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Jorich v. Colvin

United States District Court, Middle District of Pennsylvania

May 29, 2014

TIMOTHY J. JORICH, Plaintiff
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant

MEMORANDUM

ROBERT D. MANANI UNITED STATES DISTRICT JUDGE

Introduction

Plaintiff Timothy J. Jorich has filed this action seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Jorich's claim for social security disability insurance benefits.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured, " that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Jorich met the insured status requirements of the Social Security Act through December 31, 2012. Tr. 22, 24, 248. In order to establish entitlement to disability insurance benefits Jorich was required to establish that he suffered from a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).

Jorich protectively[1] filed his application for disability insurance benefits on August 6, 2008. Tr. 22, 248. Jorich claims that he became disabled on April 17, 2008. Id. Jorich has been diagnosed with several impairments, including cervical, thoracic, and lumbar spondylosis and stenosis, depression, coronary artery disease, diabetes, and hypertension. Tr. 24, 107, 118, 428, 431-34, 445. On November 12, 2008, Jorich's application was initially denied by the Bureau of Disability Determination. Tr. 79, 85.

On December 15, 2008, Jorich requested a hearing before an administrative law judge ("ALT). Tr. 22. The ALJ conducted a hearing on July 28, 2010, where Jorich was represented by a non-attorney representative. Tr. 35-73. On October 7, 2010, the ALJ issued a decision denying Jorich's application. Tr. 22-30. On June 22, 2012, the Appeals Council declined to grant review. Tr. 1. Jorich filed a complaint before this Court on August 17, 2012. Supporting and opposing briefs were submitted and this case became ripe for disposition on January 10, 2013, when Jorich filed a reply brief.

Jorich appeals the ALJ's determination on four grounds: (1) the ALJ committed reversible error by failing to acknowledge or properly evaluate all of Jorich's medically determinable impairments, (2) the ALJ improperly evaluated Jorich's credibility, (3) the ALJ improperly evaluated the opinions of two treating physicians, and (4) the ALJ failed to fully develop the record. For the reasons set forth below, this case is remanded to the Commissioner for further proceedings.

Statement of Relevant Facts

Jorich is 55 years of age, graduated from high school, and is able to read, write, speak and understand the English language. Tr. 39, 42-43. Jorich had past relevant work as a chocolate production machine operator, which is classified as heavy, skilled work. Tr. 67. Jorich performed this work for the same employer for approximately nineteen years prior to his application for disability insurance benefits. Tr. 254.

A. Jorich's Cervical Spinal Impairments

Medical records relating to Jorich's cervical spine impairments begin on February 7, 2007, the date of Jorich's first appointment for physical therapy with Scott Ramsey, DPT. Tr. 289. Over the course of the next month, Dr. Ramsey conducted eleven physical therapy session with Jorich aimed at reducing his back pain, neck pain, and associated headaches. Tr. 289-97.[2] At the completion of the physical therapy sessions, Dr. Ramsey noted a ninety-five percent improvement, with Jorich having a normal range of motion, normal strength, and a pain of zero on a scale of zero to ten. Tr. 300.

On August 13, 2007, a magnetic resonance imaging ("MRI") scan was performed on Jorich's cervical spine. Tr. 385. At the C3-C4 level, the MRI showed moderate left foraminal narrowing and shallow broad posterior disc osteophyte[3] with mild flattening of the anterior surface of the spinal cord. Id. At the C4-C5 level, the MRI showed severe left and moderate to severe right foraminal stenosis, [4] and posterior disc osteophyte with mild flattening of the anterior surface of the spinal cord. Id. Finally, at the C6-C7 level, moderate bilateral foraminal stenosis was present, as well as posterior disc osteophyte with mild flattening of the anterior surface of the spinal cord. Id.

On August 24, 2007, Lori Dunn, DO, began the first of three epidural injections in an attempt to relieve the symptoms associated with Jorich's cervical impairments. Tr. 321. Dr. Dunn noted that Jorich's previous physical therapy with Dr. Ramsey had helped reduce his pain significantly, but repetitive lifting at work had brought the pain back. Id.

On August 28, 2007, Jorich visited Amy Adkins, DPT, for an initial evaluation relating to physical therapy sessions. Tr. 304. At the evaluation, Dr. Adkins noted that Jorich suffered from back pain that led to difficulty gripping objects, performing work tasks, or heavy household chores, and led to difficulty lifting more than ten pounds. Id. Dr. Akins objective findings included reduced flexibility in Jorich's upper trapezius, hypomobility throughout the thoracic spine, and a painful, albeit full, range of motion in the neck. Id. Dr. Adkins also found that Jorich had 4-/5 strength in his serratus anterior, 3 strength in his mid-trapezius, and 3 strength in his latissimus dorsi. Id. Over the course of six physical therapy sessions, [5] Jorich saw no improvement, continued pain, and continued difficulty gripping objects. Tr. 312-13.

On September 13, 2007, Jorich presented to Dr. Dunn for the second of three epidural injections. Tr. 324. At this appointment, Jorich stated that the first epidural injection had not provided him with any relief, and that his physical therapy sessions over the past month had "actually worsened his symptoms." Id. On October 4, 2007, Jorich received his third and final epidural injection from Dr. Dunn. Tr. 319. Jorich reported that the epidural injections had provided him with, at most, ten percent relief of his symptoms. Id.

On November 6, 2007, Jorich was examined by William Beutler, MD, for a spinal consultation. Tr. 325. At this appointment, Jorich noted neck pain, but denied low back or lower extremity symptoms. Id. Dr. Beutler recorded normal strength and reflexes in Jorich's extremities, as well as a normal gait. Id. Dr. Beutler noted that Jorich's previous MRI showed mild spondylosis and left foraminal narrowing, and recommended that Jorich maintain a twenty pound lifting limit and avoid repetitive bending or twisting. Tr. 325-26.

On July 11, 2008, Jorich was examined by Daniel Kambic, DO for a follow-up appointment. Tr. 120. Dr. Kambic stated that Jorich's neck issues were severe enough that he required surgery; however, Jorich first required a heart catheterization and stents before he would be medically cleared for a cervical spine operation. Id. While Jorich complained of serious and uncontrolled neck pain, Dr. Kambic noted that, without surgery, there was "nothing [he] could do to fix the spine., ." Id. Dr. Kambic further stated that conservative therapy, epidural shots, and physical therapy had failed. Id. While IV Decadron shots had somewhat eased the pain, Dr. Kambic believed Jorich could not be kept on steroid injections long term. Id. Finally, Dr. Kambic noted that Jorich's pain and depression were "feeding on each other." Id. At this appointment, Jorich was diagnosed with cervical disc syndrome, coronary artery disease, depression/anxiety, hypertension, and hyperlipidemia. Id. Dr. Kambic conducted a follow-up on August 8, 2008. Tr. 199. Dr. Kambic noted that surgery for Jorich's spinal issues was not an option since Jorich could not be taken off of Plavix, a blood thinner that he was prescribed following heart surgery. Id. Jorich continued complaining of neck pain and associated weakness, although a physical examination was essentially normal and revealed 5/5 strength in all extremities. Id.

On August 27, 2008, Jorich was examined by Amy Zellers, DO. Tr. 118. Jorich reiterated that his neck issues caused pain and tingling down his arms, and stated that the pain had become unbearable. Id. Dr. Zellers noted that, because Jorich was taking Plavix, the earliest that he could have neck surgery was April 2009. Id. On September 12, 2008, Jorich presented to Dr. Beutler for a follow-up appointment. Tr. 379. Jorich discussed worsening neck pain that radiated down through his shoulders. Id. Dr. Beutler noted a mostly normal physical examination, with some stiffness present in Jorich's neck. Id.

On September 15, 2008, another MRI scan was performed on Jorich's cervical spine. Tr. 112. This MRI revealed marked left foraminal stenosis at the C3-C4 level, with moderate hypertrophic changes as compared to the previous MRI. Id. At the C4-C5 level, the MRI revealed marked left and mild right foraminal stenosis and a very small central disc protrusion or herniation, and moderate central canal compromise or stenosis. Id. At the C5-C6 level, there was mild foraminal stenosis, mild posterior ridge formation, and mild central canal compromise or stenosis. Id. Finally, at the C6-C7 level, there was a very small central disc protrusion or herniation. Id.

On October 10, 2008, Jorich returned to Dr. Beutler for a follow-up. Tr. 128. Jorich stated that he continued to have neck pain, but the pain level had decreased since he was put on disability leave. Id. A physical examination was essentially normal, with normal strength, sensation, and reflexes, but stiffness associated with Jorich's range of motion in the neck. Id. Dr. Beutler noted that the September 2008 MRI revealed foraminal stenosis primarily from the C3 to C5 vertebrae with mild canal stenosis at the C5-C6. Id. After reviewing surgical options, Dr. Beutler and Jorich agreed that a conservative approach to treatment would be best. Id.

Over the next year, Jorich had multiple appointments with several doctors who attempted to alleviate his cervical spine issues. Tr. 100, 103, 107, 108, 109, 408-09, 410, 413, 415, 418, 427, 432, 433, 434, 435, 436, 438, 441.[6] The doctors continued to note cervical stenosis and neuritis, with continued pain, tingling, and numbness in the arms and hands. Id. Despite treatments including epidural shots, ...


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