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Kovach v. Colvin

United States District Court, M.D. Pennsylvania

September 26, 2014



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 Eileen Kovach for disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"). In this case, Plaintiff's primary physical impairments are lumbar spinal stenosis and rheumatoid arthritis ("RA"), which flared in her knees, hands, feet, neck, shoulders, and elbows during the relevant period. The ALJ found that Plaintiff could engage in light work. Both Plaintiff's treating physician and the state agency physician opined that Plaintiff was able to perform, at best, sedentary work. No physician opined that Plaintiff could perform light work. If Plaintiff had been limited to sedentary work, a finding of disabled would have been required. The state agency physician characterized Plaintiff's treatment, which included "long-term, high risk" medications, injections, physical therapy, braces, and multiple surgeries, as aggressive. The ALJ, who reviewed the same medical evidence as the state agency physician, concluded that Plaintiff's treatment was conservative, in part because she did not require "repeated surgical intervention." The state agency physician concluded that Plaintiff's treatment was generally not successful, but the ALJ concluded that her treatment was effective. An ALJ is not entitled to reinterpret objective medical evidence to discount the opinion of a physician who presents competent evidence. This is particularly true where, as here, the ALJ is not choosing one opinion over another, but is instead rejecting every opinion in the record in favor of her own interpretation of medical evidence. Unlike the ALJ, the state agency physician cited to multiple treatment notes from Plaintiff's treating rheumatologist. In contrast, the ALJ ignored most of these treatment notes, and instead cited the treatment record from Plaintiff's primary care physician, who generally treated her for obesity and diabetes. Unlike the ALJ, the state agency physician specifically cited Plaintiff's long treating relationship with her rheumatologist, and found his notes to be consistent with the record. Unlike the ALJ, the state agency physician found Plaintiff's statements regarding her impairments to be fully consistent with the medical record. The ALJ does not have medical training and may not substitute her opinion for that of a physician who does have medical training. For all of the foregoing reasons, the Court will grant Plaintiff's appeal, vacate the decision of the Commissioner, and remand for further proceedings.

II. Procedural Background

On August 5, 2010, Plaintiff filed an application for DIB under Title II of the Act. (Tr. 142-48). On November 12, 2010, the Bureau of Disability Determination denied this application (Tr. 66-68, 71-76), and Plaintiff filed a request for a hearing on November 29, 2010. (Tr. 77-78). On February 12, 2012, an ALJ held a hearing at which Plaintiff-who was represented by an attorney-and a vocational expert ("VE") appeared and testified. (Tr. 31-65). On March 8, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 9-30). On April 2, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 7-8), which the Appeals Council denied on April 18, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-6).

On June 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 September 12, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 5, 6). On November 21, 2013, Plaintiff filed a brief in support of her appeal ("Pl. Brief"). (Doc. 11). On December 19, 2013, Defendant filed a brief in response ("Def. Brief"). (Doc. 14). On April 30, -, the Court referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of this case for adjudication to the undersigned on June 3, 2014, and an order referring the case to the undersigned was entered on June 10, 2014. (Doc. 16, 17).

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec. , 529 F.3d 198, 200 (3d Cir. 2008); Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988). 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 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 claimant. 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 March 9, 1957 and was classified by the regulations as a person closely approaching advanced age on the date last insured and 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 secretary and administrative assistant. (Tr. 23).

Medical Records

On January 21, 2005, Plaintiff underwent a partial lateral meniscectomy and chondroplasty patella on her right knee by Dr. Rex Herbert, D.O. (Tr. 385-386).On February 24, 2005, Plaintiff reported that she had no pain or swelling in her knee, walked without a limp, and was "pleased with her result, " and discharged from Dr. Herbert's care. (Tr. 367).

On April 7, 2005, Plaintiff followed-up with Dr. David Trostle, M.D., her treating rheumatologist. (Tr. 494). Dr. Trostle had been treating Plaintiff's RA since 2002. (Tr. 805). She reported that she had more pain in her low back and continued to have arthralgias in her hands, wrists, and right knee. (Tr. 494). She reported that her recent surgery on her right knee went well. (Tr. 494). She was taking Advil and it helped her "some." (Tr. 494). She had tenderness in the paralumbar region, hands, wrists, and right knee. (Tr. 494). She had 1 synovitis in her hands and wrists. (Tr. 494). Dr. Trostle prescribed Celebrex, but explained that NSAID drugs can increase the risk of heart attack, stroke, blood clots and peptic ulcer disease. (Tr. 494). Dr. Trostle also prescribed physical therapy for her back, and indicated that they would consider epidural steroids if the therapy did not help. (Tr. 494).

On April 11, 2005, Plaintiff had an MRI of her lumbar spine. (Tr. 521). She had normal alignment without subluxation and her vertebral bodies were preserved in height. (Tr. 521). She had mild to diffuse annular bulges flattening the ventral surface of the thecal sac with minimal to mild central canal stenosis, minimal bilateral foraminal narrowing, and bilateral facet hypertrophy. (Tr.521-522).

On May 16, 2005, Plaintiff followed-up with Dr. Trostle. (Tr. 493). Her back was "quite painful." (Tr. 493). She had lumbar spinal stenosis and had seen a surgeon, who opined that surgery would not "be of any benefit." (Tr. 493). Ibuprofen and Darvocet were helping "some, but not as much as she would like." (Tr. 493). She had been going to physical therapy and it was helping "some." (Tr. 493). She was using Plaquenil for her rheumatoid arthritis and had "failed Azulfidine." (Tr. 493). She continued to have arthralgias in her hands, wrists, right knee and feet. (Tr. 493). Dr. Trostle noted that she "is stiff for an hour when she gets up in the morning." (Tr. 493). She was "very tender" in both sacroiliac joints and tender in her hands, wrists, right knee, and all MTP joints. (Tr. 493). She had 1 synovitis in her hands and wrists and moderate paralumbar spasm. (Tr. 493). She had pain on 5° of extension and 40° of flexion in her back. (Tr. 493). Dr. Trostle noted that Plaintiff's RA in her "right sacroiliac joint is flaring." (Tr. 493). Dr. Trostle performed an injection and noted that he would arrange for more if physical therapy did not work out. (Tr. 493). He again indicated that she was not a surgical candidate. (Tr. 493).

On June 21, 2005, Plaintiff had a consultation at the Pain Management Clinic at Hershey Medical Center. (Tr. 244). Her physical exam indicated normal strength, sensation, and reflexes and a negative straight leg raise. (Tr. 245). The examining physicians noted that she had "rheumatoid arthritis with chronic lower back pain which we think is the result of spinal stenosis" and recommended Dr. Trostle "schedule her for lumbar epidural steroid injection at the earliest possible date." (Tr. 245). The ALJ cited to this visit. (Tr. 19). Plaintiff had the lumbar epidural steroid injection on July 6, 2005. (Tr. 243).

On July 7, 2005, Plaintiff followed-up with Dr. Trostle for her RA and reported that she was having more pain in her neck and shoulders. (Tr. 492). She was "very tender in the paracervical region and both subacromial bursas" and had mild tenderness in the paralumbar region, hands, wrists, and all MTP joints. (Tr. 492). She had mild loss of motion in the neck and shoulders and 1 synovitis in her hands and wrists. (Tr. 492). She had moderate paracervical spasm and mild paralumbar spasm. (Tr. 492). For her rheumatoid arthritis, Dr. Trostle continued her Darvocet, Advil, and Plaquenil and ordered "x-rays of the symptomatic areas and started her in physical therapy for her neck and shoulders." (Tr. 492). He noted that she would continue with epidural steroid injections for her lower back. (Tr. 492).

On August 18, 2005, Plaintiff followed-up at the Pain Management Clinic. (Tr. 238). She reported that her lumbar epidural steroid on July 6, 2005 resulted in no improvement for the first two days and then 20-25% improvement for the next several days. (Tr. 238). She had "minimal leg pain and none of the shooting pain she had prior to the injection." (Tr. 238). She described her pain as a constant dull ache and rated her pain as 4/10, with the best as 2/10 and the worst as 8/10. (Tr. 238). Her neck and lumbar spine had full range of motion without pain or tenderness, she had normal strength with no sensory deficits, and her straight leg raise was negative. (Tr. 239). Plaintiff had a second lumbar injection on August 30, 2005. (Tr. 236).

On September 12, 2005, Plaintiff followed-up with Dr. Trostle. (Tr. 491). He noted that "her rheumatoid disease is doing fairly well with the Darvocet, Advil and Plaquenil." (Tr. 491). Plaintiff had only mild tenderness and no definite active synovitis in her hands. (Tr. 491). Dr. Trostle indicated that Plaintiff would be going to physical therapy. (Tr. 491).

On September 19, 2005, Plaintiff followed-up at Pain Management. (Tr. 234). She indicated that the second epidural injection had provided her with no relief, as opposed to the first injection, which provided her with some relief. (Tr. 234). She reported that her pain was worse with prolonged sitting or walking. (Tr. 234). Her musculoskeletal exam was normal except for mild tenderness and a positive modified Gaenslen maneuver. (Tr. 235). They planned for Plaintiff to have an injection into her sacroiliac joint, which was performed on October 11, 2005. (Tr. 232, 235).

On November 9, 2005, Plaintiff followed-up at Pain Management. (Tr. 234). She reported that she had received better relief from the sacroiliac injection than either of her lumbar spine injections, with about two weeks of 80% pain relief, but that her pain had escalated back tobaseline. (Tr. 230). She reported that the physical therapy, Darvocet, and NSAIDs have helped her pain. (Tr. 230). Her musculoskeletal exam was normal, except for pain on palpation in the right sacroiliac joint. (Tr. 231). Plaintiff had a second right sacroiliac joint injection on November 22, 2005. (Tr. 227, 231).

On December 12, 2005, Plaintiff followed-up with Dr. Trostle. (Tr. 490). She reported that the epidural steroids did not help her as much as she would have liked and that Darvocet, Plaquenil, and ibuprofen helped somewhat. (Tr. 490). She had mild tenderness in her shoulders and back, but no definite active synovitis in her hands. (Tr. 490). With regard to her back pain, Dr. Trostle noted that she "failed epidural steroids." (Tr. 490).

On December 28, 2005, Plaintiff followed-up at pain management. (Tr. 225). She reported that her November injection gave her 100% pain relief for two weeks and, although it began to increase thereafter, had not returned to pre-procedure levels. (Tr. 225). However, because Plaintiff had four procedures in a row, she would not be able to have another injection until late June of 2006. (Tr. 225). Her musculoskeletal exam was normal. (Tr. 225).

On February 23, 2006, Plaintiff followed-up with Dr. Trostle. (Tr. 488-89). She was having more widespread arthralgias, stiffness, and pain, and rated her pain as an eight out of ten. (Tr. 488). Her left shoulder, both hands, and both feet were bothering her quite a bit. (Tr. 488). She complained of fatigue and poor sleep patterns because of her pain. (Tr. 488). She had 1 synovitis in both feet and ankles. (Tr. 488). She had mild tenderness in the paralumbar region, was tender in the medial joint lines of both knees, and very tender in both subacromial bursas. (Tr. 488). She had mild loss of motion in her left shoulder and low back. (Tr. 488). She had a mild paralumbar spasm, but normal gait and station. (Tr. 488). Dr. Trostle described this as an "acute exacerbation" of her rheumatoid arthritis, particularly in the left shoulder, and he gave her an injection. (Tr. 488). Dr. Trostle noted that she was on "long-term, high risk medications" and discussed the risks of these drugs with her. (Tr. 489).

On February 23, 2006, X-rays of Plaintiff's hands indicated bilateral degenerative arthritis and periarticular osteopenia that could be consistent with early inflammatory arthritis but no definite erosions. (Tr. 518). There was little change since Plaintiff had bilateral hand X-rays on April 12, 2004. (Tr. 518). X-rays of Plaintiff's feet indicated bilateral degenerative arthritis and plantar fasciitis on the left. (Tr. 518). The plantar ...

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