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Ribolla v. Berryhill

United States District Court, D. Delaware

March 31, 2017

JEFFREY ALLEN RIBOLLA, Plaintiff,
v.
NANCY A. BERRYHILL[1] Acting Commissioner of Social Security, Defendant.

          Angela Pinto Ross, DOROSHOW, PASQUALE, KRAWITZ & BHAYA, Wilmington, DE. Attorney for Plaintiff.

          David C. Weiss, Acting United States Attorney, and Patricia A. Stewart, Special Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Wilmington, DE. Nora Koch, Acting Regional Chief Counsel, Region III and Rafael Melendez, Assistant Regional Counsel, of the Social Security Administration, Philadelphia, PA. Attorneys for Defendant.

          MEMORANDUM OPINION

          STARK, U.S. District Judge.

         I. INTRODUCTION

         Plaintiff Jeffrey Allen Ribolla ("Ribolla" or "Plaintiff) appeals the decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security ("the Commissioner" or "Defendant"), denying his claim for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-403, 1383(c)(3). The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

         Before the Court are the parties' cross-motions for summary judgment. (D.I. 12, 16) Plaintiff Ribolla seeks remand to the Commissioner for proper consideration of the record and consideration of new evidence. (D.I. 13 at 35) The Commissioner requests that the Court affirm the decision denying Ribolla's claim for SSI. (D.I. 17 at 2, 6-10)

         For the reasons stated below, the Court will deny Plaintiffs motion for summary judgment and grant Defendant's motion.

         II. BACKGROUND

         A. Procedural History

         On January 11, 2011, Ribolla filed a Title XVI application for SSI, alleging disability beginning January 15, 2006. (D.I. 8 ("Transcript" and hereinafter "Tr.") at 22) Ribolla's claim was denied initially on April 7, 2011, and again upon reconsideration on August 16, 2011. (Tr. at 22) Dissatisfied with this determination, Ribolla requested a hearing before the Administrative Law Judge ("ALJ"), pursuant to 20 C.F.R. § 416.1429. (Tr. at 22) The hearing took place on April 24, 2013, at which both Ribolla and an impartial vocational expert ("VE") testified, followed by a supplemental hearing on August 6, 2013, at which a second impartial VE testified. (Tr. at 22) After the hearings, on August 8, 2013, the ALJ issued a decision finding that Ribolla had several severe impairments - including right hip fracture, left shoulder arthroscopy, lumbar degenerative disc disease, obesity, and depression - but was not disabled within the meaning of the Social Security Act and could perform jobs existing in significant numbers in the national economy. (Tr. at 24, 35) Ribolla requested review of this decision on August 19, 2013, which was denied on December 30, 2014, making the ALJ's decision the final decision of the Commissioner. (Tr. at 1, 17)

         On February 27, 2015, Ribolla filed suit in the District of Delaware seeking judicial review of the Commissioner's denial of benefits. (D.I. 1) The parties completed briefing on their cross-motions for summary judgment on November 25, 2015. (D.L 13, 17, 18)

         B. Factual History

         At the time he applied for SSI, Ribolla was 40 years old and defined as a younger individual under 20 C.F.R. § 416.963. (Tr. at 23, 34) He has a high school education and past work experience as a kitchen helper/dishwasher, forklift operator, retail stock clerk, and truck driver/plow operator. (Tr. at 23) In seeking SSI, Ribolla asserts that he is unable to work because of neck, back, and hip pain, mental health problems, and kidney problems. (Tr. at 22-23)

         1. Medical History, Treatment, and Conditions

         Ribolla's medical history is extensive, including evaluations by at least 18 different medical professionals as well as six surgeries. (D.I. 13 at 4-12) Relevant examinations are chronologically summarized below.

         a. Physical Health Evaluations and Treatment

         Ribolla's relevant medical history begins in 2006 when he received a cervical discectomy and fusion C6-7 by Dr. Ronald C. Sabbagh due to neck and back pain. (Tr. at 377) For the next two years, Ribolla received follow-up treatment from Dr. Sabbagh, during which Dr. Sabbagh noted that Ribolla was doing very well and could return to activities as tolerated, including going back to work. (Tr. at 370-75)

         On February 16, 2008, Ribolla received hip surgery by Orthopaedic Specialist Joseph J. Mesa, M.D., to address fracture of the femoral neck on the right side of his hip due to a gunshot wound. (Tr. at 66, 365) Dr. Mesa examined Ribolla in follow-up evaluations on a monthly basis from March 2008 until July 2008, and noted that Ribolla had good range of motion in his knee and ankle, gradually became fully weight bearing, and was ambulating with a cane, but had issues with his hip's muscle weakness and tenderness. (Tr. at 334-38) Ribolla stopped seeing Dr. Mesa after his July 2008 visit and did not return again until May 2009, at which time Dr. Mesa noted that Ribolla still suffered persistent pain and tenderness in his hip, but that he had good rotation and no weakness. (Tr. at 333) Dr. Mesa recommended Ribolla return in three weeks, however Ribolla did not return until March 29, 2010, complaining of right knee pain after suffering a fall. (Tr. at 332-33, 348) An MRI showed Ribolla had a nondisplaced femur fracture with bone marrow edema. (Tr. at 348) A follow-up visit with Dr. Mesa in April 2010 showed decreased tenderness and no significant pain. (Tr. at 332) Dr. Mesa recommended range of motion and strengthening exercises, but opined that there was no need for surgical intervention. (Tr. at 332, 654)

         On January 21, 2010, Ribolla saw Renato Vesga, M.D., of Mid-Atlantic Spine and Pain Physicians for treatment of chronic low back pain and pain in his neck, shoulders, and right leg. (Tr. at 687-89) Dr. Vesga interpreted an MRI of Ribolla's lumbar spine taken on June 16, 2009, finding that it showed mild degenerative disc changes and disc bulge at ¶ 4-L5. (Tr. at 689) Upon physical examination, however, Ribolla's gait was consistently noted as coordinated and smooth within normal limits with normal muscle strength in both upper and lower extremities, and normal muscle tone. (Tr. at 689) On April 15, 2010, upon examination of a shoulder MRI, Dr. Vesga found Ribolla was suffering from supraspinatus tendinitis and minor spurring of the acromial tip, and gave Ribolla a shoulder steroid injection for the pain. (Tr. at 669)

         On August 4, 2010, Ribolla saw Registered Vascular Technologist Kirstin Palumbo, on the referral of Cardiologist Vincent Abbrescia, D.O., for a venous duplex ultrasound to evaluate clinical indications of hypertension and edema. (Tr. at 698-700) In interpreting the ultrasound, Dr. Abbrescia found no evidence of deep venous thrombosis in either lower extremity and mild-to-no reflux at the terminal valves of his saphenofemoral and saphenopopliteal junctions. (Tr. at 700)

         On August 24, 2010, Ribolla was seen by his primary care physician, Lisa Reid, M.D., who noted the presence of plus two edema.[2] (Tr. at 425) By September 14, 2010, Dr. Reid found Ribolla's edema decreased to plus one. (Tr. at 423) On October 20, 2010, Ribolla went to the emergency room at the Bayhealth Medical Center complaining of a fever. (Tr. at 510, 518) Upon physical examination, the doctor noted Ribolla appeared alert and oriented and was showing signs of one-plus pitting lower extremity edema. (Tr. at 514) The next day, Ribolla was admitted to the Milford Memorial Hospital due to pneumonia, and stayed overnight until October 23, 2010. (Tr. at 506) Ribolla returned to his primary care physician, Dr. Reid, on October 26, 2010. (Tr. at 421) Dr. Reid noted Ribolla's recent hospital visit, and recorded that he was doing well and had no edema at that time. (Tr. at 421)

         Ribolla went back to the emergency room on December 19, 2010, complaining of joint pain. (Tr. at 482) Physical examination showed his extremities were normal with adequate strength and full range of motion, but with signs of two plus and one plus edema. '(Tr. at 484) Ribolla's primary diagnosis at this time was localized peripheral edema and he was directed to elevate his legs, use special support stockings, restrict salt in his diet, and avoid long periods of standing. (Tr. at 484, 486)

         One month later, on January 17, 2011, Ribolla had a follow-up appointment with Dr. Abbrescia, at which Dr. Abbrescia noted that Ribolla was suffering from hyperlipidemia, controlled hypertension, stable acute renal failure/chronic kidney disease, elevated liver function testing, and dependent peripheral edema with no evidence of reflux disease. (Tr. at 438, 441-42) Dr. Abbrescia also noted that Ribolla was drinking two to three gallons of heavily sweetened iced tea on a daily basis for about a year, that there was an excessive amount of salt in his diet, and that he had longstanding tobacco abuse. (Tr. at 438-39)

         On March 1 and April 20, 2011, Ribolla was examined by Glen Rowe, D.O., at the Bayhealth Medical Center for neck and shoulder pain. (Tr. at 737, 739) Dr. Rowe's assessment included Bankart lesion in the left shoulder, multiple facet arthropathy status post fusion C5-C6 with incomplete bone fusion representing pseudoarthritis, left shoulder AC joint degenerative disease, and right shoulder tendonitis. (Tr. at 737)

         From March 21, 2011 to January 25, 2012, Ribolla was examined by Steven Manifold, M.D., for left shoulder pain. (Tr. at 831-32, 856-74) On October 13, 2011, after Ribolla failed nonoperative treatment, Dr. Manifold performed a left shoulder arthroscopic subacromonial decompression and biceps tenotomy. (Tr. at 871-72) Ribolla attended post-operative follow-up examinations with Dr. Manifold from October 19, 2011 through January 25, 2012, where Dr. Manifold directed Ribolla to use bracing, a cane, and splint immobilization. (Tr. at 856, 859, 862, 865)

         Ribolla had follow-up visits with his cardiologist, Dr. Abbrescia, on February 2, April 12, and August 15, 2012. (Tr. at 1141, 1151, 1157) At each of these appointments, Dr. Abbrescia reported Ribolla's hyperlipidemia, diet, dependent edema with no evidence of venous reflux disease; and negative workup for nephrotic syndrome, obstructive sleep apnea, controlled hypertension, stable bipolar disorder with anger management issues, stable acute renal failure/chronic kidney disease, continued tobacco abuse, and elevated liver enzymes. (Tr. at 1141, 1151, 1157) However, Dr. Abbrescia also noted Ribolla had a normal gait in these instances, and encouraged him to follow a healthy diet and "stay as active as possible." (Tr. at 1139, 1141, 1151-52) Further, between those visits, on May 22, 2012, Ribolla saw a Certified Physician Assistant, Kate Olson, at his primary care physician's office, who noted Ribolla's peripheral edema and that he was able to walk with a cane. (Tr. at 1193-96) PA Olson directed Ribolla to follow a no-salt diet, elevate his legs, and get support stockings. (Tr. at 1196)

         Through February 2013, Ribolla saw Dr. Jie Zhu and Dr. Obi Onyewu for his chronic neck, shoulder, back, and hip pain. (Tr. at 921-1057) For this pain, Ribolla underwent a Spinal Cord Stimulation/Peripheral Nerve Stimulation implant on February 15, 2013. (Tr. at 921)

         On March 11, 2013, Dr. Mesa referred Ribolla to Dr. James Rubano due to avascular necrosis of Ribolla's left hip and severe pain. (Tr. at 1189) Ribolla requested total left hip replacement, but due to lower extremity deep vein thrombosis in the left posterior tibial vein, Dr. Rubano would not clear him for the surgery. (Tr. at 1188-89, 1191) New evidence shows that, once medically cleared, Dr. Rubano performed the left flip replacement on November 7, 2013. (Tr. at 15-16)

         b. Mental Health Evaluations and Treatment

         On December 28, 2006, Ribolla met with Frederick Kurz, Ph.D., for a neuropsychological evaluation for Vocational Rehabilitation. (Tr. 327-30) Dr. Kurtz concluded that Ribolla functioned within average to borderline levels of intelligence, had limited physical stamina due to chronic back and leg pain, experienced moderate levels of depression, and had limited academic, verbal, and attention skills - ultimately recommending that Ribolla's long-term vocational outcome was guarded to poor. (Tr. at 330-31) Dr. Kurz's diagnostic impressions included mood disorder NOS (not otherwise specified), cognitive disorder NOS, attention deficit disorder, reading and mathematics disorders, hypertension, ulcer, and chronic pain disorder, and a global assessment functioning ("GAF") score of 60, indicating mild to moderate symptoms. (Tr. 330-31)

         Beginning on January 22, 2010, Ribolla was treated by nurse-practitioner Caren Coffy-McCormick. (Tr. at 452) On his initial visit, Ribolla was evaluated as having attention deficit hyperactivity disorder and a GAF score of 55, indicating moderate symptoms. (Tr. at 455) Throughout 2010, Ribolla was evaluated as having bipolar disorder as well as trouble sleeping, depression, mood swings, and anger outbursts due to his chronic pain. (Tr. at 449-51) By June 2, 2011, Nurse Coffy-McCormick's examination showed Ribolla was cooperative and oriented, but had decreased eye contact, reclusiveness, irritability, auditory hallucination but none recently, poor sleep, drowsiness, inadequate concentration, and inhibited recent memory. (Tr. at 804-06) She diagnosed Ribolla as having bipolar II disorder and attention deficit hyperactivity disorder with a GAF score of 50, indicating serious symptoms. (Tr. at 807)

         On March 7, 2011, Ribolla met with licensed psychologist Brian Simon, Psy. D., to determine his level of functional problems for disability determination purposes. (Tr. at 701) Dr. Simon observed that Ribolla was able to remain seated for an extended period during the evaluation without any complaint and that his gait and posture seemed fine, noting that Ribolla did not have any obvious problems ambulating. (Tr. at 704) Dr. Simon concluded that Ribolla suffered from bipolar II disorder and possibly also antisocial personality disorder, problems learning, significant problems getting along with others, and difficulty being able to be employed for extended periods. (Tr. at 705) While Dr. Simon found Ribolla had minor difficulties maintaining concentration, focus, and attention, he ultimately found Ribolla capable of performing simple tasks and avoiding hazards at work. (Tr. at 706) Dr. Simon assessed Ribolla's GAF score was 47, indicating serious symptoms.

         From October 2011 through 2013, Ribolla continued seeing Nurse Coffy-McCormick at McCormick & Associates. (Tr. at 1127) On March 3, 2013, she reported that Ribolla had poor to no ability to: remember work-like procedures; understand, remember, and carry out very short and simple instructions; maintain attention for two-hour segments; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically-based symptoms; perform at a consistent pace without an unreasonable number of rest periods; ask simple questions; get along with coworkers or peers; deal with normal work stress; or interact with the general public. (Tr. at 1129-30) Ultimately, however, Nurse Coffy-McCormick diagnosed Ribolla with bipolar disorder and personality disorder NOS with a GAF score of 65, indicating only mild symptoms. (Tr. at 1127)

         Ribolla met with Nurse Coffy-McCormick again on April 3, 2013, at which time she noted that Ribolla had minimal response to treatment, was still angry all the time, had difficulty concentrating, and continued to suffer with depression, sleep difficulty, and irritability. (Tr. at 1058-59) She also noted that Ribolla's short and long term memory were intact, there were no apparent signs of hallucinations or other indicators of psychotic process, and his cognitive functioning and fund of knowledge were intact and age appropriate. (Tr. At 1059).

         2. Medical ...


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