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Blosser v. Colvin

United States District Court, M.D. Pennsylvania

July 20, 2015

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


MARTIN C. CARLSON, Magistrate Judge.

This is an action brought under 42 U.S.C. 405(g) and 42 U.S.C. §1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security's final decision denying Plaintiff Michael Blosser's applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge on consent of the parties, pursuant to the provisions of 28 U.S.C. §636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Docs. 17, 18).

This case involves a function that is integral to the role of the ALJ: The resolution of a factual dispute regarding the degree to which diagnostic testing supported a plaintiff's claim of total disability. In this case, Plaintiff suffers from a number of physical impairments, chief among them severe lower back pain which radiates down his left leg. The credibility of his complaints of pain are supported to some degree by diagnostic imaging which confirms some physical abnormality at the L4/L5 and L5/S1 levels of his spine. Plaintiff contends that this MRI, which documents the presence of a central disc protrusion at L4/L5 encroaching upon the thecal sac and a broad based disc protrusion at L5/S1 encroaching upon the thecal sac and left-sided neural foramina, establishes that Plaintiff suffers from a greater degree of limitation than found by the ALJ and demonstrates the requisite nerve root compromise and compression to meet Listing 1.04A. The Commissioner disagrees and asserts that a disc bulge encroaching upon the thecal sac and left-sided neural foramina is not the same as nerve root compromise or compression. In the Commissioner's view, therefore, substantial evidence supports the ALJ's determination that the Plaintiff was able to engage in a limited range of sedentary work. This disagreement forms the basis for Plaintiff's argument for reversal, or remand.

For the reasons stated herein, we have found that the final decision of the Commissioner is supported by substantial evidence. As such, we AFFIRM the decision of the Commissioner denying Plaintiff's applications for benefits, and DENY Plaintiff's request for the award of benefits, or remand for a new administrative hearing.


Plaintiff protectively filed applications for benefits under Titles II and XVI of the Social Security Act alleging that he is unable to work due to a combination of back problems, problems with both ankles, knee problems, and cardiac difficulties. (Admin Tr. 185). He initially alleged that his conditions rendered him completely disabled on July 15, 2009. (Admin Tr. 181). He later amended his alleged onset date to August 3, 2011, the date of the earliest medical record in his file.[1] (Admin Tr. 41-42).

Plaintiff lives by himself in a house, has a tenth grade education, and partially supports himself by working "odd jobs" that net him approximately three hundred dollars per month since being laid off in 2009; he testified that he works an estimated eight hours per month. Plaintiff reported no difficulty caring for himself, that he cooks simple meals with breaks to sit down, and does dishes, laundry, grocery shopping, vacuuming, sweeping, maintains his yard, and takes out the trash.[2] Plaintiff testified that, as a result of his impairments he could not bend down and touch his toes but can squat down to pick up objects from the floor. He reported that he cannot climb ladders, but can climb stairs while using a railing for balance. According to the Plaintiff, he can walk a half-mile before he needs to sit down due to lower back pain, can stand for ten minutes before he needs to sit, and can sit up to thirty minutes before he needs to stand or change positions. Plaintiff takes a combination of Vicodin and ibuprofen to manage his pain. Plaintiff testified that he takes up to five half-hour naps per day due to fatigue. Plaintiff asserted that he is always fatigued, and believes that his symptoms of pain and fatigue may be causally related.

Plaintiff's claims were initially denied on August 23, 2011.[3] On October 26, 2011, Plaintiff filed a written request for a hearing. His request was granted, and on December 4, 2012, he was given the opportunity to appear and testify, with the assistance of counsel, during an administrative hearing before an Administrative Law Judge ("ALJ") in Harrisburg, Pennsylvania. Impartial Vocational Expert ("VE") Andrew Caporale also appeared and testified during Plaintiff's hearing.

Following his hearing, the ALJ denied Plaintiff's claims in a written decision dated December 18. 2012. Thereafter Plaintiff sought review of the ALJ's decision by the Appeals Council. Together with his request for review, Plaintiff submitted new medical evidence that was not before the ALJ when he rendered his decision. (Admin Tr. 8-22). The Appeals Council denied Plaintiff's request for review, and concluded that the new evidence submitted by Plaintiff did not relate to the period of time addressed by the ALJ in his decision. (Admin Tr. 2). Plaintiff does not allege that remand is appropriate pursuant to sentence six of 42 U.S.C. §405(g). Therefore, we have not considered this evidence in our review of Plaintiff's claims.

On August 3, 2011, Plaintiff was examined by Dr. Vandegriff at the request of the Social Security Administration. (Admin Tr. 266-74). During his examination, Dr. Vandegriff ordered an x-ray of Plaintiff's lumbar spine. The x-ray revealed mild degenerative joint disease at L3, L4, and L5, and the vague suggestion of a bony defect in the area of the pars intra-articular sub L5 suggesting spondylolysis without spondylolisthesis.[4] Dr. Vandegriff noted that Plaintiff ambulated to and from the examination room on his own and with a normal gait, during the examination he was able to move all extremities without difficulty, exhibited normal reflexes, and had a normal range of motion in all areas tested. Based on his x-ray and examination findings, Dr. Vandegriff diagnosed obesity, a history of myocardial infarction in 2005 (by Plaintiff's report), [5] and lumbar pain with spondylolysis. Based on these diagnostic impressions, Dr. Vandegriff opined that Plaintiff could: frequently lift or carry up to ten pounds, occasionally lift or carry up to twenty pounds, and push or pull within these weight restrictions without limitation; stand and walk up to four hours per eight-hour workday; sit without limitation; occasionally bend or kneel; never stoop, crouch, balance, or climb; and reach, handle, finger, feel, see, hear, speak, taste, and smell without restriction. Dr. Vandegriff also noted that Plaintiff should avoid exposure to unprotected heights in the workplace.

On December 27, 2011, Plaintiff was examined by Dr. Mark Stutzman at the Sadler Health Clinic for the first time with complaints of a possible umbilical hernia, and left hip pain that radiated down his leg. (Admin Tr. 336). Dr. Stutzman confirmed the presence of a 1-2 cm umbilical hernia but did not recommend any treatment. (Admin Tr. 338). He also noted that Plaintiff's straight leg raise test was negative on the left side. Id. Dr. Stutzman prescribed Vicodin and Tramadol for the pain, and medications to treat his coronary artery disease.

On February 2, 2012, Plaintiff was examined by Dr. Stutzman to establish care. Plaintiff reported persistent back pain and numbness in his left leg. On examination Dr. Stutzman noted that Plaintiff had a negative straight leg raise test, but was positive for decreased sensation in his lower left extremity. (Admin Tr. 334). Dr. Stutzman continued Plaintiff on the same medications.

On March 12, 2012, Plaintiff was examined by Dr. Stutzman. Plaintiff reported that he was "overall worse, but was better with activity (bicycling)" and that the numbness in his left foot was better, but became worse with prolonged sitting and standing. (Admin Tr. 332). On the same date, Plaintiff's straight leg raise test was negative and his sensation was normal. Id. Dr. Stutzman noted that Plaintiff was "temporarily disabled given degree of functional impairment." (Admin Tr. 333). Dr. Stutzman continued Plaintiff on the same medications.

On May 14, 2012, Plaintiff was examined by Dr. Stutzman. Dr. Stutzman noted that Plaintiff's straight leg raise was negative on the left side, but that Plaintiff did have decreased sensation in his lower left extremity. (Admin Tr. 330). Dr. Stutzman continued Plaintiff on the same medications.

On September 9, 2012, Plaintiff was examined by Dr. Stutzman with complaints of lower back pain that had been present since 2012, he described the pain as aching, aggravated by physical activity, and relieved by rest and medication. Plaintiff also reported that he experienced numbness down his left leg, muscle weakness secondary to pain, and neck pain present for one month. On physical examination, Plaintiff exhibited decreased lumbar lordosis, increased thoracic kyphosis, limited forward bending due to pain, had a positive straight leg raising test on the left. Left toe dorsiflexion was , and plantar flexion was . Dr. Stutzman assessed coronary artery disease, hypertension (controlled), hyperlipidemia, sciatica of the left side, and neck pain. He increased Plaintiff's Vicodin dosage, prescribed a muscle relaxer for Plaintiff's neck, and recommended that Plaintiff continue taking his normal doses of Plavix, Torpol, and Lipitor.

On September 18, 2012, Plaintiff had an MRI of his lumbar spine. The MRI revealed leftward disc protrusions at L4/L5 and L5/S1 with no significant central canal encroachment, there was some left sided neural foraminal encroachment of the thecal sac at L4/L5 and L5/S1. (Admin Tr. 347).

On October 3, 2012, Plaintiff returned to Dr. Stutzman to follow up on a recent MRI, and to review lab work. Although Plaintiff reported that the increased dose of Vicodin seemed to help, it was recommended that he undergo steroid injections and he was referred to the Carlisle Pain Management Center. During this examination Dr. Stutzman noted that plaintiff's gait was "slightly limping."

On October 11, 2012, Plaintiff was examined by Dr. Salah Eldin Eldohiri at the Carlisle Regional Medical Center. On physical exam Dr. Eldohiri noted that Plaintiff's lower left extremity showed significantly diminished sensation to light touch, left toe dorsiflexion (3/5), plantar dorsiflexion (4/5), antalgic gait, and brownish discoloration of both lower extremities suggestive of venous congestion or vascular disease. Plaintiff's lumbar spine was good with flexion and side-bending, but Plaintiff's lumbar extension was limited secondary to pain, his left sacroiliac joint was tender to palpation, and his straight leg test was positive on the left side. Based on his observations during the examination, and the September 2012 MRI report, Dr. Eldohiri reported the impression of low back pain, herniated nucleus polyposis, left lower extremity radiculopathy, left sacroiliac joint arthropathy, and new onset of weakness and numbness of the left lower extremity.

On October 25, 2012, Plaintiff was treated with three lumbar interlaminar epidural steroid injections. Plaintiff tolerated the procedure with no complications. At his hearing he testified that these injections were not effective, and that he was returning in late December 2012 to try one injection - rather than three.

It is against the backdrop of this equivocal medical evidence regarding Blosser's spinal condition that we consider Blosser's appeal.[6]



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