edema, " his motor strength was "5/5 in the upper and lower extremities bilaterally, " he had a normal gait, and his "[f]ine and gross movements [we]re normal." (Id. ).

Based on his examination of Cola, Dr. Firoz assessed that Cola suffered from chronic abdominal pain, hypertension, hyperlipidemia, chronic anxiety disorder, chronic headaches, and osteoarthritis. (R. at 195-96). Dr. Firoz then completed a "Medical Source Statement of Claimant's Ability to Perform Work-Related Physical Activities." (R. at 197-98). In it, Dr. Firoz advanced his opinion that Cola can lift 25 pounds frequently, while only occasionally lifting 50 pounds. (R. at 197). Dr. Firoz further indicated that Cola could carry 20 pounds frequently and 50 pounds occasionally. (Id. ). While Cola could sit for eight hours in an eight-hour workday, Dr. Firoz believed he could only stand and walk for one to two hours cumulatively. (Id. ). Beyond these, no further limitations to Cola's physical abilities were indicated by Dr. ...

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