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Tina M. Wasiela v. Michael J. Astrue

June 11, 2012


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.



Tina M. Wasiela ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying her claims for disability insurance benefits ("DIB") and supplemental security income ("SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. and § 1381 et seq. Plaintiff filed her applications on February 16, 2007, alleging disability since January 1, 2000 due to fibromyalgia, chronic fatigue syndrome, diabetes, a back injury and depression (AR 119-123; 153).*fn1 Her applications were denied (AR 69-78), and following a hearing held on November 5, 2009 (AR 25-66), the administrative law judge ("ALJ") issued his decision denying benefits to Plaintiff on February 3, 2010 (AR 11-19). Her request for review by the Appeals Council was denied (AR 1-6), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). Plaintiff filed her complaint in this Court on May 20, 2011 challenging the ALJ's decision. Presently pending before the Court are the parties' cross-motions for summary judgment. For the following reasons, both motions will be denied and the matter will be remanded to the Commissioner for further proceedings.


Plaintiff was 47 years old on the date of the ALJ's decision and has a high school education (AR 18). She has past relevant work experience as a telephone assembler, flagger, school cleaner, bakery clerk, hotel cleaner and retail clerk (AR 154). Plaintiff reported that she stopped working full time on June 6, 2006 (AR 154).*fn2

Medical History

A. Physical impairments

1. Heritage Primary Care

Plaintiff was treated at Heritage Primary Care from June 2005 to September 9, 2009 (AR 319-323; 444-503; 521-561). Treatment records reveal that Plaintiff was seen for complaints of diabetes, depression, fibromyalgia, fatigue, thoracic back pain, and paresthesias in 2005 (AR 499-503). In 2006, Plaintiff was treated for low back pain and lumbar strain (AR 319-321). In 2007, Plaintiff was treated for strep throat, depression, attention deficit disorder, allergic rhinitis, diabetes, irritable bowel syndrome, periodic limb movement sleep disorder, and osteoarthritis (AR 476-498). Plaintiff was treated for diabetes, depression, back pain, shoulder pain, arthralgias, and sinusitis in 2008 (AR 444-475).

Plaintiff continued to receive treatment throughout 2009 (AR 521-561). On March 26, 2009, she complained of low back pain radiating to her left thigh (AR 547). Her chief complaint on March 26, 2009 was low back pain that began in 2004 after pulling a heavy garbage can (AR 547). On physical examination, Carl Eby, M.D., found tenderness on palpation of Plaintiff's lumbosacral spine and some spasms of the paraspinal muscles (AR 549). She had normal range of motion in her lumbosacral spine, her straight leg raising tests were negative, and her motor strength was normal (AR 549). She was assessed with, inter alia, lower back pain and prescribed medication (AR 550). On July 7, 2009, Dr. Eby reported that Plaintiff was doing "fairly well" with her back pain and her musculoskeletal examination was normal (AR 534; 538). On July 31, 2009, Plaintiff complained of body aches, weakness and fatigue (AR 531). She was assessed with arthralgias at multiple sites, fibromyalgia, and fatigue (AR 532). When seen by Dr. Eby on September 9, 2009, he found some tenderness on palpation of the Plaintiff's lumbosacral spine with some spasms of the paraspinal muscles (AR 526). Pain was elicited on motion, and her straight leg raise testing was positive on the left (AR 526). Dr. Eby noted that her lumbosacral spine exhibited a normal appearance and she had normal range of motion (AR 526). She was assessed with, inter alia, chronic lower back pain, and it was noted she was treating with neurology and pain management (AR 526).

2.Physical therapy

Plaintiff underwent physical therapy for her complaints of low back pain on three separate occasions (AR 211-251; 265-294; 404-423). Plaintiff's first course of physical therapy occurred from July 11, 2005 to September 30, 2005 at Keystone Rehabilitation Systems (AR 211-251). The discharge summary revealed that she progressed "slowly" in therapy and was able to return to work, but continued to experience pain (AR 211). Plaintiff participated in a second course of physical therapy from January 20, 2006 to March 24, 2006 at HealthSouth Rehabilitation Center of Erie (AR 265-294). On February 22, 2006, Plaintiff reported a forty percent overall improvement in her symptoms, but continued to report deep, burning pain (AR 279). Some L5 mobility was noted on physical examination, but her radicular symptoms had improved, her gait pattern had improved in speed, and her antalgic gait was less frequent (AR 279). Plaintiff attended physical therapy sessions at Waterford Physical Therapy from June 12, 2007 to January 24, 2008 (AR 404-423). The discharge summary revealed that Plaintiff "made very little progress" despite exercises, core stability training and intermittent lumbar traction (AR 423). It was noted that "after extensive physical therapy intervention," Plaintiff expressed an interest in self-managing her symptoms (AR 423). Plaintiff's long term goals were not met and she was "strongly advised" to consult with a neurosurgeon (AR 423).

3.Diagnostic studies

A lumbar MRI dated March 5, 2005 was negative (AR 264). X-rays taken on July 5, 2005 revealed moderate degenerative disc disease of the thoracic spine, and mild anterior lipping and spurring due to degenerative joint disease of the lumbar spine at the L1 and L2 level (AR 258). An EMG study in February 2006 revealed lumbar radiculopathy (AR 343). Bilateral hip x-rays dated May 15, 2006 were normal (AR 342). A CT scan of the Plaintiff's lumbar spine dated October 23, 2006 was negative (AR 309-310). A lumbar MRI dated October 31, 2006 showed very mild spondylosis at the L4-L5 level, but was otherwise unremarkable (AR 323).

A lumbar MRI dated October 26, 2007, revealed a right-sided protruding disc at the L2-L3 level with moderate lateral recess stenosis and possible L2-L3 nerve root impingement (AR 393). On March 6, 2008, a CT scan showed a mild bulge at the L4-L5 level, and a lateral bulge at the L2-L3 level, with protrusion into the inferior aspect of the neural foramen with mild indentation upon the thecal sac (AR 395-396). There was also some evidence of abutement of the existing nerve root at the L2 level (AR 395-396). An EMG in June 2008 showed mild chronic left L3 radiculopathy with paraspinal denervation (AR 394).

4.Theresa Wheeling, M.D.

Plaintiff received treatment from Theresa Wheeling, M.D., a physiatrist, from January 16, 2006 to January 9, 2008 (AR 332-343; 363-368). On January 16, 2006, Plaintiff reported suffering a work related injury in October 2004 to her lower thoracic/upper lumbar area (AR 339). Dr. Wheeling reviewed Plaintiff's diagnostic studies, and found no evidence of disc disease, noting that the integrity of her discs "look[ed] quite nice" (AR 339). There was very minimal bulge and very mild facet arthropathy on cross sections at the L5-S1 level (AR 339). She diagnosed Plaintiff with thoracic pain and lumbosacral pain (AR 340). She opined that Plaintiff had sacroiliac joint dysfunction and piriformis syndrome,*fn3 and some thoracic myofascial pain, but no discogenic pain (AR 341). She recommended therapy and medication at bedtime (AR 341).

On March 8, 2006, Plaintiff reported that oral steroids had completely eliminated her symptoms (AR 338), and on April 11, 2006, it was noted that lumbar traction and electrical stimulation had been added to her treatment regimen (AR 336). Plaintiff reported that although she had good and bad days, overall her condition had improved (AR 336). On May 15, 2006, Plaintiff's reflexes continued to remain intact and she had no distal weakness (AR 335). On August 1, 2006, Plaintiff reported that she had resigned from her job but was feeling better and her pain was "more tolerable" (AR 337). On November 22, 2006, Dr. Wheeling noted that Plaintiff was managing independently with her TENS unit and independent exercise, and was undergoing injection therapy (AR 333). Plaintiff reported an exacerbation of her back pain that caused her to seek emergency room treatment (AR 303-308; 312-318). On physical examination, Dr. Wheeling found she was markedly positive for sacroiliac joint and piriformis dysfunction (AR 333).

When seen by Dr. Wheeling on February 21, 2007, she reported she had purchased a treadmill and had lost ten pounds (AR 332). On physical examination, Dr. Wheeling found her reflexes and strength were intact, but she noted that Plaintiff had "incredibly limited" range of motion in her right hip with flexion abduction and external rotation (AR 332). She was continued on medication and the TENS unit (AR 332). On June 7, 2007, Plaintiff complained of left leg pain resulting from chiropractic treatment (AR 368). Physical examination revealed tightness in her left sided hamstrings and pain when attempting straight leg raise testing (AR 368). Dr. Wheeling suspected either "new" acute left L5/S1 radiculopathy with resultant tightening in the hamstrings, or a "pure" hamstring injury (AR 368). She was prescribed a course of steroids and physical therapy (AR 368).

On September 5, 2007, Dr. Wheeling reported that Plaintiff had been doing very well with physical therapy, medication and injection therapy (AR 367). Physical examination revealed that Plaintiff's hamstrings were markedly improved, and her hip range of motion had improved (AR 367). Dr. Wheeling added lumbar traction to her regimen, noting it had "helped nicely in the past" (AR 367). On October 25, 2007, Dr. Wheeling noted that Plaintiff presented with acute left L5-S1 radiculopathy, but that a recent epidural injection had resulted in "nice pain relief" (AR 366). On October 31, 2007, Dr. Wheeling noted that Plaintiff's lumbar MRI showed a significant bulging disc at the L2-3 level (AR 365).

On January 9, 2008, Dr. Wheeling recommended that Plaintiff see a pain management specialist prior to any surgical evaluation (AR 364). On physical examination, Dr. Wheeler found no weakness in L-2 or L-3 distribution, her reflexes were intact, and she noted that all of Plaintiff's symptoms were in the L-5 distribution (AR 364). She recommended Plaintiff undergo an epidural injection and take the previously prescribed Lyrica twice a day (AR 364).

5.Jithendrai Rai, M.D.

Plaintiff was treated by Jithendrai Rai, M.D., a pain management specialist at Erie Spine and Pain Management from July 21, 2006 to September 18, 2009 upon referral by Dr. Wheeling (AR 369-386; 569-573). Dr. Rai administered right sacroiliac joint injections on July 21, 2006, September 13, 2006, and November 13, 2006 (AR 384-386). On June 27, 2007, he administered both right and left sacroiliac joint injections (AR 383). On July 30, 2007, Dr. Rai noted that Plaintiff had "significant" radicular symptoms down her right lower extremity for which injection therapy provided significant relief (AR 382). Plaintiff reported a gradual recurrence of pain, aggravated by standing (AR 382). On physical examination, Dr. Rai noted tenderness to punch palpation of bilateral sciatic notches, a mild restriction in range of motion and flexion of the lumbosacral spine, and straight leg raise testing was nonconclusive bilaterally (AR 382). Dr. Rai found that Plaintiff's radicular symptoms were recurring, but were not "quite as bad" (AR 382). Plaintiff received a lumbar epidural injection on September 20, 2007 (AR 381).

On October 22, 2007, Plaintiff reported increasing numbness in her left thigh and burning discomfort in her feet (AR 380). Physical examination revealed very mild tenderness over the bilateral SI joints, range of motion of the lumbosacral spine was normal, and straight leg raise testing was negative (AR 380). Dr. Rai formed an impression that Plaintiff had meralgia paresthetica*fn4 affecting her left thigh, ...

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