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Marquette v. Berryhill

United States District Court, M.D. Pennsylvania

October 13, 2017

WILLIAM MARQUETTE, Plaintiff
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant

          MEMORANDUM

          William J. Nealon United States District Judge

         On February 8, 2016, Plaintiff, William Marquette, filed this instant appeal[2]under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the Social Security Administration, (“SSA”), denying his application for Disability Insurance Benefits, (“DIB”), under Title II of the Social Security Act, 42 U.S.C. § 1461, et seq., and his application for Supplemental Security Income, (“SSI”), [3]under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's applications for DIB and SSI will be affirmed.

         BACKGROUND

         Plaintiff protectively filed[4] his applications for DIB and SSI on June 15, 2012, alleging disability beginning on January 1, 2010, [5] due to a combination of back and neck pain, Depression, Bipolar Disorder, and Barrett's Disease. (Tr. 42, 65, 90, 72-73, 77-81).[6] These claims were initially denied by the Bureau of Disability Determination (“BDD”)[7] on October 19, 2012. (Tr. 42). On November 8, 2012, Plaintiff filed a request for an oral hearing. (Tr. 42). On January 7, 2014, a hearing was held before administrative law judge Sharon Zanotto, (“ALJ”), at which Plaintiff and impartial vocational expert Andrew Caporale, (“VE”), testified. (Tr. 42). On April 14, 2014, the ALJ issued a decision denying Plaintiff's applications for DIB and SSI. (Tr. 42-51). On May 29, 2014, Plaintiff filed a request for review with the Appeals Council. (Tr. 36). On December 15, 2015, the Appeals Council denied Plaintiff's appeal, thus making the decision of the ALJ final. (Tr. 1-7).

         Plaintiff filed the instant complaint on February 8, 2016. (Doc. 1). On May 4, 2016, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 7 and 8). Plaintiff filed a brief in support of his complaint on June 17, 2016. (Doc. 9). Defendant filed a brief in opposition on August 15, 2016. (Doc. 12). Plaintiff did not file a reply brief.

         Plaintiff was born in the United States on June 25, 1977, and at all times relevant to this matter was considered a “younger individual.”[8] (Tr. 261). Plaintiff completed the eleventh grade in 1995, attended special education classes, and can communicate in English. (Tr. 263, 265). His employment records indicate that he previously worked as a broker for a trucking company. (Tr. 267).

         In a document entitled “Function Report - Adult” filed with the SSA on July 12, 2012, Plaintiff indicated that he lived in a house with his boyfriend. (Tr. 278). He had some problems with personal care tasks such as dressing and using the toilet due to bleeding and mobility issues, did not prepare meals, and ironed and folded the laundry “not that often.” (Tr. 280-282). He could walk about a block or so before needing to rest for a few minutes. (Tr. 286). When asked to check items which his “illnesses, injuries, or conditions affect, ” Plaintiff did not check reaching, talking, using hands or getting along with others. (Tr. 286).

         Regarding concentration and memory, Plaintiff needed special reminders to take care of his personal needs, to go places, and to take his medicine. (Tr. 282, 284). With help, he could pay bills, use a checkbook, count change, and handle a savings account. (Tr. 283). He could pay attention for “not long, ” his ability to follow written instructions depended on the amount of detail, his ability to follow spoken instruction was “not to[o] good cause [he] forgot things pretty quick[ly], ” he was not able to finish what he started, did not handle stress well, and had the same routine for “at least the last 6 months.” (Tr. 286-287).

         Socially, Plaintiff left the house for doctor's appointments and to go to shopping about once a month. (Tr. 283). He indicated that when he went out, he was able to do so alone “as long as [he was not] bleeding or in to[o] much pain, ” and was able to walk and sometimes drive a car. (Tr. 283). His hobbies included reading comic books, watching television, and spending time with his family and pets. (Tr. 284). He indicated he got along “fine” with others. (Tr. 288).

         At his hearing on January 7, 2014, Plaintiff testified that he left his job at a trucking company because he was “having a lot of problems as far as with [his] back, [and his] health, ” such as “Barrett's with [his] intestinal tract” that would cause him to bleed and constant back pain. (Tr. 72-73). He indicated that his back pain was aggravated by “anything physical, ” that it worsened after surgery in 2009, and that he was in constant pain, whereas before the surgery, his pain was not entirely constant. (Tr. 77-81). He stated that medications gave him slight relief from the pain, and had the side effects of making him feel “goofy” and drowsy. (Tr. 84). He testified that radiofrequency ablations did not give him relief. (Tr. 88-89). Regarding the bleeding that occurred from Barrett's Disease, Plaintiff stated it occurred a “few times a year, ” lasted anywhere from a few hours to two (2) days, and required a visit to the hospital. (Tr. 89). Regarding Depression, Plaintiff indicated that he reached a point where he felt like he was having a nervous breakdown “a lot” and that he was suicidal. (Tr. 90). Plaintiff testified that his typical day involved waking up at six o-clock in the morning (6:00 AM), sitting in a recliner and watching television with frequent change of positions, showering, eating once a day, and using the computer or phone. (Tr. 99-100). He indicated that he could stand for “maybe” twenty (20) minutes and could sit for up to one (1) hour, could walk for about fifty (50) yards, hard trouble reaching overhead, had difficulty hearing and using stairs, and could lift about ten (10) pounds. (Tr. 101-104).

         MEDICAL RECORDS

         A. Medical Evidence

         1. Argires, Becker and Westphal Brain, Orthopedic, Sports Medicine and Spine Care

         On March 15, 2010, Plaintiff had an appointment with Perry Argires, M.D., for low back pain. It was noted that Plaintiff was doing “well” following his cervical arthroplasty procedure, that he had undergone multiple conservative treatments for his back pain, and that, due to his increased symptomology, he was considering surgical options to fix the herniated disc and disc deterioration at the L5-S1 level. (Tr. 558). His physical examination revealed: alertness and orientation; clear and fluent speech; 5/5 motor strength in the upper and lower extremities; diminished and symmetric reflexes throughout; and a steady gait. (Tr. 558). Dr. Argires recommended Plaintiff undergo an anterior discectomy with arthroplasty. (Tr. 559).

         On June 18, 2010, Plaintiff had an appointment with Rienna Fulmer, PA-C, after he felt “something pop in the right side of his neck” when he lifted a basket of laundry onto the dryer that also caused pain in his scapula and over towards his deltoid with occasional radiation into the ulnar distribution of his fingers into his right hand. (Tr. 560). It was noted Plaintiff also had chronic back pain that was being “worked up.” (Tr. 560). A physical examination revealed Plaintiff: was alert and oriented; had limited flexion and extension secondary to pain; had significant pain with rotation over the right side of the shoulder; had two small palpable areas of muscle spasm in the cervical spine and occipital region that were extremely tender to touch; had good strength with resistance of muscle testing in the biceps, triceps, and deltoid on the right side; and had exacerbation of symptoms throughout his exam in the area of the cubital tunnel and into his right fourth and fifth fingers. (Tr. 560). Plaintiff was diagnosed as having post cervical disc replacement with recent exacerbation and radiculitis. (Tr. 560). He was referred to pain management, and Dr. Argires ordered a “myo block” to decrease inflammation in the cervical spine. (Tr. 560).

         On July 1, 2010, Plaintiff had an appointment with Trevin Thyrman, M.D. for neck pain. (Tr. 562). A physical examination revealed: 5/5 strength in the bilateral upper and lower extremities; tight cervical paraspinals at the C5-C6 level with decreased rotation to the left; and negative Hoffmann's and Spurling's tests bilaterally. (Tr. 562). Plaintiff was diagnosed with cervical radiculitis. (Tr. 562). Dr. Thurman recommended epidural steroid injections to treat the acute onset of symptoms and a repeat cervical MRI if these injections failed. (Tr. 563).

         On September 3, 2010, Plaintiff had an appointment with Dr. Argires for follow-up of the neck pain on the right side in the suboccipital area. (Tr. 566). Dr. Argires ordered a bone scan to assess Plaintiff's facet joints. (Tr. 566).

         On October 5, 2010, Plaintiff had a follow-up appointment with Dr. Argires. (Tr. 567). Dr. Argires suggested Plaintiff undergo diagnostic facet blocks at ¶ 3-C4 and C4-C5 and a possible epidural steroid injection at the L5-S1 level. (Tr. 567).

         On October 8, 2010, Plaintiff had a follow-up appointment with Dr. Thurman for persistent pain on the right side of his neck most notable in the middle of his right neck with some radiation down to the right shoulder that was “somewhat improved after the epidural steroid injections.” (Tr. 568). It was noted Plaintiff continued to have back pain “at the belt line” that was most significant on his right side and was accompanied by numbness and paresthesias, which radiated on the lateral aspect of his thigh and anterior aspect of his shin and foot on the right side. (Tr. 568). A physical examination revealed Plaintiff had: 5/5 strength bilaterally in the upper and lower extremities; a C4-C5 facet joint that was slightly tender to palpation; a C5-C6 facet joint that was moderately tender to palpation; and increased low back pain with lumbar flexion to sixty (60) degrees. (Tr. 568). The impression was that Plaintiff had right L5 radiculopathy with an annular tear at the L5-S1 disc and facet degeneration and pain at the right C4-C5 and C5-C6 facets. (Tr. 568). Dr. Thurman recommended lumbar epidural steroid injections for his lumbar pain and medial branch blocks for his neck pain follow by radiofrequency ablation. (Tr. 569).

         On April 26, 2011, Plaintiff had a follow-up appointment with PA Fulmer for ongoing low back and right leg pain. (Tr. 601). Plaintiff reported his pain had gotten increasing worse over the last several weeks and that it was intractable and consistent. (Tr. 601). Plaintiff was assessed as having chronic low back pain and right leg radiculopathy. (Tr. 601). Plaintiff was given a corset brace for his back and PA Fulmer ordered a new MRI of his lumbosacral spine. (Tr. 601).

         On May 5, 2011, Plaintiff had an appointment with Ogden Gorham, PA-C, after falling fourteen (14) to sixteen (16) feet from an upper stair landing at his home and landing on the top of his head a week prior. (Tr. 599). His physical examination revealed: a normal gait; grossly intact cranial nerves with no focal deficits; good strength of bilateral upper extremities; well-preserved range of motion in his neck; trapezius tenderness; posterior cervical tenderness from muscle spasm; and good positioning of his prestige cervical disc at ¶ 4-C5 with no evidence of malposition or migration and good preserved disc space at adjacent levels. (Tr. 599-600). PA Gorham recommended Plaintiff undergo an MRI of his brain. (Tr. 600).

         On May 17, 2011, Plaintiff had an appointment with PA Fulmer for low back and right leg pain. (Tr. 597). It was noted that the injections Plaintiff had received had not provided significant relief and that his pain increased since April 2011. (Tr. 597). Plaintiff indicated that he was using a back brace given to him at his last visit with mild relief, and that he had trouble doing any type of activities, standing, or sitting for any long period of time. (Tr. 597). His physical examination revealed: alertness and orientation; pain over the right posterior buttock radiating anteriorly to encompass the quad; spasm in his mid-right calf; ambulation without any significant discomfort; a positive straight leg test, bilaterally; and good strength with testing of plantar and dorsiflexion exercises. (Tr. 598). It was noted that Dr. Argires recommended anterior lumbar interbody fusion at the L5-S1 segment with a posterior interspinous stabilization with fusion. (Tr. 598).

         On June 20, 2011, Plaintiff had a post-operative appointment with PA Fulmer. (Tr. 603). It was noted that Plaintiff reported he was “getting better everyday, ” but also that he had developed anterior right hip pain. (Tr. 603-604). He was ambulating without a cane and was wearing a back brace. (Tr. 604). His physical examination revealed: well-healed incisions; neuro-vascularly intact distal extremities; 5/5 strength with testing of the ankle plantar and with dorsiflexion exercises; and ambulation without any significant disturbance. (Tr. 604). PA Fulmer indicated Plaintiff was doing “very well” post-operatively. (Tr. 604).

         On July 12, 2011, Plaintiff had a post-operative visit with Esther Schlegel, PA-C. (Tr. 605-606). Plaintiff rated his pain at a four (4) out of ten (10), continued to have some right hip pain, and was doing exercises at home. (Tr. 605). His physical examination revealed: a well-healed incision; good ambulation without assistance; full strength in his bilateral lower extremities; and reflexes and sensation within normal limits. (Tr. 606). An x-ray of the lumbar spine showed stable post-operative status post L5-S1 “ALIF” and interspinous process fusion. (Tr. 606).

         On September 6, 2011, Plaintiff had a post-operative follow-up appointment with Dr. Argires. (Tr. 607-608). Plaintiff reported that his pain was worse when sleeping at night, that he had persistent pain that caused difficulty with walking and sleeping, and that he was unable to proceed with physical therapy due to financial issues. (Tr. 607).

         On November 29, 2011, Plaintiff had a follow-up appointment with Dr. Argires for axial back pain. (Tr. 759). It was noted he seemed to be “somewhat improved on his antidepressant medication by his report.” (Tr. 759).

         On December 9, 2011, Plaintiff had an appointment with Dr. Argires for axial back pain. (Tr. 760). Plaintiff complained of some intermittent right leg pain, but was “neurologically stable by exam.” (Tr. 760). Dr. Argires discontinued the OxyContin and placed him on Nucynta, and was concerned that his pain may be related to Crohn's Disease. (Tr. 760).

         On January 3, 2012, Plaintiff had an appointment with Dr. Argires for his back pain. (Tr. 761). It was noted he was “doing well” and that pain control was much better with Nucynta. (Tr. 761). It was also noted that a recent MRI of the lumbar spine revealed a small bulging disc at ¶ 4-L5 with no evidence of ongoing neural compression and an interbody fusion at ¶ 5-S1. (Tr. 761).

         On March 27, 2012, Plaintiff had a follow-up appointment with Dr. Argires for his back pain. (Tr. 762). It was noted that Plaintiff was “unchanged” from the last visit. (Tr. 762). Dr. Argired noted that Plaintiff reached maximum medical recovery following his surgery and that follow-up could be arranged on an as-needed basis. (Tr. 762).

         2. Twin Rose Primary Health

         On February 3, 2010, Plaintiff had an appointment with Eric Hussar, M.D., for follow-up of his anxiety and back pain. (Tr. 695). His examination revealed a normal mood and affect. (Tr. 695). He was assessed as having Obsessive Compulsive Disorder, Depression, and a herniated lumbar intervertebral disc. (Tr. 695).

         On March 8, 2010, Plaintiff had a follow-up appointment with Scott Schucker, M.D., for anxiety. (Tr. 691). It was noted he felt “fine anxiety wise” and that he was “stable on dose [of Xanax] for approx[imately] 2 years now.” (Tr. 691). A physical examination was normal. (Tr. 691). Plaintiff was instructed to follow-up with Dr. Schucker in two (2) months. (Tr. 692).

         On May 7, 2010, Plaintiff had an appointment with Dr. Schucker for follow-up of “chronic intermittent panic attacks” and “burning in his back.” (Tr. 687). It was noted that Plaintiff was able to decrease his dose of Xanax to “often twice a day but sometimes even just 1 a day.” (Tr. 687). His physical examination revealed he was pleasant, talkative, and in no acute distress. (Tr. 687). His Xanax prescription was refilled and he was instructed to follow-up in two (2) months. (Tr. 688).

         On July 6, 2010, Plaintiff had a follow-up appointment with Dr. Schucker for chronic anxiety and neck pain. (Tr. 683). It was noted that Plaintiff's anxiety was “stable on Xanax for several years” and that, although he had a recent surgery for neck pain, he had been getting “new pain.” (Tr. 683). His physical examination was normal. (Tr. 684). Plaintiff was instructed to schedule a follow-up appointment to return in about two (2) months. (Tr. 684).

         On September 3, 2010, Plaintiff had an appointment with Dr. Schucker for follow-up of chronic anxiety and chronic pain issues. (Tr. 679). It was noted Plaintiff was “very stable” on the Xanax and felt it helped with his anxiety. (Tr. 680). His examination revealed he was pleasant, talkative, and in no acute distress. (Tr. 680). He was instructed to keep taking Xanax and to continue to follow with his neurosurgeon for his chronic neck pain. (Tr. 680).

         On January 1, 2011, Plaintiff had a follow-up visit with Dr. Schucker for a cough, chest congestion, and Panic Disorder. (Tr. 670). Plaintiff's examination revealed mild diffuse wheezing. (Tr. 671). He was instructed to continue taking Xanax and was prescribed a Prednisone burst for wheezing. (Tr. 671).

         On March 1, 2011, Plaintiff had a follow-up visit with Dr. Schucker for chronic anxiety. (Tr. 666). There were “no new concerns” at this visit. (Tr. 666). His examination revealed: a normal mood and affect; normal behavior; and normal thought content and judgment. (Tr. 666-667). Dr. Schucker instructed Plaintiff to continue taking Xanax. (Tr. 667).

         On April 22, 2011, Plaintiff had an appointment with Dr. Schucker for chest pain worse with movement of his arm and worse with a cough or sneeze for the two (2) weeks prior to this appointment. (Tr. 662). Dr. Schucker reassured Plaintiff the chest pain was muscular in nature. (Tr. 663). The medications he was taking at this appointment included Albuterol, Alprazolam, Amrix, Flovent, Lidocaine, Oxycodone, Oxycontin, Pantoprazole, Sertraline, and Zantac. (Tr. 663-664).

         On August 18, 2011, Plaintiff had a follow-up appointment with Dr. Schucker for asthma and reported he had vomited blood. (Tr. 651). His physical examination was normal. (Tr. 652). The medications he was taking at this appointment included Albuterol, Alprazolam, Amrix, Flovent, Lidocaine, Oxycodone, Oxycontin, Pantoprazole, Sertraline, and Zantac. (Tr. 653-654). Dr. Shucker referred Plaintiff to Gastroenterology. (Tr. 652).

         On October 7, 2011, Plaintiff had a follow-up appointment with Dr. Schucker due to a complaint of an on-going cough for the past three (3) weeks. (Tr. 634). His physical examination revealed: a normal range of motion in the neck; a well-developed and well-nourished appearance; and a minimal diffuse wheeze without rales or rhonchi. (Tr. 635). The medications he was taking at this appointment included Albuterol, Alprazolam, Amrix, Flovent, Lidocaine, Oxycodone, Oxycontin, Pantoprazole, Sertraline, and Zantac. (Tr. 637-638). Plaintiff's diagnoses included Panic Disorder, Depression, GERD, herniated lumbar intevertebral disc, Irritable Bowel Syndrome, Lumbosacral Spondylosis without myelopathy, Lumbago, and Asthma, and Dr. Schucker ordered blookwork to check Plaintiff's cholesterol and to check for HIV. (Tr. 634-637). Dr. Shucker prescribed Prednisone for the cough. (Tr. 637).

         On December 7, 2011, Plaintiff had an appointment with Dr. Shucker for follow-up of his anxiety and back pain. (Tr. 779). A physical examination revealed Plaintiff: was well-developed and well-nourished; had normal range of motion in his neck; and exhibited no edema in his musculoskeletal system. (Tr. 782). Plaintiff was assessed as having Panic Disorder, GERD, Hematemesis, and Lumbago, and his Xanax prescription was refilled. (Tr. 782).

         On January 31, 2012, Plaintiff had a follow-up appointment with Dr. Schucker for his ongoing anxiety and back pain. (Tr. 784). His physical examination revealed Plaintiff had a normal mood, affect, behavior, judgment, and thought content. (Tr. 789). It was noted that Plaintiff would be getting a colonoscopy for rectal bleeding, vomiting, and pain. (Tr. 788). Dr. Shucker refilled Plaintiff's Xanax prescription and noted he had “been stable on same dose for years [without an] increase.” (Tr. 789).

         On March 27, 2012, Plaintiff had a follow-up appointment with Dr. Schucker for his ongoing anxiety and back pain. (Tr. 792). It was noted his back pain was stable and that Plaintiff was “doing ok” with his anxiety. (Tr. 797). His physical examination revealed Plaintiff had a normal mood, affect, behavior, judgment, and thought content. (Tr. 797). Dr. Shucker refilled Plaintiff's Xanax prescription, noting he had “been stable on same dose for years, ” and instructed Plaintiff to follow-up in two (2) months. (Tr. 797).

         On June 11, 2012, Plaintiff had an appointment with Dr. Shucker for asthma exacerbation and for follow-up after an emergency room visit for falling out bed and hitting his head, which caused neck pain. (Tr. 819, 824). His physical examination was normal. (Tr. 826). Plaintiff was assessed as having GERD, a herniated lumbar intervertebral disc, Panic Disorder, and Depression, and was prescribed an increased dose of Zoloft. (Tr. 826).

         On July 9, 2012, Plaintiff had an appointment with Dr. Schuckerfor chronic anxiety and back pain. (Tr. 1000). It was noted that Plaintiff felt the Xanax was not working as well because he was more stressed and depressed. (Tr. 1000). A physical examination was normal. (Tr. 1002). Plaintiff's pain medications were refilled, he was advised to continue on the same dose of Xanax, and he was instructed to follow-up in one (1) month. (Tr. 1002).

         On August 2, 2012, Plaintiff had a follow-up appointment with Dr. Shucker for his chronic anxiety and back pain, both of which were listed as “stable.” (Tr. 1011). A physical examination was normal. (Tr. 1011). Plaintiff was instructed to continue on his same medications and to follow-up in one (1) month. (Tr. 1011).

         On August 31, 2012, Plaintiff had a follow-up appointment for ongoing, chronic anxiety and back pain. (Tr. 1020). It was noted that Plaintiff was “swallowing ok from recent Nissen, ” that his GERD was stable, and that his Xanax dose was stable. (Tr. 1020, 1022). A physical examination was normal. (Tr. 1022). Plaintiff was instructed to follow-up in one (1) month. (Tr. 1022).

         On September 28, 2012, Plaintiff had an appointment with Dr. Shucker for follow-up of his chronic problems. (Tr. 1036). It was noted that Plaintiff admitted to recently abusing Xanax and Opiates. (Tr. 1036). A physical examination was normal. (Tr. 1038). Plaintiff was assessed as having Depression, Polysubstance Abuse, Panic Disorder, and a herniated lumbar intervertebral disc. (Tr. 1038). Plaintiff was switched to Klonopin with the plan to continue to “wean off benzo's completely, ” had his pain medications refilled, and was scheduled for a follow-up in one (1) month. (Tr. 1038).

         On October 12, 2012, Plaintiff had a follow-up appointment with Dr. Schucker after an emergency room visit due to being “slightly light-headed.” (Tr. 1041). It was noted his blood work was “all normal” and that he was withdrawing off the Xanax he had been abusing. (Tr. 1046). A physical examination was normal. ...


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