Kelly v. Colvin

Filing 18

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 9/16/15. (ts)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH P. KELLY,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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No. 3:14-CV-02008
(Judge Nealon)

MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Joseph P. Kelly’s claim for social security
disability insurance benefits and supplemental security income
benefits.
On October 19, 2011, Kelly protectively filed1 an
application for supplemental security and on November 2, 2011, an
application for disability insurance income benefits. Tr. 17, 184200, 201 and 218.2

On January 5, 2012, the Bureau of Disability

1. Protective filing is a term for the first time an individual
contacts the Social Security Administration to file a claim for
benefits. A protective filing date allows an individual to have
an earlier application date than the date the application is
actually signed.
2. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on December
22, 2014.

Determination3 denied Kelly’s applications. Tr. 156-165. On
February 11, 2012, Kelly requested a hearing before an
administrative law judge. Tr. 17 and 167.

Approximately 10 months

later, a hearing was held on December 10, 2012, before an
administrative law judge. Tr. 60-131. On January 22, 2013, the
administrative law judge issued a decision denying Kelly’s
applications. Tr. 17-31.

As will be explained in more detail

infra the administrative law judge found that Kelly failed to
prove that he met the requirements of a listed impairment or
suffered from

work-preclusive functional limitations. Id.

On

March 19, 2013, Kelly requested that the Appeals Council review
the administrative law judge’s decision. Tr. 11-12.

After 17

months had passed, the Appeals Council on August 20, 2014,
concluded that there was no basis upon which to grant Kelly’s
request for review. Tr. 1-3.

Thus, the administrative law judge’s

decision stood as the final decision of the Commissioner.
Kelly then filed a complaint in this court on October
16, 2014.

Supporting and opposing briefs were submitted and the

3. The Bureau of Disability Determination is an agency of the
Commonwealth of Pennsylvania which initially evaluates
applications for disability insurance benefits and supplemental
security income benefits on behalf of the Social Security
Administration. Tr. 157 and 162.
2

appeal4 became ripe for disposition on March 18, 2015, when Kelly
filed a reply brief.
Disability insurance benefits are paid to an individual
if that individual is disabled and “insured,” that is, the
individual has worked long enough and paid social security taxes.
The last date that a claimant meets the requirements of being
insured is commonly referred to as the “date last insured.”

It is

undisputed that Kelly meets the insured status requirements of the
Social Security Act through December 31, 2015. Tr. 17, 19 and 201.
Supplemental security income (SSI) is a federal income
supplement program funded by general tax revenues (not social
security taxes).

It is designed to help aged, blind or other

disabled individuals who have little or no income.
Kelly was born in the United States on January 22, 1986,
and at all times relevant to this matter was considered a “younger
individual”5 whose age would not seriously impact his ability to
adjust to other work. 20 C.F.R. §§ 404.1563(c) and 416.963(c). Tr.
184 and 191.

The administrative law judge issued his decision on

Kelly’s 27th birthday.

4. Under the Local Rules of Court “[a] civil action brought to
review a decision of the Social Security Administration denying a
claim for social security disability benefits” is “adjudicated as
an appeal.” M.D.Pa. Local Rule 83.40.1.
5. The Social Security regulations state that “[t]he term
younger individual is used to denote an individual 18 through
49.” 20 C.F.R., Part 404, Subpart P, Appendix 2, § 201(h)(1).
3

Kelly graduated from high school in 2004 and can read,
write, speak and understand the English language and perform basic
mathematical functions. Tr. 226, 247 and 249.

During Kelly’s

elementary and secondary schooling he attended regular education
classes. Tr. 249.

After graduating from high school Kelly did not

complete “any type of specialized job training, trade or
vocational school.” Id.
Kelly has past relevant employment6 as (1) a landscape
helper which was described as unskilled, heavy work by a
vocational expert; (2) a janitor which was described as unskilled,
medium work; (3) a lifeguard which was described as semi-skilled,
medium work; and (4) a stacker at a lumbar facility which was
described as semi-skilled, heavy work.7 Tr. 121.

6. Past relevant employment in the present case means work
performed by Kelly during the 15 years prior to the date his
claim for disability was adjudicated by the Commissioner. 20
C.F.R. §§ 404.1560 and 404.1565.
7. The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
follows:
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are
met.
(b) Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
(continued...)
4

Kelly’s employment is limited and all of it was located
in eastern and northeastern Pennsylvania.

Kelly reported that he

worked (1)from August, 2005 to July, 2006 for Pocono Mountain
School District as a janitor or maintenance person; (2)from May,
2006 to September, 2006 for Strauser Landscaping cutting grass;
(3)during 2007 for Towne & Country Landscaping as a landscaper;8

7.

(...continued)
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.

20 C.F.R. §§ 404.1567 and 416.967.
8. The name of the company is gleaned from the records of the
Social Security Administration. Kelly reported that he worked as
a landscaper during 2007 but mistakenly indicated that it was for
“Strauser Nature’s Helper.” Tr. 208 and 270. The records of the
Social Security Administration reveal that Kelly in addition to
working for Pocono Mountain School District in 2006 also worked
(continued...)
5

(4)from February, 2008, to August, 2008 for Great Wolf Lodge as a
lifeguard and maintenance person; (5) from May, 2009 to October,
2009, for Mountain Landscaping as a laborer; and (6) from March,
2011 to May, 2011 for “Bestway Enterprises/Lumbar Treatment Plant”
as a “stacker operator.”

Tr. 236, 240, 250 and 270-271.

Kelly

also worked in 2002 for Lewis Supermarket, Inc., located in
Allentown. Tr. 208.
Records of the Social Security Administration reveal
that Kelly had earnings in the years 2002, 2005 through 2009 and
2011.

Tr. 202.

($11,501.56). Id.

Kelly’s highest annual earnings were in 2006
Kelly’s total earnings were $46,347.79. Id.

Kelly testified at the administrative hearing held that he quit
working at Bestway Enterprises on September 5, 2011, as result of
a motorcycle accident.

Tr. 70-71.

However, in documents filed

with the Social Security Administration Kelly stated that he
stopped working at Bestway Enterprises on May 25, 2011, about 3
months before the motorcycle accident. Tr. 249 and 270. He further
stated that he was “[l]et go [from Bestway Enterprises] for
tardiness.” Tr. 248.
Kelly claims that he became disabled on September 5,
2011, as a result of the motorcycle accident in which he sustained
multiple injuries. Tr. 184, 191 and 248.

8. (...continued)
for Strauser Nature Helpers. Id.
6

He lists the disabling

conditions as (1) brachial plexus injury to the left arm;9 (2)
bilateral wrist fractures; (3) left foot bone chip fracture; (4)
head and neck issues; (4) body trauma; (5) posttraumatic stress
syndrome; and (6) post-concussion syndrome. Tr. 248. Kelly is
right-handed. Tr. 99 and 228. In a document filed with the Social
Security Administration Kelly stated that he has headaches and
constant, burning pain in his left arm which runs from his
shoulder to the tips of his fingers. Tr. 231.
For the reasons set forth below we will affirm the
decision of the Commissioner denying Kelly’s applications for
disability insurance benefits and supplemental security income
benefits.
Standard of Review
When considering a social security appeal, we have
plenary review of all legal issues decided by the Commissioner.
See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d
Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin.,

181

9. “The brachial plexus is the network of nerves that sends
signals from your spine to your shoulder, arm and hand. A
brachial plexus injury occurs when these nerves are stretched,
compressed, or in the most serious cases, ripped apart or torn
away from the spinal cord. The most severe brachial plexus
injuries usually result from auto or motorcycle accidents. Severe
brachial plexus injuries can leave your arm paralyzed, with a
loss of function and sensation. Surgical procedures such as
nerve grafts, nerve transfers or muscle transfers can help
restore function.” Brachial plexus injury, Overview, Mayo clinic
staff, http://www.mayoclinic.org/diseases-conditions/brachial
-plexus-injury/home/ovc-20127336 (Last accessed September 8,
2015).
7

F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d
857, 858 (3d Cir. 1995).

However, our review of the

Commissioner’s findings of fact pursuant to 42 U.S.C. § 405(g) is
to determine whether those findings are supported by "substantial
evidence."

Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Factual findings which are supported by substantial evidence must
be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001)(“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if
we would have decided the factual inquiry differently.”); Cotter
v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact by
the Secretary must be accepted as conclusive by a reviewing court
if supported by substantial evidence.”);

Keefe v. Shalala, 71

F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176
(4th Cir. 2001);

Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529

n.11 (11th Cir. 1990).
Substantial evidence “does not mean a large or
considerable amount of evidence, but ‘rather such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565
(1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197,
229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d
198, 200 (3d Cir. 2008);
(3d Cir. 1999).

Hartranft v. Apfel, 181 F.3d 358, 360

Substantial evidence has been described as more
8

than a mere scintilla of evidence but less than a preponderance.
Brown, 845 F.2d at 1213.

In an adequately developed factual

record substantial evidence may be "something less than the weight
of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all
the other evidence in the record," Cotter, 642 F.2d at 706, and
"must take into account whatever in the record fairly detracts
from its weight."
474, 488 (1971).

Universal Camera Corp. v. N.L.R.B., 340 U.S.
A single piece of evidence is not substantial

evidence if the Commissioner ignores countervailing evidence or
fails to resolve a conflict created by the evidence.
F.2d at 1064.

Mason, 994

The Commissioner must indicate which evidence was

accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642
F.2d at 706-707.

Therefore, a court reviewing the decision of the

Commissioner must scrutinize the record as a whole.

Smith v.

Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v.
Califano, 606 F.2d 403, 407 (3d Cir. 1979).
Sequential Evaluation Process
To receive disability benefits, the plaintiff must
demonstrate an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
9

mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.”

42 U.S.C. § 432(d)(1)(A).

Furthermore,
[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), “work which exists in the
national economy” means work which exists in significant
numbers either in the region where such individual
lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in
evaluating disability insurance and supplemental security income
claims.

See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos,

474 F.3d at 91-92.

This process requires the Commissioner to

consider, in sequence, whether a claimant (1) is engaging in
substantial gainful activity,10 (2) has an impairment that is
severe or a combination of impairments that is severe,11 (3) has
10. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
proceeds no further. Substantial gainful activity is work that
“involves doing significant and productive physical or mental
duties” and “is done (or intended) for pay or profit.” 20 C.F.R.
§ 404.1510 and 20 C.F.R. § 416.910.
11.

The determination of whether a claimant has any severe
(continued...)
10

an impairment or combination of impairments that meets or equals
the requirements of a listed impairment,12 (4) has the residual
functional capacity to return to his or her past work and (5) if
not, whether he or she can perform other work in the national

11. (...continued)
impairments, at step two of the sequential evaluation process, is
a threshold test. 20 C.F.R. §§ 404.1520(c) and 416.920(c). If a
claimant has no impairment or combination of impairments which
significantly limits the claimant’s physical or mental abilities
to perform basic work activities, the claimant is “not disabled”
and the evaluation process ends at step two. Id. If a claimant
has any severe impairments, the evaluation process continues. 20
C.F.R. §§ 404.1520(d)-(g) and 416.920(d)-(g). Furthermore, all
medically determinable impairments, severe and non-severe, are
considered in the subsequent steps of the sequential evaluation
process. 20 C.F.R. §§ 404.1523, 404.1545(a)(2), 416.923 and
416.945(a)(2). An impairment significantly limits a claimant’s
physical or mental abilities when its effect on the claimant to
perform basic work activities is more than slight or minimal.
Basic work activities include the ability to walk, stand, sit,
lift, carry, push, pull, reach, climb, crawl, and handle. 20
C.F.R. § 404.1545(b). An individual’s basic mental or nonexertional abilities include the ability to understand, carry out
and remember simple instructions, and respond appropriately to
supervision, coworkers and work pressures. 20 C.F.R. § 1545(c).
12. If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment, the
claimant is disabled. If the claimant does not have an impairment
or combination of impairments that meets or equals a listed
impairment, the sequential evaluation process proceeds to the
next step. 20 C.F.R. § 404.1525 explains that the listing of
impairments “describes for each of the major body systems
impairments that [are] consider[ed] to be severe enough to
prevent an individual from doing any gainful activity, regardless
of his or her age, education, or work experience.” Section
404.1525 also explains that if an impairment does not meet or
medically equal the criteria of a listing an applicant for
benefits may still be found disabled at a later step in the
sequential evaluation process.
11

economy. Id.

As part of step four the administrative law judge

must determine the claimant’s residual functional capacity. Id.13
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social

Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A
regular and continuing basis contemplates full-time employment and
is defined as eight hours a day, five days per week or other
similar schedule. The residual functional capacity assessment must
include a discussion of the individual’s abilities.

Id; 20 C.F.R.

§§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1
(“‘Residual functional capacity’ is defined as that which an
individual is still able to do despite the limitations caused by
his or her impairment(s).”).
MEDICAL RECORDS AND OTHER EVIDENCE
Before we address the administrative law judge’s
decision and the arguments of counsel, we will briefly review some
of Kelly’s activities and review in detail Kelly’s medical
records.
In a “Function Report - Adult” dated November 20, 2011,
Kelly stated that he lived alone in a “cottage” and that he had no

13. If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
12

use of his left arm for lifting or holding items. Tr. 223.
Inconsistently, Kelly’s mother testified at the administrative
hearing that after the accident in September, 2011, Kelly moved in
with her and her husband. Tr. 104-105.

She further testified that

he did not move out of their home until approximately June 1,
2012. Tr. 105.

Kelly in the Function Report further stated that

he was able to dress, shower, wash his hair, shave, and use the
toilet, although with difficulty; he stated he needed no reminders
to take care of personal needs and grooming or to take his
medicines; he reported he was able to prepare simple meals and use
a vacuum cleaner with one arm; he reported going out 3 times per
week and being able to ride in a car but that he did not drive a
motor vehicle; he reported shopping in stores and by way of a
computer; he stated that he spent time with others and his friends
occasionally picked him up and they also communicated by way of
cellular phones. Tr. 224, 225, 226 and 227.

In the “Function

Report,” Kelly when asked to check items which affect his
“illnesses, injuries, or conditions” did not check sitting,
talking, hearing, seeing, memory, concentration, understanding,
following instructions and getting along with others. Tr. 228.
When asked at the administrative hearing why he could
not work, Kelly stated as follows: “There’s no way because the
pain with the one arm, I obviously need two arms to operate the

13

machines.” Tr. 71. When asked about his right arm he stated as
follows: “Yeah, I mean it bothers me, but I have use of my right
arm.”

Tr. 74.

When specifically asked whether he had full use of

his right arm he replied as follows: “Yeah.” Id.

He also

testified that he could lift one of the chairs in the
administrative hearing room with his right arm. Tr. 75. Kelly
testified that he spends half his day watching television and the
other half using his cellular phone to access a Facebook account.
Tr. 91-92.

He also stated that he reads “some articles” in

magazines and newspapers. Id.

During the hearing it was also

revealed that Kelly was occasionally driving a motor vehicle to
the home of his parents and to medical appointments. Tr. 83 and
107. The drive to the office of one of his physicians, Ric A.
Baxter, M.D., involves a drive of 40 minutes one-way. Tr. 107.
At the end of November, 2011, Kelly reported to a
physical therapist that he could bathe, dress and perform most
activities of daily living with his right arm. Tr. 681. In March,
2012, six months after his motorcycle accident, Kelly reported
driving using only his right arm. Tr. 755. He was also able to
move out of his parents’ home and begin living on his own in June
2012, 9 months after the accident. Tr. 105 and 779.

In July 2012,

Kelly admitted, “I could look after myself without causing extra
pain. Tr. 781.

At that time, Kelly also reported that despite his

14

pain, he could manage traveling for over 2 hours, walk “a quarter
of a mile,” “sit as long as [he would] like,” and “stand as long
as [he] want[ed].” Tr. 781.
The medical records reveal that on September 5, 2011,
Kelly while operating a motorcycle collided with an automobile
which pulled out in front of him and was thrown 80 feet. Tr. 285,
294 and 346. One medical record suggests that Kelly was on
narcotic pain medications at the time of the accident. Tr. 346.
Specifically, Kelly told a consulting physician that he was
prescribed OxyContin which he normally takes 4 times per day for
hand pain.14 Id.

The impetus for the hand pain was injuries

allegedly sustained in a fight. Tr. 346.

Another medical record

14. “OxyContin (oxycodone) is an opioid pain medication . . .
sometimes called a narcotic . . . used to treat moderate to
severe paint that is expected to last for an extended period of
time.” OxyContin, Drugs.com, http://www.drugs.com/oxycontin.html
(Last accessed September 13, 2015). “The side effects of
oxycodone are related to the organs that are affected by the drug
such as the liver, brain and kidneys. Some of the more common
side-effects include nausea, constipation, vomiting, headache,
itchy skin, insomnia and dizziness. Side effects that are not
common can include allergic reaction, chills and fever, migraine
headaches, palpitations, anemia, gout or bone pain, edema,
agitation, anxiety, confusion, dry mouth, personality disorder,
heart failure or gingivitis.” Long-Term Effects of Taking
Oxycodone, Livestrong.com, http://www.livestrong.com/article
/79119-longterm-effects-taking-oxycodone/ (Last accessed
September 13, 2015). “The ulnar styloid is a small process (bump)
that protrudes at the wrist opposite the thumb and serves as an
attachment sit for the ulnar collateral ligament which joints the
ulna and two of the carpal bones and facilitates wrist
stability.” Hand and Wrist Anatomy, Ulnar Styloid, https://www.
wristsupportbraces.com/m-25-ulnar-styloid.aspx (Last accessed
September 13, 2015).
15

states that Kelly was “using oxycodone prior to the MVC for neck
pain.” Tr. 297. Kelly at the time of the motorcycle accident was
wearing a helmet and did not suffer a loss of consciousness. Tr.
285, 294 and 346.
After the accident Kelly was initially transported to
the Pocono Medical Center for evaluation and treatment, including
having x-rays and CT scans performed. Tr. 285.

An x-ray of the

right wrist performed at the Pocono Medical Center “rais[ed] a
concern for” a fracture; an x-ray of the left wrist revealed a
fracture of the distal radius and ulnar styloid process;15 an xray of the pelvis revealed “[n]o acute displaced fracture;” a
chest x-ray was essentially normal; a CT scan of the abdomen and
pelvis revealed “[no] acute visceral injury;” a CT scan of the
chest revealed some minor abnormalities; a CT scan of the cervical
spine was stated to be unremarkable other than a “mild disc bulge

15. There are two lower arm bones, the radius and the ulna.
When the arms are at the sides of the body with palms facing
forward, the radius is the bone farthest from the center of the
body and above the thumb; the ulna is the bone closest to the
center of the body and above the little finger. The distal radius
is the portion closest to the wrist. The scaphoid bone is one of
the eight carpal bones of the wrist on the thumb side. It is
located next to the distal radius. See, generally, Relevant Wrist
Anatomy, joint-pain-expert.net,http://www.joint-pain-expert.net/
wrist-anatomy.html (Last accessed March 14, 2014); Anatomy of the
Hand and Wrist, HealthPages.org, http://www.healthpages.org/
anatomy-function /anatomy-hand-wrist/ (Last accessed September
13, 2015).
16

at [the] C3-4 [level] and [the] C4-5 [level];”16 and a CT scan of
the brain revealed “[n]o acute hemorrhage[.]”

Tr. 369-373 and

383-384.
After the initial treatment, x-rays and CT scans at
Pocono Mountain Medical Center, Kelly was transferred to Lehigh
Valley Hospital for further evaluation. Tr. 294 and 308. After
arriving at Lehigh Valley Hospital an MRI of Kelly’s left shoulder
and neck was performed which revealed “[n]o left brachial plexus
posttraumatic abnormality;” x-rays of the left wrist and forearm
revealed fractures of the distal radius and ulnar styloid process;
an x-ray of the elbow revealed no acute fracture, dislocation or
bony abnormality; x-rays of the left ankle revealed no evidence of
an acute fracture or dislocation but there was marked soft tissue
swelling along the medial malleolus; and an MRI of the cervical
spine revealed no evidence of traumatic injury but it was noted
that the study was degraded because of movement on the part of
Kelly. Tr. 306,

308, 310,

312 and 316.

Kelly was admitted to Lehigh Valley Hospital on
September 5, 2011, and remained at that facility until September
8, 2011. While at Lehigh Valley Hospital, Kelly was examined by
16. The actual finding stated in the report of the CT scan of
the C3-4 level was “appears unremarkable” and with respect to the
C4-5 level the CT scan revealed a “small left paracentral
protrusion.” Tr. 373. It was only in the impression section of
the report where the interpreting physician stated that the CT
scan revealed “mild disc bulges at C3-4 and C4-5.” Id.
17

physicians and other medical personnel multiple times.

An

examination by Yen-Hua Yu, D.O., apparently at the time of
admission on September 5, 2011, revealed that Kelly had full range
of motion and strength in his right upper extremity and no
deformities were observed other than a bruise on the knuckles and
abrasions. Tr. 295-297. There were similar findings made with
respect to the right lower extremity. Id. With respect to the left
upper extremity, Kelly had decreased range of motion and his
strength was not assessed because of severe pain and abrasions.
Id.

There were no deformities observed other than abrasions. Id.

There were similar findings made with respect to the left lower
extremity. Id.

However, Kelly had bruising (ecchymosis) and

swelling of the left ankle. Id.
A physical examination by Robert Barraco, M.D., on
September 6, 2011, was essentially normal other than with respect
to Kelly’s bilateral upper extremities. Tr. 327-328.

Kelly had

decreased range of motion and strength in the bilateral upper
extremities but he had full range of motion and strength in the
bilateral lower extremities. Tr. 328.

It was noted that Kelly’s

right hand was swollen but there was no bruising observed. Id.
Kelly reported pain in the left forearm and hand and he was unable
to lift his left arm without pain. Id.
Based on a request from Kamalesh Shaw, M.D., who
evaluated Kelly in conjunction with Dr. Yu on September 5, 2011,
18

Kelly was examined on September 6, 2011, by Wayne Dubov, M.D., a
physical medicine and rehabilitation specialist. Tr. 297 and 346349.

When Dr. Dubov reviewed Kelly’s systems, Kelly denied any

headaches, visual changes, loss of consciousness, neck pain or
back pain. Tr. 347. Kelly primarily complained of left upper
extremity pain but also complained of some pain in the right upper
extremity as well as the bilateral lower extremities. Id.

After

performing a clinical interview, physical examination and
reviewing the CT scans, MRIs and x-rays Dr. Dubov concluded that
Kelly’s upper extremity pain “appear[ed] to be nonphyiologic with
somatization of pain.”17 Tr. 348. Dr. Dubov noted that all of the
imaging studies were essentially unremarkable, including the MRI
of the left shoulder which was negative for brachial plexopathy.
Tr. 346 and 348.

Dr. Dubov stated that Kelly had “no clear

evidence of a definitive brachial plexus injury, or any definitive
evidence of any sort of cervical cord injury to explain [his]
symptoms.” Tr. 348.

Dr. Dubov further noted Kelly’s history of

opiate abuse and suggested a substance abuse consultation with a
psychiatrist. Id.

Dr. Dubov advised Kelly that “based on his

normal x-rays and MRI, that his recovery should be full[.]” Id.

17. Somatization is defined as “the conversion of mental
experiences or states into bodily symptoms.” Dorland’s
Illustrated Medical Dictionary, 1734 (32nd Ed. 2012).
19

On September 7, 2011, Kelly continued to complain of
moderate pain in the left arm, left foot, right wrist and
bilateral knees. Tr. 330.

The results of a physical examination

performed by Dr. Barraco were essentially normal other than as
follows. Kelly had decreased range of motion in the right upper
extremity and slightly decreased strength; he had some bruising at
the right wrist but no deformities; he had decreased range of
motion and strength and was tender in the left upper extremity but
there were no deformities; he was able to move the fingers of the
left upper extremity and his sensation was intact; and he had
decreased range of motion and slightly decreased strength in the
bilateral lower extremities. Tr. 331. He also had decreased range
of motion of the left ankle and bruising was evident over the
foot. Id.
On Thursday, September 8, 2011, the day Kelly was
discharged, it was reported that Kelly had “no issues overnight,”
his pain was tolerable with medications, and he was ambulating
well. Tr. 285. The discharge diagnosis was a left distal radius,
ulnar styloid fracture and right distal radius fracture which were
placed in splints.

Tr. 285, 288 and 345. Secondary diagnoses were

an avulsion fracture of the left talus18 and a left shoulder
18. The talus is defined as “the highest of the tarsal bones and
the one that articulates with the tibia and fibula to form the
ankle joint called also ankle bone[.]” Dorland’s Illustrated
(continued...)
20

contusion. Id.

Kelly was prescribed pain medications and

instructed to follow-up with an orthopedic specialist at Valley
Sports and Arthritis Surgeons (VSAS) in two weeks. Id.

At the

follow-up appointment the plan was to perform a physical
examination and additional x-rays and transition to a short arm
cast. Tr. 350.
On Sunday, September 11, 2011, Kelly visited the
emergency department at Pocono Medical Center (as a “walk in”)
complaining of left arm pain with paresthesias (pins and needles,
tingling, burning sensation) and an inability to move his left
arm. Tr. 388 and 393.

It was noted that Kelly “arrive[d]

ambulatory with [a] steady gait to [the] treatment area” and that
he was well-groomed, alert and oriented to person, place and time
and appeared in no acute distress although it was also stated that
he appeared to be in pain. Tr. 389. Kelly reported that he was
treated at Lehigh Valley Hospital and that he was not very happy
with the care that he had received at that facility. Tr. 388 and
393.

Kelly was initially examined by Richard Cornish, M.D., an

emergency medicine specialist, and then Nicolas Teleo, M.D., a
general surgeon, was asked to examine Kelly. Id.

Dr. Cornish

ordered x-rays of Kelly’s left wrist which revealed a “distal

18. (...continued)
Medical Dictionary, 1870 (32nd Ed. 2012).
21

radial fracture with alignment maintained at the area of
fracture.” Tr. 396.
When Dr. Teleo reviewed Kelly’s systems,19 Kelly, inter
alia, denied headaches, weakness, numbness, motor deficits,
dizziness, lightheadedness, depression and anxiety. Tr. 394.

The

only exception to an entirely negative review of systems was that
Kelly stated he had left upper extremity pain with paresthesias.
Id. The results of a physical examination performed by Dr. Teleo
were essentially normal other than Kelly had decreased motor
strength and sensation in the left upper extremity. Tr. 394-395.
Dr. Teleo offered to transfer him to Lehigh Valley Hospital for
further evaluation but Kelly and his family declined to go back to
that facility and requested that they be transferred to St. Luke’s
Hospital.

Tr. 395.

Dr. Teleo spoke with medical personnel at St.

Luke’s Hospital “who readily accepted [Kelly] but requested a
[cervical]-collar pending further investigation for persistent
[symptoms].” Tr. 390.
On September 12, 2011, Kelly was admitted to St. Luke’s
Hospital for further evaluation and remained hospitalized until
September 16, 2011. Tr. 406.

Upon admission additional diagnostic

19. “The review of systems (or symptoms) is a list of questions,
arranged by organ system, designed to uncover dysfunction and
disease.” A Practical Guide to Clinical Medicine, University of
California, School of Medicine, San Diego, http://meded.ucsd.edu/
clinicalmed/ros.htm (Last accessed September 13, 2015).
22

imaging was performed.

An x-ray of the left foot revealed “no

fracture or dislocation,” “[n]o lytic or blastic lesions,” “[n]o
degenerative changes” and the “[s]oft tissues [were]
unremarkable;” an x-ray of the left ankle revealed similar
findings except extensive soft tissue swelling was noted;

an x-

ray of the left wrist revealed a non-displaced fracture of the
distal radius and ulnar styloid; an x-ray of the right hand
revealed a non-displaced fracture of the distal radius; an x-ray
of the chest revealed “[n]o active pulmonary disease;” a CT scan
of the cervical spine revealed normal alignment, no subluxation,
no fractures, no degenerative changes, normal prevertebral and
paraspinal soft tissues, and a normal thoracic outlet.

Tr. 441,

443, 444, 446 and 448.
On September 12, 2011, Kelly was also examined by
Patrick J. Brogle, M.D. Tr. 429-431.

After performing a clinical

interview and physical examination, Dr. Brogle’s assessment was
that Kelly suffered from bilateral distal radius fractures and the
left upper extremity was “suspicious for a [] subacute carpal
tunnel syndrome on the left wrist.” Tr. 431. Dr. Brogle advised
Kelly that he should continue wearing upper extremity splints and
a loose ace bandage, and the CAM walker for relief of his left
ankle symptoms. Id.
On September 13, 2011, Kelly was examined by David D.
Skillinge, D.O. Tr. 426-428.

The results of a physical
23

examination were essentially normal other than with respect to
Kelly’s left upper extremity. Tr. 427.

Dr. Skillinge noted that

Kelly had severe pain to light touch of the left arm beginning at
the mid-humerus (upper arm bone) and extending into the fingers.
Id.

Dr. Skillinge reviewed the diagnostic imaging and noted that

the x-rays of the left foot revealed no obvious fractures or
dislocations and that the CT scan of the cervical spine showed no
acute fractures or malalignment. Id.

He further stated that the

x-rays of the left wrist confirmed a non-displaced fracture of the
distal radius as well as the ulnar styloid fracture and the x-ray
of the right wrist revealed a fracture of the distal radius. Id.
After performing the physical examination and reviewing the
diagnostic imaging, Dr. Skillinge’s assessment was that Kelly
should undergo operative repair of his left wrist fracture. Tr.
426. He further stated that Kelly as a result of the motorcycle
accident suffered from “severe left arm neuropathy” with treatment
so far resulting in “suboptimal control.” Tr. 428.

Dr. Skillinge

stated that Kelly would likely benefit from being prescribed
additional medications, including neuropathic agents such as
tricyclic antidepressants. Id.
On September 13, 2011, Kelly underwent without any
complications left wrist surgery performed by Steven T. Puccio,
D.O., involving an open reduction and internal fixation of the
left distal radius utilizing metallic hardware, and a left carpal
24

tunnel release. Tr. 432-434.

After the surgery it was reported

that Kelly continued to have refractory pain. Tr. 407. Pain
management was consulted and they were able to structure a regimen
that seemed to manage Kelly’s pain and it was noted that Kelly
would be followed by pain management as an outpatient. Id.
Furthermore, Kelly stated he was unable to move his left arm,
Kelly was diagnosed with a brachial plexus injury and he was
advised to follow-up with neurosurgery on an outpatient basis. Id.
At the time of discharge on September 16, 2011, Kelly was also
advised to follow-up with Dr. Puccio on September 26, 2011, at the
orthopedic clinic. Tr. 406.
On September 26, 2011, a physical examination of Kelly
performed by Dr. Puccio revealed that the surgical incisions were
well healed; there were no signs of erythema, warmth or drainage;
Kelly had persistent symptoms consistent with a brachial plexus
injury of the left upper extremity; he was neurovascularly stable
in the right upper extremity; he had tenderness near the right
distal radius; he had some swelling of the left foot but minimal
tenderness to palpation; and the range of motion of his ankle was
full, intact and pain free. Tr. 529.

X-rays of the left wrist

revealed “[s]table alignment status post [open reduction, internal
fixation] of the distal left radius fracture” and the “[u]lnar
styloid fracture appear[ed] stable.”

Tr. 539. X-rays of the right

wrist revealed a stable distal radius fracture and intact soft
25

tissues. Tr. 538. Dr. Puccio advised Kelly to continue to use the
Cam Walker Boot for the left foot; he placed Kelly’s right wrist
in a cast which would be removed in 4 weeks; Kelly was placed in a
universal wrist splint for the left wrist; he was given a
prescription for physical therapy; he was prescribed the pain
medication oxycodone; and he was advised to follow-up with Dr.
Baxter for pain control. Tr. 529.

Dr. Puccio scheduled a follow-

up appointment in 4 weeks. Id.
On September 29, 2011, Kelly had an appointment with Dr.
Baxter at St. Luke’s Palliative Care regarding his left upper
extremity. Tr. 626-627.

Dr. Baxter’s notes are partially

illegible. However, the court can discern that Dr. Baxter reported
Kelly’s subjective complaints of pain and reviewed Kelly’s pain
medications. Tr. 626.

Kelly reported a history of opioid use and

that he was on oxycodone prior to the accident. Id.

Kelly further

stated that he had constant 5/10 pain from the mid humerus into
the fingertips with frequent flares to 10/10. Id.

The results of

a physical examination reported by Dr. Baxter were essentially
normal other than with respect to Kelly’s left upper extremity.
Tr. 627. Dr. Baxter gives no indication as to Kelly work-related
functional abilities. Id.
Kelly attended physical therapy from October 2011
through July 2012, but missed many appointments with several gaps
in treatment, despite being told by his physical therapist that it
26

was extremely important for his recovery. Tr. 554. The physical
therapist noted that despite Kelly’s frequent cancellations and no
shows his left shoulder nonetheless had improved strength and
range of motion. Tr. 734-735, 738, 740-741 and 743. Kelly reported
that his medications provided relief “all of the time.” Tr. 778.
On October 20, 2011, Kelly visited the emergency
department of St. Luke’s Hospital complaining that his “head feels
weird tonight” and that he was laying in bed when he developed
scalp numbness and a tingling sensation which also radiated down
the right side of his neck and jaw. Tr. 512. He also reported
“some involuntary jerking movement of the left upper extremity.”
Id.

The results of a physical examination were essentially normal

other than with respect to his left upper extremity and the right
shoulder. Tr. 513.

Kelly had decreased range of motion, reflexes

strength and sensation in the left upper extremity as well as
occasional twitching which was observed. Id.

Kelly had a cast on

the right arm and it was noted he had decreased range of motion at
the shoulder on the right. Id. Kelly had full range of motion and
+4/5 strength of the bilateral lower extremities. Id. Kelly was
wearing a CAM boot on the left lower extremity. Id. The diagnostic
assessment was that Kelly suffered from an anxiety reaction and
left brachial plexus radiculitis. Id.

Kelly was prescribed the

anxiety medication Xanax and discharged from the hospital in a
stable condition. Tr. 514.
27

On October 22, 2011, Kelly returned to the emergency
department at St. Luke’s Hospital complaining “that his head [was]
numb and face [was] numb and [had] pressure in his head” and
“whenever he moves his fingers it causes pain in his head.”

Tr.

518. He further stated that he had numbness “down the left arm
constantly, occasionally in the left chest and face.”

Tr. 519.

The results of a physical examination were essentially normal
other than with respect to his left upper extremity. Tr. 520.
Kelly appeared anxious but in no acute distress. Id. He had
weakness and decreased sensation in the left upper extremity but
“[s]ymmetric sensation to the face, chest, backs and legs.” Id.
It was reported that he had no sensory deficits and no extremity
tenderness or edema. Id.

A CT scan of Kelly’s brain was performed

which revealed “[n]o acute intracranial hemorrhage, mass effect or
edema.” Tr. 524. The diagnostic assessment was “post-concussive
syndrome, doubt delay [intracerebral hemorrhage];” brachial plexus
radiculitis; headache, not otherwise specified; and contusion of
the coccyx (tailbone).20 Tr. 521.

Kelly was discharged from the

hospital on the same day in a stable condition with instructions

20. There is no explanation for this last diagnosis in the
treatment notes of this visit. There is no indication in those
notes that Kelly complained about pain or other symptoms
associated with his tailbone. There is one reference in the
medical record by a nurse who initially assessed Kelly upon
arrival at the emergency department that he complained about a
“stiff lower back.” Tr. 518.
28

to follow-up with his primary care physician in 3 to 5 days or
immediately if his symptoms worsened. Id. It was stated that at
the time of discharge Kelly’s gait was steady. Id.
On October 24, 2011, Kelly had a follow-up appointment
with Dr. Puccio regarding his left and right wrists and his left
ankle. Tr. 528.

Kelly reported that he was doing well.21 Id. The

cast on Kelly’s right wrist was removed. Id.

A physical

examination revealed that Kelly’s right wrist was stiff but he was
“motor, sensory and neurovascularly stable.” Id.

Kelly’s left

wrist was “nontender about the fracture site; he had full range of
motion of his elbow; he reported pain with motion of his left
shoulder and there was atrophy “about his shoulder joint;” and
there was still swelling noted about the dorsal aspect of Kelly’s
left foot but there was no tenderness and his range of motion was
intact. Id.

X-rays were performed on October 24, 2011, which Dr.

Puccio reviewed and noted as follows: (1) x-rays images of the
left and right wrists revealed well-healed fractures; (2) x-ray
images of the left foot and left elbow did not reveal any acute
changes; and (3) x-rays of the left shoulder revealed “some
inferior subluxation of the humerus [] consistent with his
21. Medical progress notes are divided into four sections:
subjective, objective, assessment and plan (SOAP). The subjective
portion of a medical treatment note is where a patient’s
statements and complaints are reported. Under the subjective
portion of Dr. Puccio’s medical notes it states as follows: “He
is doing well.” Tr. 528.
29

brachial plexus injury.” Id.

Dr. Puccio’s diagnostic assessment

was as follows: “Status post [open reduction, internal fixation]
left distal radius, closed reduction right radial styloid, left
foot sprain and left brachial plexus injury.” Id.

Dr. Puccio

advised Kelly to continue with physical therapy for his left arm,
right wrist and left foot. Id.

Dr. Puccio also noted that Kelly

could be “weightbearing to tolerance” and could wean himself from
the CAM walker boot. Id.
Also, on October 24, 2011, Kelly underwent an
electromyography (EMG) of the left upper extremity which revealed
“electrophysiologic evidence of severe axonal upper and middle
trunk brachial plexopathy as evidence by the abnormal nerve
conduction studies and needle findings . . . In addition, there is
evidence of mild median compression neuropathy at the wrist
(carpal tunnel syndrome) with demyelinative changes as evidenced
by the abnormal median mixed palmar studies.” Tr. 544.
On October 28, 2011, Kelly again visited the emergency
department at St. Luke’s Hospital with “multiple complaints”
similar to those made on October 20 and 22, 2011.

Tr. 580-584. In

addition to the previous complaints Kelly complained of blurred
and double vision22 and “left arm swelling since physical therapy
yesterday.” Tr. 580. Kelly also complained of right ankle swelling
22. On October 22, 2011, Kelly denied any visual symptoms. Tr.
578.
30

“without calf pain, erythema, or other pain.” Id.

Kelly’s mother

accompanied him on this visit and reported that Kelly was “out of
oxycodone and does not have another pain [management] appointment
until Nov. 1.” Id.

When an attending physician reviewed Kelly’s

systems, Kelly denied any fever, chills, pruritis, rash, back
pain, neck pain and black outs. Tr. 582-583.

He reported

swelling, headaches and left arm pain. Tr. 583.

A physical

examination revealed the following adverse findings: Kelly
appeared anxious and in moderate distress; he had decreased
sensation to light touch localized to the left upper extremity; he
had mild non-pitting edema in the left upper extremity and right
ankle; and he had “[s]ubjective sensory loss to [the left upper
extremity] worse on [the] lateral aspect of the thumb.” Id.

In

all other respects the results of the examination were essentially
normal, including that Kelly had “[f]ull range of motion in all
extremities.” Id.

Kelly was given two tablets of Percocet

(oxycodone-acetaminophen)and discharged from the hospital in an
improved condition. Id.

Also, during this visit because of the

edema in Kelly’s left upper extremity and right ankle he underwent
an upper and lower limb venous duplex scan to rule out thrombus
(blood clot) formation. Tr. 585-587.

These scans were negative

although the scan of the left upper extremity was limited
“secondary to patient’s pain and inability to position arm to
visualize the left basillic vein in the forearm.” Id.
31

On November 1, 2011, Kelly had an appointment at St.
Luke’s Hospital with Michael Mosley, M.D. Tr. 629.

The medical

notes of this appointment are handwritten and only partially
legible.

It appears that Kelly complained of suffering panic

attacks, pain in his left upper extremity and a “‘popping’ and
‘shaking’ sensation on the top of his head.” Id.

Dr. Mosley’s

objective findings are limited and mostly illegible. Id. He did
note that Kelly was tearful and had poor insight and an anxious
affect. Id.

Dr. Mosley’s assessment was that Kelly suffered from

left arm brachial plexopathy caused by the motorcycle accident;
left arm pain secondary to the brachial plexopathy; posttraumatic
stress disorder with severe anxiety secondary to the accident; and
“opioid induced constipation, good control.” Id.

Dr. Mosley under

the plan section of his medical notes states that he had a long
discussion with Kelly and his family regarding posttraumatic
stress disorder and how the related stress and anxiety are
contributing to Kelly’s pain. Id. Dr. Mosley prescribed the
psychotropic medications Klonopin,23 Effexor24 and Seroquel25 and
23. Klonopin “is in a group of drugs called benzodiazepines . .
. [I]t affects chemical in the brain that may become unbalanced
and cause anxiety. Klonopin is used to treat seizure disorders
and panic disorder.” Klonopin, Drugs.com, http://www.drugs.
com/klonopin.html (Last accessed September 13, 2015).
24. Effexor “is an antidepressant in a group of drugs called
selective serotonin and norepinephrine reuptake inhibitors[.]
[It] affects chemicals in the brain that become unbalanced and
(continued...)
32

apparently decreased Kelly dosage of amitriptyline (Elavil), an
antidepressant medication.26 Id.
appointment in 2 weeks. Id.

Dr. Mosley scheduled a follow-up

Also, on November 1, 2011, Kelly

underwent an MRI of the brain which revealed no intracranial
abnormalities which was consistent with a prior CT scan. Tr. 675.
On November 4, 2011, Kelly visited the emergency
department at Pocono Medical Center complaining of left arm pain.
Tr. 399.

He arrived at about 7:15 p.m. (19:15). Id.

Kelly was

observed to be pale, sweaty and anxious upon arrival at the
emergency room but was ambulating independently. Id.
Kelly stated that “something [was] wrong with his left arm - feels
like its grinding[.]” Id. He further noted that he had pain around
the thumb. Id.

When Kelly’s left upper extremity was examined by

a nurse no abnormalities were reported other than subjective
complaints of pain by Kelly. Tr. 400.

With respect to the right

24. (...continued)
cause depression. Effexor is used to treat major depressive
disorder, anxiety and panic disorder.” Effexor, Drugs.com,
http://www.drugs.com/effexor.html (Last accessed September 13,
2015).
25. Seroquel “is an antipsychotic medicine[] [which] works by
changing the actions of chemical in the brain. [It] is used to
treat schizophrenia [] [and] [] bipolar disorder [] [and] also
used together with antidrepressant medications to treat major
depressive disorder[.]” Seroquel, Drugs.com, http://www.drugs.
com/seroquel.html (Last accessed September 13, 2015).
26. Amitriptyline, Drugs.com, http://www.drugs.com/amitriptyline
.html (Last accessed September 13, 2015).
33

upper extremity, Kelly had no complaints of pain; he had normal
radial and brachial pulses; he had brisk capillary refill; his
sensation was intact;, he had no numbness or tingling; and he had
full range of motion. Id.

Kelly was placed in a room on a bed

with a call bell. Tr. 401. At about 7:46 p.m. (19:46) Kelly was
ringing the call bell and when checked on, Kelly stated that he
was spitting out pieces of his teeth. Id.

An examination of

Kelly’s mouth revealed that all of his teeth were intact, there
were no chips, no missing teeth and all fillings were in place.
Id.

Kelly then stated that he could not breathe and was dying and

commenced hyperventilating. Id.

It was noted that Kelly’s mother

was present but at some point after this encounter Kelly “eloped”
from the emergency department and could not be found. Id.

The

case was closed by the attending physician and the mother advised
that Kelly would be retriaged and registered when he was brought
back to the emergency department.27 Id.
The next day,

November 5, 2011, Kelly visited the

emergency department at St. Luke’s Hospital with multiple
complaints similar to those he had on previous occasions when he
visited the emergency department at St. Luke’s Hospital.28 Tr.
27. There is also an indication that the mother was going to
attempt to involuntary commit (302) Kelly for psychiatric
treatment. Tr. 400-401.
28.

There is no indication that Kelly’s mother took any steps to
(continued...)
34

592.

Kelly stated that he felt that his left hand was “not right”

and that he had paresthesias intermittently prior to this visit.
Id.

Kelly denied “any increased pain” and apparently was of the

opinion that the antidepressants which he was started on were
responsible for his symptoms and he discontinued taking them. Id.
Kelly denied suffering from any fever, chills, weight loss,
fatigue, headaches neck pain or any recent trauma and he had no
other complaints. Id.

The results of a physical examination were

essentially normal other than decreased strength in his left upper
extremity and increased pain with range of motion of the arm. Id.
Kelly was alert and oriented to person, place and time; his left
hand grasp was 5/5; his sensation over the left hand and arm was
intact; and the motor and neurological examination in all the
other extremities was normal. Id.

After performing multiple

diagnostic tests, Kelly was discharged from the hospital in a
stable condition. Tr. 589 and 596.
On November 9, 2011, Kelly underwent x-rays of his left
forearm and hand which revealed “[s]table postoperative alignment
of [the] distal radius” and “[n]o acute abnormality[.]” Tr. 573574.
On November 10, 2011, Kelly visited the emergency
department at St. Luke’s Hospital with complaints of “hand burning
28. (...continued)
involuntarily commit him to a psychiatric facility.
35

and foot numbness” which “symptoms [were] anatomically localized
to the left thumb and left plantar foot surface.” Tr. 613. Kelly
also complained of “head burning/numbness.” Id.

The results of a

physical examination were essentially normal. Tr. 614.

It was

reported that Kelly had “[n]o extremity edema,”29 “[n]o motor
deficits” and “[n]o sensory deficits.” Id.

The attending

physician ordered a CT scan of the head because of the complaints
regarding head numbness and burning. Tr. 618.

However, Kelly left

the emergency department against medical advice without having the
CT scan performed. Id.

Kelly arrived at the hospital by private

transportation and left with his family. Tr. 615 and 618.
On November 14, 2011, Kelly had an appointment with two
physicians.

First, he had an appointment with Darshan B. Patal,

M.D., a family practitioner in Mountainhome, Pennsylvania, and
then with Dr. Baxter. Tr. 630-631 and 666-672.

At the appointment

with Dr. Patal, Kelly complained of erectile dysfunction and
requested something for it. Tr. 666.

Kelly told Dr. Patal that he

stopped all of his psychotropic medications 1 week prior to the
appointment and that he no longer had acute panic attacks or
emergency room visits for suicidal thoughts. Id.
that he was “feeling better.” Id.

Kelly stated

When Dr. Patal reviewed Kelly’s

systems, he denied headaches, visual changes, dizziness, neck
29. The edema observed on October 28th had disappeared. Tr. 580584.
36

swelling, chest pain, shortness of breath, abdominal pain, urinary
symptoms, rashes or edema. Id.

Kelly reported a left shoulder

deformity and inner left knee pain. Id.

The objective physical

examination findings reported by Dr. Patal were all normal other
than Kelly’s blood pressure was elevated (140/98). Tr. 667. Dr.
Patal stated that Kelly was alert, comfortable, cooperative,
healthy, in no distress, well developed, and well nourished. Id.
Dr. Baxter’s treatment notes are barely legible but
reveal that Kelly was examined without his mother present. Tr.
630. Kelly reported that he stopped taking Effexor, Klonopin,
amitriptyline and Seroquel and stated that he now feels “normal.”
Id. Kelly also reported that he suffered a fall recently and
complained of a left shoulder “separation.” Id.

Dr. Baxter noted

that Kelly wanted to stop taking morphine but that the gabapentin
(Neurontin)30 was helpful. Id.

Dr. Baxter advised Kelly of the

need for physical therapy/rehabilitation and Kelly stated that he
agreed with that advice. Id.

Dr. Baxter reviewed the diagnostic

studies, including x-rays and noted that they were all normal
after the wrist surgery. Id. The physical and mental status
examinations performed by Dr. Baxter revealed that Kelly was
alert, awake and oriented to person, place and time; he had better
30. Gabapentin “is an anti-epileptic medication, also called an
anticonvulsant. . . [It] is used in adults to treat nerve
pain[.]” Gabapentin, Drugs.com, http://www.drugs.com/
gabapentin.html (Last accessed September 13, 2015).
37

eye contact and no obvious thought disorders or hallucinations;
his breathing was even and unlabored; his left shoulder had a ½
inch step off at the acromioclavicular joint but with no
subluxation and Kelly had adequate passive range of motion;
Kelly’s left hand and forearm were unchanged; and he had no edema.
Tr. 631.

Dr. Baxter’s diagnostic assessment was that Kelly

suffered from pain in the left arm and hand due to traumatic
brachial plexopathy; intractable neuralgia;31 a left shoulder
separation; posttraumatic stress disorder with panic disorder; and
he questioned whether Kelly suffered from opioid induced
neurotoxicity. Id.

Dr. Baxter prescribed methadone in place of

morphine and Kelly was continued on gabapentin at an increased
level. Id.
On November 30, 2011, x-rays of Kelly’s left shoulder
revealed “[f]indings suspicious for [an] impacted humeral head
fracture, not seen on previous examination.” Tr. 676.

There were

no lesions or degenerative changes and the soft tissues were
unremarkable. Id.

X-rays of Kelly’s left knee on the same day

revealed an “[i]ntra-articular loose body/avulsion fracture within
the region of the tibial spine/intercondylar notch.” Tr. 677.
There were no lesions or degenerative changes, the soft tissues
31. Neuralgia is defined as recurring “pain which extends along
the course of one or more nerves. Many varieties of neuralgia are
distinguished according to the part affected[.]” Dorland’s
Illustrated Medical Dictionary, 1126 (27th Ed. 1988).
38

were unremarkable and there was no joint effusion. Id.

An MRI of

Kelly’s left shoulder revealed the following: “There is diffuse
intramuscular edema in the rotator cuff muscles, without tendon
tear.

There is also muscle edema within the deltoid. Given

history of brachial plexus injury, this is probably denervation
injury.

There is no evidence of a humeral head fracture as was

suspected on [the] [] plain [x-ray] films.” Tr. 679.
Also, on November 30, 2011, Kelly told a physical
therapist that his primary concern was his left shoulder because
he had little functional use; that his left foot and ankle were
back to normal; his right shoulder was stiff and weak but not
painful; his neck only bothered him intermittently; and he no
longer had neck spasms or headaches. Tr. 681.
On December 5, 2011, Kelly had a follow-up appointment
with Dr. Puccio regarding his left wrist fracture which was
surgically repaired. Tr. 727.

Kelly reported that he was “doing

quite well at the present time with regard to his overall mental
state.” Id. Dr. Puccio when physically examining Kelly’s left
wrist observed a “significant loss of supination32 to the point
where he does get to neutral and causes him significant

32. If you hold the arms straight and level at your side with
the fingers extended and the thumb pointed upward, supination is
turning the arms so that the palms are facing upward.
Pronation is the opposite of supination, the palms are turned
downward.
39

discomfort.” Id.

Dr. Puccio had x-rays taken of the left wrist

and reported that they revealed “a well-healed fracture” and
“satisfactory alignment.” Id.

The x-rays further revealed

“evidence of disuse osteoporosis in the distal radius and the
carpal bones” but “otherwise [the x-rays] were unremarkable.” Id.
Dr. Puccio further noted that Kelly was still suffering from
brachial plexopathy and that Kelly was scheduled to see a surgeon
“at the University of Pennsylvania for consideration of possible
sural nerve graft.” Id.

Dr. Puccio scheduled a four to six week

follow-up appointment and stated that if Kelly was still having
symptoms with regard to pronation and supination, arrangements
[would] be made for [him] to undergo an evaluation by . . . [a]
hand surgeon.” Id.
On December 6, 2011, Kelly was evaluated by Eric L.
Zager, M.D., a neursurgeon at the Hospital of the University of
Pennsylvania located in Philadelphia. Tr 701-702. Kelly was
accompanied by his parents and sister to the appointment. Tr. 701.
A physical examination revealed severe limitation of Kelly’s left
upper extremity involving subluxation of the shoulder joint and
atrophy of the shoulder muscles, and no strength (0/5) in five
muscles (supraspinatus, infraspinatus, deltoid, biceps and
brachioradialis) which are involved in the stability of the
shoulder joint and movement of the left upper extremity including
raising and rotating the arm. Id.
40

Dr. Zager found that Kelly’s

left hand muscles were functional and that he had patchy sensation
in the upper arm with good sensation in the forearm and hand but
absent in the thumb. Id.

Dr. Zager noted that Kelly’s other

extremities, the right upper and bilateral lower were strong and
did not report any functional limitations with respect to them.
Id.

After performing a clinical interview, the physical

examination and reviewing the results of the EMG performed on
October 24, 2011, Dr. Zager concluded that Kelly “suffered a
severe injury of the supraclavicular plexus” and recommended
exploratory surgery of the left brachial plexus with the
possibility of then performing a nerve graft or nerve transfer
reconstruction in an attempt to restore shoulder abduction33 and
elbow flexion. Id.
A physical therapy discharge summary dated December 9,
2011, reveals that Kelly opted for the surgery because the
discharge summary states as follows: “[Kelly] [is] having surgery
on brachial plexus and will be hospitalized. [Kelly] will need new
[prescription] for [initial evaluation] and treat[ment] to
return.” Tr. 749.
On December 12, 2011, Kelly had a follow-up appointment
with Dr. Baxter regarding his left upper extremity pain. Tr. 715.
33. Adduction is movement toward or beyond the midline of the
body in the frontal plane; abduction is movement of a body part
away from the midline of the body. See Dorland’s Illustrated
Medical Dictionary, 2 & 26 (32nd Ed. 2012).
41

Dr. Baxter reported that Kelly was tolerating methadone and
gabapentin, “feel[ing] mentally clearer,” his “bowels [were] ok,”
and he “acknowledge[d] frustration [with the] situation.” Id.

Dr.

Baxter noted that Kelly was scheduled for surgery at the Hospital
of the University of Pennsylvania. Id.

With respect to the

objective findings, Dr. Baxter noted that Kelly was alert, awake
and oriented to person, place and time; he had good eye contact;
his mood and affect were appropriate; his breathing was even and
unlabored; he had a regular rate and rhythm of the heart; his
abdomen was soft and nontender with normal bowel sounds; and he
had hyperalgesia34 and allodynia35 of the forearm and fingers of
the left upper extremity. Id. Dr. Baxter’s assessment was left
upper extremity pain caused by brachial plexopathy, intractable
neuralgia and posttraumatic stress disorder. Id. Dr. Baxter
continued Kelly on gabapentin, oxycodone and an increased dose of
methadone. Id.
On December 16, 2011, Kurt Maas, M.D., reviewed on
behalf of the Bureau of Disability Determination Kelly’s medical
records, including Dr. Baxter’s treatment note of December 12,

34. Hyperalgesia is defined as an abnormally increased pain
sense. Dorland’s Illustrated Medical Dictionary, 886 (32nd Ed.
2012).
35. Allodynia is defined as “pain resulting from a non-noxious
stimulus to normal skin.” Dorland’s Illustrated Medical
Dictionary, 51 (32nd Ed. 2012).
42

2011, and concluded that Kelly suffered from a brachial plexus
injury to the left upper extremity but could perform light work
that involved limited use of his left arm, no climbing or crawling
and had to avoid concentrated exposure to extreme cold, vibration
and hazardous machinery and heights. Tr. 133, 135-136 and 138-140.
Dr. Maas further opined that Kelly had no manipulative,
communicative or visual limitations. Id.

Also, James Vizza,

Psy.D., a state agency psychologist reviewed Kelly’s medical
records and on January 3, 2012, opined that Kelly had no severe
mental impairments. Tr. 137-138.
On December 30, 2011, Kelly had a follow-up appointment
with Dr. Baxter at which time Kelly reported suffering from
increased “nerve pain” and his left arm and hand throbs, aches,
burns and gets cold easily and this increased pain was causing an
increase in his anxiety. Tr. 714. Dr. Baxter discussed the
following possible options with Kelly: (1) increase the dosage of
methadone; (2) add a prescription for amitryptiline; and (3) wear
a compression sleave for the hand pain. Id.

Apparently, Kelly

requested an increase in his dosage of oxycodone because Dr.
Baxter explained several times the problem with using an increased
dosage and “the development of tolerance.” Id.

The objective

examination findings were as follows: (1) Kelly was alert, awake
and oriented to person, place and time; (2) he appeared anxious
and had difficulty focusing; (3) his breathing was even and
43

unlabored; (4) he had a regular heart rate and rhythm; (5) his
abdomen was soft and nontender; and (6) his hand was in a sling.
Id.

Dr. Baxter’s assessment remained the same except instead of

listing posttraumatic stress disorder as a diagnoses, he listed
anxiety.36 Id.
On January 5, 2012, Kelly was admitted to the Hospital
of the University of Pennsylvania to undergo surgery on his left
shoulder. Tr. 694.

Dr. Zager performed an exploration and

decompression of the left brachial plexus site with nerve grafts
and transfers. Tr. 694-695.

Kelly “tolerated the procedure well

and had his pain controll[ed] within 1 to 2 days[.]” Tr. 694.

He

tolerated a regular diet and was ambulating. Id. After being seen
by physical therapy he was deemed suitable for discharge on
January 7, 2012. Id.
On January 10, 2012, it appears that a certified
registered nurse practitioner at the Hospital of the University of
Pennsylvania phoned Dr. Baxter’s office indicating that Kelly did
well “postop” but was now suffering from “lots of pain.” Tr. 713.
The nurse noted that Kelly had been taken off of gabapentin and

36. Dr. Baxter is
specialist. He is
is board certified
he is certified by
specialist.

a family practioner and pain management
not a psychiatrist. Furthermore, although he
in family medicine there is no indication that
any organization as a pain management
44

started on Lyrica.37 Id. Dr. Baxter recommended a gradual restart
of gabapentin, an increased dosage of amitriptyline and a
prescription for methadone. Id. Dr. Baxter also scheduled a
follow-up appointment.38 Id.
On January 24, 2012, Kelly apparently had an appointment
with Dr. Mosley, a physician associated with Dr. Baxter. Tr. 712.
The notes of this appointment are mostly illegible. Id.

The court

can discern that Kelly reported that his pain was worse since the
surgery. Id.

The notes also mentioned that Kelly received a week

supply of pain medication from a nurse and had a follow-up
appointment in 4-6 weeks and Kelly apparently ran out of his
oxycodone and attested he would not get anymore pain medication
from them (the court assumes this is referring to the nurse at the
Hospital of the University of Pennsylvania) in the future. Id.
The objective findings are only partially legible but there is no
indication that Kelly had any functional deficits with respect to
his right upper extremity or his bilateral lower extremities. Id.

37. Lyrica (generic name pregabalin) “is an anti-epileptic drug,
also called an anticonvulsant. . . Lyrica is used to control
seizures and to treat fibromylagia. It is also used to treat pain
caused by nerve damage in people with diabetes (diabetic
neuropathy) . . . or neuropathic pain associated with spinal cord
injury.” Lyrica, Drugs.com, http://www.drugs.com/lyrica.html
(Last accessed September 13, 2015).
38. The handwriting of Dr. Baxter and an associate of his, Dr.
Mosley, is barely legible and at time illegible.
45

On January 31, 2012, Kelly underwent an initial physical
therapy evaluation at Good Shepherd Outpatient Rehabilitation. Tr.
746-748.

The physical therapist conducting the evaluation stated

that Kelly had “no functional use of [his] [left upper extremity]
at this time due to complete immobilization in [a] sling” and that
he “sleeps and showers [with] arm immobilized.” Tr. 747. It was
also noted that Kelly had “significant forward head posture and
rounded shoulders”

and his left arm was in a sling all the time

but he was right hand dominant. Id. The physical therapist
recommended occupational therapy to address Kelly’s left hand and
wrist. Tr. 748.

There was no mention of any need to address a

functional deficit of Kelly’s right upper extremity or his
bilateral lower extremities. Id.

The physical therapist

recommended 2 to 3 therapy sessions per week for 10 to 12 weeks
and noted that his rehabilitation potential was fair to good. Id.
On February 7, 2012, Kelly had another appointment with
Dr. Mosely at which Kelly complained of worsening pain since
starting physical therapy. Tr. 711.

The objective findings and

assessment of Dr. Mosley all related to Kelly’s left upper
extremity. Id.

There was no indication that Kelly had any

physical, functional limitations with respect to his right upper
extremity or his bilateral lower extremities. Id.
On February 15, 2012, Kelly had a follow-up appointment
with Dr. Zager at which Dr. Zager observed that Kelly’s incisions
46

were all healing well without evidence of infection; and there had
been “no neurological change, specifically no shortness of breath,
loss of function in the triceps or hand.” Id. Kelly reported that
he was still bothered by constant neuropathic pain following the
surgery but Dr. Zager indicated that “[h]e has a pain management
specialist who is working with his medication” and that he
discussed with Kelly and his mother the possibility of another
surgical operation to address his pain which they indicated they
would consider. Id.

Dr. Zager advised Kelly to remove his sling

and pursue range of motion exercises with his physical therapist.
Id.

With regard to the physical therapy, Kelly complained that it

was uncomfortable but Dr. Zager emphasized the importance of
maintaining the range of motion that is already limited in the
shoulder, wrist and hand of the left upper extremity. Id.
On February 20, 2012, Kelly had an appointment with Dr.
Baxter at which he stated he was attending physical therapy which
resulted in an increase in his pain in the left upper extremity
which apparently required him to take oxycodone more frequently.
Tr. 710. None of the objective findings reported by Dr. Baxter
related to the right upper extremity or the bilateral lower
extremities. Tr. 709.

Dr. Baxter’s assessment remained the same

although he noted that Kelly’s “anxiety/PTSD” was “stable.” Id.
At a physical therapy appointment on March 8, 2012,
Kelly reported “noticing a little more strength and motion [at the
47

left] shoulder but still [complained] of persistent pain.” Tr.
743.

The physical therapist stated that Kelly had “continued

hypersensitivity throughout the [left upper extremity]” but was
“progressing very well [with] desensitization techniques” and
Kelly had “progressed [with] grip strength to allow grasping some
objects, however, [he had] minimal functional motion [at the]
shoulder, elbow and wrist.” Tr. 743-744.

The physical therapist

further stated that Kelly “demonstrate[d] progress [with] [passive
range of motion], strength, and sensitivity, since beginning
therapy” but “[p]rogress [had] been limited [due] to poor
attendance [and] transportation issues.” Tr. 744.

The physical

therapist concluded that Kelly was “a good candidate for
outpatient physical therapy to address [the] deficits and optimize
function of the [left upper extremity].” Id.

The physical

therapist did not report any functional deficits relating to the
right upper extremity or the bilateral lower extremities. Id.
Kelly had appointments with Dr. Baxter on March 16,
April 13, May 11, June 4 and 19, July 2, August 6, October 4,
November 1 and 27, 2012. Tr. 703-708, 785, 788 and 794-795. Dr.
Baxter continued to report functional deficits in Kelly’s left
upper extremity with subjective complaints of pain but he did not
report any functional deficits in Kelly’s right upper extremity or
bilateral lower extremities. Id.

Dr. Baxter’s diagnostic

assessment remained essentially the same during this period of
48

time: intractable left upper extremity pain with lack of function.
Id.
On May 21, 2012, Kelly had a follow-up appointment with
Dr. Puccio regarding his left wrist. Tr. 726.

An x-ray of the

left elbow revealed “significant post traumatic and disuse
osteoporosis and osteopenia as well as posteriorly subluxed radial
head” and “loss of pronation as well as supination of the left
hand.” Tr. 726. Dr. Puccio noted that Kelly had “a significant[]
traumatic injury to the left upper extremity which may not have
great potential recovery.” Id.

Dr. Puccio did not report on the

right upper extremity or the bilateral lower extremities. Id.
On June 25, 2012, Kelly had an appointment with Dr.
Zager for reevaluation of his left upper extremity. Tr. 698-699.
At this appointment Kelly complained of some swelling in the left
upper and lower extremities. Tr. 698. Dr. Zager noted that Kelly
had an ultrasound examination of the left upper extremity which
revealed no evidence of deep vein thrombosis but that the lower
extremity edema should be evaluated by his primary care
physician.39 Tr. 698.

Dr. Zager noted that Kelly’s neuropathic

pain was being managed by a local pain management specialist and
suggested that Kelly discuss with him the possibility of “a trial
of spinal cord stimulation.” Id.
39. A review of the subsequent medical records reveals no report
of left lower extremity edema.
49

On July 9, 2012, Kelly had a follow-up appointment with
Dr. Puccio regarding his left upper extremity pain. Tr. 725. There
were no objective examination findings reported by Dr. Puccio. Id.
Dr. Puccio also suggested that Kelly may be a candidate for a
spinal cord stimulator. Id.
Also, on July 9, 2012, Kelly had an appointment with
Vinti Shah, D.O., a pain management specialist at St. Luke’s
Hospital. Tr. 783-784. Kelly told Dr. Shah that he was not sure if
he wanted to go forward with the use of a spinal cord stimulator
and that he needed to think about it. Tr. 783. When Dr. Shah
reviewed Kelly’s systems, all systems were negative other than
with regard to the functional limitations and pain in the left
upper extremity. Id. The results of a physical examination were
essentially normal other than with regard to the left upper
extremity. Tr. 784.

Kelly appeared to be in no acute distress; he

was pleasant and talkative; he was sitting comfortably in a chair;
and he was oriented to person, place and time. Id.

Dr. Shah’s

diagnostic assessment was that Kelly suffered from left upper
extremity pain, brachial plexopathy and anxiety. Id.

Dr. Shah

refilled Kelly’s prescriptions for methadone and oxycodone but
also noted as follows: “The patient is actually out of oxycodone
today which does not seem to correlate with the amount that was
prescribed for him. . . The patient was counseled on the

50

appropriate use of opioids. However, the patient is adamant that
he was using his medications appropriately.” Id.
On June 12, 2012 (revised on July 16, 2012), Dr. Zager
completed on behalf of Kelly a document entitled “Brachial
Plexopathy Medical Source Statement.” Tr. 716-718 and 720. In that
document Dr. Zager stated that Kelly did not have peripheral
neuropathy and his diagnostic assessment was that Kelly suffered
from a severe left brachial plexus injury and his prognosis was
poor to fair. Tr. 716. Dr. Zager stated that Kelly had increased
sensitivity to touch, muscle spasm, weakness, sensory loss,
decreased tendon reflexes, cramping, muscle atrophy, impaired
sleep, and severe pain and paresthesias, all with respect to the
left upper extremity, and that these conditions could be expected
to last at least 12 months. Id.

Dr. Zager noted that drowsiness

was a side effect of Kelly’s medications and that associated
psychological problems were impaired attention and concentration,
reduced ability to attend to tasks or persist in tasks, depression
and anxiety. Tr. 717.

Dr. Zager failed to give an indication as

to how long in a competitive work situation Kelly could sit, stand
or walk. Id.

Dr. Zager reported that Kelly would need to take

unscheduled breaks during a workday but did not note how many or
for how long. Id.

Dr. Zager noted that Kelly could never lift

with his left arm but did not access Kelly’s right arm; Kelly
could rarely twist, stoop or crouch/squat; Kelly had significant
51

limitations with reaching, handling and fingering with the left
arm; and Kelly had no use of his left upper extremity for
grasping, turning and twisting objects, fine manipulation,
reaching in front of the body and reaching overhead and had a 50%
limitation with respect to the right arm. Tr. 718.

Dr. Zager did

not explain why Kelly had a 50% limitation in the right arm.40 Id.
Dr. Zager stated that Kelly’s symptoms would likely be severe
enough to interfere with Kelly’s attention and concentration 10%
of a typical workday and that Kelly was incapable of even “low
stress” work and was disabled by severe pain and weakness. Tr.
719.

Dr. Zager stated that Kelly’s impairments were not likely to

produce “good days” and “bad days” and that he would never be
absent from work as a result of his impairments or treatment. Tr.
720.

On July 16, 2012, Dr. Zager revised one of his answers to

the questions set forth in the medical source statement. Tr. 719.
Dr. Zager on July 16th stated that Kelly would miss more than four
days per month as the result of his impairments or treatment. Tr.
719.
On July 23, 2012, Kelly was examined at the request of
Dr. Puccio by Farooq Qureshi, M.D., a spine specialist. Tr. 770772. A physical examination performed by Dr. Qureshi was

40. The court assumes that Dr. Zager is basing this assessment
on Kelly subjective complaints of pain and his belief that
Kelly’s complaints were credible.
52

essentially normal other than with respect to Kelly’s left upper
extremity and he had some spasm in the trapezius, levator and
scapular muscles. Tr. 771. Notably, Kelly had no edema; his gait
and station were normal and nonantalgic; he was able to heel and
toe walk without difficulty; his range of motion of the lumbar
spine was intact; he had no palpable trigger points in the lower
back and his strength and tone were normal; range of motion of the
cervical spine was intact and he had no palpable pain; motor
strength and reflexes in the right upper extremity and the
bilateral lower extremities were normal. Id.

Dr. Qureshi’s

diagnostic assessment was that Kelly suffered from complex
regional pain syndrome of the left upper extremity which developed
as the result of his brachial plexus injury and he recommended
that Kelly undergo a spinal cord stimulator trial which Kelly
stated he would consider. Id.

Dr. Qureshi also recommended other

medications, including the antidepressant Cymbalta, Lyrica and
lidocaine patches which Kelly stated he would discuss with Dr.
Baxter. Tr. 771-772.
Finally, on November 28, 2012, Kelly had an EMG of the
bilateral upper extremities which revealed the following: (1) left
median and ulnar motor and sensory polyneuropathy of primarily
axonal in nature with some demyelinating involvement without
plexopathy; (2) left ulnar motor and sensory peripheral neuropathy
primarily demyelinating in nature across the wrist, consistent
53

with left Guyon’s tunnel syndrome; and (3) bilateral median motor
and sensory peripheral neuropathy primarily demyelinating in
nature across both wrists, consistent with bilateral Carpal tunnel
syndrome. Tr. 789.
DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Kelly had not engaged in
substantial gainful work activity since September 5, 2011, the
alleged disability onset date. Tr. 19.
At step two of the sequential evaluation process, the
administrative law judge found that Kelley had the following
severe impairments: “status post fracture left upper extremity,
bilateral fracture of wrists, status post left upper extremity
nerve reconstruction surgery, left upper extremity brachial
plexopathy with post traumatic pain; carpel tunnel syndrome . . .,
depressive disorder and anxiety disorder[.]” Id.

Kelly has not

challenged the administrative law judge’s step two determination.
At step three of the sequential evaluation process the
administrative law judge found that Kelley’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr. 20-22.

Kelly has not challenged the administrative law

judge’s step three determination.
At step four of the sequential evaluation process the
administrative law judge found that Kelly could not perform his
54

past relevant unskilled to semi-skilled, medium to heavy work but
that he had the residual functional capacity to perform a limited
range of sedentary work. Tr. 22 and 29.

Specifically, the

administrative law judge found that Kelly could perform sedentary
work as defined in the regulations but was
limited to occupations, which can be performed with
one upper dominant extremity with no functional use
of the upper non-dominant extremity. [Kelly] is limited
to occupations that require no more than occasional
postural maneuvers, such as balancing, stooping,
kneeling, crouching and climbing of ramps and stairs,
but must avoid occupations that require climbing on
ladders or crawling. [Kelly] must avoid concentrated
prolonged exposure to environments with cold
temperatures, excessive vibration, extreme dampness
and humidity. [Kelly] is limited to occupations which
do not require exposure to dangerous machinery and
unprotected heights. [Kelly] is limited to occupations
requiring no more than simple, routine, repetitive
tasks, not performed in a faced-paced production
environment, involving only simple, work-related
decisions, and in general, relatively few work place
changes.
Tr. 22.

In setting this residual functional capacity, the

administrative law judge reviewed the medical records and relied
on the opinions of Dr. Maas, the state agency physician, and the
opinion of Dr. Vizza, the state agency psychologist, but gave
Kelly the benefit of the doubt and reduced his capacity from light
work to a very restrictive range of sedentary work. Tr. 24-29.
The administrative law judge also rejected the opinion of Dr.
Zager initially issued on June 12, 2012, and revised on July 16,

55

2012.

In so doing the administrative law judge stated in relevant

part as follows:
The undersigned gives little weight to the opinion of
Dr. Zager . . . He opined [Kelly] could never lift or
carry any weight with his left arm, but did not limit
his right arm. [Kelly] would have significant
limitations reaching, handling and twisting with his
left arm, but not his right arm. [Kelly] could not use
his left hand at all but use the right hand 50% to
grasp, turn and twist objects and for fine finger
manipulations. The claimant could not use his left
arm at all but use the right arm 50% to reach in front
of his body and overhead. [Kelly] would require
unscheduled breaks during the workday, be off task 10%
of the workday and would miss more than four days per
month because of his impairments. It is noted by the
undersigned that on the original opinion, Dr. Zager
did not indicate the claimant would miss any days of
work per month, but changed this one month later in the
revision to missing four days per month. He also found
the claimant was incapable of even low stress work.
Although the limitations as to the left upper extremity
are consistent with the record, and are thus addressed
in the RFC, the other .... limitations [enumerated by
Dr. Zager] simply lack objective clinical support and
are inconsistent with the record as a whole. Dr.
Zager’s own most recent examination in June 2012 only
reported abnormal findings as the claimant’s left
upper extremity. There were no deficits as to his
right upper extremity. Thus to limit the right upper
extremity by “50%” was unfounded by his own objective
examination. It was also inconsistent with not limiting
the lifting and carrying for the right upper extremity
by any exertional amount. Furthermore, by March of 2012
the claimant began driving and by June fo 2012 was
functioning at such a level where he moved out from his
parent’s home and began once again living on his own.
Clearly these facts as well as the lack of significant
abnormal objective deficits to the other parts of his
body, besides his left upper extremity, fail to support
such severe limitations. Accordingly, little weight is
given by the undersigned to this opinion.

56

Tr. 28.

Also, a review of Dr. Baxter’s treatment notes from March

to mid-July, 2012, when Dr. Zager issued his opinion reveal that
Dr. Baxter reported functional deficits in Kelly’s left upper
extremity with subjective complaints of pain but he did not report
any functional deficits in Kelly’s right upper extremity. Tr. 703708, 785, 788 and 794-795.
In setting the residual functional capacity, the
administrative law judge also found that Kelly’s medically
determinable impairments could reasonably be expected to cause his
alleged symptoms but that his statements concerning the intensity,
persistence and limiting effects of those symptoms were not
credible to the extent they were inconsistent with the ability to
perform a limited range of unskilled, sedentary work. Tr. 23.
In judging Kelly credibility the administrative law
judge went into specific detail and enumerated several
inconsistent claims made by Kelly. Tr. 27. The administrative law
judge stated in part as follows:
The claimant has testified he has not driven since
the accident, but on further questioning by the
undersigned and pointing out that the physical therapy
progress notes from March of 2012 reported he resumed
driving, he then grudgingly admitted to just driving
to his parent’s home on a rare occasion. The claimant
testified he could only walk two football fields and
sitting hurts and is a problem. However, . . . in
the pain questionnaire from July of 2012, he states
he could “sit as long as he would like” and “walk a
“quarter of a mile.” Clearly these inconsistencies
do nothing to bolster his credibility. (Hearing
Testimony and Exhibit 26F). In addition, the claimant
57

`

Tr. 27-28.

could care for his personal needs; he could shower,
dress, feed himself and use the toilet. He can prepare
meals, do household chores, drive and go shopping. He
socializes, goes to bars, goes on Facebook, reads
and watches television (Hearing Testimony and Exhibit
3E). Combining the claimant’s inconsistent allegations
with his stated activities and the objective evidence of
record, it appears that he is functioning at a much
higher level than he would have the undersigned believe.
The undersigned has found the claimant’s testimony as to
his functional capabilities, his alleged level of pain
and its associated physical and mental limitations to be
un-persuasive and lacking in credibility. Certainly as
per the medical evidence of record, the claimant can
function and sustain work as per the above stated RFC.
The administrative law judge concluded that the “RFC

gives [Kelly] the benefit of the doubt regarding [Kelly’s] severe
impairments and . . . tailors restrictions to match what the
current medical evidence of record has substantiated.” Tr. 29.
Based on the above residual functional capacity and the
testimony of a vocational expert the administrative law judge at
step five of the sequential evaluation process found that Kelly
could perform unskilled, sedentary work as a charge account clerk,
call out operator, and grinding machine operator, and that there
were a significant number of such jobs in the state and national
economies. Tr. 30.
Kelly

makes the following arguments: (1) the

administrative law judge erred in assessing Kelly’s residual
functional capacity based on the conclusion that Kelly had
“quickly recovered” from his traumatic injuries; (2) the
58

administrative law judge erred in evaluating Kelly’s description
of his pain and functional limitations; and (3) the administrative
law judge erred when he gave little weight to Dr. Zager’s opinion.
The administrative record in this case is 800 pages in
length, primarily consisting of medical and vocational records.
The court has thoroughly reviewed the record in this case and
finds no merit in Kelly’s arguments. The administrative law judge
did an excellent job of reviewing Kelly’s vocational history and
medical records in his decision. Tr. 17-31.

Furthermore, the

brief submitted by the Commissioner adequately reviews the medical
and vocational evidence in this case. Doc. 16, Brief of Defendant.
Kelly’s argument that the administrative law judge found
that he quickly recovered and did not recognize the severity of
Kelly’s left arm impairment is baseless.

The administrative law

judge in his opinion clearly addressed Kelly’s left arm impairment
and agreed that Kelly had no functional use of his left arm.

The

administrative law judge, however, appropriately rejected Kelly’s
claims of disabling pain by enumerating Kelly’s inconsistent
statements and conduct.

The administrative law judge’s finding

that Kelly could engage in a limited range of unskilled, sedentary
work is supported by more than a mere scintilla of evidence.
The administrative law judge relied on the opinions of Dr. Maas,
the state agency physician, and Dr. Vizza, the state agency
psychologist. The administrative law judge’s reliance on those
59

opinions was appropriate. See Chandler v. Commissioner of Soc.
Sec., 667 F.3d 356, 362 (3d Cir.

2011)(“Having found that the

[state agency physician’s] report was properly considered by the
ALJ, we readily conclude that the ALJ’s decision was supported by
substantial evidence[.]”).

The court is satisfied that the

administrative law judge appropriately took into account all of
Kelly’s mental and physical limitations in the residual functional
capacity assessment.
The administrative law judge stated that Kelly’s
statements concerning the intensity, persistence and limiting
effects of his symptoms were not credible to the extent that they
were inconsistent with the ability to perform a limited range of
sedentary work. Tr. 23.

The administrative law judge was not

required to accept Kelly’s claims regarding his physical
limitations and pain. See Van Horn v. Schweiker, 717 F.2d 871, 873
(3d Cir. 1983)(providing that credibility determinations as to a
claimant’s testimony regarding the claimant’s limitations are for
the administrative law judge to make).

It is well-established

that “an [administrative law judge’s] findings based on the
credibility of the applicant are to be accorded great weight and
deference, particularly since [the administrative law judge] is
charged with the duty of observing a witness’s demeanor . . . .”
Walters v. Commissioner of Social Sec., 127 f.3d 525, 531 (6th Cir.
1997); see also Casias v. Secretary of Health & Human Servs., 933
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F.2d 799, 801 (10th Cir. 1991)(“We defer to the ALJ as trier of
fact, the individual optimally positioned to observe and assess
the witness credibility.”).

Because the administrative law judge

observed and heard Kelly testify, the administrative law judge is
the one best suited to assess the credibility of Kelly.
The social security regulations specify that the opinion
of a treating physician, in the present case Dr. Zager, may be
accorded controlling weight only when it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the
case. 20 C.F.R. § 404.1527(d)(2); SSR 96-2p.

Likewise, an

administrative law judge is not obliged to accept the testimony of
a claimant if it is not supported by the medical evidence.

An

impairment, whether physical or mental, must be established by
“medical evidence consisting of signs, symptoms, and laboratory
findings,” and not just by the claimant’s subjective statements.
20 C.F.R. § 404.1508 (2007).

The administrative law judge

appropriately considered the contrary medical opinion of the state
agency physicians and psychologist and the objective medical
evidence and concluded that the disability opinion of Dr. Zager
was not adequately supported by the objective medical evidence.
Our review of the administrative record reveals that the

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decision of the Commissioner is supported by substantial evidence.
The court will, therefore, pursuant to 42 U.S.C. § 405(g), affirm
the decision of the Commissioner.
An Separate Order will be issued.

Date: September 16, 2015
/s/ William J. Nealon
United States District Judge

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