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Norma J. Lutz v. Michael Astrue

April 5, 2011

NORMA J. LUTZ, PLAINTIFF
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



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

MEMORANDUM OPINION

I. INTRODUCTION

Norma J. Lutz ("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 disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401 -- 433 ("Act"). This matter comes before the court on cross motions for summary judgment. (ECF Nos. 7, 11). The record has been developed at the administrative level. For the following reasons, Plaintiff‟s Motion for Summary Judgment is DENIED, and Defendant‟s Motion for Summary Judgment is GRANTED.

II. PROCEDURAL HISTORY

Plaintiff filed for DIB with the Social Security Administration June 19, 2007, claiming an inability to work due to disability as of April 4, 1994. (R. at 13)*fn1 . The date on which Plaintiff was last insured for DIB purposes was March 31, 2000. (R. at 87). Plaintiff was initially denied benefits on September 18, 2007. (R. at 110 -- 14). A hearing was scheduled for June 11, 2009, and Plaintiff appeared to testify represented by counsel. (R. at 85). A vocational expert, Karen Kroll, also testified. (R. at 85). The Administrative Law Judge ("ALJ") , William E. Kenworthy, issued his decision denying benefits to Plaintiff on September 3, 2009. (R. at 10 - 18). Plaintiff filed a request for review of the ALJ‟s decision by the Appeals Council, which request was denied on July 29, 2010, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 1 -- 4).

Plaintiff filed her Complaint in this court on September 27, 2010. (ECF No. 1). Defendant filed his Answer on November 29, 2010. (ECF No. 2). Cross motions for summary judgment followed.

III. STATEMENT OF THE CASE

A. General Background

Plaintiff was born November 2, 1961, and was forty seven years of age at the time of her administrative hearing. (R. at 279). Plaintiff completed tenth grade, but advanced no further. (R. at 91). Plaintiff went back to school and received her diploma in 2004 or 2005. (R. at 91 -- 92). Plaintiff has no post-secondary education. (R. at 92). Plaintiff is married and has three children, including two step-children. (R. at 90, 484). Plaintiff‟s relationship with her husband was strained during the relevant time period, and was often a source of stress. (R. at 435). She worked at K-mart, and injured her left foot while there. (R. at 437, 484). Plaintiff has not been employed since her injury, though she was reportedly attempting to start her own business in early 1997. (R. at 393, 438, 601). In late 1998, Plaintiff stopped receiving worker‟s compensation from K-mart after a company doctor concluded that Plaintiff was capable of returning to work, though she later regained it following a decision by the Worker‟s Compensation Appeal Board in 2001. (R. at 150 -- 60, 162 -- 67, 595). Plaintiff received a monetary settlement from K-mart in 2008. (R. at 143 -- 46).

B. Medical History

On April 4, 1994, while employed as a clerk, Plaintiff stepped on a piece of "bad" plywood flooring while carrying a box, twisted her foot, and experienced sudden pain. (R. at 437, 445). She worked through the remainder of the day, but the following day sought treatment at the emergency room because of significant discomfort and swelling. (R. at 437). Medical imaging revealed no abnormality. (R. at 437, 445). Plaintiff was diagnosed with severe sprain of her Lisfranc‟s joint. (R. at 445).

A cast was placed on Plaintiff‟s foot on April 6 after being examined by Michael W. Bowman, M.D., but thereafter, Plaintiff‟s pain only increased. (R. at 437, 445 -- 46). Plaintiff later fell, causing her to land on her left foot -- worsening her pain. (R. at 444). Dr. Bowman removed and reapplied a cast on Plaintiff‟s left foot on April 28, 1994. (R. at 444). At her examinations with Dr. Bowman on April 6 and 28, Plaintiff was considered capable of sedentary work duty, but would require the use of crutches to ambulate. (R. at 444).

Plaintiff subsequently fell on her left knee while wearing the new cast, exacerbating her pain. (R. at 437, 443). The cast was removed by Dr. Bowman on May 18, 1994, and Plaintiff‟s left foot was placed in a splint. (R. at 443). Visual inspection showed no knee effusion or instability, but Plaintiff‟s left foot was mottled, cool, swollen, and diffusely tender. (R. at 443). Plaintiff was observed to be capable of sedentary work, but could not endure weight bearing on her left leg, and required the use of crutches to ambulate. (R. at 443).

A bone scan was performed on Plaintiff‟s left foot which revealed the presence of reflex sympathetic dystrophy ("RSD").*fn2 (R. at 437). In response to the finding, Dr. Bowman recommended treatment in the form of lumbar sympathetic blocks, anti-inflammatories, and aggressive therapy to mobilize Plaintiff‟s foot, improve her strength, and increase her weight-bearing endurance. (R. at 442). Plaintiff was found to be capable of sedentary work. (R. at 442).

Following her injury, Plaintiff began visiting Ronald L. Zimmerman, M.D. for further treatment of her left foot in June of 1994. (R. at 439). Dr. Zimmerman concurred with Dr. Bowman in finding that based upon blood flow imaging of Plaintiff‟s feet in May of 1994, Plaintiff suffered early soft tissue RSD in her left foot and calf. (R. at 437 -- 39, 447). Dr. Zimmerman began a regimen of prescription medications for treatment, and ordered a course of physical therapy. (R. at 437 -- 39). The record shows that Plaintiff began attending physical therapy at Passavant Hospital in June of 1994. (R. at 484). Initially, Plaintiff was unable to bear weight, was hypersensitive, and could not ambulate without crutches. (R. at 484). Plaintiff was noted to be slightly obese. (R. at 485).

Over the course of her therapy at Passavant, Plaintiff made steady, positive progress. (R. at 412, 416 - 19, 426, 429, 433, 440, 486 -- 96). Plaintiff had the greatest difficulty tolerating weight bearing, however this continually improved. (R. at 412, 416 - 19, 426, 429, 433, 440, 486 -- 96). Plaintiff responded well to her therapy, and reported that it made her feel more normal.

(R. at 412, 416 - 19, 426, 429, 433, 440, 486 -- 96). She also slowly reduced her reliance on crutches to ambulate, and eventually was able to walk up to 500 feet at a time with the aid of a cane. (R. at 412, 416 - 19, 426, 429, 433, 440, 486 -- 96). In addition to physical therapy, Plaintiff noted that arch supports for her left foot significantly reduced her pain. (R. at 493). She reported being able to ambulate at home without the use of a cane -- reserving the use of the cane to outside the home. (R. at 411). Yet by the end of her therapy at Passavant, Plaintiff continued to experience difficulty walking on uneven surfaces and stairs. (R. at 409).

It was noted by Dr. Zimmerman that as early as June 10, 1994, Plaintiff was making good progress, and had, "turned a corner," with respect to her RSD. (R. at 435, 504). Dr. Zimmerman noted progress in Plaintiff‟s condition similar to the findings made in the treatment notes from Passavant Hospital. (R. at 400 -- 06, 414 -- 15, 420 -- 25, 427 -- 28, 431 -- 32, 434 -- 36). Plaintiff was ambulating up to six hours a day with just a cane, and Dr. Zimmerman believed that upticks in Plaintiff‟s pain were the result of increases in activity and her voluntary decrease in use of pain medication. (R. at 420 -- 23).

In November of 1995, Plaintiff began seeing Petra S. Nour, M.D. for continued treatment of her RSD. (R. at 373 -- 75). Plaintiff had maintained a regular schedule of physical therapy since her injury. (R. at 373 -- 75). Her condition had improved further with the initiation of Neurontin*fn3 therapy in July of 1995. (R. at 373 -- 75). Despite this success, Plaintiff complained that she still suffered persistent throbbing pain and intermittent sharp pain in her left foot. (R. at 373 -- 75). Dr. Nour administered lumbar epidural sympathetic blocks at Ellwood City Hospital to treat Plaintiff‟s pain in November of 1995. (R. at 370, 379, 380). The successive procedures gradually reduced Plaintiff‟s pain to a score of four on a pain scale of ten. (R. at 370, 379, 380).

Plaintiff was referred to Karen R. Rendt, M.D. by Dr. Zimmerman and Michael Wusylko, M.D. for treatment of her RSD. (R. at 391). The record shows that Plaintiff began visiting Dr. Rendt in March of 1995. (R. at 391). At this initial examination, Plaintiff was still engaging in physical therapy once per week. (R. at 391). Plaintiff claimed she had experienced only gradual and incomplete improvement through physical therapy. (R. at 392). Her left foot was still painful and continued to swell on a daily basis -- more so when she was on her feet. (R. at 392). At the time she was taking Salicylate,*fn4 to which she attributed significant relief of her RSD symptoms. (R. at 392). Dr. Rendt noted that Plaintiff‟s knees, hips, ankles, and right foot were unremarkable and exhibited a good range of motion. (R. at 394). Tenderness in Plaintiff‟s left foot was, however, palpable. (R. at 394).

While under Dr. Rendt‟s care, Plaintiff initially continued with her medications and physical therapy, as before. (R. at 390 -- 94). In light of the lack of an available desk job for Plaintiff at K-mart, she was determined to be unable to return to work during this period. (R. at 390). Her left foot typically exhibited varying degrees of sensitivity, but she was improving steadily until June of 1995. (R. at 388 -- 90). Plaintiff claimed at that time that the physical therapy was not improving her functionality, and was even worsening her RSD symptoms. (R. at 388). The following month, however, she reported a greater weight-bearing tolerance, the ability to walk more frequently without a cane, and significant pain relief from the use of a TENS unit*fn5at her home. (R. at 368). Plaintiff was also compliant with her medication regimen. (R. at 368). By October of 1995, Plaintiff reported, "miraculous," relief from her RSD symptoms as the result of recent Gabapentin therapy. (R. at 385). That, in conjunction with her use of Neurontin, had greatly improved Plaintiff‟s symptoms. (R. at 385).

By December of 1995, Plaintiff again complained that physical therapy was making her RSD symptoms worse, and she did not wish to continue with lumbar injections for relief of her pain because of alleged side-effects, and in spite of observed relief. (R. at 384). Dr. Rendt expressed frustration with Plaintiff‟s continued symptomology, and felt she had exhausted most therapeutic options. (R. at 384). A dorsal column stimulator ("DCS")*fn6 implantation appeared to be the next best option for ...


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