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Franks v. Berryhill

United States District Court, D. Delaware

June 23, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

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

          David C. Weiss, Acting United States Attorney, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF DELAWARE, Wilmington, Delaware; Patricia A. Stewart, Special Assistant United States Attorney and Nora Koch, Acting Regional Chief Counsel, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania, Attorneys for Defendant.


          BURKE, U.S. Magistrate Judge.

         Plaintiff Michael I. Franks ("Franks" or "Plaintiff) appeals from the decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security ("Commissioner" or "Defendant"), denying his claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-33.[1] The Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

         Presently pending before the Court are motions for summary judgment filed by Franks and the Commissioner. (D.I. 13, 20) For the reasons set forth below, the Court recommends that Franks' motion for summary judgment be GRANTED, that the Commissioner's cross-motion for summary judgment be DENIED, and that the Commissioner is DIRECTED to award benefits to Plaintiff.

         I. BACKGROUND

         A. Procedural History

         Franks filed an application for Title II and Title XVI Social Security benefits on March 30, 2009, alleging disability beginning on January 1, 2007. (D.I. 19 (hereinafter "Tr.") at 36, 139-44)[2] Following a hearing before an Administrative Law Judge ("ALJ"), on March 21, 2011, he was awarded a closed period of disability benefits under Title XVI for the period from March 30, 2009 through February 28, 2011. (Id. at 36-46) The ALJ found that Franks' disability ended on March 1, 2011. (Id. at 46) Franks did not appeal this decision.

         Franks then filed a second application for SSI on April 30, 2011, alleging disability beginning on that date. (Id. at 20, 148-68) His application was denied initially on October 10, 2011, and was again denied on reconsideration on May 1, 2012. (Id. at 49, 93-97, 860-64) On July 24, 2012, Franks next filed a request for a hearing. (Id. at 98) The hearing took place on November 13, 2013 before a different ALJ (referred to hereafter as "the ALJ"). (Id. at 910) Franks was represented by counsel at the hearing, which was held via video teleconferencing. (Mat 910-50)

         On January 31, 2014, the ALJ issued a decision (the "ALJ's decision") denying Franks' claim for SSI. (Id. at 20-29) On February 21, 2014, Franks requested review of the ALJ's decision by the Appeals Council. (Id. at 14) The Appeals Council denied Franks' request for review on April 17, 2015. (Id. at 7-10) Thus, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.955, 404.981; Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         On May 12, 2015, Franks filed a Complaint in this Court seeking judicial review of the ALJ's decision. (D.I. 2) On February 8, 2016, Franks filed his motion for summary judgment. (D.I. 13) The Commissioner opposed Franks' motion and filed a cross-motion for summary judgment on March 9, 2016. (D.I. 20)

         On January 6, 2017, Chief Judge Leonard P. Stark referred this case to the Court to hear and resolve all pretrial matters, up to and including the resolution of case dispositive motions. (D.I. 23) And on January 27, 2017, the parties filed a joint notice of consent to the Court's jurisdiction to conduct all proceedings in this case, including trial, the entry of final judgment and all post-trial proceedings. (D.I. 25)

         B. Factual Background

         Plaintiff Franks was 42 years old at the time of the alleged onset of his disability in April 2011, and 45 years old at the time of the ALJ's decision. (See, e.g., Tr. at 50) He lives with his friend, her two sons, and a dog. (Id. at 926, 937) He also has a daughter and a son. (Id. at 933-34) He has a 9th grade education, and has past work experience as, inter alia, a mover, a cook, and a custodian. (Id. at 169, 186)

         1. Plaintiff s Medical History, Treatment, and Condition

         Franks alleges that he has been disabled and unable to work since April 30, 2011 due largely to back problems. (Id. at 92-93) The ALJ found that Franks suffers from degenerative disc disease, chronic pain syndrome, and radicular syndrome. (Id. at 22) Franks is also obese, standing at approximately 69 inches tall, with his weight ranging from 190 and 257 pounds between March 2011 and November 2013. (Id., see also Id. at 775, 924)

         a. Medical evidence prior to Franks' alleged onset date

         Franks has experienced problems with his back since at least August 8, 2008, when he slipped and fell in a store, causing pain in his right hip, foot, and lower back. (Id. at 249, 266) Beginning in August 2008, he treated with Dr. James Fusco of Baynard Chiropractic Association for his pain. (Id. at 264-80, 339-47) Dr. Fusco's assessment was "myofascitis[, ] hip strain/sprain[] and/or thigh[, ] and lumbar spine strain/sprain[.]" (See, e.g., Id. at 266) Franks also started receiving treatment from Dr. Peter Bandera, a rehabilitation specialist, beginning in August 2008. (Id. at 324-38) Dr. Bandera's initial examination identified spasm and muscle guarding in the low back, a limited range of motion, and "prepatellar tenderness with trace effusion" in the right knee; his impression also was that Franks had lumbar syndrome with "strain/sprain/radiculopathy." (Id. at 337) At the end of this period, Dr. Bandera noted that Franks was "trying to get a neurosurgery appointment[, ]" noting "bilateral radiation of the low back pain." (Id. at 324) He stated that Franks had "antalgic gait" and "tightness in the low back with pain on facet loading." (Id.)

         In October 2009, Mr. Franks began neurosurgical consultation with Dr. Bikash Bose, complaining of "severe lower back pain and pain radiating down his right leg[.]" (Id. at 372) At the initial consultation, Dr. Bose advised Franks "to get an MRI of the lumbar spine, standing lumbar spine x-rays with flexion/extension views, and a bone scan with SPECT imaging of the lumbar spine." (Id. at 373) A November 2009 MRI of Franks' lumbar spine demonstrated, inter alia, "progressive mild degenerative disc disease" and "[b]road based disc protrusion with bilateral mild neuroforamen narrowing [narrowing of the nerve passageways that branch off the vertebrae] and bilateral facet arthritis" at the L5-Sl, L4-5, and L3-4 disc levels. (Id. at 377-78) A bone scan taken on November 17, 2009 showed a likelihood of a "marked degree of facet arthrosis [or deterioration of joint cartilage]." (Id. at 379) On November 30, 2009, Dr. Bose recommended surgery based on his evaluation of the diagnostic evidence, noting that Franks could not "walk more than 1/4 -1/2 mile maximum" or "sit for more than 1/2-hour at a time[, ]" and "ha[d] to keep changing positions because of the pain." (Id. at 371) Thereafter, in January 2010, Franks underwent lumbar fusion and decompression surgery with Dr. Bose for "[l]umbar radiculopathy secondary to lumbar disk disease[.]" (Id. at 355-61)

         After the surgery, Franks continued his treatment with Dr. Bose and Dr. Bandera. (Id. at 367-81, 399-403, 407-14, 429-35) As of December 2, 2010, Franks was still experiencing pain at the lower end of the surgical incision, and Dr. Bose "gave him a refill of the Percocet and a prescription for physical therapy." (Id. at 407) Dr. Bandera noted muscle spasms and guarding on December 8, 2010. (Id. at 429)

         In a medical statement dated January 18, 2011, Dr. Bose identified the following symptoms that Franks was experiencing on examination: (1) neuro-anatomic distribution of pain; (2) limitation of motion of the spine; (3) positive straight leg raising test; (4) the need to change position more than once every two hours; and (5) chronic nonradicular pain and weakness. (Id. at 428, 464) He indicated that Franks could stand for 15 minutes at a time, sit for 60 minutes at a time, work four to six hours per day (the precise number of hours was "unknown because of pain"), lift ten pounds on an occasional basis, not lift any weight on a frequent basis, and never bend or stoop. (Id.) Dr. Bose concluded that Franks "will not be able to keep a 40 [hour] job on a consistent basis or he will have flare ups [and] miss work probably quite consistently." (Id.)

         On February 11, 2011, Dr. Bose noted that Franks was "still complaining of lower back stiffness and pain" that moved from the left to the right side of his back. (Id. at 463) Dr. Bose recommended an MRI, CT scan, and bone scan to evaluate further. (Id.) An MRI taken on February 23, 2011 revealed a "[s]mall disc protrusion" at the L3-4 level. (Id. at 466) As of March 14, 2011, Franks still had lower back pain and "his knees ha[d] given out a couple of times." (Id. at 465) Based on these symptoms and the findings of the MRI, Dr. Bose recommended epidural injections. (Id.)

         On March 17, 2011, during an initial visit with Dr. Domingo C. Singson, Franks was diagnosed with chronic back pain, chronic obstructive pulmonary disease, chronic anxiety, depression, and obesity. (Id. at 815)

         b. Medical evidence subsequent to Franks' alleged onset date[3](1) 2011

         On May 11, 2011 and June 8, 2011, Franks received lumbar epidural injections with Dr. Pramod Yadhati, a pain management specialist. (Id. at 494, 496) On June 30, 2011, he again saw Dr. Bose, complaining of inability to sleep and persistent pain. (Id. at 470) Dr. Bose noted that Franks hadn't responded to the epidural injections, and recommended a provocative discography "to see if [the] ¶ 3-4 [level was] the pain generator[, ]" and referred Franks back to Dr. Yadhati. (Id.) Franks was discharged from Dr. Yadhati's office as of August 2, 2011, however, due to multiple missed appointments, non-compliance with medical management, and improper use of prescribed medication. (Mat 492)

         On July 6, 2011, Franks submitted a Function Report to the Social Security Administration, in which he indicated, inter alia, that: (1) he slept poorly because of his back pain; (2) he needed assistance with daily activities such as dressing, getting out of the bathtub, and shaving; (3) he could not stand long enough to prepare his own meals; (4) his back pain prevented him from performing household chores; and (5) he could only walk half a block before needing to rest and could lift no more than five pounds. (Id. at 200-07)

         On August 15, 2011, Franks visited the Christiana Care Health Services emergency room complaining of back pain after a fall when he ran out of Percocet. (Id. at 541) During the emergency room visit, an x-ray of the lumbar spine revealed, inter alia, increased narrowing of the L3-4 interspace since 2008. (Id. at 549)

         From August 2011 through November 2011, Franks participated in physical therapy at Dynamic Physical Therapy. (Id. at 551-66, 574-98) During that time, Franks reported both some progress and some setbacks regarding his condition. For example, in some visits in September 2011, Franks reported "tightness comes and goes, but is greatly relieved with aquatic [therapy, ]" (id. at 591-97), or that he was having a "good day today[, ]" (id. at 553). But on October 4, 2011, he "wishe[d] to defer exercises .. . because of pain levels [being at ¶ 8 on a scale of 10, ]" (id. at 584). At his final visit on November 14, 2011, Franks' therapist reported the objective findings that Franks "ha[d] difficulty falling asleep, ha[d] difficulty finding a comfortable position and [was] awakened by pain." (Id. at 574)

         On October 6, 2011, Dr. M.H. Borek, a state agency physician, completed a Physical Residual Functional Capacity ("RFC") Assessment based on a review of Franks' medical evidence of record. Dr. Borek opined that Franks could: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) for at least two hours in an eight-hour workday; sit (with normal breaks) for about six hours in an eight-hour workday; and had no limits on his ability to push and/or pull. (Id. at 568) Dr. Borek concluded that Franks could perform work that never required him to climb ladders, ropes, or scaffolds, but occasionally required him to climb ramps or stairs, balancing, stooping, kneeling, crouching, or crawling. (Id. at 570) Dr. Borek further concluded that Franks' "alleged inability to perform even sed[entary] physical activity [was] partially credible, " especially given the impact of obesity, but not fully credible "given that current exams do not reveal significant] motor loss [and Franks] can amb[ulate without an] assistive] device[.]" (Id. at 573) Dr. Borek noted that Franks' maximum RFC was for sedentary work. (Id.)[4]

         On October 19, 2011, Franks saw Dr. Chukwuma Obi Onyewu, a pain specialist, for an initial consultation. (Id. at 619-23, 646-51) At that consultation, Franks reported back pain, weakness, myofascial pain, spasms, stiffness, leg pain, and joint pain. (Id. at 620) An EMG showed electrodiagnostic abnormalities consistent with bilateral SI radicuopathy, but a bone scan showed no abnormal uptake activity in the lumber spine region. (Id. at 621) Dr. Onyewu ordered a discogram (including a CT scan), which was conducted on November 23, 2011, to further evaluate Franks' pain. (Id. at 616, 642-43) The discogram revealed a posterior grade 4 annular tear (a form of spinal degeneration) at ¶ 3-4, a grade 2 annular tear at ¶ 4-5 and a grade 1 annular tear at ¶ 2-3, as well as concordant 10/10 low back pain. (Id. at 605, 616) On December 28, 2011, Dr. Onyewu prescribed a back brace, an epidural steroid injection, and Percocet, Neurontin, and MS Contin for Franks' pain. (Id. at 605)

         (2) 2012

         On January 10, 2012, Dr. Onyewu performed a lumbar disc posterior annular ablation. (Id. at 624-25, 652-55) Franks subsequently stopped treating with Dr. Onyewu, however, because of "the extremely long waiting time and lack of personalized attention[.]" (Id. at 834)

         Beginning on February 2, 2012, Dr. Bruce Grossinger, a neurologist, began treating Franks. (Id.) In a letter written by Dr. Grossinger in February 2012, he noted that Franks had muscle weakness, diminished sensation in the legs and thighs, tenderness overlying the lumbar facets, that Franks had difficulty sitting and standing and had to lie down for minutes or hours. (Id. at 834-35) Dr. Grossinger noted that Dr. Singson had concluded that Franks was "unable to work[.]" (Id. at 834) And ultimately Dr. Grossinger himself found that Franks had "failed surgical low back syndrome[, ]" an "internal disc disruption at ¶ 3-4[, ]" and, as a result, Franks was "totally and permanently disabled from gainful employment" as he "cannot reasonably work even part time sedentary jobs." (Id. at 835)

         On March 8, 2012, Dr. Grossinger performed an electromyogram ("EMG") and nerve conduction study ("NCS") on Franks, which indicated "moderate right SI radiculopathy" but no acute or chronic denervation. (Id. at 673-74) On three occasions from May to July 2012, Dr. Grossinger gave Franks lumbar epidural steroid injections. (Id. at 825-33)

         On May 27, 2012, Franks received emergency care at St. Francis Hospital for pain in his back, which had been exacerbated while doing laundry. (Id. at 850) He indicated that the pain was similar to his prior chronic back pain, and was prescribed medication, including Percocet. (Id.; see also Id. at 854)

         (3) 2013

         On March 26, 2013, Franks reported that his back pain "can be a 10 out of 10 in nature." (Id. at 667) On that date, Dr. Grossinger gave Franks a lumbar spinal trigger point injection and renewed Franks' pain medications. (Id. at 667-68) On April 23, 2013, Dr. Grossinger performed the same procedure again. (Id. at 823-24) That same day, Dr. Grossinger noted that Franks had "gotten a letter from Dr. Singson stating that the Grossinger Neuropain Specialists will be the only doctors prescribing pain medicines for Mr. Franks[.]" (Id. at 823)[5]

         At a follow-up appointment on August 20, 2013, Dr. Grossinger noted that Franks "continue[d] to have severe complaints of pain and tenderness in the lumbar spine" and "pain and tenderness along the coccyx [or tailbone] area[, ]" and that he walked with an antalgic gait. (Id. at 820) Dr. Grossinger concluded that Franks suffered "from lumbar radiculopathy, lumbar facet syndrome, coccydynia and chronic pain syndrome [, ]" and proceeded to give Franks a musculoskeletal caudal epidural injection for the pain. (Id.)

         On September 24, 2013, during another follow-up appointment, Dr. Grossinger noted that Franks "use[d] a back brace and ambulate[d] with great difficulty secondary to pain[, ]" and that Franks had "a severely antalgic gait" and "pain and tenderness in the lumbar spine with pain radiating down the legs bilaterally." (Id. at 818) Dr. Grossinger concluded that Franks suffered from "[c]luneal nerve root neuritis; lumbar radiculopathy; lumbar facet syndrome; and chronic pain syndrome." (Id.) On that date, Franks underwent "non-narcotic interventional pain management in the form of ultrasound guided cluneal nerve blocks." (Id.)

         On October 22, 2013, Dr. Grossinger completed a Lumber Spine Medical Source Statement; the conclusions therein, according to Dr. Grossinger, were supported by an EMG, MRI and clinical findings on exam. (Id. at 669-72) He indicated the following objective signs of Franks' injury: (1) reduced range of motion; (2) positive seated straight leg raising test; (3) abnormal gait (4) reflex loss; (5) tenderness; (6) swelling; (7) muscle spasm; (8) muscle weakness; and (9) impaired sleep. (Id. at 670) Dr. Grossinger concluded that Franks could sit or stand/walk for less than two hours in an eight-hour work day, and that he would need five-minute periods of walking around every five minutes of an eight-hour work day. (Id. at 670-71) He also indicated that Franks could never lift more than ten pounds, nor twist, stoop, crouch/squat, climb ladders, or climb stairs. (Id. at 671) Further, Dr. Grossinger opined that Franks was likely to be "off task" for 15 percent of a typical work day, that Franks' impairments were likely to produce "good days" and "bad days" and that Franks would likely be absent from work more than four days per month. (Id. at 672) Dr. Grossinger ended by finding that, due to his pain, Franks was incapable of even "low stress" work. (Id.)

         Dr. Grossinger expanded on his opinions in an Office Note following an appointment with Franks in late October 2013. (Id. at 816-17) He there concluded that Franks had "a host of neurological conditions including, but not limited to, osteoarthritis, lumbar radiculopathy, lumbar facet syndrome and chronic pain syndrome, with EMG-proven right SI radiculopathy." (Id. at 816) He noted that Franks continued to have "low back pain with sciatica into both legs, right greater than left." (Id.) Franks' condition, according to Dr. Grossinger, caused "difficulty sitting and standing." (Id.) Dr. Grossinger stated that "[o]n a bad day, [Franks] will lie recumbent or in a supine position ... [and] [i]f he goes grocery shopping he will have to use multiple small bags." (Id.) Dr. Grossinger repeated his opinion that Franks "could not reasonably labor in any capacity, even [in] a part-time sedentary position, purely on the basis of his physical medical conditions." (Id. at. 817)

         2.The Administrative Hearing

         At the administrative hearing on November 13, 2013, the ALJ heard the testimony of Franks and Christina Beatty-Cody ("Beatty-Cody"), an impartial Vocational Expert ("VE"). (Tr. at 910-50)

         a. Plaintiffs Testimony

         At the hearing, Franks sat leaning to the side, and the ALJ told him to "feel free to stand and sit" as he needed to. (Id. at 936, 938) At one point, Franks did stand up for a minute. (Id. at 942)

         Upon questioning by the ALJ, Franks explained that his back-related health problems began due to the 2008 "slip and fall" that "made [his] back even worse." (Id. at 930) Franks testified that he had stopped working in the late 2000s, and had certainly not worked at all since March 3, 2011. (Id. at 923, 925, 928) He also testified that he had tried to find work more recently since his fall, but his leg "shut[] down" on him, and he could not work because he was in so much pain in his leg and back. (Id. at 923-24)

         When questioned by the ALJ about his major health problems, Franks explained that it was his back that had initially caused him to stop working, and that his legs had also gone numb. (Id. at 928) He testified that he "couldn't move" until going to Christiana Hospital and meeting with Dr. Bose, and that he had been disabled since undergoing "fusion" surgery for his lower back pain in 2010. (Id. at 928-29)[6]

         The ALJ next questioned Franks about "the totality of what it is that" had been keeping him from being able to work since his injury. (Id. at 931) Franks testified that his back bothered him and that he had "strong pains" in his legs. (Id.) He testified that he had trained and was used to "lifting and doing heavy work" of which he was no longer capable. (Id.)

         In terms of his daily activities, Franks testified that he could not drive; in order to ride in a car, he had to lean his seat "fully back where it's comfortable" for him. (Id. at 932)[7] He stated that his friend drove him to all of his doctor's appointments, or anywhere else he had to go. (Id.) When the ALJ asked him whether he could take the bus, Franks testified that he could, but "it's just not happening because [his] legs get numb, and they start hurting, and [his] back starts hurting real bad." (Id.) Franks also testified that he lives in a house with stairs, and can do light cooking and dusting, but has to "lay down when [his] back and [] legs bother[] [him]." (Id. at 933) He added that his daughter and son come to visit him, and when they do, he lays on the couch or is in his room. (Id. at 933-34) Franks testified that his daughter and son help him as much as possible, "but other than that, there is nothing" when they leave at the end of the day. (Id.) Franks stated that he goes to church every other week, and infrequently goes grocery shopping. (Id. at 934, 939)

         With regard to medication, Franks confirmed that as of November 7, 2013, he took cyclobenzaprine, trazodone, lorazepam, Percocet, albuterol, Xanax, and gabapentin, all of which were prescribed by Dr. Grossinger. (Id. at 934-35) He testified that he did not suffer from any significant side effects of his medication. (Id. at 935) Franks further testified that Dr. Grossinger gives him shots and advises him to "just lay down and get plenty of rest, " to stay off of his legs and back, and sometimes to put himself in the fetal position. (Id. at 939)

         When the ALJ asked for more details about Franks' chronic pain, Franks testified that the pain was in his lower back, and "goes down to [his] right leg, into [his] knee, into [his] ankle, and then it switches over into [his] left, and it stays there." (Id. at 936) He testified that the 2010 fusion surgery performed by Dr. Bose did not provide any relief. (Id.) Questioned by his attorney regarding the frequency of his leg pain, Franks testified that "pain comes a lot of times, often. It stays there[, ]" although sometimes it "eases up." (Id. at 937) He explained that his back bothers him constantly, specifying that he felt back pain "whenever the pain hits or it's cold outside" or when he "tr[ies] to do something." (Id. at 938) Franks further testified that he could only walk one block before having to stop, rest, or sit down, and that he could not stand for more than 10-15 minutes due to the pain in his legs. (Id.) He stated that he could sit for about 10 to 30 minutes. (Id.) He also testified that his pain could be distracting. (Id. at 939)

         Franks explained that he did not feel he could work a full-time job at this point, because his back and right leg would not allow him to do so. (Id. at 939-40) He cited poor sleep and the fact that he has good and bad days, ...

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