United States District Court, M.D. Pennsylvania
CRAIG A. BONHAM, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
RICHARD P. CONABOY, District Judge.
Here we consider Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. (Doc. 1.) In his application for benefits, Plaintiff claimed his ability to work was limited by multiple back and hip related issues. ( See, e.g., R. 240.) He alleges disability beginning on March 22, 2008. (R. 11.) The Administrative Law Judge ("ALJ") who evaluated the claim concluded that Plaintiff's severe impairment of Status Post Lumbar Decompression with Discectomy did not meet or equal the listings. (R. 13.) The ALJ found that Plaintiff had the residual function capacity ("RFC") to perform sedentary work with certain limitations and that such work was available through the date last insured, June 30, 2009. (R. 14-19.) The ALJ therefore denied Plaintiff's claim for benefits. (R. 19.) With this action, Plaintiff argues that the decision of the Social Security Administration is error for the following reasons: 1) Plaintiff has an impairment or combination of impairments that meets or medically equals a listed impairment; 2) the ALJ erred when he continued to evaluate him under the Medical-Vocational rules; 3) the ALJ's credibility determinations are not supported by substantial evidence; and 4) the ALJ erred when he determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Doc. 11 at 2-3.) For the reasons discussed below, we conclude Plaintiff's appeal of the Acting Commissioner's decision is properly denied.
A. Procedural Background
On March 23, 2011, Plaintiff protectively filed an application for DIB. (R. 11.) As noted above, he alleges disability beginning on March 22, 2008. (Id. ) Plaintiff stated that he applied for benefits because his ability to work was limited by back injury, chronic back pain, back surgery, lumbar disc degeneration, herniated lumbar disc, postlaminectomy syndrome lumbar, lumbar canal stenosis, chronic lumbar radiculopathy, radiculopathy, neuralgia, and contracture of the hip. (R. 240.) The claims were initially denied on December 16, 2011. (R. 11.) Plaintiff filed a request for a review before an ALJ on December 21, 2011. (R. 11.) On February 5, 2013, Plaintiff, with his attorney, appeared at a hearing before ALJ Peter V. Train. (R. 24.) Vocational Expert Sheryl Bustin also testified at the hearing. (Id. ) The ALJ issued his unfavorable decision on June 25, 2013, finding that Plaintiff was not disabled under the Social Security Act during the relevant time period. (R. 19.)
On August 9, 2013, Plaintiff filed a Request for Review with the Appeal's Council. (R. 6-7.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision on September 26, 2014. (R. 1-5.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)
On November 4, 2014, Plaintiff filed his action in this Court appealing the Acting Commissioner's decision. (Doc. 1.) Defendant filed her answer and the Social Security Administration transcript on January 12, 2015. (Docs. 9, 10.) Plaintiff filed his supporting brief (Doc. 11) on February 11, 2015. (Doc. 11.) Defendant filed her opposition brief on May 14, 2015, after requesting and being granted extensions of time within which to do so. (Docs. 12-16.) Plaintiff did not file a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.
B. Factual Background
Plaintiff was born on May 24, 1971, and was thirty-eight years old on the date last insured. (R. 17.) Plaintiff left school while in tenth grade. (R. 49.) Plaintiff has past relevant work as an excavating and backhoe operator and contractor, industrial and commercial grounds keeper, demolition and construction worker, and automotive mechanic. (Id. ) At the time he alleges he became disabled in 2008, Plaintiff was a full-time landscaper who owned his own business. (R. 30.)
1. Impairment Evidence
Because the ALJ determined that Plaintiff's date last insured was June 30, 2009, and Plaintiff does not dispute this finding, we will focus on evidence preceding the date last insured.
On March 28, 2007, Plaintiff saw Nandita Kinley, M.D., at Southern Family Medicine in Shrewsbury, Pennsylvania. (R. 286.) He presented with low back pain which began a day earlier, reporting it to be constant and severe and most prominent in the lower lumbar spine. (Id. ) Plaintiff had no prior history of back pain. (Id. ) Plaintiff was assessed to have low back pain and muscle spasm. (R. 287.) He was prescribed Skelaxin and directed to apply moist heat, massage and start home back strengthening exercises in two days. (R. 287-88.)
On October 18, 2007, Plaintiff again saw Dr. Kinley for low back pain radiating to the thigh. (R. 284.) Office notes indicate that historically Plaintiff identified it as a chronic but intermittent problem with an acute exacerbation which began ten weeks before the visit. (Id. ) Plaintiff denied radicular leg pain, numbness in the legs, weakness of the legs or incontinence. (Id. ) He was not taking any medications at the time. (Id. ) Plaintiff was prescribed Flexeril and Celebrex with moist heat and massage recommended. (R. 285.)
On November 14, 2007, Plaintiff saw Dr. Kinley for hip pain which he reported had been a problem for about five months. (R. 282.) His "Current Problems" included low back pain. (Id. ) He was taking Flexeril and Celebrex at the time. (Id. ) Plaintiff received an injection and was given a prescription for Meloxicam. (R. 283.)
On December 21, 2007, Plaintiff was seen at Orthopaedic & Spine Speciatists, P.C., by K. Nicholas Pandelidis, M.D., for back and left leg pain. (R. 302.) Plaintiff reported that he had fallen ten days before and he had been having left low lumbar pain radiating into his left leg, he was on a muscle relaxant, the pain had been relatively persistent and intermittently severe, and he had not had much trouble with his back in the past. (Id. ) On physical examination, Plaintiff was found to have decreased back mobility and tenderness, no spasm, uncomfortable left straight leg raise, mild ankle dorsiflexion weakness, and symmetric reflexes. (Id. ) The diagnosis was back and left leg pain likely secondary to L4-5 disk herniation. (Id. ) Dr. Pandelidis recommended Medrol taper followed by Aleve, Soma as helpful, hyrocodone, and follow-up for inadequate relief. (Id. ) Under "Work Status" Dr. Pandelidis noted that Plaintiff planned to limit his work until he felt better. (Id. )
On January 9, 2008, Dennis M. Grolman, M.D., and Fred Newton, M.D., of Orthopaedic & Spine Specialists administered an Interlaminar Lumbar Epidural Steroid Injection at L5-S1. (R. 301.)
On January 29, 2008, Plaintiff saw Dr. Pandelidis for follow up on back and leg pain. (R. 300.) Dr. Pandelidis noted that Plaintiff's symptoms began after a fall. (Id. ) Plaintiff reported that he was improved but still had significant discomfort. (Id. ) Repeat injection versus proceeding with MRI looking for a surgical solution was discussed and Plaintiff indicated he would consider this further. (Id. ) Dr. Pandelidis noted that Plaintiff was working as able. (Id. )
On February 19, 2008, Plaintiff had another steroid injection. (R. 298.) He was directed to follow up with Dr. Pandelidis in one to two weeks. (R. 299.)
On March 11, 2008, Plaintiff had a follow up visit with Dr. Pandelidis who noted that Plaintiff reported the last steroid injection was not particularly helpful and he continued to have leg pain. (R. 297.) The diagnosis was back and left leg pain secondary to L4-5 disc herniation and the plan was to perform a left L4-5 disc excision. (Id. ) Regarding "Work Status, " Dr. Pandelidis noted that Plaintiff had been unable to work and would be unable to work for four to six weeks after surgery. (Id. )
On March 27, 2008, Dr. Pandelidis performed a lumbar decompression, L4-5, with lumbar diskectomy, left side. (R. 295.) He noted the surgery was indicated because of incapacitating leg pain. (Id. )
On March 31, 2008, Plaintiff saw Steven K. Groff, M.D., at Orthopaedic & Spine Specialists because he was having difficulties with backache and left buttock pain post surgery. (R. 294.) The diagnosis was continued radiculopathy and status post decompression surgery. (Id. ) Plaintiff was given a Medrol dosepak. (Id. )
On April 4, 2008, Plaintiff saw Dr. Pandelidis with continued back and buttock pain. (R. 293.) Dr. Pandelidis noted that Plaintiff initially did well but developed acute onset left buttock pain. (Id. ) The Medrol dosepak had not been helpful and Percocet did not provide adequate relief. (Id. ) The diagnosis was recurrent back and buttock pain, likely related to disc reherniation and MRI of the lumbar spine was recommended. (Id. ) Dr. Pandelidis noted that Plaintiff was unable to work. (Id. )
Also on April 4, 2008, Plaintiff had a lumbar spine MRI. (R. 310.) Dr. Elias Najem's impression included the following:
Left-sided L4 hemilaminectomy and right hemilaminotomy L4 appearing since prior examination. This has decreased in size since prior study. There is some enhancing fibrovascular scar tissue partially surrounding the left L5 nerve root.... Some enhancing fibrovascular scar tissue in the left lateral epidural space and scar tissue in the laminotomoy/laminectomy defects. No central spinal canal stenosis or foraminal stenosis. Disc dessication L4-5.... No other significant changes.... Disc dessication and small posterior central disc protrusion L5-S1.
On April 8, 2008, Dr. Pandelidis noted that Plaintiff reported worsening pain in the left buttock radiating into the foot, that narcotics had not been helpful, and he was experiencing weakness in the foot. (R. 292.) He also noted that the April 4th MRI demonstrated "some residual or new disc protrusion that is relatively central. The more significant prior disc fragment is no longer evident. There is an element of inflammation related to the surgery event as well." (Id. ) The diagnosis was recurrent disc herniation. (Id. ) The planned procedure was excision of the recurrent disc at L4-5. (Id. ) Again, Dr. Pandelidis noted Plaintiff was unable to work. (Id. )
At Plaintiff's April 14, 2008, office visit, Dr. Pandelidis recorded that surgery was cancelled because Plaintiff was having second thoughts, noting in the HPI (History of Present Illness) section of the report "[h]e is perhaps slowly getting better." (R. 291.) On physical examination, Dr. Pandelidis noted "[h]e does appear somewhat more comfortable today." (Id. ) Dr. Pandelidis again reviewed the MRI observing there was "a small amount of residual disc herniation that is clearly compressive... and reactive changes involving the nerve." (Id. ) His diagnosis was
[r]ecurrent left leg sciatica that may be nerve injury or may be related to residual nerve compression: I explained to him that if he is getting better it would be much preferable not to do further surgery. At the same time [if] he is getting worse, the sooner we do the surgery the less scarring there would be.
(Id. ) Surgery was tentatively scheduled and would be canceled if Plaintiff was getting better. (Id. ) Plaintiff continued to be unable to work. (Id. )
On April 21, 2008, Plaintiff saw Anthony May, M.D., of Wellspan Neurology, York, Pennsylvania, on the referral of Nandita Kinley, M.D. (R. 318.) By history, Dr. May noted that Plaintiff had had problems since November 2007 and at the time of his visit had continuing left low back and buttock pain which traveled down the left thigh and could be reproduced by palpation behind the knee. (Id. ) He also noted that prolonged walking and sitting aggravated the pain while lying down helped, and Plaintiff occasionally experienced numbness in his left foot. (Id. ) Plaintiff was taking Percocet and Soma at the time. (Id. ) Physical examination showed some weakness in the lower extremity. (R. 322.) Electrophysiologic studies demonstrated "some possible relative reduction of amplitude of the left tibial and possibly peroneal nerves and delayed late responses, which could support possible L5 or S1 radiculopathy or lumbosacral plexopathy." (R. 322-23.) Dr. May added that "[g]iven the characteristics of the patient's tenderness and distribution of pain however, I would be more suspicious of a problem involving the plexus such as lumbar sacral plexopathy." (R. 323.) Dr. May recommended further diagnostic studies. (Id. )
On April 28, 2008-five weeks after his lumbar diskectomy- Plaintiff saw Dr. Pandelidis. (R. 290.) Dr. Pendelidis noted that Plaintiff reported the following:
He had been having significant pain. It is not clear whether the residual disk material could be causing him a problem. Certainly, the left-sided compression was much improved on the follow up MRI. Ultimately, we decided not to do a re-exploration. He has been on medications including Elavil, Soma and Percocet. He is doing just a little bit better but not very well at all.
(Id. ) On physical examination, Plaintiff still had a limp and pain with straight leg raise. (Id. ) The diagnosis was "[p]ersistent sciatica secondary to nerve injury or possible secondary to small recurrent herniation that is not obvious on the MRI." (Id. ) The plan was "[p]ain management for left L5 transforaminal epidural steroid injection and reassess in a month; ultimately, if he has ongoing pain, re-exploration would be indicated." (Id. ) Regarding "Work Status, " Dr. Pandelidis noted that Plaintiff was unable to work. (Id. )
On June 6, 2008, Plaintiff again saw Dr. May. (R. 314.) Dr. May assessed Plaintiff to have radiculopathy and neuralgia. (Id. ) Recommendations included that Plaintiff be referred to neurosurgery for possible surgical treatment of neuralgia and another MRI was scheduled. (Id. ) Historically, Dr. May noted that Plaintiff had had problems since November 2007 and failed surgery with Dr. Pandelidis. (Id. )
On June 16, 2008, Plaintiff was seen by Arnold Salotto, M.D., at Wellspan Neurosurgery for neurosurgical follow-up. (R. 328.) Dr. Salotto recommended further testing. (Id. )
On July 8, 2008, Plaintiff saw Dr. Salotto for evaluation of his lumbar myelogram and CT. (R. 325.) Dr. Salotto noted in a letter to Dr. May that "while there is a disk protrusion I do not see any definite significant nerve impingement. The radiologist notes there is some mass effect on the L5 nerve on the left but there does appear to be SCF intensity around the nerve fibers at the disk level indicating no significant compression." (Id. ) Dr. Salotto recommended against further surgery at the time because it was not clear it would be helpful. (Id. ) Follow up with pain management was recommended. (Id. )
On July 9, 2008, To-Nhu H. Vu, M.D., of the Pain Relief Center at York Hospital administered a transforaminal lumbar epidural injection. (R. 368.) Before the injection, Dr. Vu did a history and physical. (Id. ) Dr. Vu noted that Plaintiff was otherwise healthy, "works full-time as a landscaper" and "owns his own business." (R. 369.) On examination of his back, Plaintiff had mild tenderness to palpation, his range of motion was somewhat limited secondary to pain, and he had no difficulty with flexion though he complained of pain with extension and lateral rotation. (Id. ) Plaintiff had positive straight leg raising on the left side and negative Patrick's test. (Id. ) He had a steady gait and appeared to have a slight limp trying to take pressure off his left leg. (Id. ) He had significant discomfort when asked to walk on his toes and had good strength in both upper and lower extremities. (Id. ) He had diminished sensation to pinprick along the lateral aspect of his calf and anterior aspect of his left foot consistent with the L5 dermatomal distribution. (Id. ) Dr. Vu observed that Plaintiff's most recent CT myelogram revealed a moderate sized left paracentral disc protrusion at the L4-5 level that was consistent with his pain. (Id. ) He planned to start Plaintiff on Mobic 7.5 mg. and Flexeril 10 mg. at bedtime. (Id. )
On August 7, 2008, Plaintiff reported to Dr. Vu that he continued to have pain after having the epidural injection four weeks earlier. (R. 366.) Plaintiff rated his pain at six out of ten and stated that he could not resume work because of it. (Id. ) Gabapentin and Flexeril were not giving him significant pain relief. (Id. ) Dr. Vu discussed various options with Plaintiff, including medical management. (Id. ) Plaintiff indicated that he wanted to see Dr. Salotto first to explore other options and before returning to Dr. Vu for medical management if he was not a surgical candidate. (Id.) Dr. Vu noted other medication possibilities and reported that he encouraged Plaintiff to continue his medications and told him to make another appointment if he wanted to continue with medical management. (Id. )
On November 30, 2010, Plaintiff saw Sonya Del Tredici, M.D., of Apple Hill Internal Medicine for the purpose of establishing care with a new physician. (R. 458.) Plaintiff's chief complaint was back pain. (Id. ) Plaintiff reported that the pain was excruciating at times and made him unable to function. (Id. ) Plaintiff also reported that he continued to work full-time in construction and was active in his hobbies with his grandchildren. (Id. ) Plaintiff was taking ibuprofen and self-medicating with alcohol, noting that he had tried narcotic painkillers without improvement. (Id. ) Physical examination of the back showed decreased range of motion, tenderness to palpation over lumbar spine, left paraspinal muscles, and over track of sciatic nerve. (R. 460.) Examination also showed pain over the left lower leg, muscle strength decreased in left leg (4 out of five), and sensation to vibration in left leg decreased. (Id. ) Dr. Del Tredici referred Plaintiff to Deborah Bernal, M.D., at the spine center. (R. 458.)
On December 9, 2010, Deborah Bernal, M.D., of Wellspan Physiatry saw Plaintiff for a consultation. (R. 352.) She assessed him to have gait abnormality, sacroilitis, contracture of the hip, unequal leg length, acquired, and lumbar radiculopathy. (Id. ) Plaintiff was to continue on Naprosyn and begin a comprehensive physical medicine treatment program. (Id. ) In the history portion of the report, Dr. Bernal recorded that Plaintiff reported he had no relief of his pain after surgery and had been followed by Dr. Salotto. (R. 354.) She added that Plaintiff worked as a machine operator, was able to return to work after three months, and used a back safety brace at work. (Id. ) At the time of the visit, Plaintiff completed a "Low Back Pain Disability Questionnaire." (R. 348-49.) He indicated the following: regarding pain intensity, pain medication gives very little relief from pain; regarding personal care, Plaintiff could take care of himself without causing increased pain; regarding lifting, he could lift heavy weights but it caused increased pain; regarding walking, pain prevented him from walking more than one-half mile; regarding sitting, pain prevented him from sitting more than one-half hour; regarding standing, he could stand as long as he wanted but it increased his pain; regarding sleeping, he could sleep only by using pain medication; regarding social life, pain prevented him from participating in more energetic activities like sports and dancing; regarding travel, he can travel anywhere but it increased his pain; and regarding employment/homemaking, he could perform most of his homemaking duties but pain prevented more physical stressful activities like lifting and vacuuming. (R. 348-49.)
Because Plaintiff's date last insured was June 30, 2009, we will not review additional medical ...