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McCleave v. Colvin

United States District Court, M.D. Pennsylvania

August 15, 2014

EARLEEN B. MCCLEAVE, Plaintiff
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM TO DENY PLAINTIFF'S APPEAL Docs. 7, 8, 11

GERALD B. COHN, Magistrate Judge.

I. Procedural History

On February 26, 2009, Earleen B. McCleave ("Plaintiff") protectively filed an application for Title II Social Security Disability benefits ("DIB"), with an onset date of January 15, 2009. (Tr. 25-26).

This application was denied, and on July 13, 2010, a hearing was held before an Administrative Law Judge ("ALJ"), where Plaintiff was represented by counsel. (Tr. 10). Plaintiff and a vocational expert testified. On September 14, 2010, the ALJ issued a decision finding that Plaintiff was not entitled to DIB because Plaintiff could perform her past relevant work as an order clerk at Williams-Sonoma in customer service for their catalogue business. (Tr. 7-21). On April 19, 2012, the Appeals Council denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-4).

On June 18, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1.

On August 31, 2012, Commissioner filed an answer and administrative transcript of proceedings. Docs. 6, 7. In September and October 2012, the parties filed briefs in support. Docs. 8, 11. On April 29, 2014, the Court referred this case to the undersigned Magistrate Judge. On June 16, 2014, the parties consented to Magistrate Judge jurisdiction. Doc. 13.

II. Standard of Review

When reviewing the denial of disability benefits, we must determine whether the denial is supported by substantial evidence. Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec. , 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood , 487 U.S. 552, 564 (1988); Hartranft v. Apfel , 181 F.3d 358, 360. (3d Cir. 1999); Johnson , 529 F.3d at 200.

This is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only "more than a mere scintilla" of evidence. Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). It may be less than a preponderance. Jones , 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner's determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986).

To receive disability or supplemental security benefits, Plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A).

Moreover, the Act requires further that a claimant for disability benefits must show that he has a physical or mental impairment of such a severity that: "he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

III. Relevant Facts in the Record

A. Background

Plaintiff alleges she became disabled on January 15, 2009 when her job was terminated due to lack of work (Tr. 25-26). Following the termination of her job, Plaintiff applied for and received unemployment compensation through June 17, 2010 (Tr. 27). In connection with her application for unemployment compensation benefits, Plaintiff informed the state that she was able to work and available to work (Tr. 28). At the time she certified that she was able to work, she testified that she believed she would only be able to work for three to four hours a week but she did not disclose that understanding in her claim for benefits (Tr. 28, 32).

Plaintiff is a high school graduate (Tr. 28) and she previously worked full-time at Williams-Sonoma in customer service for their catalogue business (Tr. 40). Following back surgery, Plaintiff returned to her past job as an order clerk for Williams-Sonoma and was encouraged by her orthopedic surgeon to remain as active as possible. Most of her duties at Williams-Sonoma were performed while sitting down and she had the ability to change positions (Tr. 42).

Plaintiff alleges that her daughter, son, sisters and grandchildren help with her household chores (Tr. 42). She is, however, able to drive, visit with her family, go to church twice a month, and walk short distances (Tr. 169). Plaintiff uses a cane in her right hand at all times (Tr. 42-43). According to Plaintiff's Function Report, it takes her about 20 minutes to get out of bed (Tr. 168). After dressing, she goes downstairs (about 15 steps) to prepare her meals, which consist of either a microwaveable dish or a bowl of cereal (Tr. 168). Plaintiff's family assists her with the meals (Tr. 168). Plaintiff can perform light, sedentary housework, such as dusting the coffee table or knick-knacks if she is sitting (Tr. 169).

B. Relevant Medical Evidence

1. Plaintiff's Medical Treatment

In January 2008, Plaintiff underwent an L4-L5 laminectomy to treat her left lower extremity radiculopathy, degenerative spondylolisthesis, L4-5, and lumbar spinal stenosis, L4-5 (Tr. 231-33). Plaintiff was discharged several days later following an uncomplicated postoperative course (Tr. 257). Several days later, she was given a prescription for physical therapy (Tr. 210).

On February 14, 2008, Plaintiff began her physical therapy and reported improvement in her symptoms since surgery (Tr. 212). Plaintiff advised that she had low back pain and sciatica pain down her left leg prior to surgery, but was only having mild pain post-surgery (Tr. 212). She reported that she currently has some difficulty ambulating stairs but is able to complete the task (Tr. 213). She also reported a walking and standing tolerance of five minutes (Tr. 213). Plaintiff rated her pain as a "1" on a scale of 1 to 5, which correlates to mild pain (Tr. 213).

That same day, Plaintiff had her first follow-up visit with her orthopedic surgeon, Mark A. Knaub, M.D. (Tr. 241). Dr. Knaub reported that Plaintiff was doing well, although she continued to have back pain (Tr. 241). She did not report any leg pain (Tr. 241). According to Dr. Knaub, x-rays of Plaintiff's lumbar spine taken that day showed no change in the position of the implants or alignment of the spine (Tr. 241). Dr. Knaub concluded that Plaintiff was doing well clinically and radiographically (Tr. 241).

Throughout February and March, Plaintiff attended physical therapy (Tr. 216, 221-22). On March 11, 2008, Plaintiff's physical therapist, Ryan Mackey, D.P.T., reported that Plaintiff had made progress in physical therapy in all of her long-term goals with the exception of right lower extremity strength (Tr. 216). However, Plaintiff had improved in balance, strength, standing and walking tolerance, and gait pattern (Tr. 216). For instance, Plaintiff reported on March 11th that her low back pain and lower extremity pain ranged from 0 to 1 on a scale of 1 to five (Tr. 217). On that day, she further advised that she had slight right lower extremity soreness due to increased walking over the weekend (Tr. 217, 222). Furthermore, Plaintiff was able to ambulate primarily with the use of a single point cane for up to 13 minutes (Tr. 217). She showed improved stride length bilaterally and more equal weight bearing through her bilateral lower extremities (Tr. 217). She also continued to ambulate up and down steps with a step-to gait pattern independently using one rail and one single point cane (Tr. 217).

On March 13, 2008, Plaintiff saw a clinical nurse specialist in Dr. Knaub's office and reported that her pain was a "2" on a scale of 1 to 10 (Tr. 266). The nurse indicated that the x-rays taken of her spine that day showed that the hardware was intact and that her spine was in normal alignment (Tr. 266). Plaintiff reported discomfort in her right thigh, but stated that a heating pad relieves it somewhat (Tr. 266). Plaintiff reported walking with assistance of a cane outside of the house and getting around inside of the house without the cane (Tr. 266). Plaintiff, who was not taking any pain medication at that time, also asked if she could resume driving (Tr. 266). The nurse reported that Plaintiff was doing very well overall (Tr. 266).

On April 15, 2008, Plaintiff was discharged from physical therapy at her own request (Tr. 219). The physical therapist reported that Plaintiff reported no leg pain but some low back pain after cleaning and ambulation tasks (Tr. 219). She also reported adherence to her home exercise program and a standing and walking tolerance of 15 minutes (Tr. 219).

On May 15, 2008, Plaintiff visited Dr. Knaub for her post-surgical checkup (Tr. 239). She had returned to work at that point and reported that she continues to have low back pain that is improving somewhat (Tr. 239). Dr. Knaub concluded that Plaintiff was doing well, that physical therapy had improved her symptoms somewhat, and that she could continue her activities of daily living as tolerated without restrictions (Tr. 239). At this point, she was taking Naproxyn for her discomfort (Tr. 239).

By August 2008, Plaintiff was six-and-a-half months post surgery and reported to Dr. Knaub she continued to have some pain in her low back but no leg pain (Tr. 237). Dr. Knaub concluded she was doing well overall and could continue with her activities as tolerated (Tr. 237).

One year following her surgery, Plaintiff reported to Dr. Knaub that her pain had decreased since her last visit (Tr. 235). Although she continued to have some intermittent, achy, low back pain and some sharp pain over her right lumbar spine, she advised this pain was infrequent and responded to some massaging (Tr. 235). She reported difficulty standing for prolonged periods of time due to this discomfort (Tr. 235). Dr. Knaub indicated that x-rays taken of her back that day showed she maintained alignment of her spine with mild scoliosis (Tr. 235). She also had some lucencies around her screws but no evidence of instability (Tr. 235). He reported that it was difficult to determine whether she had a solid fusion underneath the hardware, but he did not think any further treatment was needed (Tr. 235).

On August 24, 2009, Plaintiff visited Dr. Knaub and reported continued pain in her back on the right side radiating down her right flank, as well as left leg pain radiating down her thigh and calf (Tr. 326). However, Plaintiff also stated that she felt better than she did a year prior (Tr. 326). Plaintiff was using a cane to ambulate (Tr. 326). X-rays of her spine were taken that day, and Dr. Knaub concluded from the films that Plaintiff did not have a clear fusion and may have a pseudoarthrosis (Tr. 326). However, Dr. Knaub also opined that he did not believe that her symptoms were coming from the failure of fusion because she reported feeling better than she did a year ago (Tr. 326). Dr. Knaub did not feel that any treatment was necessary other than monitoring her symptoms (Tr. 326).

On February 21, 2010, Plaintiff visited Dr. Knaub complaining of low back pain that radiated down her thigh and leg (Tr. 381). Dr. Knaub noted that she does not have clear evidence of fusion on her x-rays, and therefore, her symptoms could be a result of the failure of fusion (Tr. 381). He discussed treatment options with Plaintiff, including epidural injections and possible surgery to correct the pseudoarthrosis (Tr. 381). Plaintiff advised that she was not interested in treatment, and Dr. Knaub concluded that he did not think her situation was dangerous in any way that would necessitate more aggressive treatment (Tr. 381).

2. Medical Opinions

On May 20, 2009, Bruce Goodman, M.D., completed a consultative examination of Plaintiff (Tr. 291-95). Plaintiff reported to Dr. Goodman that she had not improved since her surgery and continued to have back and leg pain (Tr. 291-92). She reported living in a two-story home and receiving assistance from her family with cooking and cleaning (Tr. 292).

On physical examination, Plaintiff had a reciprocal heel-toe gait pattern with small steps (Tr. 292). She was reluctant to attempt toe and/or heel walking independently and used a cane with her right hand (Tr. 292). Plaintiff's straight leg-raising test from a sitting position was negative and there was no great toe weakness (Tr. 292). Plaintiff's sensory system was normal and her patella and Achilles reflexes were brisk and equal bilaterally (Tr. 292). From the supine position, Plaintiff restricted straight ...


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