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Padua v. Berryhill

United States District Court, D. Delaware

March 5, 2018

WILFREDO LOPEZ PADUA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          WILFREDO LOPEZ PADUA, MIDDLETOWN, DELAWARE; PRO SE PLAINTIFF.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE

         Nora 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 for Defendant.

         Plaintiff, 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.

         I. BACKGROUND

         A. Procedural History

         Lopez 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.[1] (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.[2] (Id. at 2-4). On November 4, 2016, Lopez filed the instant action seeking review of the final decision. (D.I. 1).

         B. Plaintiff's Testimony

         Lopez 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. (Id.).

         Lopez 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.).

         Lopez 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.).

         Lopez 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. (Id.)

         Lopez 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).

         Lopez 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).

         C. Plaintiff's Medical History, Condition, and Treatment

         Lopez 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).

         In late 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 23).

         On 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).

         When 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.).

         On 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. ...


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