United States District Court, M.D. Pennsylvania
EDWARD M. WILSON, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant
For Edward M. Wilson, Plaintiff: Sharon Gornstein, LEAD ATTORNEY, Leventhal Sutton & Gornstein, Trevose, PA.
For Carolyn W. Colvin, Defendant: Justin J. Blewitt, U.S. Attorney's Office - Social Security, 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, 11, 16, 19
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE.
REPORT AND RECOMMENDATION
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security (" Commissioner") denying the application of Plaintiff Edward Wilson for supplemental security income (" SSI") under the Social Security Act, 42 U.S.C. § § 401-433, 1382-1383 (the " Act"). Plaintiff asserts that, inter alia, the administrative law judge (" ALJ") erred in assessing his claims and an examining physician's opinion that he could not sit for more than three hours in an eight-hour work day. Although the ALJ cited to various pieces of information to discredit Plaintiff's credibility, she failed to acknowledge substantial contradictory objective evidence that supports Plaintiff's claims. She also made multiple factual errors in characterizing the record. These omissions and errors preclude meaningful review. The ALJ also erred in discounting the opinion of the examining physician solely on the grounds that Plaintiff could drive, " be active" with his nineteen year old daughter, and expressed interest in owning a business, as none of these activities contradict the physician's opinion. For the foregoing reasons, the Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter remanded to the Commissioner for further proceedings.
II. Procedural Background
On October 20, 2009, Edward M. Wilson (" Plaintiff") filed an application for Supplemental Security Income (" SSI") benefits under Title XVI of the Social Security Act and Disability Insurance Benefits (" DIB") under Title II of the Social Security Act. (Tr. 165-174). On March 18, 2010, Plaintiff's DIB application was denied on the grounds that a prior application for DIB operated as res judicata to preclude DIB benefits. On March 18, 2010, the SSA application was also denied, and Plaintiff filed a request for hearing on March 24, 2010. (Tr. 125-136, 137). On March 9, 2011, a hearing was held before an ALJ at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified (Tr. 71-110, 125-29). On April 25, 2011, the ALJ found that Plaintiff was not disabled and thus was not entitled to benefits. (Tr. 29-46). On June 17, 2011, Plaintiff filed an appeal with the Appeals Council (Tr. 26-28), which denied Plaintiff's request for review on September 11, 2012, thereby affirming the decision of the ALJ as the " final decision" of the Commissioner. (Tr. 11-15).
On March 18, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 1383(c)(3), to appeal a decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1. On April 15, 2013, Commissioner filed an answer and administrative transcript of proceedings. Docs. 7, 8. In August, October, and December 2013, the parties filed briefs in support. Docs. 11, 16, 19. On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge. On June 2, 2014, Plaintiff notified the Court that the matter is ready for review. Doc. 21. On July 29, 2014, the undersigned entered a report and recommendation to deny Plaintiff's appeal. Doc. 22. Plaintiff filed an objection, and the Court recommitted the matter to the undersigned for further proceedings on December 10, 2014. Doc. 25, 27.
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 v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). 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 August 13, 1962 and was classified by the regulations as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 41). He has a tenth grade education and past relevant work as an iron/steelworker, truck driver, and garbage collector. (Tr. 40, 205).
Plaintiff injured his back, neck, and shoulder in a work accident in 2001. (Tr. 79). Plaintiff's earning report and work history report indicate that he stopped working after his accident in May of 2001. (Tr. 182, 186). The earliest medical record available to the Court is from January of 2006 by Plaintiff's pain specialist, Dr. Amy Fitzsimmons, M.D. (Tr. 272). However, Dr. Fitzsimmons indicated that she had been giving Plaintiff Botox injections for a " couple of years" prior to 2006 along with epidural and facet block injections and physical therapy, without relief. (Tr. 269-70). At the hearing before the ALJ, Plaintiff's counsel represented that earlier records had been destroyed in accordance with the provider's document destruction practices. (Tr. 80).
Plaintiff continued treatment with Dr. Fitzsimmons, receiving four Botox injections and a nerve block injection, through mid-2007. The Botox injections were the " only thing that [gave] him some significant relief, " but it " wears off" after a period. (Tr. 265, 269). As a result, Plaintiff continued to experience significant pain in his neck and cervical spine with demonstrated objective findings, including " tremendous" muscle spasm on January 31, 2006; " marked" muscle spasm on March 14, 2006; muscle spasm on May 2, 2006; June 13, 2006; August 10, 2006; and September 14, 2006; " extreme" muscle spasm and tenderness on January 2, 2007; muscle spasm on February 13, 2007; and " very limited range of motion" on March 27, 2007. (Tr. 263, 267-69, 271-72). Dr. Fitzsimmons observed that Plaintiff maintained posture " with his shoulder elevated" so she ordered physical therapy to correct his posture and address his " persistent spasms." (Tr. 263).
Dr. Fitzsimmons also treated Plaintiff with an escalating dose of Endocet, a narcotic. On March 14, 2006, Plaintiff indicated that " [h]e did have a problem with his nephew taking some of his drugs....His nephew has now joined the Army, partly because of what has happened, and he feels like he is back on track." (Tr. 271). Plaintiff remained on a stable dose of Endocet through March 21, 2007, when he reported that he " hurt his back on the ice several days ago when he was trying to chop the ice up. His right leg is now going numb." (Tr. 262). Dr. Fitzsimmons increased his Endocet to 210 tablets per month. (Tr. 261).
In mid-April 2007, Plaintiff reported severe right knee pain after he " seemed to twist it" while " working with his daughter for some lacrosse moves." (Tr. 261, 297). MRIs indicated joint space narrowing, marginal osteophyte formation, patellofemoral compartment arthropathy, possible suprapatellar joint effusion, and chondromalacia patella with effusion. (Tr. 302-03). He was referred to Dr. John Beight, M.D., who treated him with an aspiration and injection on April 20, 2007. (Tr. 297). Dr. Beight noted that they " briefly discussed patellofemoral implant and arthroscopic debridement of patella, should non-operative treatment fail." (Tr. 297). At a follow-up on June 15, 2007, Plaintiff reported no benefit from the aspiration/injection. (Tr. 295). He reported that he was " trying to spend more time sitting at work." (Tr. 295). Dr. Beight noted that he " discussed treatment options with patient... discussed implant surgery. Quite effective in pain relief but I feel he is a suboptimal candidate because of his size, youth and strains/stresses he will put across knee during his iron work." (Tr. 295).
On July 5, 2007, Dr. Fitzsimmons was forced to discontinue Plaintiff's Botox injections because she could " not order from this company again, as [she had] been having problems with them financially. Plaintiff tells me he cannot afford to pay for it out-of-pocket and wait for the reimbursement." (Tr. 260). She increased his Endocet to 250 tablets per month. (Tr. 260).
On July 13, 2007, Plaintiff followed-up with Dr. Beight and indicated he wanted to proceed with an arthroscopic debridement in his knee. (Tr. 295). Dr. Beight noted that knee replacement surgery was " absolutely contra-indicated until other options have failed." (Tr. 295). Dr. Beight performed the arthroscopic debridement on July 30, 2007, and at some point began prescribing Endocet for Plaintiff. (Tr. 295, 304-05).
After Plaintiff's surgery, the pharmacy alerted Plaintiff's providers that Dr. Beight, Dr. Fitzsimmons, and Dr. Palazzolo, Plaintiff's primary care physician, were all writing prescriptions for Endocet for him. (Tr. 258, 296). Dr. Fitzsimmons discussed this with Plaintiff, who stated that " he was unaware that he was not supposed to get prescriptions from three different doctors, " which Dr. Fitzsimmons thought was " unusual." (Tr. 258). She did a urine toxicology screen, voided his Endocet prescriptions, converted him to 20 mg of Oxycontin three times per day and refused to give him any breakthrough medications. (Tr. 258).
On October 4, 2007, Plaintiff followed-up with Dr. Fitzsimmons. (Tr. 256). He reported that he took an extra Oxycontin one day, and that it provided " much better pain control." (Tr. 256). Dr. Fitzsimmons responded that " at no time in the future is he to use the medication outside of the way that it is directed." (Tr. 256). She increased his Oxycontin to 40 mg three times per day. (Tr. 256). On October 26, 2007, Plaintiff followed-up with Dr. Fitzsimmons. (Tr. 255). She indicated that he had called several days earlier to request breakthrough medication because he was " much more active than he was...taking walks; he is doing things." (Tr. 255). She declined to provide breakthrough medication because of his recent compliance problems, but did increase his dosage to 80 mg of Oxycontin every twelve hours. (Tr. 255). She noted that " I would like him to be active, but I do not think he is going to be able to do things like a multi-mile AIDS walks. That is not going to be the goal of our therapy here. He is going to try to get his pain under better control." (Tr. 255). She ordered another MRI of the cervical spine, noting his spine " is a major part of his pain, and perhaps he needs a surgical evaluation." (Tr. 255).
On November 13, 2007, Plaintiff established care with Heidi Wright, CRNP. (Tr. 229). His examination was " limited by his morbid obesity." (Tr. 229). She prescribed him an appetite suppressant. (Tr. 229). On December 20, 2007, Plaintiff followed-up with her for a new patient physical. (Tr. 229). Plaintiff was " on disability related to the work injury." (Tr. 228). He reported that obesity had been a problem since his mobility decreased after his work accident. (Tr. 228). His weight was unchanged after a month being prescribed an appetite suppressant. (Tr. 228).
His examination was again " limited by obesity" but he did have degenerative changes of the knee and limited range of motion of the cervical spine. (Tr. 228). Plaintiff continued following-up with Dr. Fitzsimmons. On December 21, 2007, she observed that he was " still using an awful lot of pain medication and still reporting a 8 to 8.5/10 pain" and added Skelaxin to his medication regimen. (Tr. 254). On December 26, 2007, she noted that Plaintiff had been taking an " escalating dose of narcotics" while his pain was still " not under control." (Tr. 253). She gave him an EMG, which indicated " [c]hronic bilateral C6 radiculopathies. Chronic bilateral carpal tunnel syndrome. Early signs of a sensory peripheral neuropathy." (Tr. 234). She noted that " we are going to try to get him okayed for the Botox." (Tr. 253). On January 23, 2008, she observed that Plaintiff was " really not doing very well since [she] saw him last." (Tr. 252). He reported that his prescriptions had been stolen on an airplane. (Tr. 252). He also reported that he " found his wife cheating on him" and she had " involved their 16-year old daughter." (Tr. 252). He was " really stressed out, tearful" and reported a " lot of stomachaches he thinks may be related to the Skelaxin samples [she] gave him, although the Skelaxin does help him sleep. He does identify the last weeks as the worst two weeks he has ever had." (Tr. 252). She noted that " we have not gotten him fully approved for the Botox yet." (Tr. 252).
On January 28, 2008 Plaintiff followed up with Ms. Wright, who wrote that he " seems to be someone that prefers surgery as the first choice in any situation. I have told him that it may not always be the best option....He is no longer doing the work that probably was the precipitating factor in the cause." (Tr. 228).
On March 14, 2008, Plaintiff followed-up with Dr. Fitzsimmons. (Tr. 251). Plaintiff reported that he took a third Oxycontin " at least eight times" since his visit in January. (Tr. 251). She noted that " [h]e says to me that he did not know what to do. He is in a lot of pain. He has been under a lot of stress socially with his wife and daughter and his pain level. He still is not being approved to the Botox, which significantly helped in the past. This is the final warning, and I made it very clear to Ed that any change in his use of medications other than what is directed will result in me discharging him...He said he is going to get counseling for the stress." (Tr. 251). She renewed his pain medication. (Tr. 251). By May 9, 2008, he had lost weight and " did not take medication, but felt like he wanted to take an extra pill." (Tr. 250). She added Oxycodone to his medications. (Tr. 250). On July 3, 2008, Plaintiff's " left shoulder [had] really been hurting him." (Tr. 249). He had spasms, tenderness, and a positive impingement sign. (Tr. 249). Dr. Fitzsimmons restricted him from abducting his shoulder, gave him samples of Flector patches and continued his Oxycontin and Oxycodone. (Tr. 249).
On August 13, 2008, Plaintiff saw Dr. Leonard Brody, M.D. with bilateral hand complaints. (Tr. 237). He had a positive Tinel sign and Phalen sign. (Tr. 237). Plaintiff indicated that he had been wearing splints " to no avail, " so they scheduled carpal tunnel releases for both hands. (Tr. 237). After the releases, Plaintiff's " pre-operative numbness [was] virtually resolved" but he had " ...