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Peterson v. Colvin

United States District Court, M.D. Pennsylvania

July 10, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


Martin C. Carlson United States Magistrate Judge

This is an action brought under 42 U.S.C. 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying Plaintiff Harold M. Peterson’s application for disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge on consent of the parties, pursuant to the provisions of 28 U.S.C. §636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Docs. 9, 10).

In this case, Plaintiff suffers from the impairment of chronic myeloid leukemia (“CML”). Although Plaintiff’s CML is now in remission, his oncologist has advised him to continue taking an oral chemotherapy drug called Tasigna as part of this ongoing leukemia treatment. Plaintiff asserts that taking this medication causes certain severe, and disabling, side effects, including crippling fatigue and muscle aches. Although the ALJ recognized that Plaintiff did indeed suffer from some degree of pain and fatigue, she ultimately concluded that there was no objective evidence or medical signs supporting Plaintiff’s and his treating sources’ opinions that Plaintiff could not engage in light work. This disagreement forms the basis for Plaintiff’s argument for reversal, or remand.

As we discuss below, in reaching this decision, the ALJ was required to weigh the competing opinions of two treating sources, who opined that Peterson faced severe limitations, and two non-treating sources, who concluded that Peterson still had the residual capacity to work. The ALJ resolved this conflict in favor of the non-treating sources, stating that the treating source opinions deserved little weight because “no signs or laboratory findings [supported the opinions] and these limitations are not supported by his own clinical findings or other medical evidence of record.” (Tr. 34.) However, in reaching this conclusion the ALJ does not mention, discuss, address or acknowledge some significant supporting clinical evidence that is consistent with these treating source opinions, a July 2013, physical therapist assessment, (Tr. 424, 431-37), which detailed a “major functional loss” suffered by Peterson. Even though this physical therapist assessment was expressly endorsed by one of the treating courses, Dr. Evers, the ALJ does not allude to this evidence at all in making the decision to afford these treating sources little weight.

This silence regarding material evidence in this case defeats any reasoned assessment of this aspect of the ALJ’s opinion, since “[i]n the absence of s[ome analysis by the ALJ], the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.” Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 981). Mindful of the fact that “[w]hen a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.’ Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993), ” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999), we find that the failure to address this evidence in any fashion calls for a remand of this case for further proceedings. As such, we VACATE the decision of the Commissioner denying Plaintiff’s application for benefits, and REMAND this matter for a new administrative hearing.

I. Background and Procedural History

On February 21, 2013, Plaintiff protectively filed a Title II application for disability insurance benefits. Plaintiff alleges that he became unable to work on April 28, 2012, due to Bulging Disc Injury, Lumbar Spine Impairment, Acute Leukemia, and Severe Back Pain.[1] (Admin Tr. 118). The disabling symptoms alleged by Plaintiff appear to be the result of the combination of his musculo-skeletal back impairment and due to the symptoms and treatment side effects of CML.

Plaintiff was diagnosed with probable CML in November 2011 after he reported symptoms of increased fatigue, abdominal discomfort, and exhibited a combination of splenomegaly and a critical elevation in his blood cell count. (Admin Tr. 310). A CT scan of Plaintiff’s abdomen taken on November 10, 2011, revealed “massive” splenomegaly and hepatomegaly. (Admin Tr. 163). This CT scan also revealed the presence of degenerative disc disease at L5-S1 with mild osteoarthritic change of the spine.[2] Id. Plaintiff’s diagnosis of CML was confirmed after a bone marrow aspiration and biopsy. (Admin Tr. 245-63). Plaintiff began oral chemotherapy to treat is condition with the drug Tasigna.

After his diagnosis, Plaintiff continued to follow up with his oncologist, Dr. Brooks. During these visits Plaintiff reported poor sleeping habits and chronic fatigue. However, together with his complaints of fatigue, in March 2012 Plaintiff reported that he was “feeling good” and “working hard.” (Admin Tr. 178). In January 2013, Plaintiff complained of abdominal swelling, right testicle enlargement, and anxiety/panic attacks. (Admin Tr. 169).

In May 2012, Plaintiff had a second bone marrow aspiration and biopsy. This biopsy revealed that Plaintiff was in cytogenic remission, (Admin Tr. 281), however the BCR-ABL gene was still present in Plaintiff’s blood. (Admin Tr. 274-81). Plaintiff’s oncologist continued to monitor the BCR-ABL levels in Plaintiff’s blood on a quarterly basis, and Plaintiff continued to take Tasigna. In September 2012, testing revealed residual amounts of BCR-ABL gene in Plaintiff’s blood. In January 2013, testing revealed residual amounts of the BCR-ABL gene in Plaintiff’s blood.

While battling cancer, Plaintiff’s condition was also monitored by Dr. Evers, a specialist in internal medicine. Dr. Evers noted that Plaintiff had been diagnosed with CML, Hyperlipidemia, and Hypertension, and as a result of these impairments had developed a lesion in his adrenal gland, a lesion in his kidney, suffered from splenomegaly (resolving with treatment), and was briefly hospitalized for chest pain in April 2012.

During an administrative hearing, Plaintiff testified that he last worked for an apartment complex doing indoor and outdoor maintenance. He testified that, in that position, he spent all day standing and walking, and was required to lift objects weighing up to one hundred pounds. (Admin Tr. 45). Plaintiff testified that he is able to read, write, add, and subtract, and has a valid driver’s license. (Admin Tr. 47). Plaintiff also testified that his doctors has recommended that he undergo surgery on his lower back, however there was no evidence of a surgical recommendation in the record before the ALJ. (Admin Tr. 48). Despite his impairments, Plaintiff is independent in his personal care, occasionally helps out with simple household chores, cooks simple meals not requiring a stove, uses a computer for email and to look for part-time work on Craig’s List, and occasionally reads the Bible. (Admin Tr. 49-51).

Plaintiff testified that he lives in a split level home with his wife, but stays on the main level and only uses the stairs twice per week. (Admin Tr. 51). He also testified that he cannot reach overhead with his left arm, can stand for up to thirty minutes before he needs to sit, can sit for up to one hour before he needs to stand, and cannot walk more than a short distances without experiencing pain and shortness of breath. (Admin Tr. 51-52). Plaintiff reported that he takes up to three two-hour naps per day due to fatigue. (Admin Tr. 56).

Plaintiff reported that he is prescribed the following medications: Tasigna; Lipitor (cholesterol); Oxycodone (pain); Cozaar (blood pressure); and Xanax (anxiety). Plaintiff testified that the side-effects of his Tasigna make him feel worse than he did before treatment; he experiences nausea after each dose of Tasigna, and feels general muscle aches he believes are caused by Tasigna. (Admin Tr. 55-56). He also reported that his pain medications “take the edge off, ” but that his pain is worse when he lifts too much or shifts positions. Standing, walking too long, and sitting too long exacerbate his pain. (Admin Tr. 54). He reported that his medications cause the side-effects of dizziness, impaired concentration, impaired memory, and generally leave him feeling “unsteady, unclear, [and] foggy.” (Admin Tr. 54). His blood pressure and anxiety have improved with treatment. (Admin Tr. 54).

The record in this case contains several medical opinions from treating and nonexamining sources, including: treating internist, Dr. Evers; treating hematologist, Dr. Paracha; nonexamining source Dr. Menio; and nonexamining source, Dr. Bohn.

On March 8, 2013, nonexamining state agency medical consultant Mark Bohn, M.D., provided an assessment of Plaintiff’s physical RFC based on the evidence that was in Plaintiff’s file on that date. (Admin Tr. 66-68). He noted that, at the time of his assessment, Plaintiff had not yet supplied any evidence regarding his activities of daily living or work history. Based on the objective medical evidence in Plaintiff’s file, Dr. Bohn opined that Plaintiff could: occasionally lift or carry up to twenty pounds; frequently lift or carry up to ten pounds; stand or walk up to six hours per eight-hour workday; sit approximately six hours per eight-hour workday; frequently balance, stoop, kneel, crouch and crawl; occasionally climb raps or stairs; and never climb ladders, ropes, or scaffolds. Dr. Bohn also found that Plaintiff should avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, hazards, and fumes, odors, dusts, gases, and poor ventilation.

On May 16, 2013, Dr. John Menio completed a medical source statement of Plaintiff’s ability to do physical work-related activities. (Admin Tr. 323-31). Dr. Menio opined that Plaintiff could: continuously lift or carry up to ten pounds, frequently lift or carry up to twenty pounds, and occasionally lift or carry up to one hundred pounds; sit up to three hours at one time, and for a total of up to six hours per eight-hour workday; stand up to three hours at one time, and for a total of up to six hours per eight-hour workday; walk up to three hours at one time, and for a total of up to six hours per eight-hour workday; continuously reach, handle, finger, feel, and push/pull with both hands; continuously operate foot controls with both feet; and, continuously climb, balance, stoop, kneel, crouch, and crawl. Dr. Menio explained that his assessment was supported by the following evidence: that Plaintiff’s CML is in remission; Plaintiff’s left spermatocele resolved with surgery; Plaintiff’s right adrenal lesion was likely benign (no change in size); that Plaintiff’s heptospenomegaly was not causing a problem; and, that there was no supporting evidence of Plaintiff’s back pain.

On June 19, 2013, Plaintiff’s treating internist, Dr. Martin Evers, completed a check-the-box Cancer Impairment Questionnaire. (Admin Tr. 391-97). On the questionnaire, Dr. Evers reported that he began treating Plaintiff in November 2011, and most recently examined him in April 2013, Dr. Evers also reported that Plaintiff had been diagnosed with leukemia but did not discuss any other diagnoses. Dr. Evers noted that Plaintiff’s cancer had been treated with chemotherapy, but that it was unknown whether Plaintiff’s condition was inoperable or unresectable, did not convey whether Plaintiff’s condition had persisted despite antineoplastic therapy, and noted that Plaintiff’s condition had metastasized beyond his regional lymph nodes. Dr. Evers identified that Plaintiff’s complete blood count (“CBC”) supported the diagnosis of leukemia. Dr. Evers catalogued Plaintiff’s primary symptoms as “leukocytosis/probable CML.”[3] Dr. Evers assessed that Plaintiff’s condition caused moderately severe daily abdominal pain and discomfort, and severe fatigue.[4] Dr. Evers also noted that Plaintiff’s medication, Tasigna, caused the side-effects of feeling faint, pain, and nausea. Ultimately, Dr. Evers assessed that Plaintiff could sit up to six hours per eight-hour workday, but was unable to stand or walk up more than one hour per eight-hour workday. Dr. Evers concluded his assessment with the additional comment that “I do believe my patient Harold cannot handle a full time workload. His condition is expected to last more than 12 months.” Id.

On June 24, 2013, Plaintiff’s hematologist, Dr. Fauzia Paracha completed a check the box Cancer Impairment Questionnaire. (Admin Tr. 415-422). In the questionnaire, Dr. Paracha reported that Plaintiff’s primary symptoms include nausea, fatigue, muscle aches, shortness of breath, and chest pain. Dr. Paracha also indicated that Plaintiff’s CML is an inoperable cancer that has persisted despite antineoplastic therapy. Dr. Paracha assessed that Plaintiff experienced “moderately severe” pain and “moderately severe” fatigue.[5] Dr. Paracha also explained that Plaintiff experienced constant muscular pain in his back, legs, and arms, and that Plaintiff’s fatigue and pain are severe enough to frequently interfere with his attention and concentration. Dr. Paracha opined that, as a result of Plaintiff’s impairment, he could: sit no more than four hours per eight-hour day, and could not sit continuously for more than one hour at a time; stand or walk no more than five hours per eight-hour day, but should not stand or walk continuously; occasionally lift or carry up to twenty pounds; and, never push, pull, kneel, bend, or stoop. Dr. Paracha also opined that Plaintiff would need unscheduled work breaks in excess of customary allowances and would be absent from work more than three times per month due to his impairments.

These opinions, in turn, were supported by other medical evidence, albeit evidence which was not addressed by the ALJ in this case. Specifically, on July 29, 2013, a physical therapist completed a spinal impairment questionnaire after examining Plaintiff. (Admin Tr. 424, 431-37). The physical therapist assessed that Plaintiff suffered from muscle weakness, spine dysfunction, loss of flexibility, balance deficits, and poor posture. The physical therapist observed that Plaintiff had a limited range of motion in his cervical and lumbar spine, was positive for tenderness and muscle spasm in his cervical and lumbar spine, exhibited muscle atrophy in his slow twitch (“ST”) muscles, paraspinal muscles, abductors, and hips, and exhibited muscles weakness in his neck, shoulders, ST muscles, and all core muscles. The physical therapist also noted that, as of the date of his evaluation, Plaintiff could: sit for twenty minutes at one time; stand for ten minutes at one time; walk three to five minutes at one time; never bend, stoop, kneel; climb ladders; crawl short distances; climb steps using a railing; reach forward to shoulder height, and only reach above his shoulder with his right arm; drive short distances; occasionally carry up to ten pounds. The physical therapist also opined that Plaintiff demonstrated “major functional loss” and has been disabled since April 28, 2012. Id. Notably, Dr. Evers endorsed the questionnaire completed by the physical therapist, allowing an inference that the doctor agreed with these findings and was incorporating them into his own medical assessment of Mr. Peterson.

Plaintiff’s claim was initially denied on April 10, 2013. Subsequent to this initial denial, Plaintiff requested an administrative hearing. On July 9, 2013, Plaintiff, assisted by counsel, appeared and testified during a hearing before an Administrative Law Judge (“ALJ”) in Wilkes-Barre, Pennsylvania. An ...

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