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Ashe v. Berryhill

United States District Court, D. Delaware

March 29, 2019

GREGORY L. ASHE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Gary C. Linarducci, Linarducci & Butler, P.A., New Castle, DE; David F. Chermol, Chermol & Fishman, LLC, Philadelphia, PA - attorneys for Plaintiff

          Nora Koch, Regional Chief Counsel, Dina White Griffin, Special Assistant United States Attorney Social Security Administration, Office of the General Counsel, Philadelphia, PA - attorneys for Defendant.




         Plaintiff Gregory L. Ashe (“Mr. Ashe” or “Plaintiff) appeals the decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security (“the Commissioner” or “Defendant”), denying his claim for Social Security Disability Insurance benefits under Title II of the Social Security Act. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

         Pending before the Court are Plaintiff s motion and Defendant's cross-motion for summary judgment. (D.I. 10, 13). Plaintiff seeks remand of his case “for either an award of benefits, based on the overwhelming weight of the medical opinion evidence, or for further development and analysis.” (D.I. 11 at 28). The Commissioner requests that the Court affirm the decision denying Plaintiffs claim for benefits. (D.I. 14 at 20). For the reasons stated below, the Court will grant-in-part and deny-in-part Plaintiffs motion and deny Defendant's cross-motion for summary judgment. This matter will be remanded for further proceedings.


         A. Procedural History

         On February 21, 2012[1], Mr. Ashe filed an application for Disability Insurance Benefits under Title II, alleging disability beginning December 22, 2009. (Tr. 149-150).[2] Plaintiff s claim was denied initially on June 19, 2012 and again upon reconsideration on March 22, 2013. (Tr. 89-93, 97-101). Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”) on April 29, 2013. (Tr. 103-104). The hearing took place on August 12, 2014 during which both Mr. Ashe and David Burnhill (“Mr. Burnhill), an impartial vocational expert (“VE”) testified. (Tr. 29-67). After the hearing, on December 19, 2014, the ALJ issued a decision finding that Plaintiff “has not been under a disability within the meaning of the Social Security Act from December 22, 2009, through the date of this decision.” (Tr. 11). Plaintiff requested review of the ALJ decision by the Appeals Council on January 8, 2015. (Tr. 6-7). On August 22, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3).

         On October 18, 2016, Plaintiff 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 the cross motions for summary judgment on May 15, 2017. (D.I. 10-11, 13-15).[3]

         B. Factual History

         Plaintiff applied for Disability Insurance Benefits on February 21, 2012 when he was 44 years old. (Tr. 68, 149). Plaintiff became unable to work as of December 22, 2009[4] at the age of 41, which is a “younger person” as defined by 20 C.F.R. §404.1563(d). (Tr. 20, 68, 78). He obtained a GED in 1987 and received specialized automobile technician job training throughout his career as an auto technician. (Tr. 171). According to Plaintiff's February 25, 2012 Disability Report, he held one job (auto technician) in the 15 years prior to becoming unable to work. (Tr. 171).

         1. Disability Report - February 25, 2012 (Form SSA-3368)

         In his Disability Report dated February 25, 2012 (Form SSA-3368) (Tr. 169-177), Plaintiff asserted that he has the following physical or mental conditions that limit his ability to work (Tr. 170): lumbar fusion; cannot sit for longer than 20 minutes; cannot stand for longer than 30 minutes; medication keeps him from using dangerous equipment; pain keeps him from useful work; and time frame is short without pain. He indicates that he stopped working because of his conditions, but that his conditions had not caused him to make changes to his work activity. (Tr. 170). He also lists the following medications: Flexeral, hydromorphone and Xanax, which were all prescribed by First State Orthopaedics PA. (Tr. 173). Plaintiff lists Dr. Jerry Case, First State Orthopaedics PA, Christiana Hospital, and SOS PT as health care providers who may have medical records about his physical and mental conditions. (Tr. 173-176).

         2. Disability Report - Appeal - April 30, 2013 (Form SSA-3441)

         In his Disability Report - Appeal dated April 30, 2013 (Form SSA-3441) (Tr. 202-207), Plaintiff indicates that he has no new physical or mental limitations and no new illnesses, injuries, or conditions. (Tr. 202). He lists the following treating physicians who may have medical records about his physical and mental conditions: Dr. John Dettwyler, Dr. James Downing (Interventional Spine Pain Consultants, PA), Dr. James Moran and Dr. Bruce Rudin (both of First State Orthopaedics), and Dr. Pawan Rastogi (Delaware Neurosurgical Group). (Tr. 203-204). He also lists the following medications: Advil, Exalgo, Flexeril, and hydromorphone, all prescribed by Dr. Moran at First State Orthopaedics. (Tr. 205).

         3. Medical History, Treatment, and Conditions

         The Court has reviewed all medical records submitted. The relevant medical history begins in December 22, 2009 and continues through August 6, 2014. (D.I. 5-7 - 5-19, Exs. 1F - 33F).

         A. First State Orthopaedics (Drs. Rudin and Moran)

         The transcript contains numerous records from First State Orthopaedics from January 4, 2010 through August 6, 2014. (Tr. 445-613, 648-696, 797-801, 984-1051, and 1087-1089). Dr. Rudin preformed three surgeries on Plaintiff's back: (1) June 8, 2010 - total disk arthropathy at ¶ 3-4 and L4-5 (Tr. 422-425); (2) March 1, 2011 - posterior segmental instrumentation at ¶ 3, L4, and L5 (Tr. 403-404); and (3) January 3, 2012 - posterior lumbar fusion L3-L4, L4-L5 and removal of segmental instrumentation (Tr. 391-302). At Plaintiff's August 6, 2014 appointment, Dr. Rudin recommended a “translumbar interbody fusion at ¶ 5-S1 and possibly consider L2-3” and gave Plaintiff a note “to be off of work total disability at this point based on his new testing and his severe level of impairment.” (Tr. 1088).

         B. Interventional Spine Pain Consultants, PA (Dr. James Downing)

         The transcript contains records from Interventional Spine Pain Consultants, PA/Dr. James Downing dated April 7, 2010, November 11, 2010, September 7, 2011, January 9, 2013, and July 24, 2014. (Tr. 802-805, 1090-1101). Dr. Downing performed two surgical procedures on Plaintiff: (1) November 11, 2010 - lumbar epidural steroid injection fluoroscopically guided (Tr. 1094-1095) and (2) July 24, 2014 - provocative lumbar discography at L2-L3 and L5-S1 fluoroscopically guided (Tr. 803-804). Immediately after the July 24, 2014 procedure, Plaintiff had a CT lumbar spine scan which showed that Plaintiff has “degenerative grade IV annular tear at L2-L3. Grade II annular tear at L5-S1 with bilateral fact arthrosis.” (Tr. 805).

         C. Center for Interventional Pain & Spine (Dr. Philip S. Kim)

         The transcript contains records from the Center for Interventional Pain & Spine/Dr. Philip S. Kim beginning in January 2013 and continuing through June 2014. (Tr. 769-793, 858-967). On August 1, 2013, due to Plaintiff's continued complaints of ongoing pain, he underwent a trial placement of a spinal cord stimulator with Dr. Kim. (Tr. 871). At a follow-up visit on August 8, 2013, Plaintiff “report[ed] 100% improvement in leg nerve pain, 15% improvement in low back pain and notice a new upper back pain. Patient is unsure if want to proceed with the implant.” (Tr. 872). And, at Plaintiff's August 21, 2013 follow-up visit, it is noted that Plaintiff is considering a spinal cord stimulator implant but he wants to do a “pump trial” to compare the two. (Tr. 878-881). On December 3, 2013, Dr. Kim installed a pain pump. (Tr. 795, 1002). While it appears that the pump provided some relief, it did not fully relieve Plaintiff's symptoms and his medication had to be regularly increased. (Tr. 887-960).

         D. Spine and Orthopedic Specialists, Inc. (Craig Weaver, MS, PT, OCS, Cert MDT)

         The transcript contains physical therapy records from Spine and Orthopedic Specialist, Inc./Craig Weaver for the months of February, August, and September 2010 and again for the months of January, July, and August 2011. Plaintiff's physical therapy did not yield significant positive results. (See, e.g., Tr. 229 “Recommend hold PT based on response thus far;” Tr. 265 “I would not recommend even any very low-level exercise based on current trend of increasing symptoms and poor positional tolerance;” Tr. 753 “Unfortunately, functional tolerance remains very limited and Greg continues to often shut down for several days due to difficulty managing his pain levels. We have tried to approach this from a chronic pain management perspective with little success and Greg is unfortunately at a stand-still in his current pain and disability pattern.”).

         E. Jerry L. Case, M.D.

         At the request of counsel in Plaintiff's worker's compensation action, Plaintiff was examined by Dr. Case on February 24, 2011 (Tr. 271-272), August 11, 2011 (Tr. 269-270), July 30, 2012 (Tr. 614-615), and October 24, 2012 (Tr. 642-643). His February 25, 2011 notes indicate that while Plaintiff was able to “walk with a normal gait, ” his movement was restricted and he had “pain at the extremes.” (Tr. 272). He concluded that “patient remains totally disabled at this time in view of the planned surgery next week.” (Tr. 272). The results of the physical exams did not appear to change in the ensuing visits.

         His August 11, 2011 notes, however, indicate “the patient does not appear to be significantly better since his surgery on 3/1/11. At this time, the patient remains totally disabled.” (Tr. 269-270). Dr. Case's July 30, 2012 notes indicate that Plaintiff “feels that he is somewhat better, but actually his pain level has only slightly improved. He is taking the same amount of pain medication.” Dr. Case also indicated that “[a]t this time, the patient would not be capable of full time work as an auto mechanic, which was his previous occupation. Based on his complaints and physical findings at this time, I would think that he could do no more than part time sedentary work with restrictions of avoiding continuous standing and walking, avoiding bending and twisting and no lifting over 10 pounds. He would require the opportunity to get up and move around periodically if in a sit down job.” (Tr. 614-615). Similarly, his October 24, 2102 notes state: “I do not think that the patient is capable of more than part time sedentary work at this time. Prognosis is poor that he is going to improve. . . . I think that it is highly unlikely that further surgery is going to be of much help in this case. . . . His subjective complaints are consistent with the objective findings.” (Tr. 642-643).

         F. State ...

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