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Roque v. Colvin

United States District Court, M.D. Pennsylvania

May 20, 2015

MARIO ROQUE, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


RICHARD P. CONABOY United States 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.) The Administrative Law Judge (“ALJ”) who evaluated the claim concluded in her June 24, 2014, Decision that Plaintiff’s severe impairment of chronic headaches did not meet or equal the listings. (R. 14.) The ALJ found that Plaintiff had the residual function capacity (“RFC”) to perform light work with certain limitations and that jobs exist in significant numbers in the national economy that Plaintiff can perform. (R. 16, 19.) The ALJ therefore denied Plaintiff’s claim for benefits. (R. 20.) With this action, Plaintiff argues that the decision of the Social Security Administration is error for the following reasons: 1) the ALJ erred by finding Plaintiff’s multiple impairments to be non-severe; 2) the ALJ erred in assessing the credibility of Plaintiff’s statements about the severity of his symptoms; and 3) the ALJ erred in classifying Plaintiff’s RFC as consistent with light work. (Doc. 13 at 2.) For the reasons discussed below, we conclude Plaintiff’s appeal of the Acting Commissioner’s decision is properly denied.

I. Background

A. Procedural Background

On May 1, 2013, Plaintiff protectively filed applications for Title II DIB and Title XVI SSI alleging disability beginning on July 18, 2011. (R. 12.) At the hearing held on June 19, 2014, Plaintiff amended the alleged onset date to March 23, 2013. (R. 12.) According to a May 29, 2013, Disability Report, Plaintiff claimed that the conditions limiting his ability to work were migraines, neuropathy, depression, and anxiety. (R. 190.) The claims were initially denied on July 1, 2013. (R. 12.) Plaintiff filed a request for a review before an ALJ on July 31, 2013. (Id.) In a Disability Report dated July 31, 2013, Plaintiff reported that his health status had changed, stating, “I have seizures muscle pain no energy want to sleep all the time.” (R. 222.) On October 4, 2012, Plaintiff, with his attorney, appeared at a hearing before ALJ Reana Sweeney. (R. 26.) Vocational Expert Mitchell Schmidt also testified at the hearing. (Id.) The ALJ issued her unfavorable decision on June 24, 2014, finding that Plaintiff was not disabled under the Social Security Act during the relevant time period. (R. 20.)

On December 14, 2012, Plaintiff filed a Request for Review with the Appeal’s Council. (R. 7-8.) The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on September 23, 2014. (R. 1-6.) In doing so, the ALJ’s decision became the decision of the Acting Commissioner. (R. 1.)

On November 13, 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 January 21, 2015. (Docs. 11, 12.) Plaintiff filed his supporting brief on March 6, 2015. (Doc. 13.) Defendant filed her opposition brief on April 16, 2015. (Doc. 16.) Plaintiff filed his reply brief on April 25, 2015. (Doc. 17.) Therefore, this matter is fully briefed and ripe for disposition.

B. Factual Background

Plaintiff was born on November 2, 1971. (R. 19.) He was forty-one years old on the alleged disability onset date. (Id.) The Disability Report indicates that plaintiff completed eleventh grade (R. 191), but Plaintiff testified that the highest grade he completed in school was eighth grade (R. 36). He also testified that he has tried to get his GED but did not complete it. (R. 37.) At the time of the hearing, Plaintiff resided at Bethesda Mission and continues to do so. (R. 32; Doc. 13 at 22.) Plaintiff testified that he is married but had been separated from his wife for two years at the time of the hearing. (R. 32.) He worked as a landscape laborer and material handler. (R. 18.) The Disability Report indicates Plaintiff stopped working on September 1, 2012, because of his conditions. (R. 190.)

1. Medical Records and Notes

a. Headaches

At a December 19, 2012, office visit to the Kline Health Center, Plaintiff saw Rumon Chakravarty, M.D., and presented with headache, reporting that headaches had been going on for more than a year. (R. 517.) Plaintiff had been taking Lyrica which he said had helped. (Id.) He reported that he had headaches about three times per week and he associated some with blurry vision. (Id.)

On January 31, 2013, Plaintiff was seen at the Milton S. Hershey Medical Center with multiple complaints, including headaches. (R. 415.) A neurology follow-up was recommended. (Id.)

On March 16, 2013, Dr. Chakravarty noted that Plaintiff’s headache issue was “stable, getting better, on verapamil.” (R. 544.)

On May 5, 2013, Plaintiff went to Pinnacle Health Harrisburg Campus emergency room complaining of ongoing headache. (R. 908.)

The following history was recorded:

The patient complains of a pounding headache on the entire left side of his head and states the entire left side of his body feels numb. The patient is [sic] had these headaches for several years he has been seen here in emergency department several times in the last couple of months for this pain. He did have an MRI and MRA of his brain done in February of this year this was an unremarkable study. The patient states his pain has persisted that it begins when he wakes up in the morning lasts all day long that he is a landscaper and has not been able to go to work because of this pain and discomfort.

(R. 908.) Plaintiff’s neurological examination showed the following: “Cranial nerves are grossly intact the patient has no focal or lateralized motor weakness he performs rapid alternating movements and finger-to-nose without difficulty there is no pronator drift he ambulates wihout difficulty mental status is normal.” (R. 909.) Plaintiff was advised that he needed to be seen and evaluated at a headache clinic–he was asked to call the Hershey Medical Center and follow up there. (Id.)

On June 17, 2013, Plaintiff presented to the emergency room at Holy Spirit Hospital with multiple complaints, including headache which he said were chronic. (R. 691.)

On July 1, 2013, Plaintiff was seen at the Hershey Neurology Clinic upon referral of Dr. Chakravarty for ulnar nerve neuropathy. (R. 509.) Plaintiff presented with a history of migraine headaches–-reporting the headaches began in 2011 and he had noticed a progression over the past six months. (Id.) He described the discomfort as pounding and reported that his symptoms are every day and constant. (Id.) It was also recorded that Plaintiff

has associated symptoms of nausea, photophobia, phonophobia, imbalance and left-sided numbness and tingling involving the left V1-V3 region, left arm and left leg. He reports due to the discomfort, he stays in a dark quiet room with the lights off. He reports he has had a head CT and brain MRI in the past, which have both been negative. He denies any head trauma or exposure to toxins.

(R. 509.) Life style modifications, including dietary changes, were reviewed. (R. 511.) For preventative treatment amitriptyline was prescribed; for abortive treatment Plaintiff was to continue Tramadol. (Id.) Other treatment options were discussed but Plaintiff declined them. (Id.) The reviewing physician found that Plaintiff had left-sided numbness and tingling and left arm weakness, opining this could be due to central or peripheral nervous system causes. (Id.) The plan was to obtain previous test results and then determine if other workup would be needed. (Id.)

On July 26, 2013, Plaintiff went to PH Surgical Consultants for a muscle biopsy. (R. 585-86.) The chronic problems listed include headache. (R. 586.)

Plaintiff was seen at Hershey Medical Center Neurology Clinic on August 2, 2013. (R. 501.) Plaintiff denied any progression over the past few months. (Id.) The headaches were described as they had been at his July 1, 2013, visit but he did not have nausea, photophobia or phonophobia and he occasionally had numbness and tingling with the headache. (Id.) Plaintiff noted that the severity of the headaches had decreased though he was still getting headaches on a daily basis. (Id.)

At Plaintiff’s September 23, 2013, office visit to Kline Health Center, it was noted that Plaintiff’s headaches were chronic and he was on pain medication. (R. 758.)

At a pain management visit to Hershey Medical Center on October 14, 2013, Plaintiff’s complaints did not focus on headaches but on pain in both shoulders, his lower lumbar spine and left leg. (R. 601.) At the time Plaintiff was newly diagnosed with diabetes and polymyositis. (Id.) It was noted that Plaintiff had recently seen neurology for treatment of his migraine headaches, and was “taking amitriptyline at night which helps with his sleep as well as diclofenac for abortive migraine therapy and Excedrin Migraine for abortive treatment.” (R. 602.)

At a follow up neurology visit at Hershey Medical on Novemeber 1, 2013, Plaintiff’s history of chronic daily headaches was noted. (R. 668) The headaches were similar to those previously described but he did not have nausea, photophobia or phonophobia and dizziness with the headaches. (Id.) Plaintiff noted that the severity of the headaches had decreased though he was still getting headaches on a daily basis. (Id.) The Assessment indicates chronic daily headaches that have a musculoskeletal component. (R. 670.) It was recommended that Plaintiff continue with preventive treatment. (Id.) Physical therapy was also recommended: myofascial release for his musculoskeletal-type headache. (Id.)

In an urgent care visit to Kline Health Center on November 25, 2013, Plaintiff presented with back and leg pain as well as pounding headaches. (R. 772.) He reported that the headaches had been worse over the previous two days. (Id.)

On December 18, 2013, Plaintiff went to Kline Heath Center for a follow up stating that his pain and symptoms were getting worse. (R. 789.)

On March 14, 2014, Plaintiff was seen at the emergency room at Pinnacle Health Harrisburg Campus. (R. 822.) The attending physician was Richard Luley, M.D., and the primary nurse was Nicole Baselj, R.N. (Id.) Plaintiff’s chief complaint was leg pain and he stated that he had constant migraine headaches. (Id.) Plaintiff denied drug use–-he was asked specifically about it and stated he never used drugs and never used heroin. (Id.) When advised that his records showed otherwise, he admitted that he used heroin a long time ago. (Id.) The recorder noted that the visit to the emergency room was Plaintiff’s twenty-first and many visits were for pain problems. (Id.) Plaintiff’s primary diagnosis was bilateral lower extremity pain, “ADDITIONAL: suspect drug-seeking behavior.” (Id.)

b. Polymyositis and Neuropathy

On January 31, 2013, Plaintiff was seen at the Milton S. Hershey Medical Center with complaints of numbness and tingling in left arm and hand and persistent headaches. (R. at 415.) He was referred to the neurology clinic. (Id.)

On March 6, 2013, Plaintiff saw Dr. Chakravarty at the Kline Health Center, presenting with hypertension and hepatitis c with the added comment that Plaintiff stated that he had been having some peripheral neuropathy which had not improved. (R. 541.) In the Review of Systems, Plaintiff noted fatigue, anxiety, extremity weakness, and numbness in extremities. (R. at 541-42.) On physical examination of the extremities, Dr. Chakravarty noted the dorsalis pedis pulses were normal and no edema was present. (R. 544.) He also found that Plaintiff demonstrated appropriate mood and affect. (Id.) In his Assessment/Plan, Dr. Chakravarty raised the possibility of polymyositis, and noted he would start a trial of steroids, consult with rheumatology, and do further testing. (R. 544.) He also noted peripheral neuropathy for which he planned to increase the dosage of gabapentin. (Id.)

In an office visit on April 8, 2013, to the Kline Health Center, Liya Galooshian, M.D., noted that Plaintiff had multiple visits between the emergency department and walk-in clinic for muscle pain, and he again presented for bilateral lower extremity pain. (R. at 559.) Dr. Galooshian reported the following:

The pain started a couple months ago, first in his left leg and now in his right leg as well. He describes the pain as being in his muscles, sharp in quality, and progressively worsening. He was seen in the clinic last week and an EMG with muscle biopsy was ordered (for suspision [sic] of myositis) however, patient says he never got called. He does tell me he has an appointment scheduled in July with Dr. Saacchs in the Rheumatology clinic. He has been taking his tramadol, ibuprofen, prednisone, and gabapentin as prescribed by his PCP but he tells me he is not getting any relief. He denies any trauma to his legs.

(R. 559.) Under Assessment/Plan, Dr. Galooshian identified myositis, noting that Plaintiff had an appointment with the rheumatology clinic in July and a referral for an EMG study and nerve biopsy which had not yet been scheduled. (R. at 562.)

On May 5, 2013, Plaintiff went to Pinnacle Health Harrisburg Campus for headache. (R. 908.) In the review of systems, Plaintiff denied back pain and mylagias. (Id.) Physical examination of the extremities showed normal inspection, normal range of motion and motor strength, sensation intact, and no edema. (R. 909.)

In an office visit on June 11, 2013, to Hershey Medical Center neurology clinic, Plaintiff was seen by CRNP Rashmi Agarwal for a follow-up visit regarding his left upper extremity paresthesias and weakness. (R. 501.) CRNP Agarwal referred to an EMG study dated May 9, 2013, which showed ulnar nerve entrapment/neuropathy at the left elbow, adding that a myopathic disorder affecting the proximal left upper and lower extremities could not be ruled out. (R. at 503.) Plaintiff reported that he had arm weakness over the previous few months, that he was having trouble lifting objects with his left arm, and weakness had progress to his bilateral lower extremities. (R. 502.) He also reported that an EMG nerve conduction study showed neuropathy and that he was scheduled for a muscle biopsy on August 14th. (Id.) In the Assessment and Plan, CRNP Agarwal reported the following: “He does have subjective symptoms of progressive lower extremity and left upper extremity weakness and paresthesias although has a normal neurologic exam and normal brain imaging.” (R. 502.) CRNP Agarwal requested a cervical spine MRI to look for any other central causes and also requested additional records. (Id.)

Plaintiff underwent a left anterior thigh quadriceps muscle biopsy on August 20, 2013. (R. at 655.) The diagnosis was inflammatory myopathy consistent with polymyositis. (Id.)

On September 7, 2013, Plaintiff went to the emergency room at Pinnacle Health Harrisburg Campus because of left leg pain which he reported to have had for two weeks. (R. 894.) Plaintiff said that he had recently had a muscle biopsy and polymyositis had been diagnosed. (Id.) He further reported that he had been taking tramadol for pain without relief, his pain was 8/10 in severity, he was able to walk, move, and bend his leg as usual but the upper lateral aspect of his left thigh had decreased sensation. (Id.) Review of the musculoskeletal system indicates Plaintiff reported injury; neurologically he reported headache and denied sensory changes. (R. 894.) Physical examination of the lower extremity showed normal range of motion, normal motor strength, sensation impaired to the left lower extremity, decreased sensation to the left upper lateral thigh, pedal pulse normal, a well-healed surgical scar noted to anterior central left thigh mildly tender to palpation without palpable hematoma or abscess, no drainage or evidence of cellulitis, and Plaintiff ambulated without difficulty. (R. 895.) Neurologically Plaintiff was oriented to person, place and time and his speech and gait were normal. (R. 887.) The doctor noted that the mildly impaired sensation to the left thigh was likely nerve palsy secondary to the biopsy procedure and he explained the self-limiting nature of the problem to Plaintiff. (R. 895.) Plaintiff was given a prescription for norco for his acute pain and directed to follow up with his primary care physician. (Id.)

On September 19, 2013, Plaintiff went to the emergency room at Pinnacle Health Harrisburg Campus for evaluation of hyperglycemia, thinking he had hyperglycemia because he had been having urinary frequency and thirst. (R. 886.) He also wanted narcotics for chronic pain. (Id.) Review of symptoms indicates Plaintiff denied back pain and injury and sensory changes; he reported myalgias and headache. (Id.) Examination of the back and upper and lower extremities was normal. (R. 887.) When Plaintiff requested ongoing narcotics for his chronic pain, the doctor advised him to discuss this with his primary care physician. (R. 888.) He was also to follow up regarding possible diabetes. (Id.)

Plaintiff was seen for an office visit at the Kline Health Center on September 23, 2013. (R. 754.) The visit was a follow up to an emergency room visit the preceding week where Plaintiff was found to have high blood sugar. (R. 755.) The Review of Systems was negative and muscoloskeletal “[n]ormal range of motion, muscle strength, and stability in all extremities with no pain on inspection” was noted. (R. 758.) It was also noted that Plaintiff was on a heavy dose of steroids for “Symptomatic inflammatory myopathy.” (Id.)

On September 30, 2013, Plaintiff went to the emergency room at Pinnacle Health Harrisburg Campus for back pain. (R. 880.) He said his pain was uncontrolled and he was not able to walk due to pain. (Id.) He reported left leg muscle weakness and new pain shooting into his left lower back, stating the pain was the worst it had been and ranking it at 8/10. (Id.) In the review of systems, Plaintiff reported back pain, leg pain and weakness. (Id.) Neurologically he reported focal weakness and denied headache or mental status changes. (Id.) Physical examination of the back “included findings of normal inspection, range of motion normal, tenderness, paraspinal to the left lower back, no pain with straight leg raise.” (R. 881.) Upper extremity exam “included findings of normal inspection, range of motion normal, Radial pulse normal.” (Id.) Lower extremity exam “included findings of normal inspection, range of motion normal, Motor strength normal, Posterior tibial pulse normal.” (Id.) Neurological exam findings “include patient oriented to person, place and time, Speech normal, Gait normal, Cranial nerves intact, Deep tendon reflexes normal, no focal motor deficits, no focal sensory deficits, no cerebellar deficits.” (Id.) Plaintiff was given percocet and directed to keep his pain control appointment scheduled for the following week. (R. 882.)

On October 4, 2013, Plaintiff went to the emergency room at Pinnacle Health Harrisburg Campus primarily for chest pain. (R. 872.) Under musculoskeletal review of systems, Plaintiff denied back pain and reported chronic headaches. (Id.) Physical examination of the back and upper and lower extremities were normal as was his neurological exam. (R. 873.) When the doctor began discussing discharge with Plaintiff, Plaintiff requested oxycodone refills, stating that his primary care doctor told him to go to the ER for refills. (Id.) Plaintiff was told to contact his primary care doctor. (Id.) It was also noted that Plaintiff had been in the ER for pain related complaints two other times since the beginning of September. (R. 873-74.)

In another emergency room follow up on October 9, 2013, for high blood sugar, under Review of Systems “Musculoskeletal” it was noted to be “[n]egative for bone/joint symptoms, joint swelling, muscle weakness and weakness.” (R. 760-61.) Musculoskeletal physical examination showed “[n]ormal range of motion, muscle strength, and stability in all extremities with no pain on inspection.” (R. 763.) Regarding symptomatic inflammatory myopathy, it was noted that Plaintiff was to see a specialist as advised and consider reducing the steroid dose. (R. 764.)

During a pain management evaluation on October 14, 2013, Plaintiff reported experiencing pain in both shoulders, lower lumbar spine and left leg. (R. at 601). Vitaly Gordin, M.D. noted that Plaintiff had recently been diagnosed with diabetes and polymyositis and was started on prednisone therapy for the polymyositis. (Id.) Plaintiff stated that the pain had not changed with the steroid treatments. (Id.) Dr. Gordin observed that his reflexes were markedly decreased, absent to 1/4 in brachioradialis, biceps, patella and Achilles; tenderness over lower lumbar spine in L4 to L5 area and right paraspinal tenderness in lower lumbar area. (R. at 602.) Plaintiff’s physical examination was otherwise unremarkable, and Dr. Gordin noted that all diagnostic imaging and results were reviewed with no acute findings. (Id.) Dr. Gordin diagnosed neuropathic pain, left neuropathy in arm concerning for ulnar nerve and entrapment syndrome. (R. at 602, 603.) Because Plaintiff had tried Neurontin and Lyrica in the past without relief for his neuropathic pain, Dr. Gordin had nothing further to suggest for treatment of the neuropathic pain. (R. 603.) He recommended that Plaintiff continue the oxycodone for pain relief and amitriptyline at night “as it helps with both pain and depression symptoms.” (Id.)

On October 21, 2013, Plaintiff went to the emergency room at Pinnacle Health Harrisburg Campus with the chief complaint of chronic pain. (R. 866.) Review of the muscoloskeletal system states that Plaintiff reported back pain and myalgias. (Id.) Physical examination of the back included findings of normal inspection and normal motor strength. (Id.) Examination of upper extremity included findings of normal inspection and normal motor strength. (Id.) Lower extremity examination included findings of inspection normal, range of motion and motor strength normal, sensation intact, mild tenderness palpating left lateral thigh, and no pain in joints or hips. (Id.) Plaintiff received IV dilaudid in the ER and asked ...

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