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Rhodes v. Commissioner of Social Security

United States District Court, D. New Jersey

March 5, 2019







         This matter comes before the Court pursuant to 42 U.S.C. § 405(g) for review of the final decision of Defendant Commissioner of the Social Security Administration (hereinafter “Defendant”) denying the application of Plaintiff George M. Rhodes, III (hereinafter “Plaintiff”) for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff, who suffers from lumbar disc disease, status-post lumbar fusion surgery and spinal cord implantation procedure, lumbar radiculopathy, and anxiety, was denied benefits for the period beginning on November 20, 2012, the alleged onset date of disability, to October 5, 2016, the date on which Administrative Law Judge Marguerite Toland (hereinafter “ALJ Toland” or “the ALJ”) issued her written decision.

         In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on numerous grounds, including that the ALJ erred by failing to properly weigh the medical evidence, specifically by giving greater weight to the non-treating physician's opinion that was based only on Plaintiff's medical record as it existed in November 2013, and by failing to properly evaluate Plaintiff's testimony at the ALJ hearing, in particular by improperly discounting Plaintiff's statements regarding his spinal conditions and by suggesting that the severity of Plaintiff's conditions are contradicted by a gap in his treatments without questioning Plaintiff about the alleged gap in treatment during the hearing.


         A. Procedural History

         Plaintiff filed his application for Social Security disability benefits on June 3, 2013, alleging a disability onset date of November 20, 2012. (Administrative Record (hereinafter “R.”) [Docket Item 7], 43.) Plaintiff's claim was denied by the Social Security Administration on November 25, 2013. (Id.) Plaintiff's claim was again denied upon reconsideration on February 28, 2014. (Id.) Plaintiff next testified before ALJ Toland at a hearing on May 24, 2016. (Id.) ALJ Toland issued her opinion on October 5, 2016, denying Plaintiff benefits. (Id. at 43-52.) On November 14, 2017, the Appeals Council denied Plaintiff's request for review. (Id. at 1-4.) This appeal timely follows.

         B. Medical History

         Plaintiff has been diagnosed with lumbar disc disease, status-post lumbar fusion surgery and spinal cord implantation procedure, lumbar radiculopathy, and anxiety. (Id. at 45.) In 2002, Plaintiff had a lumbar fusion surgery and, after recurring back pain, he underwent a surgery in 2004 to remove hardware from the earlier surgery. (Id. at 244-53.)

         Subsequently, at least as early as the autumn of 2012, Plaintiff began receiving treatment for severe back pain from his primary care physician, Dr. Joseph Cavallaro, D.O., (id. at 408), from his orthopedic surgeon, Dr. Steven J. Valentino, D.O., (id. at 273-88), from his pain management specialist, Dr. Youssef Josephson, D.O., (id. at 318-20), and from his neurologist, Dr. Robert A. Sammartino, D.O. (Id. at 264-71.) Due to the severity of the pain Plaintiff was experiencing, his treatment included providing Plaintiff with prescription painkillers. On October 4, 2012, Dr. Valentino wrote Plaintiff a prescription for Percocet.[1](Id. at 287.) On December 2, 2012, Dr. Josephson determined that Percocet was insufficient to treat Plaintiff's pain, and therefore he prescribed Cymbalta.[2] (Id. at 318-20.) After his physicians determined that treating Plaintiff's pain with medication alone was insufficient, Plaintiff later underwent multiple surgeries to mitigate the pain caused by his various back/spine conditions, including the implantation of multiple spinal cord stimulators on December 27, 2012 and on January 17, 2013. (Id. at 293-98, 323-27.)

         Initially, Plaintiff stated that the implanted spinal cord stimulators were helpful in reducing his back pain. (Id. at 310-11.) However, by the summer of 2013, Plaintiff indicated to his doctors that the pain had returned and that the spinal cord stimulator was “sputtering” and not working correctly. (Id. at 305-07, 402-11.) Dr. Cavallaro's notes from September 17, 2013 indicate that

there were 2 broken leads [on Plaintiff's spinal cord stimulator], [Plaintiff] had it adjusted and the problem still continued, [in August 2013] it stopped working, now [Plaintiff's] pain has progressed[.] Now there are 5 broken leads and it was reprogrammed[.] He is not getting [relief.]

(Id. at 402.)

         On September 30, 2013, Plaintiff met with Dr. Valentino, who noted that Plaintiff continues to complain of back pain, that the spinal cord stimulator was not fully functioning, and that Plaintiff may require another procedure to properly reinstall or replace the stimulator. (Id. at 330.) On October 14, 2013, Plaintiff returned to see Dr. Cavallaro, and he reported that he was still experiencing back and leg pain, that the spinal cord stimulator was not functioning properly; Dr. Cavallaro also noted that Plaintiff exhibited a decreased range of motion and weakness in his legs. (Id. at 399-401.)

         In the meantime, the records in Plaintiff's case as of the fall of 2013 were evaluated by a consultant, Dr. Andrew Przybyla, M.D., [3] on November 22, 2013. (Id. at 108-16.) Dr. Przybyla did not examine Plaintiff, nor did he mention reviewing any medical record dated after October 25, 2013. (Id. at 109.) Dr. Przybyla further noted that, by that point in time, he was aware of no opinion evidence from any source regarding disability (Id. at 114.) Dr. Przybyla's explanation for finding no disability will be addressed in more detail, below.

         On November 13, 2013, Plaintiff had a consultation with Dr. Ashwini D. Sharan, M.D., a neurologist. (Id. at 351-52.) Dr. Sharan indicated that Plaintiff's spinal cord stimulator was not functioning and that it was likely that Plaintiff would have to undergo another surgery in order to place a new, stronger stimulator. (Id.) The medical record appears to indicate that Dr. Sharan later surgically placed a new stimulator with “paddle” leads, [4] (id. at 350, 359-363, 383-86), and that the new stimulator provided greater pain relief. (Id. at 350.) However, by summer of 2014, Plaintiff indicated to Dr. Cavallaro that he was still experiencing lower back, hip, and leg pain. (Id. at 379-86.)

         On November 14, 2014, Dr. Cavallaro produced an opinion regarding Plaintiff's ongoing medical conditions and Plaintiff's ability to work as a result of those conditions. (Id. at 333-37.) In that opinion, Dr. Cavallaro indicated that, in addition to the new spinal cord stimulator that had been installed by Dr. Sharan, Plaintiff was still using the medications Percocet, Cymbalta, and Neurontin to manage his back pain. (Id.) Dr. Cavallaro further opined that, even with the combination of the three medications and the spinal cord stimulator, Plaintiff could not sit any more than 20 minutes at a time, could never carry more than 20 pounds, that Plaintiff's pain or other symptoms would interfere with his ability to concentrate for between one-third and two-thirds of an 8-hour workday. (Id.) In addition, Dr. Cavallaro indicated that he expected Plaintiff's medical conditions would cause Plaintiff to be absent from work more than three days per month. (Id.)

         Plaintiff's complaints of back pain to Dr. Cavallaro continued through 2014, 2015, and 2016. (Id. at 364-75, 387-90.) During various portions of that time, Plaintiff was prescribed Valium, Flexeril, Skelaxin, and Baclofen, all of which appear to have been provided to Plaintiff in order to relieve muscle spasms.[5](Id. at 364-90.) Additionally, on May 28, 2015, Dr. Cavallaro noted that Plaintiff's new spinal cord stimulator was not sufficiently controlling his back spasms and would need to be adjusted; during that visit Dr. Cavallaro also noted that Plaintiff was in need of a new pain management regime to control his lower back pain, presumably because the existing combination of medications and spinal cord stimulation was insufficient. (Id. at 372-74.)

         On April 11, 2016, Plaintiff met with Dr. Cavallaro to discuss an injury to his knee caused while doing yardwork, (id. at 340-42, 366-68), and on May 18, 2016 Plaintiff returned to Dr. Cavallaro complaining of back, elbow, and shoulder pain, resulting from an alleged physical assault.[6] (Id. at 364-65.) On May 27, 2016, Plaintiff saw Dr. Andrew Medvedovsky, M.D., a neurologist specializing in pain medicine, at which time Plaintiff continued to complain of lower back pain and noted that the pain had spread to his upper back and ...

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