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Schilo v. Astrue

February 18, 2010


The opinion of the court was delivered by: Joy Flowers Conti United States District Judge


CONTI, District Judge.


Plaintiff Tracy Lynn Schilo ("Schilo" or "plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the final determination of the Commissioner of Social Security ("Commissioner" or "defendant") denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33. The parties filed cross-motions for summary judgment, and the record was developed at the administrative level.


Schilo filed an application for DIB benefits on March 25, 2004, alleging disability since December 3, 2002, due to low back and neck injury. (R. at 52-55, 79.) Her claims were initially denied, and she filed a timely request for an administrative hearing. (R. at 39-43, 106-12.) A hearing was held on October 21, 2005, in Pittsburgh, Pennsylvania, before an administrative law judge (the "ALJ"). (R. at 429-55.) Plaintiff was represented by counsel and a vocational expert (the "VE") appeared and testified. (Id.) The ALJ issued an unfavorable decision on August 24, 2006, finding that the plaintiff was "not disabled" within the meaning of the Act. (R. at 17-28.) The ALJ's decision became the Commissioner's final decision when, on August 1, 2008, the Appeals Council denied plaintiff's request for review. (R. at 4-6.) Plaintiff's administrative remedies were exhausted and she brought the instant action seeking review of the Commissioner's final decision. The matter is before this court on the cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

III. Plaintiff's Personal and Medical Background

Schilo was born on October 7, 1965. (R. at 52.) She is currently forty-four years old and was thirty-eight (38) years old at the time she applied for benefits and forty years old at the time of the administrative hearing. Under the applicable regulations, applicants under the age of fifty are considered "younger individuals" and their age is not considered a significant impediment to their ability to acclimate to unfamiliar occupational circumstances. 20 C.F.R. § 404.1563(c).

Schilo completed the tenth grade and later earned her GED. (R. at 85, 432.) She does not have any specialized vocational training, although she did learn to drive a tractor-trailer while working for Pepsi-Cola Bottling Company ("Pepsi") by "practic[ing] on their trucks." (R. at 85, 433, 435.) Schilo's past relevant work experience consisted of approximately nine years as a line worker and a cook for Budget Gourmet, and nearly ten years as a delivery salesperson for Pepsi.

(R. at 80, 433-35.) The cook position and delivery salesperson position were considered heavy and semi-skilled labor. (R. at 450.) There was also a line production position Schilo performed at Budget Gourmet which was considered to be light and unskilled work. (Id.) Schilo discontinued working for Pepsi following her injury on December 3, 2002,*fn1 due to her back and neck pain. (R. at 79.)

Schilo allegedly became disabled after she was in an accident which occurred on December 3, 2002, while she was working for Pepsi. (R. at 113.) On that day Schilo, while making a delivery to the Brighton Hot Dog Shoppe in Beaver Falls, Pennsylvania, slipped on a patch of "black ice," fell, and landed on her buttocks, low back, and right elbow. (R. at 67, 145.) She was able to complete her duties for that day and reported her injury when she returned to the shop at the end of her shift. (R. at 145.) Schilo initially received temporary disability benefits under the Pennsylvania Workers' Compensation Act.*fn2 (R. at 67.)

Pepsi sought to suspend or terminate Schilo's workers' compensation benefits by filing a combination petition on June 16, 2003, pursuant to the Pennsylvania Workers' Compensation Act, 77 PA. CONS. STAT. ANN. § 772, asserting that Schilo was fully recovered from her December 3, 2002 injury, or alternatively that she was capable of performing a specific job offered to her which would eliminate any further loss of wages. (R. at 66.) On April 27, 2005, a workers' compensation judge issued a decision denying and dismissing Pepsi's combination petition. (R. at 66-77.) Schilo continued to receive her disability benefits until settling her workers' compensation claim against Pepsi on February 15, 2007. Pl.'s Br. 3 n.4.

The Pennsylvania Workers' Compensation Act requires a claimant to treat with "panel providers," -- doctors "listed" by the employer -- for a period of ninety days following a work accident. 77 PA. CONS. STAT. ANN. §531(1)(i). Schilo treated with three panel providers during the statutory period following her accident: Daniel A. Nackley, M.D., ("Dr. Nackley), Howard J. Senter, M.D. ("Dr. Senter"), and Adnan A. Abla, M.D. ("Dr. Abla").

During the period from December 3, 2002, through March 25, 2003, Schilo was treated by Dr. Nackley, an occupational medicine specialist.*fn3 (R at 125-56.) Dr. Nackley examined Schilo on the day of the accident and noted that she appeared uncomfortable with a mildly antalgic gait, but was in no acute distress and did not exhibit tenderness to palpation in the cervical or thoracic spine. (R. at 145.) Tenderness over the lumbosacral spine and the sacrum was detected, but no tenderness of the hip or ecchymosis was noted. (Id.) Schilo was prescribed 600 mg of ibuprofen three to four times a day. (Id.)

Dr. Nackley diagnosed Schilo with lumbosacral sprain and cervical sprain, and embarked on a course of treatment to include ibuprofen, Celebrex, and Flexeril, as well as a course of physical therapy. (R. at 133, 135, 139, 143.) Schilo complained of neck and right elbow discomfort during her treatment with Dr. Nackley. (R. at 133, 139, 143.) Dr. Nackley's treatment notes consistently report that Schilo was in no acute distress, had mild tenderness of the lumbosacral and cervical spine regions, that her heel and toe walking were intact, and that her cervical range of motion was within normal limits. (R. at 126, 129, 131, 133, 135, 137, 139, 141, 143.)

After attempting to return to her regular work duties on February 3, 2003, Schilo aggravated her condition and was seen by Dr. Nackley the following day. (R. at 133.) Schilo reported to Dr. Nackley that she was experiencing increasing low back pain radiating into the right leg, neck discomfort, and a headache. (Id.) Dr. Nackley's examination revealed no focal bony cervical spine tenderness and excellent cervical range of motion. (Id.) He noted tenderness in the right sacroiliac joint radiating into the right buttock with palpation, and limited flexion in the lumbar region. (Id.) Dr. Nackley recommended an MRI of the cervical and lumbosacral spine. (Id.)

A lumbar MRI performed on February 13, 2003, indicated no fracture or disc herniation.

(R. at 121.) Slight to mild degenerative disc changes with very small posterior central disc bulges were observed at the L4-L5 and L5-S1 levels. (Id.) The MRI of the cervical spine revealed no fracture, displacement, or intrinsic abnormality. (R. at 120.) Mild foraminal narrowing was seen at C5-C6 with a very small focal disc herniation at that level extending into the right foramen. (Id.)

On March 11, 2003, Schilo was seen by Dr. Senter, a neurosurgeon, on referral by Dr. Nackley. (R. at 122-24, 128-30.) Dr. Senter's examination revealed mild tenderness in the right sciatic notch, unlimited range of motion to flexion and extension without pain, heel and toe walking within normal limits, negative straight leg raise, and negative hip rotation. (R. at 122.) He observed no winging of the scapula. (Id.) Dr. Senter reviewed the MRI scan and assessed that the abnormalities in the cervical and lumbar spine were not related to Schilo's current symptomatology. (R. at 123.) Dr. Senter recommended that Schilo return to light work duty for a month, after which she could return to full work duty. (Id.) Dr. Senter's examination revealed that Schilo was pregnant. (R. at 122, 126.)

Schilo's final visit with Dr. Nackley was on March 25, 2003, at which time he prescribed light work conditioning and strengthening through physical therapy. (R. at 126.) Dr. Nackley found that Schilo could occasionally lift up to twenty-five pounds, and, with the exception of climbing, crawling, or driving a standard transmission vehicle, could occasionally perform all postural maneuvers. (R. at 127.) Dr. Nackley anticipated that Schilo could return to work full duty on April 11, 2003, which was in accordance with Dr. Senter's findings. (R. 126-27.)

Schilo was seen for a second surgical opinion on April 4, 2003, by Dr. Abla, a neurosurgeon. (R. at 169-72.) Dr. Abla's examination disclosed significant paravertebral muscular tightness and tenderness in the right sacroiliac joint, as well as tightness with limited flexion and extension of the cervical musculature. (R. at 170.) Heel and toe walking were within normal limits. (Id.) Straight leg raising was negative to 90 degrees. (Id.) Dr. Abla recommended physical therapy for the neck and lower back, pain clinic treatment consisting of a right sacroiliac joint injection, swimming regularly for muscle strengthening, a muscle relaxant at bedtime, and a nonsteroidal anti-inflammatory medication. (R at 170-71.) Dr. Abla did not recommend neck or back surgery. (R. at 170.)

Schilo began treating with Milton J. Klein, D.O. ("Dr. Klein"), on April 29, 2003. (R. at 364.) Schilo was four months pregnant at the time, and was not taking medication or engaging in physical therapy treatment. (Id.) Dr. Klein provided Schilo a sample supply of topical Lidoderm 5% lidocaine analgesic patches, to be utilized if approved by her OB-GYN, and referred Schilo to physical therapy three times per week for four weeks. (R. at 365.) Dr. Klein anticipated that Schilo would be work disabled until after the completion of her pregnancy, when more treatment options would be available to rehabilitate Schilo to resuming her regular work activities. (Id.)

On May 16, 2003, James L. Cosgrove, M.D. ("Dr. Cosgrove"), performed an independent medical evaluation of Schilo. (R. at 176-82). Dr. Cosgrove's physical examination of Schilo revealed normal range of motion of the neck, full flexion, extension, side bending and rotation of the lumbar spine, both seated and standing, mild tenderness to palpation over the right sacroiliac area, and normal straight leg raise. (R. at 181.) Dr. Cosgrove concluded that Schilo's mild sacroiliac tenderness was not unusual given her pregnancy and that she had fully recovered from her work injury. (R. at 181-82.)

Dr. Klein reported on June 3, 2003, that Schilo's OB-GYN did not authorize the use of the Lidoderm 5% lidocaine topical patches, and that Schilo was taking regular strength Tylenol for analgesia. (R. at 360.) Dr. Klein recommended continuing physical therapy and a regular home exercise program. (Id.)

Schilo received physical therapy treatment from May 6, 2003, until August 22, 2003, at which time she was discharged due to limitations in treatment due to her pregnancy. (R. at 183, 360.) At the time it was noted that Schilo continued to experience cervical and upper back pain and significant right lumbar and sacral area pain. (Id.) It was observed that Schilo had not achieved all goals due to her pregnancy. (Id.) Schilo was instructed on the use of a TENS*fn4 unit for her cervical pain. (Id.)

Schilo was evaluated on July 8, 2003, by Thomas D. Kramer, M.D. ("Dr. Kramer"). (R. at 345.) Dr. Kramer reviewed the February 13, 2003, MRI results*fn5 and diagnosed annular tears at the L4-L5 and L5-S1 levels. (Id.) Dr. Kramer recommended that Schilo undergo a lumbar discography after her pregnancy to determine the pain generator. (Id.) Dr. Kramer did not believe that Schilo was able to work at that time. (Id.)

Schilo was seen by Dr. Klein on July 28, 2003, and she reported that her low back pain was unchanged, but that her cervical pain was slightly improving. (R. at 353.) Dr. Klein observed right piriformis muscle spasm and tenderness, right trochanteric bursitis, and right cervical-dorsal and lumbosacral myofacial syndrome. (Id.) Dr. Klein recommended the use of a TENS unit and cervical traction. (Id.) Dr. Klein opined that Schilo was work disabled. (Id.)

Schilo's daughter was born on October 23, 2003, weighing eight pounds eight ounces. (R. at 350.)

Schilo was examined by Dr. Klein on December 1, 2003, and her chronic, predominately right low back pain radiating into the right leg was noted. (R. at 350.) Schilo also reported occasionally experiencing "giveway" of the right leg. (Id.) Dr. Klein's examination revealed post-traumatic discogenic lower back pain, cervical-dorsal and lumbosacral myofacial syndrome, and discogenic/osteoarthritic right cervical pain. (Id.) Dr. Klein prescribed the nonsteroidal anti-inflammatory medication Bextra,*fn6 and stated that Schilo remained work disabled. (R. at 350-51).

Schilo returned to Dr. Kramer's office on December 9, 2003, and was found on examination to have minimal tenderness on palpation of the lumbar spine, negative straight leg raise, and no focal deficits in the neurological system. (R. at 344.) Dr. Kramer diagnosed annular tears at L4-L5 and L5-S1 and prescribed an IDET procedure followed by discography. (Id.)

Mark R. LoDico, M.D. ("Dr. LoDico"), evaluated Schilo on January 13, 2004, on referral from Dr. Kramer. (R. at 374-76.) On examination, Dr. LoDico noted decreased range of motion with extension in the lumbar spine due to pain and tenderness to palpation of the right-sided lumbar paraspinal muscles. (R. at 375.) Schilo was able to heel walk, toe walk, and squat with minimal difficulty, and her straight leg raise was negative. (Id.) Dr. LoDico prescribed Ultracet,*fn7 Tylenol 3000 mg, and Bextra, and scheduled a provocative discography. (R. at 375-76.)

Serious . . . reactions include: skin rash; hives; itching; difficulty breathing; swelling of the lips, tongue or face . . . . [A]bdominal pain, tenderness, or discomfort; nausea; bloody vomit; bloody, black, or tarry stools; unexplained weight gain; swelling or water retention; fatigue or lethargy; a skin rash; itching; yellowing of the skin or eyes;"flu-like" symptoms; ...

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