Bair v. Colvin
| Decision Date | 10 October 2018 |
| Docket Number | Civil Action 3:16-cv-1331 |
| Court | U.S. District Court — Middle District of Pennsylvania |
| Parties | ERIC DAVID BAIR, Plaintiff v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant |
REPORT AND RECOMMENDATION
Plaintiff Eric David Bair (“Plaintiff”), an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claims for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. (Doc. 1). Jurisdiction is conferred on this Court pursuant to 42 U.S.C. § 405(g).
This matter has been referred to me to prepare a Report and Recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, I find that the final decision of the Commissioner of Social Security is supported by substantial evidence, and RECOMMEND that it be AFFIRMED.
On August 15, 2013, Plaintiff protectively filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act and an application for supplemental security income under Title XVI of the Social Security Act. In both applications, Plaintiff alleged that the onset of his disability was December 31, 2009, and that his disability was a result of the following impairments: head injury, compression fractures of C1 and L1, depression, fibromyalgia, walking/gait disturbance, fatigue, loss of motor skills and fine motor skills on his right side, cognitive difficulties, heat sensitivity, ligament damage in his left knee, herniated discs, migraines, sciatica, and arthritis. (Admin. Tr. 172). Plaintiff was thirty-four (34) years old as of his alleged onset date, and he has previously worked as a laborer, a machine operator (set up technician pharmaceutical industry), and a foam molder. (Admin. Tr. 22-23). Plaintiff has at least a high school education, and is able to read and write in English. (Admin. Tr. 23).
On October 4, 2013, Plaintiff's Application was denied at the initial level of administrative review. (Admin. Tr. 12). Following the denial of his Application, Plaintiff requested an administrative hearing on October 21, 2013. Id. On November 10, 2014, Plaintiff submitted a request to Administrative Law Judge Therese A. Hardiman (the “ALJ”) asking the ALJ to reopen a prior unfavorable decision that was issued by ALJ Richard Zack (“ALJ Zack”) on June 14, 2013, which the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”) declined to review. (Admin. Tr. 225). Plaintiff argued his previous claim should be reopened because he had obtained new and material evidence concerning his impairments. (Admin. Tr. 225-226). On November 12, 2014, Plaintiff appeared and testified, with the assistance of counsel, at an administrative hearing before the ALJ. Id. Impartial vocational expert Michele C. Giorgio (the “VE”) also appeared and testified during the proceedings. Id. On December 19, 2014, the ALJ issued a written decision denying Plaintiff's Application for benefits and declining to reopen ALJ Zack's June 14, 2013 decision. (Admin. Tr. 12-24). The ALJ found that Plaintiff did not establish any grounds warranting a reopening; that res judicata applied; and that Plaintiff could not re-litigate the period of December 31, 2009 to June 14, 2013. (Admin. Tr. 12). Following the denial of his Applications at the ALJ hearing level, Plaintiff submitted a request for review of the ALJ's decision to the Appeals Council, and this request was subsequently denied on May 18, 2016. (Admin. Tr. 1).
On June 29, 2016, Plaintiff initiated this action by filing a Complaint in which he alleges that the ALJ's final decision denying his Application was erroneous and not supported by substantial evidence. (Doc. 1). As relief, Plaintiff requests that the Court enter an order reversing the decision of the Commissioner and granting Plaintiff's Application, or in the alternative, remand the case for further administrative proceedings. (Doc. 1 p. 3).
On August 23, 2016, the Commissioner filed her Answer in which she maintains that the decision denying Plaintiff's Application is correct; was made in accordance with the law; and is supported by substantial evidence. (Doc. 8). Along with her Answer, the Commissioner filed a certified transcript of the administrative proceedings. (Doc. 9). This case has been fully briefed and is ripe for disposition. (Doc. 11); (Doc. 12); (Doc. 13).
Prior to Plaintiff's alleged onset date, Plaintiff was hospitalized due to a motor vehicle accident on November 30, 1994. (Admin. Tr. 410). As a result of this accident, Plaintiff was diagnosed with multiple trauma, mild closed head injury, type one (1) odontoid fracture, left mandibular fracture with open reduction and internal fixation, L1 compression fracture, left fibula and left tibial plateau fractures, left scapular fracture, status post splenic hematoma with rupture, and status post left apical pneumothorax. Id. The treating physician at the hospital noted in Plaintiff's discharge plan that Plaintiff should follow-up with multiple doctors for care; however, there are no records of this follow-up care provided. (Admin. Tr. 412).
On, August 15, 2010, Plaintiff was in the ER due to a lumbar strain. (Admin. Tr. 284). Plaintiff complained of back pain that was a ten (10) out of ten (10) on the pain scale upon his discharge from the hospital, however his care providers at the hospital noted that Plaintiff had no trouble walking. (Admin. Tr. 287). On August 16 and 18, 2010, Plaintiff reported to the ER complaining again of lower back pain. (Admin. Tr. 299, 307). From both of these ER visits, Plaintiff was discharged the same day as his admittance and was ambulatory. (Admin. Tr. 300, 308). Plaintiff reported that he thought he must have injured his back when he recently picked up a child and heard his bones crunch. (Admin. Tr. 299). During his August 18, 2010 ER visit, Plaintiff had an MRI of his lumbar spine, which revealed a chronic fracture of the L2 vertebral body but no “acute fracture or subluxation, ” and moderate intervertebral disc space loss at ¶ 5-S1. (Admin. Tr. 315).
On July 18, 2012, Plaintiff underwent an EMG study, which according to Dr. Edwin Roman (“Dr. Roman”) produced normal findings. (Admin. Tr. 335). On January 17, 2013, Plaintiff had an MRI of his brain due to his complaints about headaches. (Admin. Tr. 351). This MRI revealed no acute hemorrhage or infarct (localized area of dead tissue), no abnormal white matter lesions, and no hydrocephalus (build-up of fluid in brain cavities); however, it did show significant temporal and frontal lobe atrophy that was out of proportion to Plaintiff's age. Id.
On June 8, 2012, Plaintiff was seen by a physician assistant from his primary care physician's office, Leonard Weber (“Mr. Weber”), for his lower back pain.
(Admin. Tr. 395). Plaintiff told Mr. Weber that he believed his lower back pain was associated with his injuries sustained during his motor vehicle accident in 1994. (Admin. Tr. 395). Mr. Weber noted that Plaintiff had difficulty getting on and off of the exam table due to his pain. Id. At a follow-up visit on July 19, 2012, with a nurse practitioner from his primary care physician's office, Karen Peterman (“Ms. Peterman”), Plaintiff complained of lower back pain that was worse than normal and from which he could find no relief. (Admin. Tr. 389). Ms. Peterman referred Plaintiff for physical therapy and prescribed him a topical gel to help with his pain. (Admin. Tr. 391). At Plaintiff's physical therapy appointment on September 18, 2012, Plaintiff reported that he felt his condition had improved by twenty (20) to thirty (30) percent since he had started physical therapy in July of that year. (Admin. Tr. 438). At Plaintiff's October 9, 2012 appointment, Plaintiff's primary care physician, Dr. Nase, noted that Plaintiff reported that the medication Fentanyl was helping with his lower back pain, and that physical therapy helped with his range of motion but he was still having chronic pain. (Admin. Tr. 383).
During his January 14, 2013 appointment with Dr. Nase, Plaintiff reported that his lower back pain was mild in severity and aching. (Admin. Tr. 377). However, on February 26, 2013, Plaintiff complained that his back pain was waking him up at night, and that he had also been suffering from intermittent headaches of moderate severity. (Admin. Tr. 374-375). By April 24, 2013, Dr. Nase noted that Plaintiff reported his headaches were improving with medication and with staying well-hydrated. (Admin. Tr. 372).
On September 23, 2013, Plaintiff went to the ER for a migraine that he had been suffering from for three days. (Admin. Tr 463, 467). He followed-up for his migraines on October 25, 2013, with Dr. Nase, who referred Plaintiff to a neurologist. (Admin. Tr. 506). On January 14, 2014, Plaintiff saw physician assistant Meghan J. Hurley (“Ms. Hurley”) under the supervision of neurologist Dr. Stuart M. Olinsky (“Dr. Olinsky”). (Admin. Tr. 480). Dr. Olinksy noted after Plaintiff's appointment that Plaintiff's headaches had “markedly improved since his last visit (November 13, 2013) when he received bilateral occipital nerve blocks and bilateral trigger point injections.” (Admin. Tr. 481). As a result of this appointment, Dr. Olinsky decided that Plaintiff should continue with the same medications, and that Plaintiff would receive routine trigger point injections. Id. Dr. Olinsky also noted during Plaintiff's January 14, 2014...
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