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Wilson v. Colvin

United States District Court, M.D. Pennsylvania

August 19, 2014

JOY M. WILSON, Plaintiff,

MEMORANDUM Docs. 1, 6, 7, 9, 12

GERALD B. COHN, Magistrate Judge.

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the application of Plaintiff Joy M. Wilson for supplemental security income ("SSI") and disability insurance benefits ("DIB"). In concluding that Plaintiff was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"), the administrative law judge ("ALJ") rejected Plaintiff's testimony and a state agency consultative medical opinion, the only medical opinion in the record. Specifically, the ALJ rejected claims that Plaintiff could not lift more than ten pounds, could never bend, stoop, or kneel, and could not sit, stand, or walk for a combined eight hours out of an eight hour work day. The ALJ rejected these claims because Plaintiff's treatment was conservative, medical imaging and physical exams revealed only minimal objective abnormalities, and because Plaintiff was able to engage in extensive household chores and other activities of daily living ("ADLs"). However, the ALJ failed to acknowledge Plaintiff's explanation for her conservative treatment, namely, her loss of insurance. A lack of objective findings, alone, is insufficient to reject credibility where there is a medically determinable impairment that could be reasonably expected to produce Plaintiff's symptoms. While Plaintiff's activities of daily living suggest that, with a sit/stand option, she might be able to engage in eight hours of work, the ALJ did not elicit testimony from a vocational expert ("VE") regarding a sit/stand option. Absent an appropriate evaluation of Plaintiff's ability to sit for long periods of time, the Court cannot conclude that substantial evidence supports the ALJ's determination that Plaintiff would be able to engage in a range of sedentary work. Accordingly, the case will be remanded.

II. Procedural Background

On June 21, 2010, Plaintiff filed an application for SSI under Title XVI of the Social Security Act and for DIB under Title II of the Social Security Act. (Tr. 105-114). On October 5, 2010, the Bureau of Disability Determination denied these applications (Tr. 54-65, 84-93), and Plaintiff filed a request for a hearing on December 6, 2010. (Tr. 94-95). On October 25, 2011, an ALJ held a hearing at which Plaintiff, who was represented by an attorney, Plaintiff's boyfriend, and a vocational expert appeared and testified (Tr. 23-53). On November 4, 2011, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 65-83). On December 30, 2011, Plaintiff filed a request for review with the Appeals Council (Tr. 6-7), which the Appeals Council denied on July 19, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On September 17, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On November 15, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 6, 7). On January 9, 2014, Plaintiff filed a brief in support of her appeal ("Pl. Brief") (Doc. 9). On March 17, 2014, Defendant filed a brief in response ("Def. Brief") (Doc. 12). On May 5, 2014, the Court referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of this case for adjudication to the undersigned Magistrate Judge on July 3, 2014, and an order referring the case to the undersigned Magistrate Judge for adjudication was entered on July 16, 2014. (Doc. 15, 16).

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. 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 is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean a large or considerable amount of evidence." Pierce v. Underwood , 487 U.S. 552, 564 (1988). Substantial evidence requires only "more than a mere scintilla" of evidence, Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999), and may be less than a preponderance. Jones , 364 F.3d at 503. If a "reasonable mind might accept the relevant evidence as adequate" to support a conclusion reached by the Commissioner, then the Commissioner's determination is supported by substantial evidence. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999); Johnson , 529 F.3d at 200.

IV. Sequential Evaluation Process

To receive disability or supplemental security benefits, a claimant 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). The Act requires that a claimant for disability benefits 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).

The Commissioner uses a five-step evaluation process is used to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer , 186 F.3d at 428. If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala , 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

V. Relevant Facts in the Record

Plaintiff was born on October 25, 1969 and was classified by the regulations as a "younger individual" through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 105). She has at least a high school education and past relevant work as an emergency medical technician, mental health worker, and cosmetologist (Tr. 77, 134).

On August 10, 2004, Plaintiff saw Dr. James T. Croley, M.D., for a physical. (Tr. 408). She reported that she had noticed a "curve" in the upper part of her back and discomfort in her lower back since giving birth to her youngest child in 2003. (Tr. 408). X-rays of Plaintiff's lumbar and thoracic spine on September 1, 2004 were normal. (Tr. 410, 533). An MRI of the brain on January 20, 2005 was normal. (Tr. 535). Plaintiff underwent a hysterectomy on June 8, 2005. (Tr. 431). She tolerated the procedure well and was discharged in stable condition. (Tr. 431). On November 1, 2005, Plaintiff saw Dr. Croley complaining of pain in her knees, but she reported that her health was otherwise "good." (Tr. 455). On November 3, 2005, x-rays of Plaintiff's knees were normal. (Tr. 536). She was evaluated for knee pain and "some pain in other areas of her body" on November 16, 2005, and was referred to a rheumatologist. (Tr. 497). Her blood work was normal, she had a normal gait, and her sensory exam was intact. (Tr. 464-64, 497).

On February 26, 2007, Plaintiff saw Dr. Joseph Zienkiewicz, D.O. complaining of back pain. (Tr. 232). She indicated that her pain had worsened since the birth of her son three years earlier and that, as an EMT, she was frequently lifting patients onto gurneys. (Tr. 232). He prescribed her Flexeril, Ibuprofen, and scheduled a physical therapy consultation. On March 19, 2007, Plaintiff was evaluated for physical therapy admission at Schuylkill Rehabilitation Center. (Tr. 177). She was working full-time, "full-duty" as an EMT. (Tr. 177). Plaintiff was seen for two to three weeks and was discharged on April 27, 2007. (Tr. 178). She reported 70-75% improvement with respect to decreased pain intensity and frequency, increased range of movement, and greater ease doing ADL's. (Tr. 178). Notes indicate that "[p]atient is functional, patient is working full time, full duties." (Tr. 178).

Plaintiff lost her job on April 25, 2008. (Tr. 133). Plaintiff saw Dr. James Croley, M.D. on June 3, 2008 for evaluation of back pain. (Tr. 217). Plaintiff's gait was normal, sensory exam was intact, and she denied weakness or change in bowel or bladder habits. (Tr. 217). Notes indicate that she had been to "physical therapy and felt that it did not help" and that it "aggravated it more." (Tr. 217, 220). Dr. Croley ordered an updated an MRI and planned to follow-up with Plaintiff after reviewing the MRI. (Tr. 217).

On June 4, 2008, an MRI of the lumbar spine indicated multilevel degenerative disc disease/osteoarthritis, with findings most pronounced at L5-S1, "where discogenic disease marginally abuts the S1 nerve roots. No significant compression of the thecal sac, which is tapering at and below the level of the disc space. There is bilateral facet joint osteoarthritis and bilateral foraminal narrowing." (Tr. 192, 277). Specifically, the findings indicate that "[s]agittal lumbar alignment appears maintained. Disc desiccation at L5-S1. Lumbar disc heights appears relatively maintained. Minimal multilevel anterior osteophyte. Conus medullaris tapers at the L2 level."

Plaintiff saw Dr. Croley on July 3, 2008 to go over her MRI. (Tr. 216). Dr. Croley noted that Plaintiff "was found to have a significantly herniated disc at L5-S1... It was suggested that she have a consult with Neurosurgery. She will consider this option." (Tr. 212). She was still experiencing back pain, but her gait was normal and her sensory exam was intact. (Tr. 212, 216).

On June 28, 2010, Plaintiff saw Dr. Georgetta Lupold, M.D., Dr. Croley's successor.[1] (Tr. 206). She explained that she had not returned for treatment of her back pain because she lost her insurance. (Tr. 206). She reported that she has pain all day, every day most of the time. (Tr. 206). She reported that she had been using Darvocet rarely at night and Tylenol arthritis during the day. (Tr. 206). Her pain was in the left lumbar spine area, although she also complained of tingling in her legs and numbness in her arms, hands, and fingers. (Tr. 206). She reported that her physical therapy in 2008 "helped somewhat." (Tr. 206). She was "chronically ill appearing." (Tr. 206). She had tenderness in the left lumbar spine area into the sacroiliac joint, some limitation of flexion, and a mildly positive straight leg raise on the left, but no curvature to forward bending, normal heel walk and toe walk without evidence of muscle weakness, normal strength and reflexes in upper and lower extremities bilaterally, and no joint selling or deformity. (Tr. 207). Dr. Lupold planned to have her try physical therapy and take ibuprofen. (Tr. 207). Dr. Lupold noted that she explained that Plaintiff's "hand weakness and intermittent tingling was NOT related to her lower back and probably NOT carpal tunnel. It does not follow dermatome distribution." (Tr. 207).

On July 26, 2010, Plaintiff saw Dr. Lupold because she claimed she could not continue with physical therapy without "another note." (Tr. 201, 204). Notes indicate that Plaintiff "and therapist apparently feel the therapy is aggravating her back pain. Last week she had gone on an exercise bike and she had to be helped off the bike to walk out of therapy. Unable to do any back extension exercises in therapy." (Tr. 201). Plaintiff had been using Ibuprofen and Darvocet "off and on but not together and not continuously-will try ibuprofen continuously and add Darvocet." (Tr. 201). Plaintiff reported severe pain in her back and right knee and tingling in her hands. (Tr. 204). Plaintiff was in moderate distress. (Tr. 201). She ambulated "with knees stiff and leaning slightly forward barely moving her back with a shuffle step." (Tr. 201). She had "mild swelling" in her knees and tenderness in her back. (Tr. 201). Dr. Lupold indicated that they would "try therapy through this week and if still aggravating, not complete the course." (Tr. 202).

However, the physical therapy notes do not corroborate Plaintiff's claims that her physical therapist would not let her continue without another note. Progress notes from all of her therapy visits prior to July 26, 2010 indicate that the plan was to continue physical therapy. (Tr. 245-46). In the therapy appointment that immediately preceded her July 26, 2010 appointment with Dr. Lupold, the notes indicate that the plan was to continue her exercises as tolerated. (Tr. 246). Plaintiff reported pain on July 27 and July 29, 2010, but the notes indicate that the plan ...

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