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Torres v. Berryhill

United States District Court, M.D. Pennsylvania

May 5, 2017

Carlos Torres Plaintiff
v.
Nancy A. Berryhill[1] Acting Commissioner of Social Security Defendant

          MEMORANDUM

          Honorable Richard P. Conaboy United States District Court

         I. Background.

         We consider here Plaintiff's appeal from an adverse decision of the Social Security Administration (“SSA”) or (“Agency”) on his application for Disability Insurance Benefits. (“DIB”). Plaintiff filed his Title II application for DIB on December 7, 2012 alleging onset of disability as of January 1, 2006. His claim was denied at the administrative level on August 1, 2013. Plaintiff then requested a hearing before an administrative law judge (“ALJ”). Plaintiff received two such hearings, one on January 28, 2015 and a second hearing on May 5, 2015. On May 22, 2015, the ALJ issued a decision denying Plaintiff's application. Plaintiff appealed this decision to the Appeals Council which, on September 22, 2016, affirmed the ALJ's denial of benefits. The Appeals Council's decision constitutes a “final decision” by the Agency and vests this Court with jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. § 405(g). The parties have briefed their respective positions (Docs. 11, 12, and 13) and this case is now ripe for decision.

         II. Testimony Before the ALJ.

         A. Hearing of January 28, 2015 (R.65-93).

         Present for the hearing before ALJ Reana K. Sweeney were: the Plaintiff and his attorney, Ronald T. Tomasko, along with Brian Bierley, a vocational expert. The Plaintiff's testimony may be summarized as follows. He was born on February 15, 1956 and was 59 years of age on the date of the hearing. The ALJ noted that Plaintiff's insured status had expired as of December 31, 2008. During the period since January 1, 2016 through the date of the hearing Plaintiff lived alone and he was not married. Plaintiff could not articulate a reason why he chose January 1, 2006 as the alleged onset date of the disability, but he did testify that he last worked in 2004. He is 5'11" and weighs 170 pounds. From January 1, 2006 through his last insured date, December 31, 2008, Plaintiff lived on Workmen's Compensation payments he received pursuant to a work-related injury in 2004. He ultimately settled his Workmen's Compensation case in 2013.

         Plaintiff has a valid driver's license and completed 11 years of formal schooling. Later on, he earned a high school GED in 1979. He has never served in the military and has never been incarcerated. In the 15 years immediately preceding his alleged disability onset date the Plaintiff worked for several employers. For a time he worked for United Parcel Services unloading trucks. He often lifted 40-50 pound packages in the course of this employment and occasionally moved some that weighed up to 110 pounds. Plaintiff also worked for the Drexel Group at various locations. These jobs were also physically demanding and called for frequent lifting of 40-60 pound parcels. Typically, he would lift packages from a skid and carry them to a table where others would separate the contents.

         B. Hearing of May 5, 2015 (R.24-64).

         Plaintiff's reconvened hearing included his testimony and that of Andrew Caparelli, a vocational expert. Mr. Caparelli reviewed the discussion of Plaintiff's work history that had begun in the previous hearing. He identified Mascot Petroleum and International Periodical Distributors as other companies who had employed Plaintiff in the past. The ALJ then directed questions to Plaintiff.

         Plaintiff reconfirmed the weights he customarily handled at his prior places of employment and stated that he had not worked at all since 2006. He stated further that he had not looked for work since 2006. During the pertinent time frame - - January 1, 2006 through December 31, 2008 - - he had not undergone any back surgery. Plaintiff did participate in a physical therapy program at a facility in Hershey, Pennsylvania. He could not be specific regarding how long his course of physical therapy had lasted but stated that it had been weeks or perhaps months.

         Discussion then ensued between the ALJ and Plaintiff's counsel in which they discussed medical documentation that Plaintiff's counsel had submitted. Reference was made to a lumbar spine MRI that demonstrated degenerative disc disease. Epidural injections that Plaintiff had received were also noted. Plaintiff stated that he had received “many” such injections and that he continues to receive them.

         Plaintiff related that a typical day for him in the period 2006 through 2008 involved arising at 6:00 a.m. to take medications and then basically resting the rest of the day in a supine or sitting position. He was thus immobile because standing aggravated his back pain. He was taking pain medications throughout this period and, while they were helpful, they did not completely control his pain. Plaintiff indicated that a Dr. Zeliger had proposed that he undergo a back surgery but that he declined to have surgery because “that's a dangerous thing”. Plaintiff explained that he has three discs in his neck that are “no good” and that he has pain in his shoulders as well as low back pain with numbness in his arms and legs. He indicated also that he gets headaches because he has too much fluid in his head.

         Upon questioning by his attorney, Plaintiff stated that during the applicable period he could stand for no more than five minutes at a time before resting. He indicated that from 2006 through 2008 he was not capable of lifting more than 20 pounds. He was in constant back pain and was getting pain injections every two weeks. These injections blunted his pain but the pain would typically return at a greater intensity within a week of each injection. He opined that he would have been unable to do his past jobs from 2006 through 2008 because those jobs required a great deal of standing as well as lifting, bending, and twisting.

         The vocational expert (“VE”) then took the stand. He stated that he was familiar with Plaintiff's work history and that he was familiar with the various regulations that affect Social Security decisions as well as the Dictionary of Occupational Titles (“DOT”). The vocational expert indicated that on Plaintiff's “date last insured” (December 31, 2008) he was beyond his 52nd birthday and, thus, was classified as “approaching advanced age”. The vocational expert then systematically described Plaintiff's work history and listed all his previous jobs as either “medium” or “heavy” in terms of their exertional levels.

         The ALJ asked the vocational expert a hypothetical question in which the VE was asked to assume an individual of the same age, education, and work experience as the Plaintiff who: could do “medium” work as defined in the DOT while requiring only “normal” breaks; could use hand and arm levers or foot and leg pedals only occasionally; could climb stairs or ramps only occasionally; could stoop, bend, squat, and kneel only occasionally; must avoid exposure to extreme cold or moisture; must avoid working around hazardous machinery or in high exposed places; is limited to simple duties that can be learned on the job in a short period of time; must avoid interaction with the general public; and have only occasional contact with supervisors and co-workers. The VE stated that, given the assumptions of the hypothetical question, the Plaintiff would be unable to do any of his past relevant work.

         The ALJ then asked the VE to assume an individual identical to the one in the first hypothetical question except for the fact that he would be limited to “light” work as defined in the Social Security regulations. The VE stated that such a person would be able to perform five (5) occupations that exist in significant numbers in the national economy. These occupations were identified as: conveyor line baker worker; agricultural produce sorter; cleaner/housekeeper; potato chip sorter; and slicing machine tender. The VE stated that his conclusions were based upon the DOT, OSHA regulations, and his personal field experience. When asked by Plaintiff's counsel whether all of these jobs required that the individual stand the majority of the work day, the VE responded that that was the case for each job but for the bakery conveyor line worker. That position would allow the individual a sit/stand option.

         III. Medical Evidence.

         A. Dr. Cho (R.607-637).

         Dr. Cho was the Plaintiff's treating physician throughout the relevant time frame. The record indicates that he saw Plaintiff on at least 31 occasions between January 1, 2006 and December 31, 2008. Dr. Cho's progress notes regarding these visits were informed by several imaging studies that he had requested. One such study was an MRI of Plaintiff's lumbar spine performed on March 22, 2006 that revealed degenerative changes without spinal stenosis or herniated discs at all lumbar levels. (Record 611). An additional film requested by Dr. Cho was taken on September 29, 2006 that revealed no evidence of acute osseous abnormality within the lumbar spine and stable, mild degenerative changes as compared to the film study of March 22, 2006. (R.613).

         Dr. Cho's progress notes for the period January 1, 2006 through December 31, 2008 are quite consistent in their assessment of Plaintiff's physical status throughout that period. Dr. Cho's notes continually indicate that Plaintiff is experiencing lumbar and cervical pain with mild limitation of range of motion in both areas. On and after December 8, 2006, Dr. Cho's progress notes do consistently demonstrate that Plaintiff's cervical range of motion is “full” on most occasions. Dr. Cho's notes often describe Plaintiff as de-conditioned and indicate that Dr. Cho has encouraged Plaintiff to perform re-conditioning exercises and exercises designed to increase his range of motion. Dr. Cho also continuously notes that Plaintiff was able to heel/toe walk but consistently documents a positive straight leg raising test on the right with right-sided radiculopathy. Dr. Cho prescribed Oxycontin for Plaintiff's back pain until he developed a tolerance to that drug. Afterward, Dr. Cho switched Plaintiff to Methadone and Mobic. At no time did Dr. Cho recommend that Plaintiff undergo surgery and he confined his management of Plaintiff's symptoms to medication, trigger point injections, and physical therapy.

         Dr. Cho never expressed any opinion as to the extent of Plaintiff's functional limitations. On May 28, 2008, Dr. Cho did note that Plaintiff's chronic cervical spondylosis and right shoulder A.C. joint problems were 95-97% improved. However, Dr. Cho never expressed any assessment of the degree to which Plaintiff's lumbar symptoms had improved, if at all, over the course of his treatment. Yet, over many visits, Dr. Cho continued to document Plaintiff's persistent lumbar pain with right-sided radiculopathy and continued to prescribe various pain medications and trigger-point injections to alleviate Plaintiff's symptoms. Dr. Cho also noted on May 28, 2008 that Plaintiff should exercise more and that Plaintiff “should start to look for a job”. R.)[2]

         B. Dr. Zeliger (R.172 and 705-707).

         Dr. Zeliger, a board certified orthopedic surgeon, began seeing Plaintiff at some point in 2011 after Dr. Cho retired. In January of 2015, Dr. Cho provided a medical opinion to the effect that, based upon his review of all records compiled by Dr. Cho from 2006 through 2008, Plaintiff “was in fact disabled and unable to work” during that time frame. (R.172).

         Dr. Zeliger has also interpreted an MRI performed on February 13, 2013 as demonstrating: marked disc space narrowing with chronic bulging of the disc and moderate to severe right and moderate left neuroforaminal stenosis at ¶ 5-S1; moderate bulging with facet arthropathy and mild canal stenosis with mild to moderate neuroforaminal stenosis, left greater than right at ¶ 4-L5; disc space narrowing with diffuse bulging and small left paracentral foraminal annular tear with slightly asymmetric bulging to the left with some facet hypertrophy at ¶ 2-3; and central canal stenosis and neuroforaminal stenosis at ¶ 3-4 and L1-L2 with moderate disc bulging. (R.706). While ...


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