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Keys v. Colvin

United States District Court, M.D. Pennsylvania

March 19, 2015

RUSSELL R. KEYS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). (Doc. 1.) Plaintiff claims disability beginning on September 7, 2010, based on post-traumatic stress disorder ("PTSD"), degenerative disc disease, arthritis, and sciatic disease. ( See, e.g., R. 12, 181.) The Administrative Law Judge ("ALJ") who evaluated the claim concluded that Plaintiff's severe impairments of degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, right shoulder rotator cuff tear, right carpal tunnel syndrome, depressive disorder, adjustment disorder, and post-traumatic stress disorder did not meet or equal the listings. (R. 14-16. He also found that Plaintiff had the residual function capacity ("RFC") to perform sedentary work with certain limitations. (R. 16-21.) 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 for the following reasons: 1) the ALJ found Plaintiff's ankle impairment to be non-severe (Doc. 11 at 11-12); 2) substantial evidence does not support the ALJ's determination that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform ( id. at 13-18); 3) the ALJ failed to accord adequate weight to Plaintiff's treating physician, Dr. Kimberlee Young ( id. at 18-20); 4) the ALJ did not properly assess Plaintiff's credibility about the severity of his symptoms ( id. at 20-24); 5) the ALJ did not make specific findings about Plaintiff's ability to perform basic work related activities ( id. at 24-27); and 6) substantial evidence does not support the ALJ's assessment of Plaintiff's GAF scores ( id. at 27-28). For the reasons discussed below, we conclude Plaintiff's appeal of the Acting Commissioner's decision is properly granted in part.

I. Background

A. Procedural Background

Plaintiff protectively filed a Title II application for DIB on August 18, 2010. (R. 12.) He protectively filed a Title XVI application for SSI on February 28, 2011. ( Id. ) These claims were denied initially on May 26, 2011. ( Id. ) Plaintiff filed a written request for a hearing on July 12, 2011, and the hearing was held before ALJ Patrick S. Cutter on November 28, 2012. ( Id. ) Plaintiff was represented by counsel at the ALJ hearing and a Vocational Expert also testified. ( Id. ) In his March 13, 2013, decision, the ALJ concluded that Plaintiff was not under a disability within the meaning of the Social Security Act from September 7, 2010, through the date of the decision. (R. 13.) This determination was made at step five where the ALJ concluded Plaintiff had the residual functional capacity to perform jobs that exist in sufficient numbers in the national economy. (R. 21.)

On April 11, 2013, Plaintiff requested review of the ALJ's hearing decision. (R. 7-8.) The Appeals Council denied his request for review on August 11, 2014. (R. 1-6.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

On October 2, 2014, Plaintiff filed the above-captioned matter in this Court. (Doc. 1.) Plaintiff filed his supporting brief (Doc. 11) on January 23, 2015, and Defendant filed her responsive brief (Doc. 13) on February 25, 2013. With the filing of Plaintiff's reply brief (Doc. 14) on March 4, 2015, this case became ripe for disposition.

B. Factual Background

Plaintiff was born on November 6, 1968, and was forty-one years old on the alleged disability onset date of September 7, 2010. (R. 12, 21.) He did not engage in substantial gainful activity since the onset date. (R. 14.) Plaintiff has a high school education. (R. 36.) He served in the United States Army from August 1987 to March 1991. (R. 792.) Plaintiff has work experience as a warehouse worker and equipment assistant. (R. 21.)

1. Summary of Physical Impairments

a. Ankle Impairment

In a Lebanon Veterans Affairs Medical Center ("VAMC") Medication Management note dated June 8, 2009, Plaintiff stated that sometimes his ankles were painful. (R. 865.)

March 9, 2010, exam notes from Lebanon VAMC indicate Plaintiff reported that he sprained his left ankle during a basketball game while in the United States Army in 1991. (R. 587.) He was diagnosed with right ankle sprain in May of that year. ( Id. )

In a December 15, 2010, Chronic Pain Pre-evaluation at the Lebanon VAMC, it was noted that Plaintiff had a twenty percent service connected disablity rating due to limited motion of ankle- ten percent times two. (R. 512.) (At the time of the evaluation, the "location of pain" was recorded as "bilat low back/radicular." ( Id. ))

A March 16, 2010, Compensation and Pension Examination Note indicates that Plaintiff was "requesting service connection for... bilateral ankle sprain." (R. 786.) Historically, Plaintiff began experiencing bilateral ankle pain and weakness during basic training. (R. 787.) Plaintiff received conservative care initially and his service medical records show that he again received conservative care when he twice experienced ankle sprains bilaterally while playing basketball. ( Id. ) At the March 16, 2010, examination, he stated that the pain was typically more intense on the right; he described the pain as sharp, shooting, and throbbing, and rated it as a 5 on a scale of 0-10. ( Id. ) He related that the course of pain had been ongoing and chronic for both ankles, that he experienced weakness, instability, a feeling of giving way and lack of endurance. ( Id. ) He experienced occasional swelling and redness to the lateral aspect of the ankles which was aggravated with prolonged activity. ( Id. ) Treatment consisted of soaking in Epsom Salts, ice and heat therapy when needed (as recommended by his primary care physician) and occasional use of ankle supports. ( Id. ) At the time of the examination, he neither received regular follow-up care for his ankle problems nor was he prescribed medication for his ankles, however he was taking Meloxicam and Percocet for back and neck pain, reporting little relief and no side effects from these medications. ( Id. ) Plaintiff reported that flare-ups could be precipitated by inclement weather or excessive walking or standing. ( Id. ) He also reported that symptoms could last for a few hours and were alleviated with rest and elevation. ( Id. ) He stated that he did not use corrective shoes, inserts or a cane and high top athletic shoes felt supportive. (R. 787-88.) Plaintiff also stated that carrying heavy boxes when he worked loading boxcars aggravated his ankles but he worked for a short time as a file clerk in 1992 and had minimal difficulty due to his ankles. (R. 788.) He reported switching from one foot to another when operating automobile pedals due to pain, and he no longer mountain bikes or hikes, and he is unable to tolerate uneven terrain. ( Id. ) He stated that he performs activities of daily living independently, though they take longer during episodes of pain. ( Id. ) Plaintiff reported losing approximately 460 hours of work due to his back and knee conditions. ( Id. ) He also reported standing is limited to ten to fifteen minutes due to knee and ankle pain. ( Id. )

Upon physical examination, Plaintiff presented in no acute distress and was able to move around independently. (R. 789.) Pain and discomfort were elicited with certain manipulations. ( Id. ) Plaintiff rated pain upon examination bilaterally as 8 on a scale of 0-10. ( Id. ) Plaintiff had one episode of losing balance when asked to tandem walk. (R. 790.) Imaging studies of the ankles were within normal limits. ( Id. ) The following diagnosis was recorded: "1. Subjective complaints of chronic ankle pain with history of ankle sprains; 2. Mild pes planus bilaterally; 3. Onychomycosis bilaterally; 4. Pinch callus hallux bilaterally." ( Id. )

On March 11, 2011, Plaintiff had a podiatry consultation appointment because of thick toenails which he was unable to cut because of back pain. (R. 521.) Orthopedic examination showed full range of motion of the ankle joints. (R. 522.) Regarding his gait, Plaintiff was noted to be ambulating with a cane in mild pain. ( Id. )

Notes from Plaintiff's October 3, 2011, Lebanon VAMC Podiatry Clinic visit indicate he was seen because of a toenail problem. (R. 923.) Full range of motion of his ankle joints was recorded. (R. 924.) Regarding his gait, Plaintiff was noted to be ambulating with a cane in mild pain. ( Id. )

In the Ankle Conditions Disability Benefits Questionnaire dated June 18, 2012, Plaintiff reported a similar history but noted that he periodically wears elastic ankle supports and admitted to using a cane periodically after an ankle flare-up. (R. 990-91.) Upon examination, it was determined that Plaintiff had functional impairment of the ankles with less movement than normal, pain on movement, tenderness and pain on palpitation in both ankles. (R. 993-94.) The examiner opined that Plaintiff's ankle condition did not impact his ability to work. (R. 1000.)

b. Degenerative Disc Disease and Sciatic Disease

The record shows that Plaintiff has treated regularly for these conditions and undergone numerous diagnostic studies.

On March 17, 2009, Plaintiff was seen at the Pinnacle Health Emergency Department for back pain. (R. 444.) He reported a history of recurrent back pain getting progressively worse and an inability to stand up straight to get out of bed that morning. ( Id. ) Plaintiff stated he was "pretty healthy" aside from the chronic back pain. ( Id. ) At the time Plaintiff had a sitting job at work so the plan was for him to be discharged to home, take off work that day and the next, avoid heavy lifting for ten to fourteen days, take Naproxen and Percocet as prescribed, get an MRI of the spine, and follow up with his family physician. ( Id. )

A March 18, 2009, MRI of the lumbar spine, concluded that Plaintiff had mild degenerative disc disease of the lumbar spine. (R. 257.)

In an outpatient note dated November 4, 2009, Plaintiff presented with complaints of acute exacerbation of the right-sided SI joint (sacroiliac joint) pain. (R. 274.) In the subjective portion of the note, it was recorded that Plaintiff had a degenerative disc disease and chronic back issues with episodic flare-ups which had been happening more frequently. ( Id. ) Physical examination was limited due to Plaintiff's obvious acute distress, including difficulty moving or bending. ( Id. ) Plaintiff was assessed to have degenerative disc disease and SI joint exacerbation with the right-sided sciatica. ( Id. )

In a December 28, 2009, Consult for his low back pain, Plaintiff reported that the pain began in 1988 and had been progressive in nature since then. (R. 316.) He further reported that it exacerbated significantly over the past year, especially due to increased job demands. ( Id. )

Plaintiff's back pain was treated with medication ( see, e.g., R. 274), injections ( see, e.g., R. 300), physical therapy, and use of a TENS unit ( see, e.g., R. 317). As of December 28, 2009, Plaintiff reported that Percocet helped his pain, physical therapy improved his pain, the TENS unit provided only minimal help, and steroid injection was very helpful. (R. 317.)

At a March 9, 2010, examination at the Lebanon VAMC Plaintiff stated that he had treated with private physicians for his back and neck pain since 1993 or 1994. (R. 588.) He reported that he was taking Tramadol, Baclofen, and Vicodin prescribed by his family doctor for the lower back and neck pain. ( Id. ) (He stated that he did not take any specific medications for his knee, wrist and ankle problems but the medications for his back and neck may help. ( Id. )) Plaintiff did not have difficulty getting on and off the examining table or taking off/putting on his shoes and socks. (R. 589.) He was able to squat only 50% due to back pain. ( Id. ) Plaintiff was working as a fork lift operator and stated he had limitations at work, adding that he missed 248 hours due to his wrist, back, or knee pain. (R. 588-89.)

In April 2010, Plaintiff was assessed to have bilateral SI joint arthropathy and spinal spondylosis. (R. 462-63.) It was noted that Plaintiff had a favorable response to the right SI joint injection for four weeks and left SI joint injection for one week, and also there was a questionable L5-S1 junction as an additional generator of Plaintiff's pain. (R. 463.) Plaintiff had a medical branch block and experienced resolution of the left SI joint pain afterwards. (R. 467.) Plaintiff experienced some recurrence of the right-sided SI joint pain after several months of resolution after the previous injection. ( Id. ) It was also noted that Plaintiff had possible lumbar spine bilateral radiculopathy with mild radicular symptoms overlying his SI joint problems. ( Id. ) The plan was for Plaintiff to have another right-sided SI joint steroid injection. ( Id. )

A January 31, 2011, MRI of the lumbar spine showed the following; mild degenerative disc disease at L2-L3 and L3-L4; and mild bilateral neuroforaminal stenosis at L3-L4. (R. 480.)

On March 1, 2011, Plaintiff was seen for a consult, beginning his two-step Chronic Pain Clinic evaluation, the reason for which was recorded to be "medication recommendation and injection therapy consideration for low back pain with radiculopathy." (R. 603.) The visit focused on the psychological factors that could interfere with pain management and overall physical care by his primary care physician. (R. 602.) It was noted at the time that Plaintiff used a cane to ambulate. (R. 603.) He complained of "exacerbation of low back pain with bilateral radiation down legs extending to his feet affects his balance to the point of falling." ( Id. )

On May 31, 2011, Plaintiff was referred to the Chronic Pain Evaluation Clinic at the Lebanon VAMC for recommendation regarding management of his chronic back pain with specific consideration for injection therapy. (R. 886.) The record includes the following:

Mr. Keys notes that he had two falls while he was in the military in 1987. He fell from a bunker about 10' and he fell from a tower about 20'; both times landing on his back. Since that time, he has had problems with low back pain. He notes continuous pain in his low back area with radiation into his buttocks, which has stayed the same over time.

(R. 886.) It was also noted that Plaintiff had been followed by Hershey Medical Center where he had a series of SI joint injections from which he had benefitted and he was again experiencing the same kind of pain. (Id.) He rated his pain on average at seven out of ten during the preceding twenty-four hours. ( Id. ) Recommendations included referral for sacroiliac joint injection on the left and considering referral to vocational rehabilitation to explore employment opportunities for patients with back pain. (R. 889.)

On January 29, 2013, Plaintiff was seen at Lebanon VAMC. (R. 1110.) By history, his medical provider, Kimberlee Young, M.D., noted that Plaintiff was being seen between visits "with low back pain since his rucksack days, chronic neck pain and more problematic recently as the right shoulder rotator cuff issues and left knee pain with some buckling, worse recently. That has been off and on since 1987." ( Id. ) Dr. Young recorded the following Assessment and Plan:

1. Chronic low back pain. We will continue to address. Once drug screens are clear we may be able to start Percocet.
2. Chronic neck pain. Same as above.
3. Right shoulder pain with the rotator cuff issue and decreased range of motion and the left knee pain with buckling. We will get him to Orthopedics for these last two issues with x-rays prior. He will be seeing me back in a month and a half with fasting labs and a urine drug screen one week prior. If the drug screen is clear we will consider restarting his Percocet. He may want to do monthly drug screens at that point. We will also put in his orthopedic referral and x-rays so that if the drug screens stay clear he can be reconsidered for surgery.

(R. 1110-11.)

c. Rotator Cuff

On February 4, 2011, Lebanon VAMC notes indicate Plaintiff was seen for left shoulder pains which he reported that he had experienced off and on for several months. (R. 511.) On examination, Plaintiff had some rotator cuff weakness and pain when abducting the arm against resistance. ( Id. ) Plaintiff was treated with a steroid injection and recommendation for physical therapy. ( Id. )

Progress notes from Plaintiff's May 31, 2012, visit to the Lebanon VAMC indicate Plaintiff had persistent right shoulder pain, that he had twice been scheduled for surgery but the procedures were cancelled when he tested positive for cannabis (which he stated he takes orally), and he would be given one more opportunity to undergo right shoulder surgery. (R. 1001.) Plaintiff indicated he wanted to proceed with surgical intervention. ( Id. ) Plaintiff was again worked up for surgical treatment of his shoulder in March 2013. By July 2013, Plaintiff had decided against shoulder arthroscopy. (R. 1207.)

d. Carpal Tunnel Syndrome

On December 31, 2009, Plaintiff visited the Milton S. Hershey Medical Center with complaints of wrist pain, stating he had problems beginning on December 22nd or 23rd. (R. 264.) He had not had a recent injury but reported that he had bilateral wrist fractures when he was in the army. ( Id. )

In May 2011, Plaintiff complained of right wrist and thumb pain and was diagnosed with carpal tunnel syndrome and right trigger thumb. (R. 894.) He underwent right trigger thumb release and right carpal tunnel release on April 20, 2012. (R. 967.) At his follow-up visit in June 2012, Plaintiff reported some slight stiffness in the morning but overall was assessed to be doing "quite well." (R. 955.) It was suggested that at some point ...


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