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Bogia v. Colvin

United States District Court, D. Delaware

March 25, 2015

VICTOR BOGIA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

Gary Linarducci, Esquire, LINARDUCCI & BUTLER, P.A., New Castle, DE Attorney for Plaintiff.

Charles M. Oberly, III, United States Attorney, and Heather Benderson, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE. Nora Koch, Acting Regional Chief Counsel, and Lauren D. Chait, Assistant Regional Counsel, SOCIAL SECURITY ADMINISTRATION-REGION III, OFFICE OF GENERAL COUNSEL, Philadelphia, PA. Attorneys for Defendant.


LEONARD P. STARK, District Judge.


Plaintiff Victor Bogia ("Bogia" or "Plaintiff') appeals from a decision of Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration ("Commissioner" or "Defendant"), denying his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-33. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

Presently pending before the Court are cross-motions for summary judgment filed by Plaintiff and the Commissioner. (D.I. 17; D.I. 19) Plaintiff asks the Court to reverse and remand the Commissioner's decision. (D.I. 18 at 19) The Commissioner requests that the Court affirm her decision denying Plaintiffs application for benefits. (D.I. 20 at 14) For the reasons set forth below, the Court will deny Plaintiffs motion for summary judgment and grant Defendant's motion for summary judgment.


A. Procedural History

Plaintiff filed his claim for DIB and SSI on December 4, 2006, initially alleging disability beginning June 1, 2004. (D.I. 12 (hereinafter, collectively with D.I. 13, "Tr.") at 113) His application for Title II and Title XVI benefits were denied at the pre-hearing levels, and his Title XVI claim was denied upon reconsideration. ( Id. ) He appeared before an Administrative Law Judge ("ALJ") on February 23, 2009; on July 27, 2009, the ALJ issued a decision unfavorable to Plaintiff. ( Id. at 30-37) Plaintiff filed a subsequent claim for SSI on November 25, 2009, and it was determined that he became disabled beginning November 1, 2009. ( Id. at 126) The Appeals Council granted Plaintiffs request for review on March 16, 2011. ( Id. at 125) The Appeals Council affirmed the finding of disability beginning November 1, 2009, and vacated the ALJ's hearing decision and remanded for the resolution of certain issues. ( Id. at 125) Following remand, the ALJ held a hearing on February 13, 2012. ( Id. at 18) The ALJ issued a decision unfavorable to Plaintiff on May 3, 2012. ( Id. at 30) On September 6, 2013, the Appeals Council denied Plaintiffs request for review. ( Id. at 2-5) Thus, the May 3, 2012 decision by the ALJ became the final decision of the Commissioner. See 20 CFR §§ 404.955, 404.981; Sims v. Apfel, 530 U.S. 103, 107 (2000).

On November 1, 2013, Plaintiff filed a complaint seeking judicial review of the ALJ's May 3, 2012 decision. (D.I. 1) Subsequently, on September 24, 2014, Plaintiff moved for summary judgment. (D.I. 17) On October 9, 2014, the Commissioner filed a cross-motion for summary judgment. (D.I. 19)

B. Factual Background

1. Plaintiff's Medical History, Treatment, and Conditions

Bogia was forty-seven when he first applied for DIB and SSI on December 4, 2006. (Tr. at 210) He completed high school and spent four years studying electrical trades. ( Id. at 83) He lived with his father and brother at the time of the second hearing. ( Id. at 56) He worked as an electrician between 1980 and 2004 for various companies. ( Id. ) Bogia alleges that his disability arises from degenerative disc disease with radiculopathy causing back problems, depression, and learning disorders.[1] ( Id. at 21) His injury originally arose in 2004 after he was assisting his father in remodeling his basement, and worsened over time. (D.1. 18 at 2)

Bogia was treated by his general practitioner, Kent Sallee, M.D. (Tr. at 608-30), and several other physicians. These other physicians included: (1) Magdy Boulos, M.D., a neurosurgeon (Tr. at 607, 631-33); (2) Kennedy Yalamanchili, M.D., a neurosurgeon (Tr. at 534-38); (3) multiple providers at Harmonious Mind Psychiatric & Counseling Services ("HMPCS") (Tr. at 492-503); (4) Gary Gerace, Ph.D, a psychologist (Tr. at 699-728); (5) William Medford, Jr., M.D., an otolaryngologist (Tr. at 805); (6) Jie Zhu, M.D., a pain management physician (Tr. at 527-38, 545-91, 761-804, 924-74); and (7) Peter Witherell, M.D., an anaesthesiologist (Tr. at 517-22).

Bogia stopped working in June 2004 due to migraine headaches. (Tr. at 56-57) After Bogia underwent sinus surgery, his headaches went away. ( Id. ) He injured his back in a non-work related accident while digging out a basement at his father's house. ( Id. at 15) Bogia felt a pop in his back, which turned out to be the rupturing of his disc at L5-S1. ( Id. at 55, 414, 469) Bogia did not seek treatment for some time due to a lack of insurance and financial means. ( Id. at 58, 529) Bogia's physicians first attempted to address his symptoms with cortisone shots, epidural injections, steroid blocks, physical therapy, and medications. ( Id. at 369, 381, 410, 416, 423, 451, 529) These treatments did not give relief from Bogia's symptoms, however, and his treating physicians found that his symptoms were worsening over time. ( Id. at 469)

Bogia underwent an operation, which included a lumbar hemilanectomy, on June 24, 2008, to alleviate his symptoms. ( Id. at 469-70) Following the surgery, the pain, which extended across the spine into both his thighs and calfs, and stopping in the region of his heels, did not subside. ( Id. at 457, 522, 529, 594, 615, 622) Bogia told his physicians that the pain worsened after the surgery. ( Id. at 492) An MRI on October 14, 2008 showed enhancing scar tissue surrounding the S-1 nerve roots, but no definite spinal cord or nerve root impingement. ( Id. at 506-07) Testing on November 20, 2008 showed that in spite of the pain, Bogia's motor function was normal. ( Id. at 520-21) Dr. Witherell noted that the pain was "of unclear etiology." An examination by Dr. Kennedy Yalamanchili on March 11, 2009, for a second opinion, found that surgical treatment "d[id] not appear to be clearly indicated" and "the chance of surgery benefitting [sic] [Bogia] may be more moderate." ( Id. at 526)

A later examination by Dr. Yalamanchili, on September 9, 2009, found that surgery might be effective for his pain. ( Id. at 634) Bogia was first prescribed a cane by his physician, and then eventually a wheel walker, on July 17, 2009, and finally a walker with a seat, on October 1, 2009. ( Id. at 24, 544) A functional capacity evaluation on February 16, 2010, found that Bogia's "movement patterns were inconsistent throughout the testing process and did not correlate with objective findings;" and "Bogia presented with characteristic[s] associated with Inappropriate Illness Behavior and overt symptom exaggeration appears to be present." ( Id. at 921) The physical therapist who performed the evaluation determined that the results were invalid due to submaximal effort, but also opined that Bogia not be placed in a work environment due to safety issues. ( Id. at 923) The physical therapist noted that the main issue with Bogia at that time appeared to be insufficient pain management. ( Id. )

2. The ALJ's Initial Findings and Appeals Council Ruling

In the ALJ's initial decision, she rejected Bogia's claims for SSI and DIB. The ALJ found that Bogia met the insured status requirements through December 31, 2008 and had not engaged in substantial gainful activity since June 1, 2004. ( Id. at 115) The ALJ found that Bogia had the following severe physical impairments: degenerative disc disease with L5 radiculopathy and osteoarthritis. ( Id. )[2] The ALJ found that no impairments met the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( Id. at 116) The ALJ further found that Bogia:

has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently, stand or walk for 6 hours and sit for 6 hours in an 8-hour workday. The claimant can frequently push and pull except that he can perform tasks requiring only occasional pushing and pulling with his left lower extremity. Mr. Bogia can kneel, crawl, crouch, stoop, balance and climb stairs occasionally, but he cannot climb ladders, scaffolds or ropes. The claimant can perform work activities that allow him to avoid exposure to unprotected heights, dangerous machinery, extreme heat/cold, vibration, and excessive dust, smoke and gases. The claimant can perform routine tasks. He can understand instructions and although he may have some difficulty maintaining concentration for a full 8 hours a day and 40 hours per week he had the ability to maintain concentration and persist in the completion of tasks when he puts forth adequate effort.

( Id. at 118)

The ALJ explained that Bogia reported chronic and severe back pain, and that medicine was not relieving this pain. ( Id. at 118-19) The ALJ found that Bogia's "description of the limitations in his daily activities is out of proportion to the objective findings on examinations and the conservative nature of the treatment he has required since the back surgery." ( Id. at 119) The ALJ further observed that Bogia's statement that walking helped with stiffness in his back was inconsistent ...

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