Daniel A. v. Saul

          ORDER

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff Daniel A.'s (“Plaintiff”) Motion for Summary Judgment (Dkt. 24) (“Motion”) and Defendant Commissioner of Social Security Andrew Saul's (“Defendant”) Cross-Motion for Summary Judgment (Dkt. 25) (“Cross-Motion”). Plaintiff, proceeding pro se, filed this case seeking judicial review of a final decision by Defendant denying his application for disability insurance benefits. For the reasons stated below, Plaintiff's Motion is denied, and Defendant's Cross-Motion is granted.

         I. BACKGROUND

         Plaintiff filed an application for benefits under Title II of the Social Security Act (42 U.S.C. §§ 416(i) & 423) on June 17, 2014, claiming that he has been disabled since March 1, 2011 due to back and neck problems. (R. 25, 413).^[1] Plaintiff's application was denied initially (R. 340, 353-55) and on reconsideration (R. 350-51, 363-64). Plaintiff requested a hearing before an administrative law judge (R. 367), which was held on April 15, 2016 before Administrative Law Judge (“ALJ”) Mary M. Kunz. (R. 25.) Plaintiff was represented by legal counsel at the hearing before the ALJ. (R. 312.) The ALJ issued an unfavorable decision on May 4, 2016. (R. 25, 33.)

         Following the five-step sequential evaluation process under 20 C.F.R. § 404.1520(a), the ALJ determined that Plaintiff last met the insured status requirements for the Social Security Act on December 31, 2011.^[2] (R. 27.) The ALJ went on to determine that Plaintiff had not engaged in substantial gainful activity since April 1, 2011, the alleged onset date, through the last date of insured of December 31, 2011. (Id.)

         At step two, the ALJ determined that Plaintiff had the following severe impairments at the date last insured: asthma, degenerative disc disease of the lumbar spine with L5-Sl laminotomy and discectomy on April 27, 2011 and revision on October 12, 2011. (Id.) The ALJ determined that Plaintiff's other physical impairments were not severe during the period Plaintiff was insured:

Many other impairments in the record were not diagnosed and thus not established as medically determinable impairments until long after the date last insured. Specifically, the claimant testified to the inability to do his past work because of neck pain and left arm tingling. Imaging in April 2012 confirmed moderate degenerative disc disease, but no evidence of nerve root involvement. (Exhibit 1F, at pages 13- 14) The record indicates that he did not seek evaluation of these symptoms until April 4, 2012, four months after the date last insured. At that time, the physical examination indicated he had tenderness to palpation and decreased range of motion of the cervical and lumbar spine but negative straight leg raising, normal strength and sensation, and normal tendon function in the hand. (Exhibit 1F, at pages 9-10) There was little follow-up of this condition until March 5, 2013, when the claimant complained to Dr. Santos of neck and arm pain for the past three months and, for the first time, the physical examination indicated he had decreased sensation over the ulnar aspect of the left forearm. (Exhibit 1F, at page 11) Unlike in March 2013, there are no clinical findings or even complaints of symptoms to support a finding that this was a severe impairment on or prior to the date last insured. (See Exhibit 4F, at pages 6-7, 9-10, Exhibit 5, at page 25).

(R. 27-28.)

         At the third step, the ALJ determined that through the date of last insured Plaintiff did not have an impairment that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 28.)

         At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had the following residual functional capacity (“RFC”): “perform light work, as defined in 20 CFR 404.1567(b), ^[3] except further limited by no more than occasional bending, stooping, kneeling, crouching, crawling, or climbing, and should not involve exposure to high concentrations of air pollutants.” (R. 28.) Based on this RFC, the ALJ determined that Plaintiff was capable of past relevant work as a telemarketer and phone order clerk, which the vocational expert (“VE”) testified that a hypothetical individual with the determined RFC could perform, especially in light of the fact that the positions are sedentary in nature.^[4] (R. 32.)

         Accordingly, the ALJ found Plaintiff not disabled. (R. 32.)

         Plaintiff requested review of the decision. (R. 1.) The Appeals Council denied Plaintiff's request for review, which made the ALJ's decision the final decision of the Commissioner. (Id.) Plaintiff then commenced this action for judicial review. The Court has reviewed the entire administrative record, giving particular attention to the facts and records cited by the parties. The Court will recount the facts of record only to the extent they are helpful for context or necessary for resolution of the specific issues presented in the parties' motions.

         II. RECORD

         On November 9, 2010, Plaintiff underwent an assessment for physical therapy. (R. 231.) Plaintiff reported an onset of the lower back pain approximately 15 years earlier with lifting. (Id.) He seemed to get over that in time, but noted that flare-ups began about three years later, which seemed related to a desk job and decreased activity level. (Id.) Flare-ups were occurring more often and would last for 1-2 weeks. (Id.) They were triggered by activities such as yard work. (Id.) Plaintiff reported feeling pain daily, even between flare-ups. (Id.) His last big flare-up occurred approximately six months earlier. (Id.) The flare-ups would limit bending. (Id.) The pain was rated at 0 to 5 out of 10. (Id.) He denied radicular symptoms. (Id.) The pain was described as aching and it was intermittent. (Id.) Plaintiff's lifting was limited to about 60 pounds. (Id.) Plaintiff avoided full bending and had some pain dressing. (Id.) Plaintiff was prescribed with manual therapy and exercises to improve flexibility, strength, and function. (R. 233.) Plaintiff did not schedule the prescribed physical therapy sessions. (R. 235.)

         On April 1, 2011, Plaintiff reported to an urgent clinic with back pain. (R. 166.) Plaintiff noted that the symptoms began a “day(s) ago . . . .” (Id.) His history of back pain was reported as “recurrent self limited episodes of low back pain in the past.” (Id.) The pain was exacerbated by bending and changing position. (Id.)

         On April 14, 2011, Plaintiff had an MRI performed on his lumbar spine. (R. 39.) The imaging report noted that Plaintiff had “[l]ow back pain, sciatica.^[5] Less than six-week history.” (Id.) The MRI showed that the lumbar vertebral bodies were in normal anatomic alignment, but that there were multilevel degenerative changes, most notably at ¶ 5-S1, with a disc protrusion causing moderate to severe narrowing of the spinal canal and impinging upon the bilateral descending S1 nerve roots. (R. 39-40.) Plaintiff was diagnosed with left L5-S1 herniated nucleus pulposus and left S1 radiculopathy. (R. 43.) He had exhausted nonoperative measures and continued to have unspecified significant symptoms. (R. 44.)

         On April 22, 2011, Plaintiff saw Jacqueline A. Geissler, M.D. for a surgery consult. (R. 655.) Plaintiff had reported a one-month history of severe back pain which was exacerbated by movement with pain going down his left side to the plantar aspect of his foot and his heel. (Id.) Plaintiff represented that his pain was constant and became worse with certain movements or positions, although there was no position which relieved or improved this pain. (Id.) Plaintiff rated his back pain at a level of 9 or 10. (Id.) His past medical or surgical history made no mention of neck problems. (Id.) Plaintiff had pain exacerbated with movement in general, a nonantalgic gait, he was able to heel walk, toe walk, and squat and rise with good execution, although it was uncomfortable. (R. 656.) Given the MRI and his symptoms, Dr. Geissler believed it would be reasonable to proceed with a surgical intervention. (Id.)

         On April 27, 2011, Plaintiff had the following surgical procedures performed on outpatient basis: microscopic laminotomy of left L5-S 1; microscopic partial discectomy, left L5-S1; and microscopic left S1 nerve foraminotomy. (R. 43.) The post-operative plan was for Plaintiff to mobilize as tolerated, he was sent home with Percocet, which he was to take as needed for pain, and was to be seen back in the clinic in six weeks' time. (R. 44.)

         Plaintiff's pain had resolved, however, he had a reoccurrence of pain in August 2011. (R. 55.) On August 30, 2011, Plaintiff had another MRI related to low back pain and possible left leg radiculopathy. (R. 46.) The MRI showed a large recurrent central to slightly left central L5-S1 disc herniation resulting in severe central and left subarticular stenosis, ^[6] a moderate bilateral foraminal stenosis, and stable L4-L5 degenerative disc disease with moderate central and bilateral foraminal stenosis. (R. 47.)

         On September 16, 2011, Plaintiff saw Edward Santos, M.D., related to his back pain. (R. 48.) Plaintiff represented that he had been doing well since his surgery until a few weeks prior to his visit, when he started to have recurrent low back pain. (Id.) While the MRI showed a recurrent herniation, Plaintiff represented that his pain was manageable with 1-2 Vicodin per day. (Id.) Dr. Santos found as follows: “I spoke with Daniel and given his mild picture, I have advised continued nonoperative treatment. If upon discontinuation of the Vicodin and with more activities his pain escalates, then I have recommended performing a revision microdiskectomy. He will call us over the next few days and update us and we will then plan accordingly.” (R. 48-49 (emphasis added).)

         As the result of continuing symptoms and the exhaustion of nonoperative measures, Plaintiff underwent a revision left L5-S 1 laminotomy, revision left microscopic L5-S1 microdiskectomy, and revision left L5-S1 nerve decompression on October 12, 2011. (R. 52-53.) Dr. Santos provided that the post-operative plan was to have Plaintiff mobilize as tolerated. (Id.) He was restricted from bending, lifting more than ten pounds, and twisting for six weeks. (Id.)

         Plaintiff next saw a medical provider on December 13, 2011. According to Jess Brehmer, M.D.:

Since the surgery in 10/2011, the patient reports he has been doing well. He has been on unemployed even before his 1012011 surgery thus, he states he has not been doing “anything.” The patient states he has not been working. He also reports that he is not doing anything in the way of physical activities including yard work or any shoveling just because he has been afraid and cautious to reinjure his back. Ultimately though, he is doing well. He is not having any issues with pain, denies any radicular symptoms, denies any weakness in the lower extremities and denies any numbness or tingling.

(R. 61.) It was noted that the radiography showed “normal alignment” and only mild degenerative disk disease at ¶ 5-S1. (R. 61-62.) The physical examination showed that Plaintiff's strength was 5/5 in his lower extremities; he had an intact sensation from the L3-S1 dermatomes bilaterally; his straight leg raise was negative; and he was able to walk without difficulty. (R. 61.) The assessment and plan for Plaintiff was as follows:

We discussed with Mr. [A.] that at this point, there are no changes noted on his imaging studies. Clinically, he looks to be doing well. From our standpoint, he can advance his activities as tolerated. We did discuss that he is likely deconditioned with regards to his musculature; thus, we recommend he do exercises as he previously had been taught at physical therapy. He does have the list of these exercises and is willing to go forth and start these up. We did discuss with him the importance of practicing good back health with regards to posture. From this standpoint, he can be doing activities as tolerated and we can see him back in clinic on an as needed basis.

(R. 62.) Both Dr. Brehemer and Dr. Santos agreed on this plan. (Id.)

         On December 13, 2011, Dr. Santos reviewed an MRI from the same date. (R. 645.) Dr. Santos's assessment was “Normal alignment, no acute bony changes noted, mild degenerative disc disease, L5-S1.” (Id.)

         During the hearing before the ALJ, Plaintiff admitted that he went back to work after the second surgery as follows:

Q Okay. Right, and then after you had the second one, why couldn't you have gone back to work?

A Well I actually did that's when my neck started to hurt and we did some -- I believe we did ...