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Ross v. Colvin

United States District Court, W.D. Pennsylvania

July 29, 2015

ROGER J. ROSS, Plaintiff,


TERRENCE F. McVERRY, District Judge.

I. Introduction

Roger J. Ross ("Plaintiff") brought this action for judicial review of the decision of the Acting Commissioner of Social Security ("Commissioner"), which denied his applications for supplemental security income ("SSI") under Title XVI of the Act, 42 U.S.C. ยงยง 1381-1383(f). Now pending before the Court are the parties' cross-motions for summary judgment (ECF Nos. 9, 11), which have been fully briefed (ECF Nos. 10, 12) and are ripe for disposition. For the following reasons, Plaintiff's motion will be DENIED, and the Acting Commissioner's motion will be GRANTED.

II. Background

Plaintiff was born on September 17, 1960.[1] (R. 21). He was married but is currently divorced and he has two adult sons. (R. 33, 471). He attended high school until the tenth grade and obtained a GED in 1990. (R. 34). He has relevant work experience as a tree trimmer, plumber's helper and press operator. (R. 21). However, the record reflects that he has not engaged in substantial gainful activity since his alleged onset date of August 11, 2011 (the date he was released from prison). (R. 16). Plaintiff was last employed as a plumber's helper in 2002 when he violated a parole condition. (R. 470).

A. Medical Evidence

Although Plaintiff provided additional evidence to the Appeals Council, the Court is limited in its review to the evidence that was provided to the ALJ and cannot consider the supplemental information.[2] Therefore, only the pertinent facts will be reviewed and discussed in this opinion.

Plaintiff testified that he was in a car accident on July 22, 2002 in which he fractured both feet and his right leg. (R. 34, 35). Plaintiff sustained a second fracture to his left ankle and a compression fracture of his spine in November 2002 when he fell from a tree. (R. 35, 377, 422, 449). In August 2003, the compression fracture of the spine was treated surgically with a thoracic fusion at T11 to L1. (R. 377, 422). Between July 2004 and August 2011, Plaintiff was incarcerated for aggravated assault with a motor vehicle and DUI.

On September 27, 2011, Dr. Jeffrey A. Baum examined Plaintiff for a potential hernia repair. (R. 377). Dr. Baum noted Plaintiff's history of spinal fusion surgery. (R. 377). Back x-rays taken that day showed a solid interbody fusion with a cage, normal alignment of the spine and no significant kyphosis. (R. 376). Dr. Baum further noted a healed incision on Plaintiff's left side, but could not appreciate the presence of a hernia. (R. 377). Dr. Baum observed that Plaintiff ambulated around the room easily and stated that Plaintiff was neurologically normal in his lower extremities, including his reflexes and muscle strength. (R. 377).

On October 13, 2011, Dr. John McKeating evaluated Plaintiff for his hernia. (R. 380). He concluded that Plaintiff did not have an actual hernia; rather he had some atonic musculature on the abdominal wall most likely related to his surgery in 2003. (R. 381). Dr. McKeating observed normal mental status, and normal reflexes, strength, sensation, gait and balance. (R. 381).

On December 19, 2011, Dr. Lisa Weidner evaluated Plaintiff for his complaints of mid-back and abdominal pain. (R. 421). Plaintiff complained of constant pain since his surgery. (R. 422). Plaintiff reported that he got around by walking and using public transportation. (R. 422). Dr. Weidner observed that Plaintiff's gait was non-antalgic. (R. 423). She noted no tenderness to palpation in the midline of his thoracic spine and some tenderness around the incision site. (R. 423). Plaintiff had symmetric muscle tone, girth, and strength, (R. 424). His reflexes and sensation were intact and straight leg raise was performed without reports of pain. (R. 424). Dr. Weidner suggested possible diagnostic/therapeutic intercostal nerve injections and adjustments to his medications. (R. 424).

On December 20, 2011, Dr. Shabana Khan, a psychiatrist, evaluated Plaintiff. (R. 437). Plaintiff reported that he had been depressed since 2002 and that he felt increased anxiety when he was in crowds and noisy environments. (R. 437). Dr. Khan noted that Plaintiff was dressed neatly, was cooperative and had appropriate behavior. (R. 438). Plaintiff's speech was logical, relevant and coherent and he denied any paranoia, suicidal/homicidal ideation and delusions. (R. 438). Dr. Kahn diagnosed Plaintiff with generalized anxiety disorder and depressive disorder and assigned a GAF[3] score of 55. (R. 438).

On January 19, 2012, Dr. Dane Wukich examined Plaintiff for mid-foot pain. (R. 575). She diagnosed Plaintiff with right mid-foot arthritis and left 5th metatarsophalangeal joint pain secondary to excessive bone formation. (R. 576). Plaintiff stated that he had not tried any type of adaptive footwear, inserts or physical therapy. (R. 575). Dr. Wukich offered Plaintiff a cortisone injection, which he declined. (R. 576).

On January 24, 2012, Eric Bernstein, PH.D., evaluated Plaintiff at the request of the Social Security Commissioner. (R. 469-473). Plaintiff walked to the appointment and reported no difficulties in doing so. (R. 469). During the evaluation, Plaintiff was serious and spoke with organization and clarity as he related his physical complaints and medical conditions. (R. 472). Plaintiff was oriented in all four spheres of person, place, situation and time. (R. 472). His knowledge of general information and abstract reasoning skills appeared to be low average. (R. 472). Dr. Bernstein diagnosed Plaintiff with depressive disorder and pain disorder associated with both psychological factors and a chronic general medical condition. (R. 473). He also assigned a GAF score of 48.[4] (R. 473).

During a follow-up examination in April 2012, Dr. Baum noted that Plaintiff's recent cervical MRI had shown moderate degenerative disc disease and some moderate foraminal narrowing. (R. 517-18). Plaintiff stated that Vicodin was somewhat helpful in relieving his symptoms. (R. 517).

B. Procedural History

Plaintiff protectively filed an application for SSI on November 21, 2011, alleging disability as of August 8, 2011, as a result of previous fractures of the spine and feet, abdominal surgery, anxiety and compulsive disorder. (R. 57). After Plaintiff's claim was denied on February 2, 2012, at the administrative level, he requested a hearing, which was conducted on April 4, 2013 in Pittsburgh, Pennsylvania. (R. 14). Administrative Law Judge Alma S. de Leon ("ALJ") presided over the hearing. Although informed of his right to representation, Plaintiff chose to appear ...

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