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Weidl v. Commissioner of Social Security

August 21, 2008


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

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Plaintiff, Clara Weidl ("Plaintiff" of "Weidl") brought this action pursuant to 42 U.S.C. § 405(g), for review of the final determination of the Commissioner of Social Security ("Commissioner") denying her application pursuant to the Social Security Act ("Act") for Disability Insurance Benefits ("DIB"). As is the customary practice in the Western District of Pennsylvania, the parties have submitted cross-motions for summary judgment and the record was developed at the administrative proceedings.

After careful consideration of the decision of the Administrative Law Judge ("ALJ"), the briefs and reply briefs of the parties, and the entire record, the Court finds that the decision of the Commissioner is supported by substantial evidence and therefore will deny Plaintiff's motion for summary judgment and grant the Commissioner's motion for summary judgment.


Plaintiff protectively filed for DIB on March 12, 2004, alleging disability as of September 5, 2003 due to stomach ulcers, anemia, and stress. (R. 67-87). The state agency denied her claim on May 19, 2004. (R. 35-40). This case was then randomly selected by the Commissioner to test modifications to the disability determination process, so the reconsideration step of the administrative review process was eliminated and the case was escalated to the hearing level. (R. 35). A hearing was held before ALJ Douglas W. Abruzzo on December 5, 2005 where Plaintiff, who was represented by counsel, and an impartial vocational expert testified. (R. 353-407). On February 21, 2006, the ALJ issued a decision in which he determined that Plaintiff was not disabled. (R. 17-28). On February 23, 2007, the Appeals Council denied Plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. (R. 5-8). Plaintiff then filed her complaint and appeal with this Court.


On January 29, 2002, an esophagogastro-duodenoscopy (EGD) was performed on Plaintiff by Dr. Jae Yang that showed mild gastroesophageal reflux disease but no ulcer. (R. 139). On November 24, 2002, Plaintiff was seen at the Armstrong County Memorial Hospital for stomach pain and reported that she had mild nausea, vomiting, and some diarrhea. (R.146).

Plaintiff was then seen by her family doctor, Dr. Philip A. Gelacek, between March 5, 2003 and September 9, 2004 for complaints of indigestion and abdominal pain. Her first visit to Dr. Gelacek's office was on March 5, 2003 at which time Plaintiff was treated with Nexium for acid reflux and blood work was ordered. (R. 197). On April 21, 2003, Plaintiff reported doing much better on Nexium, but her blood work was positive for H. Pylori, so Dr. Gelacek recommended "triple therapy" antibiotic treatment. (R. 195). He also suggested that she take Tylenol for complaints of lower back pain. (R. 195). On May 22, 2003, Plaintiff returned and reported improvement since completing the triple therapy. (R. 194). Dr. Gelacek indicated that a bone density study revealed osteopenia and he started her on Actonel and OS-Cal with Vitamin D. (R. 194).

On June 13, 2003, Plaintiff returned to Dr. Gelacek complaining of stomach pains since beginning the Actonel. (R.193). Dr. Gelacek suggested that the triple therapy be repeated and that an abdominal ultrasound of the upper GI be performed. Id. Her abdominal ultrasound was normal with the UGI showing mild gastroesophageal reflux. (R. 202-203). Dr. Gelacek then recommended a CT scan of Plaintiff's abdomen and pelvis, a CCK Heptobiliary scan, and an endoscopy. (R. 193). The CT scan of the gallbladder was normal as was that of the pelvis except for asplenia or splenectomy. (R. 201). An endoscopy was performed by Dr. Yang during which he found a large, very hard gastric ulcer which was biopsied. The tissue sample was inconclusive of a diagnosis of gastric carcinoma. (R. 158-59). Another endoscopy was performed where the same ulcer was observed. Dr. Yang indicated that "the ulcer looks cleaner since one month of treatment, it looks like more ulcer than cancer but still cancer cannot be ruled out." (R. 169).

On December 3, 2003, Dr. Gelacek noted that Plaintiff was doing a lot better but was continuing to have pain when eating certain foods. Plaintiff requested referral to a specialist because the second endoscopy by Dr. Yang did not rule out cancer. (R. 191). Plaintiff was referred to Dr. Lipsitz. (R. 191). On March 3, 2004, Dr. Gelacek noted that Plaintiff was taking two aspirin tablets daily for headaches and this intake was likely contributing to her abdominal difficulties. (R. 190). It was requested that Plaintiff stop taking the aspirin. Plaintiff was also prescribed Lexapro because Dr. Gelacek "[thought] she was suffering from depression." (R. 190).

On March 11, 2004, Dr. David Lipsitz examined Plaintiff and performed an EGD. He noted that Plaintiff had two persistent gastric ulcers that appeared benign. (T. 181). He further noted that they had not healed on Protonix, likely because "the patient has been taking nonsteroidal anti[-]inflammatory agents for arthritic complaints." (R. 181). Dr. Lipsitz recommended increasing the Protonix to twice a day, avoiding NSAIDs or switching to one of the COX-2 inhibitors. (R. 181). The biopsies of the two ulcers were benign. (R. 183-185). Dr. Lipsitz' final diagnosis was mild chronic gastritis with acute inflammatory exudate consistent with nearby ulcer. (R. 185).

A consultative Functional Capacity Evaluation performed on May 14, 2004 by J. Love indicated that Plaintiff could occasionally lift ten pounds, could frequently lift less than ten pounds, could sit for six hours in an eight-hour work day, could stand six hours in an eight-hour work day, and was unlimited with regard to other functions (R.116-123.). He also stated that "[i]t is reasonable to conclude her pain may cause limitations in lifting and carrying yet she says she can lift up to 20 pounds. Her allegations of significant limitations is only partially credible."

(R. 121).

On July 24, 2004, Plaintiff returned to Dr. Gelacek complaining of polyarthralgias. (R. 293). Dr. Gelacek requested that Plaintiff obtain blood work including a Sed rate, ANA, latex, Lyme titer, complete blood count, TSH, and lipids. (R. 293). Dr. Gelacek noted that Plaintiff's lungs were clear, but that she had chronic obstructive pulmonary disease. (R. 293).

On July 26, 2005, Plaintiff had a MRI of her lumbar spine that indicated "moderate size right-sided far lateral L4-5 disc protusion." (R. 302). The MRI indicated no disc protrusion or spinal stenosis at any other level. Additionally, there was a decreased signal from the "L2-3, L3-4, L4-5 discs consistent with degenerative disc disease" and "mild to moderate diffuse facet arthropathy." (R. 302).

On July 27, 2005, Plaintiff saw Dr. Devashis Mitra of the Osteoporosis Center. Dr. Mitra noted that Plaintiff suffered from low back pain, osteoarthritis, muscle spasm of the spine, and sleep difficulty (R. 333). He recommended the addition of Parafon for pain and diazepam to help with ...

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