Coppolo v. Saul

ERIC COPPOLO, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.

Case No.: 4:19-CV-00507-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION

October 28, 2020

MEMORANDUM OF DECISION

Eric Coppolo ("Plaintiff") brings this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), seeking review of the decision of the Commissioner of Social Security ("Commissioner") denying his claims for a period of disability, disability insurance benefits ("DIB"), and Supplemental Security Income ("SSI"). See also, 42 U.S.C. §§ 405(g) and 1383(c). Based on the court's review of the record and the briefs submitted by the parties,¹ the court finds that the decision of the Commissioner is due to be affirmed.

I. Proceedings Below

On October 3, 2014, Plaintiff filed his applications for disability, DIB, and SSI. (R. 434-40, 461). In his applications, Plaintiff alleged a disability onset date of March 25, 2014. (R. 434, 437). The Social Security Administration denied Plaintiff's application for SSI on October 24, 2014 (R. 175, 461),² and for disability and DIB on November 26, 2014. (R. 147, 184). On December 2, 2014, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (R. 190). A hearing was scheduled for April 21, 2016 before ALJ Ronald Reeves. (R. 218). That hearing was convened, but then continued and rescheduled for July 26, 2016.³ (R. 107-22, 123-46, 218, 255). During the July 26, 2016 hearing,⁴ Jewel Euto, a Vocational Expert, was present and provided vocational testimony. (R. 131-35).

On February 1, 2017, the ALJ entered his decision and determined Plaintiff was not eligible for a period of disability, DIB, or SSI benefits because he failed to meet the disability requirements of the Act and retained the residual functional capacity to perform medium work, including past relevant work as an irrigation installer. (R. 151-60). On February 9, 2017, Plaintiff requested the Appeals Council to review the ALJ's decision. (R. 321). Plaintiff's request was granted and theALJ's decision was reviewed under the substantial evidence and additional evidence provisions of the Social Security Administration regulations. (R. 168-70).

The Appeals Council found that additional evidence submitted by Plaintiff—a psychological evaluation completed by Dr. David R. Wilson on April 4, 2017 (R. 1236-243)—to be new, material and related to the period at issue; the Appeals Council also concluded that it had a reasonable probability of changing the decision's outcome. (R. 168). Additionally, the Appeals Council found the ALJ's decision failed to assess what weight should be given to the opinion of Dr. Adam Alterman, Plaintiff's treating physician. (R. 168-69). On July 17, 2017, under the authority of 20 C.F.R. §§ 404.977 and 416.1477, the Appeals Council vacated the hearing decision and remanded the case to the ALJ for further proceedings. (R. 167). On July 24, 2017, Plaintiff was notified of the remand decision. (R. 334).

After remand, a hearing before ALJ Reeves was scheduled for January 18, 2018.⁵ (R. 349). During that hearing, Dr. Richard Cohen provided medical expert testimony that Plaintiff met the criteria of both Sections 12.04 and 12.06 of the Act as of January 17, 2017. (R. 98-106, 105). The ALJ, with the concurrence of Plaintiff's counsel, believed that was dispositive of the issue, and the hearing was concluded. A second hearing was later scheduled for June 21, 2018. (R. 63-106, 389). During that hearing, Dr. Jonas provided medical expert testimony (R. 65-81), and Vocational Expert Claude Peacock provided vocational testimony. (R. 90-95).

In the ALJ's September 7, 2018 decision, he found that Plaintiff has the severe impairments of meralgia paresthetica, lumbar degenerative disc disease, obesity, bipolar disorder, anxiety disorder, and substance abuse. And, based on the application for a period of disability anddisability insurance benefits filed on October 3, 2014, the ALJ concluded "[Plaintiff] is not disabled under sections 216(i) and 223(d) of the Social Security Act." (R. 19-50). More specifically, he found Plaintiff's

substance use disorder is a contributing factor material to the determination of disability because [Plaintiff] would not be disabled if he stopped the substance use (20 C.F.R. §§ 404.1520(g), 404.1535, 416.920(g) and 416.935). Because the substance use disorder is a contributing factor material to the determination of disability, [Plaintiff] has not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of this decision.

(R. 19-50). After the Appeals Council denied Plaintiff's request for review of the ALJ's decision on March 20, 2019, that decision became the final decision of the Commissioner and therefore a proper subject of this court's appellate review. (R. 1).

At the time Plaintiff filed his applications on October 3, 2014, he was 39 years old with the equivalent of a high school education. (R. 549, 556). His previous work experience was that of a landscape worker and landscape supervisor. (R. 90, 556). Plaintiff alleges he is disabled due to severe physical and mental conditions. (Doc. #9 at 3). Physically, Plaintiff alleges he suffers from severe substernal chest pain, cerebral vascular accident, low back pain due to sciatica, and inguinal hernia repair with complications of femoral nerve injury causing severe left leg pain due to idiopathic peripheral autonomic neuropathy. (Doc. #9 at 49-50). Plaintiff also alleges he suffers from bipolar I disorder—mixed severe, anxiety disorder with panic attacks, and major depressive disorder. (Id.). Plaintiff testified that he is unable to work "because of lack of function in [his] left leg" after his second surgery, on March 25, 2014, which removed the mesh material placed during his initial laparoscopic left inguinal hernia repair surgery on August 5, 2013. (R. 1085-86).

On or about April 24, 2013, Plaintiff developed the onset of lower abdominal pain after lifting large decorator pots filled with dirt and gravel while on the job with a landscaping company.(R. 456, 792, 967, 1026). A CT scan ordered by Dr. Sharon Haynes showed a small left side, inguinal hernia. (R. 1367). Plaintiff was referred to Dr. Charles Newman for consultation and an appointment was scheduled for a July 31, 2013 visit. (R. 971-73, 1368). On August 5, 2013, Dr. Newman performed laparoscopic initial inguinal hernia repair on Plaintiff's left side. (R. 798). Plaintiff then followed up with Dr. Newman at least nine times, from August 2013 to March 2014, with complaints of post-operative pain, lower back pain, numbness and tingling in his leg. (R. 777-91). Dr. Newman noted during Plaintiff's March 11, 2014 appointment that Plaintiff had been "unresponsive to non operative therapy. Will pursue surgical removal of lateral mesh." (R. 778). On March 25, 2014, Plaintiff underwent a revision surgery to remove mesh material placed during his initial surgical hernia procedure. (R. 800). Plaintiff continued to experience post-op pain in his left groin and thigh. Dr. Newman advised Plaintiff that "there was nothing else he could do," and Plaintiff sought treatment from Dr. Turnley, a physical medicine and rehabilitation specialist, from July to October 2014. (R. 805). Dr. Turnley's assessment was lateral cutaneous nerve pain and meralgia paresthetica, and recommended a nerve block. (R. 808). After the nerve block, Plaintiff reported he was still experiencing pain, as well as numbness. (R. 810, 813). Dr. Turnley ordered Nerve Conduction Velocity ("NCV") and electromyogram ("EMG") testing. (Id.). On October 15, 2014, Dr. Turnley reported the testing showed no evidence of injury to the femoral motor nerve and found mild slowing in conduction velocity of two motor nerves (which he deemed of uncertain medical significance). (R. 814).

On October 17, 2014, Plaintiff was referred by Dr. Turnley for a functional capacity evaluation. (R. 1077). Dr. Greg Hickey diagnosed Plaintiff with left thigh pain, status post left inguinal hernia repair. It was noted Plaintiff scored approximately six out of eight in assessed validity criteria for a validity score of 75%. (R. 1077). Validity scores of less than 80% areconsidered indicative of inappropriate participation in the evaluation to the extent that there could not be a recommendation made for work/physical restrictions. (Id.).

Plaintiff had a second functional capacity evaluation performed on October 30, 2014. (R. 1081-83). Plaintiff was found to have a 53 pound lifting limitation with additional limitations in work or job task activity.⁶ (R. 1082). On November 4, 2014, Plaintiff presented to the emergency room with complaints of groin pain. (R. 822). Plaintiff's degree of pain was listed as moderate, and he stated he had been having increased pain since having two function capacity evaluations in the past 18 days. (R. 822-27). Plaintiff was discharged and advised to follow up with his surgeon, Dr. Newman. (R. 823). Upon referral by Dr. Newman, on March 26, 2015, Plaintiff again had NCV and EMG testing performed. (R. 1216). All nerve conduction studies were within normal limits, and all examined muscles showed no evidence of electrical instability. (Id.). However, it was reported that left lateral cutaneous femoral nerve palsy, i.e. meralgia paresthetica, could not be ruled out. (Id.).

Plaintiff was treated by Dr. Charles Carnel at Alabama Orthopedic, Spine and Sports Medicine Associates various times from April 2015 to January 2017. (R. 896, 990, 992, 994, 1007, 1232, 1330, 1332). Plaintiff first saw Dr. Carnel on April 27, 2015 with complaints of leg pain. (R. 994). Dr. Carnel recommended Plaintiff begin physical therapy for meralgia paresthetica and prescribed 75mg of Lyrica. (R. 996). Further, Plaintiff completed a drug testing report.⁷ (R. 1004). Plaintiff participated in physical therapy...