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Ray v. Colvin

United States District Court, Middle District of Pennsylvania

April 8, 2014

CYNTHIA RAY, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant

MEMORANDUM

SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE.

In this appeal from a decision of the Commissioner of Social Security denying Disability Insurance Benefits, Plaintiff claims the administrative decision concluding that she is not disabled as defined by the Social Security Act is not supported by substantial evidence and contains errors of law. For the following reasons, the court will remand the matter for further proceedings consistent with this opinion.

I. Background

A. Procedural Background

On July 19, 2010, Plaintiff protectively applied for Title II Social Security Disability Insurance Benefits (“DIB”). (Doc. 1, ¶ 6.) Plaintiff claimed disability beginning on December 31, 2008 (Doc. 1, ¶¶ 4-6), and listed the illnesses, injuries, or conditions that limited her ability to work as cervical spine impairment, lumbar spine impairment, degenerative disc disease, right shoulder impairment, sleep apnea, spinal stenosis, brittle diabetes, hypertensive cardiovascular disease, depression, and severe back pain (Doc. 6-6, p. 5 of 52).

The Social Security Administration initially denied Plaintiff’s application by decision dated October 28, 2010. (Doc. 6-4, pp. 4-8 of 31.) On December 13, 2010, Plaintiff filed a timely request for an administrative hearing (Id. pp. 16-19), and a hearing was held on November 21, 2011, before Administrative Law Judge (“ALJ”) Ron Sweeda. (Doc. 6-2, pp. 14-44 of 45.) Plaintiff, who was represented by counsel, appeared and testified at the hearing. (Doc. 6-2, pp. 14-44 of 45.) ALJ Sweeda issued an unfavorable decision to Plaintiff on December 9, 2011, finding that, although Plaintiff could no longer perform her past relevant work as a certified nurse’s aide, she retained the residual functional capacity to perform a range of unskilled light work and, therefore, was not disabled within the meaning of the Social Security Act. (Doc. 6-3, pp. 11, 16-17 of 23.) A timely appeal was taken to the Appeals Council, and on November 13, 2012, the Appeals Council denied Plaintiff’s request for review. (Doc. 6-2, pp. 2-4 of 45.) Therefore, the ALJ’s decision became the decision of the Commissioner.

On January 10, 2013, Plaintiff filed an appeal to this court objecting to the Commissioner’s final decision and requesting an award of benefits. (Doc. 1.) The Commissioner filed an answer on April 9, 2013. (Doc. 5.) Pursuant to Local Rule 83.40.4, Plaintiff filed a brief in support of her appeal on June 19, 2013, in which she identified two errors: 1) the ALJ failed to properly evaluate the medical evidence; and 2) the ALJ failed to properly evaluate Plaintiff’s subjective complaints. (Doc. 11, p. 27 of 35.) The Commissioner filed her brief in opposition on July 18, 2013, maintaining that Plaintiff’s asserted errors are without merit. (Doc. 12.)

B. General Background

Plaintiff was born in the United States on October 3, 1962, and at all times relevant to this matter was considered a “younger individual, ”[2] whose age would not seriously impact her ability to adjust to other work. 20 C.F.R. § 404.1563(c). As of the date of the hearing, Plaintiff was five feet eight inches tall and weighed 256 pounds. (Doc. 6-2, p. 19 of 45.) She lived with her disabled husband, who was receiving worker’s compensation, and her seven-year-old granddaughter. (Id. at pp. 19 of 45.) She had ten years of education, which is considered limited, and had prior relevant work experience as a certified nurse’s aid. (Id. at p. 32 of 45.)

C. Impairment-Related Background

In June 2008, approximately six months prior to her alleged onset date, Plaintiff experienced a work-related injury due to lifting and repositioning a patient. (Doc. 6-7, pp. 67, 77 of 98.) She treated primarily with physical medicine and rehabilitation physician Emmanuel Jacob, M.D. and neurologist John Cantando, D.O.

1. Emmanuel Jacob, M.D., Treating Physical Medicine and Rehabilitation Physician

Prior to her initial evaluation by Dr. Jacob, Plaintiff was treated with physical therapy, trigger point injections, and pain medications without improvement. (Doc. 6-12, p. 143 of 145.) An MRI taken on December 16, 2008, revealed a small full thickness tear in the distal aspect of the supraspinarus tendon. (Id.; Doc. 6-7, p. 40 of 98.) In addition, a July 31, 2008 cervical spine MRI showed multi-level degenerative disc disease at C4-C5, C5-C6, and C6-C7. (Doc. 6-12, p. 143 of 145.)

a. Office Visits

At her first appointment with Dr. Jacob on April 16, 2009, Plaintiff reported that the pain in her mid back and right shoulder had intensified following her work-related injury and she was experiencing weakness. (Id.) She indicated that her symptoms severely restricted her activities of daily living, her sleep was restless, and she had stopped working due to her pain on December 31, 2008. (Id.) She rated her pain intensity as an eight out of ten. (Id. at 144 of 145.)

Upon physical examination, Dr. Jacob noted that Plaintiff’s muscle tone was spastic and she was “quite tender” along the C5-C6 of her spine. (Id.) Her cervical flexion was limited to thirty degrees, extension to thirty degrees, and rotation was forty degrees to the left and 45 degrees to the right. (Id.) She was tender along the right supraspinatus muscle area and her right shoulder abduction was weak to approximately “4-/5.” (Id.) She also had tenderness of the right supraclavicular fossa, and the muscle tone of the thoracid and lumbar paraspinals was spastic. (Id.) Likewise, she was “quite tender” along the dorsal spine and lumbar spine, and her lumbar motion was limited to sixty degrees. (Id.) There was paresthesia along the C5-C6 dermatome. (Id.) However, her straight leg elevation test was negative, the deep tendon reflexes of the biceps, triceps, knees, and ankles were intact, and her gait was stable. (Id.) Dr. Jacob’s impressions were as follows: (1) injury to the right shoulder, probable rotator muscle cuff tear; (2) cervical sprain and strain with radicular symptoms; (3) probable aggravation of preexisting cervical disc disease; (4) thoracic sprain and strain; (5) probable thoracic disc herniation; (6) lumbar sprain and strain; and (7) probable lumbar disc injury with herniation. (Id. at p. 145 of 145.) He ed an updated MRI of the thoracic spine and concluded that Plaintiff was unable to return to work. (Id.) Her prognosis was guarded. (Id.)

On April 28, 2009, Dr. Jacob performed electrodiagnostic testing on Plaintiff, noting that her complaints included right-sided neck pain, right shoulder pain, and intermittent numbness and tingling in both hands. (Doc. 6-10, p. 23 of 121.) The study revealed abnormal findings of the right brachial plexopathy, upper trunk, and abnormal findings of cervical radiculopathy involving C5-C6 roots. (Id.) There were, however, no electrodiagnostic findings of diffuse peripheral neuropathy or myopathy. (Id.) Dr. Jacob also reviewed Plaintiff’s April 24, 2009 thoracic spine MRI, which showed abnormal findings indicative of syrinx in the thoracic cord. (Id.) As a result of these studies, Dr. Jacob referred Plaintiff for cervical epidural injections to help alleviate her persistent neck pain and to a neurosurgeon for evaluation of her thoracic spine. (Id.) Dr. Jacob again concluded that Plaintiff was unable to return to work. (Id. at p. 25 of 121.)

In a follow-up visit on May 18, 2009, Plaintiff reported that she had ongoing pain in her neck and right shoulder area, as well as shooting pain from her back down to her right lower limb. (Id. at p. 21 of 121.) She reported no relief from cervical nerve block injections. (Id.) At this visit, she presented with severe pain along the right side of her shoulder with numbness and tingling sensations on the right hand. (Id.) She rated her pain as an eight out of ten. (Id.) Physical examination revealed muscle spasms along the cervical paraspinals and tenderness along the supraclavicular fossa and right lower trapezius muscles with muscle spasms. (Id.) Her right shoulder motion was limited and she had muscle tightness of the lumbar paraspinals. (Id.) Dr. Jacob treated her with acupuncture, augmented by infrared heat and soft tissue massage with Biofreeze. (Id.) He concluded that she remained unable to return to work. (Id. at p. 22 of 121.)

On June 1, 2009, Plaintiff indicated that, although she was still experiencing neck, shoulder, and mid back pain, she was feeling a little better with Lyrica. (Doc. 6-12, p. 131 of 145.) A recent injection treatment and aquatic therapy, however, were not helping. (Id.) Dr. Jacob provided her with another round of acupuncture, augmented by infrared heat and soft tissue massage with Biofreeze. (Id.) He also increased her dosage of Lyrica. (Id.) One week thereafter, Plaintiff reported feeling “much better” after the last injection treatment. (Id. at p. 130.) She received additional accupuncture. (Id.) On June 19, 2009, Plaintiff’s neck and back pain persisted, but her shoulder pain was slightly improved. (Id. at p. 127 of 145.) She received additional acupuncture. (Id.) Similarly, on June 23, 2009 and June 30, 2009, Plaintiff indicated that her pain continued and she received additional acupuncture treatments. (Id. at pp. 125-126 of 145.)

On July 16, 2009, Plaintiff reported that her mid back pain continued and her right shoulder pain was shooting up the right side of her neck. (Id. at p. 124 of 145.) She again rated her pain intensity as an eight out of ten. (Id.) Examination revealed muscle spasms along the right upper trapezius muscles and dorsal spine, tender trigger points along the right upper trapezius and rhomboidus muscles, and limited right shoulder motion. (Id.) Dr. Jacob injected Marcaine mixed with Depo- Medrol to Plaintiff’s right upper trapezius muscles. (Id.) At her next visit on July 24, 2009, Plaintiff indicated that her right shoulder pain persisted and she had increasing low back pain with radicular symptoms. (Id. at p. 123 of 145.) Dr. Jacob provided acupuncture treatment and recommended a lumbar MRI. (Id.) One week later, Plaintiff reported significant relief from the previous injection treatment administered on July 16, 2009. (Id. at p. 122 of 145.) She rated her pain as a three or four out of ten. (Id.) Dr. Jacob treated her mid back and shoulder pain with acupuncture. (Id.)

Plaintiff had the lumbar MRI, as ordered by Dr. Jacob, on August 7, 2009. (Id. at p. 120 of 145.) The MRI revealed moderate multilevel spinal stenosis from L2-L3 through L6-S1, due to congenitally shortened pedicles and, in some instances, aggravated by prominence of epidural fat and mild bulging. (Id. at p. 121 of 145.) In addition, there was minimal to moderate foraminal stenosis at L4-5 with moderate to severe foraminal stenosis at L5-S1, mostly due to facet hypertrophy. (Id.)

In a follow-up visit with Dr. Jacob on August 14, 2009, Plaintiff reported that acupuncture was providing “good relief” to her shoulder and back area, but that the medication from the injection treatments was wearing off. (Id. at p. 119 of 145.) She was experiencing sever pain in her lower back. (Id.) Upon examination, Dr. Jacob noted that the muscle tone in her thorasic spine and lumbar spine was spastic and her dorsal and lumbar motion was limited. (Id.) He treated her with acupuncture. (Id.) On September 4, 2009, Plaintiff’s back pain persisted and Dr. Jacob provided additional acupuncture and a refill of Zanaflex to treat her muscle spasms. (Id.) On September 18, 2009 and September 25, 2009, Plaintiff’s complaints of mid back and shoulder pain remained unchanged and she, once again, received acupuncture. (Id. at p. 117 of 145.)

At a visit on October 16, 2009, Plaintiff reported that the acupuncture was helpful, but that she was still experiencing mid back and shoulder pain. (Id. at p. 113 of 145.) Upon physical examination, Dr. Jacob observed that the muscle tone in her dorsal spine was tight but that the dorsal motion was more flexible. (Id.) She remained tender along the anterior and medial capsule of her right shoulder, with limited motion of the shoulder. (Id.) He provided additional accupuncture. (Id.) Similarly, on October 23, 2009, her back pain persisted and she received acupuncture. (Id. at p. 112 of 145.)

On November 13, 2009, Plaintiff informed Dr. Jacob that the thoracic flacet block injection treatments given by Dr. Paz (see Doc. 6-12, pp. 114-115 of 145) were not improving her symptoms (Id. at p. 111 of 145). Upon examination, Dr. Jacob observed muscle spasms along her thoracic paraspinals and tenderness along the upper trapezius muscles. (Id.) She received acupuncture and was prescribed Skelaxin. (Id.)

On November 20, 2009, Plaintiff reported mid back pain that increased with activity, pain along the right side of her chest wall, and pain in her right shoulder. (Id. at p. 110 of 145.) Upon examination, Dr. Jacob noted spastic muscle tone in the dorsal spine and tenderness along the right middle trapezius muscles. (Id.) He treated Plaintiff with acupuncture. (Id.) During three subsequent visits between December 4, 2009 and December 18, 2009, Plaintiff’s back and right shoulder pain persisted and she received acupuncture treatments. (Id. at pp. 107-109 of 145.) On January 15, 2010, Plaintiff reported that her pain continued and that the injections given by Dr. Paz were not providing any relief. (Id. at p. 103 of 145.) Dr. Jacob’s examination revealed muscle spasms along the right thoracic and scapularis muscles and tenderness along the right shoulder and upper lumbar spine. (Id.) He provided additional acupuncture. (Id.)

In a follow-up visit on January 22, 2010, Plaintiff indicated that her right shoulder pain had increased and her back pain persisted. (Id. at p. 102 of 145.) She rated her pain as an eight out of ten. (Id.) During the examination, Dr. Jacob noted that Plaintiff was quite tender along the anterior and medial capsule of the right shoulder and along the subacromial bursa area. (Id.) He observed muscle spasms along the thoracic and lumbar paraspinals and limited right shoulder motion. (Id.) A sonogram performed during the appointment revealed echogenic changes of the right shoulder indicative of subacromial bursitis. (Id.) Dr. Jacob administered a Marcaine/Depo-Medrol shot with sonographic guidance. (Id.) In addition, he reviewed Plaintiff’s job description as a certified nurse’s aide and determined she was unable to perform the functions of the job. (Id.) He also restricted her to lifting ten pounds. (Id.)

In three visits between January 29, 2010 and February 19, 2010, Plaintiff reported ongoing back and shoulder pain, and she received acupuncture treatments. (Id. at pp. 95, 100-101 of 145.) At the third appointment, Dr. Jacob performed an examination, noting that the muscle tone in her mid back was spastic and she was “quite tender” along the dorsal spine and right shoulder area. (Id. at p. 95 of 145.)

A February 19, 2010 cervical spine MRI revealed developmental narrowing of the cervical spine canal with straightening of normal cervical lordosis and multilevel spondylotic and degenerative changes. (Id. at p. 96 of 145.) In addition, it showed prominent spondylotic and degenerative changes causing signifcant narrowing of the right neural foramen at C4-C5 and a small protruding disc herniation at C6-C7 that slightly indented the ventral thecal sac. (Id. at pp. 96-97 of 145.)

At a follow-up visit with Dr. Jacob on March 5, 2010, Plaintiff reported that her neck, shoulder, and mid back pain persisted, and she was treated with acupuncture. (Id. at p. 94 of 145.) On March 12, 2010, Plaintiff indicated that she had increased pain along her mid to upper back as well as in the right scapularis area. (Id. p. 93 of 145.) Upon examination, Dr. Jacob observed muscle spasms along the right upper trapezius and thoracic paraspinal muscles and tender trigger points with muscle spasms along the right trapezius muscles and upper thoracic paraspinals. (Id.) He administered Marcaine/Depo-Medrol injections to Plaintiff’s right trapezius muscles and upper thoracic paraspinals. (Id.) Her pain persisted on March 19, 2010, and she was treated with acupuncture. (Id. at p. 92 of 145.)

On March 29, 2010, Plaintiff underwent cervical disc surgery by Dr. Cantando. (Id. at p. 91 of 145.) At her next appointment with Dr. Jacob on April 23, 2010, Plaintiff reported that her neck and shoulder pain were slightly improved following the surgery, but that her mid back pain persisted. (Id.) Dr. Jacob’s examination revealed tenderness along the mid dorsal spine with muscle spasms and limited dorsal and cervical motion. (Id.) On April 30, 2010 and May 14, 2010, Plaintiff indicated that she continued to experience neck, shoulder, and mid-back pain, and she received additional acupuncture treatments . (Id. at pp. 89-90 of 145.)

At a follow-up visit on June 25, 2010, Plaintiff reported that she continued to have pain along the right shoulder blade area and some neck and back pain. (Id. at p. 86 of 145.) She rated her pain as an eight out of ten. (Id.) Dr. Jacob observed tender trigger points with muscle spasms along the right middle and lower trapezis muscles and limited right shoulder motion. (Id.) He administered Marcaine/Depo-Medrol injections in her right lower and middle trapezius muscles. (Id.) On July 23, 2010, Plaintiff complained of increased pain down her right shoulder, but reported slight improvement of her mid back pain. (Id. at p. 85 of 145.) She rated her pain at an eight out of ten. (Id.) Dr. Jacob reviewed an MRI of her right shoulder, which revealed acromioclavicular degeneration. (Id.) He used a sonogram to examine the area and observed echogenic changes indicative of acromioclavicular joint degenerative arthritis and bursitis. (Id.) He administered an additional Marcaine/Depo-Medrol injection into the area. (Id.)

On September 17, 2010, Plaintiff continued to complain of pain in her neck, shoulder, and mid back. (Doc. 6-14, p. 34 of 111.) Dr. Jacob noted muscle spasm of the cervical and thoracic paraspinals and observed that Plaintiff’s cervical motion was “quite restricted.” (Id.) She was instructed to do in home exercises and advised to take Flexeril, as needed, for muscle spasm. (Id.) Plaintiff’s complaints persisted on December 17, 2010, and Dr. Jacob noted that she had numbness of both hands and her pain was about a six out of ten. (Id.) Her examination revealed muscle spasm of the cervical paraspinals and tenderness in the cervical and lumbar spine. (Id.) Cervical, thoracic, and lumbar motion was restricted. (Id.) Dr. Jacob advised her to continue with home stretching exercises and Flexiril. (Id.)

On October 12, 2010, Plaintiff rated her pain as a six out of ten. (Id. at p. 111 of 140.) Dr. Jacob’s physical examination revealed tenderness along the C5-6-7 segment, palpable muscle spasm of the cervical paraspinals, and diminished sensation along the C5-6 dermatome. (Id.) Cervical flexion was restricted to thirty degrees, extension to thirty degrees, right rotation to thirty degrees, and left rotation to 35 degrees. (Id.) There was additional tenderness along the right supraclavicular fossa, right supraspinatus muscle, and the thoracic and lumbar spine. (Id.) Dr. Jacob also noted palpable muscle spasms along the lumbar paraspinals. (Id.) Lumbar flexion was limited to sixty degrees. (Id.) However, her straight leg elevation test was negative and her biceps, triceps, knee, and ankle reflexes were present and symmetric. (Id.) Her gait was stable. (Id.)

In a follow-up visit on July 22, 2011, Dr. Jacob noted that Plaintiff’s neck and back pain persisted and increased with activity. (Id. at p. 87 of 111.) She was taking Tramadol. (Id.) An examination showed muscle spasm along the cervical paraspinals and tenderness along the C5-6-7 segment. (Id.) Her cervical and lumbar motion was limited and there was tenderness along the thoracic and lumbar spine. (Id.) She was advised to maintain good health habits and continue home exercises. (Id.)

b. Reports

On October 12, 2010, Dr. Jacob submitted a report and questionnaire to the state agency regarding Plaintiff’s limitations. (Doc. 6-13, pp. 101-114 of 140.) In the report, he wrote that Plaintiff had ongoing complaints of neck, shoulder, and mid back pain stemming from work-related injuries. (Id. at p. 109 of 140.) Her treatment has included physical therapy, pain medications, acupuncture, nerve block injections, and cervical disc surgery with fusion. (Id.) He noted that the neck surgery did not completely abate her symptoms, and that her symptoms increased with activity and were partially mitigated by rest and medication. (Id.) At that time, she was taking Lisinopril, Celexa, Metformin, Glimiperide, Zocor, Flexeril, and ibuprofen. (Id.) Her medical history was notable for diabetes, elevated cholesterol, high blood pressure, and depression. (Id. at p. 110 of 140.) Dr. Jacob also provided a synopsis of Plaintiff’s most recent physical examination, which was conducted that day. (Id. at p. 111 of 140.)

In addition, Dr. Jacob wrote that an April 24, 2009 MRI of Plaintiff’s right shoulder revealed increased fatty infiltration in the deltoid muscle and infraspinatus muscles, suggesting atrophy and possibly relating to brachial neuritis. (Id.) An MRI of the thoracic spine, also taken on April 24, 2009, suggested a syrinx in the thoracic cord extending from T3 through T11-T12. (Id.) Electrodiagnostic testing, conducted on April 28, 2009, showed cervical radiculopathy at the bilateral C5-C6 roots. (Id.) An MRI of the lumbar spine, taken on December 16, 2008, showed moderate multilevel spinal stenosis from L2-3 through L5-S1. (Id.) An MRI of the right shoulder taken the same day showed a probable small full thickness tear of the distal supraspinatus tendon and small joint effusion. (Id.) Finally, a July 31, 2008 MRI of the cervical spine indicated degenerative disc disease at C4-5, C5-6, and C6-7, with stenosis at C4-5 and C5-6. (Id.)

Dr. Jacob’s diagnoses included: (1) cervical disc disease with radiculopathy; (2) cervical disc surgery with fusion; (3) impingement syndrome of the right shoulder; (4) probable right brachial plexus neuritis and right supraspinatus muscle tear; (5) thoracic spine syrinx by MRI; and (6) ...


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