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Hickman v. Commissioner of Social Security

United States District Court, M.D. Pennsylvania

March 31, 2017

KAREN L.HICKMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM DOCS. 1, 3, 4, 9, 10

          GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

         I. Procedural Background

         On March 20, 2012, Karen L. Hickman ("Plaintiff") filed as a claimant for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1382-1383 ("Act") and Social Security Regulations, 20 C.F.R. §§ 404 et seq., 416 et seq., with a last insured date of June 30, 2014, [1] and claimed a disability onset date of January 18, 2009. (Administrative Transcript (hereinafter, "Tr.")» 107-08).

         After the claim was denied at the initial level of administrative review, the Administrative Law Judge (ALJ) held a hearing on September 26, 2013. (Tr. 120-48). On October 30, 2013, the ALJ found that Plaintiff was not disabled within the meaning of the Act. (Tr. 120-48).[2] Plaintiff sought review of the unfavorable decision, which the Appeals Council denied on February 27, 2015, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-7).

         On April 29, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g), to appeal a decision of the Commissioner of the Social Security Administration ("SSA") denying social security benefits. (Doc. 1). On July 6, 2015, the Commissioner ("Defendant") filed an answer and an administrative transcript of proceedings. (Doc. 3, 4). On February 12, 2016, Plaintiff filed a brief in support of the appeal. (Doc. 9) ("PI. Brief')). On March 16, 2016, Defendant filed a brief in response. (Doc. 10 ("Def. Brief')). On November 7, 2016, the Court referred this case to the undersigned Magistrate Judge.

         II. Relevant Facts in the Record

         A. Education, Age, and Vocational History

         Plaintiff was born in July 1969 and classified by the Regulations as a younger individual at the time of the ALJ decision. (Tr. 115); 20 C.F.R. § 404.1563(c). She had a GED and past work experience as a custodian in a school district and in a hospital and an order picker. (Tr. 144, 185, 225). Plaintiff asserts that she is disabled due to due to several impairments, including chronic neck pain, bulging discs in neck and back, depression, and reversed cervical lordosis. (Tr. 224). Earnings reports demonstrate that from earned four quarters of coverage from 1986 to 2008.[3] (Tr. 214).

         B. Relevant Treatment History and Medical Opinions

         1. Consultative Evaluation: Sara Cornell, Psy.D. 419-26

         On June 26, 2012, Dr. Cornell examined Plaintiff and rendered an opinion regarding Plaintiffs psychological based limitations. (Tr. 421-26). Dr. Cornell noted that Plaintiff arrived alone to the examination and was pleasant, and cooperative. (Tr. 424). Dr. Cornell observed that Plaintiff was alert and oriented to person, place, and time, presented with a constricted affect and dysphoric mood. (Tr. 424). Dr. Cornell noted no evidence of a formal thought disorder and that Plaintiff's thought processes were relevant and goal-oriented. (Tr. 424). Dr. Cornell noted that Plaintiff exhibited fair attention and concentration but was easily distracted. (Tr. 424). Dr. Cornell stated that Plaintiff appeared to have poor judgment and poor insight into her difficulties. (Tr. 424).

         Plaintiff reported a history of depressive symptoms which started six years prior and have worsened over time. (Tr. 424). Plaintiff denied any history of suicidal ideation or intent, denied any issues with anger, and denied any history of anxiety, paranoia, or hallucinations. (Tr. 424). Plaintiff reported a history of experiencing chronic pain in her back due to herniated and bulging discs. (Tr. 425). Plaintiff reported experiencing frequent numbness in her right arm, side, and right foot. (Tr. 425). Plaintiff reported a history of neck pain due to a work-related injury that occurred about ten years ago which resulted in herniated and bulging discs in that area. (Tr. 425). Plaintiff reported participating in physical therapy, and receiving epidural injections, without success in eliminating her pain. (Tr. 425). Plaintiff reports having a prescription of Vicodin (750 mg) and Cymbalta (90 mg). (Tr. 425). Plaintiff reported that she had twice participated in counseling at ReDCo but discontinued services there and had also received counseling at NHS. (Tr. 425). Plaintiff reported experiencing the following symptoms on a daily basis: sadness, crying, lethargy, anhedonia, pessimistic thinking, low self-esteem, self-criticism, poor self-efficacy, feelings of discouragement, guilt, inadequacy, helplessness, worthlessness, and hopelessness, loneliness, and isolation from others. (Tr. 425).

         Plaintiff reported experiencing mood swings "but these changes in mood range from 'depressed' to 'very depressed.'" (Tr. 425). Dr. Cornell noted that Plaintiff demonstrated short-term memory deficits and forgetfulness. (Tr. 425). Plaintiff reported being unable to recall anything from the previous day. (Tr. 425). Plaintiff reported experiencing poor sleep quality and needing to nap frequently throughout the day. (Tr. 425). Dr. Cornell observed that Plaintiffs "gait, posture and general movements [were] remarkable for pain." (Tr. 425). Dr. Cornell noted that Plaintiff had fair eye contact and fair social skills. (Tr. 425). Dr. Cornell noted the Plaintiff had difficulty providing examples for the likely outcomes of her behaviors or what she would do in various imaginary situations. (Tr. 425). Dr. Cornell diagnosed Plaintiff with Major Depressive Disorder, single episode, severe without psychotic features and assessed her with a current GAF score of 40.[4] (Tr. 425-26).

         Dr. Cornell completed a form indicating that Plaintiff had no restriction in the ability to interact appropriately with the public, and had a slight restriction in the ability to understand, remember and carry out short, simple instructions and interact appropriately with coworkers and supervisor(s). (Tr. 421). Dr. Cornell indicated that Plaintiff had a moderate restriction in the ability to: 1) understand, remember and carry out short, detailed instructions; 2) make judgments on simple work-related decisions; 3) respond appropriately to work pressures in a usual work setting, and; 4) respond appropriately to changes in a routine work setting. (Tr. 421). Dr. Cornell wrote that Plaintiffs impairment affects her ability to socialize and her response it to isolate herself. (Tr. 422). Dr. Cornell opined that Plaintiff could manage benefits in her own best interest. (Tr. 422).

         2. James P. Jacques, D.O.

         In a letter to Dr. Jacques dated April 7, 2006, Dr. Joseph Grassi, M.D. summarized findings from a pain consultation and assessed Plaintiff with: 1) cervicalgia right upper extremity, possible C6 or 7 radicular symptomatology; 2) median neuritis level of the wrist, probable carpal tunnel syndrome; 3) impingement syndrome right shoulder, and; 4) myofascitis upper back and neck. (Tr. 413-15). In a physical therapy discharge report dated June 12, 2007, Plaintiffs activities of daily living were noted; muscle strength, cervical range of motion, and shoulder range of motion were evaluated. (Tr. 416). The physical therapist opined that her prognosis was good, she met her goals of decreasing pain to 2 out of 10, increasing cervical and shoulder range of motion, reducing abnormal sensation of radicular symptoms, able to sit up to one hour at a time, and ability to be independently complete light housework, heavy housework, meal preparation, and driving up to sixty minutes. (Tr. 416-18). Plaintiff was discharged due to non-compliance based on failure to return after April 25, 2007. (Tr.418).

         In a letter to Dr. Jacques dated February 5, 2009, Dr. Charles Norelli, M.D., summarized findings from a consultation for shoulder pain. (Tr. 411-12). Dr. Norelli noted that Plaintiff was depressed and Cymbalta was tried earlier with "some improvement." (Tr. 411-12). Examination of the cervical spine revealed paracervical tenderness upon palpation, active range of motion of 45 degrees rotation to the left and passive range of motion of 50 degrees rotation to the left. (Tr. 411). Dr. Norelli noted that motor strength was normal throughout and Plaintiff demonstrated diminished reflexes. (Tr. 411-12). Dr. Norelli opined that Plaintiff had "primarily a benign myofascial pain disorder, " that the "C-spine MRI ha[d] very minimal findings, " Plaintiff had "numerous medications that [were] not effective and should be withdrawn." (Tr. 412). Dr. Norelli recommended to stop Fioricet, Flexeril, Zanaflex (laper), and Relafen and noted that usually he does not recommend opiates for myofascial pain. (Tr. 412). Dr. Norelli recommended considering Sertraline as a replacement for Cymbalta and that trying massage to address pain was reasonable to consider. (Tr. 412).

         May 1, 2012, Dr. Jacques completed an assessment of Plaintiffs physical limitations. (Tr. 401-05). Dr. Jacques wrote that he had seen Plaintiff from January 30, 2004, to April 26, 2012. (Tr. 401). Plaintiff was diagnosed with depression in 2004 and cervical radiculopathy in 2006. (Tr. 401). Dr. Jacques wrote that Plaintiff had cervical pain with radiation to right arm for ten years in addition to severe depression without suicidal ideation. (Tr. 401). Plaintiff had been treated with Vicodin and physical therapy, that sitting and standing exacerbates the pain while ice and Vicodin alleviates the pain. (Tr. 401). Dr. Jacques indicated that there was paravertebral muscle spasm in the T1-T3 for ten years. (Tr. 401). Dr. Jacques indicated that Plaintiff had negative straight leg raising tests, her sensation was intact to light touch, her motor strength was normal, and she had no atrophy. (Tr. 401-02). Dr. Jacques noted that Plaintiff demonstrated full range of motion in the dorso-lumbar regions, upper extremities, and lower extremities. (Tr. 402, 406-07). Dr. Jacques indicated that Plaintiff had the following diminished range of motion in the cervical regions: 1) 15 degrees forward flexion (out of a possible 30 degrees); 2) 15 degrees backward extension (out of a possible 30 degrees); 3) 15 degrees neck rotation (out of a possible 45 degrees); 4) 10 degrees left lateral flexion (out of a possible 40 degrees), and; 5) 5 degrees right lateral flexion (out of a possible 40 degrees). (Tr. 402). However, in another form, he indicated that Plaintiff demonstrated 5 degrees of left and right lateral flexion, flexion, extension, as well and left and right rotation. (Tr. 407). Dr. Jacques noted that Plaintiff did not use any assistive device for ambulation, that her gait was normal, and wrote "normal" to describe her ability to: 1) get on and off the examining table; 2) walk on heels and toes; 3) squat; 4) arise from a squatting position, and; 5) arise from a chair. (Tr. 403). Dr. Jacques noted that Plaintiff has not had surgery performed. (Tr. 403). Dr. Jacques completed a check-mark opinion indicating that Plaintiff could: 1) occasionally lift and carry up to 100 pounds; 2) stand and walk a total of 1 hour or less in an 8-hour day; 3) sit two hours a day; and, 4) never bend, kneel, crouch, stoop, balance, or climb. (Tr. 403-05). Dr. Jacques noted that Plaintiff had a severe limitation in the ability to use upper and lower extremities and checked boxes indicated that Plaintiffs impairment affected her reaching, handling, fingering, feeling, seeing, hearing, speaking, tasting, smelling, and continence. (Tr. 404-05). With regard to environmental limitations, Dr. Jacques noted that humidity affected the degree of pain that Plaintiff experienced. (Tr. 405). Dr. Jacques did not respond to the form questions requesting explanation in support of his medical findings. (Tr. 404-05). Dr. Jacques concluded the form writing that Plaintiff was still very depressed and getting psychotherapy. (Tr. 408).

         3. Psychiatric Review Technique: James Vizza, Psy.D.

         On July 24, 2012, Dr. Vizza reviewed the medical record and rendered an opinion regarding Plaintiff's psychological based work impairments. (Tr. 179-85). Dr. Vizza opined that Plaintiff had: 1) a moderate restriction of activities of daily living; 2) mild difficulties in maintaining social functioning; 3) moderate difficulties in maintaining concentration, persistence or pace, and; 4) no repeated episodes of decompensation, each of extended duration. (Tr. 179). Dr. Vizza opined that Plaintiff was not significantly limited in her ability to: 1) remember locations and work-like procedures; 2) remember and carry out very short and simple instructions; 3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; 4) sustain an ordinary routine without special supervision; 5) work in coordination with or in proximity to others without being distracted by them; 6) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; 7) be aware of normal hazards and take appropriate precautions; 8) travel in unfamiliar places or use public transportation; and, 9) set realistic goals or make plans independently of others. (Tr. 183-84).

         Dr. Vizza opined that Plaintiff was moderately limited in her ability to: 1) understand and remember and carry out detailed instructions; 2) maintain attention and concentration for extended periods; 3) make simple work-related decisions; and, 4) respond appropriately to changes in the work setting. (Tr. 183-84). Dr. Vizza explained that Plaintiff was able to carry out very short and simple instructions, maintain regular attendance and be punctual, and could complete a normal workday without exacerbation of psychological symptoms. (Tr. 183). Dr. Vizza opined that Plaintiff had no restrictions regarding ability to interact socially. (Tr. 184). Dr. Vizza found that Dr. Jacques' May 2012 opinion was not supported by the evidence in the record, which rendered the opinion less persuasive. (Tr. 184-85). Dr. Vizza found the July 2012 opinion from Dr. Cornell to be consistent with his opinion regarding Plaintiffs psychiatrically based limitations. (Tr. 184), Dr. Vizza concluded that the limitations resulting from psychological impairments do not preclude Plaintiff from performing the basic mental demands of competitive work on a sustained basis. (Tr. 184).

         4. Non-Examining Opinion: Elizabeth Kamenar, M.D.

         On May 18, 2012, Dr. Kamenar reviewed Plaintiffs medical records and rendered an opinion regarding Plaintiffs physical limitations. (Tr. 180-87). Dr. Kamenar noted that Plaintiff could prepare some meals, vacuum, drive, shop, use a computer, lift five to ten pounds, walk twenty to thirty yards and did not use an ambulatory assistive device. (Tr. 180). Dr. Kamenar noted that Plaintiff wrote out detailed ADLs. (Tr. 180). Dr. Kamenar opined that Plaintiff could never climb ladders and could: 1) occasionally lift and/or carry twenty pounds and frequently lift and/or carry ten pounds; 2) stand and/or walk six hours in an eight-hour day; 3) sit six hours in an eight-hour day, and; 4)occasionally climb ramps/stars, balance, stoop, kneel, crouch, and crawl. (Tr. 181). Dr. Kamenar opined that Plaintiff had no limitations in pushing or pulling and no manipulative limitations. (Tr. 181). In support of her opinion Dr. Kamenar cited to Plaintiffs diagnosis of cervical degenerative disc disease, a January 2009 MRI, a February 2009 EMG, and an April 2012 examination where it was noted that Plaintiff had cervical radiculopathy with spasm, negative bilateral straight leg raise (SLR), intact sensation, 5/5 motor strength, equal deep tendon reflexes ("DTRs"), no atrophy; lumbar flexion at 90 degrees, cervical flexion at 5 to 15 degrees, and normal range of motion in bilateral upper and lower extremities. (Tr. 182). Dr. Kamenar also noted that during the April 2012 examination, Plaintiff used no assistive device, presented with normal gait, was able to normal get on/off the examination table, able to rise from the chair, and demonstrated normal walking on heels and toes, normal squatting. (Tr. 182). Dr. Kamenar opined that Plaintiff would be unable to perform past relevant work because Plaintiff was limited to light exertional work that was also simple and routine. (Tr. 186).

         5. Radiographic Records: Fuhai Li, M.D.; John Fiss, M.D.; Richard P. Kennedy, M.D.

         On April 10, 2007, Dr. Li interpreted images of Plaintiff's cervical spine and concluded that they revealed: 1) cervical degenerative changes with disk desiccation; 2) mild disk bulge at the level of C3-4, C4-5 and C5-6 with mild impingement of thecal sac; 3) no spinal canal stenosis; 4) minimal narrowing of the neural foramina at the level of C3-4, C4-5 and C5-6 bilaterally; 5) no evidence of spinal cord lesion or spinal cord compression. (Tr. 301). On January 19, 2009, Dr.

         Fiss interpreted images of Plaintiffs cervical spine and concluded that they revealed mild degenerative changes resulting in mild right neural foraminal narrowing at ¶ 3-C4 and mild central canal narrowing at ¶ 5-C6. (Tr. 316). On August 7, 2013, Dr. Kennedy interpreted images of Plaintiffs lumbar spine and concluded that they were unremarkable. (Tr. 470).

         6. Lehigh Valley Hospital-Cedar Crest: Matthew A. Nussbaum, D.O.; Yuebing Li, M.D.; Bruce Nicholson, M.D.

         From January 19, 2009, to January 21, 2009, Plaintiff sought treatment following receipt of an epidural steroid injection from her pain management doctor. (Tr. 303). Plaintiff reported developing a severe headache which was thought to be a spinal headache. (Tr. 303). Dr. Nussbaum summarized that that:

MRI showed minimal herniated disks for mild degenerative joint disease. Surgery felt that there was no surgical intervention that would likely help her with her pain at this time. Pain Management felt that a blood patch was not indicated in the cervical region for pain at this time. Neurology agreed that this was not migraine, but likely related to CSF leak from her prior cervical injection.

(Tr. 303). In an MRI form dated January 19, 2009, it was noted that Plaintiff was ambulatory with minimal assistance, and able to remember instructions for up to fifteen minutes. (Tr. 315). During a consultation dated January 19, 2009, Dr. Nicholson observed that Plaintiff demonstrated a "full range of motion in the joints, upper and lower extremities without restriction" and that her strength was intact. (Tr. 327). During consultations dated January 20, 2009, Plaintiff reported a history of chronic neck pain for years with on month of right arm pain. (Tr. 320).

         The attending physician noted that Plaintiff was in discomfort when sitting up. (Tr. 320, 323). Plaintiff reported that On January 15, 2009, she had another epidural injection in the lower cervical area, developed a mild headache on the same day, but she went to work that day and the day after. (Tr. 323). Dr. Li observed that Plaintiff was alert and oriented to time, place, and person, followed all commands, had no language deficit, ...


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