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Diaz v. Colvin

United States District Court, M.D. Pennsylvania

March 22, 2017

ALBERT DIAZ, JR., Plaintiff,
CAROLYN W COLVIN Acting Commissioner of Social Security Defendant.


          Susan E. Schwab Chief United State Magistrate Judge.

         I. Introduction

         Plaintiff 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.

         For the 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).

         We 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 decision.[1]

         II. Background And Procedural History

         This 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.

         Before 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 seven.[2] Id.

         This 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.

         On May 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.

         The 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.

         Only a 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.

         During 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.[3] 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 sources).

         Mr. 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.[4] A second hearing took place on June 30, 2015. A second vocational expert, VE Chilleri testified at this hearing.

         On December 21, 2015, the ALJ issued a written decision denying Mr. Diaz's claims.

         On 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.

         On 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 this case.

         This 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.

         Below 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.

         A. Medical Treatment of Mr. Diaz's Back Impairment

         Although 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.

         On 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.

         On 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.

         On 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. Id.

         In 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.

         In 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.

         On 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.

         On 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. Id.

         An 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.

         A May 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.

         On May 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.

         On June 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. Id.

         On July 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.

         Two 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 management options.

         In May 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. 117.

         On July 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.

         On 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.

         In May 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.

         In June 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.

         In 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.

         In 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.

         In 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. Diaz. Id.

         In 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.

         B. Medical Treatment of Mr. Diaz's Right Arm Injury

         With 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. ...

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