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Vaughn v. Berryhill

United States District Court, D. Delaware

August 21, 2018

GLENN EL WOOD VAUGHN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon, Judge

         I. INTRODUCTION

         Plaintiff Glenn Elwood Vaughn ("Vaughn") filed this action on May 18, 2016 against defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (the "Commissioner"). Vaughn seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's March 17, 2016 final decision denying Vaughn's claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-134. The court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

         Currently before the court are Vaughn's and the Commissioner's cross-motions for summary judgment. (D.I. 13; D.I. 19) Vaughn asks the court to enter an award of benefits or, alternatively, to remand his case for further administrative proceedings. (D.I. 14 at 21-22) The Commissioner requests the court affirm the Administrative Law Judge's ("ALJ") decision. (D.I. 15 at 16) For the reasons set forth below, the court recommends denying Vaughn's motion for summary judgment (D.I. 13), and granting the Commissioner's cross-motion for summary judgment (D.I. 19).

         II. BACKGROUND

         A. Procedural History

         Vaughn filed an application for DIB and SSI on February 16, 2012, claiming a disability onset date of December 1, 2010. (Tr. at 18) Vaughn subsequently amended his alleged onset date of disability to July 5, 2012. (Id. at 17) His claim was initially denied on July 24, 2012, and denied again after reconsideration on February 28, 2013. (Id. at 125-29, 136-40) Vaughn then timely requested a hearing, which occurred on June 18, 2014. (Id. at 141, 36-56) On July 21, 2014, Administrative Law Judge Jack Penca issued an unfavorable decision, finding that Vaughn was not disabled under the Act because he retained the residual functional capacity ("RFC") to perform work that existed in significant numbers in the national economy. (Id. at 14-35) On August 8, 2014, Vaughn requested a review of the ALJ's decision. (Id. at 12-13) On March 17, 2016, the Appeals Council denied Vaughn's request for review, making the ALJ's decision the final decision of the Commissioner. (Id. at 1-4) On May 18, 2016, Vaughn brought a civil action in this court challenging the ALJ's decision. (D.I. 2) On February 3, 2017, Vaughn filed a motion for summary judgment, and on June 5, 2017, the Commissioner filed a cross-motion for summary judgment. (D.I. 13; D.I. 19)

         B. Medical History

         Vaughn was born on July 5, 1962, and was fifty years old on his alleged amended onset date. (Tr. at 17, 41) Vaughn graduated high school and completed two years of trade school, and has worked in the past as an automobile mechanic. (Id. at 42, 210) Vaughn stopped working in October 2009 after he was terminated by his employer. (Id. at 209)

         1. Physical Health

         Prior to his amended onset date, Vaughn had a history of lower back pain, hypertension, anxiety disorder, bipolar disorder, and alcohol dependence. In December 2010, Vaughn fell and injured his right shoulder and has experienced pain and right shoulder symptoms since then. (Id. at 24) On January 9, 2011, Vaughn was admitted to Christiana Hospital for care for bilateral upper extremity numbness and tingling. (Id. at 270-80) He was unable to lift his right arm. (Id. at 279) An x-ray of Vaughn's cervical spine showed mild multilevel degenerative changes of the lower cervical spine including disc space narrowing and osteophytosis. (Id. at 343) Vaughn regularly saw his primary care physicians at Brandywine Medical for his impairments in 2012, and was regularly prescribed medications such as Xanax and Oxycodone. (Id. at 529-50)

         On June 12, 2012, in a medical certification, Bernard Schneider, P.A., Vaughn's primary care physician, stated that due to major depressive disorder, anxiety disorder, bipolar disorder, rotator cuff injury, and cervical degenerative disc disease, Vaughn was unable to work for six to twelve months. (Id. at 484)

         On August 20, 2012, Vaughn presented to Meadow Wood Hospital with complaints of right shoulder pain. (Id. at 575) On physical examination, Vaughn's upper and lower extremity strength was "5/5" and his deep tendon reflexes were "2." (Id. at 576) Vaughn did not have any loss of sensation. (Id.) The examining physician noted that Vaughn was being scheduled for surgery for his chronic right shoulder pain. (Id.)

         An MRI of Vaughn's right shoulder, done on September 27, 2012, revealed a moderate grade undersurface partial tearing in the distal supraspinatus tendon near the greater tuberosity attachment site and severe diffuse atrophy of the teres minor muscle. (Id. at 521-22)

         On October 4, 2012, Mr. Schneider recommended updated diagnostic studies due to ongoing neck and shoulder pain. (Id. at 540) Vaughn had an MRI of the cervical spine on October 12, 2012, which showed the following results:

Degenerative disc desiccation throughout the cervical spine; a central disc protrusion at ¶ 2-3 impinging upon the ventral aspect of the thecal sac; at ¶ 3-4, a broad disc osteophyte complex most prominent centrally impinging on the ventral aspect of the thecal sac with moderate to severe degenerative narrowing of the neural foramina; a broad disc osteophyte complex impinges on the ventral aspect of the thecal sac at ¶ 4-5 with impingement of the ventral aspect of the spinal cord without cord compression. Severe degenerative narrowing of the neuroforamina; unconvertebral joint hypertrophy at ¶ 4-5; annular fissure at ¶ 4-5; at ¶ 5-6, a broad disc osteophyte complex most prominent on the right impinges on the ventral aspect of the thecal sac with moderate narrowing of the thecal sac with relatively severe degenerative narrowing of the neural foramina at ¶ 5-6 with unconvertebral joint hypertrophy; and at ¶ 6-7, broad based disc osteophyte complexes impinges on the ventral aspect of the thecal sac with moderate to severe narrowing of the neuroforamina.

(Id. at 894-95)

         On December 12, 2012, Vaughn saw his primary care physician James McGlynn, M.D., for piercing pain down his right arm with decreased mobility, numbness, tingling, and weakness. (Id. at 514) Dr. McGlynn indicated that Vaughn's acute C5 radiculopathy seemed to be recovering. (Id. at 514) Dr. McGlynn noted that Vaughn had "much less pain," and although his atrophy had not resolved, it had improved. (Id.) Additionally, Dr. McGlynn noted that Vaughn had recovered full motion and function of the rotator cuff, although he still experienced pain at the shoulder joint. (Id.) Dr. McGlynn diagnosed him with a rotator cuff tear with atrophy. (Id.) Dr. McGlynn administered a cortisone injection in Vaughn's AC joint and recommended physical therapy. (Id. at 514-15, 517-18) Additionally, Dr. McGlynn recommended more aggressive treatment for the cervical radiculopathy since the atrophy improved. (Id. at 514-15)

         Beginning on December 20, 2012, Vaughn began treatment at Dynamic Physical Therapy primarily for complaints of pain, paresthesia, loss of motion, weakness, and loss of function of his right arm. (Id. at 618) Vaughn reported that he had a history of "neck issues," and had recently received a series of injections. (Id.) As a result of these injections, Vaughn stated that his pain improved and he could move his neck and shoulder "a lot better." (Id.) After two months of physical therapy, in February 2013, Vaughn reported that his right arm improved with increased motion and decreased pain, but his arm remained weak. (Id. at 640) At this time, Vaughn was able to dress himself without restriction and he felt that he had full range of motion. (Id.) Dynamic Physical Therapy reevaluated Vaughn again on March 22, 2013. At this time, Vaughn advised that although improving, he experienced weakness that resulted in difficulty with fine motor activities, such as lifting and dressing. (Id. at 592) Moreover, Vaughn reported that his right shoulder pain was constant and aggravating, and his pain level ranged from a 4 to 6 on a scale from 1 to 10. (Id.)

         On January 17, 2013, Vaughn saw Mr. Schneider. (Id. at 527) Vaughn had positive joint and back pain or muscle problems. (Id.) On examination of his extremities, Vaughn had full range of motion, no deformities, no edema, and no erythema. (Id.) Mr. Schneider diagnosed chronic pain syndrome, rotator cuff syndrome of the shoulder and allied disorders, degeneration of the cervical intervertebral disc, anxiety, alcohol dependence, and bipolar affective disorder. (Id.) On a follow-up visit on January 28, 2013, Mr. Schneider noted Vaughn had limited musculoskeletal range of motion, and that Vaughn's cervical radiculopathy and degenerative disc disease were well controlled. (Id. at 775)

         Vaughn saw Dr. McGlynn in February 2013 and April 2013 for his ongoing symptoms of persisting weakness, numbness, and pain in his right upper extremity. (Id. at 683-85) In April 2013, Vaughn elected to undergo shoulder surgery, despite Dr. McGlynn's warning that surgery may not help the weakness and pain in his arm due to his cervical radiculopathy. (Id. at 685)

         On March 27, 2013, Vaughn consulted with Anne Mack, M.D., and underwent an EMG of the right upper extremity. (Id. at 601) Results showed evidence of right median nerve entrapment at the wrist consistent with right carpal tunnel syndrome, as well as sensory peripheral neuropathy, right multilevel cervical radiculopathy, and subacute denervation. (Id.)

         On May 16, 2013, Vaughn underwent arthroscopy subacromial decompression on his right shoulder, Mumford, and biceps tenotomy. (Id. at 607) After the surgery and at the recommendation of his surgeon, Vaughn restarted physical therapy in June 2013 with pain levels ranging from "4 to 6" on a scale of 1 to 10. (Id. at 679, 687) In July 2013, Vaughn reported that his status was improving, and his range of motion of his shoulder was acceptable post operatively. (Id. at 690) Vaughn still experienced ongoing pain, so Dr. McGlynn prescribed additional physical therapy for his shoulder. (Id. at 689-90)

         On June 5, 2013, Vaughn saw Christian I. Fras, M.D., for spine surgery consultation. (Id. at 694-95) Dr. Fras noted that he last saw Vaughn two years earlier in August 2011. (Id. at 694) Vaughn informed Dr. Fras that after his last visit, he saw Ginger Chiang, M.D., for cervical epidural steroid injections, which helped his symptoms. (Id.) On physical examination, Vaughn was not in acute distress. (Id.) Dr. Fras opined that Vaughn had cervical spondylosis and disc bulging, and was not convinced that Vaughn's symptoms in the right upper extremity would be improved by spinal surgery. (Id. at 695) Dr. Fras recommended that Vaughn return to pain management for a discussion regarding additional injections, and suggested that Vaughn see a neurologist. (Id.) Dr. Fras opined that Vaughn was unable to work. (Id.)

         On June 24, 2013, Vaughn saw Pramod K. Yadhati, M.D., for an evaluation for ongoing upper extremity weakness. (Id. at 906) Dr. Yadhati noted that Vaughn had weakness and diminished reflexes in the right biceps, as well as decreased sensation. (Id.) Dr. Yadhati diagnosed right C5 radiculopathy and scheduled Vaughn for epidural injections. (Id.) Vaughn underwent three cervical epidural steroid blocks with Dr. Yadhati on July 31, 2013, August 14, 2013, and August 28, 2013. (Id. at 898-900)

         Physical therapy notes from July 2013 indicate that Vaughn still experienced some pain, but reported that his shoulder felt better since having the surgery. (Id. at 701-05, 715) Vaughn made some improvements in his strength, but still experienced deficits and difficulty with daily activities. (Id. at 717) On August 13, 2013, Vaughn reported that he had a nerve block injection in the neck area, which helped his pain. (Id. at 720) Vaughn was happy with his increased range of motion as a result of physical therapy, but was still frustrated with his bicep weakness. (Id. at 726, 728)

         On September 11, 2013, Dr. McGlynn reexamined Vaughn. (Id. at 691) Dr. McGlynn noted that Vaughn had "recovered nicely" following right shoulder surgery. (Id.) He also noted that Vaughn had regained normal motion in his arm, but still had significant weakness in his right biceps, some shoulder weakness, loss of biceps reflex, and numbness and tingling in his thumb and finger. (Id.) Dr. McGlynn believed that Vaughn was a candidate for neck surgery and had failed all non-operative care. (Id.)

         On September 18, 2013, Vaughn saw Dr. Fras.with complaints of neck and right shoulder pain, as well as weakness in his right arm. (Id. at 913) Dr. Fras noted that Vaughn was in "obvious discomfort" upon examination, had diminished sensation to light touch in the right upper extremity, "4/5" right biceps and triceps strength, and "2" biceps and triceps reflexes bilaterally. (Id.) Dr. Fras diagnosed him with cervical radiculopathy. (Id.)

         On September 23, 2013, Vaughn saw Dr. Yadhati, who noted Vaughn's good range of motion in his neck and minimal pain in the cervical area. (Id. at 902) Dr. Yadhati reported that Vaughn had weakness in the right biceps and decreased handgrip strength. (Id.) Dr. Yadhati's impression was right C6 radiculopathy. (Id.) Dr. Yadhati recommended that Vaughn continue with physical therapy, as it seemed to be helping his lower neck and shoulder pain, and to follow up with Dr. Fras. (Id.)

         Physical therapy notes from September 2013 indicate that Vaughn continued to report that his shoulder was improving. (Id. at 738-46) By September 27, 2013, Vaughn was reporting improvement in his bicep strength. (Id. at 745) On October 4, 2013, Vaughn reported that he was getting better, and that the pain in his right should had improved. (Id. at 749) In November 2013, Vaughn reported intermittent pain in the right shoulder, pain with lifting objects heavier than five pounds, soreness with overhead motion, intermittent and unpredictable popping sensation in the shoulder, and arm weakness. (Id. at 755)

         On April 21, 2014, Vaughn consulted with one of his primary care physicians, Jerry P. Gluckman, M.D., complaining of worsening right arm pain that radiated from his neck. (Id. at 847-50) Vaughn requested a prescription for physical therapy for his right arm, as well as an increase in Percocet for his ...


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