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Smith v. Colvin

United States District Court, D. Massachusetts

September 22, 2014

KERRIN R. SMITH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


PATTI B. SARIS, Chief District Judge.


Plaintiff Kerrin R. Smith filed this action pursuant to 42 U.S.C. ยงยง 405(g), 1383(c)(3) for judicial review of the decision of the Administration Law Judge ("ALJ") for the Social Security Administration ("SSA") denying his application for Supplemental Security Income ("SSI") benefits. He moves to reverse the Commissioner's decision, arguing that (1) the ALJ failed to give proper weight to the treating physician's account of his disabilities, and (2) the ALJ's vocational conclusions were not supported by substantial evidence. Defendant, meanwhile, moves to affirm the Commissioner's Decision.

For the reasons set forth below, the Court DENIES Plaintiff's Motion to Reverse and Remand the Decision of the SSA (Docket No. 18), and ALLOWS Defendant's Motion to Affirm the Commissioner's decision (Docket No. 23).


At the time of the hearing before the ALJ on March 15, 2012, plaintiff was 40 years old and had a 17 year-old daughter. R. 19, 41. Plaintiff graduated from high school and completed two years of college credits. R. 162. Plaintiff lives with his mother and stepfather and contributes to the household by giving his mother his Department of Transitional Assistance benefits. R. 42. His intermittent work history, spanning the period from 1993 to 2006, included employment as a driver, a telemarketer, and some light painting jobs. R. 187-192.

A. Medical History

In 1990, plaintiff was shot four times and sustained gunshot wounds to his back, left arm, and right leg. R. 39. He alleges several debilitating physical conditions, including degenerative disc disease, bilateral hip disorder, and right leg disorder, which arose from the gunshot wounds and subsequent surgeries. R. 161-62.[1] He also alleges that these conditions have deteriorated to such an extent that they prevent him from performing any substantial gainful activity so that he is no longer able to work. R. 39-40.

1. Degenerative Disc Disease

In 1990, plaintiff had a laminectomy and fusion performed on his spine immediately after he suffered gunshot wounds to his back. R. 227. He has suffered from chronic back pain ever since the shooting. R. 395. From 1990 to 2008, plaintiff's residual pain continued to increase, and he developed hip and right leg pain as his back pain worsened. R. 17.

In January 2008, plaintiff made two emergency room visits with complaints of back pain. R. 299-305. In April 2008, he was evaluated by Tony Tannoury, M.D., an orthopedist. R. 417. Plaintiff reported back and right leg pain which worsened upon sitting and standing. Id . Dr. Tannoury found diffuse lower back tenderness and noted that plaintiff was able to bend and touch his knees and perform bilateral straight leg raises. R. 418-19. Dr. Tannoury diagnosed him with degenerative disc disease, prescribed physical therapy, and referred him for a CT Scan to assess for any neurological compression. R. 419.

In May 2008, a CT scan performed at Boston Medical Center revealed lumbar postoperative changes at L4-L5 with shrapnel in the spinal canal, bilateral L5 spondylolysis and degenerative changes at L5-S1. R. 498-99. By July 2008, plaintiff reported worsening back symptoms, despite his physical therapy. R. 434.

In January 2009, Dr. Tannoury identified plaintiff as a candidate for back surgery; and in March 2009, he performed L5-S1 transforaminal lumbar inter-body fusion on plaintiff. R. 243-45, 259. In a follow-up exam the next month, plaintiff reported that his deep-seated pain had resolved and denied any numbness or tingling in his legs. R. 428. A subsequent X-ray of the lumbar spine on April 15, 2009, showed improvement in the area following surgery. R. 238. During another visit in July 2009, plaintiff again reported improvement with respect to his lower back pain, although he complained of a new symptom of hip pain, discussed infra. R. 427.

On February 26, 2010, plaintiff saw Eduard Vaynberg, M.D., of the New England Pain Management Consultants at Boston Medical Center for an initial evaluation. R. 531-34. Plaintiff reported to Dr. Vaynberg that his lower back pain radiated into his buttocks, and that the pain was constant, worse in the morning, and exacerbated by walking long distances or prolonged sitting. R. 441. Dr. Vaynberg's examination revealed that plaintiff was somewhat tender to and somewhat limited in lumbar extension, although his strength was 5/5 in all lower extremity major muscle groups. R. 442. Dr. Vaynberg also reviewed plaintiff's prior X-rays and noted that the images showed an intact fusion in his back from prior surgery. R. 533. His treatment plan for plaintiff's lower back was to start with a caudal epidural steroid injection "to provide him with some relief." R. 442. Plaintiff received these steroid injections in his back in February and March of 2010. R. 287-90.

Meanwhile, from January 2010 to March 2010, plaintiff underwent physical therapy to increase mobility and decrease pain in his back. R. 261-285. In March 2010, Amanda Shirah, plaintiff's physical therapist, opined that plaintiff's major functionality had been restored, but that his back pain increased with extended walking and sitting, lifting more than 15 pounds, bending, and climbing more than three flights of stairs. R. 263-65.

Plaintiff again received epidural steroid injections in his spine in May and June 2010 at Boston Medical Center. R. 468, 473. In May 26, 2010, a CT scan of his lumbar spine revealed interval posterior instrumented fusion at L5-S1 with partial bony fusion, mild posterior disc bulge, mild bilateral foraminal narrowing at L4-L5, and mild degenerative changes of the sacroiliac joints. R. 476.

In September 2010, plaintiff saw Dr. Davidson for a follow-up. R. 462-64. Plaintiff reported that the injections helped his pain, but that he was experiencing numbness down the lateral aspect of his right leg from his right knee to his toes. R. 462. His physical exam showed normal mobility, no deformities, and negative straight leg raising. R. 464.

In March 2011, plaintiff received another epidural steroid injection in his lumbar spine from Dr. Vaynberg, who diagnosed plaintiff with "failed back surgery syndrome." R. 531.

2. Bilateral Hip Disorder

In July 2009, plaintiff reported improvement regarding his back symptoms but complained of left hip pain. R. 235. A hip X-ray was negative and plaintiff showed full range of motion in his hip. R. 235, 395. In November 2009, Jeffrey Zarin, M.D., an orthopedic surgeon, evaluated plaintiff and reported somewhat flexed gait and tenderness not associated with his previous spinal surgery. R. 266.

In March 2010, Dr. Zarin saw plaintiff for an orthopedic consult regarding his anterior hip pain. R. 457. He was under no apparent distress, and although he had a slightly flexed hip gait and some pain with stretching, Dr. Zarin determined that hip surgery was not necessary. Id.

A year later in March 2011, plaintiff was evaluated by Richard Wilk, M.D., an orthopedic surgeon at the Lahey Clinic, who noted a positive impingement sign in the hips bilaterally with intact motor and sensory exam, and determined plaintiff was a candidate for left hip surgery. R. 513-15. On May 4, 2011, plaintiff underwent left hip arthroscopic surgery with femoroplasty, labral debridement, with chondroplasty of the acetabulum and femoral head. R. 516-18. In a follow-up exam later that month, Dr. Wilk noted that plaintiff had no pain with log rolling or weight-bearing. R. 514. Dr. Wilk noted a normal neurovascular exam in the left leg with no numbness. Id.

Meeting with Dr. Wilk again on June 10, 2011, plaintiff stated that his left hip was doing well overall following the surgery, but that his pain level was a 9 out of 10. R. 513. Based on the minimal symptoms in his right hip, Dr. Wilk recommended holding off on a right hip arthroscopic surgery. Id.

3. Right Leg Disorder

As a result of plaintiff's 1990 gunshot wounds, a bullet remains in his right leg. R. 39. In April 2008, plaintiff visited Dr. Tannoury and reported right leg pain in addition to his back pain and reported ...

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