THOMAS J. McAVOY Senior United States District Judge
David Hunt ("Hunt") brought this suit under sections 205(g) and 1631(c)(3) of the Social Security Act ("Act"), as amended, 42 U.S.C. sections 405(g) and 1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner") denying Claimant's application for disability insurance benefits and Supplemental Security Income ("SSI") benefits. Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Plaintiff David W. Hunt filed an application for disability insurance benefits on October 15, 2000 [Administrative Transcript ("AT") 263]. He alleges disability since March 15, 1995 [AT 58] due to T-12 compression fracture; bulging disc at L4-5 and L5-S1 with 50% loss of height at L4-5; and facet joint synovitis/arthralgia.
The claim was originally denied by Administrative Law Judge Barry E. Ryan's decision dated June 26, 2002 [AT 18-24]. Hunt filed a request for review by the Appeals Council on July 23, 2002 [AT 10]. The Appeals Council denied the request for review by notice dated February 17, 2004 [AT 5-7]. After the Appeals Council denial review, Hunt commenced a civil action in district court. By stipulated remand pursuant to the fourth sentence of 42 U.S.C.§405(g), the case was returned to the Appeals Council and, by Appeals Council Order dated December 29, 2004, the case was remanded to an administrative law judge for a decision consistent with its Order.
On remand, a hearing was held on March 28, 2006 before Administrative Law Judge Robert E. Gale (the "ALJ"). Hunt testified as did vocational expert David Festa. The ALJ issued an decision dated May 24, 2006 that was unfavorable to Plaintiff, and Plaintiff filed exceptions to the ALJ's decision with the Appeals Council on June 19, 2006. The Appeals Council declined to accept jurisdiction on August 4, 2007 [AT 243-247] and this civil action followed.
b. Medical/Employment History
Hunt initially hurt his back in a skydiving incident in 1985, when he suffered a T12 compression fracture of his spine [AT 118,124]. He was hospitalized for 9 days, fitted for a back brace, and then provided physical therapy. [AT 266]. The vertebrae fused, but the pain persisted [AT 124]. He was able to "return to work in a management position" [AT 266] with the trucking company he had previously worked for as a driver [AT 124].
Hunt was 40 years old at the alleged onset date of disability of March 15, 1995 [AT 58], and was 46 years old on the dated last insured - December 31, 2000. [AT 266, 270]. He completed high school and had past relevant work as an automobile detailer, trucking company dispatcher, and fuel attendant. [AT 78, 85, 270]. He has not engaged in substantial gainful activity since the alleged onset date.*fn1 On August 1, 1995, Hunt's primary care physician referred him to orthopedic specialist Dr. Stephen Robinson due to "probable arthritis" in his back [AT 136]. Treatment notes from Hunt's primary care physician dated April 3, 1998 indicate increased pain and decreased muscle strength in both legs [AT 142].
On April 28, 1998, Hunt was evaluated by Dr. David deDianous. Hunt was tender to palpation over the thoracolumbar junction, which Dr. deDianous opined was likely related to the compression fracture [AT 127]. He was tender over the L4-5 and L5-S1 interspace [AT 127]. Upon review of the MRI, Dr. deDianous observed disc desiccation at L4-5 and L5-S1 [AT 127, 130]. There was 50% loss of height at L4-5 [AT 127]. There was a wedging at T12 from the old compression fracture and some fatty infiltration of the phylum [AT 127]. There was a diffuse disc bulge at L4-5 [AT 127]. Dr. deDianous diagnosed lumbar discogenic disease, facet joint synovitis/arthralgia, deconditioning and soft tissue tightness [AT 127]. Dr. deDianous recommended diagnostic facet joint injections at L4-5 and L5-S1 and physical therapy and prescribed Daypro 600 mg [AT 128]. However, the claimant cancelled his appointments for the facet joint injections after considering the possible complications, and stated in May 1998 that he had "joined Champion's Gym and is starting to do an independent program there under the guidance of some of the physical trainers there." AT 129.
On February 23, 1999, treatment notes from Hunt's primary care physician reveal continued back pain with an inability to bend, sit or stand due to pain [AT 144]. On November 16, 2000, Hunt was consultatively examined by Myra Shayevitz, M.D. [AT 153]. Dr. Shayevitz observed Hunt to sit with his weight on his hands [AT 154]. His gait was wide-based and had a stiff quality [AT 154]. When he attempted to walk on his heels, he was immediately off balance [AT 154]. When he walked on his toes, he limped badly and came right down [AT 154]. Dr. Shayevitz "was impressed with the degree of distress in [Hunt]" and noted that "it was obvious" that Hunt's wife was used to helping Hunt to get dressed [AT 154]. Dr. Shayevitz found Hunt to forward flex to 10 degrees, limited by pain [AT 155]. There was lumbar tenderness and right and left paraspinal tenderness. Straight leg raising was positive bilaterally at 30 degrees [AT 155]. There was decreased sensation to pinprick in the left thigh [AT 155]. Reflexes were absent at knees and Achilles tendons [AT 155]. Dr. Shayevitz opined Hunt's prognosis was "very guarded", noting that his condition was longstanding [AT 155]. Dr. Shayevitz concluded Hunt could not sit for a prolonged period of time [AT 155]. Standing, walking, stair climbing was very limited [AT 155]. He could lift and carry something light, but not repeatedly [AT 155]. Handling small objects rapidly or repetitively might aggravate his neck [AT 155].
In April 2001, state agency review physician Sury Putcha, M.D. reviewed the claimant's file as compiled at that time and determined that a residual functional capacity off sedentary work would be appropriate. [AT 269].
Hunt underwent an MRI of the lumbar spine on June 26, 2001 [AT 344]. The impression was moderate annular bulge at L4-5 entering both foramina and superimposed on the annular bulge was a possible right paramedian disc herniation [AT 344]. There was degenerative desiccation of the L5-S1 disc space with an annular bulge [AT 345]. In reliance on the MRI results, on July 17, 2001, Dr. Robinson recommended electrodiagnostic studies and renewed physical therapy for back and trunk strengthening [AT 177].
Hunt saw Scott Gingold, M.D. on August 31, 2001 for a neurosurgical evaluation at the request of Jeffrey Lape, P.A. [AT 346]. Hunt's chief complaint upon presentation was severe back pain [AT 346]. The pain was described as constant, in the lower back, radiating down into his groin and down the left leg [AT 346]. He described the pain as an aching sensation to a sharp pain [AT 346]. The pain was rated as ranging from a "7 to a 20" on a pain scale [AT 346]. Changing position from seated to standing, sitting, walking and prolonged standing increased his pain [AT 346]. With prolonged standing, the pain would radiate up his spine to his shoulders [AT 346]. Prolonged sitting caused pain in his buttock; bending increased his pain [AT 346]. He had tingling along the lateral aspect of his left knee, weakness in his left leg and trouble walking [AT 346]. On examination, deep tendon reflexes were diminished in the right lower extremity [AT 348]. Dr. Gingold's conclusion was that symptoms did not correlate well with clinical findings [AT 348]. Dr. Gingold recommended conservative treatment over surgery [AT 348].
On November 16, 2001, Dr. Robinson noted the electrodiagnostic studies revealed bilateral L5 radiculopathy [AT 178]. X-rays showed 60 degrees of tilting at L5 and S1 and 5 degrees at L4-5 [AT 178]. There was loss of disc space height at L4-5 [AT 178]. Dr. Robinson reviewed the MRI scan again, and noted central to right sided disc herniation with some extension of the disc into the foraminal bilaterally [AT 178]. Dr. Robinson opined the MRI scan correlated with the electrodiagnostic and clinical findings [AT 178]. Upon examination, there was decreased sensation in the left L5 dermatome [AT 178]. Leg raising to 90 degrees produced pain, bilaterally [AT 178]. Dr. Robinson's impression was chronic lumbar radicular syndrome secondary to L4-5 herniated disc [AT 178]. Dr. Robinson suspected lateral stenosis [AT 178]. The plan was to proceed with surgery "because of the severity and duration of his symptoms" [AT 178]. Dr. Robinson advised Hunt that "with the long duration of symptoms" he could not promise that surgery would relieve the pain, as he "may have some degree of neurological injury from the prolonged compression" and also had considerable degenerative change to his back [AT 178].
On March 1, 2002, Hunt sought a second opinion regarding the pending surgery from August R. Buerkle, Jr., M.D. [AT 186]. Dr. Buerkle noted obvious disc degeneration at L4-5. He opined Hunt may be a candidate for a discogram involving L3-4, L4-5 and L5-S1 and for a fusion attempt at the lower spine, but he did not recommend the laminectomy disc excision at L4-5, as planned by Dr. Robinson [AT 186].
Dr. Robinson's treatment notes dated March 8, 2002 again stressed the "long history" of back and leg pains [AT 181]. In discussing the outcome of surgery, Dr. Robinson wrote, "with the long duration of his history I certainly cannot promise him that this operation will relieve his symptoms as there may be some degree of permanent neurological damage" [AT 181]. A L4-5 right microlumbar discectomy was recommended. [AT 181].
Hunt had a laminotomy disc excision on the right side at L4-5 in 2002, but contended that, post-surgery, he felt pains in the right leg that was different than what he felt pre-surgery and that the post-surgery pains "were worse" than the pains experienced pre-surgery [AT 183]. ...