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Kowaluk v. Astrue

March 18, 2009


The opinion of the court was delivered by: Magistrate Judge Lenihan

Re: Doc. Nos. 12 & 14


This is an action timely filed under the Social Security Act, 42 U.S.C. § 405 (g), to review a final decision of the Commissioner of Social Security finding that although Plaintiff, Betty Kowaluk has the severe impairments of bilateral hand neuralgias, migraine headaches, cervical strain, meningioma, benign vertigo, optic neuritis, degenerative disc disease and small disc herniation at C6-7, restless leg syndrome and gastroesophageal reflux disease (Tr. 17, Finding No. 3), she has the residual functional capacity to perform medium work activity, limited to the following:

[O]ccasional walking and standing six hours our of an eight-hour day, is limited to occasional postural maneuvers such as balancing, stooping, kneeling, crouching, crawling and climbing ramps and stairs, must avoid concentrated exposure to fumes, odors, dusts, gases, environments with poor ventilation, temperature extremes, excessive vibration, extreme dampness and humidity and is limited to occupations which do not require exposure to dangerous machinery, unprotected heights or operation of a motor vehicle during work hours.

(Tr. 18, Finding No. 5). Plaintiff seeks Disability Insurance Benefits (DIB) pursuant to Title II of the Social Security Act, and Supplemental Security Income (SSI) pursuant to Title XVI of the Social Security Act. To obtain DIB, plaintiff must show that she became disabled on or before the date she was last insured; in this case, she was insured through December 31, 2010. (Tr. 17, Finding No. 1.) The issue presented by this appeal is whether there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405 (g). Both parties have filed motions for summary judgment.


On February 17, 2006, Plaintiff protectively filed both DIB and SSI applications. (Tr. 30.) She alleged that she became disabled on November 20, 2005. Her application was initially denied, and Plaintiff timely filed a request for hearing on November 19, 2006. (Tr. 30.) A hearing was held on May 10, 2007. (Tr. 27-55.) Plaintiff testified at the hearing and was represented by counsel of record. A vocational expert also appeared and testified. On May 25, 2007, the ALJ rendered a decision denying Plaintiff's applications for benefits. (Tr. 15-22.) Plaintiff's Request for Review of Hearing/Decision Order was denied by the Appeals Council. Thereafter, the decision of the ALJ became the final decision of the Commissioner. (Tr. 6-9.) Having exhausted all administrative remedies, Plaintiff filed this Complaint in the United States District Court for the Western District of Pennsylvania.


On January 16, 2004, Plaintiff presented to Westmoreland Regional Hospital with neck and back pain after injuring her left shoulder when she fell on the ice. (Tr. 151.) She was diagnosed with cervical back strain, low back strain and contusion of the left shoulder. (Tr. 152.) Plaintiff's range of motion was full, although the physical examination revealed some neck and lumbar spine tenderness and spasm. (Tr. 151.) X-rays demonstrated mild cervical degenerative changes at C6-7, and minimal degenerative changes of the lumbar spine. (Tr. 153-54.)

In May 2004, Plaintiff began physical therapy to address complaints of pain in the left neck/shoulder area when reaching and picking up objects. At her May 6, 2004 physical therapy appointment Plaintiff reported that after her fall on the ice in January 2004, muscle relaxants had relieved her pain until about three weeks prior. (Tr. 160.) Plaintiff received eight physical therapy sessions consisting of moist heat, ultra sound, massage/manual therapy and therapeutic exercise. She was also instructed in an exercise program to be performed at home. (Tr. 158.) Her pain level had decreased and she "returned to [her] previous home/work related chores with minimal to no pain." (Tr. 158.) The physical therapy discharge report noted that "[p]atient had an excellent outcome as a result of this brief course of care." (Tr. 158.)

In July 2004, Plaintiff was admitted overnight to Westmoreland Regional Hospital complaining of chest pain. (Tr. 170-71.) A cardiac catheterization was normal and it was concluded that Plaintiff's chest pain was secondary to gastroenteritis and gastritis. (Tr. 171, 190-91.) Plaintiff was discharged with instructions to rest, drink plenty of fluids and begin Prevacid and Zyrtec. (Tr. 172.)

In July 2005, Plaintiff presented to Dr. David Richards with gastroesophageal reflux disease and seasonal allergies. (Tr. 235.) Dr. Richards noted that her conditions have been well controlled with Prevacid and Zyrtec. He indicated that she offered "no other complaints." (Tr. 235.)

In November 2005, Plaintiff presented to Dr. John Nairn for glaucoma evaluation. (Tr. 200.) Dr. Nairn's exam revealed that Plaintiff's central visual acuity with best correction was 20/20 bilaterally, and no surgery was contemplated. (Tr. 200.) There were, however, clinical signs of visual field restriction. (Tr. 200.) He described her prognosis as good and she was to return in one year to repeat visual field testing. (Tr. 201.)

In January 2006, Plaintiff again saw Dr. Richards with complaints of fatigue, decreased energy, and pain in her legs and hands. (Tr. 234.) Physical examination revealed decreased sensation in her right leg, but she had adequate strength in her upper and lower extremities. He also noted "[q]uestionable history of optic neuritis," and fatigue. (Tr. 234.) A CT scan of the brain revealed a probable small meningioma*fn1 but no evidence of bleeding, acute infarct, or edema. (Tr. 212, 234, 275.) Dr. Richards also indicated on an Employability Assessment Form for the Pennsylvania Department of Public Welfare that Plaintiff was temporarily disabled from January 1, 2006 through May 1, 2006 due to optic neuritis and myalgia*fn2. (Tr. 233.) On February 6, 2006, an MRI of the brain revealed a high left mid-posterior frontal meningioma. (Tr. 213-14.)

On April 7, 2006, Dr. Richards wrote to Dr. Michael Sauter referring Plaintiff to his care. Dr. Richards stated, in part, as follows:

Her symptoms were nonspecific, including fatigue, and a burning sensation in her hands and anterior legs. By her history, she described a report of optic neuritis in 1994. She's had MRI and lumbar puncture done in the distant past that were non- diagnostic for MS. She continues to complain of fatigue and discomfort, and I've offered her a reevaluation and work up. I did grant her short-term disability until this work up was completed.

We proceeded with an MRI of the brain, B12, folate, and other labs, all of which were unremarkable. Her physical exam did not demonstrate any clear signs of upper motor neuron disease. . . . There was a concern of a possible meningioma, which was likely an incidental finding.

At this point her physical exam remains fairly good, with good intact DTRs and normal gait. There are no obvious motor or sensory deficits. She requested further extension of her disability. I did not feel that there was anything objective that could support that. (Tr. 229.)

On June 22, 2006, Plaintiff presented to Dr. Sauter with complaints of hand tingling, a six month history of proximal bilateral upper and lower extremity burning pain, migraines, and neck pain. (Tr. 237.) She experienced increased fatigue with minimal activity, and increased blurred vision in the right eye since October 2005 with a negative evaluation for glaucoma. (Tr. 237.) Neck examination revealed no Spurling's or Lhermitte's*fn3 signs. (Tr. 237.) She had a positive Tinel's sign*fn4 at the left wrist, and mild hand paresthesias*fn5. (Tr. 237-38.) Dr. Sauter's impression was as follows:

The patient presents with cervical strain and hand neuralgia and blurred vision with a previous history of optic neuritis. The plan is to check a cervical spine MRI and an evoked potential series for demyelination. She has been referred to physical therapy for TENS unit application. Office follow-up for an upper and lower extremity EMG in 6 weeks.

(Tr. 238.) The cervical spine MRI in July 2006, revealed mild osteophyte formation at C6-7, with an annular tear and a small broad-based posterior subligamentous disc herniation, without significant encroachment of the spinal canal. (Tr. 207.) The nerve conduction studies for demyelination*fn6 yielded normal results for both the upper and lower extremities. (Tr. 279.)

Also in July 2006, Plaintiff began physical therapy. (Tr. 292-93.) The assessment made at the initial evaluation was as follows:

[R]educed active/passive range of motion of bilateral shoulders, cervical and trunk/lumbar spine, reduced strength to bilateral shoulders with positive cogwheel effect, alteration in gait pattern with reduced mobility of left hip, postural deficits, positive myofascial tone/spasm to musculature of the left upper trapezius, cervical spine, and scapula, reduced acuity to sharp sensation to the palmar aspect of the digits of the left hand and just above the level of the wrist, and reduced strength to the left lower extremity.

(Tr. 293.) After 19 aquatic sessions, Plaintiff reported that pain fluctuated on a daily basis, although her pain rating after therapy decreased. (Tr. 290.) Discontinuation of formal services was recommended. (Tr. 290.) It was also recommended that Plaintiff continue water therapy on her own to manage "her chronic pain." (Tr. 290.)

On August 18, 2006, state agency physician Nghia Van Tran, M.D., assessed Plaintiff's physical residual functional capacity. (Tr. 253-56.) Dr. Van Tran, after a review of the medical evidence, concluded that Plaintiff could perform the ...

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