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Brush v. Colvin

United States District Court, M.D. Pennsylvania

June 23, 2015

WENDY L. BRUSH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM

RICHARD P. CONABOY UNITED STATES DISTRICT JUDGE

Here we consider Plaintiff’s pro se appeal from the Commissioner’s denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. (Doc. 1.) She originally alleged disability due to a number of physical and mental impairments beginning on October 1, 2005, but amended the onset date to January 26, 2011, . (R. 21, 148.) The Administrative Law Judge (“ALJ”) who evaluated the claim concluded that Plaintiff’s severe impairments of history of seizure and back pain did not meet or equal the listings alone or in combination with Plaintiff’s non-severe impairments. (R. 24-25.) The ALJ found that Plaintiff had the residual function capacity (“RFC”) to perform light work with certain limitations and that such work was available through the date last insured, December 31, 2012. (R. 26-30.) The ALJ therefore denied Plaintiff’s claim for benefits. (R. 30.) With this action, Plaintiff argues that the decision of the Social Security Administration is error for the following reasons: 1) the ALJ failed to keep the records open as requested; 2) the ALJ erred by failing to properly evaluate her mental health impairments; 3) the ALJ erred by failing to properly assess her residual functional capacity; and 4) the ALJ erred by relying on the vocational expert’s testimony. (Doc. 15 at 4-7.) 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 January 8, 2013, Plaintiff protectively filed an application for DIB. (R. 21.) As noted above, she now alleges disability beginning on January 26, 2011. (Id.) In her application for benefits, Plaintiff claimed her ability to work was limited by epilepsy, carpal tunnel syndrome, anxiety and panic attacks, depression, back injury, and headaches due to a car accident. (R. 148.) The claim was initially denied on February 19, 2013. (R. 21.) Plaintiff filed a request for a review before an ALJ on April 17, 2013. (R. 21.) On February 14, 2014, Plaintiff appeared at a hearing before ALJ Jarrod Tranguch. (R. 21.) Vocational Expert Josephine Doherty also testified at the hearing. (Id.) Plaintiff’s main representative through the administrative process was Mario Davila, a non-attorney representative from Binder and Binder. (Id.) At the ALJ hearing, Plaintiff was represented by a Binder and Binder attorney, Jesse Traugot. (Id.) The ALJ issued his unfavorable decision on April 25, 2014, finding that Plaintiff was not disabled under the Social Security Act during the relevant time period. (R. 30.)

On May 9, 2014, Plaintiff filed a Request for Review with the Appeal’s Council. (R. 17.) The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on September 17, 2014. (R. 1-6.) In doing so, the ALJ’s decision became the decision of the Acting Commissioner. (R. 1.)

On November 7, 2014, Plaintiff filed her action in this Court appealing the Acting Commissioner’s decision. (Doc. 1.) Defendant filed her answer and the Social Security Administration transcript on February 4, 2015. (Docs. 11, 12.) Plaintiff filed the document we have construed as her supporting brief on April 30, 2015. (Docs. 15, 16.) Defendant filed her opposition brief on June 2, 2015. (Doc. 17.) Plaintiff did not file a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.

B. Factual Background

Plaintiff was born on October 3, 1973, and was thirty-nine years old on the date last insured. (R. 17.) Plaintiff has a high school education. (R. 29.) Plaintiff has past relevant work as a mail carrier. (Id.)

1. Impairment Evidence

As noted above, Plaintiff identifies many impairments in her application for benefits. (R. 148.) The ALJ addressed Plaintiff’s claims regarding her history of seizures, back pain, carpal tunnel syndrome, headaches, asthma, depression, anxiety and panic attacks. (R. 24.) Plaintiff’s claimed errors involve her seizure disorder, mental impairments, the ALJ’s RFC function determination specifically related to her abilities to sit, stand and walk, and his step five determination related to Plaintiff’s ability to do simple, unskilled work.[1] (Doc. 15 at 4-7.) Therefore, we focus our review of Plaintiff’s impairments on her history of seizures, back problems, and mental impairments during the relevant time period of January 26, 2011, through December 31, 2012.[2]

a. Seizure and Back Impairments

On May 13, 2009, Plaintiff was seen at Geisinger’s emergency department because she had a seizure about thirty minutes before arrival. (R. 251.) The seizure lasted three to four minutes and Plaintiff was reported to have shaking all over, “stiff as a board, [and] foaming at the mouth.” (Id.) Plaintiff denied pain or other injuries and all systems were normal. (R. 252-53.)

On November 19, 2009, Frank G. Gilliam, M.D., saw Plaintiff on the referral of Dr. Janusz Wolanin, Plaintiff’s primary care physician, and noted that Plaintiff presented with a history of possible seizures since 1999 and she wanted to “know what is going on.” (R. 198, 205.) She reported that a typical event consisted “of a ‘weird feeling’ in her head quickly followed by anxiety, a sense that she is paralyzed and disconnected from her surrounding.” (Id.) Plaintiff stated that this occurred once or twice a week. (Id.) She and her mother also described at least two GTC seizures in the past.[3] (Id.) Plaintiff had been taking Keppra for the seizures for the preceding four months (she had not taken anything previously), and she reported increased fatigue and sedation. (Id.) Dr. Gilliam noted that “current relevant comorbidities include depression.” (R. 198.) Review of systems, physical examination, and mental status were normal. (R. 200.) Dr. Gilliam considered it a possibility that Plaintiff had temporal lobe epilepsy. (R. 200.) He changed Plaintiff’s medication and, discussed with her that if the seizures did not stop, he would consider video/EEG and possible MRI. (Id.) His diagnosis for the visit was “seizures, complex partial, intractable.” (R. 203.)

On September 17, 2010, Plaintiff was seen by Geisinger’s Trauma Service after a motor vehicle accident for evaluation of facial trauma. (R. 247.) The diagnosis was facial contusion, closed head injury, seizure, and facial abrasions. (R. 249.)

On the same day, Plaintiff had a head and cervical spine CT as a result of the motor vehicle accident. (R. 265.) The head CT was normal and the cervical spine CT showed no acute intracranial abnormality and no traumatic osseous injury to the cervical spine. (R. 265-66.) CT scans of the chest, abdomen and pelvis resulted in the following impression: “Mild indentation of central portion of superior endplates of T10 and T11 vertebral bodies without apparent discrete fracture . . . . No surrounding hematoma or soft tissue swelling to suggest acute etiology. These may represent Shmorl’s nodes. However, less likely differential of subtle compression fractures is not entirely excluded.” (R. 272.)

On September 29, 2010, Plaintiff saw her primary care physician, Janusz Wolanin, M.D., presenting with injury related to her car accident. (R. 466.) Plaintiff reported right chest and lower back pain. (Id.) She also reported that symptoms had been absent prior to the injury. (Id.) On examination, Plaintiff had mild tenderness in her spine bilaterally. (R. 467.) The muscoloskeletal examination was otherwise normal. (Id.) Plaintiff’s assessment was “Contusion of Chest Wall, ” and “Backache Unspec.” (Id.)

On November 22, 2010, Plaintiff saw Dr. Wolanin with complaints of back pain, worse with movement, and difficulty sleeping. (R. 459.) He observed that Plaintiff appeared well and had no signs of present distress. (Id.) On physical examination, Dr. Wolanin reported the following musculoskeletal findings:

Walks with a normal gait, ttp over entire paraspinal musc Upper extremities: Normal to inspection and palpation. No tenderness over the upper extremities bilaterally. No evidence of lymphedema. No instability bilaterally. Strength: Normal and symmetric. Normal muscle tone bilaterally. Normal muscle bulk bilaterally. Full ROM bilaterally. Lower Extremities: Normal to inspection and palpation. No tenderness of the lower extremities bilaterally. No instability bilaterally. Strength: Normal and symmetric. Normal muscle tone bilaterally. Muscle bulk is normal bilaterally. Full ROM bilaterally.

(R. 461.) He made the following neurological findings: “Alert and oriented x3. Mood is normal. Affect is normal. Memory is intact. Attention is WNL. Sensation intact to light touch. Achilles and patellar DTR’s are brisk and symmetrical. Coordination is normal. Romberg’s test is intact.” (Id.) Dr. Wolanin’s assessment was “Backache Unspec.” “Insomnia Unspecified, ” and “Anxiety State Unspec.” (Id.)

On December 20, 2010, Plaintiff again saw Dr. Wolinan for follow up after her accident. (R. 457.) Plaintiff reported that “Flexeril makes her loopy, ” Soma had helped in the past, and she still had pain. (Id.) Musculoskeletal examination findings were essentially the same as recorded at Plaintiff’s November 22, 2010, visit. (R. 458.)

On January 17, 2011--Plaintiff’s first medical encounter during the relevant time period--Dr. Wolinan noted that Plaintiff continued to complain of neck pain, decreased range of motion, and stiffness. (R. 454.) Dr. Wolinan observed that Plaintiff “[a]ppears well. No signs of apparent distress present. Speech is clear and appropriate for age. . . . Patient is cooperative. Facial expression appears pleasant.” (Id.) On physical examination, Plaintiff’s neck was “[n]ormal to inspection. Unremarkable on palpation. Trachea midline.” (R. 455.) Dr. Wolinan recorded the following muscoloskeletal examination findings: “Walks with normal gait. Upper Extremities: Normal to inspection and palpation. No evidence of lymphedema. Strength: Normal and symmetric. Normal muscle tone bilaterally. Full ROM bilaterally. Lower Extremities: Normal to inspection and palpation. Strength: Normal and symmetric. Normal muscle tone bilaterally. Full ROM bilaterally.” (Id.) He recorded the following neurological examination findings: “Alert and oriented x3. Mood is normal. Affect is normal. Memory is intact. Attention is WNL. Sensation intact to light touch. Achilles and patellar DTR’s are brisk and symmetrical. Coordination is normal. Romberg’s test is intact.” (Id.) Dr. Wolinan’s assessment was “Backache Unspec, ” “Contusion Chest Wall, ” and “Sprains & Strains Neck.” (Id.)

On February 16, 2011, Plaintiff presented to Dr. Wolinan with increasing back pain. (R. 451.) She reported that she also had numbness in her lower extremities. (Id.) Examination of the neck was unremarkable. (R. 452.) Musuloskeletal examination findings were similar to those of the January visit. (Id.) Dr. Wolinan’s assessment was “Backache Unspec.” (Id.) Dr. Wolinan recommended x-ray of the lumbar spine. (Id.)

On March 2, 2011, Plaintiff had EMG because of left leg pain. (R. 450.) All motor studies were normal and needle examination of the left and low lumbar paraspincal muscles was normal. (R. 450.) The Impression was “[n]ormal study, no electrodiagnostic evidence of neuropathy, myopathy or radiculopathy.” (Id.) On the same date, cervical spine x-rays were normal. (R. 449.) Lumbar spine x-rays showed mild levoscoliosis of the lumbar spine and the remainder of the study was normal. (R. 448.) Thoracic spine studies showed mild dextroscoliosis of the thoracic spine and the remainder of the study was normal. (R. 447.)

On March 14, 2011, Plaintiff saw Dr. Wolinan for routine follow up. (R. 444.) She continued to complain of back and neck pain. (Id.) Examination of her neck was normal and unremarkable on palpation. (R. 445.) Muskuloskeletal examination showed the following: “Walks with a normal gait. Spine: Moderate midline tenderness of the spine. Upper Extremities: Normal to inspection and palpation. No evidence of lymphedema. Strength: Normal and symmetric. Normal muscle tone bilaterally. Full ROM bilaterally. Lower Extremities: Normal to inspection and palpation. Strength: Normal and symmetric. Normal muscle tone bilaterally. Full ROM bilaterally.” (Id.) Dr. Wolinan’s assessment was “Backache Unspec, ” and “Sprains & Strains Neck.” (Id.)

Plaintiff had another regular monthly follow up visit with Dr. Wolinan on April 6, 2011. (R. 441.) She continued to complain of back pain and Dr. Wolinan noted that Plaitniff was extremely anxious due to her friend’s death the day before. (Id.) Findings regarding Plaintiff’s musculoskeletal examination was the same as at the previous visit except that Dr. Wolinan did not note midline tenderness of the spine. (R. 442.) Assessment was “Backache Unspec, ” and “Anxiety State Unspec.” (Id.)

At her regular visit on May 4, 2011, Dr. Wolinan reported that Plaintiff was doing well and had dental work the day before. (R. 435.) Subjective reports and objective physical findings were unremarkable. (R. 435-36.) Assessment was “Teeth and Supporting Structures Disorders, ” “Backache Unspec, ” and “Anxiety State Unspec.” (Id.)

On June 1, 2011, Plaintiff saw Dr. Wolinan for a routine visit. (R. 432.) Dr. Wolinan noted that Plaintiff was doing well with no new complaints but she continued to report chronic pain and anxiety. (Id.) Dr. Wolinan recorded that Plaintiff appeared well and her physical examination was unremarkable, including normal mood and affect. (Id.) Assessment was “Backache Unspec, ” and “Anxiety State Unspec.” (Id.)

On June 29, 2011, Dr. Wolanin noted that Plaintiff still had back pain that “comes and goes.” (R. 429.) He also noted that medication helped and that Plaintiff needed an EEG. (Id.) Otherwise, Dr. Wolanin’s office visit notes and assessment are the same as recorded in early June. (R. 429-30.)

On July 14, 2011, Plaintiff had an EEG at the request of Dr. Wolanin because of Plaintiff’s history of seizures. (R. 496.) The impression was “Normal awake and drowsy EEG.” (Id.)

Plaintiff had another routine office visit with Dr. Wolinan on July 22, 2011. (R. 423.) Plaintiff complained of congestion, cough, abdominal discomfort, and other symptoms which she had for three days and were similar to those recently experienced by her sister. (Id.) Otherwise, Dr. Wolanin’s office visit notes and assessment are the same as recorded in early June. (R. 423-24.)

On August 3, 2011, Plaintiff saw Dr. Wolanin for follow up. (R. 420.) She continued to complain of chronic pain that interrupted her sleep. (Id.) Otherwise Plaintiff’s subjective reporting was unremarkable. (Id.) Dr. Wolanin’s examination was also unremarkable, including his musculoskeletal exam. (R. 421.) His assessment was “Backache Unspec, ” “Insomnia Unspecified, ” and “Anxiety State Unspec.” (Id.)

On August 17, 2011, Plaintiff saw Dr. Wolanin for a routine visit. (R. 417.) He reported that Plaintiff was doing well. (Id.) She was recovering from hernia surgery, had no new complaints but still had chronic pain and anxiety. (Id.) Plaintiff’s objective reporting was otherwise unremarkable. (Id.) Dr. Wolinan observed that Plaintiff appeared well and had no signs of present distress. (Id.) His phsyical examination was unremarkable. (R. 418.) Dr. Wolanin’s assessment included “Backache Unspec, ” “Insomnia Unspecified, ” and “Anxiety State Unspec.” (Id.)

On September 9, 2011, Plaintiff saw Dr. Wolanin for a routine visit. (R. 414.) He reported that she was doing well but had woken up that morning with congestion and sinus pressure and was requesting an antibiotic. (Id.) Plaintiff had a fever. (Id.) Otherwise, Plaintiff did not report any difficulties, and Dr. Wolanin’s physical examination was unremarkable. (R. 414-15.)

On October 3, 2011, Plaintiff saw Dr. Wolanin for follow up. (R. 406.) He recorded that Plaintiff reported she had been feeling fine since her last visit–-“No seizures recently. No dizziness, fatigue, or headache.” (Id.) Subjective and objective evaluations were unremarkable. (R. 406-07.) No Assessment or Plan was recorded. (See R. 407.)

On October 24, 2011, Plaintiff saw Dr. Wolanin for a routine visit. (R. 401.) Subjective and objective evaluations were unremarkable. (R. 401-02.) Assessment was “Backache Unspec, ” and “Anxiety State Unspec.” (R. 402.)

At an office visit to Dr. Gilliam on October 24, 2011, Plaintiff again reported she experienced events she described as a a “‘weird feeling’ in her head quickly followed by anxiety, a sense that she is paralyzed and disconnected from her surrounding around bedtime, states it feels ‘like a wave’ and a ‘sparkler going off my head.’” (R. 206.) Plaintiff reported she did not know how long the seizure lasted but estimated two minutes. (Id.) She stated this type of seizure occurred once or twice a month. (Id.) Plaintiff also reported two episodes where she had very vivid auditory/visual hallucinations: “one episode in which she was awake, had recently started Seroquel, and talked to ‘shadows’ and lasted 30 minutes and another episode a few weeks ago when she was going to sleep (20 minutes), where she became very fearful and saw shadows.” (Id.) Plaintiff had the same concerns and comorbidities as in November 2009. (R. 206.) Prior evaluations included normal brain CT and abnormal EEG by Plaintiff’s report but Dr. Gilliam did not have the report. (Id.) Plaintiff had not had Video/EEG or neuropsychological testing. (Id.) Plaintiff’s physical and mental status examinations were normal. (R. 207-08.) She had a headache at the time–-one on a scale of one to ten. (R. 209.) Dr. Gilliam thought the longer events were most likely not seizure in nature but could be related to adverse effects of Seroquel or acute psychosis. (R. 208.) Plaintiff was encouraged to follow up with psychiatry regarding the two longer events. (Id.) The plan was to change medications and admission to the epilepsy monitoring unit was discussed as a possibility if Plaintiff continued to have loss of awareness or lapses in time. (Id.)

On December 5, 2011, Plaintiff saw Dr. Wolanin for follow up. (R. 395.) He recorded that Plaintiff had no new complaints but reported she still had chronic pain and anxiety. (Id.) Subjective and objective evaluations were unremarkable. (R. 395-96.) Assessment was “Insomnia Unspecified, ” “Backache Unspec, ” and “Anxiety State Unspec.” (R. 396.)

On January 4 and January 30, 2012, Plaintiff saw Dr. Wolanin for routine visits. (R. 386, 392.) She was doing well with no new complaints. (Id.) Subjective and objective evaluations were unremarkable. (R. 386-87, 392-93.) Assessment was “Insomnia Unspecified, ” “Backache Unspec, ” and “Anxiety State Unspec.” (R. 387, 393.)

On March 14, 2012, Plaintiff was seen by Geisinger’s Trauma Service after a motor vehicle accident. (R. 243-44.) Plaintiff struck her head and did not remember the accident and was not aware if she lost consciousness or if she had a seizure. (R. 244.) No acute intervention was necessary at the time and Plaintiff was diagnosed with head contusion. (R. 247.)

On March 16, 2012, Plaintiff went to Dr. Wolanin for follow up after the car accident. (R. 371.) He reported Plaintiff was “[u]nsure if she had a seizure because she does not remember the accident; has history of seizures and taking medications. Complaining of chronic low back pain; states it has not worsened since MVA. No other injuries. All x-rays . . . were negative.” (Id.) Physical examination of Plaintiff’s musculoskeletal system showed the following: “Walks with a normal gait. Upper extremities: Normal to inspection and palpation. Strength: Normal and symmetric. Normal muscle tone bilaterally. Full ROM bilaterally. Lower Extremities: Normal to inspection and palpation. Strength: Normal and symmetric. Normal muscle tone bilaterally. Full ROM bilaterally.” (R. 372.)

On April 25, 2012, Plaintiff saw Dr. Wolanin for follow up. (R. 368.) He noted that she was doing well. (Id.) He also noted that Plaintiff reported she “[r]einjured old orbit blowout fracture in MVA. With pain; asking for something for breakthrough pain.” (Id.) Subjective and objective evaluations were unremarkable. (R. 368-69.) Assessment was “Backache ...


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