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Gebhart v. Astrue

United States District Court, D. Delaware

May 12, 2014



MARY PAT THYNGE, Magistrate Judge.


Plaintiff Samuel R. Gebhart ("plaintiff") filed this action against defendant Michael J. Astrue, then Commissioner of Social Security ("defendant").[1] Plaintiff seeks judicial review, pursuant to 42 U.S.C. ยง 405(g) and 42 U.S.C. 1383(c), of a denial of his application for Social Security Disability and Supplemental Security Income benefits under Title II and Title XVI of the Social Security Act (the "Act"). Presently before the court are the parties' cross-motions for summary judgment. Plaintiff seeks reversal, or in the alternative, remand to a different Administrative Law Judge ("ALJ"). Defendant requests the court affirm the decision to deny benefits.


A. Procedural Background

Plaintiff applied for disability insurance benefits ("DIB")[2] on July 25, 2005, alleging he was disabled since September 30, 2004 due to pericardial diffusion, a gunshot wound to his right calf, and nervous breakdowns.[3] His application was denied initially on February 16, 2006, [4] and on reconsideration on March 2, 2007.[5] On April 23, 2007, plaintiff filed a written request for a hearing.[6]

A video hearing before ALJ Judith A. Showalter was conducted on March 17, 2008.[7] Plaintiff, represented by counsel, testified at the hearing.[8] Mitchell A. Schmidt, an impartial vocational expert, also appeared at the hearing.[9]

On July 10, 2008, the ALJ issued a written decision denying plaintiff's application for DIB.[10] The ALJ noted plaintiff's insured status expired on March 31, 2007, requiring disability be established on or before that date.[11] The ALJ determined plaintiff was not disabled under sections 216(I), 223(d), and 1614(3)(A) of the Social Security Act.[12] Specifically, she found plaintiff had severe impairments, including posterior tibial tendon disorder, status post-gunshot wound, and personality disorder, but none, singly or in combination, met or medically equaled the criteria for listed impairments under the Act.[13] The ALJ determined plaintiff had the residual functional capacity ("RFC") to perform simple, routine, unskilled, sedentary work at a non-production pace.[14] The ALJ also found the RFC required plaintiff to do occasional postural activities, and precluded him from exposure to extreme temperature and humidity, as well as from climbing ropes, ladders, or scaffolds.[15] Consequently, the ALJ concluded plaintiff was employable and not disabled.[16]

Plaintiff then filed a request for review on July 17, 2008, [17] and the Appeals Council remanded the matter to the ALJ on June 23, 2010 for further consideration and to obtain additional evidence.[18]

On August 18, 2011, another video hearing was held before ALJ Judith Showalter.[19] Plaintiff again testified at the hearing.[20] Christina L. Beatty-Cody, an impartial vocational expert ("VE"), also testified.[21]

On December 2, 2011, the ALJ again denied plaintiff's application for DIB.[22] In that opinion, the ALJ concluded, although plaintiff had the same severe impairments, along with substance addiction disorder and depression, he maintained the previously determined RFC, [23] and was not disabled under the Act.[24]

Plaintiff's subsequent request for review was denied by the Appeals Council on August 10, 2012, as the Council concluded there was no basis for reviewing the ALJ's decision.[25] The ALJ's 2011 decision, therefore, constitutes the final decision of the Commissioner.[26]

Having exhausted all administrative remedies, plaintiff now seeks judicial review of this decision. On January 10, 2013, plaintiff moved for summary judgment.[27] On March 25, 2013, defendant cross moved for summary judgment.[28]

B. Factual Background

Plaintiff was born on March 7, 1963, [29] and was forty-four years old as of his last insured date.[30] He is considered a "younger person" at all times relevant to his DIB application.[31] Plaintiff is a high school graduate with prior vocational experience as a heavy equipment operator and a tree service worker.[32] His detailed medical history is contained in the record; this Recommendation will provide a summary of the relevant medical evidence.

1. Medical Evidence

Plaintiff's complaints of pain associated with a number of injuries and conditions occurred prior to the alleged onset date. His treatment records reflect a long-standing history of substance abuse and mental illness.[33]

a. Back/neck pain

In June 2004, plaintiff sustained cervical and thoracic strain injuries resulting from a motor vehicle accident, [34] causing neck and upper extremities' pain and numbness of the hands.[35] On August 2, 2004, plaintiff visited Wai Wor Phoon, M.D., for a nerve conduction test, which yielded normal results, with no evidence of neuropathy or radiculopathy.[36] Plaintiff briefly sought treatment for his symptoms from Jeremy Rivada, PT, ("Rivada") of DYNAMIC Physical Therapy and Aquatic Rehabilitation Centers.[37] On August 6, 2004, Rivada reported decreased range of motion and increased muscle tightness with spasms.[38] During that appointment, plaintiff advised he was placed on lighter duty at work and refrained from heavy lifting.[39]

On September 17, 2006, plaintiff was involved in another motor vehicle accident.[40] He began treatment with Frank Falco, M.D., ("Dr. Falco") and Jie Zhu, M.D., at Mid Atlantic Spine for lower back, neck, and leg pain on September 21, 2006.[41] On examination, Dr. Falco found normal range of motion ("ROM"), no muscle spasms in the back, and some tenderness along the facets.[42] Plaintiff was treated with pain medications for his lower back from September to November 2006.[43] At his November 2, 2006 office visit with Dr. Falco, plaintiff rated his lower back pain as 8/10 without pain medication, and 5/10 with medication.[44] During that appointment, plaintiff requested more medication, claiming the pharmacy only provided him 80 of the 120 pills he was supposed to receive.[45] Because the pharmacy properly filled the prescription, Dr. Falco discharged plaintiff for abusing pain medication.[46]

On August 12, 2010, plaintiff saw his primary care physician, Seth Ivins, M.D., ("Dr. Ivins") for lower back pain.[47] Dr. Ivins reported decreased range of motion in the lumbar spine.[48]

b. Chest pain

On September 10, 2004, plaintiff was seen at the emergency room of Christiana Care for chest discomfort.[49] He reported being a self-employed carpenter, and taking Xanax and Paxil for anxiety due to the June 2004 motor vehicle accident.[50] Cardiologist Edward Goldenberg, M.D., ("Dr. Goldenberg") conducted an electrocardiogram ("ECG") and CT scan ("CT"), which showed no evidence of a pericardial effusion or pulmonary emboli.[51] Dr. Goldenberg diagnosed "chest pain syndrome, probably pericarditis."[52]

On October 28, 2004, plaintiff followed up with Dr. Goldenberg for recurrent sharp anterior chest pain.[53] Dr. Goldenberg performed another ECG and assessed the chest pain as "probably musculoskeletal in etiology."[54]

On January 15, 2005, plaintiff again reported to the emergency room at Christiana Hospital complaining of chest pain resulting from a fall.[55] The ECG and chest x-ray presented no probative findings.[56] Plaintiff was discharged with a diagnosis of "nonspecific chest pain" and prescribed Percocet for pain.[57]

In June 2005, plaintiff visited Union Hospital in Elkton, Maryland, on two occasions complaining of "sharp and stabbing" chest pain.[58] During the June 6, 2005 visit, he claimed the pain started while fishing and drinking alcohol and the symptoms were identical to those experienced during his admission to Christiana Care in 2004.[59] Plaintiff related a family history of congestive heart failure, coronary artery disease, and pericarditis.[60] On June 24, 2005, plaintiff returned to the Union Hospital emergency room with another episode of chest pain, and was evaluated by Christopher Baldi, D.O., who noted that "some features of [plaintiff's] pain and his actions... suggest drug-seeking behavior."[61] During each visit, plaintiff was diagnosed with pericarditis and hypertension.[62] He also tested positive for Hepatitis C.[63] Plaintiff was advised to discontinue alcohol and tobacco use, and follow up with his primary care provider, Keith Sokoloff, M.D.[64]

On January 4, 2007, plaintiff visited Dr. Goldenberg for the first time since 2004, for recurrent chest discomfort and shortness of breath associated with "hard work or emotional upset."[65] Plaintiff advised taking nitroglycerine for relief.[66] He stated his activities were limited and still smoked a half a pack of cigarettes a day.[67] Dr. Goldenberg administered an ECG and diagnosed the chest pain as "not clearly ischemic in origin."[68]

On January 17, 2007, plaintiff underwent a stress test administered by Richard F. Gordon, M.D., which revealed a regional wall motion abnormality and a moderately sized, reversible inferior defect.[69] Thereafter, plaintiff underwent a cardiac catherization on January 30, 2007 by James M. Ritter, M.D., (partner to Dr. Goldenberg) which revealed non-obstructive coronary artery disease.[70]

On January 11, 2008, plaintiff was admitted to Christiana Care after developing chest pain during a domestic dispute.[71] Dr. Goldenberg found plaintiff's chest x-ray was normal and his ECG unchanged.[72] Two months later, Dr. Goldenberg cleared plaintiff from "a cardiac standpoint" for foot surgery.[73]

Plaintiff continued to see Dr. Goldenberg for chest pain from April 2009 through December 2009.[74] During the April 7, 2009 appointment, plaintiff advised he continued to smoke and had experienced significant emotional distress.[75] While his ECG was normal, plaintiff had elevated cholesterol and Dr. Goldberg prescribed Lipitor.[76] Nevertheless, when Dr. Goldenberg was asked on November 23, 2009 whether plaintiff was disabled from a "cardiac standpoint, " the doctor responded in the negative.[77]

On November 24, 2009, plaintiff contacted Dr. Goldenberg's office complaining of persistent and intermittent chest pain.[78] On December 2, 2009, Dr. Goldenberg administered another stress test, which was negative for ischemia and arrythmias, and revealed an ejection fraction of 69%, normal sized chambers, normal perfusion, normal hemodynamic response, and average functional capacity.[79]

On December 15, 2009, plaintiff was evaluated by Dr. Goldenberg for continued activity-related tightness in his chest.[80] At this time, plaintiff advised he had discontinued alcohol, continued to smoke, and remained under increased emotional stress.[81] Dr. Goldenberg's diagnosis was atypical angina, and he ordered another cardiac catherization.[82] On December 28, 2009, Michael E. Stillabower, M.D., conducted the catherization, and found non-obstructive coronary disease with no focal stenosis in excess of 30-40%, intramyocardia with mild bridging.[83]

c. Foot/ankle injury

In 1981, plaintiff sustained a gunshot injury which left multiple bullet fragments in his right leg.[84] On January 6, 2005, plaintiff was seen at Christiana Care complaining of pain in both wrists, right ankle and foot.[85] X-rays revealed osteoarthritic changes in both wrists and possible joint subluxation in the left wrist.[86] An X-ray of the right ankle revealed multiple pellets in the soft tissue compatible with the 1981 gunshot injury, but otherwise showed no significant arthritic changes or deformities.[87] The right foot X-ray evidenced osteoarthritic changes and possible hammertoe deformities.[88]

Plaintiff saw podiatrist James D. Bray ("Dr. Bray") for his foot and ankle pain from January 2005 through February 2006.[89] In January 2005, Dr. Bray diagnosed posterior tibial tendon disorder of the right ankle and ordered a sonogram which occurred on February 3, 2006.[90] According to the sonogram, there was evidence of chronic thickening and fibrosis along the musculotendinous junction of the posterior tibialis tendon, with the abnormal thickening in the posterior tibialis region possibly representing the "sequela of previous injury to the tendon."[91]

In May 2006, plaintiff began treatment with podiatrist Jason T. Kline ("Dr. Kline").[92] Dr. Kline first treated plaintiff on May 25, 2006 for complaints of foot and ankle pain and ambulation problems due to occasional "collapse" of the right foot.[93] Plaintiff also complained his ankle brace for stability caused pain.[94] Dr. Kline's examination revealed subtalar ROM elicited mild pain with no evidence of crepitus.[95] Weight bearing analysis revealed severe collapse of the subtalar joint and longitudinal arch.[96] Dr. Kline diagnosed a 3/4 function grade of plaintiff's posterior tibial tendons and hammertoe deformities.[97] He recommended reconstructive surgery for both conditions to stabilize plaintiff's right foot.[98] On June 22, 2006, Dr. Kline's examination revealed a severe pes valgus deformity secondary to subtalar joint collapse, muscle weakness secondary to nerve damage related to the gunshot injury, and rigid contracted digits of the right foot.[99] Based on these findings, Dr. Kline scheduled subtalar joint fusion surgery which was performed on July 14, 2006.[100]

On August 10, 2006, Dr. Kline's post-operative evaluation noted plaintiff was "doing well."[101] During this appointment, he applied a fiberglass cast with strict non-weight bearing activity for two weeks, and prescribed a CAM walker, pain medication, and thirty days of physical therapy.[102]

On September 15, 2006, plaintiff began physical therapy with Heather J. Browne, PT, ("Browne") at DYNAMIC Physical Therapy & Rehabilitation Center.[103] At that time, plaintiff rated his pain in a range of 8/10 to 10/10.[104] Browne reported plaintiff's overall rehabilitation potential as fair, and he tolerated therapeutic treatment activities with mild complaints of pain and difficulty.[105] On October 6, 2006, plaintiff told Browne he felt "a lot better" since physical therapy began.[106] Browne observed plaintiff had increased mobility, and could walk without a boot.[107] Plaintiff reported exercising on his own, including using five pound weights at one hundred repetitions a couple of times per day, walking on the treadmill for five miles per day at five miles per hour, and doing fifty pound leg presses.[108] Nevertheless, he reported pain after walking for a long time, at night and in the morning, and at extreme ankle ROM.[109] Browne advised plaintiff to temper his exercise activities.[110]

On October 18, 2006, Dr. Kline diagnosed plaintiff's right subtalar fusion as "successful" and "totally healed."[111] Despite these findings, Dr. Kline concluded plaintiff was "temporarily disabled until further notice, " and scheduled a second surgery for digital reconstruction.[112]

On November 28, 2006, plaintiff underwent surgical reconstruction of his right foot.[113] Dr. Kline prescribed post-operative pain medication until December 12, 2006.[114]

Shortly after his November 2006 surgery, plaintiff experienced tenderness in his right toes, determined to be caused by a screw that migrated distally.[115] As a result, plaintiff was admitted on January 25, 2007 to Glasglow Medical Center to have the appliance surgically removed.[116]

Plaintiff visited Dr. Kline regularly following his 2007 surgery, and often complained of right foot and ankle pain.[117] Dr. Kline continued with pain medication and referred plaintiff to Emmanuel Devotta, M.D., ("Dr. Devotta") of Brandywine Pain Management.[118] On March 9, 2007, Dr. Devotta performed a physical and a pain management evaluation.[119] He observed plaintiff wore a boot over his lower right extremity, had multiple well-healed surgical scars and significant decreased ROM in the ankle with diffuse allodynia and mild edema.[120] Dr. Devotta recommended a lumbar sympathetic block to reduce lower extremity hypersensitivity.[121] However, there is no documentation that plaintiff underwent this procedure.[122]

In a May 2007 letter concerning plaintiff's disability status, Dr. Kline opined that the recovery process was ongoing and discussed plaintiff's difficulty with pain management.[123] Dr. Kline felt the pain was due to a "nonunion at one of the surgical sites" and if further surgery was required, "the period of disability may... extend at least 3-6 months."[124]

In August 2007, Dr. Kline completed a lower extremities impairment questionnaire listing the current diagnosis as subtalar joint nonunion, based on a June 2007 CT scan, which revealed incomplete fusion of the right subtalar joint.[125] He reported plaintiff suffered sharp and throbbing pain during ambulation and, while able to initially ambulate independently, could not sustain walking or other activities.[126] Dr. Kline noted plaintiff used a CAM walker and cane and could not climb stairs without a handrail.[127] Dr. Kline concluded plaintiff could sit for eight hours, walk or stand for one hour, frequently lift between 0-20 lbs., occasionally lift 20-50 lbs., and never lift over 50 lbs.[128] He also noted swelling of the right leg would require elevation above hip-level for 1-2 hours, twice daily.[129] Dr. Kline indicated severe pain frequently interfered with plaintiff's attention and concentration, [130] and denied any evidence of malingering.[131] He concluded plaintiff could tolerate low stress work, and required unscheduled work breaks every two hours, with absenteeism of more than three times a month because of the impairments.[132] Dr. Kline's further work limitations identified avoiding temperature extremes, kneeling, bending, and stooping.[133]

Plaintiff began treatment with Dr. Ivins in 2007.[134] Like Dr. Kline, Dr. Ivins treated the foot and ankle pain.[135] At the November 1, 2007 appointment, plaintiff rated his lower leg pain at 9/10.[136] On March 3, 2008, plaintiff informed Dr. Ivins that his pain level remained the same.[137]

On March 26, 2008, plaintiff complained to Dr. Kline of persistent pain in the right ankle and along the outer aspect of his right foot, which turned inward during ambulation.[138] Plaintiff advised the CAM walker provided more secure ambulation.[139] Dr. Kline's examination found possible nonunion of the subtalar joint, ankle equinus, and tenderness and tightness along the Achilles tendon.[140] Based on these findings, Dr. Kline recommended percutaneous tendo-Achilles lengthening to decrease compensatory pronation at the subtalar joint, and to delay the nonunion repair because the subtalar joint was presently not tender on motion.[141]

On March 31, 2008, plaintiff told Dr. Ivins the pain had not increased since his last visit, for which 30 mg. Roxicodone was prescribed.[142] Eleven days later, Dr. Kline re-prescribed the same dosage.[143]

On April 22, 2008, plaintiff was admitted to Glasglow Medical Center for percutaneous tendo-Achilles lengthening.[144] On postoperative evaluation, Dr. Kline noted improvement in ankle ROM, with pain well-controlled.[145]

In May 2008, Dr. Kline referred plaintiff to DYNAMIC Physical Therapy, where treatment was provided by several different clinicians.[146] On June 24, 2008, plaintiff saw Sarah Price, MPT, about severe pain around the Achilles tendon and anterior and medial ankle area and lateral numbness.[147] On July 2, 2008, plaintiff informed Christopher Goetz, PT, ("Goetz) that his right ankle pain decreased and ROM increased.[148] One week later, however, plaintiff rated the severity of pain at 10/10.[149] On July 11, 2008, Goetz reported plaintiff's overall condition was "improving, " "with good tolerance to [the] exercise program."[150] On July 16, 2008, plaintiff stated he was "improving" with physical therapy, and Rivada noted minimal complaints of pain or difficulty.[151] On July 17, 2008, plaintiff told Goetz he felt "pretty good with little pain, " and his functional ability had improved more than 50% since starting physical therapy.[152] On July 22, 2008, plaintiff reported increased walking was less painful.[153] July 25, 2008 was his last physical therapy appointment, when he complained of soreness due to exercise.[154]

On October 7, 2008, plaintiff underwent another surgical procedure on his right foot at Glasglow Medical Center.[155]

On October 30, 2008, Dr. Kline reported plaintiff had decreased edema in the right foot with mild residual erythema.[156] Moreover, on November 13, 2008, Dr. Kline noted plaintiff still experienced pain in the right foot, but his condition had improved.[157] The doctor prescribed additional Roxicodone.[158] The following day, plaintiff complained to Dr. Ivins that his level of pain was at 8/10 and needed his prescriptions refilled.[159] At both his December 10 and December 30, 2008 appointments with Dr. Kline, plaintiff reported the pain was localized to the outer aspect of his right ankle after periods of ambulation.[160] On December 12, 2008, plaintiff's chief complaint to Dr. Ivins was he needed further refills of his medications because of increased right foot and ankle pain due to cold weather.[161]

X-rays taken June 16, 2009 revealed joint space narrowing and osteophytes consistent with degenerative joint disease.[162] Dr. Kline noted possible subtalar nonunion, but determined no surgery was necessary.[163]

Roughly a year later, Dr. Kline reported in a letter that plaintiff's condition remained consistent with the information contained in his 2007 lower extremities impairment questionnaire.[164] Specifically, Dr. Kline concluded plaintiff suffered reduced ROM in his right subtalar and ankle joints, tenderness in the right sinus tarsi and plantar lateral heel, muscle atrophy in the right calf, swelling and sensory loss in the right foot and lower leg, joint instability and crepitus in the right subtalar joint, and an abnormal gait.[165] Dr. Kline concluded plaintiff could not stand or walk for more than one hour in an eight hour work day, required elevation of his right leg above hip level for one to hours twice each day, and his condition would result in more than three absences from work per month.[166] Lastly, Dr. Kline stated plaintiff's condition was ongoing and had existed since May 25, 2006.[167]

Dr. Kline did not see plaintiff again until May 4, 2011, when plaintiff complained of a burning pain in his outer heel and along his right foot to the fourth and fifth digits, which had been present for over two weeks; he denied any injury to the affected area.[168] Dr. Kline's examination revealed mild residual edema on the lateral aspect of the foot.[169] Although Dr. Kline found no tenderness in the subtalar joint on attempted ROM, pinpoint tenderness was evident at the plantar fascial insertion site, and on palpation along the entire fascial band including submetatarsal VI and V.[170] Dr. Kline noted no edema, erythema, calor, ecchymosis, or interspace neuroma, and a negative Mulder sign.[171] Assessment of recent radiographs of plaintiff's right foot confirmed the subtalar joint screw remained and no evidence of heel spurring.[172] Based on these findings, Dr. Kline suspected plantar fasciitis for which he administered injections and recommended continued icing and elevation of the right leg, ...

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