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Minichino v. Colvin

United States District Court, M.D. Pennsylvania

June 28, 2013


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[Copyrighted Material Omitted]

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For Alissa Minichino, Plaintiff: Katherine L. Niven, LEAD ATTORNEY, Law Office of Katherine L. Niven & Associates, PC, Harrisburg, PA.

For Commissioner Michael J. Astrue, Defendant: Mark E. Morrison, U.S. Attorney's office - Social Security, Harrisburg, PA.


RICHARD P. CONABOY, United States District Judge.

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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.) For the reasons discussed below, we conclude remand to the Commissioner is required.

I. Background

A. Procedural Background

Plaintiff applied protectively for DIB and SSI on May 29, 2008, alleging disability since March 26, 2008. (R. 204, 208.) Plaintiff listed her illnesses, injuries, or conditions that limited her ability to work as " back problems and shorter leg, broken arms with numerous surgeries." (R. 237.) She stated that these things affect her ability to work in that she is unable to carry or lift things, unable to sit or stand for too long and has a " [h]ard time walking, bad limp." (R. 237.) Plaintiff's claims were initially denied on May 13, 2009, because it was determined she was not disabled under Social Security rules. (R. at 96, 102.) Plaintiff requested a hearing before an administrative law judge (" ALJ" ) (R. 120), and a hearing was held before ALJ Daniel Myers on June 9, 2010 (R. 40). Plaintiff, who was represented by counsel, appeared and testified at the hearing. (R. 40-67.) The ALJ found Plaintiff was not disabled under the Act and denied her application. (R. 18-33.) A timely appeal was taken to the Appeals Council, and on February 17, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the decision of the Commissioner. (R. 1.)

On April 4, 2012, Plaintiff filed a Complaint with this Court objecting to the Commissioner's final decision and requesting an award of benefits or remand to the Commissioner. (Doc. 1.) Defendant filed an answer on June 5, 2012. (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 July 18, 2012. (Doc. 9.) Plaintiff identifies three errors: 1) the ALJ did not comply with Social Security Ruling (" SSR" ) 00-4p, in that he failed to resolve a conflict between the vocational expert's (" VE" ) testimony and the Dictionary of Occupational Titles (" DOT" ); 2) the ALJ improperly relied on the VE's testimony because that testimony was inaccurate and incredible; and 3) the ALJ failed to give a good reason for rejecting the opinion of Dr. VanGeisen who concluded that Plaintiff was able to sit for four hours per day and stand/walk for an hour or less over the course of an eight-hour workday. (Doc. 9 at 4.)

Defendant filed her brief on August 17, 2012. (Doc. 10.) Defendant maintains Plaintiff's asserted errors are without merit. ( Id. )

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Plaintiff filed a reply brief on August 22, 2012. (Doc. 11.) With this filing, Plaintiff again asserts the previosly identified errors (elaborating on some) and concludes there are multiple harmful defects in the ALJ's decision. ( Id.)

B. Factual Background

Plaintiff was born in November 30, 1961, and was forty-eight years old when the Decision was issued. (R. 15, 396.) The highest grade she completed was tenth grade. (R. 44.) Plaintiff left school after being hit by a car and suffering a fractured pelvis and broken femur. (R. 51.) She had no additional education or training after she left high school. (R. 57.) Plaintiff has prior work experience as a school bus driver and dump truck operator. (R. 278.) She last worked as a dump truck driver and spent several weeks out of work following a cervical discectomy and fusion on February 12, 2009. (R. 62, 1084.)

Given Plaintiff's lengthy medical history and voluminous medical records ( see R. 288-1323), our recitation of Plaintiff's impairment related background focuses on her identified impairments from the claimed date of onset, March 26, 2008 (R. 204, 208).

1. Shorter Leg Impairment

The shorter leg impairment noted by Plaintiff (R. 237) is a result of the broken pelvis and femur which she sustained in the car accident while she was in high school. (R. 52.) At the ALJ hearing, Plaintiff's attorney asked Plaintiff whether " there is anything residual, any kind of pain or anything." (R. 52.) Plaintiff responded " [w]hen the weather's been - yeah, just in my lower back and my pelvic bones mainly." (R. 52.) She added that it was numb where the scar is located and, as she grew older, she started having back pain." ( Id. )

2. Back Problems

Plaintiff's " back problems" (R. 237) have resulted in " a long history of chronic neck pain and chronic low back pain with pain extending into her legs." (Doc. 9 at 5 (citing R. 960, 977, 1016, 1022-23).) Plaintiff alleges documented degenerative disc disease with radiculopathy in both cervical and lumbar spine. (Doc. 9 at 5 (citing R. 1078, 1280).)

a. Lower Back Pain and Treatment

Evidence cited relates to the alleged disability time frame beginning with a York Memorial Hospital Outpatient Emergency Department Record on March 8, 2008, when Plaintiff presented with left lower back pain with radiation to her left gluteal and posterior thigh regions. (R. 1022.) Plaintiff reported she had been moving some heavy boxes a week before her hospital visit and experienced some mild discomfort which resolved. (R. 1022.) She had again done some " mild moving of similar objects" which resulted in the presenting symptoms. ( Id. ) The report also states that Plaintiff has a history of degenerative disc disease, a condition treated by Dr. Nachtigall. [2] ( Id. ) She had been using Tylenol arthritis medication with minimal relief. ( Id. ) She stated that heat helped to resolve the symptoms. ( Id. ) The " Treatment" portion of the report is blank. (R. 1023.) " Clinical Impression" indicates lumbar radiculopathy and sciatica. ( Id. )

On March 10, 2008, Plaintiff saw Asit P. Upadhyay, D.O., at York Rehab & Pain

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Consultants, Inc. (R. 570.) Dr. Upadhyay treated Plaintiff with injections and prescribed high dose steroids and Dilaudid for more severe pain. ( Id. ) Plaintiff continued to receive lumbar spine injections from Dr. Upadhyay, at least through February 2010. (Doc. 10 at 2-3 (citing R. 552-71, 751-91, 949-1000, 1135-1250).) On March 31, 2008, Plaintiff saw Dr. Upadhyay for follow-up evaluation of back pain. (R. 781.) She reported an " aching stabbing sensation" and also reported that previous injections significantly reduced pain. ( Id. )

On March 13, 2008, Plaintiff saw Dr. Nachtigall. (R. 659.) He reported acute exacerbation over the past week, severe pain, positive straight leg raising. ( Id. ) He offered her Percoset for the pain. ( Id. ) Plaintiff's treatment plan included Vicodin for pain, an MRI and x-rays for further evaluation, and physical therapy for assessment and assistance with ambulation and a back exercise program. ( Id. )

On March 14, 2008, Plaintiff returned to the hospital reporting the acute onset of pain had occurred one week previously after moving some boxes. (R. 414.) The pain had not been relieved with an epidural injection or narcotic medications so Dr. Nachtigall admitted her to the hospital for pain control and further evaluation. ( Id. )

On April 1, 2008, Dr. Nachtigall reported that the epidural cortisone injection resulted in improvement of her left leg symptomology and her MRI study revealed a bulging disc. (R. 653.) He offered Plaintiff prescriptions for Vicoden and Soma and also encouraged walking for back strengthening. ( Id. )

On June 24, 2008, Dr. Nachtigall's notes referred to the acute exacerbation of Plaintiff's low back problem (which occurred after lifting an air conditioner) and stated that the MRI study of March 17, 2008, showed no evidence that surgical intervention was required. (R. 652.)

On June 25, 2009, Dr. Upadhyay documented that Plaintiff described her pain " as an aching constant pain, a 6 on average, better with heat, worse with cold." (R. 960.) He reported she was " doing well on her current medications on NSAID combined with anti-inflammatories and muscle relaxers." ( Id. )

b. Cervical Spine Pain and Shoulder Injury

Following a fall which occurred on December 27, 2008, Plaintiff was seen by Orthopaidic & Spine Specialists, P.C., on December 29, 2008, and diagnosed with a greater tuberosity fracture with minimal displacement. (R. 1075.) The report states Plaintiff was employed as a truck driver at the time. ( Id. )

At her two-week follow-up appointment, Plaintiff was seen by Michael J. Moritz, M.D. (R. 1077.) Dr. Moritz noted the tuberosity fracture was healing well and also noted " [p]ossible cervical radiculopathy, affecting right arm." (R. 1077.) On January 26, 2009, Dr. Moritz again saw Plaintiff who complained of persisting left hand numbness with pain radiating down her arm. (R. 1078.) Following x-rays of the cervical spine, Dr. Moritz diagnosed cervical disc degeneration and cervical radiculopathy, left arm. ( Id. ) Plaintiff was given a soft collar and recommended moist heat. ( Id. ) She requested narcotics, but the strongest pain medication Dr. Moritz would prescribe was Darvocet. ( Id. ) He also ordered an MRI of the spine to determine the severity of the disc problem in her neck. ( Id. )

On February 2, 2009, Dr. Moritz saw Plaintiff for follow-up of her cervical MRI. (R. 1082.) Finding that the MRI showed significant disc problems, he determined referral to a cervical surgeon to be appropriate. ( Id. )

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On February 3, 2009, Plaintiff was seen by Kamran Majid, M.D., who noted historically that Plaintiff had neck pain for one year and did not recall an injury. (R. 1080.) He also noted that Plaintiff was laid off at the time. ( Id. ) Diagnostic studies revealed Plaintiff had " C5-6 spondylosis with a moderate amount of cord compression and a left-sided disk herniation." (R. 1081.) Dr. Majid discussed nonoperative and operative management with Plaintiff. ( Id. ) Plaintiff chose operative intervention. ( Id. )

Dr. Majid performed a cervical discectomy and fusion on February 12, 2009, to treat her cervical spondylosis. (R. 1084-85.) At her February 20, 2009, follow-up appointment, Plaintiff reported some numbness on the left side of her neck and continued right shoulder pain but her hand symptoms had resolved. (R. 1083.)

At her next appointment on March 10, 2009, Dr. Majid treated Plaintiff's continuing shoulder pain with an injection, lifted her restrictions, allowed her to drive, prescribed physical therapy, and gave her prescriptions for Soma and Percocet. (R. 1089.)

On March 27, 2009, Plaintiff's chief complaint was right shoulder pain. (R. 1090.) She reported no improvement following the injection during her previous visit. ( Id. ) Dr. Majid further noted that Plaintiff " is also taking Vicodin and taking muscle relaxants for pain. She reports that she is not real interested to return to work yet and that she has not recovered 100%." ( Id. ) Dr. Magid decided to request an evaluation and treatment by a sports specialist at Orthopaedic and Spine Specialists, PC, regarding her right shoulder pain. ( Id. ) He also requested the involvement of a chronic pain specialist. ( Id. )

She is currently taking narcotic medications and does not wish to wean off them. I am requesting an evaluation and treatment by a chronic pain specialist because I feel the patient may require long-term narcotic medications due to dependence. I will see the patient again at 6 weeks. At that time I will advise her that she should make arrangements to return to work; however, she does not wish to work right now. At 6 weeks I will have to send her back to work; otherwise, long-term disability will have to be worked out with her family physician.

(R. 1090.)

On March 30, 2009, Dr. Moritz saw Plaintiff for a follow-up regarding her right shoulder. (R. 1091.) He noted that her x-rays looked excellent. ( Id. ) He stated that an MRI would be appropriate " to make sure the cuff is okay before saying everything is ok." ( Id. ) Dr. Moritz added " [w]e did give her another prescription for Percocet #20. She said the Vicodin made her sick. I think she does have a dependency problem, and she is made aware of that." ( Id. ) Dr. Moritz concluded his report by stating that " [t]he patient may return to full duties at work on 4/6/09." (R. 1092.)

Dr. Moritz again saw Plaintiff on April 9, 2009, for a follow-up on the MRI study of her right shoulder which was done on April 6, 2009. (R. 919, 1093.) The MRI showed impingement which was not severe. (R. 1093.) Dr. Moritz injected the shoulder with Depo-Medrol and Xylocaine. ( Id. ) He told Plaintiff he did not need to see her again unless she had continued trouble. ( Id. ) He advised her to follow up with Dr. Majid for her neck. ( Id. ) Under " Work Status," Dr. Moritz noted that Plaintiff is working. (R. 1094.)

At Plaintiff's April 24, 2009, appointment, in the history portion of the record Dr. Moritz noted that Plaintiff was still in the postop period for her neck and Dr.

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Majid was at a loss to do much else for Plaintiff. (R. 879.) He further noted that he thought Plaintiff had an addictive personality and that she was addicted to narcotics at the time--he discussed this openly with Plaintiff. ( Id. ) Dr. Moritz added

[s]he has had significant psychological trauma, including death of a child and her husband. I think the realities are this is a significant situation for her. We may not ever help her completely but I think at this point, we should not deny her surgery if we think it could help her.

(R. 879.) Dr. Moritz opined that her right shoulder problems all started with the December 2008 tuberosity fracture and she did well with that healing but, based on the MRI, he thought " she probably has a little small tear and a degeneration of the insertion with impingement." (R. 879.) Noting Plaintiff's symptoms were " all when she reaches out to the side," he added that she reported a component of pain with rest. ( Id. ) Dr. Moritz felt an arthroscopic evaluation and decompression would be appropriate with the biggest concern being difficulty with rest pain postop. ( Id. ) Dr. Moritz further noted that if her neck is an issue, it would give her trouble in the postop period. ( Id. )

On May 6, 2009, Dr. Moritz performed arthroscopy of Plaintiff's right shoulder with debridement, acromioplasty and acromioclavicular joint resection with no complications. (R. 1099.)

On June 3, 2009, Plaintiff saw Dr. Moritz for a follow-up visit. (R. 1065.) He found Plaintiff was doing " quite well" in relation to her shoulder, stating " [w]e are really finished as far as our activities." ( Id. ) He noted the mild discomfort she was experiencing was most likely referred from the neck. ( Id. ) The clinical exam showed the following: full range of motion; no weakness detected; bicep, tricep and abduction normal; and normal grip strength. ( Id. ) Dr. Moritz encouraged active use and normal activity. ( Id. ) The " Work Status" portion of the report noted that Plaintiff was on temporary disability and could return to work on July 4, 2009, " full duties." ( Id. )

3. Broken Arms

Plaintiff's reported " broken arms with numerous surgeries" (R. 237) relate to both arms having been broken and numerous surgeries on her left arm. (Doc. 9 at 5 (citing R. 674, 1003, 1008).) Plaintiff reports the bone did not heal correctly so it had to be broken again. (R. 54.) Dr. Nachtigall performed the surgery on January 24, 2007. (R. 674.) While the left arm was in a cast, she fell and broke her right arm. (R. 54.) Plaintiff also reports that both arms ache when the weather is cold and rainy. (R. 54.)

4. Other Impairments of Record

Though not noted in the disability form filled out by Plaintiff (R. 237), Plaintiff identifies Hepatitis B and C and severe depression with suicide attempts ...

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