United States District Court, D. Delaware
GREGORY L. ASHE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
C. Linarducci, Linarducci & Butler, P.A., New Castle, DE;
David F. Chermol, Chermol & Fishman, LLC, Philadelphia,
PA - attorneys for Plaintiff
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.
NOREIKA, U.S. DISTRICT JUDGE
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).
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
February 21, 2012, Mr. Ashe filed an application for
Disability Insurance Benefits under Title II, alleging
disability beginning December 22, 2009. (Tr.
149-150). 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).
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).
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 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).
Disability Report - February 25, 2012 (Form
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).
Disability Report - Appeal - April 30, 2013 (Form
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.
Medical History, Treatment, and Conditions
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 -
First State Orthopaedics (Drs. Rudin and Moran)
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).
Interventional Spine Pain Consultants, PA (Dr. James
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).
Center for Interventional Pain & Spine (Dr. Philip S.
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).
Spine and Orthopedic Specialists, Inc. (Craig Weaver, MS, PT,
OCS, Cert MDT)
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
Jerry L. Case, M.D.
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
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).