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Brumbaugh v. Colvin

United States District Court, M.D. Pennsylvania

October 20, 2014

WALTER BRUMBAUGH, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider Plaintiff's Appeal of Defendant's denial of Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. ยงยง 401-433. (Doc. 1.) The Administrative Law Judge ("ALJ") who evaluated the claim found that Plaintiff had the residual function capacity ("RFC") to perform light work with certain limitations and that such work was available. (R. 15-27.) The ALJ therefore denied Plaintiff's claim for benefits. (R. 27.) With this action, Plaintiff argues that the decision of the Social Security Administration is error because the ALJ's credibility determination is not supported by substantial evidence. (Doc. 15 at 4.) For the reasons discussed below, we conclude Plaintiff's appeal of the Acting Commissioner's decision is properly granted.

I. Background

A. Procedural Background

On August 19, 2011, Plaintiff filed an application for DIB alleging disability beginning on April 29, 2011. (R. 99.) In the Disability Report, Plaintiff listed five conditions that rendered him unable to work: 1) bulging discs in his back; 2) degenerative discs in his back; 3) depression; 4) liver problems; and 5) arthritis in his lower back and shoulders. (R. 161.) The claims were initially denied on September 27, 2011. (R. 72.) Plaintiff filed a request for a review before an ALJ on November 4, 2011. (R. 79-80.) On October 3, 2012, Plaintiff, with his attorney, appeared at a hearing before ALJ Therese A. Hardiman. (R. 32.) Vocational Expert Frances Terry also testified at the hearing. ( Id. ) At the hearing, Plaintiff amended his alleged onset date of disability to December 31, 2010. (R. 55.) The ALJ issued her unfavorable decision on December 17, 2012, finding that Plaintiff was not disabled under the Social Security Act during the relevant time period. (R. 27.)

On February 11, 2013, Plaintiff filed a Request for Review with the Appeal's Council. (R. 13-14.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision on March 12, 2014. (R. 1-4.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

On May 8, 2014, Plaintiff filed his action in this Court appealing the Acting Commissioner's decision. (Doc. 1.) Defendant filed her answer and the Social Security Administration transcript on July 8, 2014. (Docs. 13, 14.) Plaintiff filed his supporting brief on August 22, 2014. (Doc. 15.) Defendant filed her opposition brief on September 24, 2014. (Doc. 18.) Plaintiff did not file a reply brief, and the time for doing so has passed. Therefore, this matter is ripe for disposition.

B. Factual Background

Plaintiff was born on August 8, 1972. (R. 116.) He completed ninth grade and had vocational training in electronic technology. (R. 38, 162.) Plaintiff last worked as a laborer at Hanna Electric, a position he held from January 2000 to April 2011. (R. 51, 140.) In the Disability Report he stated that he stopped working because of his conditions. (R. 161.) As noted above, Plaintiff initially claimed disability due to the following: 1) bulging discs in his back; 2) degenerative discs in his back; 3) depression; 4) liver problems; and 5) arthritis in his lower back and shoulders. (R. 161.)

1. Physical Impairment Evidence

In April 2010, a Geisinger report indicates Plaintiff underwent MRI of the lumbar spine due to a history of chronic low back pain which had been treated with physical therapy and muscle relaxants. (R. 177.) A lumbar spine x-ray had been abnormal and Plaintiff had been referred to the Spine Clinic. ( Id. ) The study showed mild disc narrowing and desiccation at L4-5 which had worsened since the previous exam; a posterior high T2 signal annular tear of the disc and central and left paracentral disc hernia had developed since the prior exam. ( Id. )

On May 2, 2011, Plaintiff was seen at Bucktail Medical Center and reported that he needed pain management for his back pain. (R. 252.) The provider offered Plaintiff back injections, but Plaintiff was not interested, preferring more conservative treatment-rest, Tramadol, heat/ice. ( Id. )

On May 4, 2011, Geisinger records indicate Plaintiff subjectively reported his general health to be poor. (R. 243.) Problems identified included the following: pain, stiffness and swelling in joints; muscle cramps and weakness; difficulty walking/standing/sitting; cold extremities; numbness/tingling; headaches; depression; sleep problems; uncontrolled anger; and difficulty making decisions. ( Id. ) The Medical History indicates Plaintiff was taking Tramadol, Citalopram and Methocarbanol for his back problems and depression. (R. 244.)

On May 18, 2011, Plaintiff was seen at Bucktail Medical Center for follow-up on back pain. (R. 251.) It was assessed that Plaintiff had lumbar radiculopathy and recommended that he try physical therapy and have MRI. ( Id. )

At the May 24, 2011, initial Physical Therapy Evaluation at Bucktail Medical Center, Plaintiff stated that he had back, shoulder, and neck pain for years with a flare up about three months before the evaluation. (R. 189.) He rated his shoulder pain 2/10, made worse by sleeping, and his lumbosacral pain 5/10, made better in certain positions and worse with sitting. ( Id. ) Evaluator Karen Johnson noted possible disc pathology. ( Id. ) Ms. Johnson believed that Plaintiff would benefit from physical therapy and planned to see him twice a week for six weeks. ( Id. )

A June 15, 2011, Physical Therapy Discharge Summary from Bucktail Medical Center indicates that after three and one-half weeks of physical therapy (beginning on May 24, 2011) Plaintiff continued to have a moderate amount of pain, subjectively rated as follows: 4/10 in his neck; 6/10 in the low back; and 8/10 in the thoracic spine. (R. 181.) The Discharge Report also noted that Plaintiff had a moderate amount of muscle spasm in the thoracic spine; cervical range of motion in flexion and extension within normal limits; rotation and side bend limited bilaterally and painful; lumbosacral range of motion in flexion of 20 degrees; side bend and rotation limited 50 percent bilaterally and painful. ( Id. ) Plaintiff had no significant improvement with his course of therapy. ( Id. ) Plaintiff's physical therapist, Karen Johnson, referred him back to his physician, recommending he have MRI of his neck, thoracic spine, and lumbar spine. ( Id. )

On June 24, 2011, Plaintiff had MRI of the lumbar spine at 611 MRI-CT. (R. 196.) Impressions were "[m]ild, broad-based, posterior disc protrusion at L4-L5, about the same[;]... mild central canal narrowing and moderate facet osteoarthropathy at this level[;] [v]ery small, broad-based focal disc bulge at L5-S1, also about the same." ( Id. )

On July 7, 2011, Dr. Herberg completed a "Continuing Disability Claim Form" opining that Plaintiff had been disabled and unable to perform his occupation or any occupation from April 29, 2011, to July 7, 2011, due to cervical and lumbar pain, muscle spasms, and L4-L5 disc bulge. (R. 256.) Dr. Herberg noted that Plaintiff had a neuro surgical appointment scheduled for August 2, 2011. ( Id. ) Dr. Herberg did not know when Plaintiff would be able to resume his occupation, but he anticipated within six to twelve months. ( Id. )

On July 25, 2011, Plaintiff saw Dr. Herberg and reported a decrease in feeling in his arms as well as other symptoms. (R. 250.) Dr. Herberg's notations include lumbar radiculopathy, adding that Plaintiff had a neuro surgical appointment pending for L4-L5 disc protrusion. (R. 250.)

On August 2, 2011, Plaintiff saw Rodwan K. Rajjoub, M.D., at Lycoming Medical Associates complaining mainly of low back and bilateral leg pain. (R. 224.) Plaintiff's pain was reported to average six on a scale of one to ten, increasing to nine at its worst; the pain was constant, worsening at times; it was aggravated by sitting, standing, and bending forward; the pain was relieved by heat and "swimming pool"; his sleep and physical activity had decreased because of the pain; and he had a history of liver disease and depression. ( Id. ) Social History includes notations that Plaintiff stopped working due to pain. (R. 225.) By examination, Dr. Rajjoub found the following: normal appearance of spine; normal gait; normal heel and toe walking; range of motion of the lumbar spine revealed forward flexion to seventy-five degrees, extension to ten degrees, right lateral flexion to twenty degrees, and left lateral flexion to twenty degrees; painful flexion of spine; not-painful extension of spine; negative Patrick's; positive left straight leg raise; and negative right straight leg raise. (R. 228.) Dr. Rajjoub's Assessment showed the following: small HNP L4-5; low back pain syndrome; bilateral lumbar radiculopathy; degenerative lumbar disc disease L4-5; liver disease; and depression. ( Id. ) Based on his findings, Dr. Rajjoub did not recommend surgery. ( Id. ) He advised Plaintiff to continue conservative treatment with moist heat, massage, and exercises. ( Id. )

Plaintiff had an electrodiagnostics consultation with Dr. Colin McCaul, M.D., on August 19, 2011, at Nittany Valley Medical Associates. (R. 231.) The consultation was at the request of Drs. Herberg and Jones-Sutliff to evaluate the numbness, tingling and decreased grip in both hands. ( Id. ) Dr. McCaul found evidence of bilateral ulnar neuropathies at the elbow which are usually the result of chronic leaning on the elbow and/or an easily subluxable ulnar nerve at this location. (R. 232.) Dr. McCaul recommended avoidance of leaning on the elbow. ( Id. ) He could not entirely rule out a cervical radiculopathy, having had trouble examining Plaintiff's cervical paraspinals due to poor patient relaxation. ( Id. )

On August 28, 2011, Plaintiff was seen at Bucktail Medical Center and reported low back and shoulder pain, and bilateral hand numbness. (R. 248.) Plaintiff had increased his activity levels over the preceding month with increased pain and numbness. ( Id. ) He reported that pain medication gave him some relief. ( Id. ) The provider noted lumbar pain and that he/she was awaiting Dr. Rajjoub's consultation note. (R. 249.)

On September 12, 2011, Plaintiff was seen for follow-up at Bucktail Medical Center. (R. 248.) He reported that he was unable to work his former job duties due to pain and spasms and decreased abilities to walk, stand and sit. ( Id. ) The provider assessed hand numbness/tingling and lumbar back pain. ( Id. )

On September 9, 2011, James Herberg, M.D., completed a Residual Functional Capacity Questionnaire. (R. 235-36.) Dr. Herberg had begun treating Plaintiff for general medical care in February 2011. (R. 235.) Dr. Herberg's diagnosis includes low back pain syndrome and lumbar radiculopathy.[1] He determined Plaintiff's prognosis to be guarded and identified symptoms including neck and back pain and muscle spasms which limited his ability to work.[2] ( Id. ) Dr. Herberg opined that these symptoms often interfered with the attention and concentration required to perform simple work-related activities; side effects of medications, including dizziness and fatigue, could also impact Plaintiff's ability to work. ( Id. ) Dr. Herberg made the following findings: Plaintiff would have to recline or lie down more than the typical work day break periods; he could walk three to four city blocks without rest or significant pain; he could sit for twenty minutes and stand/walk for thirty minutes; in an eight-hour workday, Plaintiff could sit for four to five hours and stand for the same period of time (with some variation); and Plaintiff would need to take unscheduled breaks during the workday, perhaps once every hour for fifteen to twenty minutes. (R. 235.) Dr. Herberg further opined that Plaintiff could lift less than ten pounds frequently, ten to twenty pounds occasionally, and could never lift fifty pounds; Plaintiff had limitations in doing repetitive reaching, handling or fingering; and he would miss work more than four times per month due to his impairments. (R. 236.) Dr. Herberg noted that it was unknown whether Plaintiff was a malingerer. ( Id. ) He found Plaintiff's impairments (physical and emotional) to be reasonably consistent with the symptoms and functional limitations found in the evaluation; he did not identify any other limitations (such as psychological) that would affect Plaintiff's ability to work at a regular job on a sustained basis. ( Id. )

On September 23, 2011, Plaintiff called Bucktail Medical Center reporting that he was denied disability benefits. (R. 302.) He wanted to be called "to discuss his abuse to alcohol use" and "said if you write a paragraph with the issues Lawyer is setting him up with a Psych Doctor mental disability." ( Id. )

On September 27, 2011, SDM Melissa A. Seelye completed the Disability Determination Explanation as it relates to Plaintiff's back impairments.[3] (R. 66-71.) She concluded that Plaintiff's medically determinable impairments could reasonably be expected to produce Plaintiff's pain and other symptoms. (R. 66.) Ms. Seelye found that Plaintiff's statements about the intensity, persistence, and functionally limiting effects of his symptoms were not substantiated by the medical evidence alone: most informative factors in assessing his credibility were his activities of daily living; the location, duration and intensity of his pain and other symptoms; and precipitating and aggravating factors. (R. 66.) She found Plaintiff partially credible. (R. 67.) Having reviewed Dr. Herberg's September 2011 RFC Questionnaire ( see R. 63), Ms. Seelye assessed Plaintiff's residual functional capacity, stating that no medical source and/or other opinions about Plaintiff's limitations were more restrictive than her findings. (R. 68-69.) Ms. Seelye concluded Plaintiff was not disabled: he was capable of sedentary work and could perform jobs such as addresser, lens inserter, and compact assembler which existed in significant numbers in the national economy. (R. 70.)

On February 1, 2012, Plaintiff had a new patient visit at the Family Practice of Renovo with Carey Conley, M.D. (R. 284.) Plaintiff reported that he had been off work since May 28, 2011, due to back pain and would like to go back to work but could not due to back pain and muscle spasm. (R. 284.) Plaintiff needed disability forms completed, but Dr. Conley noted forms could not be filled out based on one visit. ( Id. )

On March 6, 2012, Plaintiff had a follow-up visit and reported that his back was no better. (R. 295.) Dr. Conley prescribed Tramadol and Hydrocodone, and instructed Plaintiff to apply heat. ( Id. )

On June 29, 2012, Plaintiff saw Dr. Conley for a follow-up on his back pain. (R. 394.) Plaintiff reported that his medications were not working.[4] ( Id. )

On July 6, 2012, Plaintiff had a follow-up visit with Dr. Conley. (R. 286.) His depression was noted to be stable.[5] ( Id. )

On September 7, 2012, Frank Conley, M.D., completed a Residual Functional Capacity Questionnaire. (R. 307-09.) He noted that Plaintiff was treated for chronic low back pain, had a herniated disc in his lumbar spine, and his prognosis was guarded. (R. 308.) Dr. Conley opined that Plaintiff's symptoms constantly interfered with the attention and concentration required to perform simple work-related tasks but Plaintiff had no side effects of medications which would impact his ability to work. ( Id. ) Dr. Conley also made the following findings: Plaintiff would have to recline or lie down more than the typical work day break periods; he could not walk any city blocks without rest or significant pain; he could sit and stand/walk for fifteen minutes; in an eight-hour workday, Plaintiff could sit for two hours and stand for the same period of time; he would need to change positions at will; and Plaintiff would need to take unscheduled breaks during the workday, perhaps three times an hour for five to ten minutes. (R. 308.) Dr. Conley further opined that Plaintiff could lift less than ten pounds and ten pounds occasionally, and could never lift over ten pounds; Plaintiff had limitations in doing repetitive reaching, handling or fingering; and he would miss work more three or four times per month due to his impairments. (R. 309.) Dr. Conley noted that Plaintiff was not a malingerer. ( Id. ) He found Plaintiff's impairments (physical and emotional) to be reasonably consistent with the symptoms and functional limitations found in the evaluation. ( Id. ) Dr. Conley concluded Plaintiff was not capable of working an eight-hour day five days a week on a sustained basis. ( Id. )

2. Mental Impairment Records

On April 6, 2011, Plaintiff visited the Bucktail Medical Center Emergency Department complaining of lack of energy, decreased libido, feelings of unhappiness and increased emotional stress. (R. 206.) Lower back pain and insomnia were noted to be modifying factors. ( Id. ) By history, Plaintiff was diagnosed with depression; he was not suicidal or homicidal. ( Id. )

On April 15, 2011, Plaintiff was seen for follow up for "depression c/o back pain." (R. 253.) He reported the medication he had been given was working well. ( Id. )

On September 9, 2011, Dr. Herberg completed a Mental Capacity Assessment. (R. 237-40.) Dr. Herberg opined that Plaintiff had no psychological limitations, only physical. (R. 238.)

On September 26, 2011, state agency psychological consultant John Rohar, Ph.D., found that Plaintiff's mental impairments are non severe as defined in the regulations. (R. 66.)

As noted above, on July 6, 2012, Plaintiff had a follow-up visit with Dr. Conley. (R. 286.) His depression was ...


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