United States District Court, D. Delaware
REPORT AND RECOMMENDATION
SHERRY R. FALLON, Magistrate Judge.
Plaintiff James Lee Fletcher, Jr. ("Fletcher" or "Plaintiff") filed this action against defendant Carolyn W. Colvin, Commissioner of the Social Security Administration (the "Commissioner" or "Defendant") on July 18, 2012. (D.I. 1) Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a decision on November 16, 2010, by Administrative Law Judge ("All") Barbara Powell, denying his claims for disability benefits ("DIB") and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act, respectively.
Presently before the court are cross-motions for summary judgment filed by Plaintiff (D.I. 11) and the Commissioner (D.I. 14). Plaintiff asks the court to enter an award of benefits or, alternatively, to remand this case for further administrative proceedings. (D.I. 12 at 2) The Commissioner requests that the court affirm the ALJ's decision. (D.I. 15 at 18) For the reasons set forth below, I recommend that the court DENY Plaintiff's motion for summary judgment and GRANT the Commissioner's cross-motion for summary judgment.
A. Procedural History
On January 29, 2009, Plaintiff filed concurrent claims for DIB and SSI benefits alleging that he has been disabled since November 1, 2006. (D.I. 8 at 136-49) Plaintiff's claims for benefits were denied initially on April 23, 2009 ( id. at 62-63), and on reconsideration on August 25, 2009 ( id. at 64-65). On October 5, 2009, Plaintiff filed a written request for a hearing. (Id. at 81-82)
On August 16, 2010, the ALJ held an administrative hearing. The Plaintiff and a vocational expert ("VE") appeared and testified. (Id. at 39-61) On November 16, 2010, the ALJ found that Plaintiff was not disabled. (Id. at 22-32) The Appeals Council denied Plaintiff's request for review on May 23, 2012, rendering the ALJ's decision a final act of the Commissioner. (Id. at 1-5)
B. Factual Background
The undisputed findings of the ALJ are that Plaintiff has not engaged in substantial gainful activity since November 1, 2006, the alleged onset date. (Id. at 24) Plaintiff has severe impairments consisting of cervical and lumbar degenerative disc disease. (Id. )
1. Medical History
On March 1, 2006, Plaintiff saw Jay Freid, M.D., for lower back pain allegedly caused by his work-related injury, which occurred in February of 2006. (Id. at 256) Dr. Freid noted that Plaintiff suffered from lower back pain for many years, but experienced more pain since lifting a bag of dog food. (Id. at 41, 231, 256) Plaintiff stated that the Vicodin given to him in the emergency room alleviated the pain and that he was still working at the grocery store. (Id. at 256) Dr. Freid observed that Plaintiff was sitting with no obvious physical discomfort and was in no apparent distress. (Id. at 257) Dr. Freid noted that Plaintiff's gait was slow and he had decreased range of motion in his lumbar spine. (Id. ) Plaintiff's straight leg test was negative and he had no pain in his hip or knee with movement. (Id. ) Dr. Freid found that although Plaintiff was tender over his lumbar paraspinals, his lumbar spine, cervical paraspinals, and cervical spine were not tender. (Id. ) Dr. Freid further noted that Plaintiff had good cervical range of motion and normal strength in his lower extremities. (Id. ) Dr. Freid prescribed physical therapy, changed Plaintiff's prescription from Motrin to Naprosyn, and instructed Plaintiff to take Vicodin only on occasion. (Id. )
On March 15, 2006, Plaintiff returned to Dr. Freid complaining of persistent back pain. (Id. at 258) Plaintiff stated that the physical therapy did not help and that the Vicodin made him feel nauseous. (Id. ) Plaintiff continued to work at the grocery store, but stated that it was "difficult at times." (Id. )
On March 21, 2006, Plaintiff underwent an MRI on his lumbar spine. (Id. at 241) John Coll, D.O., interpreted the MRI and found marked degenerative disc changes accompanied by posterior disc protrusion centrally and towards the right. (Id. ) Dr. Coll also reported disc material abutting the right S1 nerve root, mild degenerative disc changes, and a posterior disc bulge at L4-5. (Id. )
On March 24, 2006, Dr. Freid noted that Plaintiff continued to experience pain, but tried to function at work and was able to go to the gym. (Id. at 255) Dr. Freid found that Plaintiff had some tenderness of his lumbar paraspinals and decreased sensation in his right thigh, but the rest of his examination was normal. (Id. ) Dr. Freid recommended that Plaintiff should resume physical therapy. (Id. ) He also discussed the benefits of job modification, and prescribed Plaintiff Ultram. (Id. )
On March 30, 2006, Plaintiff began seeing Jerome Groll, M.D., as his primary care physician. (Id., at 231) At his initial visit, Plaintiff complained of neck pain after bumping his head into another person as he bent over to pick something up off of the floor. (Id. ) He also described the injury to his back that occurred while lifting a bag of dog food at work. (Id. ) Dr. Groll noted that Plaintiff had a decreased range of motion in the neck, tenderness of the left trapezius, decreased range of motion in the back with pain, and lumbar straightening. (Id. )
On April 27, 2006, Plaintiff saw Dr. Groll for a follow up appointment to address his back and neck pain. (Id. at 294) Plaintiff's pain was described as moderate and range of motion of the neck was normal in all directions. (Id. ) Dr. Groll increased the dosage of Plaintiff's prescription for Percocet. (Id. ) On June 6, 2006, Plaintiff advised Dr. Groll that his lower back pain had improved on the higher dosage of Percocet, however, he still had pain radiating down his side. (Id. at 293) Dr. Groll found that Plaintiff exhibited vertebral spinal tenderness in the lumbar spinal region as well as tenderness of the SI joint on the right side. (Id. ) Plaintiff's motor systems and reflexes were normal, although he could only flex his lumbar spine until his fingers touched his knees. (Id. ) Dr. Groll started Plaintiff on Neurotin and renewed Plaintiff's prescription for Percocet. (Id. )
On July 18, 2006, Plaintiff returned to Dr. Groll and reported that he was doing much better on the new medications. (Id. at 291) Dr. Groll performed a physical examination of Plaintiff and concluded that Plaintiff had no vertebral spinal tenderness or paraspinal spasm and that Plaintiff's range of motion improved allowing him to reach his fingers to approximately six inches above the ground. (Id. at 293)
Plaintiff saw Dr. Groll on August 30, 2006, and complained of constant, shooting pain after pushing too hard on a fifty-pound bag of dog food at work two days earlier. (Id. at 290) Dr. Groll noted that Plaintiff was tender on the lower sacrum. (Id. ) Plaintiff's straight leg raising test as well as extensions of the lower back caused back pain. (Id. ) Dr. Groll advised Plaintiff to return to work in one week. (Id. )
Plaintiff saw Dr. Groll for similar complaints of pain in September and October of 2006. (Id. at 286-289) Dr. Groll increased Plaintiffs Percocet dosage and prescribed Lyrica. (Id. at 288) Shortly thereafter, on November 1, 2006, Plaintiff quit his job due to chronic back pain. (Id. at 41)
On November 2, 2006, Plaintiff began treatment with Coastal Pain Care Physicians ("Coastal") for pain management. (Id. at 254) He was prescribed Oxycodone, Soma, Celebrex, and Lidoderm patches. (Id. ) On November 14, 2006, Plaintiff had an additional MRI performed on his lumbar spine, which revealed a small disc herniation with contact of the right 51 nerve root, and mild degenerative disc disease at L4-5. (Id. at 238) On December 12, 2006, Plaintiff described his pain as radiating lower back pain and stated that he had been in constant pain for the last two days. (Id. at 252) Plaintiff reported that he could not sleep because of his lower back pain. (Id. )
On January 11, 2007, a Coastal physician diagnosed Plaintiff with chronic neck and lumbar pain and prescribed him oxycodone. (Id. at 250-51) On February 8, 2007, Plaintiff complained that his pain medication was not working and that the oxycodone was not providing relief from his chronic pain. (Id. at 249) On March 8, 2007, Plaintiff again stated that the pain medication was not helping and that his pain had increased over the last couple of days. (Id. at 248) The Coastal physician diagnosed Plaintiff with chronic lumbar pain. (Id. ) On May 3, 2007, Plaintiff returned to Coastal complaining of lower back pain radiating to the lower part of each of his legs. (Id. at 247) On May 16, 2007, Plaintiff stated that he was able to sleep more comfortably and that the pain medication was working better. (Id. at 245) On May 31, 2007, Plaintiff reported that his pain was a nine out of ten, and he was prescribed methadone and oxycodone. (Id. at 242) Plaintiff subsequently ended his treatment with Coastal and returned to Dr. Groll because he was unhappy with the pain management physician. (Id. at 284)
On June 12, 2007, Plaintiff reported to Dr. Groll that his pain was "not too bad with the medication" and that his neck pain was intermittent. (Id. ) Dr. Groll found that Plaintiff's range of motion in his neck was limited in all directions, and noted vertebral spine tenderness in the lumbar region and a positive straight leg raising test. (Id. ) On July 11, 2007, Plaintiff stated that his lower back pain was "pretty good, " rating it as a four on a scale of one to ten. (Id. at 282) On August 9, 2007, Plaintiff stated that "it took hours to work out the pain in the morning." (Id. at 280) Dr. Groll found that Plaintiff's range of motion in his neck was limited in all directions, and noted vertebral spine tenderness in the cervical spine midline. (Id. ) Plaintiff's straight leg raising test was negative bilaterally. (Id. )
On September 1, 2007, Plaintiff went to the Beebe Medical Center emergency room complaining of back pain after playing the game horseshoes. (Id. at 223) Plaintiff was given pain medication and was discharged after the medication began to relieve his pain. (Id. at 224-25) The emergency room report indicates that Plaintiff "appear[ed] comfortable, " and lists a final diagnosis of sciatica. (Id at 225)
Plaintiff saw Dr. Groll in February, April, and August of 2007 for pain medication refills. (Id. at 265, 267, 271) On October 10, 2007, Plaintiff saw Dr. Groll for medication management. (Id. at 275) Plaintiff rated his pain as nine out of ten without medication, and six out of ten with medication. (Id. ) Plaintiff's straight leg raising test was negative bilaterally, but caused back pain. (Id. ) Dr. Groll noted that Plaintiff's range of motion flexion of the lower back was markedly limited. (Id. ) Plaintiff had no vertebral spine tenderness, no paraspinal spasm, and "no tenderness on his SI joints." (Id. )
On January 2, 2008, Plaintiff stated that his pain was worse in the morning but that he felt the pain all day long. (Id. at 273) Plaintiff's straight leg raising test was negative bilaterally, and he had no vertebral spine tenderness in his lower back or neck. (Id. ) On February 21, 2008, Dr. Groll noted vertebral spine tenderness and paraspinal spasm in Plaintiff's lower back. (Id. at 271) Plaintiff had lumbar straightening, and his range of motion flexion of the lower back was markedly limited. (Id. ) On April 28, 2008, Dr. Groll found that Plaintiff had back pain with straight leg raising, limited side bending, vertebral spine tenderness and paraspinal spasm in his lower back, and lumbar straightening. (Id. at 267) On August 5, 2008, Dr. Groll noted that Plaintiff had lumbar straightening, vertebral spinal tenderness in the lower back, and straight leg raising caused back pain. (Id. at 265)
In November 2008, Plaintiff unilaterally increased his dosage of oxycodone from one to six pills a day. (Id. at 263) As a result, he ran out of his medication early. (Id. ) Dr. Groll examined Plaintiff on November 20, 2008 and found that Plaintiff had lumbar straightening and vertebral spine tenderness in his lower back. (Id. ) Dr. Groll noted that Plaintiff "wince[d] in pain" when attempting to lie down, and when lying flat, he kept his hips at a 45-degree angle and his knees bent. (Id. )
On March 4, 2009, Dr. Groll reported that Plaintiff had lumbar straightening, and winced in pain when transitioning to lie down. (Id. at 324) Plaintiff had vertebral spinal tenderness in the lower back and his straight leg raising test was negative bilaterally. (Id. ) On April 20, 2009, Dr. Groll found that Plaintiff had vertebral spinal tenderness in the lower back, lumbar straightening, and his straight leg raising test was positive. (Id. at 326) Plaintiff's range of motion of lower back was limited ...