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Dyer v. Colvin

United States District Court, M.D. Pennsylvania

June 29, 2015

ROBIN L. DYER, 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 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. (Doc. 1.) Plaintiff originally alleged disability due to back problems and a mini stroke, reporting an onset date of September 18, 2010. (See, e.g., R. 207, 212.) The Administrative Law Judge (“ALJ”) who evaluated the claim concluded that Plaintiff’s severe impairments of back impairment, chronic obstructive pulmonary disease, affective disorder, and personality disorder did not meet or equal the listings alone or in combination with Plaintiff’s obesity and non-severe impairments. (R. 37-41.) The ALJ found that Plaintiff had the residual function capacity (“RFC”) to perform light work with certain limitations and that such work was available in the national economy. (R. 42-48.) The ALJ therefore found Plaintiff was not disabled under the Act from the alleged onset date of September 18, 2010, through the date of the decision and, therefore, denied her claim for benefits. (R. 49.)

With this action, Plaintiff argues that the decision of the Social Security Administration must be reversed and the matter remanded for further proceedings on the following bases: the ALJ’s finding that Plaintiff retained the RFC to perform a range of light work is not supported by substantial evidence; the ALJ failed to properly evaluate the medical and non-medical evidence; and the ALJ’s step five finding lacks the support of substantial evidence. (Doc. 9 at 12.) For the reasons discussed below, we conclude Plaintiff’s appeal of the Acting Commissioner’s decision is properly granted.

I. Background

A. Procedural Background

On November 4, 2010, Plaintiff protectively filed applications for DIB and SSI. (R. 35.) As noted above, Plaintiff alleges disability beginning on September 18, 2010.[1] (Id.) In her application for benefits, Plaintiff claimed her ability to work was limited by back problems and a mini stroke. (R. 212.) The claim was initially denied on April 18, 2011. (R. 35.) Plaintiff filed a request for a review before an ALJ on June 6, 2011. (R. 35.) On December 7, 2012, a video hearing was held by ALJ Jennifer Gale Smith. (R. 57-87.) Plaintiff appeared with her attorney, Benson Potzo. (Id.) The ALJ issued her unfavorable decision on December 17, 2012, finding that Plaintiff was not disabled under the Social Security Act. (R. 49.) On January 28, 2013, Plaintiff requested a review with the Appeal’s Council. (R. 31.) The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on August 15, 2014. (R. 1-7.) In doing so, the ALJ’s decision became the decision of the Acting Commissioner. (R. 1.)

On October 9, 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 December 16, 2014. (Docs. 5, 6.) Plaintiff filed her supporting brief on March 2, 2015. (Doc. 9.) Defendant filed her opposition brief on May 4, 2015 (Doc. 14), after requesting and being granted an extension of time within which to do so (Docs. 10, 11). 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 August 17, 1961, and was forty-nine years old on the alleged disability onset date. (R. 48.) She was fifty-one years old on the date last insured. (Doc. 9 at 2.) Plaintiff has a tenth grade education. (Id.) Plaintiff worked as a waitress and a cook (Doc. 9 at 3), work which is characterized as unskilled (R. 48). Plaintiff last worked in August 2007. (R. 64.)

1. Impairment Evidence

Because Plaintiff’s claimed errors primarily address her back impairment, we focus on evidence related to the treatment, diagnosis and evaluation of her back-related problems. Some evidence outside the relevant time period is reviewed to provide context.

On November 3, 2008, PA-C Jon Vogler noted that Plaintiff complained of right groin pain. (R. 431.) Progress Notes indicate this had been going on for three years, Plaintiff reporting that it hurt to walk, sitting for any length of time gave her a numb feeling down the right upper leg to her knee, and she had a compression fracture of the lumbar spine ten to fifteen years before. (Id.) Back examination was normal except for spinal tenderness and no other musculoskeletal problems were noted. (Id.) The groin pain was assessed to be from the lower back and Plaintiff was directed to use heat and do back exercises. (Id.) She was also prescribed Flexeril and a lumbar spine x-ray was ordered. (R. 432.)

A November 3, 2008, x-ray of Plaintiff’s lumbar spine showed minimal compression deformity at L1 level associated with degenerative disc disease. (R. 348.)

Plaintiff complained of back and hip pain on November 20, 2008, tenderness was noted on examination, and SI joint arthralgia was assessed. (R. 430.)

On January 3, 2009, the report of Plaintiff’s MRI of the lumbar spine indicated the following Impression: “essentially negative MR examination of the lumbar spine with disk desiccation of the L1-L2 intervertebral disk.” (R. 349.)

On March 19, 2009, Plaintiff saw Ronald E. DiSimone, M.D., who reported that Plaintiff presented with continued right lower extremity pain and injection into the SI joint had provided only several days of relief. (R. 570.) Her primary symptoms were complaints of pain down the front of the thigh to the anterior pre-tibia on the right with a rather severe walking intolerance but no problem sitting. (Id.) Physical examination showed some tenderness in the mid-lumbar region, tender right SI joint, non-tender left SI joint, non-tender sciatic notch bilaterally, some hip flexor weakness, some right knee extensor weakness, deep tendon reflexes trace for patellar tendon on the right, 1 on the left, ankle reflex trace, and symmetric bilateral lower extremities. (Id.) X-rays showed unstable Grade I spondylolisthesis primarily L3-4 on flexion/extension views. (Id.) AP showed mild list. (Id.) Lumbar MRI showed no obvious spinal stenosis or HNP. (Id.) Dr. DiSimone’s impression was Grade I unstable spondylolisthesis primarily L3-4 and mechanical low back pain with right lower extremity cauda equina radiculopathy. (Id.) He wanted Plaintiff to have a thoracic MRI to rule out HNP versus spinal stenosis and he wanted a consultation with Dr. Hani Tuffaha regarding right lower extremity radiculopathy. (Id.)

An April 24, 2009, correspondence from Hani J. Tuffaha, M.D., to whom Plaintiff was referred by Ronald DiSimone, M.D., for neurological evaluation, reports the following findings on examination:

Examination of the low back reveals moderate limitation of range of motion at the waist in all directions, especially on extension. There is no tenderness to percussion over the lumbosacral area. There is no paravertebral muscle stiffness. There is no scoliosis or kyphosis. Sciatic notches are not tender. Left straight leg raising up to 90 degrees, in the seated position, results in no difficulty, with absent Bragard’s and Fajersztajn’s. Right straight leg raising up to 90 degrees, in the seated position, results in no difficulty, with absent Bragard’s and Fajersztajn’s. There are no intrinsic mechanical signs in the hips. Femoral nerve stretching test is negative on the left and on the right increases the low back pain. Motor examination reveals light weakness of the right iliopsoas. There is no demonstrable sensory deficit. Deep tendon reflexes are 2 and symmetrical. The toes are downgoing and there is no ankle clonus. There is no focal atrophy or fasciculation. Gait is steady.

(R. 591.) Dr. Tuffaha reveiwed dynamic lumbar spine x-rays dated March 19, 2009, and reported that they showed Grade I retrolisthesis of L3 on L4 and Grade I retrolisthesis of L5 and S1. (Id.) He also reported that there was an old superior compression deformity of L1, adding that he felt the films were somewhat rotated, and the January 3, 2009, MRI showed mild degenerative changes with no evidence of root compression. (R. 591-92.) His Impression was “[i]ntractable low back pain, which could be mechanical with right anterior thigh pain, suggestive of radiculopathy.” (R. 592.) He recommended repeat dynamic lumbar spine x-rays, and referred Plaintiff to Dr. Rigal for pain management. (Id.)

On May 5, 2009, Plaintiff had x-rays of the lumbar spine. (R. 593.) The results were compared with the November 3, 2008, and January 3, 2009, studies. (Id.) The Impression indicated a compression fracture involving the superior endplate of the L1 vertebral body which was new compared with the previous studies, T12-L1 and L1-L2 disk space narrowing, and normal vertebral alignment in neutral, flexion and extension. (Id.)

On May 11, 2009, Plaintiff saw Rene R. Rigal, M.D., for pain management. (R. 571.) Physical examination revealed that Plaintiff was alert and oriented in time, space and person. (R. 572.) She had no pain upon movement of the spine at the waist, no pain on forward flexion to ninety degrees, lateral rotation to twenty degrees, and lateral tilt or hyper extension to twenty degrees. (Id.) Straight leg raising was negative to ninety degrees, deep tendon reflexes were preserved bilaterally and symmetrical, Plaintiff had no motor or sensory deficits, no clonus, and a Babinski sign was downgoing. (Id.) Palpation of Plaintiff’s back demonstrated no paraspinal tenderness, and no tenderness of the sacroiliac joints or the sciatic notch. (Id.) Dr. Rigal noted mechanical signs in the right hip with pain on internal and external rotation. (Id.) He also noted “exquisite pain on deep palpation of the right subtrochanteric bursa with radiation down the fascia lata.” (Id.) Patrick’s sign and Yeoman sign were both negative bilaterally. (Id.) His diagnosis was pain in the right hip, right subtrochanteric bursitis, and right sacroiliitis. (R. 572.) His plan was to get further x-rays, give Plaintiff a right subrochanteric bursa injection, and demonstrate home exercises which she should do four times per day. (Id.)

On June 1, 2009, Plaintiff again saw Dr. Rigal, reporting that the bursa injection had decreased her right lower extremity pain but she presented with pain in the right lumbosacral region. (R. 575.) The pain increased with prolonged sitting or doing any type of mechanical movement at the waist. (Id.) Dr. Rigal noted the following: Plaintiff had sustained a fracture of L1 several years before; the May 5, 2009, x-rays of the lumbar spine demonstrated evidence of an L1 vertebral body fracture and normal vertebral alignment in neutral flexion and extension; the January 3, 2009, MRI of the lumbar spine was normal; and the April 24, 2009, MRI of the thoracic spine demonstrated mild signal intensity changes of the left side of the body of T1. (Id.) He further noted that X-rays of both hips did not show any significant DJD. (Id.) Plaintiff denied any radicular pain into the lower extremities, any weakness in the lower extremities, or any loss of sphincter control. (Id.)

Physical examination revealed that Plaintiff was alert and oriented in time, space and person. (R. 576.) She had no pain upon movement of the spine at the waist, no pain on forward flexion to ninety degrees, lateral rotation to twenty degrees, and lateral tilt or hyper extension to twenty degrees. (Id.) Straight leg raising was negative to ninety degrees, deep tendon reflexes were preserved bilaterally and symmetrical, Plaintiff had no motor or sensory deficits, no clonus, and a Babinski sign was downgoing. (Id.) Palpation of Plaintiff’s back demonstrated paraspinal tenderness at the right lumbosacral junction, and no tenderness of the sacroiliac joints or the sciatic notch. (Id.) Dr. Rigal again noted mechanical signs in the right hip with pain on internal and external rotation, “exquisite pain on deep palpation of the right subtrochanteric bursa with radiation down the fascia lata, ” and Patrick’s sign and Yeoman sign were both negative bilaterally. (Id.) His diagnosis was pain in the right hip, right subtrochanteric bursitis, and right sacroiliitis. (R. 572.) His plan was to perform facet joing injections, and demonstrate home exercises which Plaintiff should do four times per day. (Id.) Dr. Regal administered the facet joint injections. (R. 574.)

Plaintiff’s June 22, 2009, visit to Dr. Rigal showed the same findings on physical examination and same diagnosis. (R. 578.) Plaintiff had another facet joint injection. (R. 577.)

Plaintiff’s July 27, 2009, visit showed the same physical findings and indicates the same diagnosis. (R. 580.) Dr. Rigal noted that he would schedule Plaintiff for “facet joint ablations and right L3-4, L4-5 and L5-S1" on October 9, 2009. (Id.)

On August 31, 2009, Dr. Rigal made the same physical findings and diagnosis. (R. 582.) He noted the exam was consistent with right sacroiliitis. (Id.) He further noted that Plaintiff’s pain in the right sacroiliac joint could be secondary to facet disease at L4-5, and L5-S1, and it was possible she had both facet arthrosis and a right sacroiliitis (secondary to ambulation abnormality). (Id.) He performed a right sacroiliac joint injection and planned to see Plaintiff in three weeks. (Id.)

On September 22, 2009, Plaintiff wanted to discuss any other further therapy for her back pain and the recurrence of right hip pain. (R. 585.) Dr. Rigal noted that the facet joint injections totally eradicated the right-sided axial lower back pain for four days, “demonstrating that indeed the facet complexes and right L3-4, L4-5 and L5-S1 are important in pain generators.” (Id.) Dr. Rigal made the same physical examination findings as in previous months. (R. 586.) His diagnosis remained right sacroiliitis, pain in the right hip, and right subtrochanteric bursitis. (Id.) He planned to schedule Plaintiff for radiofrequency neurolysis of the facet complexes and L3-4, L4-5 and L5-S1. (Id.) He planned to treat Plaintiff’s subtrochanteric bursitis conservatively with home-based exercises. (Id.)

Based on a diagnosis of lumbar spondylosis, Dr. Rigal performed the radiofrequency neurolysis on October 9, 2009. (R. 587.)

On November 3, 2009, Plaintiff presented to Dr. Rigal with no axial low back pain but complained of pain in the right buttocks in the distribution of the right sacroiliac joint. (R. 589.) She reported that the pain got worse with prolonged sitting. (Id.) Physical examination was similar to the preceding months except there was tenderness of the sacroiliac joints or sciatic notch. (Id.) Diagnosis was right sacroiliitis only. (Id.) Dr. Rigal offered Plaintiff another injection in the right sacroiliac joint but she declined. (Id.) Dr. Rigal asked her to do home-based exercise. (Id.)

On November 27, 2009, Dr. Tuffaha re-evaluated Plaintiff. (R. 594.) Plaintiff reported that she continued to have severe low back, right hip and anterior thigh pain to the knee with associated weakness. (Id.) She said she had fallen three times since her last visit in April, and she had no relief from the injections and nerve ablation performed by Dr. Rigal. (Id.) Dr. Tuffaha noted that Plaintiff’s mechanical and neurological examinations remained unchanged, she had moderately painful external rotation of the right hip and minimally painful on the left. (Id.) He also noted that the May 5, 2009, dynamic lumbar spine x-rays showed no offsets or segmental instability, and superior compression deformity of L1. (Id.) Dr. Tuffaha’s Impression was intractable unrelenting low back and right anterior thigh pain, suggestive of L1 radiculopathy. (Id.) He planned to get a follow-up lumbar MRI and a bone scan with attention to the lumbar spine and right hip. (Id.)

On December 8, 2009, Plaintiff had MRI of the lumbar spine. (R. 595.) It showed no disc herniation, some disc bulging predominantly at the L5-S1 level, no spinal canal stenosis, and some spondylotic changes in the spine. (Id.) She also had a bone scan which showed no scintigraphic evidence of trauma, tumor, or infection in the lumbar spine. (Id.)

At her visits to Laurel Health Center in April, May, June and December of 2009, no mention was made of back and hip problems. (R. 424, 425, 426, 429.)

On January 19, 2010, Dr. Tuffaha noted that a December 8, 2009, study showed “severe degenerative changes. The chronic mild compression L4 deformity is again noted. There is chronic disc bulge at L5-S1.” (R. 599.) On physical examination, he found plaintiff to have moderately limited range of motion, especially on extension, negative straight leg raise bilaterally, moderately painful external rotation of the right hip and minimally painful on the left, the femoral nerve stretch test increased her low back pain on the right, motor exam revealed some slight weakness of the right ilipsoas, sensory exam was intact, deep tendon reflexes 2 and symmetrical, and Plaintiff’s gait was steady. (R. 600.) Dr. Tuffaha’s Impression was intractable, unrelenting low back pain and right anterior thigh pain suggestive of L3 radiculopathy. (R. 601.) His plan was to admit Plaintiff for lumbar myelography for further evaluation of her lumbar spine. (Id.)

On January 19, 2010, Plaintiff had a lumbar myelogram. (R. 602.) No abnormalities were demonstrated. (Id.) CT of the lumbar spine on the same date found no evidence of lumbar disc disease, central canal stenosis, or neural foraminal stenosis. (R. 603.)

An EMG was performed on February 4, 2010, to rule out radiculopathy versus neuropathy. (R. 604.) The findings were normal and showed no electrodiagnostic evidence of peripheral neuropathy or right lumbar radiculopathy. (Id.)

Plaintiff saw Mr. Vogler on March 8, 2010, with the chief complaint of back pain. (R. 423.) He noted that Plaintiff “wants referral to neurosurgeon for arthritis, saw Dr. Tafaha [sic] who couldn’t see anything wrong.” (Id.) Examination of her back showed spinal tenderness lumbar sacral, decreased range of motion, straight leg raising pain on the right, and cross-over left leg pain. (R. 423-24.) The Assessment was backache unspecified and lumbar disc degeneration. (Id.) The Plan was “patient education.” (Id.)

On March 30, 2010, Plaintiff saw neurosurgeon Carson Thompson, M.D., complaining of intermittent right hip and groin pain with occasional buckling of the right leg especially when standing, walking or sitting for long periods of time. (R. 302.) Musculoskeletal examination showed that Plaintiff exhibited tenderness, had a negative strait leg raise bilaterally, pain in the right hip with internal and external rotation of right leg but not left, Plaintiff claimed pain with percussion over right hip, she was able to flex to sixty degrees and hyperextend and laterally flex without back pain but complained of right groin pain. (R. 304.) Dr. Thompson diagnosed degeneration of lumbar or lumbosacral intervertebral disc. (Id.) He also reviewed the MRI with Plaintiff, noting no significant findings in the spine other than DJD L12 possibly due to an old compression fracture. (Id.) He concluded that Plaintiff’s symptoms and his findings were consistent with right hip disease or possible bursitis, and he suggested NSAIDS and evaluation by an orthopedist as he had nothing to surgically offer Plaintiff for her problem. (Id.)

On July 7, 2010, Plaintiff reported to Mr. Vogler that she was no longer attending PT due to more severe pain. (R. 417.) On examination, her back was normal except for spinal tenderneess in the lower lumbar region with point tenderness over the right SI joint. (R. 418.) The right SI joint was injected. (Id.)

On July 27, 2010, Mr. Vogler noted Plaintff’s hip pain had improved after injection at her last visit but it was worse again due to falling on July 23, 2010. (R. 416.) Musculoskeletal examination showed that Plaintiff had pain and point tenderness over the right greater trochanter. (Id.)

At her visits with Mr. Vogler on August 23, August 25 and August 31, 2010, back-related problems were not mentioned subjectively or objectively. (R. 413, 415.) No back problems were mentioned subjectively or objectively when Plaintiff saw Mr. Vogler on September 21, 2010, and October 26, 2010. (R. 872, 875-76.) (Plaintiff’s September 21, 2010, visit was the first ...


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