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Zuna v. Colvin

United States District Court, M.D. Pennsylvania

March 3, 2017

THERESA ZUNA, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          BRANN JUDGE.

          REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL DOC. 1, 9, 10, 12, 16, 17

          GERALD B. COHN UNITED STATES MAGISTRATE JUDGE.

         REPORT AND RECOMMENDATION

         I. Introduction

         The above-captioned action is one seeking review of a decision of the Commissioner of Social Security (“Defendant”) denying Plaintiff's application for supplemental security income (“SSI”) under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the “Act”), and Social Security Regulations, 20 C.F.R. §§404 et seq., 416 et seq. (the “Regulations”).[1]

         Plaintiff complained of pain in her neck, back, shoulder, and right knee, numbness in her extremities, and shortness of breath and other respiratory symptoms. Doc. 10. Examinations and imaging showed objective abnormalities in her neck, back, shoulder, right knee, and respiratory system. Doc. 10. Vocational evidence indicates that if these impairments restricted Plaintiff to a limited range of sedentary work with additional mental limitations, she could perform the basic job responsibilities of a semi-conductor bonder, a stuffer, and a nut sorter. Doc. 10. If claimant can perform even one of these jobs, she is not disabled. 42 U.S.C. § 423(d)(2)(A) (Claimant is not disabled if capable of performing job if it were offered to claimant, regardless of whether job openings at that position exist or claimant is likely to get hired). A nut sorter “observes nut meats on conveyor belt, and picks out broken, shriveled, or wormy nuts and foreign matter, such as leaves and rocks” and “[p]laces defective nuts and foreign matter into containers.” 521.687-086 NUT SORTER, DICOT 521.687-086. Non-treating medical opinions, uncontradicted by any other “medical opinion” in the record, supported the ALJ's finding that Plaintiff could perform a range of sedentary work. See 20 C.F.R. §404.1527(a) (defining “medical opinion”). In Chandler, the Third Circuit held that an ALJ properly relied on a non-treating opinion, where no other medical opinion existed in the record before the ALJ. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 360-63 (3d Cir. 2011); see also 20 C.F.R. §§404.1527(a); (d) (If statement is from individual who is not an acceptable medical source, or is on issue reserved from the Commissioner, it does not meet definition of “medical opinion”).

         The Court finds that the ALJ properly relied on the medical opinions and denied benefits. The substantial evidence standard requires the Court to uphold the ALJ's decision if any reasonable person would have relied on the relevant evidence to deny Plaintiff benefits. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). The ALJ decision only lacks substantial evidence if the Court would direct a verdict in Plaintiff's favor. Id. Plaintiff's lay interpretation of medical evidence and less-than-fully credible testimony are insufficient to demonstrate that no reasonable person would have relied on the medical opinions to find that she could perform work in the national economy, or that the Court would direct a verdict in her favor if the issue were before a jury. The Court recommends that Plaintiff's appeal be denied, the decision of the Commissioner be affirmed, and the case closed.

         II. Procedural Background

         On July 11, 2012, Plaintiff applied for SSI. (Tr. 26). On November 13, 2012, the Bureau of Disability Determination denied this application, (Tr. 107-25) and Plaintiff requested a hearing. (Tr. 126). On July 7, 2014, an ALJ held a hearing at which Plaintiff-who was represented by an attorney-and a vocational expert (“VE”) appeared and testified. (Tr. 41-89). On July 18, 2014, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 17-40). Plaintiff requested review with the Appeals Council, which the Appeals Council denied on February 9, 2015, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-7). See Sims v. Apfel, 530 U.S. 103, 107 (2000).

         On September 20, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On November 27, 2015, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 9, 10). On January 5, 2016, Plaintiff filed a brief in support of the appeal (“Pl. Brief”). (Doc. 12). On February 5, 2016, Defendant filed a brief in response (“Def. Brief”). (Doc. 16). February 12, 2016, Plaintiff filed a brief in reply (“Pl. Reply”). (Doc. 17). On January 15, 2016, the case was referred to the undersigned Magistrate Judge. The matter is now ripe for review.

         III. Standard of Review and Sequential Evaluation Process

         To receive benefits under the Act, a claimant must establish an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that:

He is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

         The ALJ uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520. The ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listing”); (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520. Before step four in this process, the ALJ must also determine Plaintiff's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e).

         The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that the claimant can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability under the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a). Specifically, the Act provides that:

An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require. An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.

42 U.S.C. § 423(d)(5)(A); 42 U.S.C.A. § 1382c(a)(3)(H)(i).

         The Court reviews the ALJ's decision under the deferential substantial evidence standard. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). Substantial evidence supports the ALJ decision unless no “reasonable mind might accept [the relevant evidence] as adequate to support a conclusion.” Id. (internal citations omitted). “Stated differently, this standard is met if there is sufficient evidence ‘to justify, if the trial were to a jury, a refusal to direct a verdict.'” Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Substantial evidence is “less than a preponderance” and “more than a mere scintilla.” Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         IV. Relevant Facts in the Record

         A. Age, Education, and Vocational History

         The Regulations classify Plaintiff, born in 1966, as a younger individual. (Tr. 17); 20 C.F.R. § 404.1563. Plaintiff has a limited education and no past relevant work. (Tr. 33). The administrative transcript is 672 pages long. Doc. 10.

         B. Musculoskeletal Impairments

         Plaintiff alleges onset in October of 2010. (Tr. 26). She briefly reported musculoskeletal symptoms in the summer of 2011, but by October 2011, she had no musculoskeletal symptoms. (Tr. 295, 297, 300).

         She established care in February of 2012 with PA-C Nse Apke, who noted she “ha[d] some forms for completion.” (Tr. 319). She reported back symptoms and numbness in her upper extremities, and reported neck pain on follow-up. (Tr. 317, 319). On June 28, 2012, she was hospitalized for a latex allergy and had no musculoskeletal complaints, normal gait, and walked without assistance. (Tr. 430). On July 11, 2012, she applied for SSI. (Tr. 26). On July 12, 2012, she presented to an orthopedic PA-C, D. Miller-Griffie, using a cane, although her gait appeared normal, “declined” physical therapy, did not stop smoking, and did not follow-through with a referral to a doctor. (Tr. 327-28). On July 31, 2012, she submitted a Function Report supporting her SSI application where she reported that she could not lift more than five pounds, her leg and arms tingle “24/7, ” could not walk without a cane or holding onto a wall, and was limited in squatting, bending, standing, reaching, walking, kneeling, and climbing stairs due to pain in her neck and back. (Tr. 240-47). Plaintiff's mother submitted a similar Function Report. (Tr. 258-65). Four days later, on August 3, 2012, she reported to PA-C Apke that she had “no neck pain…no musculoskeletal symptoms, no arthralgias, no soft tissue swelling” and PA-C Apke observed normal findings on musculoskeletal examination. (Tr. 304). PA-C Apke also noted Plaintiff reported “she is no longer receiving cash assistance and has no money on her” and that she was “trying to get housing and they request a letter from the doctor stating that she is disabled.” (Tr. 353). No letter from PA-C Apke that Plaintiff is disabled appears in the record. Doc. 10.

         In September of 2012, Plaintiff denied musculoskeletal symptoms and musculoskeletal examination was normal during an emergency room visit and follow-up with PA-C Apke. (Tr. 352, 498). The same month, Plaintiff followed-up with PA-C Millie-Griffie, reporting continued falls, neck pain and “walking with a cane” (Tr. 590). Plaintiff had decreased sensation, increased reflexes, and positive Hoffman's sign, but normal strength and range of motion with no spasm or tenderness. (Tr. 590). PA-C Miller-Griffie again referred Plaintiff to Dr. Fernandez and ordered an MRI. (Tr. 590-91).

         On October 23, 2012 and January 4, 2013, Plaintiff followed-up with PA-C Apke, “request[ed] a letter to take with her confirming that she has metal in her body, ” and denied having any symptoms except an earache, with “no systemic symptoms and not feeling tired or poorly.” (Tr. 350-353) (“no musculoskeletal symptoms, no arthralgias, no soft tissue swelling”). Examination was normal except tenderness. (Tr. 352). There is no mention of a cane. (Tr. 350, 352).

         In February and March of 2013, Plaintiff treated with Dr. Raymond Dahl, D.O., at OIP for knee pain. (Tr. 592-94). On March 20, 2013, Dr. Dahl noted MRI came back “essentially normal” and wrote “I have recommended physical therapy. I did go over the MRI with her.” (Tr. 594). Plaintiff reported being in a lot of pain and that she utilized a cane, but examination was normal aside from antalgic gait:

On physical exam, the patient is alert and oriented x3, in no acute distress, pleasant, cooperative with normal posture and antalgic gait. The right lower extremity is neurovascularly intact with good sensation and good distal pulses. She has no ligamentous laxity to varus or valgus stress and anterior/posterior drawer. Skin is clean, dry, and intact. No effusion.

(Tr. 594).

         Eight days later, Plaintiff presented to new primary care doctor Dr. Paul Baughman, D.O.. (Tr. 555). She reported that Dr. Dahl “never sent her to physical therapy.” (Tr. 555, 560). Dr. Baughman noted “she tells me she doesn't have the money to do it but she has gateway [insurance].” (Tr. 555). Plaintiff reported hip pain and denied “ambulatory dysfunction, arthritis, injury and joint swelling.” (Tr. 555). Examination indicated crepitus in the right knee and Plaintiff used a cane to ambulate. (Tr. 556). Plaintiff began physical therapy on April 1, 2013. (Tr. 633). By April 25, 2013, Dr. Baughman observed that Plaintiff was “walk[ing] with a normal gait for age” and examination was normal, although she reported pain “everywhere, ” particularly her left shoulder. (Tr. 552-53).

         Plaintiff treated with Dr. Baughman and PA-C Kropa on May 7, 2013 and May 14, 2013. (Tr. 545-48). Plaintiff denied musculoskeletal symptoms. (Tr. 548). Examination was normal, with normal gait. (Tr. 546). Plaintiff was hospitalized from May 16, 2013 through May 20, 2013 for allegedly passing out while driving, but musculoskeletal examinations were normal, with no cyanosis, swelling, tenderness, effusion, or edema. (Tr. 373, 407, 409, 411). Contemporaneous physical therapy records indicated no loss of balance, shortness of breath, or dizziness on ambulation, although she “furniture walked at times.” (Tr. 415). Occupational therapy evaluation indicated that Plaintiff was “independent” in all daily activities using both upper and lower extremities, with intact attention span, concentration, memory, sensation, and social interaction. (Tr. 417). Plaintiff reported pain was “0.” (Tr. 417). Providers opined “[patient] is independent with [activities of daily living] and functional mobility. No need for skilled [occupational therapy] services.” (Tr. 417).

         On May 23, 2013, Plaintiff followed-up with Dr. Baughman and reported “neck pain since her accident.” (Tr. 538). Dr. Baughman noted that Plaintiff was using a cane and examination was normal. (Tr. 539). Dr. Baughman restricted her from driving and prescribed Fentanyl. (Tr. 539).

         In May of 2013, Plaintiff also treated with Dr. Ernest Rubbo, M.D., at OIP, for left shoulder pain. (Tr. 595-96). Plaintiff reported “dull achiness, ” “slight weakness, ” and numbness and tingling in her left arm and hand. (Tr. 595). Examination indicated positive impingement sign and “some weakness with abduction” but full range of motion. (Tr. 595). In June and July of 2013, Plaintiff presented to Dr. Brett Himmelwright, D.O. at OIP for neck and right shoulder pain. (Tr. 576). Neither Dr. Rubbo nor Dr. Himmelwright mention a cane. (Tr. 572-76). Dr. Himmelwright noted, “she was supposed to follow up with Dr. Fernandez but did not.” (Tr. 572). In July of 2013, Dr. Himmelwright refused to prescribe new medications and referred her to physical therapy, and on follow-up on July 26, 2013, noted that Plaintiff “does do well when she takes Flexeril, ” emphasized that Plaintiff needed to start physical therapy and renewed her Flexeril. (Tr. 575-76) (“I had recommended physical therapy previously but she has not been able to do this as yet…physical therapy would be an important part of her recovery and we really needed her to get that started”). Ten days later, Plaintiff reported to Dr. Baughman that she had “completed PT with no help.” (Tr. 532).

         On September 20, 2013, Plaintiff presented to PA-C Kathryn Mueller, who noted “[s]he has been seen by Dr. Rubbo for some shoulder issues and she actually had her left shoulder injection and was told to followup if there is was no improvement. She actually did not followup and I am seeing her here today for bilateral shoulder pain, right greater than left and continued pain in her cervical spine.” (Tr. 577).

         Plaintiff denied having any musculoskeletal symptoms except left shoulder and spine pain to Dr. Baughman from May through December of 2013. (Tr. 526-37) (“denies…ambulatory dysfunction, arthritis, injury, joint swelling…numbness/tingling). Plaintiff underwent physical therapy for her shoulder and neck, and discharge notes on October 9, 2013 indicate that cervical range of motion had improved, shoulder range of motion had improved to nearly full range, and she had improved ability to reach overhead. (Tr. 597). In December of 2013, Dr. Rubbio noted pain but “she has not noticed any loss of motion or strength.” (Tr. 591). Plaintiff had tenderness and positive impingement sign with normal vascular, sensory, and range of motion examinations. (Tr. 581). Dr. Rubbo recommended shoulder surgery, which he performed in January of 2014 “with improvement of pre-operative symptoms.” (Tr. 585).

         In March of 2014, Dr. Rubbo noted stiffness and soreness with range of motion after falling on ice, but Plaintiff exhibited full range of motion and no tenderness. (Tr. 586). Dr. Rubbo prescribed physical therapy. (Tr. 586). In April of 2014, Plaintiff reported that she had stopped therapy due to pain, and Dr. Rubbo instructed Plaintiff to continue with physical therapy. (Tr. 589).

         Plaintiff was scheduled to appear before the ALJ on April 11, 2014, although the ALJ would continue the hearing for Plaintiff to obtain counsel. (Tr. 92-106). On April 2, 2014, Plaintiff presented to Dr. Baughman and “state[d] the most important reason she is here is she needs a letter for SSI, that she states she is unable to work?” (Tr. 522). She reported significantly greater symptoms that she had at her previous follow-up on December 30, 2013 (Tr. 526), although she continued denying “disorientation, headache, numbness/tingling, seizures and ...


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