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Stephen W. Mcknight v. Michael Astrue

October 14, 2010

STEPHEN W. MCKNIGHT, PLAINTIFF
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM AND ORDER

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Stephen W. McKnight's claim for social security disability insurance benefits. For the reasons set forth below we will remand the case to the Commissioner for further proceedings.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that McKnight met the insured status requirements of the Social Security Act through December 31, 2008. Tr. 12, 14, and 193.*fn1 In order to establish entitlement to disability insurance benefits McKnight was required to establish that he suffered from a disability on or before that date. 42 U.S.C. §423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).

McKnight was born on August 21, 1961. Tr. 74, 183 and 192. McKnight graduated from high school and can read, write, speak and understand the English language. Tr. 29-30, 196 and 206. After high school, McKnight completed two years of college and obtained an Associate Degree in automobile mechanics. Tr. 29-30 and 206. He also obtained a certificate in automobile mechanics from General Motors in 1983. Id. McKnight has past relevant employment*fn2 as an automobile mechanic which is classified as skilled, medium work.*fn3 Tr. 18, 30 and 198.

McKnight maintained consistent employment from 1978 through 2003, a total of 26 years. Tr. 187. He also worked for approximately 6 weeks in 2004. Id. Except for the years 1978, 1992, and 2004, in each of those years he accumulated four quarters of earnings for purposes of social security benefits. Id. In 1978 and 1992 he only accumulated three quarters and in 2004 none. Id. Records of the Social Security Administration reveal that McKnight had earnings from 1978 through 2004 as follows:

1978 $830.68 1979 2413.68 1980 7373.45 1981 1335.00 1982 2368.26 1983 5382.25 1984 4875.00 1985 12612.03 1986 12595.35 1987 13813.34 1988 14569.99 1989 16116.15 1990 19989.52 1991 18299.98 1992 1848.00 1993 8686.35 1994 18433.80 1995 19296.16 1996 19659.84 1997 25285.89 1998 26728.17 1999 7243.86 2000 28249.19 2001 24951.74 2002 24500.90 2003 20552.52 2004 645.12

Id. McKnight's total earnings from 1978 through 2004 were $358,756.22. Id.

McKnight contends that in October, 2003, he sustained a neck injury while working under a motor vehicle with his arms above his head. Tr. 513. The exact mechanism of the initial injury to McKnight's neck is not clear. It appears that he was "torqueing a nut" and had "an acute onset of neck, left arm and chest discomfort in the pectoral region." Tr. 446. After the injury, he had cardiac testing and an MRI of the cervical spine. Tr. 255-258 and 575-583. The cardiac testing revealed McKnight's chest pain was of a "nonischemic nature." Tr. 256. The MRI revealed "[m]oderate to severe disc space narrowing with most likely degenerative disc disease associated with broad based C6/7 disc herniation." Tr. 255. McKnight was treated by a family physician and a chiropractor and eventually went back to work in early April, 2004, on a part-time basis. Tr. 31-32, 373-374 and 480-481. However, that employment only lasted until May 17, 2004, when he "reinjured himself. " Id. McKnight has not worked since that date. Id. McKnight alleges that he is disabled as the result of a history of cervical surgery, neck pain, chest pain, numbness in his entire back and into his extremities, sciatica, right leg pain, low back pain and spasms, and acid reflux. Tr. 29 and 197. McKnight claims that he has constant pain in his neck and lower back. Id.

On November 9, 2007, McKnight filed protectively*fn4 an application for disability insurance benefits. Tr. 12, 74 and 183-185. On March 13, 2008, the Bureau of Disability Determination*fn5 denied McKnight's application. Tr. 74-80. On May 15, 2008, McKnight requested a hearing before an administrative law judge. Tr. 81. After 20 months had passed, a hearing before an administrative law judge was held on January 12, 2010. Tr. 25-73. On January 27, 2010, the administrative law judge issued a decision denying McKnight's application. Tr. 12-20. On March 29, 2010, McKnight requested that the Appeals Council review the administrative law judge's decision and on August 20, 2010, the Appeals Council concluded that there was no basis upon which to grant McKnight's request for review. Tr. 2-6 and 118. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

On October 14, 2010, McKnight filed a complaint in this court requesting that we reverse the decision of the Commissioner denying him social security disability insurance benefits. The Commissioner filed an answer to the complaint and a copy of the administrative record on December 28, 2010. On February 3, 2011, McKnight filed his brief and on March 8, 2011, the Commissioner filed his brief. The appeal*fn6 became ripe fordisposition on March 25, 2011, when McKnight elected not to file a reply brief.

STANDARD OF REVIEW

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474

F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

Substantial evidence "does not mean a large or considerable amount of evidence, but 'rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

Another critical requirement is that the Commissioner adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)("The ALJ has an obligation to develop the record in light of the non-adversarial nature of benefits proceedings, regardless of whether the claimant is represented by counsel."); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437 (7th Cir. 2000); see also Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 2085 (2000)("It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). If the record is not adequately developed, remand for further proceedings is appropriate. Id. SEQUENTIAL EVALUATION PROCESS

To receive disability benefits, the plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any 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 not less than 12 months." 42 U.S.C. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 42 U.S.C. § 423(d)(2)(A).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity,*fn7 (2) has an impairment that is severe or a combination of impairments that is severe,*fn8 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn9 (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.*fn10

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. § 404.1545; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").

MEDICAL RECORDS

Before we address the administrative law judge's decision and the errors committed by him, we will review in detail McKnight's medical records. The medical records reveal that McKnight received treatment for, inter alia, problems with his neck and lower back, anxiety, and gastroesophageal reflux disease (GERD). McKnight had multiple periods of physical therapy, chiropractic treatment and acupuncture treatment for his neck and back pain.

The alleged disability onset date in this case is October 17, 2003, and we will commence by considering a medical record dated October 15, 2003, the earliest medical record contained within the administrative record. Tr. 484. On that date McKnight had an appointment with James L. Wilson, M.D., Section of Family Practice, Guthrie Clinic, Wellsboro, Pennsylvania. Id. At that appointment McKnight complained of "GERD symptoms." Id. Dr. Wilson's assessment was that McKnight suffered from gastroesophageal reflux disease and prescribed the drug Protonix.*fn11 Id.

As previously mentioned McKnight alleges that on October 17, 2003, he injured his neck at work. On that date McKnight visited the emergency department at Soldiers & Sailors Memorial Hospital, Wellsboro. Tr. 579-583. The medical records regarding this visit contained within the administrative record are rather limited and difficult to interpret because of their poor quality. Id. It appears that at this visit McKnight complained of chest pain/tightness and radiation of pain to his left arm. Tr. 579. He also complained of dizziness, nausea, and sweating. Id. Several diagnostic tests were ordered by the attending physician, including a complete blood count and chemistry, an EKG, and a chest x-ray.*fn12 Tr. 580-582. The chest x-ray was normal. Id. The blood count and chemistry were normal. Id. The EKG revealed a normal sinus rhythm. Id. The impression of the treating medical provider was that McKnight was suffering from chest pain and gastroesophageal reflux disease. Id. It appears that certain medications*fn13 were prescribed and McKnight was discharged from the emergency department in a stable condition. Tr. 580.

On October 20, 2003, McKnight again visited the emergency department at Soldiers & Sailors Memorial Hospital with similar symptoms. Tr. 575-576. He complained of chest pain and tingling in his left arm. Id. Blood work was normal. Id. A chest x-ray and EKG were normal. Tr. 577-578. The clinical impression was that McKnight was suffering from acute chest pain, costochondritis,*fn14 bronchitis and pleurisy.*fn15 Tr. 576. We can discern that he was discharged to home on the same day. Id. However, because the record is illegible we cannot discern his condition at the time of discharge. Id.

On October 23, 2003, McKnight had an appointment with Dr. Wilson at the Guthrie Clinic. Tr. 483. The record of that appointment states in toto as follows: "SUBJECTIVE: Comes in and has been to the hospital a couple of times for checkups. Has had a stress test. Had some abnormal chest pain that has really got him spooked. His father went thru this some years ago. Therefore, I am going to refer him to cardiology for further evaluation. OBJECTIVE: Today his B/P 130/80. Chest clear. Heart - NSR.*fn16

ASSESSMENT/PLAN: Doubt cardiac problem, but must check to be sure." Id.

On October 27, 2003, McKnight had cardiac stress testing at Geisinger Medical Center, Danville, Pennsylvania, by Ashok Shah, M.D. Tr. 256-257. The report of that testing states in relevant part as follows: "The patient exercised for 8 minutes and 10 seconds and stopped at 2 minutes and 10 seconds of stage III of Bruce protocol because of fatigue. At peak exercise he had a maximum heart rate of 179 beats per minute which was 100% of his maximum predicted heart rate for his age. His maximum blood pressurewas 170/90. Maximum workload was 10.2 METS.*fn17 No diagnostic electrocardiogram changes to suggest ischemia were noted." Id. Also, on October 27, 2003, at Geisinger Medical Center McKnight had an MRI of the cervical spine which revealed a "broad based C6/7 disc herniation." Tr. 255.

After the report of the October 27th MRI, other than two one-page radiology reports dated October 31, 2003, and January 14, 2004, there are no medical records contained within the administrative record until a record dated March 8, 2004. Tr. 373-374 and 482. The radiology reports were prepared by a chiropractic physician. Subsequent records reveals that the chiropractor was a Lawrence Bellows, D.C. Tr. 266 and 377. Our review of the administrative record did not reveal any of Dr. Bellow's treatment records. The radiology report dated October 31, 2003, reveals that McKnight suffered from cervical curvature loss; cervical spondylosis*fn18 at the C6 level; encroachment of the neuroforamina between C6-C7;*fn19 vertebral subluxation*fn20 at levels C3, C4, C5, C6 and C7; lateral lumbar curvature loss; vertebral subluxation at level L1-5; and compression at levels C6 and C7. Tr. 374. The radiology report dated January 14, 2004, set forth similar findings with respect to McKnight's cervical spine. Tr. 373.

On March 8, 2004, McKnight had an appointment with David A. Pfisterer, M.D., Section of Family Practice, Guthrie Clinic, Wellsboro. Tr. 482. At that appointment McKnight had a "host of complaints." Id. McKnight complained of neck problems, tingling in his right shin and sweating in his hands and feet. Id. McKnight "expressed concern that he developed shingles on his right leg[.]" Id. McKnight told Dr. Pfisterer that he took a Lorazepam*fn21 and "his symptoms all got better." Id. Dr. Pfisterer's assessment/plan was as follows: "Probable anxiety attack. Symptomatic treatment." Id.

On March 31, 2004, McKnight had an appointment with Dr. Wilson at the Guthrie Clinic. Tr. 481. Dr. Wilson noted that McKnight had "a full workup now and is going back to work next week. He may need something for his panic attacks because I think he suffers from this as a result of his neck injury and his arm going numb." Id.

On June 18, 2004, McKnight had an MRI of the cervical spine performed at Soldiers & Sailors Memorial Hospital, Wellsboro. Tr. 372 and 377.*fn22 The MRI was ordered by Dr. Bellows, the chiropractor. Id. The MRI revealed "[c]entral canal stenosis*fn23 at C6-7

due to severe degenerative disc disease and a spondylotic disc protrusion asymmetric to the left" and a "[s]mall right paracentral/intraforaminal spondylotic disc protrusion at C5-6 causing right foraminal stenosis." Id.

On June 28, 2004, McKnight had an appointment with Dr. Wilson at the Guthrie Clinic, Wellsboro. Tr. 480. Dr. Wilson in his notes of this appointment states in toto as follows: "Comes in for comp check. Has a cervical strain and cervical disc disease. He was off in April and reinjured himself again. He has been seen for chiropractic treatments, but since the MRI shows some changes at C5-6, more pronounced than before, he is going to see Dr. Anton at Sayre.*fn24 Will await the results. Gave him some Lortabs 10/500*fn25 for the pain. See for follow up." Id.

On July 19, 2004, McKnight had an appointment with Michelle L. Cavanaugh, M.D., Section of Family Practice, Guthrie Clinic, Wellsboro. Tr. 479. Dr. Cavanaugh's notes of this appointment mention McKnight's "significant [neck] pain" and the fact that he was receiving "some therapy and chiropractic care." The notes further state as follows: "Patient comes in today wanting to be scheduled for physical therapy evaluation and treatment. . . He had an MRI done that revealed disc bulging at C5-C6 and C6-C7 that correlated with his symptoms. He saw Dr. Anton earlier this month and he recommended surgery versus another trial of physical therapy. At this point Mr. McKnight would like to try the physical therapy." Id. Dr. Cavanaugh's assessment/plan was that McKnight suffered from "[c]ervical disc disease per Dr. Anton" and McKnight was scheduled for a physical therapy evaluation and treatment. Id. It was stated that if physical therapy failed surgical intervention would be considered. Id.

On July 26, 2004, McKnight had an initial physical therapy evaluation at

Phoenix Rehabilitation and Health Services, Inc., Mansfield, Pennsylvania. Tr. 266. The physical therapist was Bretta Fabian. The objective portion of the report of the physical therapy evaluation states as follows: "Inspection: The patient sits and stands with the left shoulder lower and the neck tipped to the right. The patient also has a head forward posture. The patient has a scoliotic curve in the lower thoracic back which is concave to the left. The patient demonstrates right paracervical muscles that are hypertrophied*fn26 as compared to the left. The left iliac crest is higher than the right and the right ASIS*fn27 is rolled severely anteriorly. Palpation: The patient is extremely tender in both upper trapezius muscles, left greater than right. The patient is tender in the thoracic back also." Id. It was noted that McKnight's range of motion and strength were essentially normal and that neurologically he was intact. Tr. 267. The physical therapist's assessment was as follows: "This patient demonstrates significant postural malalignment and muscle imbalance in the cervical and thoracic back, as well as, the low back. The patient has subsequent loss of strength in the cervical region and the thoracic back/postural muscles." Id. The plan was for McKnight to have 4 to 6 weeks of physical therapy. Id.

McKnight attended physical therapy sessions with Ms. Fabian on July 27 and 29, and August 2, 3, 5, 9, 11, 12, 16 and 17, 2004. Tr. 268-269 and 271-272. The notes of these sessions reveal that McKnight would have good days and bad days and that his pain would wax and wane depending on his level of activity. The physical therapy note from August 16th includes the following statement of McKnight: "As long as I don't do much I am pain free. I can't do things over my head. I tried to help my wife lift tubs of clothing onto a top closet shelf and I had severe pain in my neck for 4-5 hours afterward. Also my right leg pain comes and goes[.]" Tr. 272.

On August 17, 2004, Ms. Fabian reviewed McKnight's progress in a letter to Dr. Cavanaugh. Tr. 270. That letter states in pertinent part as follows: "This letter is in regard to Steve McKnight who is being treated in physical therapy for the diagnosis of C5-6, C6-7 disc bulge with nerve compression. The patient has progressed in physical therapy to a point where 75% of the time he is pain free if he is doing nothing. . . The patient continues to have symptoms of spasm and sever[e] pain if he uses his arms above his head. The patient has attempted to help his wife with home activities and has experienced a flare up in symptoms. I believe the patient would benefit from continued therapy[.]" Id.

On August 18, 2004, McKnight had an appointment with Dr. Cavanaugh at the Guthrie Clinic, Wellsboro. Tr. 478. Dr. Cavanaugh in her report of this appointment noted that McKnight had been attending physical therapy. Id. She further made the following objective findings: " Generally -- moving about without significant difficulty. Again, cannot raise his arms in front of him above 90 degrees or it causes some discomfort in the back of his neck. Minor discomfort throughout the cervical musculature. Range of motion is intact." Id. Dr. Cavanaugh's assessment/plan was as follows: "Cervical disc herniation, trying to avoid surgery and regain his function so that he can go back to work at some point. Will continue him off work for another month and continue therapy. Gave him a note for chiropractic manipulation also. Will try him on Ibuprofen 800 mg every 8 hrs and Flexeril 10 mg every 8 hrs, especially at bedtime.*fn28 He will continue the Lorazepam 1 mg [every] 6 hrs [as needed] for anxiety symptoms." Id.

McKnight attended physical therapy sessions with Ms. Fabian on August 19, 23, 24, 26 and 30, and September 1, 7, 8 and 9, 2004. Tr. 272-276. The notes of these sessions reveal that McKnight would have good days and bad days and that his pain would wax and wane depending on his level of activity. On August 19th McKnight reported that "he woke up at 3 am this morning with increased spasm in both upper trapezius muscles." Tr. 272. On August 23rd McKnight reported that "he had a terrible weekend. He started taking a muscle relaxor on Thursday and was in bed Friday and Saturday secondary to a type of allergic reaction . . . he was hunched up from chills and therefore had a (sic) increase in cervical spasm." Tr. 273. On August 24th McKnight reported that "he had a little bit of neck tightness but [stated] he [felt] like he [was] doing better and that there [was] a little bit of spasm but not the grabbing that there was last week." Id. On August 26th McKnight reported that "he [felt] like his neck [was] getting looser. He is going to attempt to use his cervical pillow tonight." Id. On August 30th McKnight reported that "he was unable to use a cervical pillow secondary to upper extremity numbness during the night." Tr. 274. On September 1st

McKnight reported that he was "having increased cervical pain . . . [and] began experiencing stiffness in his neck two days ago." Id. On September 7th McKnight reported: "I have had a terrible time. Last Wednesday when I lifted on Machine 6 I blew a disk in my neck and the next morning woke up with my whole right arm numb. I went to see the chiropractor . . . and it was slightly better yesterday." Tr. 275. On September 8th McKnight reported that "he felt good after he went home yesterday but after a short nap he had increased tightness in both upper trapezius muscles and pain at the insertion of these muscles at both AC joint*fn29 regions. [McKnight] used ice and heat and gentle exercise to decrease tightness . . . [and] report[ed] that he felt better this morning after getting up and relaxing. [McKnight reported he] always has stiffness and pain in the morning." Id. On September 9th McKnight reported that " his cervical muscles [were] relaxing much better" and he would "see the chiropractor today." Tr. 276. He further reported that "he was stiff when he awoke this morning but that he relaxed and the muscles relaxed." Id.

On September 9, 2004, McKnight had an initial appointment with Morgan L. Woodworth, D.C., of Woodworth Chiropractic Clinic, Covington, Pennsylvania. Tr. 369-370. Dr. Woodworth utilizes numerous abbreviations in her treatment notes and even though a "SOAP*fn30 NOTES KEY" is contained within the administrative record we are still unable to decipher most of her treatment notes using that key because of the poor quality of her handwriting. Tr. 532. We discern, however, that Dr. Woodworth made objective examination findings (utilizing the abbreviations) as well as specified the type of manipulative treatments provided at each session.*fn31

McKnight attended physical therapy sessions with Ms. Fabian on September 14, and 15, 2004. Tr. 277. The notes of these sessions reveal that McKnight would have good days and bad days and that his pain would wax and wane depending on his level of activity. On September 14th McKnight reported that "he saw Dr. Woodworth on Friday and did quite well with his appointment" and that "he feels the best that he has ever felt yesterday." Id. McKnight also stated that "he did a little more but he is not as tight this morning as he usually would have been." Id. On September 15th McKnight reported that he was "doing quite well yesterday until 10. He had virtually no pain yesterday and he did not have any nausea or dizziness. . . he did not do much but he did not have any of those symptoms yesterday. Last night at 10 he was sneezing with a sinus cold and he wrenched his neck and actually got a spasm in the left levator scapula." Id.

On September 15, 2004, McKnight had an appointment with Dr. Cavanaugh at the Guthrie Clinic, Wellsboro. Tr. 477. Dr. Cavanaugh noted that McKnight was "progressing nicely with his therapy" and had "some mild tightness over the upper trapezius muscles but overall no deformities." She further stated that McKnight's neck had "full range of motion in all directions" and continued McKnight's physical therapy and chiropractic treatment. Id. On September 18th Dr. Cavanaugh wrote a script on behalf of McKnight for Lorazepam. Tr. 486.

McKnight had a chiropractic session with Dr. Woodworth on September 16, 2004. Tr. 370. The notes of this appointment are illegible.

McKnight attended physical therapy sessions with Ms. Fabian on September 16, 21, 22 and 23, 2004. Tr. 277-278. On September 16th McKnight reported that "he attempted to get his X rays (sic) from the dr (sic) and was denied access to his X rays (sic) which upset him and caused increased spasm in both upper trapezius muscles." Tr. 277. On September 21st McKnight reported that he was "able to do much more around the house without lifting any weights without an increase in symptoms." Tr. 278. On September 22nd

McKnight reported that "he was able to do light activities below shoulder level yesterday to fix the water heater in his basement without an increase in symptoms." Id. On September 23rd McKnight reported that he was "tight in the left upper trapezius muscle." Id.

McKnight had a chiropractic session with Dr. Woodworth on September 23, 2004. Tr. 370. The notes of this appointment are partially legible. We can discern that Dr. Woodworth wrote: "Last 2wks Have Had More Good Days then have had in a long time. . . ." Id. The remainder is illegible.

McKnight attended a physical therapy session with Ms. Fabian on September 27, 2004. Tr. 279. The notes of this appointment state as follows: "[McKnight] reports that he was adjusted on Thursday and did well that day. He did not have to take a rest and was able to do things around the house without increasing symptoms or fatigue. [McKnight] reported the weekend went well and that he had minimal to no spasm in the upper trapezius muscles. [McKnight] did have pain in the back of his neck that was 2-3/10 and [he] described as being right on the spine. Today [McKnight] reports that he did use ice this morning but the spasms were held at bay. [McKnight] reports he is talking with various locations to decide what kind of work he will be able to do in the future. It is unlikely [McKnight] will be able to raise his arms over his head and work under cars with his neck tilted at this point in time. [McKnight] has significant damage to his neck and it will be difficult for him to work in this position." Id.

McKnight had a chiropractic session with Dr. Woodworth on September 30, 2004. Tr. 370. We can discern that Dr. Woodworth noted: "Was great till Tues[day] night woke middle of night with sneeze that aggravated neck and low back." We cannot decipher the remainder.

McKnight attended physical therapy sessions with Ms. Fabian on September 30 and October 5, 2004. Tr. 279-280. On September 30th McKnight reported that "he had a sinus infection yesterday and that he sneezed a lot and that his neck is rather sore today." Tr. 279. It was noted that McKnight had "minimal to moderate spasm in the right cervical muscles." Id. On October 5th McKnight reported that he "was adjusted last week and following that adjustment [he] was sore in [his] upper shoulders but [his] neck felt better and [his] hand didn't go numb [when he] did [] stretches." Tr. 280.

McKnight had a chiropractic appointment with Dr. Woodworth on October 7, 2004. Tr. 370. The notes of this appointment are illegible.

McKnight attended physical therapy sessions with Ms. Fabian on October 8, and 12 , 2004. Tr. 280-281. On October 8th McKnight reported "continued improvement with improved upper extremity utilization since beginning physical therapy treatment." Tr. 280. On October 12th McKnight reported that he was "having less symptoms in the arms, [that is] less numbness and tingling" and "that most of his pain is in the back of his neck right on his spinous processes." Tr. 281.

McKnight had a chiropractic appointment with Dr. Woodworth on October 18, 2004. Tr. 355. The notes of this appointment are partially legible. The notes state in part: "Last WK Best WK since Incident, [unt]ill yest[erday] carried groceries for wife. . .[Sat] in Hot Tub last night Mild [low back pain]." Id. Dr. Woodworth made objective physical examination findings. Id.

McKnight attended physical therapy sessions with Ms. Fabian on October 18 and 20, 2004. Tr. 282. The notes of these sessions reveal that McKnight's pain would wax and wane depending on his level of activity. On October 18th McKnight reported that "[a]fter [his] last treatment [his] neck felt so much better. In fact [he] had a lot of hope because [he] had a little neck pain until Sunday at which time [he] took a trip to Buffalo on a bumpy road. [He] had increased neck pain and [he] attempted to carry 10 [pounds] in each hand for 15 minutes and [he] could not do it because of increased pain in the tops of [his] shoulders." McKnight further reported that "[his] muscles felt weak last night but after a Jacuzzi bath and some traction [he] feel[s] only tightness now." Id. On October 20th McKnight reported that he was "doing better . . . however chin tucks don't bother him while he is performing them but latter once in a while he gets a sharp pain in the neck which goes away quickly." Id. It was noted at this appointment that McKnight had "very minimal spasm present in the cervical region." Id.

On October 20, 2004, McKnight had an appointment with Dr. Cavanaugh. Tr. 476. Dr. Cavanaugh in the report of that appointment stated as follows: "Apparently the therapist thinks he is still getting improvement, so will continue their current modalities, Will see him back in two months, sooner if he feels he can get back to work sooner. At this point, however, I think that any overhead work such as his job as a mechanic is not going to be possible for the future for him." Id.

McKnight attended physical therapy sessions with Ms. Fabian on October 21 and 25, 2004. Tr. 282-283. The notes of these sessions reveal that McKnight would have good days and bad days and that his pain would wax and wane depending on his level of activity. On October 21st Ms. Fabian noted that McKnight was "having very few symptoms presently as long as he doesn't over do it as per [patient's] report." Tr. 282. On October 25th

McKnight reported that "he has had a little bit of spasm but that he [was] feeling pretty good." Tr. 283.

McKnight had a chiropractic appointment with Dr. Woodworth on November 1, 2004. Tr. 355. The notes state in part: "1st week ok. Last Tues[day] had stomach virus with sweats, [neck] tight. Bad through Friday, Presently Neck pain at base of neck . . ." Id. We are unable to decipher the remainder. Dr. Woodworth made objective physical examination findings. Id.

McKnight attended physical therapy sessions with Ms. Fabian on November 1, 2, 4, 8, 9, 11, 15, 2004. Tr. 272-285. The notes of these sessions reveal that McKnight would have good days and bad days and that his pain would wax and wane depending on his level of activity. On November 1st McKnight reported an increase in cervical spasm; on November 2 he reported soreness in the upper trapezius muscles but no pain in the cervical region; on November 4th he reported he was doing much better; on November 8th he reported he had a good weekend with no increase in symptoms and he did a lot of activity the day before including cleaning the garage; on November 9th he reported he has spasms in the right upper trapezius and shoulder; on November 11th he reported he was quite sore in the right upper trapezius and cervical region after cleaning house and taking a trip; and on November 15th he reported that "he carried shopping bags that were 3-4 [pounds] each to the mall yesterday and did not experience pain while doing so [but] later realized that he had an increase in spasm in both upper trapezius muscles which lasted till this morning." Id.

On November 15, 2004, Ms. Fabian reviewed McKnight's progress in a letter to Dr. Cavanaugh. Tr. 287. That letter states in pertinent part as follows: "This letter is in regard to Steve McKnight who is being treated in physical therapy for the diagnosis of C5/C6, and C6/7 disc bulge with nerve compression. ROM is within normal limits in the cervical region at this point in time. Strength is within normal limits in the cervical region and is 4/5 in the upper extremities, below shoulder level. The patient continues to progress gradually. Recommendations: I recommend therapy to gain full strength and normal function for this patient." Id.

McKnight had a chiropractic appointment with Dr. Woodworth on November 15, 2004. Tr. 355. We are unable to decipher the notes relating to this appointment. Dr. Woodworth made objective physical examination findings. Id.

On November 17, 2004, Dr. Woodworth issued a typewritten report relating to McKnight's progress. Tr. 366-368. That report states in pertinent part as follows:

Initial date of Treatment -- Dr. Cavanaugh . . . referred Steve to this clinic for chiropractic treatment of disc disease.

Presenting Symptoms -- stiff neck and pain involving right arm and legs. Other Symptoms Apparent since the Injury -- nervousness, tingling arms, chest pain, loss of balance, cold sweats, depression, sleeping trouble, dizziness, fatigue, neck pain and stiffness, fingers numb, diarrhea, anxiety, tingling legs, other symptoms of sweaty hands and feet. * * * * * * * Symptoms Immediately after Injury -- numbness and pain into left arm and chest.

Doctors Seen and Treatment Received since the Injury -- patient was taken to hospital, and the next Day a stress test was performed. The following Monday Steve saw a cardiologist at Robert Packer hospital who ordered a (sic) MRI of his neck and differentially diagnosed H.N.P.*fn32 of C6 7 disc, Dr. St. John's performed neurosurgical evaluation. Drs Wilson and Cavanaugh managed care locally; Dr. Bellows treated from October 03 through June 04 Chiropracticly. Phoenix rehab has also been doing physical therapy and rehabilitation. * * * * * * * Present Medications -- lorazepam.

Mechanism of Injury -- working under vehicle reaching overhead pulling with arms. * * * * * * * Initial Exam and Treatment Palpation -- myospasms: anterior, lateral and posterior C-pvm's, suboccipital triangle. Mild wasting left triceps, biceps with active trigger points to belly of m's. Pain on ...


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