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Cassidy v. Colvin

United States District Court, Western District of Pennsylvania

May 16, 2014



Terrence F. McVerry United States District Judge

I. Introduction

Pamela M. Cassidy (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 42 U.S.C. § 1383(c)(3), for judicial review of the final determination of the Commissioner of Social Security (“Commissioner”), which denied her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 1381-1383(f). This case comes before the Court on the parties’ cross-motions for summary judgment. (ECF Nos. 6, 9). The record was thoroughly developed at the administrative level of the proceeding. (ECF No. 4). Each side filed a brief in support of its motion (ECF Nos. 7, 9), and Plaintiff also filed a reply brief in response to the Commissioner’s motion (ECF No. 10). Accordingly, the matter is ripe for disposition, and for the following reasons, the Commissioner’s motion will be DENIED, and Plaintiff’s motion will be GRANTED.

II. Background

A. Factual Background

Plaintiff was born on April 15, 1962. (R. 154). She is a high school graduate with past relevant work experience as a bartender, deli worker, bagger, food sales clerk, packer/inspector, and sewing machine operator. (R. 87-88).

Plaintiff alleges disability as of February 28, 2006, due to a torn rotator cuff in each shoulder, anxiety, arthritis, and tendonitis. (R. 158). The record reflects that Plaintiff has not engaged in substantial gainful activity since her alleged disability onset date.

1. History of Medical Treatment

In January 2004, Plaintiff injured her right shoulder while working at her last job. (R. 332, 341, 426). As a result, she underwent physical therapy and received chiropractic treatment. (R. 426). A year later, she was diagnosed with a torn right rotator cuff and declared a candidate for arthroscopic surgery. (R. 426). The surgery was performed by Ari Pressman, M.D., in May 2005. (R. 409). During the procedure, Dr. Pressman observed that Plaintiff’s rotator cuff was not actually torn, as suspected. (R. 409). Other repairs to Plaintiff’s shoulder were made, however. (R. 409). In the months immediately following her surgery, Plaintiff was progressing well, though she experienced some stiffness and pain. (R. 420-23). She was undergoing physical therapy and taking pain medications and eventually returned to work in August 2005. (R. 330, 418).

In November 2005, six months after the surgery, Dr. Pressman declared that Plaintiff was doing “quite well, ” though she was “not yet back to full function.” (R. 417). Dr. Pressman suspected that the continued pain could be the result of a tear in the rotator cuff that went unobserved during the surgery, so he ordered an MRI. (R. 417). The MRI revealed postoperative changes and a complete tear of the supraspinatus tendon. (R. 416). The next month, Plaintiff followed-up with Thomas F. Brockmeyer, M.D., with continued symptoms in her right shoulder. (R. 414). Dr. Brockmeyer reviewed the results of Plaintiff’s recent MRI and acknowledged that it showed clear evidence of a rotator cuff tear with retraction. (R. 414). Nevertheless, he continued Plaintiff on light-duty work with no overhead lifting. (R. 414). He also noted that she should follow-up with Dr. Pressman again in three-to-four weeks and that she would likely need repeat surgery on her right shoulder early in 2006. (R. 414).

In January 2006, Dr. Pressman referred Plaintiff to Thomas Hughes, M.D., of the Human Motion/All Hand Center. (R. 330). During her first visit with Dr. Hughes, Plaintiff reported that she did not feel as though she had improved after her May 2005 surgery. (R. 330). She continued to have pain, which had progressed to the point that she could no longer do her hair with her right hand, put dishes away in overhead cabinets, sleep on her right side, and do other daily activities such as getting dressed and brushing her teeth. (R. 330). Upon examination, Plaintiff did not display any acute distress. (R. 330). Her elbow had a full range of motion. (R. 330). She had pain with active range of motion of the shoulder, with active forward flexion of only about 90 degrees, and active abduction to 70 degrees. (R. 330). She displayed excellent passive range of motion of 100 degrees of forward flexion and 100 degrees of abduction. (R. 330). Plaintiff had significant pain and weakness when her supraspinatus tendon was isolated. (R. 331). She also had pain over her biceps and with crossover adduction. (R. 331). At the conclusion of the examination, Dr. Hughes’ recommended that Plaintiff undergo surgery to repair the torn rotator cuff. (R. 331, 333). In the meantime, Plaintiff was permitted to continue with light-duty work. (R. 331).

On February 3, 2006, Dr. Hughes performed a right shoulder arthroscopy on Plaintiff, during which he identified a full-thickness rotator cuff tear of the supraspinatus tendon. (R. 333). He also observed some labral wear, which was debrided. (R. 333). Plaintiff followed-up with Dr. Hughes on February 16, 2006, at which time her sutures were removed and she was started on physical therapy. (R. 333).

Plaintiff had another follow-up with Dr. Hughes on April 18, 2006. (R. 329). Plaintiff reported that two or three weeks before her appointment, she felt a pop in her shoulder, and since then she had less range of motion and felt more pain. (R. 329). After examining Plaintiff, Dr. Hughes noted that Plaintiff still had good active motion of the supraspinatus with forward elevation and abduction to at least 90 degrees. (R. 329). Although Plaintiff complained of considerable pain in her shoulder, Dr. Hughes noted that he was not “terribly concerned” about the pain. (R. 329). Nonetheless, Dr. Hughes decided to obtain an MRI-arthrogram. (R. 329). The test revealed an extremely attenuated supraspinatus tendon; however, there was no full-thickness tear or extravasation of fluid into the subacromial bursa, which suggested that Plaintiff’s rotator cuff was still intact. (R. 334).

Dr. Hughes reviewed the results of the MRI with Plaintiff on May 23, 2006, at which time Plaintiff reported that she had not experienced any improvement in strength or activity level. (R. 334). She had, however, experienced a significant increase in pain. (R. 334). After reviewing the results of the MRI with Plaintiff, Dr. Hughes recommended that she undergo arthroscopic revision surgery to address the tear, which Dr. Hughes performed on June 26, 2006. (R. 334).

Plaintiff had a post-operative follow-up on July 11. (R. 328). By this time, her wounds were well healed, but she remained in pain. (R. 328). Dr. Hughes decided to keep her out of work, sent her back to physical therapy, and kept her on Vicodin. (R. 328).

Plaintiff returned for another follow-up on August 22. (R. 327). Dr. Hughes noted that Plaintiff continued to experience pain, which worsened during therapy. (R. 327). As a result, Dr. Hughes instructed Plaintiff to stop attending therapy for a month. (R. 327). While Dr. Hughes noted that “this will put her at great risk for stiffness, ” he was more concerned about “trying to control [Plaintiff’s] pain symptoms.” (R. 327).

When Plaintiff was seen by Dr. Hughes on September 19, 2006, she reported that she continued to experience pain, despite the cessation of therapy. (R. 326). In view of that, Dr. Hughes decided to obtain another MRI-arthrogram to determine whether her rotator cuff had torn again. (R. 326). The MRI was performed on October 2, and the results revealed a large, full-thickness rotator cuff tear in a new location – the posterior edge of the supraspinatus, as opposed to the anterior edge where the previous tears had been. (R. 335). Based on the results of the MRI, Dr. Hughes decided to perform an open rotator cuff repair with a graft jacket supplementation to try to reinforce her tear and prevent future tearing. (R. 335). The surgery was performed on January 5, 2007. (R. 335).

Two months after the surgery, Plaintiff had a follow-up with Dr. Hughes. (R. 322). Plaintiff was undergoing physical therapy and was still in a lot of pain, for which she was taking Vicodin. (R. 322). Plaintiff reported that she did not think the Vicodin was very helpful. (R. 322). Dr. Hughes’ plan was to continue Plaintiff on physical therapy. (R. 322). He also prescribed her with Vicodin Extra Strength (“ES”) and prohibited her from returning to work. (R. 322). Dr. Hughes noted, however, that Plaintiff could possibly return to a modified-duty job in two months. (R. 322).

Plaintiff next presented to Dr. Hughes for treatment on March 20, 2007, for the first time complaining of pain in her left shoulder. (R. 320). Dr. Hughes ordered an MRI to determine whether the pain was the result of a torn rotator cuff. (R. 320).

At her next appointment with Dr. Hughes, on May 15, 2007, Plaintiff said that she felt like something may have popped in her right shoulder, which had been bothering her a bit more lately. (R. 319). Plaintiff thought that she should undergo an MRI to evaluate her condition. (R. 319). Dr. Hughes disagreed. (R. 319). “I told her that with [her] track record even if she has a retear I would not really recommend further surgical intervention, ” Dr. Hughes noted. (R. 319). With respect to Plaintiff’s left shoulder, Dr. Hughes noted that the recent MRI showed a small, full-thickness tear without retraction. (R. 319). Although Dr. Hughes felt that Plaintiff would probably benefit from surgery to mend the tear, he felt that she could not tolerate it well at the time because she was still recovering from the surgery on her right side. (R. 319). Plaintiff also reported that she had recently started to experience numbness and tingling in her right hand, and Dr. Hughes ordered an EMG to get to the root of the problem, the results of which were normal. (R. 319).

During Plaintiff July 3, 2007, appointment, Dr. Hughes noted that Plaintiff had probably suffered another re-tear in her right shoulder, which led him to believe that she would never return to normal function. (R. 317-18). He did not recommend further surgery, however, because he did not think he could do anything else to improve on what had previously been done. (R. 318). With regard to Plaintiff’s left shoulder, Dr. Hughes reiterated his earlier diagnosis of a small tear, which had probably been caused by Plaintiff’s increased reliance on her left side as a result of her prior right shoulder surgeries. (R. 318). At this point, Plaintiff did not want to do anything about the tear. (R. 318). Dr. Hughes continued her on Vicodin ES and referred her to a pain management clinic for long-term treatment. (R. 318). He noted that Plaintiff had been on narcotics for an extended period of time and may require them permanently to manage the pain in her right shoulder. (R. 318).

Plaintiff presented to Zongfu Chen, M.D., of UPMC Pain Medicine, for an initial examination on July 23, 2007. (R. 272). Plaintiff described experiencing pain, accompanied by a limited range of motion, mostly in her right shoulder, but she also reported recently having felt increased pain on her left side. (R. 318). She said that the pain was constantly bothering her. (R. 272). She described it as “sharp, stabbing, shooting, throbbing, tingling, tender, cold, aching, and constant.” (R. 272). When asked to rate the pain on a scale from one to ten, Plaintiff responded that it was nine-to-ten out of ten. (R. 272). Motion, weather changes, lifting, lying, and inactivity all made the pain worse. (R. 272). The pain was accompanied by weakness, numbness, and tenderness in the bilateral shoulders and sometimes radiated into her bilateral arms. (R. 272). Additionally, she described feeling some tingling in her hands. (R. 272). Plaintiff reported that she had been taking Vicodin ES four-to-five times daily but to no avail. (R. 272). Upon examination, Dr. Chen found that Plaintiff could use her right arm and her hand-grip strength was normal. (R. 273). However, while she had a normal range of motion in her left shoulder, she had a limited range of motion in her right shoulder as a result of the pain. (R. 273). She also displayed significant tenderness on the bilateral shoulders, most noticeably on the right side. (R. 273). Even with only a small touch of the shoulder, Plaintiff appeared to be in ...

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