United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY, District Judge.
We consider here Plaintiff's Appeal of a denial of Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("ACT") 42 U.S.C. §§ 401-433 (Doc. 1). The Administrative Law Judge ("ALJ") who evaluated the claim found that the Plaintiff had the Residual Functional Capacity ("RFC") to perform light work with certain limitations and that such work was available to Plaintiff (R.12-21). Thus, the ALJ denied Plaintiff's claim for DIB. (R.21). Plaintiff's Appeal is based upon two assertions: (1) that the ALJ erred in his assessment of Plaintiff's RFC; and (2) that the ALJ erred in giving insufficient weight to the Plaintiff's testimony regarding his level of pain and physical limitations. (Doc. 12, 3-6). For the reasons discussed below, we determine that this case must be remanded for further clarification by the ALJ.
A. Procedural Background.
On November 17, 2011, Plaintiff filed an action for DIB alleging an onset date of January 5, 2011. (R.128-130). In the Disability Report, Plaintiff alleges that his disability stems from back symptomology which keeps him in constant pain and limits his flexibility and ability to move around. (R.173-178). Plaintiff's claim was denied initially by the Pennsylvania Disability Determination Service. (R.95). Plaintiff requested a hearing before an ALJ and that hearing was held on September 13, 2012. (R.12). Present at the hearing were: ALJ Michelle Wolfe; Plaintiff, Plaintiff's Attorney, Norman M. Lubin, and, via telephone, Vocational Expert Gerald W. Keating. (Id). The ALJ issued an unfavorable decision on December 10, 2012. (R.22). On February 13, 2013, Plaintiff filed a request for review by the Appeals Council. (R.7-8). The Appeals Council denied Plaintiff's request on May 6, 2014 (R.1-5) thus confirming the ALJ's decision as that of the Acting Commissioner.
On July 3, 2014, Plaintiff filed an action with this Court appealing from the Acting Commissioner's decision (Doc. 1). Defendant filed her answer and the Social Security Administration transcript on September 3, 2014. (Docs. 10 and 11). Plaintiff filed his brief on October 20, 2014 along with a Statement of Medical Facts. (Docs. 12 and 13). Defendant filed her response on November 13, 2014. (Doc. 14). Plaintiff has not filed a reply brief, the time for doing so has run, and this matter is ripe for disposition.
B. Factual Background.
Plaintiff was born on June 5, 1982. (R.48). He alleges an onset date of January 5, 2011. (Id). Plaintiff completed the eleventh grade and subsequently obtained a GED. (R.48-49). He last worked as a sawyer at a job where he performed no lifting, was allowed to work in a seated position, and basically operated a set of levers. (R.69-71). Plaintiff left this last employment due to various back symptoms that necessitated two separate surgical interventions, a lumbar laminectomy and microdiskectomy at L5 in March 2011 and a right L4-L5 laminectomy, foraminotomy and diskectomy on April 25, 2011 (R.16-17). On August 14, 2012 a surgeon advised Plaintiff that a surgical fusion at L4-L5 "may help your back pain" but also advised that the success rate for such surgery is about 60 to 70%". (R.493). Plaintiff has not undergone the fusion at the time the record was closed.
C. Physical Impairment Evidence.
The medical evidence of record indicates that Plaintiff has a history of low back pain and lower extremity radiculopathy dating back, at a minimum, to January 5, 2011, the date on which he "felt a pop and pain at left low back and left buttock pain" while in the course of pushing a heavy object. (R.221). Dr. David Kahler evaluated Plaintiff at Muncey Valley Hospital on January 7, 2011 and diagnosed an acute low back strain with left sciatica and acute low back pain. (R.226). Dr. Kahler prescribed a muscle relaxant and pain medication, directed Plaintiff to follow up with his family physician, and suggested he make an appointment with an orthopedic surgeon. (Id).
On January 13, 2011, Plaintiff underwent an MRI of the lumbar spine that was interpreted by Dr. David Quintana to indicate herniations from L3-4 through L5-S1 with the largest at L4-5. (R.235). On February 2, 2011, Dr. Shelly Timmons, a neurosurgeon, examined Plaintiff and reviewed his MRI film and reached essentially the same conclusions as Dr. Quintana but advised Plaintiff to have additional diagnostic testing "to offer him the least amount of surgery to correct his problem." (R.244-45). Dr. Timmons prescribed Vicodin and Carisoprodol to alleviate Plaintiff's low back pain. (R.246).
On March 14, 2011, Plaintiff was admitted to the Williamsport Hospital and Medical Center where he was operated on by Dr. Hani J. Tuffaha. (R.47). Dr. Tuffaha performed a left L3-L4 laminectomy, foraminotomy, and diskectomy along with a left L4-L5 laminectomy and foraminotomy with decompression of the left L5 nerve root. (Id). Dr. Tuffaha reevaluated Plaintiff during an office visit conducted March 23, 2011 and found he was doing extremely well and released him to return to sedentary work effective March 28, 2011. (R.43). However, Dr. Tuffaha noted in his office notes of April 15, 2011 that, on March 30, 2011, Plaintiff experienced "a sudden onset of new severe right leg pain involving the groin and the lateral aspect of the foot and toes." (R.40). Dr. Tuffaha's impression of Plaintiff's condition on April 15, 2011 was "new disc extrusion L4-L5, central and right with intractable severe right L5 radiculopathy." (Id). Plaintiff was prescribed Percocet for his pain until a second surgery could be scheduled. (R.40) Plaintiff's second surgery, another laminectomy, foraminotomoy, and diskectomy at L4-5, was performed on April 25, 2011 by Dr. Tuffaha. (R.478, 480).
Between August 8, 2011 and June 13, 2012, Plaintiff visited the Susquehanna Community Health and Dental Clinic on at least nine occasions. (R.436-454). On each of these occasions he was assessed to be experiencing persistent low back pain, lumber vertebral syndrome, and/or severe low back pain. (Id). Nurse Practitioner Karen Peterman, working in consultation with Christopher Wagner, M.D., noted that claimant's pain worsened with back flexion and twisting movements and that the pain was aggravated by lifting, bending over and getting up from a sitting or lying position. (R.451). During this time he was prescribed various pain inhibiting medications and received a lumbar epidural injection on March 26, 2012. (Id).
The Pennsylvania Bureau of Disability Determination sent Plaintiff for an evaluation by Dr. R. C. Nielsen in December of 2011. (R.413). Dr. Nielsen noted persistent low back, pelvic, and groin pain of "unclear ediology". (R.418). Dr. Nielsen concluded that Plaintiff's prognosis was "fair to good" and opined that Plaintiff had no limitations with respect to bending, kneeling, stooping, crouching, balancing, climbing, and that he had no limitations with respect to standing, walking or sitting; and that he could lift and carry up to 100 pounds. (R.418-420).
Despite Dr. Nielsen's rosy assessment of Plaintiff's physical status, a subsequent consult with Dr. G. Timothy Reiter, Associate Professor of Neurology at the Milton S. Hershey Medical Center in March of 2012, caused Dr. Reiter to opine that an additional surgery - a fusion at L4-L5 - may help Plaintiff's back pain. (R.492-487). Dr. Reiter also indicated, however, that the success rate for surgery of this type is only 60-70%. (R.493). The record contains no indication whether Plaintiff continues to contemplate this additional surgery.
D. ALJ Hearing Testimony.
In the SSA's "Function Report-Adult" (R.173-182), Plaintiff stated, in response to the question of how his injuries and conditions limited his ability to work, "Not able to move, lift or get around. To(sic) much pain constant - never can find a good position". (R.173). Plaintiff also related that he was not able to get comfortable and would wake up in pain throughout the night. (R.174). He acknowledged that he could prepare frozen dinners for himself but that he could not stand long enough to prepare complete meals. (R.175). He indicated that he could not handle household chores like cleaning, ironing, laundry, or yard work. (Id). He stated that he was not able to do yard work because he was in too much pain. (Id). He shops weekly for basic things and this takes him 15-20 minutes. (Id). With respect to his interests and social activities he stated that he could no longer go out and do the activities he formerly liked due to his pain. (R.177-78). He indicated that he can walk up to 50 yards on a good day but that he would then have to sit and rest for 10-15 minutes before continuing. (R.178). In response to a question asking him to identify "unusual behaviors or fears", he stated that he has a "fear of movement not knowing when or what is going to happen". (R.179). He related that he was in pain for some years before the onset date of January 5, 2011, that his pain is concentrated in his vertebrae and spreads down his legs and numbs his feet and that the pain, while worst in the morning, is constant. (R.181). He stated that activities such as lifting, squatting, bending, standing, reaching, walking, sitting, kneeling and stair climbing affect his pain level. (R.178).
At the hearing before the ALJ in September of 2012, Plaintiff testified that he has moved in with his father and that his bedroom is on the first floor. (R.48). He stated that he had gained thirty pounds since his onset date and that he never drives. (Id). He testified that his original injury predated his onset date and that he does not receive worker's compensation. (R.51). His only income, as of the date of the hearing, is $550.00 in unemployment compensation ...