United States District Court, M.D. Pennsylvania
AMENDED MEMORANDUM DOCS. 1, 10, 11, 16, 19, 20, 23, 24, 25, 26, 27
GERALD B. COHN UNITED STATES MAGISTRATE JUDGE
I. Procedural Background
On July 20, 2010, Duane Lee Hahn (“Plaintiff”) filed an application as a claimant for disability insurance benefits under Title II of the Social Security Act, alleging disability with an onset of May 1, 2010. Pl. Brief at 1; (Tr. 28). On November 8, 2011, an administrative law judge (“ALJ”) held a hearing at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified. (Tr. 52-83). On December 6, 2011, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 25-39). On January 24, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 22-24), which the Appeals Council denied on August 13, 2013, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-6).
On October 2, 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 14, 2014, the Commissioner (“Defendant”) filed an answer and administrative transcript of proceedings. Doc. 10, 11. On March 13, 2014, Plaintiff filed a brief in support of the appeal (“Pl. Brief”). Doc. 16. On April 17, 2014, Defendant filed a brief in response (“Def. Brief”). Doc. 19. On April 29, 2014, the Court referred this case to the undersigned Magistrate Judge. On May 1, 2014, Plaintiff submitted a reply. Doc. 20. Both parties consented to the referral of this case to the undersigned Magistrate Judge, and an order referring the case to the undersigned Magistrate Judge was entered on June 23, 2014. Doc. 22, 23. On May 5, 2015, the Court found in favor of Defendant and the case was dismissed. Doc. 24, 25, 26. On May 12, 2015, Plaintiff filed a motion for reconsideration pursuant to Rule 50(e) of the Federal Rules of Civil Procedure requesting that the Court vacate and reverse its prior decision rendered on May 5, 2015 (Doc. 27) and the Court decided to vacate the memorandum and order rendered on May 5, 2015, pursuant to Rule 60(a) of the Federal Rules of Civil Procedure and issue this instant amended memorandum.
II. Relevant Facts in the Record
Plaintiff was born October 17, 1964, and thus was classified by the regulations as a younger person through the date of the ALJ decision on December 6, 2011. (Tr. 35); 20 C.F.R. § 404.1563(c). He completed the twelfth grade with no additional formal education or training. (Tr. 55-56). Plaintiff originally sustained injuries in a 1996 motorcycle accident. (Tr. 333). He has had a history of back related pain, and reported a worsening of his pain in June 2010. (Tr. 276). Plaintiff’s past relevant work includes: auto-detailer, welder, sample collector, and delivery driver. (Tr. 73).
A. Relevant Treatment History and Medical Opinions
1. East Berlin Family Practice: Mark Henry, M.D., and Edward Nelson, M.D.
Plaintiff received treatment at East Berlin Family Medicine, from September 2005 to August 2011. (Tr. 289-317). In August 2008, Plaintiff reported that two ibuprofen tablets “control things quite well.’’ (Tr. 293). In February 2010, Plaintiff reported that he and his wife had to care for his grandchild because his daughter was entering a rehabilitation program. (Tr. 306). In March 2010, a provider reported that the cholesterol maintenance drug Simvastatin caused body aches for Plaintiff. (Tr. 308).
In May 2010, Dr. Nelson reported that Plaintiff, who stated that physical therapy and physiatrist did not prove “all that helpful, ” lived with his chronic pain and did not want to take medication if possible. (Tr. 309). Examination showed no leg edema, limited back flexion motion, and normal abduction and extension. (Tr. 310). In a treatment record dated June 2, 2010, Plaintiff called to ask for a prescription for pain medication due to worsening back pain. (Tr. 312). In a treatment record dated July 1, 2010, Plaintiff reported that due to his chronic low back pain it was difficult to assess if there were any side effects of the cholesterol medication in terms of myalgias. (Tr. 313).
In August 2011, Dr. Nelson stressed the importance of losing weight and formal physical therapy to treat his chronic back pain, but Plaintiff indicated that he could not arrange to do physical therapy at that time. (Tr. 397). In a treatment record dated August 5, 2011, Dr. Nelson observed that Plaintiff had full range of back motion, mild lumbar spine tenderness, and normal motor strength in both legs. (Tr. 398). Plaintiff sometimes took three to four ibuprofen pills daily, wanted to restart the arthritis pain medication Nabumetone, and did not wish to return to his pain management specialist. (Tr. 398).
2. Samuel D’Agata, M.D., Orthopedic Surgeon
In June 2010, Plaintiff visited Dr. D’Agata, and reported a worsening of his pain. (Tr. 277). Plaintiff reported a history of three broken vertebrae during his childhood, a birth defect in his right hip, and a long recuperation following his motorcycle accident. (Tr. 277). Dr. D’Agata also noted that Plaintiff had not been working on a regular basis and cared for an uncle who recently passed away. (Tr. 277). Dr. D’Agata referred Plaintiff to Dr. Francis Kilkelly, who examined Plaintiff the following week. (Tr. 276).
3. Francis X. Kilkelly, M.D.
In a treatment record dated June 23, 2010, Dr. Kilkelly noted that Plaintiff was treated more than thirty years ago for what “sound[ed] like L5 spondylolysis” and noted that Plaintiff “was braced” during his childhood. (Tr. 276). Plaintiff reported that he has had back pain and bilateral buttock and leg pains. (Tr. 276). Although Plaintiff reported that the pains were typically in the posterior thigh, in addition to some groin and testicular pain, Dr. Kilkelly stated that he was “not necessarily convinced” that the reported pain related to his back. (Tr. 276). During the June 2010 visit, Plaintiff reported that he had recently experienced increased pain and had been using anti-inflammatory medication. (Tr. 276).
With regards to radiology images of Plaintiff’s lumbar spine Dr. Kilkelly observed a pars defect and states that there “may . . . be a slight slip, but it [was] not pronounced.” (Tr. 276). Upon exam Dr. Kilkelly observed that Plaintiff had normal motor strength, normal reflexes and “no trochanteric tenderness or hip irritability.” (Tr. 276). Dr. Kilkelly concluded that given Plaintiff’s “extensive nonsurgical treatment, ” it would be worth looking at all of his options, and after magnetic resonance imaging (“MRI”) results, determine whether surgery would be an option. (Tr. 276).
On July 7, 2010, Dr. Kilkelly reviewed Plaintiff’s MRI study of his lumbar spine and noted disc degeneration at the L4-L5 and L5-S1 levels, with the greatest disc herniation at the L3-L4 level where there was disc space collapse and a suggestion of retrolisthesis, and pedicle edema above the pars defect. (Tr. 276, 282). Dr. Kilkelly advised against surgery because the MRI did not reflect central canal stenosis or foraminal stenosis. (Tr. 276). Dr. Kilkelly recommended strengthening and conditioning of Plaintiff’s trunk musculature and injections, explaining that Plaintiff should consider surgery “only if and when’’ his symptoms interfere with his activity or quality of life, or if he developed severe leg pain or motor weakness. (Tr. 276).
4. Edwin Aquino, M.D.
Dr. Aquino, a physiatrist, treated Plaintiff from September 2007 to October 2010. (Tr. 333-42). On September 4, 2007, and on September 13, 2007, Dr. Aquino observed that Plaintiff had lateral rotation and bending at 25-30 degrees with complaints of pain. (Tr. 352, 359). In June 2010, Plaintiff asked Dr. Aquino for a disability determination. (Tr. 361). Upon examination, Dr. Aquino observed lumbosacral spine tenderness, back spasms, nearly full range of back motion with pain complaints, and normal muscle strength in both of Plaintiff’s legs. (Tr. 361-62). Plaintiff was taking six to eight ibuprofen tablets (200mg each) daily. (Tr. 362). Dr. Aquino diagnosed lumbosacral radiculopathy and lumbago. (Tr. 362). One month later, on July 13, 2010, nerve conduction studies and an electromyogram (EMG) of Plaintiff’s legs confirmed bilateral L4 radiculopathy, but showed no evidence of plexopathy or peripheral neuropathy. (Tr. 367).
On July 29, 2010, Plaintiff reported back pain at a level of five to nine on a scale where ten indicated the most severe pain. (Tr. 372). Plaintiff reported that the pain was aggravated with work activity. (Tr. 372). During the July 2010 examination and the examination on May 17, 2011, Dr. Aquino observed that Plaintiff had normal reflexes and muscle strength in his legs, mild lumbar spine tenderness and spasms, nearly full range of back motion with pain, and radicular pain to buttocks upon forward flexion. (Tr. 372, 374). On May 17, 2011, and on June 21, 2011, Dr. Aquino observed that Plaintiff had “lateral rotation and bending at 30-35 degrees with pain complaints” further stating that “[l]ateral rotation and bending were close to full with mild [end-range] pain complaints.” (Tr. 374, 383).
On a functional capacity questionnaire form dated October 18, 2010, Dr. Aquino reported that Plaintiff had constant back pain with radiation into his buttocks, with numbness and paresthesias into the lower extremities. (Tr. 333). Dr. Aquino reported that work activity with lifting and bending exacerbated his pain. (Tr. 333). Plaintiff had no paravertebral spasms; normal reflexes; and no ankylosis, arachnoiditis, or pseudoclaudication. (Tr. 333-34). Range of motion testing revealed that Plaintiff had slightly reduced lumbar flexion/extension (70 degrees to 80 degrees out of a full range of 90 degrees), but normal range of motion in all other regions. (Tr. 340). Plaintiff did not use an assistive device for ambulation or weight-bearing, and none had been prescribed. (Tr. 334). Plaintiff had a normal gait without antalgia. (Tr. 334). He exhibited difficulty with squatting. (Tr. 335). Plaintiff was not taking any medication related to his pain complaints. (Tr. 335).
In a treatment record dated May 17, 2011, Dr. Aquino noted that a functional capacity evaluation (“FCE”) conducted in April 4, 2011 (Tr. 227-256) was a valid study, and showed that Plaintiff demonstrated an ability to function in the full light physical demand level, according to the U.S. Department of Labor and Standards for an eight-hour work day. (Tr. 375). Dr. Aquino noted that Plaintiff’s occupation as an automobile detailer was classified as medium work. (Tr. 375). Repeat EMG/NCS tests in June 2011 also showed bilateral L4 radiculopathy. (Tr. 381).
Dr. Aquino noted on June 21, 2011, that Plaintiff’s low back pain was fairly constant with radiation to both legs with numbness and paresthesia, and that lumbar injections provided no noticeable improvement. (Tr. 383). Examination findings revealed lateral rotation and bending were nearly full with mild pain complaints at the end ranges. (Tr. 383). Dr. Aquino advised Plaintiff to continue present medical management and treatment. (Tr. 384).
In a letter to Plaintiff’s counsel dated October 30, 2011, Dr. Aquino stated that Plaintiff met the criteria of Listing 1.04 since July 2010 and based his conclusion on Plaintiff’s lumbar spine degenerative disc disease (“DDD”) and bilateral radiculopathy in his legs, numbness and paresthesias in both hands, positive straight leg raising (“SLR”), and hip motor and muscle weakness. (Tr. 346-47). Dr. Aquino agreed with the light Residual Functional Capacity (“RFC”) assessed in the April 2011 FCE, but opined that Plaintiff additionally should not perform forward bending, stooping or trunk rotation, “especially while lifting.” (Tr. 347). Dr. Aquino stated that he imposed the restrictions because they would worsen Plaintiff’s condition and possibly cause Plaintiff to re-injure himself and lose more function. (Tr. 347).
5. Michael Mesaros, M.D., State Agency Consultative Opinion
On October 8, 2010, Dr. Mesaros reviewed Plaintiff’s file and opined that he could perform the physical demands of competitive work despite his DDD and other impairments. (Tr. 326-31). Specifically, Dr. Mesaros concluded that Plaintiff could perform light exertional work; frequently use ramps and climb stairs; occasionally climb ladders and scaffold; never climb ropes; frequently balance, stoop, kneel, crouch, and crawl; and needed to avoid even moderate exposure to hazards like working with machinery or at heights. (Tr. 326-28). Dr. Mesaros noted that neither treating nor examining source opinions were available at the time of his review and opinion. (Tr. 329).
Dr. Mesaros noted that Plaintiff’s records did not reflect any numbness, tingling, progressive weakness, or bladder or bowel dysfunction. (Tr. 330). Dr. Mesaros also noted that the three physicians who examined Plaintiff in June and July of 2010 all concurred that Plaintiff had no neurological deficits. (Tr. 330). Dr. Mesaros also cited Plaintiff’s examination which showed normal motor strength and posture and no need for an assistive device, as well as the fact that the specialists did not recommend surgery, instead recommended physical therapy, oral medication, and injections. (Tr. 330-31). Dr. Mesaros also noted that Plaintiff did not use a TENS unit, noted Plaintiff’s ability to perform his daily activities, shop, and drive, that Plaintiff stated that ibuprofen does not relieve his pain, but makes the pain tolerable, and that records stated that Plaintiff changed positions frequently in his chair during the interview. (Tr. 331). Dr. Mesaros concluded that Plaintiff was capable of light work.
6. Orthopedic Institute of Pennsylvania: Ronald Dahl. D.O.
On July 13, 2010, Dr. Dahl examined Plaintiff for his back and bilateral leg pain complaints. (Tr. 324, 348). Plaintiff exhibited a normal posture and gait, his legs were neurovascularly intact with good sensation and good distal pulses, positive SLR bilaterally, no clonus or myelopathy, normal reflexes bilaterally, palpable tenderness across his lumbar spine, and painful lumbar flexion and extension. (Tr. 324, 348). Dr. Dahl recommended steroid injections but Plaintiff stated he wanted “to think about it.” (Tr. 324, 348). Plaintiff returned to Dr. Dahl, in March 2011, with complaints of pain radiating down his leg; ibuprofen failed to resolve his pain. (Tr. 349). Plaintiff had an antalgic gait, neurovascularly intact lower extremities, positive SLR on the right, normal reflexes, no clonus or myelopathy, and lumbar spine tenderness. (Tr. 349). Pursuant to Dr. Dahl’s recommendation, two days later, Plaintiff received a lumbar epidural steroid injection. (Tr. 349-51). Plaintiff reported mild relief of low back and buttocks discomfort, but no improvement of radicular symptoms due to the injection, and was reluctant to undergo a second injection. (Tr. 394).
7. Evidence Submitted After the December 2011 ALJ Decision a. Dr. Dahl’s Opinion, February 6, 2012
In a letter dated February 6, 2012, Dr. Dahl stated that he agreed with Dr. Aquino that Plaintiff has “continuously met the listing of 1.04 disorders spine based on a grade 1 spondylolisthesis at L5-S1 and also having multilevel degenerative disc disease and neural foraminal stenosis in the lumbar spine.” (Tr. 9). Dr. Dahl further opined:
I also reviewed the judge’s decision in regards to [Plaintiff’s] application tor disability. The judge found that [Plaintiff] did not meet the criteria for the listing of 1.04C which he reports requires spinal stenosis resulting in pseudoclaudication. I would argue that this is incorrect, and based on review of [Plaintiff’s] MRI he was found to have multilevel neural foraminal stenosis at L2-3, L3-4, L4-5 as well as L5-S1. The patient does have a neurogenic claudication manifesting itself in radicular symptoms that would be brought on by placing the patient on a treadmill and not too long after him being on the treadmill he would start to develop radicular symptoms, which by definition is pseudoclaudication. He also, based on the criteria for the listing of 1.04A, does have evidence of nerve root compression with positive straight leg raise. It also should be noted that in the judge’s record that he reviewed my records on 07/13/2010. I noted in those records that [Plaintiff] had a positive straight leg raise bilaterally. The judge stated that I said [Plaintiff] was in no acute distress, very cooperative with normal posture and gait and also noted that I stated that he was neurovascularly intact in bilateral lower extremities. Based on review of my records, this would not at all confirm that [Plaintiff] did not meet the listing for the spinal stenosis. He has an MRI which shows significant nerve root entrapment at multiple levels. He had an EMG/nerve conduction study which showed bilateral L4 radiculopathy and he has a grade 1 spondylolisthesis which causes dynamic instability with flexion and extension.
I believe with the reasonable degree of medical certainty that [Plaintiff] does meet the criteria for 1.04A and 1.04C. I would strongly recommend appeal, and these opinions are based on a reasonable degree of medical certainty.
b. Orthopedic and Spine Specialists, PC: Brian Koons, PA-C; Steven J. Triantafyllou
In a treatment record dated January 16, 2012, Mr. Koons observed that Plaintiff had normal posture and gait. (Tr. 11). Plaintiff was able to walk heel to toe without difficulty. (Tr. 11). Mr. Koons further wrote that Plaintiff exhibited “minimal tenderness in the cervical spine in the midline and paraspinal areas . . . [and] tenderness in the midline, paraspinal, PSIS and sciatic notch areas bilaterally” of the low back. (Tr. 11). Mr. Koons observed that Plaintiff’s lumbar range of motion was diminished by fifty percent in flexion, fifty percent in extension, and twenty-five percent in lateral bending. (Tr. 11). Mr. Koons noted that Plaintiff’s strength was good in the lower extremities bilaterally, straight leg tests were negative, and sensation was intact in the lower extremities bilaterally. (Tr. 11). Mr. Koons also noted that X-rays taken that same day revealed pars defects at L5 bilaterally. (Tr. 11).
In a treatment record dated February 6, 2012, Plaintiff saw Dr. Triantafyllou to review a recent MRI scan of his lumbar spine and address his ongoing back and leg pain. (Tr. 13). Upon examination, Dr. Triantafyllou noted generalized tenderness of the lumbar spine and a limited range of motion. (Tr. 13). Dr. Triantafyllou wrote that Plaintiff’s neurological examination was “intact with regards to motor, sensory, and reflex testing, ” and “provocative tests [were] negative.” (Tr. 13). Dr. Triantafyllou opined that the MRI of Plaintiff’s lumbar spine dated January 19, 2012, showed “dehydration changes at L3-4, L4-5, and to a lesser degree at L5-S1, ” pars defects at L5 without evidence of spondylolisthesis, with a canal that was “relatively patent at the L5-S1 level.” (Tr. 13). Dr. Triantafyllou noted that there was ...