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Pamela Sylvester v. Michael J. Astrue

February 4, 2011

PAMELA SYLVESTER,
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

Plaintiff, Pamela G. Sylvester, ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("the Commissioner") denying her application for supplemental security income ("SSI") under Title XVI of Social Security Act, 42 U.S.C. §§ 1318-1383 (the "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. 9, 12). The record has been developed at the administrative level. For the following reasons, the Court finds that Plaintiff‟s Motion for Summary Judgment (Docket No. 9) is GRANTED, in part and Defendant‟s Motion for Summary Judgment (Docket No. 12) is DENIED. The decision of the Administrative Law Judge ("ALJ") is VACATED and this matter is REMANDED for further consideration.

II. PROCEDURAL HISTORY

Plaintiff initially filed an application for SSI on March 19, 2004 alleging disability onset as of May 30, 2000. (R. at 72). After denials at the administrative level, Plaintiff‟s claims were denied by the United States District Court on March 5, 2009. Sylvester v. Commissioner of Social Security, 08-0665, 2009 WL 563902 (W.D. Pa. Mar. 5, 2009).

Plaintiff filed new applications on April 25, 2008, and her claim was denied on August 27, 2008. (R. at 44-54). Her request for a review on October 3, 2008 was granted, and a hearing was held before Administrative Law Judge William E. Kenworthy in Pittsburgh, Pennsylvania on January 25, 2010, where Plaintiff was represented by Steven F. Kessler, Esq. (R. at 57-63, 22-41). ALJ Kenworthy issued an unfavorable decision on February 4, 2010. (R. at 9-18). On June 12, 2010, the Appeals Council denied Plaintiff‟s request for review, making the ALJ‟s February 4, 2010 decision the final decision of the Commissioner. (R. at 1-5).

The instant action was initiated when Plaintiff filed a Complaint in this Court on August 4, 2010, pursuant to 42 U.S.C. § 1631(c)(3) for claims under Title XVI. (Docket No. 4). Defendant filed his Answer on October 12, 2010. (Docket No. 6). Plaintiff‟s Motion for Summary Judgment and accompanying Brief were filed on October 29, 2010. (Docket No. 9). Defendant‟s Motion for Summary Judgment and accompanying Brief were filed on November 30, 2010. (Docket No. 12, 13).

III. STANDARD OF REVIEW

Judicial review of the Commissioner‟s final decision on disability claims is provided by statute. 42 U.S.C. §§ 405(g)*fn1 and 1383(c)(3)*fn2 . 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." Diaz v. Com'r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (internal quotation marks and citations omitted). Further, if the ALJ‟s findings of fact are supported by substantial evidence, they are conclusive. See 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. Fennell v. Astrue, 2010 U.S. Dist. LEXIS 136029, *35 (W.D. Pa. Dec. 23, 2010); accord Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); see also Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (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 or she 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 twelve months. 42 U.S.C. § 423 (d)(1)(A); Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000); see also Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986).

An ALJ must utilize a five-step sequential analysis when evaluating the disability status of a claimant. 20 C.F.R. § 404.1520. 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. § 404.1520(a)(4); see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (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 the claimant‟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 on October 11, 1971 and claims disability beginning March 31, 2006. (R. at 103). She lives alone in an apartment in Pittsburgh, Pennsylvania and has not worked since the year 2000. (R. at 104, 123). Plaintiff graduated from high school and received a two-year associate degree from Community College of Allegheny County in 1993. (R. at 393).

When Plaintiff was two years old, her parents divorced, and her mother began dating her stepfather. (R. at 366). Plaintiff alleges that her stepfather mentally, physically and sexually abused her until he left the family when Plaintiff was ten or twelve years old. (R. at 366, 392). According to Plaintiff, her mother had a long history of drinking and drug abuse, and she ultimately committed suicide in 2004. (R. at 132, 393). Plaintiff‟s father was an alcoholic. (R. at 393). Plaintiff has two sisters and one brother. (R. at 392). However, she speaks with her youngest sister less frequently, because, according to Plaintiff, she is abusing drugs and dating their stepfather. (R. at 366, 367). Plaintiff alleges that her sister also suffers from mental illness, is an alcoholic, and uses "street drugs." (R. at 393).

Plaintiff has been in two car accidents. (R. at 132). The first, in 1999, occurred when she was driving, and as a result, Plaintiff had whiplash and low back problems. (R. at 393). In July 2000, she was involved in a high speed motor vehicle accident in which her head went through the windshield. (R. at 177). Because of this accident, she has nerve problems in her neck. (R. at 393). She has attempted suicide once. (R. at 132).

Although currently unemployed, Plaintiff‟s previous jobs include working as a health care aide in a personal care home, a front end worker in a dry cleaning business, a secretary for a temporary agency, a driver for a taxi company, a customer service representative, and most recently, a census representative for the government. (R. at 123).

B.Medical Background

1.Previous Medical History:

Plaintiff had a LEEP procedure*fn3 for cervical cancer in October 2005. (R. at 174, 177). Plaintiff also smoked one pack of cigarettes per day for 15 years and has attempted to quit in recent years. (R. at 174). She drinks an occasional alcoholic beverage. (R. at 174). She has also been diagnosed with hepatitis C, depression, OxyContin*fn4 addiction, and secondary to low back pain. (R. at 177). She used heroin and hard drugs for a number of years but has been clean since 2004. (R. at 177). Plaintiff has been taking suboxone,*fn5 prescribed by Dr. Melinda Campopiano, to assist in overcoming her drug addiction since October 2003. (R. at 370). According to Dr. Maureen A. Maulak, O.D., Plaintiff‟s vision is unimpaired with correction as of June 4, 2005. (R. at 391). Plaintiff stated that her doctor ordered a mammogram on June 18, 2008 and a lump was found in her right breast. (R. at 303). However, the results were benign. (R. at 393).

2.Dr. Melinda Campopiano, M.D.

On July 12, 2006, Plaintiff reported to her treating physician, Dr. Campopiano, complaining of pain and numbness in her arms. (R. at 171). Upon evaluation of an MRI*fn6 of Plaintiff‟s cervical spine, Dr. Campopiano determined that Plaintiff had multilevel degenerative disc disease, most severe at C4-5 and C5-6*fn7 with severe central canal stenosis*fn8 and severe neural foraminal stenosis*fn9 with possible mild associated cord edema.*fn10 (Id.). She also found that Plaintiff had left disc central disc protrusion*fn11 at C6-7 with severe left neural foraminal stenosis.*fn12 (Id.).

Plaintiff met with Dr. Campopiano several times from March 2006 to June 2007 at her office at UPMC Shadyside. (R. at 203-229). During the majority of these visits, Dr. Campopiano rated Plaintiff‟s general exam as "normal" without checking any box as "abnormal." (R. at 203-05, 207-10, 212, 214, 216, 218, 222). On two occasions, Dr. Campopiano rated Plaintiff‟s "psych" as "normal" as well. (R. at 206, 221). Plaintiff was also rated once as "abnormal" in both her "extremities" and "head/neck." (R. at 211). During several visits, Dr. Campopiano rated Plaintiff‟s "psych" as "abnormal" and marked either "aggravated," "sad," or "tearful." (R. at 215, 217, 219, 220, 223).

3.November 2006: Dr. Daniel Wecht, M.D.

Dr. Campopiano referred Plaintiff to Dr. Wecht for a neurosurgical consultation on November 22, 2006. (R. at 174). Plaintiff reported neck stiffness with some aches in the back of her neck and no upper extremity symptoms at that time. (R. at 174). Dr. Wecht found her to be alert and oriented. (R. at 174). Plaintiff‟s cervical range of motion demonstrated no difficulty or pain, and the reflexes in her upper extremities were intact and symmetrical. (R. at 175). While Dr. Wecht found no immediate need for surgery, he felt it reasonable for Plaintiff to undergo surgery in the form of an anterior cervical diskectomy*fn13 by fusing C5 and C7 with plating. (R. at 175). Dr. Wecht answered Plaintiff‟s questions about this procedure, and Plaintiff verbalized her understanding. (R. at 175).

4.April 2007: Dr. Monte B. Weinberger, M.D.

Because Plaintiff felt that Dr. Wecht was not thorough with her, she sought a second evaluation with Dr. Weinberger. (R. at 177). Plaintiff reported that her neck was "always tense" and her left arm had frequent pain and numbness. (R. at 177). Dr. Weinberger found that Plaintiff‟s reflexes were brisk and her cervical range of motion was full. (R. at 177). After reviewing the same MRI that Dr. Campopiano reviewed, Dr. Weinberger also ordered and reviewed a CT scan*fn14 and myelography.*fn15 (R. at 177, 263, 265). Upon review of these documents, Dr. Weinberger diagnosed Plaintiff with advanced cervical spondylosis*fn16 and recommended physical therapy. (R. at 196).

5.May 2007, October 2007: Center for Rehabilitation Services Plaintiff started physical therapy with Center for Rehabilitation Services on May 16, 2007. (R. at 201). During that visit, she claimed her pain was a seven out of ten, ten being "extremely intense." (R. at 197). Craig Doman, M.P.T., found that Plaintiff had decreased strength of her bilateral rhomboids, middle trapezius, and lower trapezius and decreased flexibility of her bilateral upper trapezius, levator scapulae, and pectoralis minor.*fn17 (R. at 190). However, ...


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