United States District Court, W.D. Pennsylvania
ERIC ALLEN CUMMINGS, Plaintiff: Kenneth R. Hiller, LEAD
ATTORNEY, Law Offices of Kenneth Hiller PLLC, Amherst, NY.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant: Christian A. Trabold, LEAD ATTORNEY, United States
Attorney's Office, Erie, PA.
F. McVerry, Senior United States District Judge.
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.
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.
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).
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
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.
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.
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.
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
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).
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).
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