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Brookhouser v. Colvin

United States District Court, Third Circuit

December 19, 2013



MAURICE B. COHILL, Jr., Senior District Judge.

I. Introduction

Pending before this Court is an appeal from the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying the claims of Lori Jean Brookhouser ("Plaintiff' or "Claimant") for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381 et. seq. (2012). Plaintiff argues that the decision of the administrative law judge ("ALJ") should be reversed and the Commissioner directed to award Plaintiff benefits because the Commissioner committed legal error when evaluating Plaintiffs symptoms and impairments by failing to comply with the requirements of SSR 96-7p and 20 C.F.R. § 404.1529. The Commissioner's decision was not supported by substantial evidence as required by 42 U.S.C. § 405(g). In the alternative Plaintiff requests that the case be remanded for further hearing and attorney's fees be awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), on the grounds that the Commissioner's action in this case was not substantially justified.

To the contrary, Defendant argues that the decision of the ALJ fully evaluated the opinions of treating, examining, and reviewing physicians as well as other relevant evidence and provided a rationale, supported by substantial evidence for denying SSI benefits to the Claimant and, therefore, the ALJ's decision should be affirmed. The parties have tiled cross motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.

For the reasons stated below, the Court will deny the Plaintiff's Motion for Summary Judgment and grant the Defendant's Motion for Summary Judgment and affirm the decision of the ALJ.

II. Procedural History

On February 18, 2010, Plaintiff protectively filed an application for SSI alleging disability beginning April 1, 2009. [ECF No.7 at 1]. The claim was initially denied on July 1, 2010. Id . On September 3, 2010, Claimant filed a written request for a hearing. A video hearing was held before an Administrative Law Judge ("ALJ") on July 13, 2011. Id . Barbara K. Byers, an impartial vocational expert ("VE"), also appeared during the hearing. (R. at 34). On August 19, 2011, the ALJ, Jeffrey M. Jordan, determined that Plaintiff was not disabled under Section 1614(a)(3)(A) of the Social Security Act. CR. at 34). The ALJ stated that "After careful consideration of all the evidence, the undersigned concludes the claimant has not been under a disability within the meaning of the Social Security Act from April 1, 2009, through the date of this decision." (R. at 27). The Plaintiff filed a timely written request for review by the Appeals Council which was denied on February 7, 2013. [EeF No. 8 at 1]. The Commissioner's decision was made final under 42 U.S.C. § 405(g). Id.

While Plaintiff's application for benetits was based upon the following conditions: migraines, cervical and lumbar disorders with both upper and lower extremity radiculopathy, restless leg syndrome, neuropathy, depression, and obesity, the only medical issues on appeal are the migraine and spinal issues. Therefore, our analysis will cover only the migraine and spinal issues of record.

III Medical History

On Plaintiffs Disability Report she states that she is 4'8" tall and weighs 170 pounds. The physical conditions that Plaintiff reported limit her ability to work were: (1) Lower back pain that goes down the leg, arm, and (2) migraine headaches. She says her low back pain began after an auto accident. Id. at 251. (R. at 187). Plaintiff reported her conditions affect the following abilities: Lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, completing tasks, concentration, and using hands. She can lift 10-15 pounds, stand for 15 minutes, sit for 15 minutes, squat for 15 seconds till it hurts the back of her legs, reach for 20 seconds, kneel for 10 minutes, bend for 20 seconds until it hurts her back, walk for 10 minutes, she becomes out of breath and hurts stair climbing, she has difficulty using her right hand because of cramping, and the migraines affect her concentration. Id. at 213. Plaintiff says pain is concentrated in her lower back, neck, migraines, right leg, and right arm and hand. Id. at 216. Plaintiff reports that physical therapy made things worse. Id. at 217. Plaintiff reports her pain as 10-out-of-10. Plaintiff states her migraines and back pain have gotten worse as of September 3, 2010, and that it is hard to move around and get out of bed. Id. at 220. She further reported that she stopped working on June 13, 2003 because of these conditions. (R. at 187).

Plaintiffs primary care physician, prescribes the following medications for Plaintiffs conditions: Gabapentin for pain and weakness in arms, Hydrocodone for pain of low back and legs, Carisoprodol a muscle relaxant, Somatriptan for headaches, Hydroxyzine Pam (sleeping pill), Ropinirole HCL for jumping/restless legs, Metoclopramide for acid reflux, Topivamate for headaches, Levothroxine for thyroid, Citalopram HBR for depression, and Ferrex an iron supplement. ( 227). She experiences no side effects from her medications. Id. at 217. Plaintiff reports she sees doctors for her medical conditions.

Dr. Bojewski is Plaintiffs primary care physician who she began seeing in June of 2004. Id. at 191. Dr. Carnes, Dr. Ferretti, and Dr. Habusta were all physicians seen in the emergency room in the year 2008. Id. at 192-93.

A June 28, 2004 report of the MRI performed of the lumbar spine finds mild diffuse degenerative disc disease and sparing at L3-4. The degenerative disc disease is most pronounced at L5-S1 where there are endplate changes. There is a grade I spondylolisthesis of L5 on S1 with bilateral pars defects. There is a moderate bilateral foraminal stenosis. (R. at 227). The diagnosis is degenerative disc disease and spondylolisthesis and spondylolysis, L5-S 1. Id.

September 24, 2004 an examination of Plaintiffs left femur in multiple views reveals there is no radiological evidence of fractures or bone destructions. The joint spaces are well preserved. The soft tissues are normal. (R. at 439).

January 26, 2005 x-rays were performed on bilateral knees due to pain. AP and lateral views demonstrate no evidence of fracture, dislocation or bony destruction. There is minimal narrowing of the medial knee joint compartments. No osteophyte formation is seen. The overlying soft tissues are unremarkable. Minimal narrowing of the medial knee joint compartments bilaterally. (R. at 437).

An April 21, 2005 bone density evaluation revealed that the AP Spine (L1-L4) is Osteopenic. (R. at 244).

November 19, 2005 a noncontrast head CT was performed on Plaintiff. The study was compared to an exam dated May 27, 2005. Brain parenchyma was normal in attenuation with normal gray-shite matter differentiation. No intra or extra-axial masses or abnormal fluid collections. No evidence of acute infaret or intracranial hemorrhage. Ventricles and CSF spaces are negative without midline shift. Bony structures and superficial soft tissues are negative. (R. at 430).

A February 21, 2006 study of the right radius and ulna, AP and Lateral revealed there was no evidence of fracture, dislocation or bony erosions. No specific abnormalities. (R. at 429).

Dr. John Kalata, D.O. examined Plaintiff on April 28, 2006 and his examination impressions are as follows: Discogenic disease in lumbar spine with left sciatica, ambulatory dysfunction, spondylolisthesis, spondylolysis, traced lumbar spine, hypothyroidism, migraine cephalgia, insomnia, and left sacroiliac dysfunction. Id . 254-55. Dr. Kalata further reports in a June 14, 2006 letter that Plaintiff has ambulatory dysfunction due to pain in her lower back with radiation to her left leg upon walking. Id. at 250. He states walking with a cane is advisable. Id . He further states that the radicular pain is most likely caused by the diseased lumbar disc at the L4-L5 level, which is affecting her left sciatic nerve. Id . "She had a range of motion that was very diminished in the lower extremities and she had difficulty getting on and off the examination table." Id. at 255.

January to, 2007 Richard Kocan, M.D. reviewed an MRI of the Plaintiffs lumbar spine and reports there is degenerative disc disease and a grade I spondylolistheses of L5 on S1 without pars defects. The disc is bulging diffusely especially to the left of midline with bilateral moderate foraminal stenosis. No central canal stenosis is seen. No other disc pathology or malalignment is detected. There is no other canal or foraminal stenosis. Conus medullaris and cauda equine are normal. Id. at 286.

Sylvia M. Ferretti, D.O. of the Bureau of Disability Determination performed a physical examination of the Plaintiff on May 1, 2007 and found that her cervical range was within normal limits, her upper extremity revealed bilateral biceps, brachioradialis and triceps reflexes that were 2/4 and symmetrical. Shoulder, elbow, wrist, hand range of motion were normal, strength bilaterally 5/5 and sensory is intact. Her lower extremity revealed patella and Achilles reflexes were 2/4 and symmetrical. Strength is 5/5. Sensory is intact. Hip, knee, and ankle range of motion were within normal limits. Back range of motion was recorded. Id. at 271.

A July 20, 2007 MRI/MRA report of Plaintiffs back finds that the L5-S1 spondylolisthesis and spondylolysis and foraminal stenosis, is stable from the prior exam of January 10, 2007 and that there are no new abnormalities. The report is signed by Richard Kocan, M.D. Id. at 285.

On October 4, 2007 Plaintiff was seen at Hamot Medical Center Emergency Department for acute musculoskeletal right arm and chest pain. She was discharged with Lortab and ibuprofen prescribed. Id. at 287-95.

A November 3, 2007 study of Plaintiffs right shoulder, right humerus, right radius and ulna, right wrist and right hand show no acute abnormalities. Id. at 322-23.

On November 7, 2007 Dr. Steven Habusta saw Plaintiff for right upper extremity pain, numbness and tingling. On physical examination she has a positive Spurling's test and pain at flexion. Limited range of motion of rotation to the left and side-bending to the left. She has tenderness on palpation on her AC joint as well as tenderness on palpation over the coracoid process and lateral acromion. Dr. Habusta suspects C5-6 radiculopathy and right rotator cuff tear and ...

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