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McGinnis v. Commissioner of Social Security

United States District Court, Third Circuit

December 18, 2013

DONNA R. McGINNIS, Plaintiff,


MARK R. HORNAK, District Judge.

Donna R. McGinnis ("Plaintiff') brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), 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. 6, 8). The record has been developed at the administrative level. For the reasons which follow, Plaintiffs Motion for Summary Judgment will be GRANTED in part and DENIED in part. Defendant's Motion for Summary Judgment will be DENIED. The decision of the Commissioner is VACATED, and the matter REMANDED to the Commissioner for further proceedings not inconsistent with this Opinion.


Plaintiff applied for DIB on July 15, 2009, claiming a disability onset of March 18, 2009. (R. at 105-110, 115).[1] Plaintiff was initially denied benefits on September 8, 2009. (R. at 77-81). A hearing before Administrative Law Judge ("ALJ") Lamar W. Davis was held on December 9, 2010, and Plaintiff testified, represented by an attorney, Karl E. Osterhout. (R. at 38-67). A vocational expert was present testified. (R. at 38-67). The ALJ issued his decision denying benefits to Plaintiff on March 3, 2011. (R. at 8-21). Plaintiff filed a Request for Review of Hearing Decision with the Appeals Council, which was denied on April 25, 2011, thereby making the ALl's decision the final decision of the Commissioner. (R. at 1-5).

Plaintiff filed her Complaint in this Court on September 26, 2012. (ECF No.1). Defendant filed an Answer on January 8, 2013. (ECF No.3). Cross motions for summary judgment followed. (ECF Nos. 6, 8). The matter has been fully briefed, (ECF Nos. 7, 9, 10), and is ripe for disposition.


A. General Background

Plaintiff was born on May 29, 1961, was forty-seven years of age at the time of her application for benefits, and was forty-nine years and nine months of age at the time of the ALJ's decision. (R. at 21, 41). Plaintiff graduated from high school. (R. at 42). From 1986 through 2009, Plaintiff worked for the U.S. Postal Service. (R. at 42-43). Initially, she worked as a letter carrier and subsequently held two different supervisory positions, until she was terminated due to problems with her knees. (R. at 42-43, 46). At the time of the hearing, Plaintiff was married and had four children. (R. at 108, 183).

B. Physical Health History

On February 5, 2008, Plaintiff treated with Niveditha Mohan, M.D., at the UPMC Arthritis and Autoimmunity Center, reporting pain in her knees and hips. (R. at 161). Dr. Mohan diagnosed Plaintiff with "Bursitis NEC" and "Osteoarthros NOS-LlLeg, " and recorded that Plaintiff had "significant lateral instability of both knees" and "also had significant tenderness to palpation over the left trochanteric bursa." (R. at 161-162). Dr. Mohan noted that Plaintiff had not been taking her Flexeril medication and had been doing her quad-strengthening exercises "intermittently." (R. at 161). Dr. Mohan advised Plaintiff to continue her quad-strengthening exercises, lose weight, find a way to do water aerobics, and take her Flexeril medication. (R. at 162). On June 17, 2008, Dr. Mohan examined Plaintiff and noted that Plaintiff was still experiencing pain and her sleep had improved "minimally." (R. at 166). Although Plaintiff was regularly taking Flexeril and doing her quad-strengthening exercises, her knee pain had progressed, which limited her activities. (R. at 166). Plaintiff was "very tearful during the visit and kept insisting on getting her knees replaced." (R. at 166). She reported that she could not work forty hours per week and could only work thirty-two hours per week. (R. at 166). Dr. Mohan diagnosed Plaintiff with the same conditions and advised her to follow the same instructions that she received at her last visit, adding that she should reduce her hours at work to thirty-two hours per week "when her pain is worse or flaring." (R. at 166-167).

On July 3, 2008, Adolph 1. Yates, M.D., reviewed an MRI with Plaintiff and recommended that she get an opinion from spine physiatrist Marc J. Adelsheimer, M.D. (R. at 172). On July 14, 2008, Dr. Adelsheimer examined Plaintiff for a Rehabilitation and Pain evaluation. (R. at 182). Plaintiff complained of low back and bilateral knee pain and Dr. Adelsheimer diagnosed Plaintiff with having "degenerative arthritis of the knees" and an "annular tear, L4-5 disc, with questionable radicular symptoms." (R. at 182-183). Plaintiff reported that she was employed by the U.S. Post Office but was not currently working, and said she exercised and did some leg lifts. (R. at 182-183). Dr. Adelsheimer scheduled Plaintiff for a series of "bilateral L4 transforaminal epidural steroid injections." (R. at 178, 180, 183). Plaintiff reported there were no side effects from the first series of injections, which she said "helped her a lot" and made her feel "about 65-70% better." (R. at 180). On August 26, 2008, Plaintiff met with Dr. Adelsheimer following her second series of injections, and reported that she had no side effects, was "very pleased, " felt "100% better and [was] pain free." (R. at 178). Dr. Adelsheimer gave Plaintiff permission to stop taking Flexeril, which she had been using occasionally. (R. at 178).

On September 5, 2008, Plaintiff was examined by chiropractor Philip J. Olverd, D.C., R.D. (R. at 197). Dr. Olverd opined that Plaintiff could not return to work until further notice. (R. at 197). Plaintiff underwent physical therapy at Dr. Olverd's facility, Spine & Sports Injury Rehabilitation Center, from September 2008 through August 2009. (R. at 203-256). In 2008, Plaintiff attended ten (10) physical therapy sessions in September, twelve (12) sessions in October, and one (1) session in November. (R. at 207-211, 232-256). In 2009, Plaintiff attended two (2) physical therapy sessions in February, two (2) sessions in March, four (4) sessions in April, two (2) sessions in May, four (4) sessions in June, and two (2) sessions in August. (R. at 216-231). Plaintiff's reported level of pain varied throughout the duration of her physical therapy treatment. During many of these sessions, Plaintiff reported that she was feeling "achy" and sore, but during several other sessions, Plaintiff reported her knees and legs were feeling good and felt like she was making progress. (R. at 216-256). On February 14, 2009, Dr. Olverd released Plaintiff to return to work. (R. at 202). On March 17, 2009, Plaintiff was terminated from her job[2]and alleged onset of disability the following day, but at her next physical therapy session on March 30, 2009, she reported that she had been working full-time since February 14, 2009. (R. at 46, 115, 118, 228).

On May 6, 2009, Dr. Yates examined Plaintiff for a follow-up visit and gave her a Derpo-Medrol injection in her right knee, which Plaintiff later reported "didn't really do anything." (R. at 170, 223). Dr. Yates' notes provide that Plaintiff "had a great deal of help from Dr. Adelsheimer with a series of injections, " but she was "having some return of knee pain on the right with radiation proximally in and around the thigh and also pain radiating into her left leg down her calf." CR. at 170). On May 12, 2009, Plaintiff was examined by Dr. Adelsheimer for a follow-up visit, who noted that he had not seen Plaintiff since August of 2008. CR. at 176). Plaintiff stated that her pain was "returning and getting worse, " and Dr. Adelsheimer recommended "repeating the bilateral L4 transforaminal epidural injections" because they "did help her a lot in the past." CR. at 176-177).

On June 2, 2009, Edward D. Snell, M.D., evaluated Plaintiff and diagnosed her with "bilateral moderate to severe bilateral knee arthritis, " "multiple degenerative joint disease including wrist and elbows, " and "low back pain." CR. at 190). Regarding Plaintiffs multiple joint pains, Dr. Snell noted that "the patient is fairly well controlled and will continue her current medications that she is on including Darvocet, Neurontin, and Flexeril, as per her PCP." (R. at 191). Dr. Snell's notes provide that Plaintiffs bilateral knee pain had "become more symptomatic" and that her physical therapy treatment has resulted in "some improvement in strength and function, however, the pain has not subsided." CR. at 190). On June 5, 2009, Plaintiff had an MRI ofthe lumbar spine, which was "unremarkable." (R. at 192).

Plaintiff went on a five day vacation in June of 2009 and upon her return to her physical therapy treatment, she reported that "her knees didn't bother her as much as before she went on her trip, " but since she returned her "knees [were] more sore." (R. at 218-219). Plaintiff stated that she did golf ball exercises every morning and rode a bicycle, which she said "helped." (R. at 218). When her knees bothered her on the trip, she "got in the water above her knees which made a difference." (R. at 218). On June 24, 2009, she assessed her pain level as a nine out of ten in her right knee, and a five out of ten in her left knee. (R. at 217). Plaintiff reported she had been pulling weeds in her garden and was "sore all over." CR. at 217).

On July 6, 2009, Dr. Snell gave Plaintiff a Synvisc injection. (R. at 189). On July 13, 2009, Plaintiff met with Dr. Snell for a follow-up visit and reported that the Synvisc injection had "not helped her, in terms of pain, " and she requested trying Platelet Rich Plasma ("PRP") treatment. (R. at 188). On July 29, 2009, Plaintiff received PRP injections in both of her knees from Dr. Snell, and at a follow-up visit on August 25, 2009, Dr. Snell noted that Plaintiff was "really not a whole lot better at this point" and was still having "pain all the time." (R. at 187-188, 216, 257-258).

On September 8, 2009, non-treating state agency physician Darren Gallaher conducted a physical residual functional capacity assessment of Plaintiff and opined that Plaintiff had medically determinable impairments of osteoarthritis of the knees and fibromyalgia. (R. at 74). Dr. Gallaher determined that Plaintiff could stand and/or walk for at least two hours in an eight-hour day, and could sit for a total of about six hours in an eight-hour day. (R. at 70). Dr. Gallaher wrote that "despite ongoing treatment, [Plaintiff] continues to have pain which significantly impacts on her ability to ...

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