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Awad v. Colvin

United States District Court, M.D. Pennsylvania

April 21, 2015

SOUAD AWAD, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). (Doc. 1.) Plaintiff claims disability beginning on November 16, 2011 (R. 17), her Disability Report listing cervical/lumbar spine pain as the condition that limits her ability to work (R. 153). The Administrative Law Judge ("ALJ") who evaluated the claim, Richard Zack, concluded in his October 23, 2012, decision that Plaintiff had the severe impairments of degenerative disc disease of her cervical spine and degenerative disc disease of the lumbar spine. (R. 19.) He determined that Plaintiff's severe impairments did not meet or equal the listings. (R. 20.) The ALJ also found that Plaintiff had the residual functional capacity ("RFC") to perform a range of sedentary work with exertional and nonexertional limitations. (R. 21.) After finding that Plaintiff was not capable of performing past relevant work, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, and, therefore, had not been under a disability from November 1, 2007, through the date of the decision. (R. 24-26.)

With this action, Plaintiff argues that the decision of the Social Security Administration is error for several reasons. Plaintiff asserts the AlJ erred because his RFC assessment is not supported by substantial evidence (Doc. 15 at 7), he did not properly consider Plaintiff's use of a cane ( id. at 16), and the Acting Commissioner did not sustain her burden of establishing that there is other work in the national economy Plaintiff could perform ( id. at 18). For the reasons discussed below, we conclude Plaintiff's appeal of the Acting Commissioner's decision is properly granted.

I. Background

A. Procedural Background

Plaintiff protectively filed a Title II application for DIB on August 5, 2011, alleging disability beginning November 1, 2007. (R. 12.) This claim was denied initially on November 16, 2011. ( Id. ) Plaintiff filed a written request for a hearing on December 27, 2011, and a hearing was held before ALJ Richard Zack on October 15, 2012. ( Id. ) Plaintiff was represented by counsel at the ALJ hearing and a Vocational Expert also testified. ( Id. ) Plaintiff testified with the assistance of a Moroccan Arabic interpreter. ( Id. ) In his October 23, 2012, decision, the ALJ concluded that Plaintiff was not under a disability within the meaning of the Social Security Act from November 1, 2007, through the date of the decision. (R. 26.) As noted above, this determination was made at step five where the ALJ concluded Plaintiff had the residual functional capacity to perform jobs which exist in sufficient numbers in the national economy. (R. 25.)

On December 11, 2012, Plaintiff requested review of the ALJ's hearing decision. (R. 13.) The Appeals Council denied her request for review on February 27, 2014. (R. 5-9.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 5.)

On May 31, 2014, Plaintiff filed the above-captioned matter in this Court. (Doc. 1.) Defendant filed her Answer and the required transcript on July 30, 2014. (Docs. 7, 8.) Because Plaintiff did not timely file her supporting brief, the Court dismissed the case on October 6, 2014. (Doc. 9.) After Plaintiff moved to reinstate the action, the Court reopened the case on January 28, 2015. (Docs. 12, 14.) Plaintiff filed her supporting brief (Doc. 15) on February 2, 2015, and Defendant filed her responsive brief (Doc. 12) on April 6, 2015. With the filing of Plaintiff's reply brief (Doc. 19) on April 13, 2015, this case became ripe for disposition.

B. Factual Background

Plaintiff was born on April 27, 1968, and was thirty-nine years old on the alleged disability onset date. (R. 24.) She did not engage in substantial gainful activity since the onset date. (R. 19.) Plaintiff has a limited education and is able to communicate in English in only a rudimentary fashion. (R. 24.) Plaintiff last worked as a packer in a factory. (R. 154.)

1. Summary of Medical Evidence

Having received workers' compensation for a back injury (R. 60), Plaintiff continued to treat for lower back pain (R. 203). A November 30, 2007, NEPA Imaging Center report concerning lumbar spine MRI, records the following impression: "Disc bulges at L3-4, L4-5, and L5-S1, the largest at L4-5 and L5-S1 with annular tears as above with mild canal narrowing at L4-5 and L5-S1 and mild neural foraminal narrowing as above." (R. 203.)

On August 15, 2008, Alex D. Perez, M.D., stated that Plaintiff had a history of chronic low back pain secondary to occupational injury. (R. 201.) He further stated that Plaintiff had a lumbar epidural steroid block that provided relief for two days but returned with intensity of seven out of ten, worsened by activity. ( Id. ) He reported that an August 12, 2008, MRI of the lumbar spine showed "multilevel degenerative changes and broad-based L5/S1 disc protrusion that appears improved Miami-based Balbina L3/4 and L4/5 and T10/11, facet hypertrophy at T10/11." (Id.) Dr. Perez noted that Plaintiff received some relief from her medications, "meloxicam 15 mg. daily as needed and Flexeril 10 mg. nightly prn." ( Id. ) His impression was "[c]hronic low back pain, predominantly secondary to facet arthropathy, and he planned to continue her medications and schedule a right-sided lumbar facet joint block. ( Id. )

On October 6, 2008, Plaintiff was seen at CHS Professional Practice, Department of Physical Medicine and Rehabilitation, with chief complaints of neck and arm pain. (R. 208.) Certified Physician Assistant Jena Diviney saw and examined Plaintiff "incident to" Steven Mazza, M.D. (R. 209.) PA Diviney noted that Plaintiff was not working due to "a workman's comp injury of the lower back." (R. 208.) Plaintiff had discomfort in side-to-side rotation as well as extension, and her shoulder examination showed painful range of motion in all planes, positive impingement sign, and positive cross-over induction test. (R. 209.) Plaintiff was set up for a nerve conduction study to help determine whether the pain generator was the bulging disc in the neck or the left shoulder. ( Id. ) She was also scheduled for a shoulder MRI and started on a course of prednisone. ( Id. )

The October 10, 2008, nerve conduction study showed abnormal results; mild right C2 hypofunction and radiculitis; hyperfunction of right T1 suggesting probable irritation; and hyperfunction of left T2 suggesting probable irritation. (R. 210.) On the same date, Plaintiff had a left shoulder MRI. (R. 214.) Eiran Mandelker, M.D., recorded the following impression: "1. Minimal supraspinatus tendinopathy. A Type II minimally low lying laterally downsloping acromion is present. Minimal acromioclaviculur degenerative changes are present. 2. Small shoulder effusion." (R. 215.)

Plaintiff saw Dr. Mazza on October 17, 2008. (R. 216.) Plaintiff did not have a significantly positive shoulder exam at the time. ( Id. ) As a result of the recent testing, Dr. Mazza concluded the likely source of the shoulder pain was the left-sided disc herniation at C5-6. (Id.) His plan was for Plaintiff to have C7-T1 interlaminar cervical epidural steroid injections and for her to continue antiinflammatory medication. ( Id. ) Plaintiff had the injections on November 11, 2008. (R. 217.)

Dr. Mazza's office notes of December 10, 2008, indicate that the physician who had previously seen Plaintiff for her work-related lumbar injury felt that Plaintiff had exhausted conservative care and recommended an L5-S1 diskectomy. (R. 219.) Plaintiff did not follow through because of fear of surgery. ( Id. ) Dr. Mazza assessed Plaintiff to have low back pain, left lower extremity radiculopathy, L5-S1 disk protrusion, and facet arthropathy. (R. 220.) He did not believe Plaintiff had exhausted conservative care. ( Id. ) Dr. Mazza also noted that he would "keep her at sedentary capacity as she has been released by Dr. Naftulin previously." ( Id. ) Her pain level at the time was recorded at nine out of ten. (R. 221.)

Later that month, on December 22, 2008, Plaintiff was scheduled for epidural steroid injections because of radiating symptoms with an L5-S1 disc herniation. (R. 222.) She was to continue on sedentary duty. ( Id. )

On January 9, 2009, Dr. Mazza recommended left L3-4-5 medial branch blocks. (R. 226.) Though at first Plaintiff refused more injections or surgery, she considered changing her mind. ( Id. ) She was to continue work restrictions. ( Id. )

On March 30, 2009, Plaintiff again saw Dr. Mazza with complaints of cervical pain and bilateral shoulder pain. (R. 281.) He assessed Plaintiff to have cervical pain and degenerative disc disease, cervical radiculitis, bilateral shoulder pain, and bilateral rotator cuff tendinopathy. (R. 281.) He recommended icing the area several times daily for fifteen to twenty minutes and continuing on antiinflammatory medications. ( Id. )

In September 2010, Plaintiff saw Dr. Mazza for back and neck pain, and pain down her arm. (R. 265-66.) She was using Lidoderm patches, and Norflex, Tramadol and Nucynta for pain relief. (R. 266.) Dr. Mazza recorder Plaintiff's gait to be normal, decreased rotation, decreased flexion and extension during cervical range motion, her motor strength was 5/5 in all muscle groups, and Spurling's test was positive on the left. ( Id. ) Acknowledging that physical therapy had limited success in the past, Dr. Mazza again recommended it. ( Id. ) He also reported that he again told Plaintiff she was a surgical candidate but Plaintiff continued to refuse surgery. ( Id. )

At Plaintiff's next visit with Dr. Mazza on September 26, 2011, Plaintiff reported right knee pain in addition to her back and neck pain. (R. 262-63.) She retained range of motion of the right knee with slight effusion and tenderness to palpation noted. (R. 263.) Dr. Mazza reiterated that he felt surgery was her only option regarding her neck and lower back pain and recorded that she did not have insurance coverage so the medication routine would be continued. ( Id. ) She was to follow up in six to twelve months or sooner if she got insurance coverage and wanted to have surgery. (R. 264.)

In November 2011, Plaintiff was referred by Matt Vergari, M.D., for an EMG (electromyography) of both upper extremities and cervical paraspinal muscles. (R. 399.) The report indicates the ENMG (electroneuromyography) of the bilateral upper extremity was abnormal and most consistent with the following: "[l]eft C6 root irritation of acute nature[;] [b]ilateral median motor and sensory peripheral neuropathy of primarily demyleninating in natrue across both wrists, consistent with bilateral Carpal tunnel syndrome[; and] [b]ilateral ulnar motor and sensory peripheral neuropathy primarily demyelinating in nature across both wrists, consistent with bilateral Guyon's tunnel syndrome." (R. 399.)

In November 2011 Plaintiff was also referred for an EMG of both lower extremities which was abnormal as to the left lower extremity consistent with left L5 root irritation acute in nature. (R. 396.) Plaintiff also had an MRI of the lumbar spine which showed the following: straightening of normal lordosis compatible with spasm; L4-L5 mild broad-based disc bulge as well as mild bilateral facet hypertrophy and mild stenosis of the lateral recess and neural foramina, more left that right; L5-S1 broad-based disc bulge and a central protrusion with an annular tear measuring 4 mm abutting the nerve roots in the ventral central canal; and no significant canal or foraminal stenosis. (R. 391.)

Plaintiff saw Dr. Vergari on December 5, 2011, for a follow-up visit. (R. 381.) Dr. Vergari recorded that Plaintiff continued to have neck and back pain, the neck pain radiating to left arm and should with left hand paresthesias. ( Id. ) He noted that Plaintiff continued to complain of a stiff neck and at times she was unable to move her left hand. ( Id. ) She also complained of low back pain that radiates down both legs with paresthesias, and bilateral knee pain with difficulty walking up and down stairs. ( Id. ) Following examination, Dr. Vergari assessed the following: tear of the medial cartilage or meniscus of the right knee; displacement of lumbar intervertebral disc without myelopathy; carpal tunnel syndrome; unspecified disorders of bursae and tendons in shoulder region; intervertebral cervical disc disorder with myelopathy, cervical region; and intervertebral thoracic disc disorder with myelopathy, thoracic region. (R. 383.) The treatment plan consisted of further diagnostic studies, physical therapy, medications, and wrist splints at night and with repetitive motion. ( Id. )

A December 9, 2011, MRI of the right knee showed the following: small joint effusion; oblique tear posterior horn of the medial meniscus extending to the inferior articular surface and the body; Grade 1 sprain anterior cruciate ...


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