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Hendrickson v. Colvin

United States District Court, M.D. Pennsylvania

November 21, 2014

CHARITY HENDRICKSON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant

For Charity Hendrickson, Plaintiff: John A. Bednarz, Jr., LEAD ATTORNEY, Bednarz Law Office, Wilkes-Barre, PA.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Timothy S Judge, U.S. Attorney's Office - Social Security Division, Scranton, PA.

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE. JUDGE KANE.

REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS Docs. 1, 8, 9, 16, 20, 25

GERALD B. COHN, UNITED STATES 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 Charity Hendrickson for supplemental security income (" SSI") under the Social Security Act, 42 U.S.C. § § 401-433, 1382-1383 (the " Act"). Plaintiff asserts disability in part because of fibromyalgia and a difficult to diagnose immune system disease. She had been treated for her immune system dysfunction by a specialist, Dr. Schulz, for a year prior to the ALJ decision. Dr. Schulz opined that Plaintiff's impairments were causing incapacitating joint inflammation. Plaintiff asserts that the ALJ erred in rejecting Dr. Schulz's opinion, the only medical opinion in the record. The ALJ rejected Dr. Schultz's opinion because: (1) it was supposedly based on subjective complaints, without support from (a) objective findings and (b) diagnostic testing and (2) it was on the ultimate issue of disability, which is reserved to the Commissioner. However, in concluding that the opinion was unsupported by objective medical evidence, the ALJ failed to mention multiple (a) objective findings and (b) diagnostic tests that corroborate Dr. Schulz's opinion and contradict the ALJ's conclusion. The ALJ made a factual error, concluding that Plaintiff did not see Dr. Schulz in February of 2012 despite clear evidence that she was seen for an office visit. The ALJ also refused to obtain an opinion from a state agency physician. No person with medical training opined that Plaintiff's objective findings were normal or mild. Thus, the ALJ's characterization of the objective findings as " normal" or " mild" constitutes impermissible lay interpretation of medical evidence.

Even if the ALJ had properly concluded that objective findings failed to support Dr. Schultz's opinion, objective findings are not required, particularly for impairments such as those alleged by the Plaintiff, which often manifest with few objective signs. Moreover, relying on subjective statements only undermines Dr. Schulz's opinion if those statements were not credible. Here, the ALJ concluded that Plaintiff was not credible because the objective evidence did not support her claims. The ALJ also concluded that Plaintiff's treatment was conservative, without using any medical opinion to support this characterization. The ALJ has no medical training, so both of these rationales constitute impermissible lay interpretation of medical evidence. The ALJ also found that Plaintiff's activities prior to her deterioration in the spring and summer of 2011 contradicted her testimony in spring of 2012. However, the ALJ may not rely on sporadic and transitory activities, and the medical record supports Plaintiff's claims that her symptoms became increasingly severe in the spring and summer of 2011. A claimant's subjective claims must be seriously considered by the ALJ, and the ALJ did not provide any legitimate basis to find Plaintiff's claims to be not credible.

Finally, assuming the ALJ properly concluded that Dr. Schulz's opinion was on an issue of ultimate disability reserved to the Commissioner, the ALJ should have recontacted Dr. Schulz, considering there was no other medical opinion in the record, rather than rejecting it on this ground. The ALJ did not provide any other reason for discounting Dr. Schulz's opinion. Without contradictory medical opinion evidence or specific, legitimate reasons to discredit Dr. Schulz's opinion, the record is insufficient for any reasonable person to accept the relevant evidence as adequate to conclude that, despite Dr. Schulz's opinion, Plaintiff can engage in work in the national economy. The ALJ has failed to meet his burden at step five, and the Court recommends that this case be remanded for further proceedings.

II. Procedural Background

On April 15, 2011, Plaintiff filed an application for SSI under Title XVI of the Act. (Tr. 88-98). On May 17, 2011, the Bureau of Disability Determination denied this application (Tr. 62-68), and Plaintiff filed a request for a hearing on June 8, 2011. (Tr. 74). On February 17, 2012, an ALJ held a hearing at which Plaintiff--who was represented by an attorney--and a vocational expert (" VE") appeared and testified. (Tr. 25-61). On April 13, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 7-24). Plaintiff filed a request for review with the Appeals Council, which the Appeals Council denied on July 15, 2013, thereby affirming the decision of the ALJ as the " final decision" of the Commissioner. (Tr. 1-6).

On September 16, 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 December 10, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 8, 9). On April 25, 2013, Plaintiff filed a brief in support of her appeal (" Pl. Brief"). (Doc. 16). On April 30, 2014, the Court referred this case to the undersigned Magistrate Judge. On June 27, 2014, Defendant filed a brief in response (" Def. Brief"). (Doc. 20). On September 10, 2014, Plaintiff filed a brief in reply (" Pl. Reply"). (Doc. 25).

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, but rather 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In other words, substantial evidence is " less than a preponderance" and requires only " more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).

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 September 29, 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 no past relevant work. (Tr. 40).

Through 2009 and early 2010, Plaintiff reported " shaking" and anxiety, but reported that Effexor helped her symptoms. (Tr. 277-280, 282-86, 288-90, 406-18). A routine physical on January 19, 2010 indicated no major symptoms. (Tr. 28890). Between May 2009 and August 2010, Plaintiff's weight increased from 164 pounds to 210 pounds. (Tr. 277, 283, 288, 358).

In March of 2010, Plaintiff reported to her primary care physician, Dr. Michael Kordek, M.D., that she was experiencing aches that had increased over the past year and spread to her arms. (Tr. 293, 302, 304). She would later explain that she began experiencing pain at age eleven. (Tr. 486, 642). At first, she reported increased pain with sports like soccer and basketball, but tests for exercise induced compartment syndrome were negative. (Tr. 487, 642). Further testing ruled out poplitieal artery entrapment. (Tr. 487, 642). Plaintiff began to refrain from exertional sports, and quit soccer when the coaches made her sit out due to pain. (Tr. 357). The pain never completely went away and always had pain in her legs with long walks, climbing stairs or exertional physical activity. (Tr. 487, 642).

There was nothing visibly wrong, so her primary care physician, Dr. Kordek, ordered diagnostic tests and referred her to a rheumatologist. (Tr. 293, 302, 304). On March 8, 2010, Dr. Kordek wrote a letter to Plaintiff that stated " [a] few of the inflammatory studies are minimally elevated. Be sure to see the rheumatologist." (Tr. 302). On March 10, 2010, Plaintiff reported more pain, so Dr. Kordek ordered additional tests. (Tr. 304). On March 11, 2010, she had an abnormal CBC differential test. (Tr. 311). She also had an abnormal HEP Function Panel, with low bilirubin. (Tr. 312). Her sedimentation rate (" ESR") was abnormally high.[1] (Tr. 312). Her CRP High Sensitivity test was also high. (Tr. 313).

On March 24, 2010, Dr. Bishwal, a rheumatologist, evaluated Plaintiff. She had a normal exam but her tests indicated elevated sedimentation rates, so he ordered more tests and referred her to a neurologist. (Tr. 311-17). Plaintiff had additional abnormal tests on March 25, 2010, with an abnormal CBC differential, with low hemoglobin[2] and low hematocrit, an abnormal metabolic panel, with low bilirubin, and an abnormal urinalysis, with abnormal protein, esterase, and bacteria. (Tr. 506-07, 517). She reported to Dr. Kordek on April 6, 2010, that her pain was getting worse. He noted that she had exhausted her primary care options, and would try to get an earlier neurology appointment. (Tr. 326).

On April 8, 2010, Plaintiff was evaluated by Dr. Friedenberg, a neurologist. She had an antalgic gait and " severe-limiting" myalgias. (Tr. 642). However, she could deep knee bend and hop on one foot easily. (Tr. 643). Dr. Friedenberg assessed her to have myalgias and indicated that the concern was " for metabolic myopathy." (Tr. 643). He noted " unclear how to connect this (if can be) with [questionable] childhood myalgias and leukemia not treated." (Tr. 643). He ordered an EMG, and when the EMG indicated mild myopathic abnormalities, ordered a muscle biopsy. (Tr. 189, 332).

Over the next several months, while waiting for the results of the muscle biopsy, Plaintiff was treated with narcotics and physical therapy. On June 4, 2010, she reported that the narcotics were helping but that her symptoms were not improving, and she exhibited additional weight gain and tearfulness. (Tr. 193). On June 17, 2010, a physical therapy evaluation noted multiple objective findings, including decreased strength, difficulty ambulating, and postural problems. Plaintiff's goals included increasing her walking and standing tolerances to thirty minutes and increasing her lower extremity strength from 4/5 to 4. (Tr. 204).[3] On July 2, 2010, Plaintiff reported that she had persistent, yet better, symptoms, and that MS Contin and Neurontin helps. (Tr. 205). She reported she was " up and about more." (Tr. 205). She reported that she did well in school and made the Dean's List. (Tr. 205). Dr. Friedenberg noted that the etiology of Plaintiff's myalgias was still " unclear, " and increased her MS Contin dosage. (Tr. 205). On July 15, 2010, Plaintiff had an evaluation for her biopsy, and objective findings include decreased strength and an " extremely antalgic" gait. (Tr. 211-213, 222).

In August of 2010, she wanted to begin weaning herself off her medications as she was " nearly functioning." (Tr. 232). She also received the results of her muscle biopsy, which were normal. (Tr. 260, 273). She was working part-time and attending school full-time, and was physically active on campus. (Tr. 358, 360). On August 25, 2010, Plaintiff had an appointment with Dr. Maria Chen, M.D. and Dr. Raymond Price, M.D., neurologists at the Hospital of the University of Pennsylvania. (Tr. 357). She had an " exaggerated antalgic gait with astasia abasia on attempts to tandem walk" but was able to walk on her heels and toes. (Tr. 358). Dr. Price opined that Plaintiff " does not have a neuromuscular or neurologic disorder. Given that the predominant symptom is pain without much evidence of weakness, I suspect that there may be a psychiatric component to her symptoms." (Tr. 358). On October 25, 2010, Plaintiff followed-up with Dr. Bishwal, who observed that she had tenderpoints of fibromyalgia and prescribed her medication to treat fibromyalgia. Plaintiff's Vitamin D test was low, and Dr. Bishwal wrote that " this may cause ...


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