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Bobenrieth v. Colvin

United States District Court, W.D. Pennsylvania

May 6, 2014



LISA PUPO LENIHAN, Magistrate Judge.


Lisa A. Bobenrieth ("Plaintiff"), brings this action pursuant to 42 U.S.C. ยงยง 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") and supplemental security income benefits ("SSI") under Titles II and XVI of the Social Security Act ("the Act"). This matter comes before the Court on cross motions for summary judgment. (ECF Nos 11, 13).[1] For the reasons that follow, Plaintiff's motion is denied and Defendant's motion is granted.


Plaintiff applied for SSI and DIB on February 26, 2009, alleging a disability onset date of September 1, 2007. R. at 153, 157. Her alleged disabling impairments were fibromyalgia, demyelinating disease, chronic headaches, lower back pain, dizziness, and balance problems. R. at 175. Both claims were denied on June 10, 2009. R. at 90, 96. Plaintiff filed a request for a hearing by an Administrative Law Judge ("ALJ") on June 16, 2009. R. at 114. A hearing was held before ALJ Nancy Gregg Pasiecznik on December 8, 2010. R. at 43. The ALJ denied Plaintiff's claims in a decision dated September 21, 2011. R. at 36. The Appeals Council denied Plaintiff's request for review on July 8, 2013 at which time it became the final decision of the Commissioner.[2] R. at 1. Plaintiff submitted additional evidence to the Appeals Council along with her request for review. R. at 536-987.

On September 10, 2013, Plaintiff filed a Complaint in this Court. (ECF No. 2). Defendant filed an Answer on December 16, 2013. (ECF No. 5). Plaintiff filed its motion for summary judgment and brief in support on January 21, 2014. (ECF Nos. 11-12). On February 21, 2014, Defendant filed its motion for summary judgment and supporting brief. (ECF No. 13-14). This matter has been fully briefed and is ripe for disposition.


a. Employment History

Plaintiff previously worked as a retail cashier, restaurant manager, assistant convenience store manager, and tax preparer. R. at 184, 194. She last worked in June 2006. R. at 47. Plaintiff left that position when she relocated out of the state. R. at 49.

b. Summary of the Relevant Medical Evidence

i. Bradley Giannotti, M.D.,

On May 23, 2008, Bradley Giannotti, M.D, noted that a Magnet Resonance Image ("MRI") of Plaintiff's left shoulder showed evidence of tendonitis without tear and a possible small subacromial spur. R. at 412. Dr. Giannotti performed a left carpal tunnel release procedure on September 4, 2008. R. at 367-368. A right carpal tunnel release was performed on July 24, 2008. R. at 372.

ii. Erica Grazioli, M.D.,

Dr. Grazioli ordered a magnetic resonance angiogram of Plaintiff's brain on September 29, 2008. R. at 281. A report completed by James Oskin, M.D, showed visualized vessels within normal limits and no evidence of aneurysm or occlusive disease. Id. An MRI report from the same day noted spondylosis and a possible cord lesion. R. at 281-282.

On August 22, 2008, Dr. Grazioli noted non-specific white matter changes in an MRI of Plaintiff's brain. R. at 424. Demyelinating disease was doubtful as a diagnosis. Id. The findings were possibly secondary to migraines, high blood pressure, and tobacco abuse. Id. Plaintiff had a benign pineal cyst, chronic headaches, leg pain and swelling upon exertion, decreased reflexes in her ankles, and diminished balance. Id. Plaintiff was advised to make recommended dietary changes in response to her headaches and to stop smoking. Id.

Dr. Grazioli ordered a fluoroscopic guided lumbar puncture on November 5, 2008. R. at 276. She tolerated the procedure well and there were no immediate complications. Id. Dr. Grazioli ordered MRIs of Plaintiff's cervical and thoracic spine on December 4, 2008 at Hamot Medical Center. R. at 268-269. A report on the cervical spine MRI completed indicated that a previously questioned cord lesion noted in a previous exam was not observed at this time. Id. Degenerative changes to Plaintiff's vertebrae were stable. Id. The report on Plaintiff's thoracic spine MRI stated that it was an "unremarkable exam." Id. An MRI of Plaintiff's lumbar spine completed on February 24, 2009 showed intact vertebrae with good alignment at all levels. R. at 334. The report concluded that her lumbar spine was normal. R. at 335.

Plaintiff's headaches were "much better" when she returned on March 2, 2009. R. at 418. An MRI of Plaintiff's brain on March 13, 2009 showed mild white matter changes. R. at 386. The MRI was characterized as otherwise normal. Id. An assessment completed by Dr. Grazioli on May 19, 2009 indicated the following: Plaintiff's gait was within normal limits; an assistive device was not used for ambulation with or without weight-bearing; power of five out of five bilaterally in upper and lower extremities; plaintiff was able to perform fine and dexterous movements; five out of five grip strength in her right hand; and three out of five in her left. R. at 416-417.

iii. Jason Tronetti, M.D.,

Jason Tronetti, M.D., a family medicine practitioner, began treating Plaintiff on June 18, 2008. R. at 300. She had a family history of heart disease. Id. Her symptoms were dizziness, chest pain, shortness of breath with exertion, irregular pulse, diarrhea, chronic fatigue, joint pain, difficulty sleeping, blurred vision, numbness and tingling in her extremities, back pain, and swollen ankles. Id. Plaintiff also alleged suffering from migraines which occurred twice per month but were becoming less severe with medication. Id. Plaintiff did not use support hose or socks for her ankle swelling. Id. She was not taking medication for depression and did not note any significant depressive symptoms. Id. Dr. Tronetti prescribed numerous tests including a brain scan due to migraine symptoms. R. at 301-302. An X-ray of Plaintiff's feet indicated spurring but was "otherwise unremarkable." R. at 406.

Plaintiff returned to Dr. Tronetti on June 26, 2008 and complained of low back pain. R. at 299. She denied injury, overexertion, or pain radiating down the side of her legs. Id. There was not any weakness or tingling in her legs. Id. She alleged difficulty getting comfortable at night and increased pain when standing for a long period of time. Id. She was able to flex, extend, and bend side to side at the waist with minimal pain. Id. Her straight leg raise was negative. Id. Dr. Tronetti ordered a scan of Plaintiff's brain on July 2, 2008 which showed a possible pineal cyst. 360. A stress test ordered by Dr. Tronetti on July 14, 2008 showed fair exercise capacity, mild hypertensive response, and no chest pain. R. at 350. An MRI completed the same day showed multiple areas of glial scarring in the white matter track. R. at 358.

Dr. Tronetti noted on July 21, 2008 that the results of Plaintiff's stress test "looked very good." R. at 297. She complained of swelling in her feet and legs. Id. Plaintiff was prescribed hydrochlorothiazide, told to drink plenty of liquids, use compression hose, elevate her feet, and limit her salt intake. Id. An exam of Plaintiff's sinuses on July 24, 2008 indicated mild inflammatory change with cysts in both maxillary sinuses. R. at 357.

On August 21, 2008, Dr. Tronetti noted that Plaintiff was "doing pretty well" and there were no significant problems. R. at 296. An MRI showed glial scarring. Id. Dr. Tronetti ordered an MRI of Plaintiff's right ankle on September 3, 2008. R. at 346. It showed normal alignment with no facture or dislocation. Id. She returned to Dr. Tronetti on September 24, 2008 for breast, pap, and pelvic exams. R. at 294.

Plaintiff reported chronic headaches on December 30, 2008. R. at 293. There was evidence of matter disease or gliosis on her MRI. Id. She had a pineal cyst which was stable. Id. She again complained of muscle, joint, and body pain. Id. Dr. Tronetti referred her to a fibromyalgia specialist, Kalliopi Nestor, M.D. Id.

Dr. Tronetti signed a Pennsylvania Department of Public Welfare Employability Assessment Form on December 30, 2008. R. at 283-284. The first page of the form included a summary of Plaintiff's symptoms and alleged impairments. R. at 283. On the second page Dr. Tronetti indicated that Plaintiff became disabled on December 29, 2008 and would remain disabled until December 30, 2009. R. at 284. Although boxes were checked indicating that the assessment was based upon physical examination, medical records, and clinical history, the portion of the form labeled "EXAMINATION RESULTS" included only a list of Plaintiff's diagnoses, headaches and fibromyalgia. Id. No clinical findings or explanations were provided. Id.

On March 9, 2009, Dr. Tronetti noted than an MRI of Plaintiff's lumbar spine was normal. R. at 292. She continued to suffer from low back pain, which Dr. Tronetti believed was related to spasms. Id. Dr. Nestor had prescribed amitriptyline, which was "really alleviat[ing] headaches." Id. Dr. Tronetti believed that her weight was creating increased pressure on her lower spine. Id. Fibromyalgia was a possible contributor. Id. She was instructed to continue treatment. Id.

iv. Kalliopi Nestor, M.D.,

Dr. Tronetti referred Plaintiff to Kalliopi Nestor, M.D., at Charles Cole Memorial Hospital. R. at 287. On June 11, 2008, Dr. Nestor noted Plaintiff's complaint of numbness in her hands. Id. Plaintiff was dropping things while trying to grasp them. Id. Pain in her left wrist radiated into her elbow. Id. She drank alcohol occasionally and smoked one pack of cigarettes per day. Id. Objective findings were as follows: alert and oriented times three; cranial nerves two through twelve grossly intact; five out of five motor in upper and lower extremities bilaterally with the exception of hand grip; intact muscle stretch reflexes and symmetrical on bilateral biceps, triceps, brachioradialis, patella and achilles tendon; and a full range of motion in her cervical and lumbar spine. R. at 285-286. The results of an EMG were abnormal and showed evidence of bilateral carpal tunnel syndrome. R. at 288.

Plaintiff returned to Dr. Nestor on January 23, 2009 complaining that she had suffered pain throughout her body for approximately the last year and a half. R. at 285. Plaintiff told Dr. Nestor that she did not drink alcohol and smoked one half of a pack of cigarettes per day. Id. Dr. Nestor recorded the following symptoms: dizziness, frequent and severe headaches; depression and anxiety; night sweats; shortness of breath; swelling of the hands and feet; extreme tiredness and weakness; and abnormal thirst. Id. She did not suffer from weakness in her muscles and tried to stay as active as possible. Id. Objective findings were unchanged from the previous exam. R. at 285-286. Plaintiff was positive for fourteen of eighteen fibromyalgia tender points. R. at 286. Dr. Nestor's impression was that Plaintiff suffered from fibromyalgia. Id.

v. Rodolfo Arreola, M.D.,

Plaintiff was seen by Rodolfo Arreola, M.D., on May 21, 2009 for a bariatric surgery consultation. R. at 526. Dr. Arreola opined that Plaintiff was an excellent candidate for the procedure. Id. A pre-operative assessment was required, along with documentation evidencing four months of supervised dieting. Id. She was cleared for surgery on December 24, 2009 but medical assistance deemed it unnecessary on January 11, 2010 and denied coverage. R. at 532.

vi. Consultative Evaluations

On June 1, 2009, Anne Zaydon, M.D., completed a consultative evaluation of Plaintiff's medical records. R. at 478-484. Dr. Zayond assessed Plaintiff's exertional limitations as follows: occasionally able to lift and/or carry twenty pounds; frequently able to lift and/or carry ten pounds; able to stand and/or walk approximately six hours in an eight hour day; able to sit for approximately six hours in an eight hour day; unlimited in her ability to push and/or pull as consistent with lift/carry restrictions. R. at 479. As for postural limitations, Plaintiff was occasionally able to climb ramps, stairs, ladders, ropes, or scaffolds and frequently able to balance, stoop, kneel, or crouch. R. at 480. Plaintiff was occasionally able to crawl. Id. She did not have any manipulative, visual, or communicative limitations. R. at 479-481. As to environmental limitations, Plaintiff was to avoid concentrated exposure to the following: extreme cold or heat, wetness, humidity, fumes, odors, dusts, gasses, poor ventilation, machinery, and heights. R. at 481.

Dr. Zaydon indicated that the limitations assessed in her residual functional capacity (" RFC") were significantly different than those assessed by Dr. Tronetti. R. at 482. She concluded that the existence of the following impairments was supported by the record: fibromyalgia; degenerative disc disease of the cervical spine; migraines; hypertension; and morbid obesity. R. at 483. Treatment for these impairments was characterized as "essentially routine and conservative in nature." Id. The evidence supported a conclusion that Plaintiff was able to care for herself and maintain her home. Id. Plaintiff's statements were found partially credible ...

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