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Erica J. Forberger v. Michael Astrue

March 21, 2011


The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan

Privileged & Confidential -- Judicial Work Product

ECF Nos. 10,12



Erica J. Forberger ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 -- 1383f ("Act"). This matter comes before the court on cross motions for summary judgment. (ECF Nos. 10, 12). The record has been developed at the administrative level. For the following reasons, Plaintiff‟s Motion for Summary Judgment is GRANTED, in part, and DENIED, in part, and Defendant‟s Motion for Summary Judgment is DENIED.


Plaintiff filed for SSI with the Social Security Administration April 4, 2008, claiming an inability to work due to disability beginning June 23, 2005. (R. at 113)*fn1 . Plaintiff was initially denied benefits on September 5, 2008. (R. at 66 -- 70). A hearing was scheduled for September 23, 2009, and Plaintiff appeared to testify represented by counsel. (R. at 13). A vocational expert, William Houston Reed, also testified. (R. at 13). The Administrative Law Judge ("ALJ") issued her decision denying benefits to Plaintiff on October 7, 2009. (R. at 49 -- 57). Plaintiff filed a request for review of the ALJ‟s decision by the Appeals Council, which request was denied on January 23, 2010, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 4 -- 6).

Plaintiff filed her Complaint in this court on March 24, 2010. Defendant filed his Answer on June 11, 2010. Cross motions for summary judgment followed.


A. General Background

Plaintiff was born on July 23, 1978, and was thirty one*fn2 years of age at the time of her administrative hearing. (R. at 17). Plaintiff is a high school graduate with three years of post-secondary education at Clarion University in Pennsylvania. (R. at 17). She has no learning disabilities. (R. at 190). At the time of her hearing, Plaintiff lived with her fiancee, and was seven months pregnant. (R. at 20, 26). She also had an eight year old son by another father, and had physical custody of the child every other weekend. (R. at 19 -- 20). Plaintiff was not employed at the time of the hearing, and had not worked since 2000. (R. at 18).

On June 23, 2005, Plaintiff was involved in a serious motor vehicle accident after losing consciousness at the wheel of her car. (R. at 177). Plaintiff had been under the influence at the time, and was not wearing a seatbelt. (R. at 177, 213). Her vehicle went off the road and crashed into an embankment, ejecting her approximately thirty feet from the car. (R. at 188). Plaintiff suffered various injuries to her face, head, neck, back, torso, and extremities. (R. at 177). Plaintiff underwent a series of operations in the following years to correct her physical injuries and related complications.

B. Treatment History -- Physical

Computed tomography ("CT") scans of Plaintiff‟s cervical spine following her car accident on June 23, 2005, showed that Plaintiff had suffered multiple spinous process fractures from the C4 through C6 vertebrae. (R. at 246). Fracturing at the base of Plaintiff‟s skull was also noted. (R. at 246). However, Plaintiff‟s cervical spine alignment was normal, and her vertebral body heights were preserved. (R. at 246). CT scans of the lumbar spine showed normal alignment of the spine and preserved vertebral body heights without evidence of fracturing. (R. at 249). CT scans of the thoracic spine also yielded no evidence of fracturing, irregular alignment, or decreased vertebral body heights. (R. at 249). In addition to the damage to her cervical spine, Plaintiff also suffered fractures and lacerations of her face, a fractured hand, and fractured ribs. (R. at 219). The record indicates that alcohol was present in Plaintiff‟s system.

(R. at 219).

Magnetic resonance imaging ("MRI") of Plaintiff‟s cervical spine on June 25 showed evidence of soft tissue edema at the C5 -- C6 level of Plaintiff‟s spine. (R. at 237). Abnormal signals consistent with spinal cord contusion were also noted. (R. at 237). The MRI results were corroborative of earlier CT scans of the cervical spine. (R. at 237). No significant expansion or compromise of Plaintiff‟s spinal cord was noted, however. (R. at 237). Plaintiff had initially suffered dense quadriparesis*fn3 due to spinal cord trauma. (R. at 212).

By June 28, Plaintiff‟s quadriplegia had improved dramatically, and it would eventually be resolved. (R. at 213). On June 30, Richard Spiro, M.D. performed a C5 -- C6 and C6 -- C7 discectomy and spinal fusion to stabilize Plaintiff‟s neck, as Plaintiff had suffered severe ligamentous injury in addition to fracturing her vertebrae. (R. at 222). Postoperatively, Plaintiff recovered well, and was transferred out of intensive care to a rehabilitation center in good condition on July 2. (R. at 220). In follow-up treatment, Plaintiff was found to be faring very well, and was noted as showing continued improvement. (R. at 172).

Plaintiff underwent plastic surgery in 2006 to minimize the facial scaring suffered in her car accident. (R. at 164). In recovery, Plaintiff‟s plastic surgeon consistently remarked that the surgery was a success, and Plaintiff was healing beautifully. (R. at 161 -- 69). The residuals of Plaintiff‟s surgeries were nearly inapparent, and both Plaintiff and her doctor were very pleased with the results. (R. at 161 -- 69).

In January of 2008, MRI scans of Plaintiff‟s cervical and lumbar spine showed no evidence of spinal stenosis, improper alignment, or significant disc pathology. (R. at 202 -- 03). In Plaintiff‟s lumbar spine, there was a slight protrusion at the L5 -- S1 level, but it was otherwise normal. (R. at 202). Plaintiff complained of low back pain, and left leg numbness. (R. at 443 -- 44, 446). A compression fracture in the mid thoracic spine was noted in February of 2008. (R. at 382). In March of 2008, Dr. Spiro conducted an operation on Plaintiff‟s lumbar spine to relieve intractable left leg pain. (R. at 210). A discectomy was performed at the L5 -- S1 level of Plaintiff‟s spine. (R. at 211). During the procedure, an incidental dural tear resulting in the leakage of some cerebrospinal fluid occurred, but it was repaired with minimal damage. (R. at 211).

At a follow-up to the surgery on April 16, 2008, Dr. Spiro indicated that Plaintiff experienced good relief of her leg pain, though she still felt some numbness in her left foot. (R. at 316). Plaintiff was healing well, there was no weakness in dorsiflexion or plantar flexion of her lower extremities, and her sensation was found to be well preserved. (R. at 316). Plaintiff visited the emergency room on April 22, complaining of back pain subsequent to a fall down a flight of steps. (R. at 437, 439). An x-ray of the lumbar spine showed that all bony structures were intact, the lordotic curve was intact, the disc spaces were normal, there was no abnormality in the joints, and there was no evidence of spondylolysis or spondylolisthesis. (R. at 269). The x-ray was considered to be normal. (R. at 269).

Plaintiff visited a pain treatment center in January and February of 2008. (R. at 193 -- 97, 204 -- 06). Plaintiff underwent a number of epidural injections and sacroiliac injections for pain relief. (R. at 193 -- 97, 204 -- 06). Plaintiff was noted as showing excellent improvement, but the pain center records do not extend beyond February 14, 2008. (R. at 193 -- 97, 204 -- 06).

Plaintiff was seen by David M. Zlotnicki, M.D. on March 6, 2009, due to ongoing complaints of low back pain with radiation to her left leg. (R. at 305). Dr. Zlotnicki observed moderate cervical tenderness, some muscle tightness, and slightly diminished cervical range of motion. (R. at 305). Plaintiff had some left lumbar tenderness. (R. at 305). Yet, her straight leg raises were negative, her lower extremities demonstrated intact sensation, and her upper extremities showed normal strength. (R. at 305). Plaintiff was diagnosed with cervicalgia and lumbar pain, status post-surgery. (R. at 305). She was encouraged to exercise consistently. (R. at 305).

Plaintiff was examined by Dr. Spiro on March 11, 2009. (R. at 315). Dr. Spiro indicated that Plaintiff had developed a recurrence of low back pain, and also suffered radiating pain in her legs -- though her left leg was distinctly worse. (R. at 315). There was also numbness and tingling in the left foot. (R. at 315). Motor and sensory examinations showed that Plaintiff was intact throughout. (R. at 315). Straight leg raising was negative, and there was no noted abnormality with Plaintiff‟s deep tendon reflexes. (R. at 315). There were positive bilateral Hoffmann‟s*fn4 signs in her legs, however. (R. at 315).

On April 4, 2009, Plaintiff again appeared for an examination with Dr. Zlotnicki. (R. at 304). She complained of significant back and neck pain, and Dr. Zlotnicki noted mild to moderate diffuse lumbar tenderness, mild to moderate posterior cervical tenderness, fairly good cervical range of motion, and a normal gait. (R. at 204). Plaintiff was diagnosed with chronic back pain and cervicalgia. (R. at 304).

In August of 2009, Plaintiff sought treatment for right upper quadrant pain, abdominal pain, and pelvic pain. (R. at 365). An ultrasound of Plaintiff‟s abdomen revealed a distended gallbladder, but not gallstones or thickening of the gallbladder walls. (R. at 365). Plaintiff‟s pancreas was also swollen. (R. at 322). Plaintiff was initially diagnosed with cholecystitis and pancreatitis. (R. at 320, 322, 348). However, an ultrasound on August 25 did not uncover any evidence of cholecystitis or an enlarged pancreas. (R. at 345). Plaintiff‟s gallbladder remained grossly enlarged. (R. at 345).

Plaintiff was again diagnosed with pancreatitis and cholecystitis after an ultrasound on September 16, 2009. (R. at 433). Though Plaintiff was ambulatory, because of her continuing, worsening right upper quadrant pain, she was admitted to Clarion Hospital for possible surgery.

(R. at 418 -- 19, 432). Following admission to the hospital, Plaintiff‟s blood work showed improvement with respect to her pancreas and gallbladder, though the etiology of her issues could not be determined. (R. at 420, 424 -- 32). Plaintiff‟s pancreas appeared unremarkable after a sonogram on September 17. (R. at 417). The gallbladder was still enlarged, though no stones were found. (R. at 417). On September 19, it was determined that Plaintiff may be suffering pancreatitis secondary to ...

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