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Roberts v. Colvin

United States District Court, D. Delaware

October 22, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Plaintiff: Angela Pinto Ross , Esquire of Doroshow, Pasquale, Krawitz & Bhaya.

For Defendant: Charles M. Oberly III, United States Attorney, Wilmington, Delaware and Dina White Griffin, Special Assistant United States Attorney, Office of the General Counsel Social Security Administration. Of Nora Koch, Esquire, Acting Regional Chief Counsel, Region III and Roxanne Andrews, Esquire, Assistant Regional Counsel of the Office of the General Counsel Social Security Administration, Philadelphia, Pennsylvania.

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ROBINSON, District Judge.


Dietrich Lamont Roberts (" plaintiff" ) appeals from a decision of Carolyn W. Colvin, Acting Commissioner of Social Security (" defendant" ), denying his application for supplemental security income (" SSI" ) under Title II of the Social Security

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Act (the " Act" ), 42 U.S.C. § § 401-434, 1381-1383f. The court has jurisdiction pursuant to 42 U.S.C. § 405(g).[1]

Currently before the court are the parties' cross-motions for summary judgment. (D.I. 13, 15) For the reasons set forth below, plaintiff's motion will be denied and defendant's motion will be granted.


A. Procedural History

Plaintiff protectively filed an application for SSI on May 25, 2010 alleging disability beginning on February 1, 2009, due to a bulging disc in his back, nerve damage, and a slipped disc. (D.I. 11 at 182, 186) On June 24, 2011, after a hearing on May 31, 2011, the ALJ denied plaintiff's claim, finding that plaintiff could perform a range of unskilled, sedentary work. ( Id. at 25-40, 42-86) After the Appeals Council denied review ( id. at 1-11), plaintiff filed the current action for review. (D.I. 13)

B. Medical History

1. Lower back pain

Plaintiff's medical history states that he " had sudden onset of left leg pain" while lifting furniture in 1997. He was evaluated and underwent pain management, but he refused injections at that time. He re-injured his back in 2002, was prescribed some medications and told that he might need surgery. He moved to Atlanta for a few years. Upon returning to Delaware, he was seen by a physician and was offered medical management and epidural steroid injections. Plaintiff refused any interventions. (D.I. 11 at 255)

On July 22, 2010, plaintiff completed a " function report" form in connection with his SSI claim, indicating he lived in an apartment with friends. He checked the box for " no problem" with personal care, but stated reaching and bending causes " severe pain" for " dress," " bathe," and " hair" care categories. He prepared " complete meals when pain subsides" twice daily taking thirty minutes to one hour. He indicated he went outside everyday, walked and took public transportation. He shopped in stores for food and clothes, once a month for two to three hours. He goes to meetings, social groups and church daily, but indicated that he did not visit friends as often as he used to. He can walk two blocks before needing to rest for twenty to thirty minutes. He can pay attention " all the time; " follows written and verbal instructions " very well; " gets along with authority figures " very good; " and handles stress " very well" and changes in routine " not so good." He states that he uses a " brace/splint" (not prescribed by a doctor) every day, but did not check the box for a " cane." ( Id. at 191-198)

Portia Conix, D.O. (" Dr. Conix" ) provided treatment to plaintiff from May to August of 2010. ( Id. at 232-253) On May 24, 2010, Dr. Conix's examination revealed that plaintiff had intact neurological findings, spinal tenderness and painful range of motion, normal musculoskeletal findings, and normal strength and stability. Dr. Conix diagnosed plaintiff with chronic lower back pain, obesity, depression, anxiety disorder and high blood pressure. ( Id. at 232) Later diagnoses included spinal stenosis. ( Id. at 242) Plaintiff's medications were Percocet, Oxycontin, Valium and Xanax. ( Id. at 232) Dr. Conix's later

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treatment notes state no changes in plaintiff's status. ( Id. at 235-243)

On August 17, 2010, plaintiff underwent evaluation at Albert Einstein Pain Center. He complained of " lower back [pain] radiating down the left leg to the knee . . . particularly worse with prolonged sitting and standing as well as bending forward." ( Id. at 255) Examination revealed plaintiff had a normal toe and heel walk that favored his left side, normal motor strength, normal light touch upon sensory examination, lumbar spine tenderness, positive straight leg raising on the right, positive Patrick's sign bilaterally, and limited thoraco-lumbar flexion/extension with pain. Plaintiff also had normal affect and intact memory. The examining pain management specialist, Jasmeet Oberoi, M.D. (" Dr. Oberoi" ), diagnosed lumbar spinal stenosis and lumbar radiculopathy. Plaintiff's August 2008 MRI showed multilevel degenerative disc disease and lumbar spondylosis causing significant central and foraminal narrowing, particularly on the left at the L4-5 level and L5-S1 level, and displacement of the left SI exiting nerve root. Dr. Oberoi recommended a treatment plan including epidural steroid injections and medication (Percocet, Motrin, and nortriptyline). Dr. Oberoi also noted a possibility of surgery. Plaintiff refused to consider the injections or surgical options. ( Id. at 255-260)

On August 26, 2010, the Commissioner scheduled a consultative physical examination by Leonard Popowich, D.O., an internist; plaintiff did not attend. ( Id. at 311)

Dr. Conix referred plaintiff to Cindy Feaster, P.T. (" Ms. Feaster" ), a certified work capacity evaluator with Progressive Rehab, LLC, for treatment and evaluation of his spinal stenosis in August 2010. ( Id. at 280) Ms. Feaster prescribed moist heat, electrical stimulation, neuro re-education, and a home exercise program. ( Id. at 279) Ms. Feaster treated plaintiff on five occasions from August 18 to August 27, 2010. ( Id. at 270-74) On September 20, 2010, Ms. Feaster filled out a functional capacity form (checking boxes without comment) indicating that plaintiff occasionally could lift up to ten pounds and carry up to twenty pounds; stand/walk for one hour or less and sit for one-half hour at a time in an eight-hour work day; was limited in his ability to push/pull with his lower extremity; occasionally could kneel and balance; never could bend, stoop, crouch, or climb; and had limitations regarding other physical functions like reaching, handling, seeing, hearing, speaking, tasting, and smelling. ( Id. at 281-82) Ms. Feaster also reported that plaintiff had reduced range of motion in hip flexion, lumbar flexion, and flexion-extension. ( Id. at 284)

Plaintiff received treatment at Quality Community Health Care (" QCHC" ) for his lower back pain.[2] ( Id. at 314-54) QCHC providers prescribed Percocet and Soma for his lower back pain. His medication sheet also includes Gabapentin. ( Id. at 354) The providers diagnosed spinal stenosis, radiculopathy, peripheral neuropathy and hypertension. ( Id. at 321, 330, 332) On September 13, 2010, plaintiff reported relief of his back pain with Percocet. ( Id. at 325) On October 18, 2010, plaintiff requested an increase in his Percocet; the physician discussed the dangers of taking large amounts of narcotics. ( Id. at 327) On January 10, 2011 and February 7, 2011, plaintiff reported that the Percocet helped with his back pain. ( Id. at 335, 339) On March 4, 2011 and April 4, 2011, plaintiff denied having any acute issues. ( Id. at 341, 345)

On September 22, 2010, Paula Vanscoy (" Ms. Vanscoy" ) performed a physical residual

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function capacity (" RFC" ) assessment of plaintiff, finding that plaintiff could occasionally lift and/or carry up to twenty pounds; frequently lift and/or carry up to ten pounds; stand and/or walk for about six hours in an eight-hour work day; was unlimited in his ability to push and/or pull; occasionally could use ramps, climb stairs and ladders, bur should never climb ropes or scaffolds; could frequently balance and stoop; occasionally kneel, crouch and crawl; and had no limitations regarding other physical functions like reaching, handling, fingering and feeling; no visual or communicative limitations; and should avoid concentrated exposure to vibration. These findings were based on plaintiff's allegations, medical records, and treatments received. ( Id. at 305-310)

A lumbar spine MRI on April 26, 2011 showed multilevel degenerative changes, most pronounced at the L5-S1 level where there is severe bilateral neural foraminal stenosis and mild central canal stenosis. ( Id. at 355-56)

2. Mental health treatment

After an intake biopsychosocial assessment on August 16, 2010, a QCHC therapist, Jake Wayne, diagnosed general anxiety disorder (" GAD" ), depression, unresolved grief, and assigned plaintiff a Global Assessment of Functioning (" GAF" ) scale score of 48. Plaintiff's substance abuse history included heroin, alcohol, and cocaine. ( Id. at 358-62) On September 24, 2010, Lewis Merklin, M.D. (" Dr. Merklin" ) examined plaintiff noting plaintiff's past heroin addiction and that plaintiff was still mourning his mother's death three years earlier. Dr. Merklin's examination revealed normal findings, but mild anger, moderate anxiety and irritable mood and moderate depression. Plaintiff had normal attention and concentration and exhibited normal behavior. Dr. Merklin diagnosed GAD and heroin dependence by history. He recommended outpatient therapy for anxiety and depression, and prescribed Xanax. ( Id. at 363-369) The QCHC providers continued to prescribe Xanax through May 2011. ( Id. at 372, 375, 379, 382-84) Plaintiff did not report side effects, nor did the QCHC providers observe any. ( Id. at 377-78, 380, 382) The treatment notes state the following. On October 14, 2010, plaintiff was doing well on his medications and had no complaints or adverse medication side effects. ( Id. at 380) On November 19, 2010, he was doing well on the current regimen and benefitting from physical therapy. ( Id. at 382) On December 16, 2010, he was doing well and had no complaints or adverse medication side effects. ( Id. at 378) On February 10, 2011, he had no complaints or adverse medication side effects, but was concerned about the possibility of being bipolar. The Xanax helped with anxiety and nail biting, and he felt angry during the day. ( Id. at 376) On November 19, 2010, he was doing well on the current regime and should ask about an increase in his dose of Neurontin for relief of his neuropathy. ( Id. at 382) On March 17, 2011, he was doing well on his medications and had no complaints or adverse medication side effects. ( Id. at 374) On April 15, 2011, he was stressed due to " lots of things going on" and had no adverse side effects. ( Id. at 373) On May 12, 2011, he was doing well, again with no adverse side effects. ( Id. at 371)

Mark Hite, Ed.D., a state agency expert, reviewed plaintiff's file in September 2010 and opined on a Psychiatric Review Technique form that he did not have a medically determinable impairment. ( Id. at 292) Dr. Hite explained that plaintiff alleged depression and anxiety, but was not receiving any type of mental health intervention nor was he prescribed any psychotropic drugs. ( Id. at 304) Dr. Hite cited Dr.

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Conix's report of August 18, 2010, stating that plaintiff had intact judgment and normal orientation, mood, and affect, and the evaluation from the Albert Einstein Medical Center of September 16, 2010, indicating that plaintiff had a normal affect and intact memory, and was fully oriented in all spheres. ( Id. at 304)

C. Administrative Hearing

1. Plaintiff's testimony

An administrative hearing was held on May 31, 2011. (D.I. 11 at 44-86) Plaintiff appeared, represented by counsel. Plaintiff completed eleventh grade[3] and can read, write and do basic math. ( Id. at 46-47) He is 5'10" and weighs 217 lbs. He purposefully lost weight in the last five-and-a-half months ago, from 243 Ibs. ( Id. at 62) He was living in a house with his wife and kids until the divorce. ( Id. at 73) He then lived in an apartment with some friends and lived with a family member. In those arrangements, he had to fend for himself, doing some cooking. ( Id. at 74) For the past two months, he has lived at a shelter, the Outley House. Although there is a chore list, he does not have to do any, because of the pain and medications. ( Id. at 72-74)

He has not worked since May 2010. He worked as a cook about 15 years ago and as a mover. He worked as a full-time asbestos worker from 1998-2003, removing asbestos, which bags weight about 50-100 lbs and was on his feet more than half the time. He " worked produce" in 2003, unpacking and putting out the inventory. The heaviest produce weighed 50-100 lbs and plaintiff was on his feet " most of the time." ( Id. at 47-49) When asked if he believed he could work doing anything full-time, plaintiff testified that he could not work because " one wrong turn, one wrong bend and my back is out of order, muscle spasms . . . ." ( Id. at 50) When asked if he could do jobs where he " really wouldn't have to do heavy lifting and even be on [his] feet a lot," he responded, wel]el, right now, no, because they had me basically standing for a half an hour and sitting every 15 minutes." ( Id. at 50-51) When asked if he could " actually only stand out of an eight hour day for a half an hour," plaintiff did not directly respond, stating " as bad as I want to work I can't work." ( Id. at 51-52) When asked if he could work at a job, where he could sit and stand when he wanted, without lifting, plaintiff responded that " no," because he is not comfortable being on the clock and " one little slip one little wrong way [he's] done." ( Id. at 77)

Plaintiff testified he is doing " nothing" right now. He reads, goes to the library, and takes walks for no more than an hour, at least three or four times a week. ( Id. at 53-54, 69) He takes a nap after lunch for 45 minutes to an hour, " because the pain kicks in." ( Id. at 69, 76-77) His day is centered around " taking [his] medicines for blood pressure and nerves. ( Id. at 54) He is going to start getting injections in his back, which is " even more reason for [him] not to be active." ( Id. at 54)

Plaintiff testified that he divorced over his lack of work and that: " [M]y wife for the beginning of the situation when it first happened she thought that It was okay, you're putting the system on. But it's no longer now you're putting the system on, you know, it's like okay, now you can't perform." ( Id. at 52) When questioned further, he explained that for his wife, it was a money issue and she thought, " [he] could go out and [he] could still work because you're looking at an able body on the outside but the inside [he is] messed up." ( Id. at 61) Plaintiff received Worker's Compensation in 1997-1998 and 2003.

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He received a lump sum, but left his " medical open." ( Id. ...

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