Skaruppa v. Astrue

• Decision Date: 03 May 2012
• Docket Number: CASE NO. 1:11-CV-1043
• Parties: KENNETH SKARUPPA, Plaintiff, v. MICHAEL J. ASTRUE, Defendant.
• Court: U.S. District Court — Northern District of Ohio

KENNETH SKARUPPA, Plaintiff,

v.MICHAEL J. ASTRUE, Defendant.

CASE NO. 1:11-CV-1043

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

Date: May 3, 2012

MAGISTRATE JUDGE

VERNELIS K. ARMSTRONG

MEMORANDUM OPINION AND ORDER

Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g) of Defendant's final determination denying his claim for Period of Disability and Disability Insurance Benefits (DIB) under Title II of the Act, 42 U. S. C. §§ 405 et seq. On August 30, 2011, the parties to this action consented to have the undersigned Magistrate adjudicate all further proceedings and enter judgment in this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73 (Docket No. 13). Pending are the parties' briefs on the merits (Docket Nos. 16 & 20). For the reasons that follow, the Magistrate Orders that the Commissioner's Decision be Affirmed.

I. Procedural Background

The Plaintiff, Kenneth Skaruppa, protectively filed his application for Period of Disability and Disability Insurance Benefits on May 5, 2008, alleging an onset of disability date of March 4, 2008, due to debilitating back pain (Tr. 86-95).¹ On October 23, 2008, the stateagency initially denied Plaintiff's application, and on June 18, 2009 his application was again denied on reconsideration (Tr. 61-72). On July 17, 2009, Plaintiff requested a hearing before an ALJ (Tr. 73-74).

On April 21, 2010 a video hearing was held before Administrative Law Judge (ALJ) Tom Duann. Plaintiff testified at the hearing and was represented by an attorney. Also Vocational Expert Linda Augins appeared and gave testimony at the hearing (Tr. 38-60). On June 11, 2010, ALJ Duann issued a Notice of Decision-Unfavorable, finding that Plaintiff was not disabled under §§ 216(i) and 223(d) of the Social Security Act (Tr. 8-19).

On July 7, 2010, Plaintiff objected to the ALJ's findings and requested review of the hearing decision (Tr. 6-7). Finding no basis for review, on April 20, 2011, the Appeals Council issued a Notice of Appeals Council Action, leaving the hearing decision as the final decision of the Commissioner (Tr. 1-3). Plaintiff is before this Court seeking judicial review pursuant to 42 U.S.C. § 405(g) (Docket No. 1).

II. Jurisdiction

This Court exercises jurisdiction over the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). McClanahan v. Commissioner of Social Security, 474 F.3d 830, 832-33 (6th Cir. 2006).

III. Factual Background

A. Plaintiff's History

Plaintiff was born on March 1, 1967. He completed the eleventh grade. His work historyincluded truck driver, tow motor operator, press operator, factory worker, and laborer between 1991 and 2008 (Tr. 88, 124, 129, 131, 177, 264).

On March 4, 2008, Plaintiff stopped working purportedly "due to [his] medical condition" (Tr. 48, 123) , i.e., back problems. In a Disability Report that accompanied his initial application, Plaintiff stated: "I have trouble walking. I have been using a wheelchair or crawling around. I can walk on my own for approximately 3 minutes. I have troyble [sic] standing. I can stand for approximately one minute." (Tr. 123).

Plaintiff has also reported that his daily activities since he stopped working have included doing household chores, preparing meals, caring for his dog, shopping in stores, reading, and watching television (Tr. 145, 159-61, 260). He also stated in a Function Report from March, 2009, that he occasionally required assistance putting on his socks and shoes. He used a shower seat and, from time to time, needed help to wash his lower body. He also stated that when cooking he will prepare meals that only require ten minutes or less (Tr. 158-165). Plaintiff stated that his girlfriend helped him with chores around the house, both indoor and outdoor, when he is not able (Tr.161). When grocery shopping, he will frequently use a store scooter to assist moving around the store to shop (Tr. 161). Plaintiff has opined that he has problems getting along with others because he "can get very annoying and depressing being in pain and stuck indoors not able to do what [he] used to do." However, Plaintiff stated that his ability to handle stress is "fair" (Tr. 162, 164).

B. Relevant Medical Evidence and Opinion

1. Physical Condition

•April 15, 2006, MRI of Mr. Skaruppa's lumbar spine revealed progression of degenerative changes at L4-5 and L5-S1 since 1997 with more prominent neural foraminal narrowing on theleft (Tr. 188).

Ashtabula County Medical Center (ACMC)

•April 9, 2007, Plaintiff was seen in the emergency department for low back pain radiating into his left hip and leg lasting several weeks (Tr. 194-198). He was discharged with prescriptions for Motrin, Robaxin and Ultracet with a diagnosis of chronic low back pain (Tr. 195).

•March 5, 2008, Plaintiff was seen again for an exacerbation of low back pain radiating into his left leg (Tr. 189-193). He was discharged with prescriptions for Vistaril, Tolectin, Parafon Forte and Prednisone with diagnoses of chronic back pain and sciatica (Tr. 191, 193).

Geneva Medical Center Emergency Department

•March 13, 2008, Plaintiff presented with increasing low back since his last emergency room visit (Tr. 207, 225-229). He had recently seen his primary care physician Dr. Brant who ordered an MRI; but was unable to tolerate the MRI and Dr. Brant ordered medication in order to help Plaintiff tolerate the procedure (Tr. 228). Plaintiff's pain was described by the attending physician as "sharp, acute, radiating and moderate to severe," exacerbated by movement and walking and associated with some numbness in the left buttock and leg (Tr. 227). The attending doctor noted that Plaintiff seemed quite uncomfortable, had positive straight leg raising on the left and was exhibiting anxiety related to his pain (and that he was currently taking Vistaril for ongoing anxiety symptoms) (Tr. 227, 228). Plaintiff received Dilaudid, Vistaril and Norflex intramuscularly without relief, and was subsequently given Dilaudid, Valium, Oxycodone/Percocet and Morphine (Tr. 228). Discharge diagnosis of left-sided sciatica (Tr. 207).

•March 14, March 27 and April 24, 2008, Plaintiff underwent epidural steroid injections (Tr. 200-202, 204-206, 208-213, 214-220, 221-224, 230-231, 238-239, 242).

•March 21, 2008, MRI of lumbar spine revealed multilevel lumbar spondylosis most pronounced at the L4-5 and L5-S1 levels and specifically:

[a]t the L5/S1 level, there is mild posterior osteophytic spurring and a posterior disc bulge. There are mild degenerative facet changes. There is mild overall central canal stenosis. There is asymmetric encroachment upon the left lateral recess when compared with the right. There is mild to moderate right-sided neuroforaminal narrowing and mild left-sided neuroforaminal narrowing.

At the L4/5 level, there is broad-based disc herniation centered to the left of midline with extruded disc material extending cranially along the left posterolateral margin of the L4 vertebra body into the region of the left neural foramen. There are degenerative facet changes bilaterally. There is encroachment upon the lateral recesses bilaterally left greater than right. There is mild overall central canal stenosis. There is severe left-sided neuroforaminal narrowing and mild to moderate right-sided neuroforaminal narrowing.

(Tr. 240).

Dr.Naomi Waldbaum, M.D. Consultative Examining Physician examined Mr. Skaruppa on •August 19, 2008, per request of the Bureau of Disability Determination (Tr. 262-269). Plaintiff stated that his pain was:

in my low back from the center up halfway and it goes out to the left all the way down on the outside of the hip and down the back behind my knee and down the whole leg into the front and back of the calf into the ankle and toes and the bottom

of the foot. It's a cramping pain like it seizes up into spasm. It's 24 hours a day. It's like a lot of hot spikes all the time. Inside my ankle feels tingly.

(Tr. 263).

A treatment regimen of epidurals was initiated which was helpful, but physical therapy only made him worse (Tr. 263). On physical examination Plaintiff maneuvered in a very tense, slow, careful manner with significant apprehension and was somewhat fearful of movements with his left lower extremity (Tr. 264). Plaintiff reported that he was "functional" in his activities of daily living (Tr.264). Dr. Waldbaum observed that he "ambulate[d] into the evaluation room in

a

functional and non-antalgic manner" (Tr. 264), and that after the examination "he was noted to bend down and put on his socks, shoes, and tie shoelaces without difficulty" (Tr. 264). Plaintiff was noted to have a stable gait and intact reflexes (Tr. 264), and shoulder, elbow, and wrist movements were normal (Tr. 264) He was able to heel and toe walk while holding onto the bed, but described a tingly-response to sensory testing over the left lower extremity, had difficulty extending the left lower extremity and became very apprehensive, exhibited positive left straight raising to 60 degrees and complained of discomfort over the lumbosacral angle area and the left sacroiliac joint area with some discomfort along the sciatic distribution (Tr. 264-265). X-ray of the lumbar spine showed degenerative changes at the L4-5 and L5-S1 levels (Tr. 262). Dr. Waldbaum concluded that her examination showed that Plaintiff exhibited some ongoing, chronic pain behavior (Tr. 265). She noted that Plaintiff should be evaluated by a surgeon as he has a radiculopathy and would require further pain management with a behavior cognitive approach (Tr. 265). Dr. Waldbaum opined that Plaintiff Skaruppa "should be able to perform sedentary to light type work if he can obtain better control of his pain symptoms" (Tr. 265). She also stated that Plaintiff exhibited "mild chronic pain behavior," (Tr. 265).

Dr. Gregory Brant, D.O., Primary Care Physician

•July, 2008, Dr. Brant treated Plaintiff from September, 1999 to 2008 for shoulder and lower back problems (Tr. 246-247). Dr....