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Sweeney v. Colvin

United States District Court, M.D. Pennsylvania

August 28, 2014


MEMORANDUM Docs. 1, 8, 9, 10, 11

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 Brittany Sweeney for supplemental security income ("SSI") and disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"). The ALJ found that Plaintiff could engage in a range of light work, and a vocational expert testified that various positions existed in the national economy that Plaintiff could perform, such as potato chip sorter. Plaintiff was nineteen-years old on the date of her application. She asserts that back pain renders her unable to work, but she either worked (sometimes up to almost sixty hours per week) or certified that she was able to work throughout the relevant period. Although one doctor, Dr. David Baker, indicated that she "might" need surgery and, if she went through with the surgery she "might" be temporarily disabled, no treating physician actually opined that her back impairment rendered her unable to work. She had only minimal objective abnormalities and denied having musculoskeletal pain on many occasions during the relevant period. She asserts that her mental impairments rendered her unable to work, but she refused to obtain mental health treatment because she did not want medications to make her gain weight. Although Plaintiff asserts that the ALJ improperly evaluated her impairments, credibility, and medical opinions, the Court finds that substantial evidence supports the ALJ's decision and denies Plaintiff's appeal.

II. Procedural Background

On October 7, 2009, 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. 272-283). On May 21, 2010, the Bureau of Disability Determination denied these applications (Tr. 121-145), and Plaintiff filed a request for a hearing on June 29, 2010. (Tr. 127-28). On May 10, 2011, October 19, 2011, and February 7, 2012, an ALJ held a hearing at which Plaintiff-who was represented by an attorney-and a vocational expert appeared and testified. (Tr. 23-109). On February 23, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 8-21). On April 28, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 7), which the Appeals Council denied on July 2, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-6).

On August 26, 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 4, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 8, 9). On December 19, 2013, Plaintiff filed a brief in support of her appeal. ("Pl. Brief") (Doc. 10). On February 23, 2014, Defendant filed a brief in response. ("Def. Brief") (Doc. 11). On May 1, 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 21, 2014, and an order referring the case to the undersigned Magistrate Judge for adjudication was entered on August 1, 2014. (Doc. 14, 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, " 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 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 from 20 C.F.R. Part 404, Subpart P, Appendix 1; (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 January 14, 1990 and was classified by the regulations as a "younger individual" through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 34). She has at least a high school education and past relevant work as a laborer, stores, fast food worker, and sales attendant. (Tr. 19, 41).

Work Records

The Plaintiff is asserting that her back pain and mental impairments were disabling during a relevant period from her amended alleged onset date of January 1, 2010 (Tr. 94) to the decision date on February 23, 2012. During the entire relevant period, however, she was either earning wages by working, sometimes up to almost sixty hours per week, or certifying that she was "able to work" in order to receive unemployment. She earned a total of $8, 317.34 from wages in 2010 and, as of October 19, 2011, earned a total of $5, 792.00 (Tr. 301). She also received $1, 410 in unemployment in the first quarter of 2010, $280.00 in unemployment in both the second and third quarters of 2010, $2, 443.00 in unemployment in the first quarter of 2011, $825.00 in unemployment in the second quarter of 2011, and $599.00 in unemployment in the third quarter of 2011. (Tr. 294-95). She certified every two weeks while she received unemployment that she was "able to work." (Tr. 38). She testified that, while she was receiving unemployment and certifying that she was able to work, she was capable of performing "light duty" jobs, like a receptionist. (Tr. 38). She continued receiving unemployment until she received a letter at the beginning of October that her benefits were "exhausted." (Tr. 37). By October 11, 2011, Plaintiff had secured her next job as a photographer. (Tr. 53).

Specifically, Plaintiff reported on her work history report that she stopped working for Rudder's farm on January 25, 2010. (Tr. 93). She received unemployment in the second and third quarters of 2010. (Tr. 294-95). She worked at Arby's in August of 2010. (Tr. 362). She worked at Carlisle Hotels for eight months, from August 2010 to April 2011. (Tr. 362). She reported that she worked at Wendy's from September 2010 to November 2010 but started working at Amazon from November 2010 to March 2011 because Amazon paid better. (Tr. 51, 293, 362). She was still working at Carlisle Hotels. (Tr. 51, 293-94).

Plaintiff indicated that, at Amazon, she was driving an order picker, picking up customer orders, pushing boxes off a belt onto trucks, applying shipping labels, and lifting up to twelve pounds. (Tr. 361). However, Plaintiff testified at the hearing that she never lifted ten pounds or more. (Tr. 48). An earnings report from Amazon shows that Plaintiff was frequently able to work more than forty hours per week. (Tr. 307). For instance, during the week of December 5, 2010, she worked fifty hours. (Tr. 307). She earned overtime the next two consecutive weeks, working 57.6 hours the week of December 12, 2010 and 44.25 hours the week of December 19, 2010. (Tr. 307). She worked 41.75 hours the week of January 21, 2011, and then earned overtime hours for five consecutive weeks in February and March of 2011 (42.35 hours the week of February 6, 2011, 45.5 hours the week of February 13, 2011, 48.25 hours the week of February 20, 2011, 42.25 hours the week of February 27, 2011, and 40.25 hours the week of March 6, 2011). (Tr. 308). At the hearing on October 19, 2011, she did not testify to any problems while working at Amazon, and she explained that she stopped working there because she was laid off. (Tr. 48).

Plaintiff also began working as a photographer on October 11, 2011. (Tr. 53). While working as a photographer, Plaintiff worked for Amazon again in November and December of 2011, including another week of overtime the week of November 13, 2011. (Tr. 308). However, Plaintiff failed to mention her recent work with Amazon at the hearing on February 7, 2012, and testified that she had quit her job at Amazon in March of 2011 because she could not "stand working all those hours." (Tr. 94). She was working as a photographer less than twenty hours a week at the time of the hearing on October 19, 2011, but by the time of the hearing on February 7, 2012, she testified that she was working three days and twenty hours a week. (Tr. 54, 91).

Medical Records

Plaintiff was treated at the Stevens Center for mental health issues from 2005 to 2007, when she was between the ages of 15 and 17. (Tr. 385-435). She was diagnosed at various times with Major Depressive Disorder, Panic Disorder with agoraphobia, Bipolar Disorder, impulse control disorder, not otherwise specified, ADHD, and polysubstance abuse. (Tr. 391, 401, 405, 409, 426). She reported current use of marijuana and cocaine along with past use of codeine, crack cocaine, alcohol, ecstasy, and Vicodin. (Tr. 421). She indicated that she was involved in the criminal justice system and on probation due to fighting at school. (Tr. 425, 433). Her medications included Lexapro, Abilify, Strattera, Depakote, Effexor, Seroquel, Zoloft, Trazadone, and Paxil. (Tr. 387-89). Plaintiff went to rehab three times. (Tr. 65, 964).

On June 21, 2008, shortly after Plaintiff graduated high school, x-rays of Plaintiff's lumbar spine indicated grade 1 spondylolisthesis at L5-S1. (Tr. 486, 771). Compared to a report from 2006, the spondylolisthesis had increased. (Tr. 771). There was "also spina bifida occulta at the L6 level." (Tr. 771). Plaintiff reported that her back had been bothering her for about seven months since her friend stood on her back and tried to crack it. (Tr. 760). She was prescribed physical therapy two to three times per week. (Tr. 760). On August 7, 2008, Plaintiff was evaluated for low back pain and pain in her right hip by David Black, PA-C and Dr. Timothy Reiter, M.D. (Tr. 487). She had a negative straight leg raise, normal strength and gait, and no muscle spasm, although her lumbar spine was tender to palpation. (Tr. 488). He prescribed her Vicodin and Flexeril and told her to continue with physical therapy. (Tr. 488).

On September 8, 2008, Plaintiff followed up with Mr. Black and Dr. Jonas Sheelan, M.D. (Tr. 484). A CT scan indicated Grade I anterolisthesis of L5 on S1 with bilateral L5 pars defects and evidence of spina bifida occulata, along with asymmetry that "possibly represent[ed] a conjoint nerve root, a nerve root cyst, and much less likely a disc herniation." (Tr. 482, 484-85). They referred her to pain management recommended lumbar epidural steroid injections, opining that surgery would not "significantly improve her current pain." (Tr. 482). On September 11, 2008, an MRI of the lumbar spine was normal except for "grade 1 spondylolisthesis at L5-S1" that was not causing spinal stenosis or neural foramen narrowing. (Tr. 769).

On October 8, 2008, Plaintiff's physical therapist, Tara L. Brenner, MPT, provided a recommendation to Plaintiff's employers that she be "allowed to sit periodically throughout her workshift to allow for the decompression of spinal segments." (Tr. 735).

On October 16, 2008, Plaintiff was evaluated in the pain management clinic by Dr. David Giampetro. (Tr. 481). She reported that she was "able to do activities of daily living such as dressing, taking a shower, doing light household chores" and that she "has managed to keep her job at a convenient store where she is employed making sandwiches." (Tr. 479). Walking made her unsteady and she had a positive facet loading test, but she had normal strength and her straight leg raising test was negative bilaterally. (Tr. 480). She was prescribed pain medication, referred to Orthotics for a brace, and scheduled for an injection of her bilateral facet joint area. (Tr. 480). Plaintiff had the injection on October 31, 2008 and tolerated the procedure well, but her pain allegedly remained unchanged. (Tr. 478).

However, Plaintiff did not mention back pain again until almost a year later, on October 2, 2009, the same date she protectively applied for SSI. (Tr. 309). The week after her October 31, 2008, injection, she stopped showing up for physical therapy appointments. (Tr. 736). On January 19, 2009, Plaintiff was discharged from physical therapy because she "failed to show up for last 3 P.T. visits, has not scheduled additional visits or been in contact with this facility such that it is presumed that patient has no intention of additional P.T. intervention at present." (Tr. 736). She had last shown up on November 3, 2008. (Tr. 736). On January 28, 2009, Plaintiff reported that she had injured her neck while "doing a back flip." (Tr. 522). Plaintiff was treated over the next nine months for various illnesses at Three Springs, for fever at Holy Spirit Hospital, and for a laparoscopy and subsequent complications at Hershey Medical Center and never mentioned back pain. (Tr. 438-42, 444, 453-463, 467-68, 471, 512-534). Hospital notes on September 13, 2009 indicate that, aside from the complications from the diagnostic laparoscopy, she was a "19-year old otherwise healthy female." (Tr. 455). She had "no other complaints or concerns at this time." (Tr. 457).

On October 2, 2009, Plaintiff filed for SSI. (Tr. 309). The same day, she followed up with Dr. Sheehan and Mr. Black, and complained of back pain. (Tr. 449). An x-ray of Plaintiff's lumbar spine indicated bilateral pars interarticularis defects at L5 with grade 1 spondylolisthesis and moderate lower lumbar facet arthrosis. (Tr. 448). Although Plaintiff had stopped showing up for her physical therapy appointments the week after receiving an epidural injection, she reported to them that her injection only increased her pain and that she had completed physical therapy in a "6-8 month" course without helping her symptoms. (Tr. 449). Although Plaintiff had never mentioned back to her providers at Three Springs, she stated that they were refusing to treat her back pain because it was "out of their hands since she had been referred up here." (Tr. 449). They ordered additional imaging and referred Plaintiff to the Ortho Spine Department and Pain Management Department. (Tr. 449). At this time, Plaintiff was still working at Rudder's Farm. (Tr. 286). She was earning between $1, 600.00 and $1, ...

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