United States District Court, D. Delaware
WILFREDO LOPEZ PADUA, MIDDLETOWN, DELAWARE; PRO SE PLAINTIFF.
ANDREWS, U.S. DISTRICT JUDGE
Koch, Acting Regional Chief Counsel Social Security
Administration, and Patricia Stewart, Assistant Regional
Counsel, Office of the General Counsel, Philadelphia,
Pennsylvania; David C. Weiss, United States Attorney for the
District of Delaware, Wilmington, Delaware; Heather
Benderson, Special Assistant United States Attorney, Office
of the General Counsel, Philadelphia, Pennsylvania, Attorneys
Wilfredo Lopez Padua, who appears pro se, appeals
the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security, denying his application for
disability insurance benefits under Title II of the Social
Security Act. See 42 U.S.C. §§ 401-434.
Jurisdiction exists pursuant to 42 U.S.C. § 405(g).
Presently pending before the Court are cross motions for
summary judgment filed by Lopez and the Commissioner. (D.I.
12, 13). Briefing is complete.
protectively filed for disability insurance benefits on July
13, 2013, alleging disability as of March 5, 2012. (D.I. 9-2
at 21). His application was initially denied on October 2,
2013, and upon reconsideration on December 27, 2013.
(Id.). Two administrative hearings were held before
an Administrative Law Judge, the first on November 14, 2014,
and the second on April 15, 2015. (Id. at 36-71).
Testimony was provided by Lopez and a vocational expert
during the second hearing. The ALJ issued a decision on May
6, 2015, finding that Lopez was not disabled. (Id.
at 21 -31). He sought review by the Appeals Council,
submitted additional evidence, and his request was denied on
September 9, 2016, making the ALJ's decision the final
decision of the Commissioner. (Id. at 2-4). On
November 4, 2016, Lopez filed the instant action seeking
review of the final decision. (D.I. 1).
was 34 years old when he testified at the April 2015 hearing.
(D.I. 9-2 at 41). He is 5'10" and weighs 300 pounds.
(Id.). Lopez is married and lives with his wife and
three children. (Id.). He completed the
9th grade and later completed his general
equivalency degree. (Id. at 42). Spanish is his
primary language, but he speaks, reads, and writes "a
little bit" of English. (Id.). He has
vocational training in construction and electricity.
last worked in 2010 as a crew leader for a cleaning company,
and currently receives welfare benefits and food stamps.
(Id. at 43). He stopped working after he sustained a
work related injury. (Id. at 43-44). Lopez
unsuccessfully sought light work that was not so painful on
his back and legs. (Id. at 44). Lopez explained that
he is unable to work due to herniated discs, pinched nerves,
and arthritis in his back. (Id. at 44-45). When
Lopez makes a sudden movement or when he carries something,
the pain becomes severe to the extent that injections were
required. (Id. at 45). Lifting anything more than
ten pounds causes pain. (Id.).
is left handed. (Id. at 46). He has a pinched nerve
in the left shoulder area, his hands swell, and the joints in
his hands bother him. (Id. at 45). Lopez has been
told this could be arthritis and that he suffers from
fibromyalgia. (Id. at 45-46). The pain affects his
ability to use his arms or hands. (Id. at 46). Lopez
explained that the left shoulder pain interferes with his
ability to reach and he cannot freely move his shoulder.
(Id. at 48-49). He testified that he can no longer
pick up tools or use tools like he used to because his hands
go numb and sometimes they "get kind of locked in
place." (Id. at 59). Lopez's legs are very
weak and he trips a lot. (Id. at 46). He has pain,
arthritis in the left knee, joint pain all over, and radiant
pain from his back. (Id.).
rates his pain as seven (on a scale of one to ten), and
testified that it sometimes increases to ten. (Id.).
He takes medication for the pain: Ibuprofen daily, a muscle
relaxer at night, and Percocet as needed during the day.
(Id. at 47). Lopez takes Percocet for one or two
weeks when the pain is severe. (Id.). Lopez has
headaches and frequent lightheadedness due to the pinched
nerves. (Id.). He does not have a psychological
impairment that interferes with his ability to work.
can walk no more than half a mile. (Id. at 48). When
he walks further than that, his back "acts up", the
pain increases, his legs get weak, and he starts to trip.
(Id.). He can sit for one-half hour. (Id.).
When he sits longer than that his legs go numb and his back
hurts. (Id.). He can stand for ten or fifteen
minutes and then has to sit down. (Id.) He is able
to lift ten or fifteen pounds. (Id.) He can climb
five to ten steps. (Id. at 49).
tries to sleep during the day because he cannot sleep at
night. (Id. at 49). He does not do any household
chores or yard work. (Id. at 49-50). He has no
hobbies and he reads. (Id. at 50). Lopez exercises
from time to time when he is not in a lot of pain.
(Id. at 50-51).
Plaintiff's Medical History, Condition, and
sustained a work related back injury in February 2012. (D.I.
9-8 at 2). A few days after he was injured, Lopez presented
to the emergency room upon his employer's request for an
assessment due to his continued complaints of pain.
(Id.). An x-ray of the lumbar spine showed no
abnormality. (Id. at 6, 50). Lopez was diagnosed
with lumbar back strain and shoulder strain. (Id. at
3). Following the injury, Lopez received chiropractic
treatment and physical therapy. (Id. at 32-45). An
MRI taken on April 19, 2012, indicated well maintained disc
height with slight desiccation of the cervical discs from
C2/3 through C5/6, slight narrowing with desiccation of the
L5/S1 disc with a central and left paracentral disc
herniation impinging the thecal sac without stenosis.
(Id. at 46, 52-53).
July 2013, Lopez presented to Westside Health to have
disability forms filled out. (Id. at 17). The
records indicate his last clinic visit was one year prior to
that (i.e., 2012). (Id.) Nurse practitioner
Paula Watson completed the form which indicates Lopez's
conditions of desiccation of intervertebral disc, disc bulge,
and lumbosacral disc herniation were expected to last six to
twelve months and cause pain in the neck and lower back, all
of which causes limitations in activities including an
inability to sit, stand, or walk for prolonged periods. (D.I.
9-8 at 29-30; D.I. 9-9 at 28-29, 38-39). A follow-up was
scheduled for four weeks or sooner as needed. (D.I. 9-9 at
September 25, 2013, Lopez underwent a consultative
examination by Irwin L. Lifrak, M.D. (D.I. 9-8 at 63-69).
Upon examination Lopez had a slight limp and could not
heel/toe walk, but he retained normal grip strength and
normal muscle tone and had normal sensation. (Id. at
67). Dr. Lifrak's diagnostic impression was degenerative
joint disease and possible disc damage that would account for
Lopez's complaints of pain. (Id. at 68). Dr.
Lifrak opined that within an 8-hour day, while taking usual
and customary breaks and without the aid of an assistive
device, Lopez is able to perform activities that may require
him to walk either indoors or outdoors. (Id. at 68).
He further opined that Lopez could climb stairs, sit and
stand for 6 hours in an 8-hour day, and lift as much as 10
pounds. (Id. at 69).
Lopez was seen at Westside Health on September 27, 2013, his
condition had not changed. (D.I. 9-9 at 22). Lopez was taking
Ibuprofen for pain with very little relief. (Id.).
October 2, 2013, John Shane, M.D., a state agency physician,
reviewed the evidence and concluded that Lopez could perform
a range of medium exertional work. (D.I. 9-3 at 2-11). On
December 26, 2013, Vinod K. Kataria, M.D., also a state
agency physician, reviewed the evidence and Dr. ...