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Blakey v. Astrue

June 22, 2010

DOROTHY BLAKEY, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Dorothy Blakey ("Plaintiff") brings 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 supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1318-1383 ("Act"). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 10-13). The record has been developed at the administrative level. For the following reasons, the Court finds that the decision of the Administrative Law Judge ("ALJ") is only partially supported by substantial evidence. Therefore, Plaintiff's Motion for Summary Judgment is GRANTED, Defendant's Motion for Summary Judgment is DENIED, and the matter is REMANDED.

II. PROCEDURAL HISTORY

Plaintiff filed for SSI benefits on March 16, 2005, claiming disability as of November 2, 2002.*fn1 (R. at 35, 52). Benefits were initially denied on August 5, 2005, and an administrative hearing was held on May 22, 2007. (R. at 21, 30, 370). Plaintiff was found not disabled and denied SSI on September 12, 2007, in an opinion issued by the ALJ, Michael Colligan. (R. at 8-10). The administrative Appeals Council denied a request for review on October 22, 2009, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 4-6).

The instant action was initiated by Plaintiff filing his Complaint in this Court on December 18, 2009, pursuant to 42 U.S.C. § 405(g). ( Id. ; Docket No. 3). Plaintiff's Motion for Summary Judgment and accompanying Brief were filed April 19, 2010. (Docket Nos. 10, 11). Defendant's Motion for Summary Judgment and accompanying Brief were filed May 13, 2010. (Docket Nos. 12, 13).

III. STANDARD OF REVIEW

Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g)*fn2 and 1383(c)(3)*fn3 . Section 405(g) permits a district court to review transcripts and records upon which a determination of the Commissioner is based. When reviewing a decision denying SSI, the district court's role is limited to determining whether substantial evidence exists in the record to support the ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate." Ventura v. Shalala , 55 F.3d 900, 901 (3d Cir. 1995)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Additionally, if the ALJ's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390.

A district court cannot conduct a de novo review of the Commissioner's decision nor re-weigh evidence of record. Palmer v. Apfel , 995 F.Supp. 549, 552 (E.D. Pa. 1998); see also Monsour Medical Center v. Heckler , 806 F.2d 1185, 90-91 (3d. Cir. 1986) ("even where this court acting de novo might have reached a different conclusion . . . so long as the agency's factfinding is supported by substantial evidence, reviewing courts lack power to reverse either those findings or the reasonable regulatory interpretations that an agency manifests in the course of making such findings."). To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. See 5 U.S.C. §706.

To be eligible for social security benefits under the Act, a claimant must demonstrate that he cannot engage in substantial gainful activity because of a medically determinable physical or 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 at least 12 months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986).

The ALJ must utilize a five-step sequential analysis when evaluating the disability status of each claimant. 20 C.F.R. §416.920. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a combination of impairments that is severe; (3) whether the medical evidence of the claimant's impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., pt. 404 subpt. P., appx. 1 ( see 20 C.F.R. §§416.920(d), 416.925, 416.926); (4) whether the claimant's impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing his past relevant work, whether he can perform any other work which exists in the national economy. 20 C.F.R. §416.920(a)(4); see Barnhart v. Thomas , 540 U.S. 20, 24-25 (2003).

If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given plaintiffs's mental or physical limitations, age, education, and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Doak v. Heckler , 790 F.2d 26, 28 (3d Cir. 1986).

IV. STATEMENT OF FACTS

A. General Background

Plaintiff was born March 25, 1960, and was forty-five years old when she filed her application for SSI. (R. at 35). At the time of application, Plaintiff lived in McKeesport, Pennsylvania. ( Id. at 36). At the time of the administrative hearing, however, Plaintiff lived with her daughter and granddaughter in Uniontown, Pennsylvania, because a fire destroyed her apartment in McKeesport. ( Id. at 266). Plaintiff is a high school graduate. ( Id. at 67). She last worked in a fast food restaurant for six months in 1994. ( Id. at 56). Plaintiff is currently unemployed, but she cares for her granddaughter during the day.( Id. ). In addition, Plaintiff filed for, and was denied, SSI benefits on at least three prior occasions. ( Id. at 53).

B. Medical Background - Physical

On April 19, 2005, Plaintiff visited Habib Abdelmassieh, M.D. for an evaluation of neck, shoulder, and elbow pain. ( Id. at 173). Plaintiff claims her pain began in 1997 after a car accident. ( Id. ). Plaintiff reported that in 1998 she had an MRI of her left shoulder which showed a rotator cuff tear. ( Id. ). Dr. Abdelmassieh indicated that a recent left shoulder and elbow x-ray showed no abnormalities. ( Id. ). Earlier acupuncture, cortisone injections, and physical therapy did not appear to alleviate Plaintiff's pain. ( Id. ). Plaintiff reported to Dr. Abdelmassieh that her pain was a 10, on a scale of 0-10, that it was constant, and that it prevented her from caring for herself. ( Id. at 174). Plaintiff also told the doctor that she did not smoke and only drank occasionally. ( Id. ).

During physical examination, Dr. Abdelmassieh found that Plaintiff's range of motion was limited and she could not raise her arm above her head, but was otherwise normal and showed no signs of muscle atrophy, swelling, distortion, or other abnormality. ( Id. ). Plaintiff reportedly had extreme pain reactions to certain movements and tests done by the doctor during examination. ( Id. ). Dr. Abdelmassieh determined that Plaintiff's claims of pain were out of proportion to the findings of the physical examination, and that Plaintiff's muscle weakness was non-physiological. ( Id. at 174-75). He prescribed a course of physical therapy to maintain range of motion and manage pain, but felt narcotics for pain would be inappropriate. ( Id. at 175).

On May 10, 2005, Plaintiff returned to see Dr. Abdelmassieh for a follow-up examination.

In the interim, Plaintiff had an MRI of her shoulder which showed tendinopathy*fn4 , but no rotator cuff tears. ( Id. at 171). Some mild atrophy of the left forearm muscles was noted, but otherwise Plaintiff's condition was the same. ( Id. at 172). Dr. Abdelmassieh felt Plaintiff suffered from supraspinatus and infraspinatus tendonopathies, acromio clavicular joint arthritis, and possibly medial epicondylitis*fn5 . ( Id. ).

Plaintiff was admitted to UPMC McKeesport on April 25, 2005. ( Id. at 101). Hospital records indicate that Plaintiff had passed out, and listed her condition as recurrent syncope*fn6 with questionable etiology. ( Id. ). Although Plaintiff had initially denied drug use when admitted, urine tests revealed the presence of marijuana and cocaine. ( Id. at 102). In her Discharge Summary, Plaintiff was diagnosed with syncope, gastritis, depression and anxiety, substance abuse, rotator cuff syndrome, and medial epicondylitis. ( Id. at 103). Plaintiff was prescribed Paxil*fn7 , Protonix*fn8 , and Climara Pro Patch*fn9 . ( Id. ). Medical staff counseled Plaintiff to cease abusing drugs because it was likely contributing to her syncope. ( Id. at 102-03).

On October 27, 2005, Plaintiff was seen by Daniel A. Wecht, M.D., for a neurosurgical evaluation. ( Id. at 289). Plaintiff complained of severe pain in her neck and shoulder becoming progressively worse over the previous four to five months. ( Id. ). Plaintiff stated that she could not lower her right arm due to pain, that she experienced numbness and pain in her right arm and hand, and that physical therapy provided her no relief from pain. ( Id. ). Plaintiff told Dr. Wecht that she quit smoking, only drank occasionally, and did not use recreational drugs. ( Id. ). Dr. Wecht determined that Plaintiff was a well-developed female, grossly neurologically intact, with no acute distress. ( Id. at 290). A subsequent MRI of Plaintiff's neck in October of 2005 revealed some disk abnormalities in Plaintiff's spine, but Dr. Wecht informed Plaintiff that the severity of her symptoms did not correlate with her MRI results. ( Id. ). Further tests were ordered. ( Id. ).

Dr. Wecht saw Plaintiff again on January 26, 2006, after further testing revealed some disk herniations and protrusions, for which Dr. Wecht suggested a 3-level diskectomy and fusion*fn10 . ( Id. at 286). The surgery was performed on February 27, 2006. ( Id. ). At her one month follow up after the surgery, Plaintiff reported that the pain in her shoulder and upper right arm continued, and often felt worse than before the surgery. ( Id. at 284). Dr. Wecht noted that imaging of the operative site showed good recovery. ( Id. at 284, 364-65). He prescribed physical therapy and Flexeril*fn11 for muscle spasms, and set an appointment for two months later. ( Id. ).

C. Medical Background - Psychological

On May 6, 2005, Plaintiff sought counseling at Mon Yough Community Services. ( Id. at 168). Plaintiff complained of depression stemming from severe arm pain. ( Id. ). Omar Bhutta, M.D., the treating psychiatrist, recorded Plaintiffs symptoms of low energy, loneliness, anhedonia, feelings of hopelessness and helplessness, passive death wishes, and auditory hallucinations. ( Id. ). Plaintiff informed Dr. Bhutta that she used marijuana several times a week to relax, drank alcohol, and abused powder cocaine and crack cocaine. ( Id. ). Dr. Bhutta noted that Plaintiff was alert and oriented times three, had good eye contact, and had subdued affect. ( Id. at 169). Dr. Bhutta also noted that Plaintiff had flashbacks of past abuse and borderline intellectual capacity. ( Id. ). Plaintiff was prescribed Elavil*fn12 and Paxil. ( Id. ). She was diagnosed as suffering from major depression*fn13 , post traumatic stress disorder*fn14 , and continuous polysubstance abuse, and was assessed a global assessment of functioning ("GAF") score of 50*fn15 . ( Id. ).

Plaintiff saw Dr. Bhutta again on May 25, 2005. ( Id. at 179). At that visit, Dr. Bhutta completed a Medical Assessment of Ability to Do Work-Related Activities (Mental) Form for her SSI claim. ( Id. ). Dr. Bhutta gave Plaintiff a rating of "poor" in her ability to: (1) follow work rules; (2) relate to co-workers; (3) deal with [the] public; (4) use . . . judgment; (5) interact with supervisors; (6) deal with work stress; (7) function independently; (8) maintain attention/ concentration, (9) understand, remember, and carry out complex job instructions; and (10) understand, remember, and carry out detailed, but not complex job instructions. ( Id. at 179-181). She was rated as "fair" with respect to her ability to "understand, remember, and carry out ...


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