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Michelle Watkins v. Carolyn W. Colvin

May 8, 2013

MICHELLE WATKINS, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Judge Conaboy

Magistrate Judge Carlson

MEMORANDUM

Here we consider an appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433, 1381-1383f. (Doc. 1.) The matter was referred to Magistrate Judge Martin C. Carlson who issued a Report and Recommendation on March 21, 2013, recommending the Commissioner's decision be upheld. (Doc. 15 at 29.) For the reasons discussed below, we conclude this matter is properly remanded to the Commissioner for further consideration.

I. Background

A. Procedural Background

Plaintiff applied protectively for DIB and SSI on July 2, 2008. (R. 51, 155-70.) She reported that she had become disabled within the meaning of the Act on December 1, 2005. (R. 165.) Plaintiff listed her impairments as "[s]everal herniated disks, arthritis, fibromyalgia, depression." (R. 156.) In a Notice of Disapproved Claim, the Social Security Administration stated Plaintiff did not qualify for benefits because she was not disabled under applicable rules. (R. 94.) Plaintiff requested a hearing before an administrative law judge ("ALJ") (R. 116), and a hearing was held before ALJ David A. Gerard on January 25, 2010 (R. 64). Plaintiff, who was represented by counsel, appeared and testified at the hearing. (R. 64-86.) The ALJ found Plaintiff was not disabled under the Act and denied her application. (R. 51-58.) A timely appeal was taken to the Appeals Council, and on July 21, 2011, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the decision of the Commissioner. (R. 1.)

On November 6, 2011, Plaintiff filed a Complaint with this Court objecting to the Commissioner's final decision and requesting remand to the Commissioner. (Doc. 1.) Defendant filed an answer on November 4, 2011. (Doc. 7.) Pursuant to Local Rules 83.40.4 and 83.40.5 Plaintiff filed her brief in support of her appeal of the denial of her claim on December 29, 2011 (Doc. 11) and Defendant filed her brief on February 1, 2012 (Doc. 12). Plaintiff filed a reply brief on February 10, 2012. (Doc. 13.) As noted above, the matter was referred to Magistrate Judge Martin C. Carlson who issued a Report and Recommendation on March 21, 2013, recommending the Commissioner's decision be upheld. (Doc. 15 at 29.) Plaintiff filed objections to the Report and Recommendation on April 1, 2013. (Doc. 16.) Defendant filed a response to the objections on April 11, 2013. (Doc. 17.) Plaintiff has not filed a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.

B. Factual Background

Plaintiff was born in July 28, 1971. (R. 169.) She graduated from high school, attended two years of college, and had training in medical transcription. (R. 189.) Her work background included jobs as a cleaner, kindergarten teacher, chiropractic assistant, data entry operator, office assistant, and secretary. (R. 185.) The job she had the longest was that of kindergarten teacher, a position she held from August of 1994 to May of 2001. (R. 185.) Her work record reflected consistent earnings from 1990 through the year she became disabled with the exception of 2002. (R. 172-179.)

As noted above, the impairments listed in Plaintiff's application were "[s]everal herniated disks, arthritis, fibromyalgia, depression." (R. 156.) She also alleges that she suffered from a chronic abdominal pain disorder following multiple abdominal surgeries. (Doc. 11 at 2.)

1. Chronic Abdominal Pain*fn2

Plaintiff states that her chronic abdominal pain began after surgery for an ovarian cyst in 2005. (Id. (citing R. 261, 273).) Plaintiff had surgery in March 2006 for endometriosis, but she states this did not relieve her pain. (Id. at 3 (citing R. 312-16, 326-50, 353-56).) Plaintiff required hospital admission in February 2007 due to pelvic pain. (Doc. 11 at 3 (citing R. 365-68).) After reporting worsening pelvic pain to her physicians in April 2008, Plaintiff received additional evaluation and treatment and eventually saw Diana Wallace, M.D., in September of 2008. (Doc. 11 at 3 (citing R. 217-20, 232-33, 238-39, 241, 243, 247, 261, 264).)

Dr. Wallace performed a laparoscopy on September 18, 2008, and reported a postoperative diagnosis of extensive abdominopelvic adhesions. (R. 262.) At a September 24, 2008, visit, Dr. Wallace noted Plaintiff was doing well but, though improved, she still had left lower quadrant ("LLQ") pain. (R. 259.) Dr. Wallace further noted that this is the area where the largest cone of adhesions was located. (Id.) Plaintiff asked about a plan if the pelvic pain continued. (Id.) Dr. Wallace noted she would consider three possibilities: surgical referral, GI referral, and chronic (pelvic) pain clinic referral. (Id.)

On September 30, 2008, Plaintiff reported to Dr. Wallace that she was "in great pain," mostly in the LLQ. (R. 259.) Dr. Wallace noted that Plaintiff said she was taking oxycontin and motrin, neither of which Dr. Wallce had prescribed). (Id.) Based on Plaintiff's reports, Dr. Wallace noted that she was inclined to refer Plaintiff to the pain clinic for chronic pain management. (Id.) Dr. Wallace further noted that Plaintiff's pain might be due to the adhesive disease she had, but other causes should be explored. (Id.)

Thomas Celello, M.D., conducted a consultative examination on November 7, 2008.*fn3 (R. 273.) In his physical examination of Plaintiff's abdomen, he noted there was tenderness on palpation along the course of the left colon with no masses or organomegaly detected, and active bowel sounds. (R. 275.) His assessment included a finding of "[c]hronic abdominal pain. Full etiology has yet to be elucidated." (Id.)

On January 4, 2010, Douglas Brenneman, D.O., Plaintiff's treating physician, reported that subjectively Plaintiff "presents with c/o Abdominal pain Cont with abdominal pain on the left side that is severe with activity. Lying down seems to help symptoms."

(R. 381.) Objectively, he summarized his examination of the abdomen: "soft, non-distended, bowel sounds present, tender LLZ, no rebound, no guarding, no rigidity." (R. 381.)

In his analysis of Plaintiff's abdominal pain, the ALJ notes that "claimant presents with very limited medical findings." (R.

55.) Acknowledging that Plaintiff "eventually underwent laparoscopy and hysterectomy for her pain," specific evidence of record cited is a 2007 colonoscopy which was normal, 2008 hip and pelvic x-rays which were normal "with no signs of pelvic masses despite the claimant's ongoing complaints of pelvic pain," and an April 2008 examination where it was recorded that "she was noted to be in no acute distress and was told that her pain was of a questionable etiology. (R. 55 (citing Exhibits 1F and 11F).) The ALJ also, without citation, refers to an August 2008 report showing that "the claimant's CT angiogram and ultrasound of the abdomen were completely unremarkable, and that she had no edema of her lower extremities and a soft, obese abdomen with tenderness focally in the left lower quadrant to palpation with positive bowel sounds." (R. 55.) The ALJ cites Dr. Celello's November 2008 findings. (R. 55 (citing Ex. 6F).) He also cites Dr. Brenneman's January 4, 2010, progress note which shows that the claimant presented with ongoing abdominal pain on the left side but denied change in bowel habits, diarrhea, nausea, rectal bleeding, vomiting or weight loss, had no rebound, guarding or rigidity of the abdomen despite complaints of tenderness, normal extremity range of motion with no edema, and that her abdominal pain continued to be of an unknown etiology.

(R. 55 (citing Ex. 13F (R. 381)).)

2. Fibromyalgia

Plaintiff identifies fibromyalgia as an additional physical impairment. (Doc. 11 at 4 (citing R. 231, 238, 261, 275, 282, 312, 363, 365).) Most of these citations refer to fibromyalgia as a "past medical history" condition and many include it in the "assessment" portion of the report or treatment notes. (See, e.g., R. 238, 275.) In his November 7, 2008, consultative examination, Dr. Celello reports that "Ms. Watkins states that she was diagnosed as having fibromyalgia four to five years ago when she had complaints of diffuse joint pain and fatigue." (R. 274.) The Physical Residual Functional Capacity Assessment lists history of fibromyalgia as an alleged impairment and states that "[t]he medical evidence establishes medically determinable impairments of Chronic Abdominal Pain, Chronic Back Pain Lumbar DDD, h/o Fibromyalgia, Obesity." (R. 282.)

Plaintiff testified her physician at the time, Lance Sweeney, had performed the trigger point assessments but she could not remember how many active trigger points she had. (R. 77.) She stated "I know it's in the back of my neck and my lower back, and my legs and my knees. . . . And my arms. . . . Well I have all over joint pain." (R. 77.) She testified that Dr. Brenneman (Douglas Brenneman, D.O.) was treating her for the condition and that he was treating her with ibuprofen because she does not have insurance to cover other medicine offered. (R. 77-78.)

Defendant merely mentions the impairment and associates it with the chronic pain/joint pain discussed by the ALJ. (See Doc. 12 at 9; Doc. 17 at 2-3.)

The ALJ found Plaintiff to have the severe impairment of "chronic pain disorder" and noted that Plaintiff testified that "she has constant joint and back pain." (R. 54.) No specific citations accompany these statements.

3. Degenerative Spine Disease

Plaintiff identifies degenerative spine disease as an additional physical impairment. (Doc. 11 at 4.) On April 29, 2008, Plaintiff was seen at the York Hospital Orthopedic Clinic for left hip and groin pain. (R. 247.) Plaintiff reported she had problems with her back in the past for which she received physical therapy. (Id.) Objectively, Plaintiff was found to be a pleasant 36-year-old female, no acute distress, sitting comfortably in a chair.

Abdomen - she is obese. Musculoskeletal -she has full range of motion with flexion and extension as well as internal and external rotation in the hip. She has no tenderness with palpation over the groin or any specific area over the hip. Trochanteric bursa is not painful. She has no deformities noted.

Hip x-ray shows no acute pathology and review of the spinal x-ray from September shows she does have some degenerative joint disease in the spine. (R. 247.) The Assessment states that the left hip and groin pain was likely referred pain from some degenerative changes in her back. (Id.)

The "plan" for treatment included consultation with a physical therapist for strengthening exercises and referral to the pain clinic for consideration for epidural injections ...


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