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Rudy v. Berryhill

United States District Court, M.D. Pennsylvania

April 5, 2017

DAVID RUDY, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          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 (“Act”) and Social Security Income (“SSI”) under Title XIV of the Act. (Doc. 1.) Plaintiff filed applications for benefits on October 22, 2012, alleging a disability onset date of January 15, 2011. (R. 613.) After Plaintiff appealed the initial denial of the claims, a hearing was held on June 23, 2014, and Administrative Law Judge (“ALJ”) Sharon Zanotto issued her Decision on August 6, 2014, concluding that Plaintiff had not been under a disability at any time from July 12, 2013, the amended onset date, to the date of the decision. (R. 620.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on June 16, 2016. (R. 1-7, 522-25.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on August 12, 2016. (Doc. 1), asserting in his supporting brief that the Acting Commissioner's determination should be reversed or remanded for the following reasons: 1) the ALJ erred in failing to consider Plaintiff's chronic kidney disease, cervicalgia, hypertension, hyperlipidemia, and migraines as severe impairments; 2) the ALJ did not properly weigh opinion evidence; 3) the ALJ failed to construct a legally sufficient RFC; 4) the ALJ erred in finding Plaintiff was capable of performing past relevant work; and 5) the ALJ erred in failing to find Plaintiff met the provisions of the Medical Vocational Guidelines. (Doc. 13 at 9.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly granted.

         I. Background

         Plaintiff was born on February 2, 1957, and was fifty-five years and eleven months old at the time of his onset. (R. 633; Doc. 13 at 2.) He has a high school education and past relevant work as a fast food worker and cashier.[2] (Id.)

         A. Medical Evidence

         Prior to the alleged onset date of July 12, 2013, Plaintiff's medical history included a stroke in 2009 (R. 965), and a heart attack requiring stent placement in 2011 (R. 956). Plaintiff also had hypertension, and chronic kidney disease. (R. 965, 1043.) In April 2011 he reported to his primary care physician, James Sioma, M.D., that he was having back pain for which he had nephrology follow-up and a diagnosis of chronic kidney disease, stage 3. (R. 936, 1025-45.) In May of 2012, Plaintiff saw Dr. Sioma for continuing problems with lumbar muscle spasms which were diagnosed as lumbago. (R. 927-28.) In August of 2012 he reported headaches, dizziness, lightheadedness, and nausea with some vomiting, and a cervical spine x-ray showed mild cervical degenerative changes, preserved anterior cervical lordosis, and calcified plaque in the bilateral carotid bifurcations. (R. 863, 893.) From March 2012 through May 2013 Plaintiff often reported chest pain and shortness of breath to Dr. Sioma and other providers. (R. 921-22, 929, 1224, 1271, 1274-75.) In May 2013 Plaintiff had another heart attack and stent placement, after which he continued to report chest pain and EKGs remained abnormal. (R. 1201, 1205-07, 1266-67, 1403.) In June 2013, Plaintiff complained of back pain. (R. 1156.)

         On July 12, 2013--the amended disability onset date--Plaintiff was admitted to York Hospital with complaints of lightheadedness, bilateral blurred vision, and headache. (R. 1369-72.) Brain imaging studies confirmed a diagnosis of vertebral basilar insufficiency, migraine headaches, transient ischemic attacks, basilar artery occlusion and vertebral artery occulsions. (R. 1371.) On the same date, Plaintiff had an EKG due to complaints of dizziness and vomiting which showed “nonsepcific ST&T changes” and ischemia could not be excluded. (R. 1208-09.) Nuerologist Fengium Jiang, M.D., prescribed Tramadol for headaches, discussed the option of intracerebral arterial intervention which Plaintiff declined, and recommended follow up with an outpatient neurologist. (R. 1393.) Plaintiff was discharged after four days with medications including Tylenol, aspirin, Plavix, isosorbide, metoprolol, simvastin, and Ultram. (R. 1371.)

         Following his hospitalization, Plaintiff continued to have problems with headaches and dizziness for which he sought treatment on multiple occasions in August 2013. (R. 1131.) On August 29, 2013, he reported sharp pain at the base of his neck and blurry vision. (R. 1162.)

         Office notes from visits to Dr. Sioma's office in September and November 2013 show that Plaintiff's cardiovascular examinations were normal, he had a normal gait, and his diagnoses included hypertension and hypercholesterolemia. (R. 1260-61, 1264.)

         On November 13, 2013, Plaintiff was admitted to York Hospital for headache which had lasted for six days. (R. 1362.) Plaintiff also complained of blurry vision, lightheadedness, neck pain, and balance issues. (Id.) Brain imaging studies showed extensive vascular calcification, and severe stenosis (versus occulsion) of the basilar artery and distal bilateral vertebral arteries. (R. 1352-53.) Plaintiff was diagnosed with a basilar migraine. (R. 1365.) Treating provider, Robert Reif, M.D., recommended that Plaintiff continue Plavix for stroke prevention and that he see an outpatient nuerologist for treatment of migraines. (Id.)

         A November 14, 2013, bubble echocardiogram showed moderate left ventricular hypertrophy, bilateral enlargement, and sclerotic aortic vavle. (R. 1211-12, 1358.)

         Later in November 2013, Plaintiff returned for nephrology follow up. (R. 1222-23.) Shelly Levenstein, CRNP, indicated Plaintiff's kidney disease was stable with controlled blood pressure, and his hypertension and hyperlipidemia also remained controlled with medication. (R. 1223.)

         On December 16, 2013, Plaintiff saw Ellen Deibert, M.D., at WellSpan Neurology. (R. 1283-89.) Plaintiff reported two headaches per week that were only severe “at times.” (R. 1284.) Plaintiff had normal muscle strength, tone, and bulk, normal reflexes, and a normal gait, but diminished cranial nerve VII and tender neck muscles. (R. 1283, 1286.) Dr. Deibert noted severe intracranial disease and severe neck muscle spasms for which she prescribed gabapentin and recommended physical therapy. (R. 1283-84.) December 19, 2013, x-rays showed degenerative changes at ¶ 6-C7 and vascular calcifications. (R. 1280.)

         Later in December, Plaintiff saw Dr. Sioma. (R. 1256-58.) Plaintiff denied chest pain, shortness of breath, and muscle pain or weakness, but he complained of cervical muscle spasms. (R. 1256.) He had normal ambulation. (R. 1257.) Dr. Sioma diagnosed migraine headaches and prescribed Imitrex, Tylenol, and aspirin. (Id.) Plaintiff continued to take gabapentin, hydralazine, hydrochlorothiazide, potassium, and simvastin. (Id.)

         At his February 2014 visit to WellSpan Neurology, Dr. Deibert noted headaches as well as low back and leg pain since November 2013. (R. 1277.) Plaintiff reported that his headaches and dizziness had improved with physical therapy--he only had headaches once or twice a week, he rated the severity as three out of ten, and he said he rarely took Tylenol for them. (Id.) Dr. Deibert found sciatic notch tenderness, muscle spasms in the low back, slightly reduced reflexes, a stiff “hunched” gait, normal stance, negative straight leg raising, normal muscle strength, tone, and bulk, and normal sensation. (R. 1280.) An x-ray showed degenerative changes in the cervical spine. (Id.) Dr. Deibert diagnosed cervicalgia, sciatica, and lumbago. (R. 1277.) She increased the Gabapentin dosage and advised Plaintiff to avoid Imitrex due to his history of stroke and high blood pressure and advised Plaintiff to try to just use Tylenol for the headaches. (R. 1278.)

         Plaintiff continued to complain of low back pain at his March 2014 visit to Dr. Sioma. (R. 1248-55.)

         On April 30, 2014, Plaintiff was hospitalized overnight at York Hospital. (R. 1316.) He complained of tingling in his arms, weakness, confusion, headache, and difficulty ambulating. (R. 1334.) Imaging studies showed mild to moderate calcific atherosclerotic plaque in bilateral carotid bulbs and proximal ICA's with posterior cruciate shadowing. (R. 1328.) An echocardiogram showed concentric left ventricular hypertrophy with underlying regional wall motion abnormalities consistent with coronary artery disease. (R. 1329-30.) Neurologist Robert Reif, M.D., diagnosed cephalgia, ruled out cardiac and ischemic events, and assessed that carpal tunnel syndrome caused the numbness. (R. 1316, 1334-36.) Dr. Reif recommended EMG/nerve conduction testing, a wrist splint at night, and continuation of physical therapy for neck pain. (R. 1336.) He also recommended “aggressive control of his hypertension and hyperlipidemia” and follow up with Dr. Deibert. (Id.)

         At a May 13, 2014, nephrology visit, Plaintiff reported right flank pain and decreased urine output. (R. 1450-51.) She noted that Plaintiff was using a cane for ambulation. (R. 1451.) She indicated that Plaintiff's kidney disease remained stable and secondarry to hypertensive nephrosclerosis. (R. 1452.)

         On May 19, 2014, Dr. Diebert prescribed a cane for Plaintiff to use due to pain and weakness in his legs. (R. 1460.)

         B. Opinion Evidence

         1. State Agency Physician

         In January 2013, Candelaria Legaspi, M.D., conducted a review of Plaintiff's records. (R. 677-78.) She opined that Plaintiff could perform light work involving lifting and carrying twenty pounds occasionally and ten pounds frequently, and standing or walking six hours in an eight-hour day. (Id.)

         2. Treating Physician

         Dr. Sioma, who treated Plaintiff regularly for several years, completed a “Physical Residual Functional Capacity Questionnaire” (R. 1060-64), and “Cardiac Residual Functional Capacity Questionnaire” (R. 1055-59) on February 14, 2013. He opined that Plaintiff could stand for fifteen minutes at a time before needing to sit down; he could stand/walk for less than two hours in an eight-hour day and could sit for six hours; he could lift and carry ten pounds occasionally and less than ten pounds frequently; he could rarely twist and climb stairs and never stoop, bend, crouch, squat, or climb ladders. (R. 1057-58, 1061-63.) Dr. Sioma also indicated that Plaintiff should avoid all exposure to extreme temperatures, high humidity, and wetness; he should avoid even moderate exposure to cigarette smoke, solvents/cleaners, fumes, odors, gases, and dust; he needed to alternate positions; he would require unscheduled breaks every forty-five to sixty minutes; and he estimated that Plaintiff was likely to be absent from work as a result of his impairments about four days per month and related the symptoms back to January 2011 when Plaintiff had his first heart attack. (R. 1057-59, 1062-63.) He indicated that Plaintiff did not require a cane for ambulation. (R. 1062.)

         3. Physical Therapist

         Plaintiff's physical therapist, Rick J. Topper, completed a function questionnaire in May 2014. (R. 1455-59.) He had been treating Plaintiff since January 2014 and noted diagnoses of low back pain, sciatica, cervicalgia, and TIA. (R. 1455.) Mr. Topper identified symptoms of neck pain, back pain, weakness, and difficulty walking. (Id.) He stated that Plaintiff was not a malingerer. (R. 1456.) He indicated that Plaintiff could sit, stand, or walk for less than two hours each in an eight-hour day; he could rarely twist, stoop, bend, crouch, or squat; he was incapable of even low stress jobs; he would miss work more than four days per month; he had significant limitations in grasping, handling, and fingering. (R. 1455-59.) He did not complete certain sections of the questionnaire, indicating they were “not applicable.” (R. 1457.) The “not applicable” portion ...


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