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Clawson v. Astrue

February 12, 2010

BRITTANY CLAWSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

Electronic Filing

MEMORANDUM OPINION

I. INTRODUCTION

Brittany Clawson ("Plaintiff") brought the instant action pursuant to 42 U.S.C. §405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying her claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. According to the customary practice in the United States District Court for the Western District of Pennsylvania, the parties have submitted cross-motions for summary judgment.

After careful consideration of the determination of the Administrative Law Judge, ("ALJ"), the administrative record and the parties submissions, the Court finds that the decision of the Commissioner is supported by substantial evidence. Therefore, Plaintiff's motion for summary judgment, (Doc. No. 8), is DENIED and the Commissioner's motion for summary judgment, (Doc. No. 10), is GRANTED.

II. PROCEDURAL HISTORY

Plaintiff protectively filed for DIB on November 7, 2005, alleging disability with an onset date of August 31, 2002. (R. at 46-49; 65). Her claim was initially denied on March 17, 2006.

(R. at 33). Plaintiff filed a timely request for a hearing on April 27, 2006. (R. at 38). A hearing was held on October 12, 2007 in Johnstown, PA. (R. at 535). Plaintiff appeared, with counsel, and testified. (R. at 538- 568). Additionally, Plaintiff's husband, Brett Clawson, and an impartial vocational expert (the "VE") offered testimony. (R. at 568- 572; 572- 579).

By decision dated March 14, 2008, the ALJ found that Plaintiff was not disabled for the relevant time period. (R. at 12 - 20). Plaintiff filed a request for review of the hearing decision with the Appeals Council which was denied on August 4, 2008, (R. at 5-8), making the ALJ's decision the final determination of the Commissioner.

Plaintiff filed a Complaint in this Court on October 7, 2008. She thereafter filed a motion for summary judgment, and brief in support, on February 9, 2009. The Commissioner filed a cross-motion for summary judgment and brief in support on March 10, 2009.

III. STATEMENT OF THE CASE

Plaintiff was twenty-three (23) years old at the time of her alleged onset date of August 31, 2002. (R. at 46; 539). On the date of the administrative hearing, Plaintiff was twenty-eight (28) years old. Id. She is a high school graduate and holds an associate's degree in psychology. Id. At the time of the administrative hearing, Plaintiff lived with her husband and father-in-law. Id. Plaintiff's work experience includes that of a mental health direct care worker. (R. at 79). Plaintiff worked for Northwestern Human Services from April 2000 to August 2002. On June 18, 2001 Plaintiff was injured when she was "head-butted" by an autistic client in the course of her employment. (R. at 54).

Plaintiff testified that she attempted to return to work in 2002, but was unable to maintain even a lightened schedule because of pain. Id. She also testified that her employer eventually informed her that there was no longer light duty work for her. (R. at 543-544). Plaintiff likewise testified that she attempted to find work through placement agencies but remained unable to do so as a result of her allegedly disabling condition. (R. at 544-545).

In regard to her ability to function on a daily basis, Plaintiff testified that she drives only short distances, no longer than two or three minutes from her house, because of neck spasms. (R. at 552). She also testified that she has a hard time concentrating because of the pain. (R. at 555-556). She indicated that she has to take breaks in her activity regularly in the course of the day. (R. at 558). She testified that she goes shopping and grocery shopping by herself, but has someone else load and unload the bags from the car. Id. According to Plaintiff, her pain is worse in rain and cold weather. Id.

Plaintiff testified that she cannot walk for long periods of time. Id. She stated that she can walk for 15 to 20 minutes before she becomes achey. Id. Specifically, she testified that her neck will tighten and cause her to have headaches. (R. at 560). She also stated that she gets pain sitting. (R. at 561). According to Plaintiff, she can dress and bathe herself but has difficulty with things that require her to hold her arms, such as drying her hair. (R. at 562). She testified that she can comfortably lift or carry five pounds. Id. She said she can occasionally stoop, squat or kneel. Id. She indicated that she can occasionally help out with washing dishes or folding clothes, but often has to spread several tasks over several days. (R. at 564).

According to Plaintiff's testimony, she is no longer able to go fishing, bowling or take part in other outside activities. (R. at 565). She testified that she avoids crowds as she becomes anxious which causes her neck to tense. (R. at 565-566). She stated that she cannot sit through a movie. (R. at 567). She testified that she has not had children because she is concerned with lifting the weight. Id.

The record medical evidence includes extensive treatment notes and records from: Dr. Eric Fishman, PhD.; Michael Rutigliano, M.D.; Westmoreland Regional Hospital; Dr. Larry Plundo; Laurel Highlands Health Center; The Physical Therapy Group; Dr. Michael Sauter, M.D.; Westmoreland Primary Health Center; William Hafer, D.C;. and Dr. Michael Toshok, D.O. Additionally, Plaintiff's medical evidence includes examination records of Dr. Victor Jabbour, M.D., a consultative examiner. (R. at 33).

Westmoreland Regional Hospital/Dr. Larry Plundo, M.D.

Plaintiff was seen by Dr. Larry Plundo, M.D., in the emergency room at Westmoreland Regional Hospital with complaints of a migraine headache on February 18, 2002. (R. at 140). She was treated with Demerol. Id. Dr. Plundo diagnosed Plaintiff with acute cephalgia, likely a migraine versus tension headache. (R. at 141). She was prescribed Vicodin on discharge. Id.

Plaintiff was treated against at the emergency room by Dr. Plundo on May 1, 2002. (R. at 138). She complained of diffuse headache, which developed ten days prior to her arrival. Id. She was diagnosed with a headache and prescribed Percocet on discharge. (R. at 139). Plaintiff presented to the emergency room again on May 21, 2002. (R. at 136). She was diagnosed with acute cephalgia and treated with Demerol, Phenergen and Norflex. (R. at 137). She had improved on reexamination. Id.

Plaintiff was seen again at the emergency room on June 21, 2002, with complaints of a headache. (R. at 134). She was treated with Depakote, which did not relieve her symptoms. Id. She was treated with Demerol. Id. Plaintiff was advised to follow up with her physician. (R. at 135). Plaintiff was seen in the emergency room on August 3, 2002, with complaints of a headache. (R. at 132). A neurologist, Dr. Sauter, was consulted and recommended Depakote.

(R. at 133). Plaintiff was discharged with a prescription for Vicodin. Id. On August 11, 2002, Plaintiff presented to the emergency room with chest pressure, pounding heartbeat and difficulty breathing. (R. at 130).She was diagnosed with chest pain, palpitations and high blood pressure, potentially related to use of pain medication. (R. at 130-131). Plaintiff was advised to discontinue use of Ultram and prescribed Vicodin. (R. at 131).

Plaintiff was seen in the emergency room several times in 2003. (R. at 201). On February 4, April 17, May 25 and December 20, 2003, Plaintiff was treated for headache and neck spasms and pain with various pain medications. (R. at 210-219). Plaintiff presented to the emergency room on June 22, 2004, complaining of a four day history of neck spasm. (R. at 243). She was noted as having cervical muscle spasm and a muscle tension headache. Id. She was treated with Norflex and prescribed Flexiril on discharge. (R. at 243-244).

Dr. Michael Rutigliano, M.D.

Plaintiff was seen by Dr. Michael Rutigliano, M.D., a neurosurgeon, on July 31, 2001. (R. at 146). On examination, Dr. Rutigliano noted that Plaintiff held her neck in a rigid posture with minimal motion. (R. at 146). She exhibited pain to palpations and percussions of the neck as well as significant paraspinous spasm. Id. Her range of motion in her neck was reduced in all fields, but particularly extension. Id.

Dr. Rutigliano's records indicate that Plaintiff had a cervical fusion performed on October 8, 2001. (R. at 145). On follow-up examination in February 2002, he noted that Plaintiff had no significant neck pain, but had some discomfort in her left arm and shoulder that appeared to be muscular. Id. He also noted that Plaintiff neurological examination remained normal and her x-rays looked "quite good with increasing evidence of a solid fusion." Id. He indicated that, at that time, she had improved enough to return to work at a light duty level. Id. He also prescribed continued physical therapy and indicated that he would like to see a functional capacity evaluation. Id.

Plaintiff was seen again by Dr. Rutigliano on September 24, 2002. (R. at 144). He noted that Plaintiff had done reasonably well with respect to back pain, but had developed significant headaches. (R. at 144). He noted that she had been treated with a variety of medications for headaches, without significant benefit. Id. He also noted that cervical spine x-rays showed a solid fusion at C5-6. Id. Plaintiff reported some degree of neck pain, but her major complaints were related to headaches. Id. He referred her to Dr. Michael Toshok, a pain management specialist and recommended continued treatment with Dr. Sauter in regard to her headaches. Id. At this time, Dr. Rutigliano maintained her work status of sedentary to light, but indicated that he would "defer it to those physicians primarily responsible for her headache syndrome" if said became limiting. Id.

Plaintiff saw Dr. Rutigliano for follow-up on June 30, 2004. (R. at 143). At this time, he indicated that it was his impression that Plaintiff had significant neck pain, muscle spasm and muscle tension headaches. Id. He indicated that he would prefer not to treat with a spinal cord stimulator, due to her young age and the stress of litigation pertaining to her injuries. Id.

The Physical Therapy Group

In December 2001, Dr. Rutigliano prescribed physical therapy as treatment for her neck pain. (R. at 129; 114). Plaintiff attended physical therapy appointments numerous times between December 18, 2001 and March 25, 2002. (R. at 107-125). At her initial treatment, the physical therapist noted that Plaintiff's chief complaint was muscle spasms in her upper trapezii region on the left. (R. at 114). He noted that Plaintiff had a well healed posterior cervical incision. Id. Her neck posture was generally good and active range of motion of the upper extremities was within normal limits and pain free. Id. He likewise noted cervical spine range of motion was within normal limits, with limitations in extension and side bending. Id. On examination, tests for focal strength deficit was negative and postural musculature testing revealed 4/5 strength. Id. The physical therapist noted myofascial tightness throughout the cervicothoracic musculature with reported tenderness in the right upper trapezius. Id.

On January 3, 2002, the records indicate that Plaintiff reported increased flexibility , but stiffness overnight. (R. at 124). She reported the same on January 2, 2002. (R. at 123). On January 10, 2002, the records indicate that Plaintiff had no new complaints. (R. at 122). She reported that on January 14, 2002, she engaged in ten minutes of aerobic activity without difficulty. Id. On January 16, 2002, Plaintiff noted definite improvement in cervical mobility and improved tolerance for exercise. Id. The treatment notes from this date also indicate that Plaintiff was making steady progress toward her treatment goals. Id.

On January 17, 2002, Plaintiff reported significant muscle spasm and pain which progressed to a migraine headache after the treatment the previous day. (R. at 121). The therapist indicate that increased tightness and tenderness was perhaps due to increase in the program. Id. Plaintiff reported no new complaints on January 21, 2002 and muscle spasms on January 23, 2002. (R. at 120). On January 24, 2002, Plaintiff reported that she felt much ...


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