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Cummings v. Colvin

United States District Court, W.D. Pennsylvania

July 7, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Page 210

          For ERIC ALLEN CUMMINGS, Plaintiff: Kenneth R. Hiller, LEAD ATTORNEY, Law Offices of Kenneth Hiller PLLC, Amherst, NY.

         For CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant: Christian A. Trabold, LEAD ATTORNEY, United States Attorney's Office, Erie, PA.

Page 211


         Terrence F. McVerry, Senior United States District Judge.

         I. Introduction

         Eric Allen Cummings (" Plaintiff" ) has filed this action for judicial review of the decision of the Acting Commissioner of Social Security, which denied his applications for disability insurance benefits (" DIB" ) and supplemental security income (" SSI" ) under Titles II and XVI of the Social Security Act (" Act" ), 42 U.S.C. § § 401-403, 1381-1383. Pending before the Court are the parties' cross-motions for summary judgment. ECF Nos. 9, 13. The motions have been fully briefed and are ripe for disposition. ECF Nos. 10, 14, 15. For the reasons that follow, the Acting Commissioner's motion will be GRANTED, and Plaintiff's motion will be DENIED.

         II. Background

         Plaintiff is a 47-year-old high school graduate with two years of college education. He worked as an auto mechanic, baker's assistant (a job he held for just two weeks), and laborer for Zambelli's Fireworks, but he stopped working for Zambelli's in 2009 because he failed a background check. He hasn't worked since. He alleges that he has been disabled since September 10, 2005, due to a myriad of impairments, but his back pain is the focus of this appeal. (R. 210).

         Plaintiff's back pain began in 2003. (R. 241). A few years later, he was diagnosed with a ruptured disc. (R. 344). He underwent a L3-4 discectomy to remove the damaged portion of his spine on April 25, 2006. (R. 312). At a June 2006 follow up, Plaintiff said that he continued to experience pain and spasms in his lower back, but the pain was not as bad as it had been before his surgery. (R. 343). His surgeon, William Welch, M.D., believed that his recovery was going well and that the pain would continue to subside over time. Id. After the initial follow-up, Dr. Welch referred Plaintiff to physical therapy (" PT" ). Id. Plaintiff only attended six PT sessions, however, cancelling four others and failing to show for one because he was either " out golfing" or could not get a ride (Plaintiff has had four DUI convictions, and so he does not have a driver's license). (R. 236, 358). He was discharged from PT on July 17, 2006, due to his non-compliance and lack of attendance. (R. 356, 358). At his last session on July 5, Plaintiff rated his pain at 3/10, and an examination showed full active range of motion of the lumbar spine, with 4/5 strength. (R. 358).

         Following Plaintiff's time in PT during the summer of 2006, there is a gap in the record, until March 20, 2008, when he underwent a physical with his primary care physician, Gerald Kahler, M.D., following his release from jail. (R. 350). Plaintiff complained of continuing back pain and claimed that the 2006 surgery failed to provide him any relief. Id. He had been taking ibuprofen to manage the pain. Id. Dr. Kahler noted that Plaintiff's " lumbar spinous processes" were tender, and, in

Page 212

terms of range of motion, Plaintiff had 50° of flexion, 15° of extension, and 15° of lateral motion. (R. 351). He had normal stability, strength, and tone in his lower extremities. Id. Dr. Kahler prescribed Anaprox-DS and Methocarbamol for Plaintiff's pain. Id. Although Plaintiff was instructed to follow up in six weeks, there is no indication that he did so.

         Three years later, Plaintiff returned to Dr. Kahler's office complaining that his back still bothered him, especially when bending over and sitting. (R. 349). While Ibuprofen helped to alleviate the pain, he hadn't taken any in four months. Id. According to Dr. Kahler, Plaintiff had full range of motion and normal muscle strength, though his back was tender in the area of the incision at L3-4. Id. Straight leg tests were negative. Id. Plaintiff was prescribed Diclofenac Sodium and Cyclobenzaprine and advised to follow up as needed. Id.

         Plaintiff returned to Dr. Kahler on September 27, 2011, for a comprehensive physical examination. (R. 432). He complained that his left leg had been going numb and affecting his ability to stand. Id. He also reported constant pain in his back, which had become more problematic since he quit drinking alcohol. Id. Excedrin, which he was taking eight times a day, seemed to help, though. Id. On examination, Plaintiff displayed normal gait; satisfactory-to-full range of motion in his neck and spine; adequate strength with normal stability in his neck; normal stability, strength, and tone in his spine; and full range of motion with normal stability, strength, and tone in his extremities. (R. 434). Dr. Kahler diagnosed Plaintiff with low back pain and degenerative disc disease with myelopathy and prescribed Flexeril, Excedrin, and Diclofenac Sodium. Id. He was also referred back to PT. Id.

         Plaintiff attended nine PT sessions from September 29, 2011, to October 27, 2011. (R. 412). When he was discharged, he displayed 50° of flexion, 18° of extension, 30° of right side bending, and 25° of left side bending. Id. Straight leg raises tests were positive. Id. In addition, Plaintiff scored a 36 percent on the Oswestry Disability Index (" ODI" ), which, according to his physical therapist, " indicate[d] an increase in function with his [activities of daily living]." Id. Plaintiff nonetheless denied any change in his symptoms. Id.

         When Plaintiff followed up with Dr. Kahler in April 2012, he reported that he continued to suffer lower back pain. (R. 429). He described experiencing stiffness and a decreased range of motion, as well. Id. Overall, though, he said the symptoms were " moderate in severity." Id. Upon examination, Plaintiff showed a full range of motion and straight leg raise tests were negative. Id. Dr. Kahler restarted him on Cyclobenzaprine and also prescribed Tramadol. (R. 430).

         Dr. Kahler saw Plaintiff again a month later, and he still complained of lower back pain and left leg numbness. (R. 426). He said that the pain was exacerbated when he bent " over a fender to work" or when was lying " under a car." Id. He also reported that it hurt to sit or walk for long periods of time. Id. Plaintiff was continued on each of his medications and once again referred to PT. (R. 426).

         Plaintiff attended five physical therapy sessions between May 22, 2012, and June 5, 2012. (R. 406). By the time of his discharge, his range of motion and strength had improved and his perception of pain had fluctuated. Id. However, although his pain decreased following therapy, it returned when he tried ...

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