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Krout v. Berryhill

United States District Court, M.D. Pennsylvania

June 22, 2017

HEIDI KROUT, Plaintiff,
v.
NANCY A BERRYHILL, 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. (Doc. 1.) Plaintiff filed an application for benefits on October 2, 2013, alleging a disability onset date of June 26, 2013. (R. 15.) After Plaintiff appealed the initial denial of the claims, a hearing was held on January 28, 2015, and Administrative Law Judge (“ALJ”) Scott M. Staller issued his Decision on March 11, 2015, concluding that Plaintiff had not been under a disability during the relevant time period. (R. 24.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on September 15, 2016. (R. 1-7.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on October 12, 2016. (Doc. 1.) She asserts in her supporting brief that the Acting Commissioner's determination should be reversed or remanded for the following reasons: 1) substantial evidence does not support the ALJ's evaluation of the opinion of the consulting psychologist; and 2) substantial evidence does not support the ALJ's credibility evaluation. (Doc. 16 at 2.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly granted.

         I. Background

         Plaintiff was born on July 6, 1971, and was forty-one years old on the amended disability onset date. (R. 23.) She has a high school education and past relevant work as a cosmetologist. (Id.)

         A. Medical Evidence

         1. Physical Impairments

         Records from Hayshire Family Medicine span from September 5, 2012, to November 18, 2014. (R. 218-64, 265-73, 345-80.)

         In September 2012, Plaintiff was seen at Hayshire by Tatiana Dalton, M.D., after having had two fainting episodes. (R. 242.) Physical and mental exams were normal. (R. 243-44.) Dr. Dalton ordered a CT scan and bloodwork and assessed fainting, hypertension, obesity, and nicotine dependence. (R. 242.) Other “Active Problems” included anxiety disorder, depression, and migraine headaches. (R. 242-43.) A September 24th visit with Marie Kellett, M.D., at Hayshire indicates that Plaintiff's CT scan of the head showed no evidence of acute infarction, hemorrhage, or mass. (R. 240.) Dr. Kellett also recommended MRI of the head and an event monitor to assess the fainting episodes. (R. 238.) A later MRA done in October 2012 was also unremarkable, and Dr. Kellett noted on October 25, 2012, that she wanted Plaintiff to proceed with an event monitor and echocardiogram to further assess the fainting. (R. 232.) December 28, 2012, office notes show that Plaintiff cancelled or did not show for several appointments. (R. 228.)

         Plaintiff again saw Dr. Kellett on June 27, 2013, the day after Plaintiff found her son dead in bed (and the day of her alleged onset of disability). (R. 15, 225.) Plaintiff's son had been having problems but been clean and sober for a few weeks, and his death was a possible suicide. (R. 225.) Plaintiff was distraught, crying constantly, not sleeping, and completely overwhelmed. (Id.)

         On August 13, 2013, Plaintiff saw Dr. Kellet who assessed elbow pain, depression, anxiety, and grief reaction. (R. 220.) Dr. Kellett provided the following history:

42 year-old female who presents for followup of depression, anxiety and grief regarding her son who passed away almost 2 months ago. She suspects it is more of an unintentional overdoes and suicide attempt at this time. He was abusing prescription drugs she has since found out. Unfortunately most family members have started to move on and she is unable to get beyond her grief. She [has] not had any formal counseling. . . . She . . . is involved . . . with some online support groups. She is also having numbness in her left fourth and fifth fingers which [s]he thinks is coming from her elbow. She does have some discomfort. She would like to be referred to an orthopedic specialist.

(R. 220.) Under “Physical Exam, ” Dr. Kellett noted “tearful.” (R. 221.) She encouraged Plaintiff to seek counseling and recommended that she see an orthopedic specialist for her left elbow discomfort and numbness. (Id.)

         On September 5, 2013, Plaintiff was seen for an orthopedic consultation at OSS Health by Darcy Kresge, PA-C. (R. 265-66, 279-81.) Joseph E. Alhadeff, M.D., was the supervising phsyician. (Id.) Dr. Kellett had referred Plaintiff because of left elbow pain. (R. 265.) OSS office records indicate that Plaintiff was working regular duty as a kennel manager and was able to perform activities of daily living. (R. 279.) Review of Systems indicates that Plaintiff reported joint pain, anxiety, depression, and insomnia, but she denied memory loss. (R. 280.) Plaintiff was diagnosed with left elbow pain, ulnar neuritis, and medial epicondylitis and placed on a prednisone taper. (Id.) Plaintiff was instructed to rest the injured body part, to ice injured area, and to have further studies conducted on the area (electromyography “EMG” and nerve conduction study “NCS”). (R. 266-67, 280.)

         October 9, 2013, office notes signed by supervising physician William H. Ulmer, Jr., D.O., from OSS Health indicate that Plaintiff had constant pain in her left elbow which increased with lifting, exercise, twisting and bending. (R. 276-78.) She reported numbness and tingling from the left hand that radiated to her elbow. (R. 276.) Notes also show she continued to work regular duty as a kennel manager. (Id.) Cervical spine x-rays revealed “a loss of the cervical lordosis with noted early reverse cervical lordosis being observed. Only mild disk space narrowing between C6-C7 is present.” (R. 277.) EMG study of the left arm “did not show any nerve conduction abnormalities suggestive of cervical radiculopathy, plexopathy, myography, peripheral polymyopathy, or medial or ulnar nerve mononeuropathy.” (Id.) Plaintiff was diagnosed with cervical radiculitis and medial epicondylitis of the left elbow. (Id.) Notes indicate that Plaintiff had received significant relief with Medrol Dosepak, she was prescribed a stronger prednisone taper, and she received a steroid injection. (Id.)

         At Plaintiff's November 26, 2013, Hayshire office visit, physical examination showed neck pain with movement to the right and left and pain over the cervical spine. (R. 374.) Plaintiff was assessed to have cervical disc herniation and cervical radiculopathy for which she was prescribed Meloxicam and Gabapentin. (R. 373.) The provider noted that Plaintiff had been seen at OSS then went to Johns Hopkins University for a second opinion because the pain was getting worse. (Id.) Plaintiff reported she was likely going to have cervical fusion on her neck over the next few months. (Id.)

         Plaintiff was again seen at Hayshire on December 3, 2013, for neck pain. (R. 370-72.) Dr. Kellett noted that Plaintiff reported constant, severe, and debilitating pain and she appeared to be in moderate pain throughout the visit. (R. 370-72.) She noted that Hopkins wanted to do neck surgery but Plaintiff was reluctant and wanted to seek another opinion. (R. 371.) Dr. Kellett recommended Fentanyl 25 microgram patch and Oxycodone for breakthrough pain. (Id.) She cautioned Plaintiff about side effects including drowsiness, recommended that Plaintiff continue her antidepressant medication. (R. 370.) Dr. Kellett's Assessment included grief reaction, cervical disc herniation, cervical radiculopathy, chronic pain syndrome, and depression. (Id.)

         In January 2014, Dr. Kellett discontinued Fentanyl and started Oxycontin with Oxycodone for breakthrough pain. (R. 367.) Notes indicate that disability forms would be filled out. (Id.) Under “Physical Exam, ” Dr. Kellett noted that Plaintiff appeared uncomfortable. (R. 369.)

         At her February 6, 2014, visit with Dr. Kellett, Plaintiff reported that she was feeling better regarding her grief/anxiety/depression, she remained reluctant to pursue surgery, and the MS Contin was working very well for her pain. (R. 365.) Under “Physical Exam, ” Dr. Kellett noted that Plaintiff was in no apparent distress. (R. 366.)

         In March 2014, Dr. Kellett recorded that Plaintiff appeared “mildly uncomfortable, ” Plaintiff reported no side effects from her medication which she said helped to control her pain but did not eliminate it. (R. 361-62.) Plaintiff reported that she continued to have struggles with the death of her son and she continued to see a “new age” chiropractor in Lancaster. (Id.)

         In May 2014, Plaintiff reported that she was having significant pain in her elbow and the chronic neck pain continued. (R. 358.) She had scheduled an appointment at the Spine Institute in Philadelphia to get another opinion regarding neck surgery. (Id.) Plaintiff reported significant pain in her left elbow and was given a steroid injection which had helped in the past. (R. 358-60.) Plaintiff's medications included morphine and Oxycodone for pain. (R. 357.) Plaintiff said she was doing yoga. (R. 358.) She continued to report problems dealing with her son's death, she said she was not sleeping well, and she was having issues with her daughter. (Id.) Physical exam findings indicate that Plaintiff was tearful and had left elbow pain at the medial epicondyle and pain with pronation. (R. 359.)

         Plaintiff was seen by John Frank Spallino, M.D., at the Laser Spine Institute in Wayne, Pennsylvania, on June 30, 2014, for review and evaluation of MRI/X-ray concerning her cervical spine pain with radiculopathy. (R. 398.) Dr. Spallino assessed spinal stenosis in the cervical region, displacement of cervical intervertebral disc without myelopathy, cervical spondylosis without myelopathy, and degeneration of cervical intervertebral disc. (R. 399.) He recommended a new cervical MRI and laminectomy, foraminotomy, and decompression of the nerve root. (Id.)

         In July 2014, Dr. Kellett reported that Plaintiff was on narcotics for chronic pain due to degenerative disc disease with radicular symptoms, her depression and anxiety worsened after the death of her son the preceding year, her migraine headaches were fairly well controlled, she was planning to have laparoscopic surgery at the Spinal Institute in the fall, she lost twenty morphine tablets and managed to survive without them, and medical issues were stable but not where Plaintiff would like them to be. (R. 355.) Dr. Kellett also noted that Plaintiff was tearful at times during her office visit. (R. 356.)

         On August 21, 2014, Plaintiff had a neurological consultation with Albert Heck, M.D., of WellSpan Neurology. (R. 335.) Dr. Heck summarized his findings in a letter to Dr. Kellett on the same Dated:

As you know, she is a 43 year-old with symptoms involving her left arm. Family is neurologically unremarkable without evidence of myelopathy or radiculopathy clinically. She is locally tender at the biceps origin and also lateral elbow, and I wonder whether some of her pain complaints, including those that are “shooting” might not be tendinitis rather than neurologic. This is also supported by the fact that her symptoms seem to worsen when she flexes her elbow suggesting a localized process. Her chronic pain syndrome may be playing some role here as well, and certainly the issues of ongoing grief and depression influencing her symptoms should be considered. I am not sure whether or not surgery will improve her symptoms, but it is reasonable to consider. I have asked her to look into grief counseling and see her back in 6-8 weeks for reevaluation after she considers our long discussion today.

(R. 335.)

         On October 3, 2014, Dr. Kellett noted that Plaintiff continued to deal with the grief of losing her son and commented that she was glad Plaintiff was seeing a counselor. (R. 352.) Plaintiff was to continue with pain medication and follow up with neurology. (R. 351.) Dr. Kellett reported that Plaintiff was in no apparent distress. (R. 353.)

         At Plaintiff's follow-up visit with Dr. Heck on October 10, 2014, he reported that her neurological exam was mostly unremarkable and she had pain consistent with tennis elbow. (R. 324.) Dr. Heck said that Plaintiff had a suggestion of nerve root impingement at ¶ 7 on the left but he was not sure that it was a clinical issue at the time. (Id.) Dr. Heck suggested that, although the pain comes back when the Gabapentin wears off, Plaintiff should continue the medication to keep her pain under control and she should be followed with observation. (R. 324-25.) Dr. Heck noted that Plaintiff believed counseling was helping her and he encouraged her to continue it.[1] (Id.)

         On October 22, 2014, Plaintiff saw Pawel Ochalski, M.D., at WellSpan Neurosurgery for a neurosurgical consultation. (R. 331.) In his summary letter to Dr. Heck, the referring physician, Dr. Ochalski noted that palpation of the cervical, thoracic, and lumbar spine did not show tenderness or muscle spasms, motor examination revealed 5/5 strength in both upper and lower extremities, deep tendon reflexes were 3 throughout the upper and lower extremities, and Plaintiff's gait was ataxic. (R. 330.) Dr. Ochalski recommended new MRI and CT scan of the cervical spine and prescribed methylprednisolone pack with reassessment in two weeks. (Id.) He added that he discussed the natural history of cervical spondylitic myelopathy and a risk for quadriparesis if it is untreated. (Id.)

         At her visit with Dr. Kellett on October 31, 2014, Dr. Kellett recorded that Plaintiff's pain had escalated, Plaintiff expected to have surgery scheduled shortly, the neurosurgeon discussed the possibility of quadriplegia if the problem was not taken care of, she was not sleeping due to pain, and she was taking more oxycodone than she should. (R. 349.) Dr. Kellett reported that Plaintiff was tearful, appeared uncomfortable, and was slightly antaxic when first getting up. (R. 350.) Dr. Kellett recommended increasing the dosage of the long-acting morphine which she hoped would decrease the need for oxycodone for breakthrough pain, getting another MRI and CT scan, and follow up with neurosurgery. (R. 348.)

         On the same date, Plaintiff had the MRI of the cervical spine and CT of the cervical spine ordered by Dr. Ochalski. (R. 340, 342.) The CT scan showed scattered degenerative changes and referred to the MRI for better soft tissue evaluation. (R. 342.) The MRI showed “degenerative disc disease of C6-7 with severely narrowed left neural foramen, mainly due to bony spur and focal ossification of the posterior longitudinal ligament. Mild disc bulge is present. The right neural foramina is mildly to moderately narrowed.” (R. 340.) The MRI also showed “[d]iffuse disc bulge at ¶ 5-6 level with facet arthropathy, greater on the right and mild narrowing of the right neural foramina. No evidence of spinal canal stenosis. Right sided facet arthropathy of C3-4 and C4-5.” (Id.)

         Plaintiff had her neurosurgical follow up appointment with Dr. Ochalski on November 5, 2014. (R. 319.) In Dr. Ochaslki's report to Dr. Heck, he acknowledged Plaintiff's worsening symptoms of neck discomfort which he rated as moderate, noted that Neurontin helped her left side arm symptoms, and also noted some low back discomfort. (R. 319.) Dr. Ochalski reported motor examination findings of 5/5 motor strength in upper and lower extremities and normal gait with no evidence of ataxia. (Id.) He said he had reviewed the October 2014 updated MRI and CT scan which showed evidence of spondylotic changes at ¶ 5-6 and C6-7 but no evidence of cord compression. Dr. Ochalski recommended referral to physiatry to develop nonoperative treatment strategies for medical management of Plaintiff's discomfort as well as consideration of epidural injections. (Id.)

         Office records from Plaintiff's November 18, 2014, visit with Dr. Kellett indicated that Plaintiff would follow up with pain management because the neurosurgeon decided against surgery after her recent MRI. (R. 345-46.) Plaintiff reported that she hoped to start acupuncture when she had enough money for the first appointment and she did not want to start physical therapy. (R. 346.) Plaintiff wanted to increase Gabapentin and start weaning off narcotics. (Id.)

         On November 25, 2014, Plaintiff was seen at WellSpan Physiatry by Henry A. Richardson, M.D. (R. 381-89.) Plaintiff complained of neck pain, rated at 6/10, and leg weakness. (R. 382.) Physical examination showed appropriate affect and mood within normal limits, limited range of motion of cervical and lumbar spine, cervical facet loading present bilaterally, normal strength, and gait within normal limits. (R. 386-87.) Dr. Richardson ordered MRI of the lumbar spine and physical therapy referral. (R. 381.) He noted that cervical epidural injections would be held because Plaintiff said that radicular pain down her arms had subsided with low dose Neurontin. (Id.) Dr. Richardson commented that Plaintiff had been on high dose morphine and she previously was on Oxycontin and Fentanyl and he did not recommend high-dose narcotics for treatment of chronic neck pain. (Id.)

         The December 5, 2014, MRI of the lumbar spine indicated the following: L2-L3 mild disc dessication and disc bulge with mild indentation of the thecal sac, mild spinal canal stenosis, and mild bilateral neural foraminal narrowing; prominent Tarlov cyst scalping the posterior margin of S2 vertebral body; and some mild facet osteoarthropathy at the L4-L5 and L5-S1 levels. (R. 390.)

         B. ...


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