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James Pagan v. Michael J. Astrue

June 14, 2012

JAMES PAGAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff James Pagan brought this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), appealing a final decision of the Social Security Administration denying his claim for Social Security benefits.

I. FACTS

The following facts are taken from Plaintiff's brief, to which Defendant consents, with the exception of any inferences, arguments, or conclusions. See Def. Mem. of Law at 1.

On the alleged onset date of March 18, 2008, plaintiff was 23 years old. T 128, 135. Plaintiff reported completing the 9th grade in 1999, and received automotive job training completed in 2001. T 174. He reported past work as a mechanic. T 177. Plaintiff's date last insured is December 31, 2013. T 165.

On March 21, 2008, Plaintiff treated with Elwira Kulawik, D.C., for an injury "sustained during the course of employment two months ago." T 243. Plaintiff reported severe low back pain, numbness, and weakness of his extremities. T 243. Physical examination revealed positive cervical compression, positive Kemp's test, positive straight leg raise, and "moderate spasms over cervical and thoracic L5 junction." T 243. Plaintiff had dull sensation over bilateral wrists to finger tips and left/right L5 dermatone. T 243. Plaintiff was diagnosed as suffering from cervical sprain/strain. T 243.

On June 5, 2008, Plaintiff treated with Rosa Cannata, RPA-C, and Carri A. Jones, M.D. T 246. Plaintiff reported numbness and tingling to both of his hands, pain in the neck and across the lower back. T 245. Physical examination revealed "tenderness to palpation at the C6, C7 paravertebral level bilaterally" and "tenderness to the paraspinal level just to the left side of the C6-7 level." T 246. Plaintiff had lumbar forward flexion range-of-motion of 40 degrees and extension to 20 degrees with discomfort. T 246. X-rays obtained on June 7, 2008 showed minimal degenerative disease, and "some changes within the L5 vertebral body with a question of a fracture at this level." T 246. Plaintiff was diagnosed as suffering from neck pain and questionable L5 vertebral fracture. T 246. Plaintiff was prescribed Ultracet, Skelaxin, and Mobic. T 246. Plaintiff had a temporary total disability pending further evaluation. T 246.

On July 1, 2008, Vincent V. Sportelli, D.C., performed a chiropractic consultation of Plaintiff. T 270. Plaintiff reported low back, mid back, and shoulder pain. T 270. Plaintiff stated that he "experiences numbness and tingling in both legs and hands." T 271. Plaintiff had a positive Kemp's test on the right, tenderness to palpation on the right from C6-T4, T7-T9 and bilateral L3-L5. T 272. Plaintiff had positive Milgram's test, positive Yeoman's test bilaterally, and positive right Deerfield sign. T 272. "Kinesiological muscle testing revealed weak upper trapezius muscles bilaterally, weak middle trapezius muscles bilaterally, weak quadratus lumborum muscle on the right as compared to the left, and weak right hip flexors and extensors as compared to the left." T 272. Chiropractor Sportelli diagnosed Plaintiff as suffering from lumbar strain and underlying grade one spondylothesis with spondylyiosis L5-S1. T 272. Plaintiff was restricted to "no bending/twisting at waist, no lifting on any repetitive basis, no lifting over 10-15 pounds, no climbing, no overhead arm extension and no squatting." T 273. Chiropractor Sportelli also stated that "this examinees excessive weight is problematic in this case. It no doubt challenges the spondylothesis that is revealed on imaging studies of his lumbar spine." T 273.

On August 4, 2008, Plaintiff treated with PA Canatta and Dr. Jones. T 290. Physical examination revealed tenderness to palpation to the right paravertebral area into the trapezius on the right and mild tenderness to the posterior aspect of the right shoulder. T 290. It was noted that an MRI completed on July 31, 2008 revealed minimal cervical disc bulges at C4-5, C5-6, and C6-7. T 290. MRI of Plaintiff's lumbar spine "reveals a Grade I spondylolisthesis of L5 on S1," and "some disc desiccation noted at this level and significant right and left foraminal stenosis noted at the L5 level. Also, T10-11, T 11-12 mild disc bulges with minimal disc desiccation." T 290. Plaintiff was diagnosed with grade I anterolisthesis L5 on S1 with foraminal stenosis at L5 and cervical spondylosis with mild disc bulges from C4 through C7. T 290. Plaintiff was prescribed Ultracet, Skelaxin, and Mobic. T 289. Plaintiff was "temporarily totally disabled at this time from his current job." T 289.

On September 15, 2008, Plaintiff treated with Amy Gemelli, RPA-C, and Dr. Jones for neck and low back pain. T 294. Plaintiff reported that most of his pain "is across the back of his neck and around the right scapula. He also has back pain with pain across the back radiating into the buttocks. He also has dysesthesias to the feet bilaterally." T 294.

Plaintiff was diagnosed as suffering from "grade I anterolisthesis L5 on S1 with foraminal stenosis at L5" and "cervical spondylosis with mild disc bulges from C4 through C7." T 294. Plaintiff was prescribed Mobic, Ultram, Topamax, and Skelaxin. T 294. It was noted that Plaintiff has a "partial marked disability. He would be appropriate for a more sedentary position." T 294.

On September 24, 2008, Chiropractor Kulawik treated Plaintiff for low back pain, and numbness in the bilateral upper and lower extremities. T 276. Plaintiff reported "constant low back pain and leg pain," and had difficulty getting out of bed and sleeping at night due to pain. T 276. Plaintiff "requires assistance getting dressed and is unable to drive to his appointments." T 276. Physical examination revealed moderately limited lumbar range of motion in all planes. T 276. Plaintiff was positive for cervical compression, Kemp's test, straight leg raise, multiple spasms, and multiple trigger points. T 276. Plaintiff was "totally disabled from light and regular duties." T 276. Plaintiff was diagnosed as suffering from lumbar sprain/strain, lumbar degenerative disc disease, cervical sprain/strain, and thoracic sprain/strain. T 276.

On October 14, 2008, Gregory Shankman, M.D., conducted an independent medical examination of Plaintiff at the request of the Workers' Compensation insurance company. T 257. Physical examination revealed reduced range-of-motion of back flexion of 30 degrees, extension to 10 degrees, side bending to 10 degrees, and rotation of 10 degrees. T 258. Plaintiff reported pain of 9/10. T 267. Dr. Shankman diagnosed Plaintiff as suffering from spondylolisthesis with degenerative disc disease of the lumbar spine, and morbid obesity. T 259. Plaintiff had a "temporary moderate partial disability." T 268. On November 12, 2008, the Workers' Compensation Board awarded Plaintiff benefits. T 125.

On November 26, 2008, Dr. Jones diagnosed Plaintiff as suffering from "L5-S1 spondylolisthesis/spinal stenosis/radiculitis/discogenic pain." T 292. Dr. Jones performed a S1 transforaminal epidural steroid injection. T 292. On January 5, 2009, Dr. Jones performed a cervical transforaminal epidural steroid injection of Plaintiff's right L1. T 288. Dr. Jones noted that Plaintiff "continues with pain with the fluoroscopic notation of T11-12 end plate spur formation/slight lateral subluxation." T 288.

On January 28, 2009, Plaintiff treated with PA Gemelli and Dr. Jones for follow-up of low back pain status post right S1 epidural injection. T 254. Plaintiff reported no change in his symptoms. T 254. Plaintiff "continues with the pain across the low back, pain in the higher lumbar region and the lower lumbar region, pain that radiates into the buttocks as well." T 254. Plaintiff had tenderness "over the L4 through S1 paravertebral area, right greater than left, L5-S1 paravertebral area, right greater than left, and at the T11-12 paravertebral area bilaterally." T 254. Plaintiff was diagnosed as suffering from T11-12 herniated nucleus pulposus and L5-S1 spondylolisthesis. T 254. Plaintiff was prescribed Ultracet, Skelaxin, Mobic, and Topamax. T 254. On January 29, 2009, Dr. Jones noted that Plaintiff suffered from a "total disability." T 253.

On February 10, 2009, Plaintiff treated with Abbie Oxford PT, DPT, with complaint of lower back pain secondary to spondylolithesis and T11-12 herniated nucleus pulposus. T 251. Plaintiff reported occasional back spasms and intermittent tingling extending down to his feet. T 251. Plaintiff also stated that he has increased lower back pain "with ambulating greater than 15 feet or prolonged standing greater than 10 minutes (unable to do dishes without a break)." T 251. Plaintiff "takes meds, uses heat and/or biofreeze to help decrease [low back pain]. T 251. Trunk extension active range of motion was moderately limited with 7/10 lower back pain. T 251.

On March 16, 2009, Dr. Shankman again examined Plaintiff. T 264-66. Plaintiff's back range-of-motion had flexion to 40 degrees, extension to 20 degrees, side bending to 20 degrees, and rotation 20 degrees bilaterally. T 265. Dr. Shankman diagnosed Plaintiff as suffering from spondylolisthesis with degenerative disc disease, and morbid obesity. T 265. Dr. Shankman restricted Plaintiff to lifting 50 pounds or less, but cannot work overhead, cannot climb ...


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