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Lesniewski v. Berryhill

United States District Court, M.D. Pennsylvania

March 1, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          RICHARD P. CONABOY United States District Judge

         Pending before the Court is Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. (Doc. 1.) Plaintiff originally identified July 16, 2007, as the disability onset date but later amended the onset date to September 23, 2010. (R. 14.) The Administrative Law Judge (“ALJ”) who evaluated the claim, William A. Kurlander, concluded in his January 14, 2015, Decision that Plaintiff was insured through December 31, 2012, and her multiple severe impairments did not alone or in combination meet or equal the listings. (R. 16-19.) He also found that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with certain nonexertional limitations and that, although she was unable to do past relevant work, she was capable of performing jobs that existed in significant numbers in the national economy. (R. 19-26.) ALJ Kurlander therefore found Plaintiff was not disabled from September 23, 2010, through December 31, 2012. (R. 26.)

         Plaintiff filed her Complaint in this Court on June 6, 2016. (Doc. 1.) In her supporting brief, Plaintiff asserts she should be awarded benefits or the matter should be remanded based on the following claimed errors by the ALJ: 1) he failed to consult a medical expert; 2) he failed to give appropriate weight to the opinions of Dr. Justin Eldridge; 3) he failed to give appropriate weight to GAF scores; 4) he failed to give appropriate weight to the opinion of Ms. Linda Ashley, FNP; 5) he failed to include all limitations established by the treating medical source opinions when developing his RFC; and 6) he failed to give appropriate weight to Plaintiff's complaints of disabling pain. (Doc. 13 at 3-4.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly denied.

         I. Background

         A. Procedural Background

         Plaintiff protectively applied for DIB on June 20, 2012, and the claim was initially denied on January 30, 2013, and upon reconsideration on May 10, 2013. (R. 14.) Plaintiff filed a written request for a hearing on July 2, 2013. (Id.) ALJ Kurlander held a video hearing on November 19, 2014, with Plaintiff in New Castle, Delaware, and the ALJ in Dover, Delaware. (R. 14.) Tony Melanson, a Vocational Expert (“VE”), and Jennifer Hinchey, attorney for Plaintiff, also appeared. (R. 37.)

         Following ALJ Kurlander's January 14, 2015, unfavorable Decision, Plaintiff filed a request for review dated April 7, 2015. (R. 6-8.) With the Appeals Council's denial of the request on April 5, 2016, the ALJ's Decision became that of the Acting Commissioner. (R. 1-5.)

         Plaintiff filed this action on June 8, 2016. (Doc. 1.) On August 11, 2016, Defendant filed her Answer and the administrative transcript. (Docs. 9, 10.) After Plaintiff filed her supporting brief (Doc. 13) on November 28, 2016, Defendant timely filed her opposing brief (Doc. 14) on January 3, 2017. 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 January 8, 1965, and was forty-seven years old on the date last insured. (R. 25.) Plaintiff reported that she graduated from high school, and she has a practical nursing degree and a year of college business classes. (R. 647.) She has past relevant work as a program operations assistant. (R. 25.)

         The medical records are extensive, running over 1, 700 pages, though not all are relevant to the time period at issue. (R. 291-2011.) Given the voluminous record and the parties' targeted arguments, for the sake of context the Court will highlight some relevant evidence here and further reference the record as needed in the discussion of arguments presented. As noted above, the relevant time period begins on June 20, 2010, and ends on December 31, 2012. (See R. 26.)

         Plaintiff reported a history of three remote motor vehicle accidents, the last in 1992. (R. 20 (citations omitted).) David Lannik, M.D., referred Plaintiff for a neurology consultation, and Plaintiff was evaluated by Eric Goldberg, M.D., of Tidewater Neurologists, Inc., on September 23, 2010. (R. 304.) Plaintiff complained of bilateral lower extremity intermittent numbness and tingling as well as numbness and tingling in the cervical spine region, but she denied low back pain. (Id.) Dr. Goldberg's neurological examination included the following findings: Plaintiff was awake, alert, oriented to person, place and time; “mini-mental status exam” was within normal limits; motor exam was 5/5 bilaterally in the upper and lower extremities; normal tone and bulk; normal muscle mass; reflexes 2 bilaterally upper and lower extremities; normal sensory exam; normal coordination; and normal gait. (Id.) Dr. Goldberg noted that Plaintiff had a cervical radiculopathy and possible lumbosacral radiculopathy. (Id.) He planned to review a cervical spine MRI and conduct an EMG/nerve conduction study of the right lower extremity. (Id.) Dr. Goldberg conducted an EMG study on October 4, 2010, and recorded the following conclusions: “no electrophysiologic evidence of a peripheral or entrapment neuropathy or cervical lumbosacral radiculopathy; and normal EMG and nerve conduction study of the right upper and lower extremities (noting that the EMG and nerve conduction study may miss a mild cervical lumbosacral radiculopathy).” (R. 307.) Having reviewed a previous study which showed multilevel spinal stenosis and degenerative disease at ¶ 3-C4, C4-C5, C5-C6 levels, Dr. Goldberg planned to treat Plaintiff conservatively with physical therapy and do an MRI of the cervical spine. (Id.)

         On March 13, 2011, Plaintiff presented to CNY Family Care. (R. 464.) Office notes indicate that Plaintiff was taking Ativan for anxiety, she reported she was still having panic attacks and depression but not as often, and she complained of bilateral knee pain which was worse at the end of the day and had increased in the preceding three weeks. (Id.) Physical examination showed that Plaintiff had full range of motion of the cervical spine with pain, upper extremity strength 5/5 bilaterally, sensation intact to light touch, deep tendon reflexes 2 bilaterally, and knees extended to 0 degrees with crepitus and flexed to 90 degrees. (R. 465.) X-rays showed some arthritis in both knees, Plaintiff was advised to take Mobic as directed, and the provider discussed the option of cortisone injections in the future if the pain persisted. (Id.) Regarding cervicalgia, Plaintiff was advised that she would be contacted to schedule an MRI. (R. 466.)

         A March 25, 2011, MRI showed that Plaintiff had disc herniation at ¶ 5-C6 which slightly compressed the spinal cord, moderate degenerative foraminal stenosis on the left C5-C6 for which surgical referral was recommended, mild degenerative foraminal stenosis at ¶ 4-C5 on the right and mild to moderate on the left, and a horizontal cleft in the C7 vertebral body without surrounding edema which suggested an anatomic variation. (R. 458.)

         In April 2011, Plaintiff was seen by Christopher Watts, PA, of Upstate Orthopedics. (R. 396-99.) The Attending Physician is identified as William Lavelle, M.D. (R. 399.) Examination showed that Plaintiff's neck was supple with significant tenderness in the mid-low cervical spine around the C6-C7 area in the midline and paravertebral tenderness upon palpation; she had no significant tenderness along the thoracic or lumbar spinous process upon palpation; she appeared balanced and had 5/5 motor strength throughout; and deep tendon reflexes were 2 throughout. (R. 397.) Mr. Watts assessed cervicalgia and spinal stenosis. (R. 398.) He noted that he found no indication of radicular symptoms going down the arms although her neck pain could be a degree of radicular pain into the posterior shoulders. (Id.) Mr. Watts explained that he does not generally manage axial neck or back pain with narcotic medication and he would continue conservative management, including over-the-counter Tylenol and Lyrica. (Id.) He also opined that Plaintiff would benefit from physical therapy and she agreed to this. (Id.) In a letter to Plaintiff's primary care physician, Mr. Watts noted that, despite significant neck pain, Plaintiff did not demonstrate radicular or myelopathic symptoms, occasional tingling in the fingertips could be intermittent irritation of the nerves but the numbness was self-limiting and not chronic, her MRI demonstrated some central stenosis with slight effacement of the spinal cord but no spinal cord signal indicating myelopathy, “[m]ost importantly” she would benefit from physical therapy, and he would not recommend surgery. (R. 394.) He added that if conservative treatment failed, he would refer Plaintiff to physical medicine and rehab at his office and if her condition worsened, he would have her see Dr. Lavelle. (Id.)

         At her June 2011 follow up appointment with Mr. Watts, office records indicate that Plaintiff was doing very well overall. (R. 398.)

She states that the therapy helped her significantly. She can tell a big difference, that she can now reach above her head and put dishes away on the shelf, which she states she could not do before. . . . She still gets some neck pain and some pain up into the occipital region. She denies any weakness in the extremities. No imbalance in her gait and no dexterity issues.


         As noted by ALJ Kurlander, during Plaintiff's care at CNY Family Care through October 2011, the records show “clinical findings of decreased range of motion and pain on palpation in the claimant's neck and tightness and spasm in the claimant's shoulders that were present on some examinations but not all the time. Neurological examinations were within normal limits (Exhibit 8F).” (R. 20.) Examples of varying examination findings are found in Plaintiff's August and September 2011 visits: in August, physical examination showed that Plaintiff's neck was supple, palpation revealed no tenderness, and she had full range of motion bilaterally in her upper and lower extremities (R. 431); in September, the provider noted that Plaintiff had “poor posture, slouching with neck forward, ” limited range of motion in the head and neck, and flex and extension were tight (R. 428).

         After Plaintiff moved from upstate New York, Justin Eldridge, M.D., became Plaintiff's primary care provider in December 2011. (R. 590.) In the Social History section of the initial visit office notes, “Current Work” status indicated that Plaintiff was unemployed and looking for work as a receptionist. (R. 591.) Review of Systems indicated that Plaintiff reported fatigue, back pain, joint pain, muscle pain, headaches, anxiety, depression, and panic attacks. (R. 591.) Examination showed that Plaintiff's neck was “tender (lower cervical vertebrae, trapezius muscles, fair ROM of neck) and supple, ” and the exam was otherwise normal, including 5/5 muscle strength in upper and lower extremities. (R. 591-92.) Dr. Eldridge planned to adjust Plaintiff's medications to address her herniated cervical disc and refer her to a psychiatrist to address her mental health issues. (R. 592.)

         On January 9, 2012, Dr. Eldridge noted that Plaintiff presented with back pain, headaches and “pain everywhere.” (R. 584.) In the Social History section of office notes, “Current Work” status indicates that Plaintiff was unemployed and looking for work. (R. 585.) She had similar complaints in February including back pain and joint pain, and morning stiffness. (R. 578.) Plaintiff had seen a psychiatrist who had made some medication changes and she was scheduled to see a pain specialist, Dr. Chiang, with whom she planned to discuss epidural injections. (Id.) Physical examination was normal except for the neck which was “tender (lower cervical vertebrae, trapezius muscles, fair ROM of neck, moves neck slowly, improved ROM laterally) and supple.” (R. 578-79.) Dr. Eldrige planned for Plaintiff to see the pain specialist for her chronic pain syndrome and to check for inflammatory causes of joint pain and obtain x-rays. (R. 580.)

         In March, Plaintiff's complaints included lower back pain radiating into her buttock and down her right leg. (R. 571.) She said she had experienced this type of pain before but she had it for one week and previously it had lasted only for a day or two. (Id.) Plaintiff also reported diffuse joint achiness and pain. (Id.) In the Social History section of office notes, “Current Work” status indicates that Plaintiff was unemployed and looking for work. (R. 572.) Dr. Eldridge diagnosed Plaintiff's radiating back pain to be sciatica for which he prescribed prednisone and advised stretching and physical therapy, but Plaintiff did not want therapy due to cost. (R. 573.) Dr. Eldridge noted that Plaintiff had chronic cervical pain which was “showing improvement”; given the extent of the pain, he recommended injections but Plaintiff was “very wary.” Regarding joint pain, Dr. Eldridge noted there were “no acute findings on examination” and he would continue to follow the problem. (R. 576.)

         In May and June 2012, Dr. Eldridge noted that Plaintiff's multiple-modality treatment included short-acting opioids and Plaintiff reported improved daily functioning though she still had significant pain. (R. 560, 624.) Physical examination showed some pain with range of motion testing of the neck and mild tenderness to palpation along the left cervical area, normal neurological findings, pain in the lumbosacral spine assessed to be mild, and negative straight leg raising test. (R. 561-62.) Assessment included that cervical pain was stable with current medications, chronic pain syndrome improved with narcotic medication, and, as of June 5, 2012, it was noted that Plaintiff was doing well and reporting improved functioning with medications. (R. 624.) In the Social History section of office notes on May 11th and June 5th, “Current Work” status indicates that Plaintiff was unemployed and looking for work. (R. 556, 561.)

         On June 29, 2012, Plaintiff returned to Dr. Eldridge complaining of increasing pain which Plaintiff related to stressors in her life. (R. 633-35.) Physical examination was normal except for some pain with with neck rotation, mild tenderness to palpation along the left cervical area on trapezius muscles, and generalized abdominal tenderness. (R. 635.) Regarding chronic pain syndrome, Dr. Eldridge talked to Plaintiff about weaning off narcotics but she was very hesitant, apparently feeling that the increased pain was related to her mood and she “had been doing well until recent job stressors.” (R. 636.)

         In August 2012, Dr. Eldridge noted in the “Chronic Pain Management Follow-up Evaluation” portion of the office notes that Plaintiff was “somewhat improved.” Plaintiff continued to have good neck range of motion of her neck with some pain and mild tenderness to palpation along the left cervical area on trapezius muscles. (R. 631.) She had tenderness to palpation along all major muscles. (R. 631.) He diagnosed chronic pain syndrome and noted Plaintiff was to do acupuncture and that a chiropractic visit and biofeedback should be considered. (R. 632.) Regarding fibromyalgia, Dr. Eldridge planned to consider further testing. (Id.)

         At Plaintiff's October 2012 office visit with Dr. Eldridge, she was tearful and reported worsening back pain. (R. 672.) Plaintiff said medication side effects included fatigue, pain in the neck and low back was exacerbated by bending, twisting and standing, and associated symptoms included depression for which she was being treated by a psychiatrist, but did not include numbness, tingling, paresthesias or weakness. (R. 672.) Plaintiff reported functional limitations in her general activity, work, housework, social relationships, and enjoyment of life. (R. 672.)

         Examination showed that Plaintiff again had good range of motion in her neck but some pain with rotation and mild tenderness to palpation along the left cervical area and trapezius muscles and she again had tenderness to palpation along all major muscles. (R. 674.) Dr. Eldridge planned to get another MRI to assess the new and worsening radiating back pain; he found the diffuse muscle tenderness most consistent with fibromyalgia and he planned to reintroduce Lyrica; chronic but stable cervical pain would be treated as before; and chronic pain syndrome and increasing pain would be assessed with MRI. (R. 674.)

         October 17, 2012, MRI of the spine showed endplate edematous signal at ¶ 5-S1, right L5 foraminal encroachment, and lateral recess stenosis affecting L5 and S1 roots. (R. 666.) Dr. Eldridge noted that Plaintiff had been referred to a surgeon, she may benefit from injections for L5-S1 edema, and she was scheduled for follow up with rheumatology. (Id.)

         Plaintiff first visited rheumatologist Maged Hosny, M.D., on October 31, 2012. (R. 642.) Plaintiff reported that she had been diagnosed with fibromyalgia six months earlier and she had two years duration of widespread arthralgia and myalgia after several car accidents. (R. 642.) She also reported chronic neck and low back pain. (Id.) Plaintiff noted that she had been referred to pain management but no follow-up was scheduled. (Id.) Neurological and psychiatric examinations were normal. (R. 643.) Musculoskeletal exam showed the following: normal gait and station; no visible swelling or effusion of upper and lower extremities; full range of motion of the upper and lower extremities without discomfort; tenderness detected in bilateral shoulders, elbows, wrists, knees and ankle joints; normal muscle tone of the upper and lower extremities; and eighteen tender points. (Id.) Examination of the spine showed tender cervical paraspinal muscles, tender thoracic spine, and tender bilateral SI joints. (Id.) Dr. Hosny diagnosed herniated cervical disc without myelopathy, herniated lumbar disc without myelopathy, and unspecified myalgia and myositis. (R. 644.) He added that Plaintiff had chronic widespread pain due to multiple factors and that she definitely had fibromyalgia “given the daily widespread pain, the multiple tender points all over the body”; there was evidence of multi-level bulging discs, herniated discs of the cervical and lumbar spine done in February 2012; and Plaintiff continued to be symptomatic despite the use of Lyrica. (Id.) Dr. Hosny planned to increase the Lyrica dosage and consider other medications in the future. (Id.)

         At her November 26, 2012, follow-up visit with Dr. Hosny, Plaintiff reported that she did not see an improvement with the increase in Lyrica and had side effects of weight gain and edema of both legs. (R. 1289.) Physical examination findings were similar to those assessed in October. (R. 643, 1290.) Dr. Hosny increased the Lyrica dosage and referred Plaintiff for aquatherapy. (R. 1290.)

         On January 7, 2013, Kimberlyn R. Watson, Ph.D., conducted a mental health evaluation on referral of the disability adjudicator. (R. 646-50.) Plaintiff reported a history of anxiety, depression, cervicalgia, osteoarthritis, herniated discs, fibromyalgia, and DVT. (R. 646.) When asked why she was applying for disability, Plaintiff responded:

I have a long history of depression and anxiety. It seems to be getting in the way of everyday activities. Along with my anxiety comes OCD. I can't work a schedule that is demanding. It is too frequent that I have to stop and regroup because my mind is preoccupied with my personal life. Nothing gets done. I'm just stuck.

(Id.) By way of background, Dr. Watson noted that Plaintiff reported “around the house she engages in regular housework such as cooking and cleaning, and states that her husband helps her out a lot. In her spare time she reads, walks, and visits with family as much as possible who are about 3-1/2 hours away.” (R. 647.) Plaintiff also reported that she had been hospitalized three times “due to breakdowns mixed with alcohol, ” and the last time was in 2011, and she had been sober for two years. (R. 648.) In her Summary, Dr. Watson stated that Plaintiff was cooperative during the interview and

[s]he appeared to have at least average cognitive abilities. Her memory for 3 unrelated words was good. Her social judgment was intact. Her ability to engage in abstract thought was good. She did not appear to be distracted by internal stimuli. She reported her anxiety and depression to be moderate.

(R. 649.) Diagnostic Impressions included Generalized Anxiety Disorder, Major Depression, recurrent, and Alcoholism in Sustained Remittance, with an assessed “Current GAF” of 55. (R. 649-50.) Dr. Watson concluded that Plaintiff's prognosis was fair. (R. 650.) She commented that Plaintiff had not been in treatment “for the last 2 years. However, she may benefit from concurrent medication management and individual psychotherapy.” (Id.) Recommendations were that Plaintiff may benefit from 1) psychotropic medication management by a licensed mental health provider; 2) individual therapy with a therapist specializing in anxiety disorders; and 3) vocational assessment, training, and placement. (Id.)

         At Plaintiff's January 15, 2013, visit with Dr. Eldridge, she reported some improvement in pain. (R. 654.) She continued to have pain with rotation of her neck and mild tenderness to palpation of the cervical area and on trapezius muscles, and she had tenderness to palpation of all major muscles. (R. 655.)

         On January 19, 2013, Plaintiff was seen by Anjuli Desai, M.D., for a disability evaluation secondary to neck and back pain. (R. 736.) Physical examination showed Plaintiff's neck was supple and she had a non-antalgic gait, no cyanosis or edema of the extremities and palpable pulses, 5/5 strength in upper and lower extremities except for the left lower extremity which was 4, 2 deep tendon reflexes in upper and lower extremities, intact sensation, and no muscle atrophy or spasm, and no significant limitations in range of motion. (R. 737-38.) His functional assessment was that Plaintiff could stand, walk, and sit without limitations in an eight-hour day; she could ...

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