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Errico v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

November 5, 2018

SAMUEL ERRICO, II, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Samuel Errico, II (“Errico” or “the Claimant”) and Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“the Commissioner.”) [Record Nos. 15, 17] Errico argues that the Administrative Law Judge (“ALJ”) assigned to his case erred in concluding that he was not disabled within the meaning of the Social Security Act (“Act”). Specifically, he asserts that the ALJ did not properly evaluate his subjective complaints and that the ALJ's decision is not supported by substantial evidence. Errico asks the Court to direct the Commissioner to award him benefits or, in the alternative, to remand this matter to the Commissioner for further consideration. The Commissioner contends that the ALJ properly evaluated the evidence and that the ALJ's decision should be affirmed because it is supported by substantial evidence.

         The Commissioner's motion will be granted and the Claimant's motion will be denied for the reasons that follow.

         I. Procedural History

         Errico filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Act on February 5, 2015. [See Administrative Transcript, hereinafter “Tr., ” 132.] Errico requested a hearing before an ALJ after the application was denied initially and on reconsideration, . [Tr. 72-86] He appeared before ALJ Dennis Hansen at a administrative hearing in Middlesboro, Kentucky in April 2017. [Tr. 48, 1000-22] ALJ Hansen denied benefits in a written decision issued on July 20, 2017. [Tr. 45-59] The Appeals Council affirmed the ALJ's decision in March 2018. [Tr. 10-14] Accordingly, the Claimant has exhausted his administrative remedies and this matter is ripe for review under 42 U.S.C. § 405(g).

         II. Background

         Errico was forty-five-years-old at the time of his application for benefits. [See Tr. 57, 132.] He completed the twelfth grade and worked previously as an electrician and a restaurant cook. [Tr. 202] Errico reported that he was laid-off from his job as an electrical foreman on November 1, 2011, but he also became unable to work on that date due to low back pain that began in 2007. [Tr. 61, 152, 195, 202] He reported in December 2015 that his balance had worsened and he experienced increased pain in his neck, upper back, and legs. [Tr. 213]

         Errico reported that he felt sharp pains when he moved the wrong way, and he could not bend, sit, or stand for long periods of time. [Tr. 196-97] He used over-the-counter medications, a heating pad, and stretching to manage the pain. [Tr. 197] He was able to take out the trash, go shopping in short intervals, and take short walks. [Tr. 198] However, he could no longer get in and out of the shower without assistance or hunt and fish like he had done previously. [Tr. 197-98]

         Robert Hurford, M.D., performed a decompressive laminoplasty and arthrodesis at ¶ 4-L5 to treat Errico's spinal stenosis and leg pain in October 2010. [Tr. 237-38] Errico reported that the back pain was better and he was walking without an assistive device a few weeks after the surgery. [Tr. 233] Physician's assistant Todd Osterbur indicated that strength was normal “in the operative extremity” and that Errico's gait was normal. [Tr. 234] Osterbur directed Errico to begin a physical therapy back rehabilitation program. [Tr. 234]

         Errico sought treatment at Mountain Comprehensive Care Center in 2016. [Tr. 266] He reported at that time that he had not seen a doctor since his back surgery in 2010. [Tr. 266] An x-ray of Errico's lumbar spine performed in February 2016 revealed “transitional vertebra and mild compression of the lower thoracic vertebral bodies, ” a fixation device at ¶ 4-L5, and unremarkable lower lumbar vertebral bodies. [Tr. 270] An x-ray of the cervical spine was performed in June 2016, but it was negative. [Tr. 315]

         A lumbar MRI in August 2016 showed mild degenerative changes at ¶ 1 and L2 with an anterior osteophyte. [Tr. 354] There was a moderate circumferential bulge at ¶ 3-L4 with moderate spinal stenosis and moderate circumferential bulge at ¶ 4-L5 with marked spinal stenosis. There was no recurrent herniated nucleus pulposis, but there was a moderate broad-based bulge with mild to moderate stenosis at ¶ 5-S1. [Tr. 355] The study also showed compromise of the left intervertebral foramina at ¶ 4-L5. Nerve conduction velocity studies were performed on both legs in July 2016. [Tr. 381] Sujata Gutti, M.D., diagnosed chronic right L5 radiculopathy, S-1 nerve root involvement, and a “mild sensory type of peripheral neuropathy.” [Tr. 381]

         Agency consultant Kathleen Monderewicz, M.D., examined the Claimant in March 2015. [Tr. 279] He advised Monderewicz that he did not experience any significant improvement after his back surgery and that he had developed symptoms down both legs to his ankles. [Tr. 279] He reported that a second back surgery was offered to him, but he declined. [Tr. 279-80] Errico also reported pain in his neck and numbness and tingling in his upper extremities. [Tr. 280]

         Monderewicz noted that Errico had a stiff gait, but did not walk with a limp. [Tr. 281] He appeared comfortable in the sitting and supine positions, but displayed signs of discomfort upon lying down and rising from the exam table. Errico could bend forward to 50 degrees and could extend his lumbar spine to 15 degrees. [Record No. 286] There was no tenderness upon palpation of the cervical spine, but there was some audible crepitus during active range of motion, which was slightly decreased [Tr. 283, 285] Errico reported tenderness at the L-3 spinous process and at both sacroiliac joints. The straight leg raise test was positive at 65 degrees on the right and 60 degrees on the left, but Errico was able to stand on one leg at a time without difficulty. [Tr. 283]

         While there was no evidence of muscle atrophy, Monderewicz concluded that Errico's lower extremity motor strength was inhibited by low back pain. [Tr. 283] This was particularly notable with respect to right ankle plantar flexion, left knee flexion, and the left extensor hallucis, which were all graded as four out of five. However, sensation and deep tendon reflexes were intact and symmetrical. Errico was able to walk on his heels and toes and could maintain balance while ...


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