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Taylor v. Colvin

United States District Court, M.D. Pennsylvania

November 25, 2014

EUGENE TAYLOR, 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") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. ยงยง 401-433, 1381-1383f. (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. 62-67.) The ALJ therefore denied Plaintiff's claim for benefits. (R. 67.) With this action, Plaintiff argues that the decision of the Social Security Administration is error for several reasons: the ALJ did not properly consider and give the required weight to mental and physical RFC assessments; the ALJ improperly relied on certain Global Assessment of Functioning ("GAF") scores; and the ALJ did not adequately explain his reasons for finding Plaintiff's testimony not credible. (Doc. 7 at 13-15.) 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 27, 2009, applications were completed for DIB and SSI (R. 133, 137), Plaintiff having protectively filed on July 20, 2009 (R. 58). In both applications, Plaintiff alleged disability beginning on July 1, 2006. (R. 135, 137.) His date last insured for the purpose of DIB was September 30, 2009. (R. 58.) In the Disability Report, Plaintiff stated that he was unable to work because of back injury and herniated discs. (R. 169.) He also answered "yes" to the question of whether he had been seen by a doctor/hospital/clinic for emotional or mental problems that limited his ability to work, indicating he was treated for ADHD in 2007. (R. 171.)

Plaintiff's claims were initially denied on June 15, 2010. (R. 105-14.) Plaintiff filed a request for a review before an ALJ on June 22, 2010. (R. 115.) On May 26, 2011, Plaintiff, with his attorney, appeared at a hearing before ALJ Ronald Sweda. (R. 71.) Vocational Expert Sean C. Hanahue also testified at the hearing. ( Id., R. 58.) The ALJ issued his unfavorable decision on June 20, 2011, finding that Plaintiff was not disabled under the Social Security Act. (R. 55-70.)

On August 6, 2011, Plaintiff filed a Request for Review with the Appeals Council. (R. 53-54.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision on December 18, 2012. (R. 43-48.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 43.) However, on May 5, 2014, the Appeals Council set aside the December 18, 2012, decision to consider additional information. (Doc. 1 at 5.) The Appeals Council again denied Plaintiff's request for review, noting that it had considered the additional evidence submitted and found it did not provide a basis for changing the ALJ's decision because the evidence concerned a later time. (Doc. 1 at 5-6.) The Appeals Council added that Plaintiff should apply again if he wanted consideration of whether he was disabled after the date of ALJ's decision, i.e., after June 20, 2011. (Doc. 1 at 6.)

On June 30, 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 September 3, 2014. (Docs. 5, 6.) Plaintiff filed his supporting brief on October 20, 2014. (Doc. 7.) Defendant filed her opposition brief on November 19, 2014. (Doc. 8.)

B. Factual Background

Plaintiff was born on September 26, 1966. (R. 164.) He completed ninth grade in 1986 and did not attend special education classes. (R. 173.) Since the alleged onset of disability on July 1, 2006, Plaintiff worked for approximately two months unloading carpets. (R. 76.) His attorney clarified that at the time he was at "a halfway house while incarcerated." (R. 77.)

1. Physical Impairment Evidence

On July 3, 2007, Plaintiff was seen as a new patient by Andrea Wessel, M.D., for complaints of chronic back pain which Plaintiff had for years with reported worsening over the preceding one to two months. (R. 293.) Plaintiff noted greater pain on the left side than on the right with stiffening and occasional sharp intermittent pain, occasional radiation to his left hip, and occasional radiation to the left heel area. ( Id. ) He rated the pain at the time as a seven out of ten. ( Id. ) Office notes indicate Plaintiff's last MRI was on August 12, 1999. (R. 294.) It showed minimal central canal and neural foraminal narrowing, a small disc bulge at L4-5, and slight levoscoliosis. ( Id. ) Upon examination, Dr. Wessel found Plaintiff had a reduced range of motion in his back secondary to pain and mild palpable muscle spasms paralumbar. (R. 295.) Dr. Wessel advised Plaintiff to take Motrin and Zantac, and apply moist heat to his lower back. ( Id. ) Plaintiff was to return in about four weeks. (R. 296.)

Plaintiff also had an MRI of the lumbar spine on July 3, 2007. (R. 309.) The Impression indicates the following: small focal central disc herniation at L4-5 with borderline canal diameter; borderline canal diameter at L3-4 secondary to disc bulge and facet and ligamentum flavum hypertrophy; and small central disc herniation at L5-S1 without canal compromise. ( Id. ) An x-ray of the lumbosacral spine on the same date indicates "straightening of the lumbar lordosis with mild spondylotic changes.... No acute radiographic abnormality is identified." (R. 310.)

On August 6, 2007, Plaintiff saw Dr. Wessel for follow up on his back pain. (R. 292-93.) Plaintiff reported that he still had aching in his lower back on a daily basis and it was worse with bending or lifting. (R. 293.) Plaintiff was using Naproxen with some relief. ( Id. ) He was not attending physical therapy as had been previously recommended. ( Id. ) Plaintiff was directed to continue taking Naproxen and apply heat to the painful area and return for follow up in about six months. (R. 293.)

Though many notes contained in records from the Pennsylvania Department of Corrections are not legible ( see R. 242-61), some Progress Notes indicate Plaintiff had back problems while incarcerated. On October 26, 2007, Plaintiff reported chronic constant lower back pain and requested anti-inflammatory medicine. (R. 258.) A November 8, 2007, Progress Note states that Plaintiff was admitted to the infirmary because of lower back pain: he was grimacing with movement, had an unsteady gait and rated his pain at eight out of ten. (R. 259.) He was given medication and warm compresses. ( Id. ) A November 9, 2007, Progress Note quotes Plaintiff as stating he was feeling better, his pain was about a two, and he was moving slowly and guardedly. (R. 256.) By November 16, 2007, Plaintiff was reported to be doing well. (R. 257.) A January 29, 2009, Progress Note states that Plaintiff had lower back pain and herniated discs but he was not taking any medication, had no physical restrictions, and was employable. (R. 251.)

Following Plaintiff's two-year incarceration, he saw Dr. Wessel for an office visit on July 22, 2009. (R. 289.) Dr. Wessel noted that Plaintiff had an ongoing problem with lower back pain, he had a history of lumbar disc disease, and he had been referred for pain therapy in 2007 but never had injections due to his incarceration. ( Id. ) Plaintiff reported his pain was greater on the right side than on the left. ( Id. ) He described the pain as constant throbbing, eight on a scale of one to ten, with occasional snapping pain and radiation to the right buttock and posterior thigh. ( Id. ) Plaintiff also reported the pain was worse with leg elevation, prolonged sitting, walking, and standing. (R. 290.) He further reported that he got some relief with "stretching back out." ( Id. ) Upon examination Dr. Wessel noted that Plaintiff's back was straight, he had a reduced forward bend and paralumbar spasms. (R. 291.) Plaintiff had a negative straight leg raise. ( Id. ) Dr. Wessel recommended moist heat, pain therapy referral, MRI of the spine, and a follow up visit in four weeks. (R. 292.)

On August 10, 2009, Plaintiff had MRI of the lumbar spine. (R. 311.) The Clinical Indication was "concern regarding backache/disc disease. The patient reports worsening low back pain with burning and cramping in the left lower extremity." ( Id. ) This study was reviewed and compared to the July 3, 2007, MRI:

Slight progression of degenerative change in the mid to lower lumbar region since 07/03/07.
Small central disc herniation at L5-S1, similar in size to the prior study. There is now progressive signal change in the posterior aspect of the L5-S1 disc typically seen with an annular tear. This is more conspicuous than in the prior study.
Slight to mild disc herniation at L4-5 favoring the left side of midline, slightly smaller than on the prior study consistent with slight interval dessication. This is more apparent to the right of midline. This contributes to mild canal stenosis and mild to moderate bilateral lateral recess narrowing, greater on the left. The overall degree of lateral recess narrowing on the right is slightly improved since the prior study. There is medial foraminal narrowing bilaterally, greater on the left, without compression of the exiting L4 nerves.
Broadbased disc bulge at L3-4 similar in appearance to the prior study without frank herniation of significant canal stenosis.
Slight disc bulging at L2-3, more prominent than on the prior study with evidence of interval progression of degenerative since 07/03/07. The L1-2 and T12-L1 discs remain within normal limits.

(R. 311-12.))

On September 9, 2009, Englok Yap, M.D., administered a lumbar epidural steroid injection to treat Plaintiff's back pain. (R. 274-75.) Dr. Yap assessed Plaintiff to have lumbar disc displacement. (R. 275.)

On October 1, 2009, Plaintiff saw Dr. Wessel for follow up on his back disorder. (R. 288.) Plaintiff was to continue with Naproxen for his lumbar disc problem. (R. 289.)

On October 8, 2009, Plaintiff again saw Dr. Yap for evaluation of ongoing low back and left leg pain. (R. 266.) Plaintiff reported that his low back pain resolved after his September 9, 2009, steroid injection but his left leg pain continued and was constant-radiating from his left buttock into his left posterior thigh, calf and sole of foot. ( Id. ) Plaintiff had normal flexion and extension, and normal gait and rotation. ( Id. ) Dr. Yap administered a second steroid injection to treat Plaintiff's lumbar disc displacement and noted that Plaintiff may benefit from a left S1 nerve root at his next visit. (R. 267.)

On December 11, 2009, Plaintiff saw Michel Lacroix, M.D., for surgical advice. (R. 333.) Because of his herniated disc, Plaintiff had been referred to Dr. Lacroix by Dr. Yap. ( Id. ) Plaintiff reported worsening pain over the preceding year. ( Id. ) He further reported the pain to be constant, accentuated by exercises and transfers, and the pain could be excruciating in the morning. ( Id. ) Plaintiff had seen a chiropractor and pain management without success, but Neurontin and NSAIDS provided moderate help. ( Id. ) Dr. Lacroix found that Plaintiff's back was painful with flexion and extension, was nontender along the spine and paraspinal regions, he had no palpable muscle spasms, and leg squat was painful. (R. 335.) Imaging revealed spondylosis, multilevel degenerated disc disease with bulging, central disc herniation L5/S1 without significant mass effect, and no significant central or foraminal stenosis. (R. 336.) Dr. Lacroix advised Plaintiff that there was no significant lesion which would be successfully addressed by spinal surgery. ( Id. ) Dr. Lacroix reported that he insisted to Plaintiff that he follow a healthy lifestyle and continue with pain management, but if his symptoms should be linked with a more significant pathology in the future, Plaintiff could be reevaluated. ( Id. ) Plaintiff was to return in about four months. (R. 406.)

On December 15, 2009, Plaintiff had a follow up visit with Dr. Wessel and requested a reevaluation with pain therapy. (R. 403.) Plaintiff complained of ongoing lumbar pain which he rated eight out of ten. ( Id. ) Upon examination, Dr. Wessel found Plaintiff's back to be straight with paralumbar tenderness and palpable muscle spasms. (R. 404.) Dr. Wessel aslo found positive straight leg raising on the left and noted Plaintiff reported numbness to touch in the knee area. ( Id. )

On April 27, 2010, Feroz Sheikh, M.D., completed a Physical Residual Functional Capacity Assessment. (R. 341-47.) No treating or examining source statements regarding Plaintiff's physical capacities were included in the file. (R. 345.) He concluded Plaintiff had the following exertional limitations: he could lift twenty pounds occasionally and ten pounds frequently; he could stand and/or walk for a total of about six hours in an eight-hour workday; he could sit for about six hours in an eight-hour workday; he could occasionally climb stairs, balance, stoop, kneel, crouch, and crawl. (R. 342-43.) Plaintiff had no manipulative, visual or communicative limitations. (R. 343.) Plaintiff's only environmental limitation was that he was to avoid concentrated exposure to hazards including machinery and heights. (R. 344.) Dr. Sheikh found that the medical evidence establishes a medically determinable impairment of DDD LUMBAR SPINE. (R. 346.) He found Plaintiff to be partially credible. ( Id.

Plaintiff again saw Dr. Wessel on June 3, 2010. (R. 415.) Plaintiff rated his back pain as nine out of ten and reported it was "relieved by nothing." ( Id. ) Plaintiff expressed an interest in seeing pain therapy. ( Id. ) Upon examination, Dr. Wessel found Plaintiff's back to be straight, with "ok" range of motion, and paralumbar tenderness. (R. 416.) Dr. Wessel recommended moist heat to the painful area, Naproxen, Flexeril for muscle spasm as needed, and pain therapy referral. ( Id. ) Plaintiff was to return in three months. ( Id. )

On July 1, 2010, at Dr. Wessel's request Plaintiff had an Initial Physiatric Consultation at Northeastern Rehabilitation Associates to determine what else could be done to diminish his pain and improve his function. (R. 390.) Elizabeth Karazim-Horchos, D.O., conducted the evaluation. ( Id. ) Plaintiff rated his pain as seven to ten out of ten and reported that it had been getting worse, he did not feel Dr. Yap's epidural injections were effective, chiropractics made his problem worse, and he had not had physical therapy in the past. ( Id. ) Plaintiff reported that he could sit, stand, or walk for thirty minutes at most. Dr. Karazim-Horchos reviewed Plaintiff's August 2009 imaging studies of his back and found that they showed degenerative disc disease in the lumbar spine and central disc herniation at L5-S1 with an annular tear and disc herniation at L4-5 and broad based disc bulge at L3-4. ( Id. ) Upon physical examination Dr. Karazim-Horchos recorded the following:

He is 5'9" and weighs 220 pounds. Motor strength is functional in the lower extremities. His gait is non-antalgic. Transfers are smooth and easy. Extremities are without edema, clubbing or cyanosis. Positive straight leg raising, right lower extremity. Positive cross straight leg raising sign, left lower extremity. Hip range of motion, internal and external rotation precipitates increased pain laterally into right posterior sacroiliac sulcus. Positive Gaenslen's maneuver. He has discomfort on palpation at the right posterior sacroiliac area. Lumbar flexion and extension all precipitate increased pain in the lower lumbar segments. He has no paraspinal muscle spasm, edema or erythema.

(R. 391.) Dr. Karazim-Horchos's impression was "chronic pain syndrome, intravertebral disc degeneration, low back pain, discogenic low back pain, probable sacroiliitis." ( Id. ) The plan was to address the inflammatory component of his pain with a course of Predisone, refer him for a course of physical therapy for lumbosacral stabilization exercise and evaluation for a TENS unit which would be an adjunctive pain control. ( Id. ) Dr. Karazim-Horchos planned to see Plaintiff again in four weeks and, if he was not significantly better, she would consider pursuing some epidurals and/or sacroiliac injection and a facet block. ( Id. )

On September 14, 2010, Plaintiff was seen at Northeastern Rehabilitation for follow up. (R. 397.) Dr. Karazim-Horchos notes that some reports indicate that epidurals were helpful. ( Id. ) She reported that Plaintiff had gone to physical therapy for one visit and the therapist said he was not compliant. ( Id. ) She recommended that Plaintiff observe proper body mechanics, continue on his medications and return in three to four months. ( Id. ) She also noted that she "discussed with him to follow up with OVR to determine if something he could do for employment as he is interested in that."[1] ( Id. )

On December 20, 2010, Dean Mozelski, M.D., of Northeastern Rehabilitation administered lumbar facet joint intra-articular injection at the request of Dr. Karazim-Horchos. (R. 398.) Dr. Mozelski reported no complications. ( Id. )

On January 4, 2011, Dr. Karazim-Horchos saw Plaintiff for follow up. (R. 399.) Plaintiff reported that he was not doing well, his pain continued, and he did not find the facet injections were particularly helpful. ( Id. ) She noted Plaintiff continued to use Neurontin with "fairly good effect and he will continue with this medication." ( Id. ) Dr. Karazim-Horchos suggested he again try physical therapy but he stated he was not able to do so secondary to co-pays and scheduling difficulties. ( Id. ) Dr. Karazim-Horchos then discussed several exercises he could do on his own and showed him how to do them. ( Id. ) She asked Plaintiff to try to do them for at least ten to fifteen minutes twice a day. ( Id. ) The plan was to see Plaintiff again in six months or sooner if need be. ( Id. )

On May 3, 2011, Dr. Karazim-Horchos completed a form assessing Plaintiff's ability to do work-related activities on a day-to-day basis. (R. 400-402.) She recorded the following findings: Plaintiff could stay on his feet for three hours at a time, stand and walk for four hours, sit for 6 hours at any one time and sit for a total of eight hours; Plaintiff could lift and carry up to nineteen pounds continuously and up to forty-nine pounds frequently; Plaintiff had no limitations using his hands, legs and feet; Plaintiff was occasionally able to bend, squat, crawl and climb stairs, and could continuously reach; and Plaintiff had a mild limitation regarding exposure to the stress of a competitive work setting on a sustained full-time basis and a moderate limitation against driving automotive equipment. (R. 400-01.) Dr. Karazim-Horchos reported that Plaintiff did not have to elevate his lower extremities for a significant amount of time daily, and she did not know if he had problems with stamina and endurance which would interfere with daily activities in a work environment. ( Id. ) She noted that she believed Plaintiff's complaints of pain, listing Plaintiff's spinal conditions to be the cause of the pain as supported by MRI findings showing an annular tear at L4-L5, and disc herniation at L5-S1. (R. 401.) Dr. Karazim-Horchos noted that previously identified limitations could be further reduced by the pain and his pain is present at the levels described. ( Id. ) She further noted that the degree of pain was occasionally debilitating and she did not know if Plaintiff had any psychological conditions which affected his pain or if he was a malingerer. (R. 402.) Dr. Karazim-Horchos opined that Plaintiff's symptoms would often interfere with his attention and concentration. ( Id. ) She reported that he would need to take two fifteen to thirty minute unscheduled breaks during an eight-hour workday. ( Id. ) She also noted that Plaintiff would likely be absent from work about three times a month as a result of his back impairment. ( Id. )

On June 4, 2011, Dr. Mozelski of Northeastern Rehabilitation saw Plaintiff at the request of Dr. Karazim-Horchos. (R. 482.) He administered a socroiliac joint injection without incident. ( Id. )

2. Mental Impairment Records

A November 8, 2005, intake note from Scranton Counseling Center, states that Plaintiff was seen for complaints of aggravation and irritation and he had ongoing problems including arrests for aggravated and simple assault. (R. 454.) Plaintiff reported he was trying to keep his anger under control by punching walls but had dislocated his hand as a result. ( Id. )

A November 9, 2005, Psychiatric Evaluation from the Scranton Counseling Center indicates that Plaintiff reported having social problems due to aggression during his school years, was diagnosed with Adult ADHD, had a recorded GAF of 66, and was prescribed medication for his mental health problems. (R. 446-453.)

In November of 2005, Plaintiff did not show for his appointment at Scranton Counseling Center. ( Id. ) In December 2005, Plaintiff cancelled his appointment. ( Id. )

Plaintiff did not show for another intake appointment in 2007, but eventually was seen and reported he ...


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