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Thomas v. Astrue

United States District Court, D. Delaware

July 21, 2015

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


GREGORY M. SLEET, District Judge.


The plaintiff, Russell Thomas ("Thomas"), filed this action under 42 U.S.C. ยง 405(g) seeking review of a final decision by the defendant, Michael J. Astrue, the former Commissioner of Social Security ("the Commissioner"), [1] which denied Thomas' claim for Disability Insurance Benefits ("DIB"). (D.I. 2 at 1.) Thomas applied for DIB on April 17, 2007, claiming disability beginning January 1, 2006. (D.I. 11 at 110, 115.) The Social Security Administration ("SSA") denied his application both initially and on reconsideration. ( Id. at 67-71, 73-77.) Thomas subsequently requested a hearing before an Administrative Law Judge ("ALJ"). ( Id. at 80.) SSA granted the request and a hearing was held on February 4, 2009. (Id. at 6-25.) Thomas and vocational expert ("VE") Tony Melanson appeared and testified at the hearing. (Id. ) On March 27, 2009, ALJ Melvin D. Benitz issued a decision finding that Thomas was not disabled within the meaning of the Social Security Act because he retained the residual functional capacity ("RFC") to perform work that exists in significant numbers in the national economy. ( Id. at 11-17, 24.) Thomas filed a request to have the matter reviewed by the Appeals Council but the request was denied. ( Id. at 1-3, 5.) Thomas then filed this action on June 22, 2011. (D.I. 2 at 1.) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 13, 15.) For the reasons that follow, the court will: (1) deny Thomas' motion for summary judgment and (2) grant the Commissioner's motion for summary judgment.


Thomas was born on February 26, 1959. (D.I. 11 at 23, 110.) He possesses an eighth grade education. ( Id. at 30, 47.) Thomas worked as a concrete mason-a job that entails heavy, skilled labor for more than twenty years. ( Id. 30, 46, 157-58.) On March 29, 2002, Thomas was involved in a work related accident.[2] ( Id. at 31, 270.) As a result, he sustained injuries to his left knee, left shoulder, neck, back, and both hands. ( Id. at 18-23, 31, 58-60.) He has not returned to work since the accident. ( Id. 18, 30-31.)

Thomas first filed an application for DIB on October 4, 2002. ( Id. at 57.) SSA denied his application. ( Id. ) Thomas applied again for DIB on April 28, 2003. ( Id. ) Again, SSA denied his application. ( Id. ) After requesting and receiving a hearing before an ALT, Thomas obtained a partially favorable decision on October 29, 2004, which deemed him disabled and entitled to benefits from his alleged onset date of March 29, 2002 through November 3, 2003. ( Id. at 53-62.) His DIB payments expired on January 31, 2004 and were offset by the amount of workers' compensation benefits he received concurrently. ( Id. at 31-32, 43-45, 62.)

On April 17, 2007, Thomas applied again for DIB, alleging disability beginning January 1, 2006. ( Id. at 110-16.) In support of his application, Thomas submitted medical records documenting several persistent medical issues, including impairments of the left knee, left shoulder, neck, back, and hands, as well as Crohn's disease, migraine headaches, and depression. ( Id. at 183-281.)

A. Medical Records

1. Left Knee Impairment

On March 11, 2003, Thomas underwent an arthroscopic partial medial meniscectomy on his left knee. ( Id. at 32, 58.) Peter Bandera, M.D. managed Thomas' post-operative treatment. ( Id. at 204-18.) In several clinical examination reports from 2003 to 2008, Dr. Bandera noted tenderness in Thomas' left knee. ( Id. at 15, 205-11, 214, 216.) He also reported that Thomas' knee would give out when subjected to taxing activities like climbing stairs, and that Thomas was unable to assume a mid-squat position. ( Id. at 15, 209, 268, 270.) Dr. Bandera administered therapeutic injections on multiple occasions in 2006 and 2007 to mitigate Thomas' pain and improve his ambulation. ( Id. at 15, 210, 273.) Those injections were at least partially successful. ( Id. at 204, 210, 273.) Though pain, tenderness, and trace effusion persisted through January 2008, Thomas' course of therapy and medication enabled him to resume "basic activities of daily living." ( Id. at 266-70, 272-73.)

By April 2008, Dr. Bandera noted that the swelling and tenderness in Thomas' left knee had reduced. ( Id. at 15, 267.) Dr. Bandera did not mention Thomas' left knee during his September 8, 2008 re-evaluation. ( Id. at 266.) In an RFC questionnaire dated December 11, 2008, Dr. Bandera suggested that Thomas could twist, stoop, squat, and climb ladders and stairs "occasionally, " defined as between 6% and 33% of an eight-hour workday, yet he also indicated that Thomas would neither be able to sit nor stand for more than two hours total on a given day. ( Id. at 283, 285.)

On February 4, 2009, Thomas testified that, due to lingering knee issues, he has difficulty sitting in one spot for long periods of time and that his knee occasionally gives out when he walks. ( Id. at 41.) He estimated the furthest he can walk without stopping is five blocks. ( Id. ) Thomas also testified, however, that he has no difficulty standing in place, that he is able to drive his car on a daily basis, and that his knee "feels pretty good." ( Id. at 39, 41, 47.)

2. Left Shoulder, Neck and Back Impairments

On April 21, 2003, Lewis Sharps, M.D. performed an arthroscopic acromioplasty procedure to repair a frank tear of the rotator cuff in Thomas' left shoulder-an injury he sustained as a result of his March 2002 work accident. ( Id. at 12, 31, 185, 270.) Dr. Bandera managed Thomas' shoulder, neck, and back treatment after surgery. ( Id. at 204-18, 266-81.)

In June and July 2003, Dr. Bandera examined Thomas and noted continuing cycles of pain in his left shoulder, neck and back. ( Id. at 211, 214, 216.) He also observed tightness, guarding, spasms, a reduction of strength, and a limited range of motion. ( Id. ) In response, Dr. Bandera prescribed muscle relaxants, narcotic pain medication, and physical therapy. ( Id. at 34-35, 211, 214, 216.) Additionally, he ordered an MRI on Thomas' spine. ( Id. ) The MRI revealed active and chronic degenerative changes in multiple areas of the spine, as well as increasing lumbar facet arthropathy, which, according to Dr. Bandera's clinical note of July 30, 2003, was consistent with Thomas' pain pattern. ( Id. at 12, 186, 211.) Thomas has not undergone a more recent imaging study of his shoulder, back, or neck. ( Id. at 20.)

Dr. Bandera examined Thomas again on January 11, 2006, noting that Thomas complained of increased pain relative to his neck, back, left knee and left shoulder. ( Id. at 12, 210.) He also observed recurring spasms, guarding and joint tenderness. ( Id. ) Dr. Bandera administered a local cortisone injection to mitigate Thomas' increased shoulder pain. ( Id. ) But despite temporary relief, Thomas' pain, weakness, and difficulty using his left arm to push and pull persisted throughout 2006. ( Id. at 12-13, 206-09.)

After another examination on March 14, 2007, Dr. Bandera suggested that Thomas might be able to increase his functional activities with medication support and "potentially execute lighter activity." ( Id. at 13, 205.) But Thomas reported continuing symptoms, despite his medication regimen and an additional therapeutic injection in April 2007. ( Id. at 13, 204.) On August 13, 2007, Dr. Bandera summarized Thomas' prior treatment and concluded that Thomas had reached the "plateau phase of care." ( Id. at 276.) He cataloged Thomas' ongoing symptoms-including pain, diminished strength, and a limited range of motion in his shoulder, neck and back-and determined that Thomas continued to suffer from degenerative disc disease, cervical spondylosis, and lumbar facet arthopathy. ( Id. at 13, 276.) Dr. Bandera's subsequent clinical notes in 2007 and 2008 documented the same symptoms and diagnoses. ( Id. at 266-70, 272-73.) He discussed the possibility of additional neck and back surgery with Thomas in November 2007, but Thomas-did not undergo another procedure due to more pressing gastrointestinal problems. ( Id. at 33, 270.)

In an RFC questionnaire dated December 11, 2008, Dr. Bandera indicated that Thomas would be unable to lift or carry significant weight in a competitive work situation and that he would only occasionally be able to look down, look up, turn his head right or left, or hold his head in a steady position. ( Id. at 284.) Dr. Bandera also characterized Thomas' musculoskeletal prognosis as "poor, " and predicted his impairments could be expected to last at least twelve months. ( Id. at 282.)

On February 4, 2009, Thomas testified that he continued to suffer pain in his neck, back, and shoulder, and that his back pain prevents him from standing and sitting for long periods of time, forcing him to spend most of the day lying down. ( Id. at 37-42.)

3. Wrist and Hand Impairments

In August 2007, Dr. Bandera noted that Thomas complained of pain in his left and right wrists. ( Id. at 20, 276.) Both wrists were stabilized in cock-up splints. ( Id. ) In November and December 2007, Dr. Bandera observed that Thomas was having problems with material handling of the left arm. ( Id. at 270.) Dr. Bandera later opined, in his December 2008 RFC questionnaire, that Thomas would be completely unable to grasp, handle, or reach for objects with his left arm or hand during the workday, and that he would only be able to do so with his right arm or hand 40% of the time. ( Id. at 285.) Dr. Bandera did not, however, conduct an imaging study of Thomas' hand or wrist impairments. ( Id. at 20.)

Thomas testified on February 4, 2009, that he still has pain and weakness in his hands and that he has difficulty lifting and gripping objects. ( Id. at 35, 40-41.)

4. Crohn's Disease

In addition to medical conditions arising from Ms work related injury, Thomas has a long history of Crohn's disease. ( Id. at 13-14, 183, 193, 261.) Prior to 2005, Thomas' gastroenterologist, Gaurav Jain, M.D., characterized his Crohn's disease as "stable" and "quiescent." ( Id. at 261.) He had gone several years without a flare-up and his symptoms were controllable with steady doses of Imuran and Asacol. ( Id. at 14, 261.) When Thomas' previous application for DIB was reviewed in October 2004, ALJ Antrobus made note of Thomas' Crohn's disease but did not deem it a severe impairment for purposes of DIB eligibility. ( Id. at 58-62.)

On March 10, 2005, Thomas underwent an elective outpatient colonoscopy. ( Id. at 220.) Biopsies of specimens obtained during the colonoscopy revealed idiopathic inflammatory bowel disease, Crohn's disease, and mild active chronic colitis. ( Id. at 14, 220, 227-30.) The colonoscopy also revealed internal and external hemorrhoids, and a friable, irregular mass in the sigmoid colon, which, according to Dr. Jain, had grown considerably in the two years since Thomas' previous colonoscopy. ( Id. at 14, 220-21.) In October and November 2005, Dr. Jain ordered a pelvic CT scan and another colonoscopy, which revealed a loss of vascular markings, numerous polyps, and a narrowed or possibly collapsed section of the colon, indicating a need for surgical resection. ( Id. at 14, 193, 239.)

On January 23, 2006, Charles Hobbs, M.D. performed an abdominal colectomy with ileosigmoid anastomosis, a procedure to remove a portion of the colon. ( Id. at 14, 193-94.) Dr. Hobbs noted that Thomas tolerated the procedure well and "had a fairly good postoperative course." ( Id. at 193.) He was discharged on January 28, 2006. ( Id. at 14, 193.) After a followup examination on February 7, 2006, Dr. Hobbs reported that Thomas had been doing well at home with increased activity and less pain. ( Id. at 250.)

On February 18, 2006, however, Thomas was readmitted to the hospital with fever, abdominal pain, nausea, loss of appetite, and a significant amount of weight loss. ( Id. at 14, 202.) A CT scan revealed inflammation around Thomas' pelvis, but x-ray, ultrasound, and lab reports were normal. ( Id. at 14, 202, 253-54.) Following treatment, his appetite and bowel function returned. ( Id. at 14, 202.) He was subsequently discharged on February 24, 2006. ( Id. ) Dr. Hobbs conducted a follow-up examination of Thomas on March 14, 2006 and no irregularities were noted. ( Id. at 14, 249.)

Nearly one year later, on May 3, 2007, Thomas underwent a sigmoidoscopy, which was prompted by rectal pain and bleeding. ( Id. at 14, 224.) The procedure revealed a moderately inflamed anastomosis with erythema and a few small ulcerations. ( Id. ) Dr. Jain prescribed Cipro. ( Id. ) Biopsies taken during the procedure revealed acute and chronic non-specific inflammation of the colonic and small bowel mucosa, as well as capillary congestion of the colonic mucosa, with no evidence of colitis. ( Id. at 14, 224-26.)

On December 12, 2008, Dr. Jain completed a Crohn's and colitis RFC questionnaire, detailing Thomas' ongoing symptoms and prognosis. ( Id. at 286-90.) Dr. Jain noted that Thomas continued to suffer from chronic diarrhea, fistulas, anal fissures, rectal pressure, and fatigue. ( Id. at 286.) He also characterized Thomas' prognosis as "stable" and responded that Thomas' impairments have lasted or can be expected to last at least twelve months. ( Id. at 287.)

On February 4, 2009, Thomas testified that his Crohn's symptoms remain severe and that they have intensified since his surgery. ( Id. at 36.) He stated that he continues to suffer from fatigue, frequent episodes of diarrhea, hemorrhoids and fissures, and that his symptoms have forced him to wear an adult diaper at night. ( Id. at 37.) Thomas also testified that, due to his Crohn's disease, he occasionally soils himself during the day. ( Id. at 36.)

5. Migraine Headaches

On June 24, 2004, Thomas visited Tabassum Salam, M.D. who treated him for back and rectal pain. ( Id. at 15, 190.) After examining Thomas, Dr. Salam noted that Thomas' migraine headaches were well controlled with Imitrex and that his current medication regimen need not be changed. ( Id. at 190.)

On August 13, 2007, Dr. Bandera noted that Thomas suffered from post-concussive syndrome with headaches three or four times per week. ( Id. 15, 276.) Dr. Bandera did not mention post-concussive syndrome or migraine headaches in any of his prior or subsequent clinical notes. ( Id. at 204-11, 214, 216, 266-70, 272-73.) Additionally, Thomas did not allege a migraine headache-related impairment ...

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