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Bentzen v. Astrue

United States District Court, D. Delaware

June 13, 2014

MICHAEL J. ASTRUE,[1] Commissioner of Social Security, Defendant

Decided: June 12, 2014.

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[Copyrighted Material Omitted]

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For Bradley Bentzen, Plaintiff: Gary C. Linarducci, LEAD ATTORNEY, Steven Loyd Butler, Linarducci & Butler, PA, New Castle, DE.

For Michael Astrue, Commissioner of Social Security, Defendant: Dina White Griffin, Patricia Anne Stewart, Social Security Administration - Region III, Office of General Counsel, Philadelphia, PA.

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This action arises from the denial of plaintiff Bradley Bentzen's (" plaintiff" ) claim for Social Security benefits. On December 18, 2006, plaintiff filed applications for Disability Insurance Benefits (" DIB" ) and Supplemental Security Income (" SSI" ) under Titles II and XVIII of the Social Security Act (the " Act" ). (D.I. 6 at 103-117) In his application and disability report, plaintiff claimed he became disabled beginning on June 5, 2006, due to lower back and bilateral leg pain. ( Id. at 140-41.) Following the Social Security Administration's (" SSA" ) denial of his claim, both initially and upon reconsideration, plaintiff requested an ALJ hearing. ( Id. at 64, 69-71, 76-79.) The hearing occurred on February 4, 2009. ( Id. at 24, 26.) At the hearing, testimony was provided by plaintiff and an impartial vocational expert (" VE" ), Tony Melanson (" Melanson" ). ( Id. at 26-59) On April 29, 2009, the ALJ, Melvin D. Benitz, issued a written decision denying plaintiffs benefits claim. ( Id. at 8-23.) Plaintiff requested a review of the ALJ's decision by the Social Security Appeals Council, which denied review on December 2, 2009. ( Id. at 1-7.) On December 30, 2009, plaintiff filed a timely appeal with the court. (D.I. 1.) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 9, 14.) For the reasons that follow, the court will grant plaintiff's motion for summary judgment, and deny defendant's motion for summary judgment.


Plaintiff was born on February 1, 1975. (D.I. 6 at 110.) He has a high school diploma and attended some college. ( Id. at 28-29.) His alleged disability dates back to. June 5, 2006. ( Id. at 34.) Plaintiffs underlying injury occurred in 1998, when he was accidentally struck by a heavy drum while working as a chemical operator. ( Id. at 29-33.) Plaintiff continued to work as a chemical operator until he was terminated on June 5. 2006. ( Id. at 34.) Plaintiff, however, stopped physically working in 2005, and collected long-term disability benefits until his termination in 2006. ( Id. at 34-35.) Plaintiff has not worked since his termination as a chemical operator. ( Id. at 118-23.) Despite his prior vocational experience, plaintiff claims he remains disabled under the Act. ( Id. at 35-55.) To be eligible for DIB and SSI, plaintiff must demonstrate he is disabled within the meaning of sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. ( Id. at 11.)

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A. Evidence Presented

Plaintiff suffered a work-related lumbar strain back injury on October 8, 1998. ( Id. at 469, 726.) Plaintiff suffered further lumbar strain back injuries in 2001 and in September 2003. ( Id. at 469.) Until December 2003, plaintiff was treated conservatively for back pain resulting from the injuries, with treatment consisting of physical therapy and medications. ( Id. at 188.) His back pain failed to lessen after this conservative treatment, and he experienced a high level of limitations and impairment of activities of daily living. ( Id. at 190, 192.) On December 9, 2003, plaintiff was admitted to Christiana Care for an experimental total disk replacement, after being diagnosed with degenerative disk disease with internal disk disruption and positive diskogenic pain at the L5-S1 segment. ( Id. at 188, 190, 192, 605.) He tolerated the procedure well. ( Id. at 188, 190, 193.)

Plaintiff continued to work as a chemical synthesis technician until June 5, 2006. ( Id. at 141.) On June 14, 2006, he underwent a lumbar discography, which revealed a degenerative L4/5 disc with posterior annular tear, herniated nucleus propulsus, and concordant back pain. ( Id. at 214.) This procedure was performed by Dr. Frank Falco (" Dr. Falco" ) of Mid Atlantic Spine, who was plaintiff's physician from June 2006 until April 2009. ( Id. at 214, 607-706.) The tear was described as a " thru and thru tear." ( Id. at 701.) The result of an electrodiagnostic report on June 19, 2006 showed an abnormal condition. ( Id. at 693-94.) However, multiple examinations in 2006 and 2007 found plaintiff to have normal reflexes, muscle strength, alertness, motor functions, and coordination. ( Id. at 210, 239, 469, 611-21, 624-37, 642-43, 648-49, 722.)

On January 2, 2007, plaintiff underwent a CT scan performed by Dr. Falco, which revealed an L4/5 disc protrusion with subsequent stenosis and nerve root compression. ( Id. at 561.) The CT scan showed no central canal stenosis or degenerative disc changes. ( Id. ) On January 8, an EMG performed by Dr. Falco showed abnormal right L5 motor radiculopathy and left L5 and S1 motor radiculopathy. ( Id. at 656.) Another EMG performed by Dr. Falco on August 22, 2007, showed abnormal bilateral L5/S1 motor radiculopathy. ( Id. at 608.)

Plaintiff sought many treatments for pain, which he described as severe. ( Id. at 332.) These treatments included intradiscal electrothermic therapy sessions by Dr. Falco in August and September 2006, selective nerve root block treatments from Dr. Falco in March and April 2006 and January and February 2007, and a seven-day spinal cord stimulation [2] trial by Dr. Falco in June 2007. ( Id. at 495-96, 498, 548, 550, 554, 575, 616, 622-23, 672, 683.) Plaintiff was prescribed multiple medications for his pain, including morphine, Oxycodone, Valium, Depakote, Dilaudid, MS Contin, and Percocet. ( Id. at 242, 252-53, 368, 737.) Plaintiff also visited the emergency room at Christiana Care on three occasions in 2006 due to back pain. ( Id. at 223, 235, 510.)

Beginning in May 2006, plaintiff's physicians advised he could not work. ( Id. at 340.) Similar reports continued through August 2007. ( Id. at 611-12.) In November 2007, Dr. Falco prepared a Residual Functional Capacity (" RFC" ) evaluation. ( Id. at 717-720.) This RFC evaluation

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limited plaintiffs lifting to nothing heavier than a can of soda. ( Id. at 717.) It also restricted sitting or standing to ten minutes at a time, nor for more than two hours in an eight-hour workday, and required plaintiff to lie down twice an hour for fifteen to twenty minutes. ( Id. ) The RFC noted plaintiffs medications had a moderate effect on his ability to concentrate, and pain would interfere with his ability to complete an eight-hour workday. ( Id. at 717-18.) The RFC advised no exposure to extreme temperature changes, unprotected heights, vibration, fumes, or moving machinery. ( Id. at 718.) Finally, the RFC found plaintiff could not perform sedentary work,[3] even on a part-time basis.[4] ( Id. at 719.) In February 2009, Dr. Falco prepared another RFC evaluation that reached the same conclusions. ( Id. at 737-40.) This RFC evaluation repeated plaintiff was incapable of doing " low stress" jobs because of severe pain. ( Id. at 738.)

In January 2007, plaintiff was examined by Dr. David Stephens, who concluded he could perform sedentary work. ( Id. at 468-71.) Dr. Stephens noted plaintiff limped during the examination, which disappeared when he was leaving the office. ( Id. at 469.) Dr. Stephens observed plaintiff moved more freely than he claimed. ( Id. ) Upon reexamination in August 2007, however, Dr. Stephens found plaintiff could not work at all. ( Id. at 723.) His change of opinion rested on the failure of the spinal cord stimulation to reduce pain and significant loss in range of motion. ( Id. at 469, 722-23.)

Finally, a Physical Residual Functional Capacity Assessment prepared by Dr. Sheldon Stein (" Dr. Stein" ) on June 4, 2007, determined plaintiff could perform light duty work.[5] ( Id. at 600-06.) Dr. Stein never examined plaintiff, and based his assessment on the medical records. ( Id. ) Dr. Stein acknowledged plaintiff suffered from significant pain,[6] which was constant and not relieved by pain medication. ( Id. at 605).

Dr. Stein, however, noted the absence of any abnormal findings on the emergency room records from plaintiff's three emergency

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room visits for back pain in 2006. ( Id. ) He further noted normal findings on several occasions in the medical record, apart from a finding of L4/5 disc protrusion with subsequent stenosis and nerve root compression. ( Id. at 561, 606.) Dr. Stein concluded plaintiff was exaggerating his symptoms, displayed narcotic-seeking behavior,[7] and found his complaints were only partially credible. ( Id. at 606.)

In the February 2009 RFC evaluation by Dr. Falco, he refuted Dr. Stein's findings and determined plaintiff was unable to perform any work. ( Id. at 727, 738.) The RFC reported pain was eight out of ten,[8] and the prognosis was poor. ( Id. at 737.) Dr. Falco concluded plaintiff was not a malingerer, and pain would constantly [9] interfere with his ability to perform even simple work tasks. ( Id. at 737-38.) The RFC evaluation restricted plaintiff from lifting or carrying anything, and from twisting, stooping, bending, crouching, squatting, or climbing ladders. ( Id. at 739-40.) Plaintiff could occasionally climb stairs, and had no significant limitations on reaching, handling, or fingering. ( Id. at 740.) The RFC reported plaintiff would, on average, be absent from work more than four days per month because of pain. ( Id. )

Despite his injury, plaintiff was able to engage in some limited personal activities. In a March 2007 Function Report, plaintiff stated he read, watched television, did simple cooking,[10] dishwashing, dusting, small loads of laundry, and limited driving, walked short distances,[11] made small grocery purchases,[12] and occasionally attended church.[13] ( Id. at 148-53.) All these activities are ...

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