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Klein v. Berryhill

United States District Court, D. New Jersey

February 28, 2019

SEAN R. KLEIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION

          Freda L. Wolfson United States District Judge

         Sean R. Klein (“Mr. Klein” or “Plaintiff”), appeals from the final decision of the Acting Commissioner of Social Security, Nancy A. Berryhill (“Defendant”) denying Plaintiff disability benefits under Title II of the Social Security Act (the “Act”). After reviewing the Administrative Record, the Court finds that the Administrative Law Judge's (“ALJ”) opinion was based on substantial evidence and, accordingly, the decision is affirmed.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff was born on June 29, 1973, and was 38 years old on the alleged disability onset date of November 9, 2011. Administrative Record 94 (hereinafter “A.R.”). Plaintiff has a high school education, and prior to his alleged disability, Plaintiff worked as a produce manager, produce assistant, and in sales. A.R. 101.

         On March 15, 2013, Plaintiff applied for social security disability insurance benefits, alleging disability beginning on November 9, 2011. A.R. 326-37. Plaintiff's claims were denied on May 2, 2013, A.R. 117-21, and again upon reconsideration on July 27, 2013. A.R. 123-27. On August 3, 2013, Plaintiff requested a hearing, A.R. 129-30, which was held on October 21, 2014, before ALJ Michal Lissek. A.R. 34-56. A supplemental hearing was also held on May 24, 2016. A.R. 57-92. The ALJ determined that Plaintiff was not disabled and denied his claims for disability insurance benefits. A.R. 18-26. Plaintiff requested review by the Appeals Council, which was denied on September 26, 2017. A.R. 1-4. On October 27, 2017, Plaintiff filed the instant appeal.

         A. Review of the Medical Evidence

         Plaintiff was formerly employed as a produce manager in 2011, and his work responsibilities required him to carry produce crates which weighed between fifty and one hundred pounds, subsequent to which he developed back and neck complications. A.R. 363-64, 609.

         On October 11, 2011, Plaintiff complained of low back pain and underwent a physical examination at Sports Extra[1] in Clark, New Jersey, during which the following determinations were made: he had normal gait; he had full muscle strength; he had intact sensation. A.R. 464. However, Plaintiff's left straight leg raising test was positive, and he was ultimately diagnosed with lumbar radiculitis, back pain, and prescribed pain medication. A.R. 464. On October 25, 2011, Plaintiff's lumbar spine MRI revealed a L4-L5 disc bulge with central annular tear effacing the anterior thecal sac, and a L5-S1 grade II spondylolisthesis resulting in pseudobulge contributing to moderate-to-severe bilateral neural foraminal stenosis with contact of the bilateral exiting L5 nerve roots. A.R. 459.

         In November 2011, Plaintiff returned to Sports Extra with complaints of lower back pain that radiated down to his toes, starting approximately six months earlier. A.R. 465. Upon examination, Plaintiff had normal gait; he was capable of flexing down to the knee from a standing position; his straight leg raising tests were negative; and he had a full range of motion in his legs. A.R. 465. Plaintiff was diagnosed with lumbar radiculopathy. A.R. 465. Moreover, on November 9, 2011 and November 26, 2011, Plaintiff received two lumbar epidural steroid injections. A.R. 455-57.

         On December 22, 2011, Plaintiff returned to Sports Extra, and reported that his pain was “better but still troublesome.” A.R. 466. He also indicated that he was unable to work, because his job required him to lift “heavy boxes.” A.R. 466. Plaintiff's physical examination revealed that his left straight leg raising test was positive and he had a paraspinal muscle spasm, but he displayed full muscle strength; Plaintiff was assessed with lumbar radiculopathy and pain medication was prescribed. A.R. 466.

         On February 13, 2012, Plaintiff underwent a lumbar spine X-ray at the VA Hospital in East Orange, New Jersey, showing grade 1 spondylolisthesis at ¶ 5-S1 with bilateral spondylolysis and mild retrolisthesis of L4 in relation to L5. A.R. 477-78. However, there was no evidence of instability in the flexion and extension views, or any acute fractures or dislocations. A.R. 477-78. A lumbar spine MRI was recommended for further evaluation, in order to rule out any intrinsic abnormalities. A.R. 477.

         On March 27, 2012, Plaintiff returned to the VA Hospital with complaints of low back pain radiating down to his knees, starting approximately five to six months earlier. A.R. 608-13. Plaintiff reported that the pain decreased whenever he would lie down, but increased whenever he would either sit or walk for more than three hours. A.R. 608. In addition, Plaintiff indicated that percocet and epidural injections helped relieve the pain. A.R. 608. A physical examination revealed as follows: Plaintiff was pleasant; his was not in any apparent distress; he showed decreased lumbar lordosis and forward flexed neck; he had mild lumbar tenderness to palpation; and he exhibited decreased sensation in his thighs and right big toe. A.R. 608. However, Plaintiff had normal gait; his lumbar spine range of motion was within normal limits, although he experienced pain at the end-range of flexion; his straight leg raising tests were negative; and he was capable of walking on his heels and toes. A.R. 611-12. Plaintiff was provided with the following diagnosis: “low back pain” with “L4-L5 disc bulge w/central annular tear effacing the anterior thecal sac, and L5-Sl grade II spondylolisthesis resulting in pseudobulge contributing to the moderate to severe bilateral neural foraminal stenosis with contact on the bilateral L5 nerve roots.” A.R. 612.

         In April 2012, during two neurology consultations at the VA Hospital, Plaintiff's facial sensation was intact; he showed no droop; his shoulder shrug was strong and symmetric; he had mostly full muscle strength; and his sensation was mostly intact. A.R. 594. In addition, Plaintiff was oriented in all three spheres; his speech was fluent; he followed commands; and he had normal gait and coordination. A.R. 599-600. Plaintiff was diagnosed with “low back pain and numbness/tingling in his legs, ” which was likely secondary to lumber disk spondylithosis with radiculopathy.” A.R. 600.

         On April 24, 2012, during a follow up at the VA Hospital, Plaintiff reported low back pain radiating down to his mid-thigh area and numbness of both big toes. A.R. 590. Plaintiff indicated that his back pain worsens while sitting, although he denied spasms/stiffness in the back, and complained of tingling on the right side of his face, lips, and tongue. A.R. 590. A physical examination revealed that he did not exhibit any facial pain and he had a normal range of motion in his face; however, Plaintiff ambulated slowly; he appeared to be in moderate pain; he had mild stiffness in his neck; he displayed a decreased back range of motion; and his straight leg lifts were painful at 20 degrees. A.R. 590. Plaintiff was diagnosed with neck pain, tinea versicolor, disc herniation, spina bifida, lumbar radiculopathy, and chronic back pain, radiating down both lower limbs with numbness over both big toes. A.R. 591. On April 30, 2012, Plaintiff's cervical spine MRI revealed small, broad-based bulging of the disc at the level of C5-C6 without stenosis. A.R. 491-93.

         On June 14, 2012, Plaintiff complained of neck pain starting one month earlier, which he described as a “numbness” that begins in his neck and radiates medially towards his hands and upwards towards his head. A.R. 571-72. Plaintiff, in addition, reported that the numbness in his hands is worse whenever he raises them overhead. A.R. 572. Plaintiff's physical examination revealed that he was oriented in all three spheres, he had fluent speech, and he followed commands; he appeared pleasant, healthy, and he was not in any distress; his posture was symmetric and he was sitting comfortably; he was capable of standing without difficulty; he had full strength; he had a forward flexed neck and rounded shoulders; he had a non-antalgic gait; his Hoffman's reflex and Spurling's test were negative; and his neck extension, flexion, and rotation were all full and painless. A.R. 575. However, Plaintiff's neck side-bending was limited to 50% with neck “stiffness”; he showed some tenderness over his mid cervical parapspinals and posterior deltoids; his left straight leg raising test was positive for radicular symptoms; and he exhibited decreased sensation over all right fingers. A.R. 575-76. Plaintiff was ultimately diagnosed with neck numbness and tingling which radiated to his arms and face, lumbar radiculopathy, and possible thoracic outlet syndrome, as he exhibited weakness in his thumb abductors and decreased sensation in all right fingers during his physical examination. A.R. 576-77.

         In October 2012, during a follow up at Sports Extra, Plaintiff was diagnosed with cervical radiculitis, neck pain, shoulder pain, and low back pain. A.R. 462-63. An injection to his left shoulder was administered. A.R. 463.

         On October 23, 2012, during a follow up at the VA Hospital, Plaintiff complained of the following symptoms: lower back pain in the lumbar region radiating down the side of his legs and into his great toe bilaterally; (b) intermittent numbness and tingling in his legs; and (c) neck pain associated with bilateral shoulder, arm, hand, and face numbness, which started a few months earlier. A.R. 550. Although Plaintiff exhibited tenderness, his examination was otherwise normal: he was capable of moving all extremities; he displayed full range of motion; he had full strength; his sensation was intact; he was able to walk without assistance; his gait was normal; he had no edema, cogwheeline, fasciculations, pronator drift, or tremors; he was oriented in all three speheres; and his speech was fluent. A.R. 551. Plaintiff was diagnosed with lumbar radiculopathy and new onset neck pain associated with bilateral arm numbness. A.R. 552. Moreover, Plaintiff's electrodiagnostic evaluation was assessed as “normal, ” because “[t]he muscles examined revealed silence at rest with normal motor units and normal recruitment pattern.” A.R. 549.

         On both November 13, 2012 and January 24, 2013, during follow ups at the VA Hospital, Plaintiff was not in any acute distress; he appeared well; his shoulder and neck exhibited a full range of motion to forward flexion and extension; and he did not display any obvious muscle atrophy. A.R. 536-37, 544. However, he exhibited right deltoid tenderness to palpation at the insertion of the deltoid muscle. A.R. 536-37, 544. Plaintiff was diagnosed with chronic neck and low back pain. A.R. 544.

         On January 29, 2013, Plaintiff returned to Sports Extra, and he was diagnosed with cervical and lumbar radiculopathy. A.R. 461.

         On February 15, 2013, Plaintiff underwent a neurological examination at the VA Hospital, during which he displayed decreased sensation in his arms and legs; however, he was oriented in all three spheres, had good comprehension; his speech was fluent; he had full motor strength; his upper and lower extremities had normal tone with no muscle atrophy; he could ambulate normally; and he had intact tandem gait. A.R. 517. Moreover, Plaintiff's strength was “intact throughout” and his sensory examination findings and medical history were not consistent with any dermatomal or neurologic distribution. A.R. 519. His pain medication prescription was increased. A.R. 519.

         In addition, notes from Plaintiff's physical examination indicate that he had previously fallen down the steps because his leg “gave up.” A.R. 520. Nevertheless, he appeared well developed, well nourished, and not in any acute distress; he was oriented in all three spheres; his neck was supple; his upper and lower extremities were normal; he exhibited no back tenderness; his straight leg raising tests were negative and he had full range of motion; he displayed normal motor and sensory function; he was capable of moving all four extremities, standing, and walking; and his reflexes were normal. A.R. 523. Moreover, Plaintiff's lumbar spine MRI revealed grade 1 spondylolisthesis at ¶ 5-Sl with bilateral spondylolysis, small annular bulge, and bilateral neural foraminal stenosis. A.R. 619-21. Plaintiff was diagnosed with lower back pain. A.R. 524.

         On March 14, 2013, Eric Freeman, M.D., evaluated Plaintiff due to complaints of low back pain and neck pain, in addition to upper and lower extremity numbness without footdrop. A.R. 685. During his physical examination, Plaintiff appeared to be in mild distress; he had a reduced cervical and lumbar spine range of motion with tenderness to palpation but no atrophy; his straight leg raising tests were positive at 45 degrees; and he exhibited decreased sensation in his upper and lower extremities. A.R. 687-88. However, Plaintiff was oriented in all three spheres and cooperative; he was able to heel, toe, and tandem walk without the use of an assistive device; his Spurling's maneuver and Lhermitte's sign were negative; and he had full motor strength in his upper and lower extremities. A.R. 687-88. Plaintiff was provided with the following diagnosis: “bilateral lumbar radiculitis secondary to lumbar herniated nucleus pulposus with annular tear at ¶ 4-L5, ” “cervical radiculitis secondary to cervical degenerative disc disease with associated facet syndrome, ” in addition to “cervical and lumbar myofascial pain syndrome.” A.R. 688.

         On March 18, 2013, Plaintiff returned to the VA Hospital and reported that he had fallen while attempting to stand up from the couch due to his severe low back pain. A.R. 511. Plaintiff, in addition, complained of chronic numbness in his face, back of the head, arms, hands, legs, and feet. A.R. 511. Upon examination, Plaintiff appeared well and he was not in any acute distress; ultimately, Plaintiff was diagnosed with chronic neck and low back pain. A.R. 511.

         On March 20, 2013 and May 24, 2013, Plaintiff received lumbar epidural injections from Dr. Freeman. A.R. 690-91. Moreover, on April 23, 2013, during a follow up with Dr. Freeman, Plaintiff complained of constant and sharp pain in the cervical and lumbar region radiating to the bilateral upper and lower extremities, accompanied with numbness, tingling, cramping, spasms, and burning. A.R. 692. Upon examination, Plaintiff was in mild distress; he had cervical tenderness to palpation with no atrophy and a mild reduction in range of motion; he had lumbosacral tenderness to palpation with no atrophy and a moderately reduced range of motion; his straight leg raising tests were positive at 45 degrees; however, he appeared well nourished, well developed, and alert; he had no tenderness to palpation in his upper extremities; he had a normal range of motion and joint stability without pain in his shoulders, elbows, wrists, hips, knees, and ankles; he had no tenderness to palpation in his lower extremities; he had normal right upper extremity muscle strength and motor function; he had intact sensation in his upper and lower extremities; he had normal gait; he was able to stand without difficulty; and he was able to ambulate without an assistive device. A.R. 693-94. In addition, a mental assessment demonstrated that Plaintiff's judgment and insight were intact; his mood was normal; and his affect was appropriate. A.R. 694. Plaintiff was diagnosed with cervical radiculitis, lumbosacral radiculitis, and myofascial pain. A.R. 694.

         On May 2, 2013, State agency medical consultant James Paolino, M.D., independently examined Plaintiff's medical records, and rendered an opinion as to Plaintiff's exertional limitations. A.R. 99. In doing so, he noted that Plaintiff could occasionally lift and/or carry up to 10 pounds, frequently lift and/or carry up to 10 pounds, stand and/or walk (with normal breaks) for a total of approximately 2 hours in an 8-hour workday, sit (with normal breaks) for a total of approximately 6 hours in an 8-hour workday, and can push and/or pull objects. A.R. 99. Furthermore, Dr. Paolino indicated that Plaintiff should never crouch, crawl, or climb ropes, ladders, and scaffolds; can occasionally climb ramps/stairs and kneel; and has no difficulty balancing. A.R. 100. Finally, Dr. Paolino determined that Plaintiff did not suffer from any manipulative, visual, communicative, or environmental limitations. A.R. 101. On July 25, 2013, Mary McLarnon, M.D., a second State agency medical consultant, independently reviewed Plaintiff's medical records and affirmed Dr. Paolino's findings. A.R. 110-12.

         On May 21, 2013, during a follow up with Dr. Freeman, Plaintiff complained of constant and sharp pain in the cervical and lumbar region, radiating to the bilateral upper and lower extremities, accompanied with numbness, tingling, cramping, spasms, and burning. A.R. 697. During an examination, Plaintiff appeared well nourished, well developed, alert, but in mild distress; he had cervical tenderness to palpation with no atrophy and a mild reduction in range of motion; he had lumbosacral tenderness to palpation with no atrophy and a moderately reduced range of motion; his straight leg raising tests were positive at 45 degrees; however, he had normal right upper extremity muscle strength, motor function, and intact sensation; he had normal gait; he was able to stand without difficulty; and he was able to ambulate without an assistive device. A.R. 698. In addition, Plaintiff's mental status exam demonstrated that his judgment and insight were intact; his mood was normal; and his affect was appropriate. A.R. 698. Plaintiff was assessed with cervical radiculitis and grade 1 lumbosacral radiculitis A.R. 698-99.

         On June 27, 2013, during a follow up with Dr. Freeman, Plaintiff appeared well nourished and well developed, alert, but in mild distress; he had cervical tenderness to palpation with no atrophy; his cervical range of motion was mildly reduced; he had mild lumbosacral tenderness to palpation; he had normal lumbosacral range of motion; his straight leg raising tests were positive at 45 degrees; however, his upper and lower extremities were all normal with intact sensation; his right upper extremity strength and motor function were normal; his sensation was reduced in the distal extremities; he had normal gait; he was able to stand without difficulty; and he was able to ambulate without an assistive device. A.R. 701. Moreover, Plaintiff's mental status exam revealed that his judgment and insight were intact; his mood was normal; and his affect was appropriate. A.R. 701. Plaintiff was assessed with cervical radiculitis, lumbosacral radiculitis, and myofascial pain. A.R. 701-02.

         On August 13, 2013, Plaintiff's cervical spine MRI showed a C3-C4 disc herniation mildly indenting the anterior thecal sac, a C4-C5 disc bulge, and a C5-C6 disc herniation with uncovertebral hypertrophy contributing to mild central canal and bilateral neural foraminal stenosis. A.R. 720. The medical notes indicate that Plaintiff's MRI findings slightly progressed since his prior exam. A.R. 720.

         On September 24, 2013, Plaintiff was admitted to the emergency department at The University Hospital, where he was diagnosed with lower back pain, thoracic spine pain, degeneration of the lumbar or lumbosacral intervertebral disc, degeneration of the cervical intervertebral disc, and neck pain. A.R. 726. Plaintiff's lumbar spine x-ray revealed spondylolysis with grade 1 anterior spondylolisthesis of L5 on S1 with no acute fracture. A.R. 728. In addition, Plaintiff's cervical, thoracic, and lumbar spine MRI showed spondylolysis at ¶ 5 with approximately 6 millimeters of anterolisthesis of L5 on S1, multi-level degenerative changes resulting in central canal and neuroforaminal stenosis, an impingement of the right L5 nerve root in the neural foramen, and a small disc bulge at ¶ 4-L5 which contacts the descending right L5 nerve root without impingement. A.R. 732.

         In a letter dated October 4, 2013, Antonios Mammis, M.D., indicated that Plaintiff first “developed severe pain of the head, low back, and bilateral lower and upper extremities” in 2011, and, in addition, although Plaintiff had received four epidural injections, they have not provided him with relief. A.R. 891. Dr. Mammis also described the results of Plaintiff's physical examination, during which he was not in any acute distress; he was pleasant and cooperative; his cranial nerve examination was within normal limits; he had normal bulk and tone; he had full muscle strength; and he had normal reflexes. A.R. 891. In his concluded remarks, Dr. Mammis diagnosed Plaintiff with neuropathic pain syndrome, most pronounced in his low back and bilateral lower extremities with no true anatomic correlate, and indicated the he was referring Plaintiff to Anthony Sifonios, M.D. A.R. 892.

         On October 4, 2013, Anthony Sifonios, M.D., began treating Plaintiff. A.R. 954. During a physical examination, Plaintiff appeared well developed and well nourished; his neck was supple but exhibited some possible mild muscle spasm; his back flexion was approximately 90 degrees while his back extension was about 10 to 15 degrees and caused pain; his lateral rotation to the right side produced significant pain; he exhibited tenderness to palpation overlying the right L4-L5 and L5-S1 facet joints; and he showed decreased sensation over the L5 dermatome. A.R. 954.

         On December 5, 2013, Plaintiff received a facet joint injection. A.R. 786. On January 30, 2014, Plaintiff underwent nerve conduction testing at the Rutgers Neurological Institute of New Jersey, as a result of his chronic neck pain, numbness, tingling, and weakness in both upper extremities. A.R. 936. Specifically, Plaintiff's results revealed “neurophysiological evidence of left mild median nerve dysfunction of the wrist consistent with mild carpel tunnel syndrome.” A.R. 936.

         On February 20, 2014, during an appointment with the orthopedic department of The University Hospital, Plaintiff complained of cervical neck pain radiating to his arms, diffuse numbness across the chest and abdomen, and lumbar back pain radiating to his legs. A.R. 737. Plaintiff also reported that that he ceased driving because he is unable to maintain a seated position for a long duration, and that he prefers supine or semi-erect positioning. A.R. 737. Upon examination, Plaintiff exhibited full strength and a full cervical range of motion with minimal worsening pain and no tenderness to palpation; however, Plaintiff showed decreased sensation in his right arm, thorax, and right leg; he walked with a mild antalgic slow gait, although he was capable of maintaining a heel and toe walk. A.R. 738. Plaintiff was ultimately assessed with right leg paresthesia, lumbar back and radicular pain, and possible thoracic syndrome based on the symptoms in his bilateral upper extremities. A.R. 738.

         On March 28, 2014, during a follow up, Dr. Sifonios indicated that Plaintiff's prior “right-sided L3-L4, L4-L5 and L5-S1 diagnostic medial branch block” on December 5, 2013, provided him with an approximately 90% reduction of his low back pain. A.R. 950. Upon examination, Plaintiff was oriented in all three spheres and he appeared well developed and well nourished without any acute distress; his neck was supple; his back flexion was about 90 degrees; his straight leg raising tests were negative; and he had full motor strength in his upper and lower extremities. A.R. 950. However, his back extension was approximately 10 to 15 degrees and caused pain; he exhibited bilateral paraspinal lumbar muscle spasm with tenderness over the right L4-L5 and L5-S1 facet joints; and he had decreased sensation over the right L5 dermatome. A.R. 950 Ultimately, Dr. Sifonios diagnosed Plaintiff with chronic low back pain with bilateral radicular symptoms. A.R. 951.

         On April 17, 2014, Plaintiff was examined by Dr. Sifonios for L5-S1 spondylolisthesis, and, at an outpatient assessment, Plaintiff had a normal physical screening, including an independent steady gait and an active range of motion; Plaintiff was also oriented in all three spheres; his speech was normal; and he was cooperative. A.R. 810.

         On June 27, 2014, during his follow up with Dr. Sifonios, Plaintiff reported chronic low back pain with bilateral lower extremity radiculopathy and neck pain with radiculopathy. A.R. 946. Upon examination, Plaintiff appeared well developed, well nourished, and in no acute distress; his neck flexion was 90 degrees with an extension of 10 degrees; he exhibited full motor strength; his back flexion was approximately 90 degrees with an extension of 30 degrees; and he had intact sensation in the upper extremities; however, Plaintiff's straight leg raising test was positive, and he exhibited decreased sensation in the right lower extremity. A.R. 946-47. Dr. Sifonios ultimately diagnosed Plaintiff with “chronic low back pain with radiculopathy secondary to ...


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