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Haywood v. Saul

United States District Court, D. Delaware

September 6, 2019

ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.[1]

          Thomas Haywood, Dover, Delaware; Pro Se Plaintiff.

          Eric P. Kressman, Regional Counsel, and Eda Giusti, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Philadelphia, Pennsylvania; David C. Weiss, United States Attorney for the District of Delaware, Wilmington, Delaware; Gregg W. Marsano, Special Assistant United States Attorney, and Heather Benderson, Special Assistant United States Attorney, Office of the General Counsel, Philadelphia, Pennsylvania, Attorneys for Defendant.



         Plaintiff Thomas Haywood (“Haywood” or Plaintiff), who appears pro se, appeals the decision of Defendant Andrew M. Saul, Commissioner of Social Security (“the Commissioner” or “Defendant”), denying his applications for Social Security disability insurance benefits (“DIB”) under Title II of the Social Security Act and supplemental security income (“SSI”) benefits under Title XVI of the Social Security Act. See 42 U.S.C. §§ 401-434, 1381-1383f The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

         Pending before the Court are Plaintiffs motion for summary judgment and Defendant's cross motion for summary judgment. (D.I. 12, 14). Plaintiff requests “any relief that Your Honor may provide.” (D.I. 12 at 3). The Commissioner requests that the Court affirm the decision denying Plaintiff s claim for benefits. (D.I. 15 at 16). For the reasons stated below, the Court will deny Plaintiff s motion and will grant Defendant's cross-motion for summary judgment.


         A. Procedural History

         On November 17, 2014, Plaintiff filed for DIB and SSI, alleging disability beginning October 15, 2014[2] due to back, neck, and shoulder injury complaints, cognition problems from a traumatic brain injury (“TBI”) that had occurred on March 8, 2010, and major depression.[3] (D.I. 9-5 at 2-5). Plaintiffs application was denied initially on January 13, 2015, and upon reconsideration on July 2, 2015. (D.I. 9-4 at 3-8, 17-22). He requested an administrative hearing before an Administrative Law Judge (“ALJ”), and it was held on March 21, 2017. (D.I. 9-2 at 38-83; D.I. 9-4 at 202-03). Plaintiff, who was represented by counsel, provided testimony as did vocational expert (“VE”) Helen Tucker. The ALJ issued a decision on May 3, 2017, finding that Plaintiff was not disabled. (D.I. 9-2 at 14-34). Plaintiff sought review by the Appeals Council, submitted additional evidence, and his request was denied on March 13, 2018, making the ALJ's decision the final decision of the Commissioner. (D.I. 9-2 at 79-82, D.I. 9-4 at 79-82). On April 23, 2018, Plaintiff, appearing pro se, filed this action seeking review of the final decision. (D.I. 2).

         B. Factual History

         1. Disability Report - November 17, 2014 (Form SSA-3368)

         In his disability report dated November 17, 2014 (Form SSA-3368) (D.I. 9-6 at 17-28), Plaintiff asserted that he has the following physical or mental conditions that limit his ability to work: back injury, neck injury, diplopia, shoulder injury, short-term memory issues and cognition problems from a March 8, 2010 TBI, major depression, chronic low back pain from stenosis, facet joint arthritis, and disc degeneration. (Id. at 18). He indicates that he stopped working on December 31, 2009 because the “business closed” and that as of March 8, 2010, his “condition[s] became severe enough to keep [him] from working.” (Id.). Plaintiff lists the following medications on his disability report: aspirin (thin blood heart attack in 2007), Crestor (cholesterol), Cymbalta, Lisinopril (blood pressure), Toprol (blood pressure), and Tramadol (pain relief); the medications prescribed by Southside Family Practice, Alpha Behavioral Health, Delaware Cardiovascular Associates, and Christiana Care Health System. (Id. at 21). On July 29, 2016, Plaintiff updated his medication list and added: Metformin (diabetes), Atorvastatin (cholesterol), Metoprolol Succinate ET (blood pressure/heart), morphine sulfate (pain), and a multi-vitamin; the medications prescribed by Family Nurse Practitioner Olasumbo T. Afilaka (“Afilaka”), Dr. Khaled El Jazzar (“Dr. El Jazzar”), and Dr. Howard Arian (“Dr. Arian”). (Id. at 71).

         Plaintiff lists the following providers as having medical records about his physical and mental conditions: Alpha Behavioral Health, Dr. Lyndon Cagampan (“Dr. Cagampan”) of Delaware Back Pain & Sports, CM-MRI, Southside Family Practice, Dr. David Long (“Dr. Long”) of Bryn Mawr Rehab Hospital, Christiana Care Health System, Dr. El Jazzar of Delaware Cardiovascular Associates, and Dynamic Physical Therapy. (Id. at 21-27). On July 29, 2016, Plaintiff updated the medical provider list and added Dr. Robert Varipapa (“Dr. Varipapa”), Dr. Arian, Nurse Practitioner Afilaka, Doctor of Podiatric Medicine Jacob Hanlon (“Dr. Hanlon”), Dr. Gerard Stroup (“Dr. Stroup”) of Burke Dermatology, and Dr. Christopher Vallorosi (“Dr. Vallorosi”) of Urology Associates. (Id. at 70).

         2. Disability Reports - Appeal (Form SSA-3441)

         In his January 29, 2015 appeal disability report (D.I. 9-6 at 53-58), Plaintiff indicates that there have been no changes in his illnesses, injuries, or conditions, and he has no new physical or mental limitations as a result of his illnesses, injuries, or conditions. (Id. at 53). The medical providers listed are Dr. Arian of Southern Delaware Pain Management, Alpha Behavioral Health, and Dynamic Physical Therapy and no medications are listed. (Id. at 54-56).

         In his August 10, 2015 appeal disability report (id. at 63-68), Plaintiff indicates that there have been no changes in his illnesses, injuries, or conditions, and he has no new physical or mental limitations as a result of his illnesses, injuries, or conditions. (Id. at 64). The report does not list any medical providers or medications. (Id. at 63-68).

         3. Pain Questionnaire

         In his December 16, 2014 pain questionnaire, Plaintiff states that he has near constant aching pain in the low back with occasional sharpening and pulsating. (D.I. 9-6 at 51). Both shoulders wake him during the night with pain and he has frequent neck pain. (Id.). Plaintiff states that the pain worsens with movement, cold or wet weather, sitting too long, or being on his feet too long. (Id.). Plaintiff states that he experiences pain throughout the day, it lasts throughout the day, and is usually worse in the evening. (Id.). Plaintiff states that the pain worsened over the past 12 months. (Id.).

         He reported taking Tramadol and methadone three times per day with minimal effectiveness. (Id.). Treatment used to relieve the pain includes physical therapy that helps strength and range of motion, but there is increased pain while doing the therapy. (Id.). Hot showers and a heating pad help minimally, and lying down also helps. (Id.)

         The report states that Plaintiff is involved in rehabilitation with the goal of returning to work part time. (Id.). Plaintiff reports that all activities were restricted or stopped because of the pain and, when sleeping, he awakens after a few hours due to pain in the back and shoulders. (Id. at 52).

         4. Medical History, Treatment, and Conditions

         The Court has reviewed all medical records submitted. For purposes of this appeal, the relevant medical history begins in March 19, 2010 and continues through March 2, 2017. (D.I. 9-8 through D.I. 9-27 at Exs. B1F-B21F).

         a. Physical Conditions, Providers, and Treatment

         Plaintiff had a myocardial infarction in 2007 at age 39. (D.I. 9-19 at 53). Plaintiff was injured in motor vehicle accident on March 8, 2010, and suffered a TBI, followed by rehabilitation at Bryn Mawr Rehabilitation Hospital through early April 2010. (D.I. 9-8 at 2-81; D.I. 9-9 at 2-42). An electroencephalogram performed in May 2012 revealed borderline background frequencies suggesting the presence of a mild generalized cortical disturbance. (D.I. 9-23 at 45).

         Plaintiff was treated by Dr. Cagampan for neck pain, low back pain, and shoulder pain in September and October 2014. (D.I. 9-15 at 42-45). In October 2014, Plaintiff described the pain as constant and moderate and a five out of ten. (D.I. 9-15 at 42; D.I. 9-22 at 64-65). The October 2014 treatment note states that Plaintiff violated his narcotic contract by smoking marijuana while taking Tramadol, that Dr. Cagampan advised Plaintiff he would no longer prescribe Plaintiff controlled substances, and that Plaintiff was not happy about this. (D.I. 9-15 at 45). On November 4, 2014, Dr. Cagampan advised Plaintiff that he could no longer provide him with medical care. (Id. at 50).

         Plaintiff received physical therapy for complaints of low back pain between July 2014 and October 2014. (D.I. 9-11 at 101-110; D.I. 9-12 at 2-29). At his physical therapy session on October 15, 2014, Plaintiff had fair tolerance to treatment, and he demonstrated minimal progress as to pain levels and functional activity performance. (D.I. 9-12 at 27). Plaintiff stated that he was transitioning to another medical doctor, wished to discontinue physical therapy, and he was discharged per his request. (Id.).

         Plaintiff also received physical therapy between July 2014 and October 2014 for joint pain in the left shoulder. (Id. at 30-57). He reported increased pain with overhead movements and intermittent pain, a pain level of two at best and seven at worst. (Id. at 30). When Plaintiff presented for his physical therapy appointment on October 1, 2014, he reported that his shoulder was “not bothering him that much today.” (Id. at 55). The notes for October 1, 2014 state that Plaintiff had demonstrated progress by increased range of motion and muscle strength, and an improved quick dash score that indicated improved functional activity tolerance. (Id. at 56). Plaintiff was discharged as a patient per his request. (Id.).

         On October 15, 2014, an MRI was taken of Plaintiff's lumbar spine. (D.I. 9-22 at 63). The clinical indication was chronic low back pain and pain down both legs, getting worse. (Id.). The MRI showed transitional lumbosacral vertebral anatomy with the lowermost independent vertebral body designated as a partially lumbarized S1 with otherwise normal alignment, height, contour, and bone marrow signal of the visualized vertebral bodies. (Id.). It also showed multilevel spondyloarthropathy, worse at L5-S1 where it resulted in bilateral moderate to severe foraminal stenosis, greater on the left with likely impingement of the exiting left L5 nerve root, and no focal disc herniation or vertebral malalignment. (Id.).

         Lawrence Piccioni, M.D. (“Dr. Piccioni”) treated Plaintiff for upper extremity complaints including impingement and rotator cuff tear of the right shoulder, lateral epicondylitis of the right elbow, and adhesive capsulitis of the left shoulder. (D.I. 9-19 at 60). Dr. Piccioni's December 23, 2014 medical report states that Plaintiff “has treatable medical conditions which are under control, ” and that he saw “no significant medical reason for certain restrictions and certainly no reason for total disability.” (Id.).

         Plaintiff returned to physical therapy for his chronic back pain and received therapy between December 2014 and February 2015. (D.I. 9-12 at 58-66; D.I. 9-20 at 2-50). On December 10, 2014, he reported that he sometimes experiences pulsating pain aggravated by prolonged standing, walking, and sitting. (D.I. 9-12 at 48). When seen on February 18, 2015, Plaintiff continued to complain of back pain when standing too long. (D.I. 9-20 at 47). The assessment that day was that Plaintiff had no complaints that any specific exercise caused pain or was challenging to perform during the session. (Id.).

         Plaintiff presented at Westside Family Healthcare for routine treatment from October 2014 to April 2015 for diabetes, chronic back pain, frequent urination, hip pain. (D.I. 9-20 at 55-78). Around the same time, between November 2014 and April 2015, Plaintiff was seen by Dr. Arian, a pain management physician for his low back pain. (D.I. 9-21 at 2-89). Dr. Arian prescribed medication for chronic pain and counseled Plaintiff about physical therapy compliance. (Id. at 6-7, 30-33). Plaintiff continued pain management treatment with Dr. Arian between May 19, 2015 and September 9, 2016 for back pain and diabetic peripheral neuropathy complaints. (D.I. 9-24 at 24-52, 56-69; D.I. 9-25 at 2-114). As of September 2016, Plaintiff continued with pain medication and physical therapy. (D.I. 9-24 at 25-27).

         Plaintiff continued with routine treatment at Westside Family Healthcare from November 2015 through September 2016, including treatment for his diabetes, heel pain, and urinary urgency. (D.I. 9-24 at 2-14). On March 9, 2016 Plaintiff was seen at Delaware Podiatric Medicine for a consult. (Id. at 53-55). He was assessed a having painful plantar fasciitis of the right foot, prescribed an ankle foot brace to be used for sixty days, and advised to receive physical therapy. (Id.). Plaintiff received physical therapy beginning August 18, 2016 through October 26, 2016 for right plantar fasciitis. (D.I. 9-26 at 2-55; D.I. 9-27 at 2). Plaintiff was discharged on October 26, 2016, as independent with a home exercise program, and he had met the maximum benefit from the physical therapy. (D.I. 9-26 at 52).

         Plaintiff was seen by Dr. Varipapa on June 16, 2016, for a follow-up of cognitive difficulties and memory loss from his prior appointment on December 4, 2013. (D.I. 9-23 at 58). Plaintiff provided a history of difficulties, including the ability to stay focused, concentrate, maintain an appropriate mood, remain alert, remember things he used to know, and retain short-term memories. (Id.). Plaintiff reported that his symptoms were unchanged since the last office visit in 2013. (Id.). Plaintiff reported infrequent and mild headaches. (Id.). When Plaintiff was seen by Dr. Varipapa on July 13, 2016, he stated that he was able to attend to his activities of daily living, do lawn work, and laundry. (Id. at 65). Plaintiff reported that his headaches were rare, and he could not recall when the last one occurred. (Id.). The assessment was depression and cognitive and neurobehavioral dysfunction following brain injury. (Id. at 68).

         Plaintiff continued with cardiac care. A myocardial perfusion study was performed on June 20, 2015 showed no evidence of ischemia or tear, and a normal ejection fraction. (D.I. 9-27 at 28). When Plaintiff was seen by cardiologist Dr. El Jazzar on May 24, 2016, Plaintiff stated that he had rare episodes of chest pain that had resolved since his last visit. (Id. at 12). During his November 2016 visit with Dr. El Jazzar, Plaintiff told the cardiologist that he had minimal chest pain, very rare, and it resolves quickly. (Id. at 6). Plaintiff's records from Westside Family Healthcare during February 2014, and June and September 2016, indicate that Plaintiff denied chest pain, edema, or shortness of breath, and examination revealed that Plaintiff had normal heart sounds, regular rate and rhythm, and no murmurs, rubs, or gallops. (D.I. 9-20 at 12-14, D.I. 9-24 at 4, 7).

         b. Mental Conditions, Providers, and Treatment

         From September 2014 through March 2017, Plaintiff received regular therapy for depression from Alpha Behavioral Health. (D.I. 9-27 at 60-78). Plaintiff reported that he was not taking medication because of commercials he had seen. (Id. at 61). Many of Plaintiff's complaints concerned being a burden on his mother, conflicts with family members, and his pursuit of Social Security disability benefits. (Id. at 68-74).

         Janis Chester, M.D. (“Dr. Chester”) conducted a mental health evaluation of Plaintiff on June 15, 2015. (D.I. 9-23 at 22). Dr. Chester described Plaintiff as a ”fair historian” who provided his medical history and reported that he had received therapy for approximately one year, every 7 to 14 days. (Id.). Upon mental status examination Plaintiff was alert and oriented in all spheres, he had no delusions, his thought process was circumstantial and occasionally tangential, his concentration was intact, his immediate memory was intact, short term memory spontaneously intact and improved with prompting, and his long term memory intact except for recalling details of the March 2010 motor vehicle accident. (Id. at 24). Plaintiff's insight and judgement were fair. (Id.) Plaintiff was diagnosed with depression secondary to chronic pain, and marijuana abuse. (Id. at 24).

         Dr. Chester completed a residual functional capacity questionnaire and determined that Plaintiff had a “mild” impairment (i.e., suspected impairment of slight importance which does not affect ability to function) or “moderate” impairment (i.e., impairment which affects but does not preclude ability to function) in all work-related activities, except for a “moderately severe” impairment (i.e., impairment which seriously affects ability to function) in the area of performing work requiring frequent contact with others. (D.I. 9-23 at 16-17).

         In January 2016, Plaintiff's therapist at Alpha Behavioral Health advised Plaintiff to research part-time employment. (Id. at 72). In September 2016, Plaintiff increased his sessions from a bi-weekly schedule to a weekly schedule. (Id. at 75). In February 2017, Plaintiff's therapist recommended that Plaintiff engage in volunteer work, but Plaintiff reported having pain 24 hours a day. (Id. at 77).

         On February 14, 2017, Plaintiff's therapist, Allen Harris (“Harris”) completed a mental medical source check-off form and concluded that Plaintiff had a “mild” limitation (i.e., slight) or a “moderate” limitation (i.e., functioning in the area independently, appropriately, effectively, and on a sustained basis is “fair”) in all mental work-related areas, with the exception that Plaintiff had “marked” limitations (i.e., functioning in the area independently, appropriately, effectively, and on a sustained basis is “seriously limited”) in the ability to make simple work-related decisions and the ability to accept instructions and respond appropriately to criticism from supervisors. (Id. at 57-59).

         c. State ...

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