Roberts v. Colvin

71 F. Supp. 3d 444, 2014 U.S. Dist. LEXIS 150275, 2014 WL 5388140
CourtDistrict Court, D. Delaware
DecidedOctober 22, 2014
DocketCiv. No. 13-721-SLR
StatusPublished

This text of 71 F. Supp. 3d 444 (Roberts v. Colvin) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Colvin, 71 F. Supp. 3d 444, 2014 U.S. Dist. LEXIS 150275, 2014 WL 5388140 (D. Del. 2014).

Opinion

MEMORANDUM OPINION

ROBINSON, District Judge

I. INTRODUCTION

Dietrich Lamont Roberts (“plaintiff’) appeals from a decision of Carolyn W. Colvin, Acting Commissioner of Social Security (“defendant”), denying his application for supplemental security income (“SSI”) under Title II of the Social Securi[446]*446ty Act (the “Act”), 42 U.S.C. §§ 401-434, 1381-1383Í. The court has jurisdiction pursuant to 42 U.S.C. § 405(g).1

Currently before the court are the parties’ cross-motions for summary judgment. (D.I. 13, 15) For the reasons set forth below, plaintiffs motion will be denied and defendant’s motion will be granted.

II. BACKGROUND

A. Procedural History

Plaintiff protectively filed an application for SSI on May 25, 2010 alleging disability beginning on February 1, 2009, due to a bulging disc in his back, nerve damage, and a slipped disc. (D.I. 11 at 182, 186) On June 24, 2011, after a hearing on May 31, 2011, the ALJ denied plaintiffs claim, finding that plaintiff could perform a range of unskilled, sedentary work. (Id. at 25-40, 42-86) After the Appeals Council denied review (id. at 1-11), plaintiff filed the current action for review. (D.I. 13)

B. Medical History

1. Lower back pain

Plaintiffs medical history states that he “had sudden onset of left leg pain” while lifting furniture in 1997. He was evaluated and underwent pain management, but he refused injections at that time. He re-injured his back in 2002, was prescribed some medications and told that he might need surgery. He moved to Atlanta for a few years. Upon returning to Delaware, he was seen by a physician and was offered medical management and epidural steroid injections. Plaintiff refused any interventions. (D.I. 11 at 255)

On July 22, 2010, plaintiff completed a “function report” form in connection with his SSI claim, indicating he lived in an apartment with friends. He checked the box for “no problem” with personal care, but stated reaching and bending causes “severe pain” for “dress,” “bathe,” and “hair” care categories. He prepared “complete meals when pain subsides” twice daily taking thirty minutes to one hour. He indicated he went outside everyday, walked and took public transportation. He shopped in stores for food and clothes, once a month for two to three hours. He goes to meetings, social groups and church daily, but indicated that he did not visit friends as often as he used to. He can walk two blocks before needing to rest for twenty to thirty minutes. He can pay attention “all the time;” follows written and verbal instructions “very well;” gets along with authority figures “very good;” and handles stress “very well” and changes in routine “not so good.” He states that he uses a “brace/splint” (not prescribed by a doctor) every day, but did not check the box for a “cane.” (Id. at 191-198)

Portia Conix, D.O. (“Dr. Conix”) provided treatment to plaintiff from May to August of 2010. (Id. at 232-253) On May 24, 2010, Dr. Conix’s examination revealed-that plaintiff had intact neurological findings, spinal tenderness and painful range of motion, normal musculoskeletal findings, and normal strength and stability. Dr. Conix diagnosed plaintiff with chronic lower back pain, obesity, depression, anxiety disorder and high blood pressure. (Id. at 232) Later diagnoses included spinal stenosis. (Id. at 242) Plaintiffs medications were Percocet, Oxyeontin, Valium and Xanax. (Id. at 232) Dr. Conix’s later [447]*447treatment notes state no changes in plaintiffs status. (Id at 235-243)

On August 17, 2010, plaintiff underwent evaluation at Albert Einstein Pain Center. He complained of “lower back [pain] radiating down the left leg to the knee ... particularly worse with prolonged sitting and standing as well as bending forward.” (Id. at 255) Examination revealed plaintiff had a normal toe and heel walk that favored his left side, normal motor strength, normal light touch upon sensory examination, lumbar spine tenderness, positive straight leg raising on the right, positive Patrick’s sign bilaterally, and limited tho-raco-lumbar flexion/extension with pain. Plaintiff also had normal affect and intact memory. The examining pain management specialist, Jasmeet Oberoi, M.D. (“Dr. Oberoi”), diagnosed lumbar spinal stenosis and lumbar radiculopathy. Plaintiffs August 2008 MRI showed multilevel degenerative disc disease and lumbar spondylosis causing significant central and foraminal narrowing, particularly on the left at the L4-5 level and L5-S1 level, and displacement of the left SI exiting nerve root. Dr. Oberoi recommended a treatment plan including epidural steroid injections and medication (Percocet, Motrin, and nortriptyline). Dr. Oberoi also noted a possibility of surgery. Plaintiff refused to consider the injections or surgical options. (Id. at 255-260)

On August 26, 2010, the Commissioner scheduled a consultative physical examination by Leonard Popowich, D.O., an internist; plaintiff did not, attend. (Id. at 311)

Dr. Conix referred plaintiff to Cindy Feaster, P.T. (“Ms. Feaster”), a certified work capacity evaluator with Progressive Rehab, LLC, for treatment and evaluation of his spinal stenosis in August 2010. (Id. at 280) Ms. Feaster prescribed moist heat, electrical stimulation, neuro re-education, and a home exercise program. (Id. at 279) Ms. Feaster treated plaintiff on five occasions from August 18 to August 27, 2010. (Id. at 270-74) On September 20, 2010, Ms. Feaster filled out a functional capacity form (checking boxes without comment) indicating that plaintiff occasionally could lift up to ten pounds and carry up to twenty pounds; stand/walk for one hour or less and sit for one-half hour at a time in an eight-hour work day; was limited in his ability to push/pull with his lower extremity; occasionally could kneel and balance; never could bend, stoop, crouch, or climb; and had limitations regarding other physical functions like reaching, handling, seeing, hearing, speaking, tasting, and smelling. (Id. at 281-82) Ms. Feaster also reported that plaintiff had reduced range of motion in hip flex-ion, lumbar flexion, and flexion-extension. (Id. at 284)

Plaintiff received treatment at. Quality Community Health Care (“QCHC”) for his lower back pain.2 (Id. at 314-54) QCHC providers prescribed Percocet and Soma for his lower back pain. His medication sheet also includes Gabapentin. (Id. at 354) The providers diagnosed spinal steno-sis, radiculopathy, peripheral neuropathy and hypertension. (Id. at 321, 330, 332) On September 13, 2010, plaintiff reported relief of his back pain with Percocet. (Id. at 325) On October 18, 2010, plaintiff requested an increase in his Percocet; the physician discussed the dangers of taking large amounts of narcotics. (Id. at 327) On January 10, 2011 and February 7, 2011, plaintiff reported that the Percocet helped with his back pain. (Id. at 335, 339) On March 4, 2011 and April 4, 2011, plaintiff denied having any acute issues. (Id at 341, 345)

On September 22, 2010, Paula Vanscoy (“Ms.

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71 F. Supp. 3d 444, 2014 U.S. Dist. LEXIS 150275, 2014 WL 5388140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-colvin-ded-2014.