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Deal v. Astrue

United States District Court, D. Delaware

June 13, 2014

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


GREGORY M. SLEET, Chief District Judge.


This action arises from the denial of the plaintiff Tamela Deal's ("Deal") claim for Social Security benefits under Titles II and XVI of the Social Security Act ("Act"). 42 U.S.C. ยงยง 401-433, 1381-1383(f). Deal filed for disability insurance benefits ("DIB") on August 13, 2007, and for supplemental security income ("SSI") on October 4, 2007, claiming she became disabled on November 19, 2004. (D.I. 5 at 134-38.) The Social Security Administration ("SSA") denied Deal's claims initially and on reconsideration. ( Id. at 89, 95.) Deal thereafter requested an administrative law judge ("ALJ") rehearing, which took place on December 9, 2008. ( Id. at 100, 42.) At the hearing, testimony was provided by Deal (represented by counsel Gary Linarducci) and an impartial vocational expert, Tony Melanson. ( Id. at 27.)

The ALJ, Melvin Benitz, issued a written decision on September 14, 2009, denying Deal's benefit claims. ( Id. at 24, 27.) Deal requested a review of the ALJ's decision by the Social Security Appeals Council, which denied review on March 30, 2010. ( Id. at 1, 132.) Deal filed a timely appeal with the court on April 27, 2010. (D.I. 1.) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 8, 10.) For the reasons that follow, the court will: (1) deny Deal's motion for summary judgment, and (2) grant the Commissioner's motion for summary judgment.


Deal was born on March 3, 1964. (D.I. 5 at 134.) She has a high school diploma and attended college for one year. ( Id. at 77). At the time of her application for DIB and SSI on August 13, 2007, and October 4, 2007, respectively, Deal was forty-three years old. ( Id. at 134-38.) Her alleged disability dates back to November 19, 2004. ( Id. )

A. Medical and Employment History

Deal worked as a Delaware correctional officer for sixteen years until February 19, 2004, when her neck and back were injured in a fall. ( Id. at 45, 49, 495.) After her accident, she continued to work in the Delaware Correctional Center ("DCC") as an operations support specialist. ( Id. at 47.) A month later, she developed appendicitis, for which she underwent an appendectomy in October 2004. ( Id. at 48.) After a brief period of recovery, she returned to her job at the DCC. ( Id. ) On November 1, Deal was notified that a biopsy of her appendix had revealed the presence of a carcinoid tumor. ( Id. ) Deal claims her disability began on November 19, and she underwent surgery to remove the tumor on December 1. ( Id. at 134, 48.)[2] Deal attempted to return to work after the surgery, but was unable to do so successfully; the ALJ later agreed with Deal that this constituted an unsuccessful work attempt. ( Id. at 29.)

Deal underwent surgery in October 2006 to treat the long-standing back and neck problems that began after her fall, including a diagnosis of disc herniation, facet arthropathy (arthritis), and reversal of the lordotic curve (an abnormal straightening of the cervical spine). ( Id. at 54, 247, 404, 414, 496.) After surgery, Deal underwent several months of physical therapy. ( Id. at 328-64.) She continued to report serious pain after several years of epidural injections intended to treat her lower back pain. ( Id. at 366, 371, 395, 398, 413, 436, 437, 561, 562, 653.)

Throughout the time period for which Deal claims disability, she gained eighty pounds and was diagnosed with obesity, diabetes, and hyperthyroid disease. ( Id. at 64, 441, 469, 637, 641-42.) Deal later lost between fifty-three and fifty-eight pounds, which Dr. Sean Nolan, M.D., attributed to significant life stressors. ( Id. at 65, 441.) Deal testified that her weight loss "helped a lot" in reducing her pain, though she still considered her pain constant and substantial after the 2008 weight loss. ( Id. at 67, 441.)

Deal returned to work part-time as a phone salesperson for T-Mobile from June to August 2008. ( Id. at 57, 59.) She was not afforded the opportunity to sit at this job and left due to reported pain and trouble sleeping. ( Id. at 58.) That August, Deal enrolled in classes at Delaware Technical Community College ("Del Tech"). ( Id. ) Deal testified that she attended classes two days a week for four to six hours on those days. ( Id. ) Deal is currently taking these classes in hopes of obtaining employment that will allow her to sit or stand at her discretion. ( Id. at 75.)

B. Expert Opinions

1. Dr. Clements

Dr. Barton Clements, M.D., diagnosed Deal's appendicitis and performed her appendectomy on October 13, 2004. ( Id. at 537-41, 621-625.) He noted on October 21 that her incision was healing well and opined that she could attempt to return to light duty work in four days. ( Id. at 515.) On November 1, Deal was notified of the discovery of her carcinoid tumor, and she underwent surgery for its removal on December. ( Id. at 48.) As of December 23, 2004, Dr. Clements noted in a follow-up to the colectomy that Deal "seem[ed] to be doing fantastic" and found her "markedly improved" since her previous visit. ( Id. at 513.) He also noted her significant weight loss, to which he attributed her "feel[ing] better overall." ( Id. ) Despite the presence of some granulation tissue, hot flashes, and acne, Dr. Clements remarked on January 10, 2005, that Deal "seem[ed] to be doing fairly well." ( Id. ) However, on that same date Dr. Clements indicated in a disability pension form that Deal suffered from chronic back and abdominal pain and was not physically able to return to work. ( Id. at 511-12.) Dr. Clements gave Deal a prognosis of"fair/good undetermined." ( Id. )

ALJ Benitz in his decision afforded Dr. Clements's opinion "little weight." ( Id. at 20.) He agreed with Dr. Clements that Deal could not perform her past duties as a corrections officer, but disagreed that she could not perform a lighter duty job with certain limitations. ( Id. ) As evidence for this conclusion he noted Deal's class attendance and home study time, the medical records from Dr. Witherell indicating that she was taking online computer courses as of February 2008, and Deal's testimony that she did not lie down during the day, though she needed to change positions throughout the day. ( Id. )

2. Dr. Schwartz

Dr. Eric T. Schwartz, M.D., treated Deal's neck and low back injury beginning March 17, 2004. ( Id. at 478-84.) Throughout her following visits, Dr. Schwartz advised that Deal could continue to perform a limited range of light work with no repetitive bending, stooping, or squatting. ( Id. ) Dr. Schwartz determined by August 26 that Deal had reached maximum medical improvement and opined that she was unable to perform her regular duty as a correctional officer and should instead maintain a light duty work status, seeking additional vocational training if necessary. ( Id. at 478.) He completed a form on November 1 recommending that Deal remain limited to this range of light work. ( Id. at 484.) After two final visits in February and June of 2005, Dr. Schwartz completed a progress note on June 16 indicating Deal's continued back and neck pain. ( Id. at 473.) In his decision, ALJ Benitz agreed with Dr. Schwartz's advisement that Deal be limited to a reduced range of light work. ( Id. at 36) In light of that advisement and Deal's professed improvement following surgery, ALJ Benitz afforded Dr. Schwartz's opinion great weight. ( Id. )

3. Dr. Sugarman

Dr. Michael G. Sugarman, M.D., first evaluated Deal on June 25, 2004, and discovered an apparently non-destructive cystic lesion on her thoracic spine, which prompted neurosurgical referral. ( Id. at 416.) He noted that Deal had developed pain in her lower back radiating into her right leg and ankle following her accident, and remarked that her exam revealed an excellent range of motion. ( Id. ) Dr. Sugarman reviewed a lumbar MRI from which he found degenerative changes but no disc herniation. ( Id. ) He diagnosed Deal with lumbar spondylosis with a back strain from her fall and recommended a conservative course of treatment, including a book of daily exercise regimes. ( Id. )

On June 22, 2005, Deal returned to Dr. Sugarman because of reported back and neck pam. ( Id. at 415.) Another MRI of her thoracic spine continued to show the cystic lesion unchanged in size. ( Id. ) Dr. Schwartz attributed Deal's pain not to the cystic lesion but to disc protrusions revealed by the MRI, and he recommended an additional MRI of her cervical spine and lumbar spine. ( Id. ) The MRI confirmed the protrusions and showed facet arthropathy throughout. ( Id. ) Dr. Schwartz discussed treatment options with Deal and deemed her decision to try epidural steroid blocks reasonable, but these did not improve her condition. ( Id. at 413-415.) Deal reported getting excellent results from "DRX 9000" therapy for her back by January 18, 2006. ( Id. at 411). Dr. Sugarman did not feel that surgical intervention was necessary at that time. ( Id. )

On January 25, 2006, at the request of Deal's attorney, Dr. Sugarman prepared a report of his care and opined that any job working at a desk on a regular daily basis would exacerbate Deal's condition. ( Id. at 578-580.) Because of Deal's cervical and lumbar spine condition, Dr. Sugarman did not believe she could perform her former job as an Operations Support Specialist on a regular forty-hour week work basis. ( Id. ) On an assessment for workers' compensation dated September 2, 2008, Dr. Sugarman opined that Deal was incapable of more than part-time sedentary work with major limitations on physical exertion. ( Id. at 658.) He also noted that she had lost and was continuing to lose a great deal of weight, and that continuing to lose more would only be of benefit to her. ( Id. at 655.)

In his decision, ALJ Benitz accorded Dr. Sugarman's opinion some weight. ( Id. at 35.) He agreed with Dr. Sugarman that Deal could not perform her past work as a correctional officer but disagreed with Dr. Sugarman's assessment that Deal could work only four hours a day. ( Id. ) ALJ Benitz based this disagreement on Deal's testimony about her school attendance, the lack of medical evidence indicating Deal could not perform full-time work on a regular basis with certain limitations, and the records from Dr. Sugarman demonstrating improvement in Deal's conditions over time. ( Id. )

4. Dr. Bandera

Dr. Peter Bandera, M.D., examined Deal and reviewed her medical records on December 19, 2007, for a workers' compensation assessment. ( Id. at 421-22.) At this time Deal reported residual neck pain with a bilateral radiating component and low back pain with right greater than left radiation. ( Id. ) Dr. Bandera assessed her as having a decreased range of motion, muscle spasms, and muscle guarding. ( Id. ) He advised that Deal should defer impact forces to the cervical and lumbar spine in that, as ALJ Benitz interpreted, she should not perform work above the sedentary or reduced range of light levels of exertion. ( Id. 422, 36.) For the purposes of the workers' compensation assessment, Dr. Bandera gave Deal a 34% permanent partial rating for the cervical spine and a 22% partial impairment rating for the lumbar spine. ALJ Benitz accorded weight to the portions of Dr. Bandera's opinion assessing ...

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