United States District Court, M.D. Pennsylvania
E. Schwab Chief United State Magistrate Judge.
Albert Diaz, Jr. (“Mr. Diaz”), an adult
individual who resides within the Middle District of
Pennsylvania, seeks judicial review of the final decision of
the Commissioner of Social Security
(“Commissioner”) denying his claim for Disability
Insurance Benefits under Title II of the Social Security Act.
Jurisdiction is conferred on this Court pursuant to 42 U.S.C.
§405(g). 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.
Doc. 20; Doc. 21.
reasons stated herein, we find that the final decision of the
Commissioner of Social Security is not supported by
substantial evidence. Accordingly, it is ordered that the
final decision of the Commissioner denying Mr. Diaz's
claim be VACATED and this case be REMANDED to the
Commissioner to conduct a new administrative hearing pursuant
to sentence four of 42 U.S.C. §405(g).
recommend that, because Mr. Diaz's application for
benefits has been pending for almost seven years, the
Commissioner schedule an expedited hearing within 120 days of
the Court's Order and promptly issue a revised
Background And Procedural History
action began as a simple application for Disability Insurance
Benefits under Title II of the Social Security Act filed by
Mr. Diaz on April 16, 2010. Since that date, Mr. Diaz's
claim navigated through a complex procedural labyrinth, where
it has been denied and remanded due to multiple defects
before it arrived before us in the instant matter. Because we
write solely for the benefit of the parties, we need not
discuss the procedural history of this case in detail. As
such, we will focus on the issue before us - whether ALJ
Hardiman's December 2015 decision denying Mr. Diaz's
claim is supported by substantial evidence.
May 8, 2008, Mr. Diaz worked in a luxury apartment building
as a maintenance director and maintenance worker. Admin. Tr.
659; Doc. 6-10 p. 77. Impartial Vocational Expert Patricia
Chilleri (“VE Chilleri”) testified that this
position was a composite job that involved elements of
multiple jobs in the Dictionary of Occupational
Titles (“DOT”) published by the United
States Department of Labor. At its most demanding Mr.
Diaz's past relevant work was classified as “very
heavy” and “skilled” with a specific
vocational preparation (“SVP”) level of
case was initiated based on two applications for benefits
that were filed at separate times and then consolidated by
order of the Appeals Council of the Office of Disability
Adjudication and Review (“Appeals Council”).
Admin. Tr. 689; Doc. 6-11 p. 21. Mr. Diaz's first
application for benefits was filed on April 16, 2010. In his
first application for benefits Mr. Diaz alleged that he
became disabled on May 8, 2008. Mr. Diaz's second
application for benefits was filed on August 13, 2013. In his
second application for benefits Mr. Diaz also alleged that he
became disabled on May 8, 2008.
8, 2008, when Mr. Diaz was thirty-nine years old, he fell
approximately four feet down an elevator shaft while engaging
in his duties as a maintenance director and maintenance
worker. Mr. Diaz alleges that he landed on his back and
elbow. Although the full extent of Mr. Diaz's injuries
was not immediately apparent, Mr. Diaz asserts that this
injury was the underlying cause of unremitting pain that has
driven him to have multiple back and elbow surgeries.
record in this case reflects that he first sought treatment
for his injuries on May 16, 2008, at Holy Name Hospital.
Admin. Tr. 275; Doc. 6-7 p. 83. He presented to the emergency
department with complaints of severe low back pain and elbow
pain. An injection of Toradol relieved his symptoms, and he
was prescribed Valium and Percocet. Admin. Tr. 276; Doc. 6-7
p. 84. An X-ray of Mr. Diaz's right elbow was normal.
Admin. Tr. 278; Doc. 6-7 p. 86. An X-ray of Mr. Diaz's
lumbar spine showed no change from a prior study dated August
13, 2007. Admin. Tr. 279; Doc. 6-7 p. 87. Mr. Diaz was
ambulatory on discharge, and was released to work immediately
except that he was instructed not to use his injured right
arm for one week. Admin. Tr. 281; Doc. 6-7 p. 89.
month later, an MRI revealed some abnormalities in Mr.
Diaz's spine that were not apparent on the initial x-ray.
Mr. Diaz was also diagnosed with cubital tunnel syndrome of
the right elbow within months of his accident. Mr. Diaz
alleges that as a result of his injuries he cannot bend,
twist, squat, lift more than five pounds, reach with his
right arm, walk more than twenty feet, climb, kneel,
concentrate for more than three minutes at a time, or
remember. Admin. Tr. 835; Doc. 6-14 p. 6. It was also noted
that, during the June 2015 hearing Mr. Diaz was shaking
severely. Admin. Tr. 653; Doc. 6-10 p. 70. Mr. Diaz's
counsel explained that this was due to a spinal nerve
stimulator that was surgically implanted in his spine.
Id. Mr. Diaz reported that for every thirty minute
period, his spinal implant is on for approximately twenty
minutes. Admin. Tr. 655; Doc. 6-10 p. 72. Mr. Diaz also has
manual control of the device and can turn it off or on as
necessary. Id. Mr. Diaz testified that he has
difficulty maintaining focus while his spinal nerve
stimulator is active. Admin. Tr. 656; Doc. 6-10 p. 73. Mr.
Diaz also asserts that, in addition to the limitations above,
he has great difficulty getting up and down, and uses a
portable urination device during the day when he is home
alone and had no one to assist him to the bathroom in a
timely manner. Admin. Tr. 654; Doc. 6-10 p. 71.
the relevant period from May 8, 2008, through December 31,
2013, Mr. Diaz was treated by multiple acceptable medical
sources and non-acceptable medical sources including
surgeons, specialists, physical therapists, and occupational
therapists. See 20 C.F.R.
§404.1513(listing types of acceptable medical sources);
20 C.F.R. §404.1502(defining treating medical sources).
Mr. Diaz was also examined by nontreating acceptable medical
sources, and his records were reviewed by nonexamining
acceptable medical sources, in connection with his
applications for benefits. See 20 C.F.R.
§404.1502(defining nontreating and nonexamining
Diaz appeared and testified at two administrative hearings.
He was represented by counsel at both hearings. The first
hearing took place on October 5, 2011. In addition to Mr.
Diaz, vocational expert Gerald Keating (“VE
Keating”) also appeared and testified. A second hearing
took place on June 30, 2015. A second vocational expert, VE
Chilleri testified at this hearing.
December 21, 2015, the ALJ issued a written decision denying
Mr. Diaz's claims.
February 27, 2016, Mr. Diaz filed a timely appeal in the
United States District Court. Doc. 1. In his
complaint Mr. Diaz seeks review of the ALJ's adverse
decision, and requests judgment for such relief as this Court
deems proper. Id.
April 27, 2016, the Commissioner filed her answer to Mr.
Diaz's complaint. Doc. 8. The Commissioner
maintains that the ALJ's decision denying Mr. Diaz's
claim was made in accordance with the law and regulations,
and is supported by substantial evidence. Id.
Together with her answer, the Commissioner filed a certified
transcript of the record of the administrative proceedings in
matter has been fully briefed by the parties, and the parties
were granted an opportunity to further elaborate on the
issues raised in their briefs during oral argument before the
Court. Doc. 11; Doc. 13; Doc. 14; Doc. 21.
we have included a brief summary of the medical treatment Mr.
Diaz has received for the primary impairments at issue in
this case. Mr. Diaz's physical impairments involve the
following three areas of his body: (A) back and hips; (B)
right elbow; and (C) abdomen. We also note that, at times
during the relevant period Mr. Diaz was receiving
simultaneous treatment for his back and right elbow by
multiple sources. Due to the complexity of his case, and the
need for treatment in multiple areas, Mr. Diaz's
surgeries had to be carefully scheduled so that his recovery
from one procedure would not impact his recovery for another.
Medical Treatment of Mr. Diaz's Back
an X-ray of Mr. Diaz's lumbar spine taken one month
earlier was grossly normal, on June 3, 2008, an MRI of Mr.
Diaz's lumbar spine revealed the impression of a small to
moderate sized L4-L5 diffuse posterior disc bulge with
abutment of the bilateral L5 nerve roots, but no central
spinal canal or neural foraminal stenosis. Admin. Tr.
317-318; Doc. 6-8 pp. 23-24. The scan also revealed a small
disc bulge at the L5-S1 level with minimal abutment of the
bilateral S1 nerve roots. Id.
August 13, 2008, Mr. Diaz was examined by orthopedic surgeon
Paul P. Vessa (“Dr. Vessa”) for evaluation of his
back pain. Admin. Tr. 335; Doc. 6-8 p. 41. Mr. Diaz had a
positive straight leg raise on the right side. Dr. Vessa
diagnosed possible disc herniation at L4-L5 on the right side
with a failure to improve with conservative care.
August 22, 2008, Mr. Diaz had another MRI of his lumbar
spine. Admin. Tr. 341; Doc. 6-8 p. 47. The MRI revealed a
rather large right lateral disc herniation at L4-L5 in the
neural foramen impinging on the undersurface of the right L4
nerve root. Id.
October 16, 2008, Mr. Diaz underwent the following surgical
procedure to address his lateral herniated nucleus pulposus
at L4-L5 with right lumbar radiculopathy: extraforaminal
decompression right side L4-L5, and application of right L4
nerve root cath. Admin. Tr. 307-309; Doc. 6-8 pp. 13-15. Mr.
Diaz was discharged from the hospital on the following day.
December 2008, Mr. Diaz reported that, although he did
experience some post-surgical improvement, his pain was
getting worse. Admin. Tr. 337; Doc. 6-8 p. 43. Dr. Vessa
noted that a post-surgical MRI scan showed that there was a
moderate sized posterior disc bulge, but there was no
evidence of central spinal stenosis and no recurrent disc
herniation or any other visible suspicious entries that might
be the cause of Mr. Diaz's increased pain. Id.
January 2009, Mr. Diaz returned to Dr. Vessa with complaints
of ongoing pain. Admin. Tr. 338; Doc. 6-8 p. 44. Mr. Diaz was
advised to continue physical therapy.
February 26, 2009, an EMG and nerve conduction study of Mr.
Diaz's lower extremities revealed the impression of
subacute right-sided L5 radiculopathy, and mild right S1
radiculopathy. Admin. Tr. 320; Doc. 6-8 p. 26.
March 25, 2009, Mr. Diaz was still complaining of severe pain
in his right lower extremity, but a recent MRI showed no
evidence of compression of S1 or L5. Admin. Tr. 333; Doc. 6-8
p. 39. Dr. Vessa ordered additional imaging, but noted that
in the absence of any obvious abnormality he did not believe
Mr. Diaz was a candidate for any additional spinal surgeries.
April 2009 MRI of Mr. Diaz's hips was consistent with
avascular necrosis of the left femoral head. Admin. Tr. 339;
Doc. 6-8 p. 45. An MRA of Mr. Diaz's abdomen was normal.
Admin. Tr. 340; Doc. 6-8 p. 46.
2009 MRI of Mr. Diaz's lumbar spine revealed mild
degenerative changes at L1-L2, L4-L5, and L5-S1. Admin. Tr.
344; Doc. 6-8 p. 50.
11, 2009, Mr. Diaz was evaluated by a second orthopedist,
Richard S. Nachwalter (“Dr. Nachwalter”). Dr.
Nachwalter noted that his August 2008 post-surgical MRI was
of poor quality and was of little use in assessing Mr.
Diaz's post-operative condition. Dr. Nachwalter
recommended a new MRI to rule out a recurrence. Admin. Tr.
394-95; Doc. 6-8 pp. 100-101. Two weeks later Dr. Nachwalter
reviewed the new MRI and concluded that there was no
recurrent herniation. Admin. Tr. 391; Doc. 6-8 p. 97. Dr.
Nachwalter recommended a diagnostic injection to Mr.
Diaz's right SI joint to rule out this area as the source
of Mr. Diaz's pain. Id.
25, 2009, Mr. Diaz returned to Dr. Nachwalter after
undergoing the right SI injection. Mr. Diaz reported that the
injection improved the clicking and pain in his pelvis but
did not help the persistent pain in his right leg and thigh.
Admin. Tr. 389; Doc. 6-8 p. 95. Mr. Diaz elected to proceed
with a second surgery to address his radicular pain.
24, 2009, Mr. Diaz underwent the following surgical
procedures: lumbar laminectomy of L4-L5, fusion of L4-L5 with
instrumentation and insertion of an intervertebral device.
Admin. Tr. 348; Doc. 6-8 p. 54.
weeks after surgery Mr. Diaz reported that his leg pain
significantly improved. Admin. Tr. 383; Doc. 6-8 p. 89. In
January 2010, however, he began to report that he still had
some persistent discomfort in his back with mild discomfort
in his right leg. Admin. Tr. 371-375; Doc. 6-8 p. 78-81. The
recurrence of his pain prompted him to explore new pain
2010, Mr. Diaz was examined by pain management specialist
Phillip Rubinfeld (“Dr. Rubinfeld”). Dr.
Rubinfeld recommended that Mr. Diaz consider a spinal nerve
stimulator for his back pain. Admin. Tr. 411; Doc. 6-8 p.
30, 2010, Mr. Diaz had a temporary spinal nerve stimulator
implanted to determine whether this form of treatment would
provide him with any relief. Admin. Tr. 462; Doc. 6-9 p. 47.
After the trial stimulator, Mr. Diaz elected to have a
permanent spinal nerve stimulator implanted on October 5,
2010. Admin. Tr. 484-85; Doc. 6-9 p. 69');">9 p. 69. Both the temporary
and permanent spinal nerve stimulator implants appear to be
outpatient procedures. However, On October 6, 2010, Mr. Diaz
presented to the emergency room when he developed a headache,
and pressure in his upper back and chest, after surgery.
Admin. Tr. 538-48; Doc. 6-9 pp. 124-133. A CT scan revealed
that the stimulator was in good position. Mr. Diaz was
discharged home. Id.
April 15, 2011, Mr. Diaz had a surgical revision to the
placement of his spinal nerve stimulator. Admin. Tr. 889-890;
Doc. 6-15 pp. 2-3. The area of the pulse generator became
painful because it was too close to the sacral bone. The
pulse generator was removed and replaced in an area that
would potentially be less painful.
2011, Dr. Rubinfeld noted that Mr. Diaz's pain was
controlled and his function was improved. Admin. Tr. 1044;
Doc. 6-17 p. 6. Dr. Rubinfeld also reported that the severity
of Mr. Diaz's pain was moderate, and that when present it
interfered only with some daily activities. Id.
2011, Dr. Rubinfeld noted that Mr. Diaz had good coverage
with the spinal nerve stimulator, and that although Mr. Diaz
was having pain in the area of the screws and from the
revision surgery the doctor was hopeful that Mr. Diaz could
be weaned off of opioid pain medications within four weeks.
Admin. Tr. 1046; Doc. 6-17 p. 8.
August 2011, Mr. Diaz reported severe pain that interfered
with most, but not all, of his daily activities. Admin. Tr.
1047-1048; Doc. 6-17 p. 9-10. Dr. Rubinfeld prescribed a
course of nonsteroidal anti-inflammatory drugs in combination
with Mr. Diaz's other medications, and noted that this
course of treatment is usually effective for complaints like
those voiced by Mr. Diaz. Id.
September 2011 Mr. Diaz presented to the emergency room with
complaints of flank pain. The staff physician assessed that
this pain was due to a muscle spasm. Admin. Tr. 560; Doc. 6-9
p. 145; See also Admin. Tr. 1049-1050; Doc. 6-17 pp.
11-12. During a follow-up appointment with Dr. Rubinfeld, Mr.
Diaz reported that he had extreme pain near the incision for
his spinal nerve stimulator that radiated down his back and
across his ribs. Admin. Tr. 1049-1050; Doc. 6-17 pp. 11-12.
Mr. Diaz reported that the medications provided in the
emergency room were effective. Id.
October 2011, Mr. Diaz reported continuing lower back pain
and referred pain to the right hip, thigh, and lower leg.
Admin. Tr. 1051-1052; Doc. 6-17 pp. 13-14. This pain was
noted to be moderately severe, and Dr. Rubinfeld reported
that Mr. Diaz's pain, when present, interfered with some
daily activities. Id. Dr. Rubinfeld administered an
injection for pain that was specifically requested by Mr.
November 2011, Mr. Diaz reported slightly less pain, although
it was still characterized as moderately severe. Admin. Tr.
1053-1054; Doc. 6-17 pp. 15-16. He requested another
injection, which he reported had been helpful in the past.
Id. Mr. Diaz's level of pain remained between
moderately severe and moderate, and the course of treatment
remained fairly stable with minor medication adjustments
through January 2014. In August 2013, Mr. Diaz was weaned off
opioid pain medications and was taking only nonsteroidal
anti-inflammatory drugs with Lyrica and Valium. Admin. Tr.
1017; Doc. 6-17 p. 70. Mr. Diaz did report severe pain in
October 2013, but Dr. Rubinfeld noted that a recent hernia
repair involving some post-surgical complications contributed
to his symptoms. Admin. Tr. 1111; Doc. 16-17 p. 73.
Medical Treatment of Mr. Diaz's Right Arm
respect to his elbow injury, Mr. Diaz was treated
conservatively with a combination of physical therapy, and
pharmaceutical pain management (including injections) until
February 18, 2009. On February 18, 2009, Mr. Diaz underwent
the following surgical procedure: right elbow medial
epicondylar release with ulnar nerve release at the cubital
tunnel only. Admin. Tr. 358-59; Doc. 6-8 pp. 64-65. During a
follow-up visit on February 23, 2009, Mr. Diaz reported that
he had significantly reduced pain in his right elbow. Admin.
Tr. 426; Doc. 6-9 p. 11. Treating surgeon Glen P. Wainen
(“Dr. Wainen”) noted that Mr. Diaz should stay
away from any kind of heavy lifting, pushing, pulling or
squeezing while he recovered. Id. On March 30, 2009,
Mr. Diaz regained full range of motion in his right arm.
Admin. Tr. 423; Doc. 6-9 p. 8. On April 30, 2009, Dr. Wainen
estimated that Mr. Diaz would be fully recovered from his
February 2009 surgery in three months. Admin. Tr. 424; Doc.
6-9 p. 9. In June 2009, Mr. Diaz reported that his right
elbow felt excellent with the exception of some minor
subluxation of his ulnar nerve on flexion and extension.
Admin. Tr. 421; Doc. 6-9 p. 6. Dr. Wainen assessed that the
only reasonable thing to do to stop Mr. ...