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Pennell v. Colvin

United States District Court, D. Massachusetts

September 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For William T. Pennell, Plaintiff: Lindsay P. Rand, Nashawaty & Rand, Braintree, MA.

For Carolyn W. Colvin, Defendant: Michael P. Sady, LEAD ATTORNEY, United States Attorney's Office, John Joseph Moakley Federal Courthouse, Boston, MA.

For Social Security Administration, Interested Party: Thomas D. Ramsey, LEAD ATTORNEY, Office of the General Counsel, Social Security Administration, Boston, MA.

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This is an action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Compl. 1, ECF No. 1. The Plaintiff, William T. Pennell Jr. (" Pennell" ), is seeking judicial review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" ) denying him Social Security disability insurance (" SSDI" ) benefits. Id. Pennell argues that the decision of the Administrative Law Judge (the " hearing officer" ) denying him benefits contained errors of law and was not based on substantial evidence. Id. at 2-3. Specifically, he claims the hearing officer did not give appropriate weight to the medical evidence existing prior to the date last insured and failed to apply the

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proper standard of law in determining the onset date of his disability. Mem. Supp. Pl.'s Mot. Vacate Comm'r's Final Decision (" Pl.'s Mem." ) 6, ECF No. 12. Pennell therefore requests that this Court reverse the hearing officer's decision and award benefits under the provisions of the Social Security Act, or, alternatively, remand the case for further hearing. Compl. 3. Pennell also requests an award of attorney's fees. Id. The Commissioner requests that this Court affirm her decision and deny Pennell SSDI benefits. Def.'s Mot. Affirm Comm'r's Decision (" Def.'s Mot. Affirm" ) 1, ECF No. 17.

A. Procedural Posture

Pennell applied for SSDI benefits on April 17, 2009. Compl. 1-2; Answer 2, ECF No. 6. The Social Security Administration denied his application initially and upon reconsideration. Admin. R. 9, 81, ECF No. 7. On February 12, 2010, Pennell completed a request for a hearing before a hearing officer. Id. at 104. A hearing took place on February 22, 2011, in Boston, Massachusetts. Id. at 50. The hearing officer issued a decision denying Pennell's application for SSDI benefits on March 18, 2011. Id. at 81, 87. Pennell appealed the unfavorable decision to the Appeals Council of the Social Security Administration. Id. at 92. On September 21, 2011, the Appeals Council vacated the hearing officer's decision and remanded the case to the Social Security Administration. Id. A second hearing occurred on May 3, 2012, before the same hearing officer. Id. at 23. On May 18, 2012, the hearing officer again denied Pennell's request for SSDI benefits. Id. at 6. On May 31, 2012, Pennell filed an appeal of that decision to the Social Security Appeals Council. See id. at 5. On April 26, 2013, the Appeals Council denied his request for review. Id. at 1.

On June 26, 2013, Pennell filed the present action pursuant to 42 U.S.C. § § 405(g) and 1383(c)(3), seeking review of the Commissioner's decision. Compl. 1. The Commissioner filed an answer on August 27, 2013. Answer 1-3. On November 12, 2013, Pennell filed a motion and supporting memorandum requesting a reversal of the Commissioner's decision. Pl.'s Mot. Vacate Decision Comm'r & Reverse or Remand, ECF No. 11; Pl.'s Mem. The Commissioner responded on February 4, 2014, by filing a motion for an order affirming her decision. Def.'s Mot. Affirm. The same day, the Commissioner filed a memorandum supporting her motion. Mem. Law Supp. Def.'s Mot. Affirm Comm'r's Decision (" Def.'s Mem." ), ECF No. 18. On February 15, 2014, Pennell filed a reply memorandum to the Commissioner's response. Pl.'s Reply Mem. (" Pl.'s Reply" ), ECF No. 19.

B. Factual Background

Pennell was born on January 27, 1957. Admin. R. 26. As of his date last insured,[1] December 31, 2007, he was fifty years old. See id. 9, 81. Since January 2000, Pennell has sought medical treatment for back problems. Id. at 284-85. On February 11, 2009, Pennell sustained serious injuries in a motor vehicle accident. See id. at 337. As a result of the accident, related surgeries, and other medical issues, Pennell suffered from split muscles, a hernia, an open wound, abrasions requiring skin grafts, carpal tunnel syndrome, and the loss of sight in his left eye. Id. at 61-62. On his application for SSDI benefits, Pennell listed his disability onset date as April 1, 2006, claiming he could no longer work at

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that point due to back pain. Id. at 221. Pennell is a high school graduate. Id. at 27. His past work experience includes working as a car salesman for thirteen years from 1990 to 2003. Id. at 222. Pennell also spent a few summers in the early 2000s working as a pool salesman. Id. at 29-30. He later worked as a gutter salesman from February 2006 through April 2006. Id. at 222.

1. Medical Evidence

In regards to his pre-accident disability, Pennell reported having back pain as early as 2000. See id. at 284-85. On January 6, 2000, he saw Dr. Jeffrey Jackel at Milton Hospital and was given a lumbar epidural block with steroid injection. Id. at 284, 286. Pennell received additional steroid injections numerous times between 2000 and 2002. Id. at 284, 289, 291-92. In 2002, neurological reports produced by Dr. Patrick J. Madden (" Dr. Madden" ) at Milton Hospital indicated that there was evidence of acute left L5 radiculopathy and mild chronic left S1 radiculopathy. Id. at 285. Subsequent neurological examinations through 2003 documented Pennell's complaints of neck and back pain as well as upper and lower extremity numbness and weakness. See id. at 311-12, 314, 322, 327-29. On January 29, 2002, a lumbar spine MRI revealed anterolisthesis of L5 on S1 and moderate to severe diffuse disc bulging resulting in moderate to severe bilateral neural foraminal stenosis. Id. at 581.

Neurophysiological testing conducted on February 18, 2002, revealed evidence of a predominantly sensory demyelinating polyneuropathy and mild to moderate chronic right-sided cervical polyradiculopathy. Id. at 314-15. A cervical MRI conducted by Dr. Madden on April 3, 2002, showed disc bulges at the C3-C4 and C5-C6 levels. Id. at 312. Subsequent MRI exams in 2003 showed these bulges as well as stenosis at L2-L3 and a protrusion at C5-6. Id. at 305-08. During a July 2003 examination with Dr. Madden, Pennell complained of left upper extremity numbness and decreased left hand grip. Id. at 309. Testing showed left median mononeuropathy at the carpal ligament, which is consistent with left carpal tunnel syndrome, as well as left C6 radiculopathy. Id. at 310. A CT scan conducted on August 17, 2004, showed degenerative changes of the L4-L5 facet joints and bilateral L5 spondylolysis. Id. at 583. Later, during a follow-up examination at Highland Medical Center on November 24, 2004, Pennell reported having continued back pain. Id. at 577. Between at least December 2003 and June 2005, the claimant was prescribed the medication Vicodin. See id. at 576, 579-80. Pennell again reported having back pain during an appointment at Highland Medical Center on April 18, 2006. Id. at 575.

2. The 2011 and 2012 Hearings

On February 22, 2011, Pennell appeared before a hearing officer for the first time to testify about his application for SSDI benefits. Id. at 50. Pennell explained that he worked for years as a car salesman, during which he spent a substantial amount of time on his feet, walking around, taking customers on test drives, and filling out paperwork. Id. at 58-59. During the winters, as a part of his job description, the claimant shoveled snow, cleaned snow off of cars, and moved cars to alternate locations. Id. at 59-60. In his capacity as a gutter salesman, Pennell went to homes, took measurements, climbed ladders, and made estimates for customers. Id. at 60.

Pennell was not working at the time of this hearing and explained that his medical conditions prevented him from working. Id. at 61. Many of the impairments he listed were a result of his ...

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