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Kenneth Joseph Borrelli v. Michael J. Astrue

March 19, 2012


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. §§ 405(g); 1383(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born on June 21, 1956, has a high school education, and worked for the last 28 years in the construction industry. (Administrative Record ("AR") 40-41, 159, 170.) On April 24, 2008, Plaintiff filed an application for DIB, alleging disability beginning December 13, 2007, due to pain in his back, knee, ankle, and shoulders. (AR 153.) Plaintiff also indicated that he was having "a hard time gripping things with both hands." (AR 153.)

A. Medical History

1. Medical Evidence in the Record Prior to the May 26, 2010, ALJ Decision

On April 20, 2001, Plaintiff was referred to orthopedist Eric McMillan, M.D., for consultation regarding a painful left shoulder. (AR 214.) Plaintiff reported to Dr. McMillan that his shoulder had been hurting him "off and on" for a period of about two and a half months, but Plaintiff could recall no injury to the shoulder. (AR 214.) Plaintiff reported that the shoulder pain disturbed his sleep, but his symptoms were somewhat relieved by "minimization of overhead activity." (AR 214.) Dr. McMillan noted an impression of arthralgia of the left shoulder, and ordered a Magnetic Resonance Imaging ("MRI") scan. (AR 214.) On April 28, 2001, Plaintiff underwent an MRI administered by radiologist Hosam Moustafa, M.D. (AR 221.) Dr. Moustafa reported that there was evidence of a moderate shoulder impingement with mild tendinitis/tendinopathy of the supraspinatus tendon with no evidence of rotator cuff tear. (AR 221.)

On May 15, 2001, Plaintiff returned to Dr. McMillan for a follow-up examination. (AR 213.) Dr. McMillan reviewed the results of the MRI scan, and determined Plaintiff was suffering from rotator-cuff tendinitis of the left shoulder. (AR 213.) Dr. McMillan prescribed Naprosyn and a one-time physical therapy visit. (AR 213, 225)

On July 12, 2001, Plaintiff was again seen by Dr. McMillan for a follow-up appointment with regard to Plaintiff's shoulder condition. (AR 212.) Dr. McMillan noted that there was improvement of the symptoms since Plaintiff's last visit. Dr. McMillan reported that Plaintiff was "not interested in a more aggressive treatment approach such as corticosteroid injection or arthroscopy" because he was "improving with his home exercise program and the Naprosyn." (AR 212.)

On August 14, 2001, Plaintiff was examined by Dr. McMillan and reported significant symptoms in his left shoulder. (AR 211.) Dr. McMillan discussed with Plaintiff the option of a shoulder injection, to which Plaintiff agreed; a shoulder injection was performed at that examination. (AR 211.)

On July 9, 2002, Plaintiff was referred to Jim Barnett, M.D. (AR 308-09.) Plaintiff presented with complaints of sciatica in his right leg. (AR 308.) Dr. Barnett indicated that an MRI scan showed "mild degenerative discs at 3/4" but was otherwise normal. (AR 308.) Dr. Barnett recommended that Plaintiff start taking Celebrex and Zanaflex, begin a pyriformis protocol, seek treatment by myofascial pain expert at Myodynamics, and undergo a pyriformis muscle injection. (AR 309.) On September 18, 2002, Plaintiff underwent a "right pyriformis block" and an "SI joint block" as treatment for his sciatica. (AR 306.)

On July 20, 2004, Plaintiff was again referred to Dr. McMillan, this time for complaints related to right-knee pain. (AR 210.) Plaintiff reported to Dr. McMillan that he initially injured the right knee approximately 18 years ago while snow skiing. (AR 210.) Plaintiff reported that his symptoms had worsened in the months prior to the examination, and he described the pain as a dull ache that is felt anteromedially. (AR 210.) Dr. McMillan noted an impression of osteoarthritis and a probable posterior horn medial meniscus tear of the right knee, and he ordered an MRI scan. (AR 210.) A radiology report dated July 12, 2004, indicated "moderately-severe degenerative changes in the medial compartment with slightly less pronounced osteoarthritis in the patellofemoral joint." (AR 219.)

On August 8, 2004, Plaintiff was seen by Dr. McMillan to review the MRI scan and determine a course of treatment. (AR 209.) Dr. McMillan noted the following:

We could inject the knee, though that would really have no bearing on his meniscal symptoms short of temporary pain relief. I have suggested instead that we consider arthroscopy of the knee with treatment of the meniscal pathology and whatever treatment we can do as far as the osteoarthritis. I have counseled Mr. Borrelli that osteoarthritis is not really well treated by arthroscopic means in my experience and that I anticipate he would continue to have at least some amount of discomfort in the knee on an ongoing basis as a result of the osteoarthritis that we see by x-ray and MRI. Nevertheless, I think he would be significantly improved if we could rectify the meniscus injury and he is in agreement . . . . (AR 209.)

On December 10, 2004, Plaintiff saw Dr. McMillan and they discussed Plaintiff's right-knee surgical options. (AR 207.) Arthroscopy of Plaintiff's right knee was scheduled for December 16, 2004, as treatment for the meniscus tear. (AR 208.) The surgery was performed as scheduled (AR 222-24), and on December 21, 2004, Plaintiff saw Dr. McMillan for a surgical follow-up. (AR 206). Dr. McMillan discussed with Plaintiff that there was "quite a bit in the way of degenerative change at the knee" and that Plaintiff's long-term outlook for the knee "was somewhat guarded." (AR 206.) Dr. McMillan noted that the treatment options for Plaintiff's degenerative arthritis in his knee "consist mainly of arthroplasty options, which Dr. McMillan and Plaintiff both agreed were "probably not appropriate for him at this point." (AR 206.) On January 7, 2005, Plaintiff saw Dr. McMillan for examination of Plaintiff's knee. (AR 205.) It was noted that Plaintiff was "doing relatively well with occasional discomfort at the knee" and Plaintiff had "good resolution of the marked discomfort that he was having at nighttime preoperatively." (AR 205.)

On February 1, 2005, Dr. McMillan examined Plaintiff's knee, noting that Plaintiff was reporting "ongoing discomfort along the medial jointline that is limiting his activities." (AR 204.) Dr. McMillan indicated that it was "not a great surprise" that Plaintiff continued to have ongoing pain "given the Grade IV chondromalacia*fn2 seen at the time of surgery." (AR 204.) Plaintiff and Dr. McMillan discussed the treatment options and determined that it was most appropriate to start Plaintiff on Naprosyn as treatment for his knee. (AR 204.)

On March 1, 2005, Plaintiff was examined by Dr. McMillan. (AR 203.) Dr. McMillan indicated that, while Plaintiff's knee pain still existed, "it is certainly improved now as compared to his preoperative condition. It seems to be exacerbated by activity and decreased a bit with rest." (AR 203.) Plaintiff and Dr. McMillan determined that Plaintiff would try a "Neoprene-type sleeve brace" while Plaintiff considered whether to submit to steroid injection therapy to treat the knee pain. (AR 203.)

On May 27, 2005, Plaintiff was examined by Dr. Barnett for a return of his original lower-back pain symptoms. (AR 293-94.) Dr. Barnett indicated that Plaintiff had last been examined by him on November 26, 2002. (AR 293.) Dr. Barnett recommended bilateral piriformis injections, and indicated that he would examine Plaintiff again when authorization to treat was received. (AR 293.)

On August 30, 2005, Plaintiff reported to Dr. McMillan that he was experiencing pain around the medial posteromedial portion of his knee, which increased with activity and decreased with rest. (AR 202.) Dr. McMillan discussed with Plaintiff the possibility of diagnostic surgical arthroscopy, but indicated to Plaintiff that the arthritic change could not be effectively addressed arthroscopically. Plaintiff indicated to Dr. McMillan that he would like to proceed with steroid injection therapy at the next visit, and expressed his interest in conservative care at this point. (AR 202.) On September 2, 2005, Plaintiff underwent a steroid injection in his right knee. (AR 201.)

On October 6, 2005, Plaintiff was referred to Dennis W. Del Paine, M.D. (AR 249.) Plaintiff reported to Dr. Del Paine that he had experienced low-back stiffness since his twenties. (AR 249.) In the six years prior to the examination, Plaintiff noted that the stiffness extended into the upper part of his legs, shoulders, neck, hands, feet, and knees. (AR 249.) The stiffness would recur during driving or if he sits for any extended period. (AR 249.) Plaintiff also noticed that the stiffness did not necessarily worsen with exertion, but he reported feeling increasingly tired. (AR 249.) Other than fatigue, Plaintiff reported joint pain and some swelling in his hands. (AR 249.) Dr. Del Paine noted his impression of Plaintiff's conditions as psoriatic arthritis, epigastric tenderness, and a history of kidney stone. (AR 250.)

On October 11, 2006, Plaintiff was examined by Robert K. Greenlaw, M.D., for his knee pain. (AR 200.) Dr. Greenlaw noted that Plaintiff had been seen in the past for injections in his right knee and that Plaintiff had also undergone arthroscopic surgery for his knee. (AR 200.) Dr. Greenlaw administered another steroid injection to Plaintiff's knee and indicated that Plaintiff was to "be careful of his knee, apply heat to his knee several times daily and avoid squatting, twisting, or straining his knee as much as possible." (AR 200.) Dr. Greenlaw also noted that, "[j]udging from the previous photographs of the previous arthroscopy surgery, this patient is going to be a candidate for total knee replacement in the very near future." (AR 200.)

On October 10, 2006, Plaintiff was examined by Dr. Del Paine. (AR 247.) Plaintiff reported worsening of his symptoms, and he had noticed stiffness in his hands primarily in the morning. Dr. Del Paine prescribed Methotrexate. (AR 247.)

A December 5, 2006, treatment note of Dr. Del Paine indicates that Plaintiff had started taking prednisone and felt that his symptoms had markedly improved. (AR 245.) Dr. Del Paine reported there was still tenderness in Plaintiff's wrists, shoulders, "MCPs," and ankles. (AR 245.) On January 16, 2007, Plaintiff was examined by Dr. Del Paine. (AR 243.) He noted he had one to one and a half hours of stiffness in the morning, he was tired by one thirty in the afternoon, but he felt significantly improved from his baseline with the addition of ethotrexate and low-dose prednisone. (AR 243.) Dr. Del Paine also prescribed Humira, and scheduled a follow-up visit in three months. (AR 243.)

On April 12, 2007, Plaintiff saw Dr. Del Paine for a follow-up visit. (AR 241.) Plaintiff reported some fatigue after working and indicated that he spent most of the weekends resting; despite persistent symptomatology, Plaintiff indicated that he has significantly improved with the addition of the Humira. Plaintiff also reported less swelling in his hands and, while he experienced pain in his neck, his lower-back pain was less. (AR 241.)

At a follow-up visit with Dr. Del Paine on July 24, 2007, Dr. Del Paine and Plaintiff discussed the "association between work and exacerbation of arthritis," and Dr. Del Paine "recommended that [Plaintiff] consider a job change." (AR 239.)

In October 2007, Plaintiff reported to Dr. Del Paine that he was having marked swelling in his hands, wrists, elbows, and ankles. (AR 237.) Plaintiff also reported an increase in fatigue. (AR 237.) Dr. Del Paine prescribed doxycycline, recommended that Plaintiff follow-up in two to three months, and indicated he had discussed with Plaintiff the importance of rest and a job change. (AR 237.)

From December 2007 to March 2008, Plaintiff was examined on several occasions by James Knapp, M.D., for complaints related to lower-back pain. (AR 312-20.) Dr. Knapp referred Plaintiff back to Dr. Barnett.

On March 13, 2008, Dr. Barnett submitted a consultation report indicating that a recent MRI scan revealed mild to moderate facet arthropathy in the lower lumbar levels and that Plaintiff's back pain may be due to facet syndrome. (AR 307.) Dr. Barnett suggested "medial branch nerve blocks at L3/4, L4/5 bilaterally followed by re-evaluation." (AR 307.) On April 2, 2008, Plaintiff underwent bilateral lumbar medial branch nerve blocks to the L3-4, 4-5, 5-1 facets, performed by Dr. Barnett. (AR 305.)

On April 17, 2008, Plaintiff reported to Dr. Del Paine that his arthritis was "significantly improved" on his current regimen of Enbrel 50, Methotrexate, Predinsone, and Aleve. (AR 233.) Dr. Del Paine indicated that Plaintiff's psoriatic arthritis was improved, and that he should follow-up in three months. (AR 233.)

On May 7, 2008, Plaintiff underwent a left lumbar radiofrequency ablation of the medial branch nerves at L2, 3, 4, and 5, performed by Dr. Barnett. (AR 304.) On May 14, 2008, Plaintiff underwent a right lumbar radiofrequency ablation of the medial branch nerve to the L2, 3, 4, 5 facet joints. (AR 303.)

On June 17, 2008, state agency consultant Roger D. Fast, M.D., completed a physical residual functional capacity ("RFC") assessment.*fn3 (AR 328-52.) Dr. Fast opined that Plaintiff could occasionally lift and carry up to 20 pounds, frequently lift and carry up to 10 pounds, stand and/or walk for about six hours in an eight-hour day, sit for a total of approximately six hours in an eight-hour day, and had an unlimited ability to push or pull. (AR 349.) Dr. Fast found that Plaintiff was limited in his ability to reach in all directions, but he was unlimited in his ability to handle, finger, or feel. (AR 350.)

On September 24, 2008, state agency consultant G. Tyalor-Holmes, M.D., reviewed Dr. Fast's assessment of Plaintiff's RFC and affirmed that Plaintiff was capable of light work with a limitation for overhead reaching. (AR 434.)

2. Medical Evidence Submitted by Plaintiff After the May 26, 2010, ALJ Decision

On September 9, 2010, Plaintiff's counsel submitted additional medical records to the Appeals Council, seeking review of the ALJ's May 26, 2010, decision. (AR 6.) The letter from Plaintiff's counsel to the Appeals Council indicates that the medical records enclosed included an August 19, 2010,*fn4 report from Dr. McMillan and an August 16, 2010, chartnote from Dr. Temnyk. Plaintiff's counsel noted that both records indicate that Plaintiff was in need of a total right knee arthroplasty, which would tend to support Dr. Del Paine's contention Plaintiff could not be expected to walk or stand at all as part of his routine job duties. (AR 6.) Plaintiff's counsel also noted that he was attempting to obtain additional updated records from Dr. Del Paine's office and asked the Appeals Council to delay consideration of Plaintiff's appeal while Plaintiff's counsel attempted to obtain the additional records. (AR 6.)

On September 21, 2010, Plaintiff's counsel submitted additional records from Dr. Del Paine to the Appeals Council. (See AR 444.) On November 5, 2010, the Appeals Council indicated that it had received additional evidence that it was making part of the record. (AR 5.) The Appeals Council noted that the records it was supplied by Plaintiff's counsel consisted of Dr. Del Paine's records dated October 6, 2005, to August 12, 2010. (AR 5.) These records were marked as Exhibit 13F. (AR 5.) The records the Appeals Council stated it considered and made part of the record did not include the July 19, 2010, report from Dr. McMillan or the August 16, 2010, report from Dr. Temnyk to which Plaintiff's counsel referred in the September 9, 2010, letter to the Appeals Council. (See AR 6.)

Without explanation, the July 19, 2010, report from Dr. McMillan has been included in the Administrative Record at pages 21-22, and the August 16, 2010, report from Dr. Temnyk is included in the Administrative Record at pages 23-24. There is no indication, however, that the Appeals Council reviewed these reports, although it is clear that the additional records from Dr. Del Paine were expressly reviewed by the Appeals Council and were added to the record. (See AR 4.) In any event, the July 19, 2010, report from Dr. McMillan indicates Plaintiff has "end-stage" osteoarthritis in his right knee, mild to moderate osteoarthritis in his left knee, rheumatoid arthritis, and probable radicular symptoms in his right lower extremity. (AR 22.) Dr. McMillan noted that he discussed treatment options with Plaintiff and Plaintiff expressed that he would like to consider arthroplasty of his right knee. (AR 22.) On August 16, 2010, Plaintiff was referred to Dr. Temnyk. (AR 23-24.) Dr. Temnyk diagnosed Plaintiff with symptomatic right knee degenerative joint disease, and determined that right total knee arthroplasty was indicated. (AR 24.) Plaintiff stated that he would call Dr. Temnyk if he decided to undergo right total knee arthroplasty. (AR 24.)

Most of the remaining records submitted by Plaintiff's counsel on September 9, 2010, located at pages 25 through 34 of the Administrative Record (see AR 35), are duplicates of medical reports already contained in the record that were before the ALJ at the time of the May 26, 2010, decision. For example, the report at AR 25 can also be found at AR 200; AR 26 is also found at AR 219; AR 30 is also found at AR 221; AR 31 is also found at AR 215; AR 32 is also found at AR 218; AR 33 is also found at AR 210; and AR 34 is also found at AR 209. The record at pages 27 through 29 contains treatment notes from an unspecified provider, noting Plaintiff's complaints of right-knee pain at various points between March 1, 2004, through July 20, 2005. (AR 27-29.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 67-71, 88.) On December 17, 2009, ALJ James M. Mitchell held a hearing where Plaintiff testified through the assistance of counsel. (AR 36-66.)

1. Plaintiff's Testimony

Plaintiff testified that he was 53 years old and had a high school education. (AR 38-39.) Plaintiff stopped working in December 2007 due to pain in his knees, ankles, hands, and hips. (AR 39, 42.) At his past work in the construction field, Plaintiff's duties included framing houses and apartment buildings; Plaintiff worked in construction for 28 years. (AR 41.) Plaintiff stopped working because he continued to fall while at work and his foreman was concerned ...

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