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Bennick v. Berryhill

United States District Court, M.D. Pennsylvania

July 11, 2017

NANCY A BERRYHILL, [1]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 filed an application for benefits on May 16, 2013, alleging a disability onset date of September 20, 2012. (R. 15.) After Plaintiff appealed the initial denial of the claims, a hearing was held on January 21, 2015, and Administrative Law Judge (“ALJ”) Therese A. Hardiman issued her Decision on April 15, 2015, concluding that Plaintiff had not been under a disability during the relevant time period. (R. 28.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on October 21, 2016. (R. 1-6.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on December 1, 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) the ALJ erred in failing to find Plaintiff's post Chiari Malformation, status post suboccipital craniotomy for decompression of Chiari Malformation, thoracic syringohydromyelia, and rheumatoid arthritis severe impairments; and 2) the ALJ erred in formulating Plaintiff's residual functional capacity (“RFC”) and determining she was capable of work at step five by misstating Plaintiff's activities, not considering medication side effects, not taking into account testimony regarding pain, and improperly relying on the state-agency physician. (Doc. 11 at 6.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly denied.

         I. Background

         Plaintiff was born on July 28, 1974, and was thirty-eight years old on the disability onset date. (R. 26.) She has a high school education, Associates Degree as a paralegal, and past relevant work as a data entry person, paralegal, and staff sergeant. (R. 26; Doc. 11 at 2.)

         A. Medical Evidence

         In view of the extensive record presented in this case, the Court's summary of medical evidence primarily focuses on records relevant to the impairments specifically at issue with Plaintiff's claimed errors and evidence upon which the parties rely.

         1. Chiari Malformation and Cognitive Impairment

         For many years, Plaintiff treated at Geisinger Medical Center for symptoms related to a number of physical problems including Chiari malformation[2] and arthritis. (R. 182-828.) Neurology Consultation Notes dated August 23, 2012, indicate Plaintiff reported that several weeks earlier she had developed head pressure and pain on awakening which wore off in a few hours. (R. 555.) Several days before her office visit, the headache and pressure did not go away--it increased in intensity and was associated with confusion to the point that she could not do her job in billing for Emergency Medical Services and had enough confusion for a few hours that she could not drive and had a loss of recent memory. (Id.) After this event, the headache continued and Plaintiff felt she had experienced a decrease in her ability to think, concentrate, and remember over the preceding four to five weeks. (Id.)

         At a September 5, 2012, office visit with Shelly D. Timmons, M.D., in Geisinger's Neurosurgery Department, patient history indicated that Plaintiff found it difficult to work because of worsening headaches with associated concentration problems. (R. 593.) Rather than her regular computer and phone duties, she had been put on light-duty filing and doing things around the office. (Id.) Dr. Timmons' Impression was that Plaintiff's Chiari malformation was symptomatic, and she recommended surgical decompression. (Id.) Plaintiff had the recommended surgery on October 18, 2012, with no complications. (R. 775-79.)

         Plaintiff continued to report headaches after her surgery. On November 12, 2012, Plaintiff told Dr. Timmons that her headaches were the same as before the surgery. (R. 468.) In January 2013, Dr. Timmons reminded Plaintiff that she had been told it would take a while to get over surgery. (R. 692.) Dr. Timmons noted that Plaintiff's reported problems were not unexpected--problems which included decreased environmental filtering, sensory overload, an inability to multi-task, decreased concentration, and imbalance. (Id.) Plaintiff said her symptoms were worse in the morning and improved after about three hours. (Id.) Plaintiff told Dr. Timmons that she could not function to focus on reports, handle office work, and be around eleven people at work as she could “barely do things at home in a quiet environment.” (Id.) Plaintiff felt she was improving to some degree but had reached a plateau. (Id.) Dr. Timmons' Impression was that the symptoms were not unexpected and should continue to improve, adding that they “[m]ay improve and plateau several times.” (R. 693.) Dr. Timmons opined that Plaintiff could not yet return to work at Danville EMS but she would anticipate an eventual return. (Id.)

         In May 2013, Plaintiff reported that her headaches were helped by Advil and her neck stiffness was improving. (R. 752.) Her main complaint was memory loss and difficulty concentrating. (Id.) Plaintiff said she had not been able to go back to work because she could not function on the level of her job responsibilities. (Id.) The provider recommended referral to NeuroPsych for cognitive evaluation secondary to memory loss and processing. (Id.)

         On August 30, 2013, Plaintiff saw Randy Fulton, Psy.D., and Bradley Wilson, Ph.D., for a neuropsychological evaluation due to memory concerns and difficulty focusing. (R. 891-94.) They summarized Plaintiff's condition as follows:

Currently, Mrs. Bennick reported that she has had difficulty with memory and concentration, which began within the past year. She reported that she has had difficulty completing tasks, is easily distracted and unable to remember if she had completed a previously started task (e.g., washing hair in the shower, putting detergent in laundry). She also reported having a visual sense of continuing motion after riding in a car, stating that she must remain still and close her eyes for a brief time before the sensation goes away. She reported difficulties in operating a riding lawnmower, stating that she will often run into rocks and trees, feeling as though she is not able to correctly judge the distance between the mower and the objects. She also reported that she has a hard time finding her way in new areas and gave an example of difficulty maneuvering from one location to another at a friend's house. She also reported changes in her ability to track information that she reads. She used to be an avid reader but stated that she is no longer able to read due to “having to read the same material over and over again.”
In regard to physical complaints, Mrs. Bennick reported that she has occasional headaches in the occipital area, which she is typically able to manage with Advil. She reported that the frequency and intensity of her headaches have reduced following her SOC surgery. She acknowledges having some occasional loss of balance without any history of falls. She denied any history of psychiatric illness or treatment.
. . . .
. . . Currently she lives with her mother and 16 year old daughter. . . . Mrs. Bennick reported that she is able to function in her current environment, with the use of some compensatory strategies to complete certain tasks. She stated that she is uncertain of her ability to drive and return to work due to her current symptoms.

(R. 891-92.) The evaluating doctors made the following behavioral observations:

She was alert, oriented, and understood the purpose of the evaluation. Gait was normal. Posture and gross motor activities were normal. Her attention to grooming and hygiene was good. Speech was spontaneous and fluent, with normal prosody and intonation. Thought processes were clear, coherent, and goal-directed. Mood was reported as “good.” Affect was congruent with mood and expressed in an appropriate range. She denied having past or present suicidal ideation. Social comportment was intact, and she was pleasant and cooperative with the examiners. Her approach to testing was persistent and she appeared to be motivated to give her best effort based upon her focus on test stimuli, responsiveness to instruction, and psychometric data. Results of the present evaluation are considered to be an accurate depiction of her current level of neuropsychological status.

(R. 892.)

         In the “Summary and Clinical Impressions” section of the report, Dr. Fulton and Dr. Wilson indicated visual-spatial perception presented as intact, and test results showed high average intellectual abilities with commensurate verbal and nonverbal abilities and average to high average reasoning and problem-solving abilities. (R. 893.) However, overall performance for primary memory test scores was considered low average and the doctors noted that the discrepancy between this performance level and the general intellectual ability was rare. (Id.) They opined “[r]egarding etiology, results indicating inefficiencies with memory acquisition are generaly consistent findings among those with cerebellar dysfunction. The patient's report of distractibility and poor task-completion are also consistent with reports of those with Chiari 1 malformation.” (Id.) The doctors added that Plaintiff “may benefit from the use of compensatory strategies and support from cognitive rehabilitation therapy to try and help with managing encoding of information and task completion.” (Id.) They diagnosed “Mild Neurocognitive Disorder Due to another Medical Condition.” (R. 894.) In addition to the recommendations noted above, the doctors offered other suggestions and stated that “recommended accommodations at the time of reentry to the work place would include a gradual return, a location minimizing distractions, opportunity for frequent breaks, and minimizing the number of projects working at one time.” (Id.)

         At a primary care office visit on November 13, 2013, Plaintiff saw Agnes S. H. Sundaresan, M.D., and reported headaches that “felt like she was wearing a tight hat-more like pressure.” (R. 916.) She said she was taking 600 mg. of Advil two to three times a day and wondered if she should take something else. (Id.) Plaintiff also reported cognitive and speech difficulty. (Id.) Physical examination showed that Plaintiff was alert, healthy, and in no distress, and no abnormal findings were noted. (R. 918.)

         Between October 2013 and September 2014, Plaintiff received speech, cognitive and occupational therapy at Geisinger Health South Rehabilitation Hospital. (R. 1056-1253, 1279-1405.) In October 2013, Plaintiff was assessed to have cognitive and memory impairments and good rehabilitation potential. (R. 1061.) In February 2014, Plaintiff expressed goals of remembering better and returning to work. (R. 1132.) Progress notes indicate that Plaintiff successfully completed shopping tasks and she was able to complete math calculations manually and with a calculator but she continued to report difficulties with attention when tasks became more complex and with math during daily calculations. (Id.) At the March 18, 2014, Occupational Therapy session, Plaintiff's rehabilitation potential was noted to be fair due to the severity of her impairment. (R. 1115.) However, the summary indicates she successfully completed the cognitive skills development exercises and tests. (R. 1116.)

         As of April 2014, Plaintiff reported at her Geisinger Psychiatry office visit that she continued to have head pressure and medications had not helped her thinking or processing of information. (R. 1441.) Plaintiff had just attended speech and occupational therapy and noted that she could not answer questions appropriately after reading a paragraph. (R. 1441.)

         In May 2014, Michael Raymond, Ph.D., of Heinz Rehab Hospital conducted an Independent Neuropsychological Evaluation. (R. 1259-73.) His evaluation, which had the specific emphasis of assessing Plaintiff's current level of adaptive functioning, included a review of data--office notes from Dr. Timmons, Dr. Wilson's evaluation, and therapy notes from the initial evaluation in October 2014 up to January 14, 2014, progress notes. (R. 1260.) After reviewing records, and setting out his own observations and results of tests he administered, Dr. Raymond stated: “In summary, the above enumerated findings, with a reasonable degree of neuropsychological certainty, are essentially unremarkable for noteworthy cognitive limitations 1½ years post surgical decompression for Chiari malformation type 1.” (R. 1269.)

         At her July 22, 2014, neurosurgery visit to Dr. Timmons' office, PA Kevin Hickman noted that MRI of the brain and thoracic spine for post-surgical follow up were stable in appearance. (R. 1463.) Plaintiff continued to report headaches which were helped by Advil. (Id.) Mr. Hickman recorded that Plaintiff's main complaint was memory loss and difficulty concentrating. (Id.) He noted that she had been unable to go back to work because she could not function on the level of her job responsibilities. (Id.) In the “Plan” portion of the notes, Mr. Hickman stated that Plaintiff was “unable to be gainfully employed at this point.” (R. 1464.)

         Plaintiff was discharged from therapy on September 3, 2014, because goals had been met. (R. 1401.) Records state “Patient has improved her attention, processing of information, calculations for daily math tasks, and deductive reasoning. She needs some extra time to process information and give all aspects consideration. She carries over recommended therapy tasks to home environment. She has good skills to implement carryover in daily tasks.” (R. 1402.)

         On October 13, 2014, Plaintiff was seen by Christian S. Greco, D.O., of Geisinger's Internal Medicine Department, to establish care. (R. 1496.) Dr. Greco noted that Plaintiff was “currently feeling rather well” although she said she often gets confused and “turned around” in conversations, she was unable to read several sentences at a time, was limited in her daily activities, was unable to drive due to disorientation, and unable to work due to lack of ability to focus. (Id.) Dr. Greco concluded that the headaches were likely a combination of anatomical malformations, anxiety, and chronic disease. (R. 1497.)

         In a note dated October 16, 2014, Rachael S. Truchil, M.D., of the Internal Medicine Department noted that she had performed a history and physical and discussed the case with Dr. Greco. (R. 1496.) She recorded that Plaintiff was taking clonazepam chronically for headaches as that had been the only medication helpful and she wanted to change the medication because of the downsides of chronic use of the medication. (Id.) Dr. Truchil thought the headaches sounded like chronic tension headaches which could be treatemd with low-dose nortriptyline. (Id.)

         On December 2, 2014, Plaintiff again saw Dr. Greco and reported that she had been taking the amitriptyline and was feeling much better with less frequent headaches which were less severe when they occurred. (R. 1529.) She also reported less of a “hazy” feeling. (Id.) Dr. Greco observed that Plaintiff was not as symptom focused and was less confused. (R. 1530.)

         2. Rheumatoid Arthritis and Related Impairments

         As noted above, For many years, Plaintiff treated at Geisinger Medical Center for symptoms related to a number of physical problems including arthritis. (R. 182-828.) Plaintiff specifically cites very little evidence regarding her rheumatoid arthritis and related problems. (Doc. 11 at 3.) She first points to records from Geisinger Orthopaedics Department dated November 21, 2008, which indicate that Plaintiff reported she “has rheumatoid arthritis and has had foot pain for many years. She states that the pain is refractory to conservative care and has been referred by a podiatrist.” (R. 251.) The resident and attending physicians recommended left forefoot reconstruction to which Plaintiff consented. (R. 252.) After citing this evidence, Plaintiff notes that “[d]espite the continuing issues involving rheumatoid arthritis, the Claimant continued to work.” (Doc. 11 at 3.) She also points to Orthopaedic Surgery Outpatient Notes dated December 31, 2008, indicating Plaintiff had foot reconstruction on December 18, 2008, and had been doing well with no complaints. (R. 260.) In the argument section of her brief, Plaintiff notes that she has undergone surgery for her feet and left wrist, she takes medication for her pain which adds to her cognitive issues, her rheumatoid arthritis causes limitation on the amount of time she can stand and the amount she can lift, and she continued to have treatment for the condition even after the hearing and was scheduled for follow up surgery. (Doc. 11 at 9 (citing R. 25, 26, 68, 69, 1552).)

         Defendant points to several records which allegedly show that Plaintiff's arthritis pain was controlled with Humira. (Doc. 12 at 6 (citing R. 731, 835, 1423).) At Plaintiff's April 25, 2013, visit to Geisinger Family Practice in Danville, office notes indicate the diagnoses of Rheumatoid Arthritis and Chiari 1 malformation. (R. 731.) Notes state that Plaintiff was doing well in general and she had done well with Humira for rheumatoid arthritis. (Id.) February 4, 2014, records from the Rheumatology Department note that Plaintiff's only issue was wrist pain at ulnae styloids bilaterally. (R. 834.) Plaintiff continued to take Humira for rheumatoid arthritis, she reported no medication side effects, and musculoskeletal examination showed normal range of motion with prominent ulnar styloid bilaterally. (R. 835-36.) On April 3, 2014, Plaintiff saw Joel C. Klena, M.D., at Geisinger's Orthopaedics Department complaining of bilateral wrist pain. (R. 1423.) Dr. Klena noted that Plaintiff had rheumatoid arthritis which was under good control with medication. (Id.) He noted that he discussed with Plaintiff that the bilateral ulnar instability was from her rheumatoid arthritis and he would start by treating her with injections and a lace up brace bilaterally and eventually she may need an ulnar resection if conservative treatment failed. (R. 1425.)

         At her rheumatology appointment with Thomas P. Olenginski, M.D., on October 13, 2014, he noted that surgery for Plaintiff's left wrist was planned for October 30th. (R. 1510.)

         At Plaintiff's December 2, 2014, visit with Dr. Greco, she reported that she had no issues with the October surgery except for mild limitations with the casting. (R. 1529.) Dr. Greco indicated that she would have surgery on her other wrist at some time. (Id.) He also noted that other aspects of her rheumatoid arthritis ...

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