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Perry v. Berryhill

United States District Court, E.D. Pennsylvania

July 19, 2017

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

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Dawn Perry, pursuant to 42 U.S.C. § 405(g), seeks judicial review of a decision by the Commissioner of Social Security denying her claim for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Perry contends the decision was erroneous because the Administrative Law Judge failed to adequately address her obesity, rejected medical opinion evidence without explanation, failed to adequately explain his credibility determination and based his decision on vocational expert testimony elicited by an improper hypothetical question. The ALJ's decision was upheld by the Appeals Council, and Magistrate Judge Lynne Sitarski subsequently recommended that Perry's request for review be denied. For the reasons below, the Court overrules Perry's objections to Magistrate Judge Sitarski's Report and Recommendation and grants judgment in favor of the Commissioner.

         I.

         Perry filed for Disability Insurance Benefits on June 15, 2012, claiming disability, effective May 20, 2011, due to osteoarthritis in both knees. (R. 51, 118, ECF No. 4.)[2] Her claim was initially denied on August 15, 2012. (R. 63-66.) On August 22, 2012, Perry requested a hearing before an Administrative Law Judge (“ALJ”), (R. 67), which was held on November 15, 2013, (R. 26-46). Perry, represented by counsel, testified at the hearing, as did an impartial vocational expert. (Id.) On March 18, 2014, the ALJ denied Perry's claim. (R. 10-25.) Perry filed a request for review with the Appeals Council on May 4, 2014. (R. 7-9.) The Council denied Perry's request on May 29, 2015, rendering the ALJ's decision the final decision of the Commissioner. (R. 1-3.) Perry filed this action on July 31, 2015, seeking judicial review of the ALJ's decision. (ECF Nos. 1 & 8.) On February 24, 2017, the magistrate judge issued a report recommending that Perry's request for review be denied. (ECF No. 14.) Perry filed her objections to the magistrate judge's recommendation on March 13, 2017. (ECF No. 15).

         II.

         The Court has reviewed the administrative record in its entirety and summarizes here the evidence relevant to Perry's request for review.

         A.

         Perry, born on February 21, 1964, was forty-seven years old on May 20, 2011, the alleged onset date of her disability. (R. 20.) She received a high school equivalency certificate and worked as a medical assistant from 1996 to 2011. (R. 20, 110.) In May 2011, Perry complained of pain, instability, stiffness, weakness and locking in her left thigh, knee and calf. (R. 17, 200.) She treated with orthopedic surgeon Andrew Frankel, M.D. on May 10 and May 13, 2011. (R. 17, 183-84, 188-93, 200-08.) Upon examination, Dr. Frankel found moderate swelling and effusion with marked tenderness in the left knee. (R. 17, 203.) He noted a history of a meniscus tear and an ACL repair to the right knee. (R. 202.) X-rays showed severe degenerative joint disease (DJD) in the right knee, no significant DJD in the left knee and mild DJD in the patellofemoral joints of both knees. (R. 203.) An MRI of the left knee showed a complex medical meniscus tear, moderate joint effusion and moderate degenerative changes of the medial femoral condyle. (R. 17, 200.) Dr. Frankel diagnosed left knee joint effusion, medial meniscus tear and DJD in the patellofemoral joint. (R. 200.) He performed a left knee arthroscopy with a partial medial meniscectomy on May 23, 2011. (R. 17, 181-82.) In a series of post-operative visits, Perry complained of uncontrolled pain. (R. 194-98.) Dr. Frankel reported nearly normalized range of motion and improved strength. (Id.) On July 24, 2012, Dr. Frankel wrote that he was unable to complete a Medical Source Statement delineating Perry's functional capacity, stating: “Unable to assess. Have not seen patient since 7/14/2011 when she left practice to see another surgeon.” (R. 156-57.)

         B.

         On September 20, 2011, orthopedic surgeon Jonathan P. Garino replaced both of Perry's knees at Paoli Hospital. (R. 28-29, 210-13, 407-08.)[3] On September 25, 2011, Perry went to the Paoli Hospital emergency room complaining of pain and swelling in both knees. (R. 209-23.) She described the pain as “dull” and of moderate severity but constant. (R. 210.) She was diagnosed with post-operative pain and swelling of both legs and discharged with instructions to elevate her legs above chest level. (R. 212, 216.) She was cleared to walk and bear weight as tolerated. (R. 212.)

         Dr. Garino referred Perry to Elizabeth Todd for physical therapy, which Perry attended semi-regularly from October 2011 to June 2012 to address mild edema, pain, decreased range of motion and decreased strength. (R. 361-97.) On October 17, 2011, Todd noted: “Pain is 3/10 at rest mostly in the left lower extremity but can increase to 6/10.” (R. 394.) On October 24, 2011, Perry told Todd that her knees continued to feel really stiff and that she was “wiped-out from her weekend.” (R. 391.) On October 27, 2011, Todd noted that Perry had fallen the day before and landed on both knees but denied any increase in pain, swelling or bruising. (Id.) On October 31, 2011, Perry reported that “she was very active over the weekend and noted increased swelling and stiffness” in her knees. (R. 392.) Todd noted that she added a weight machine into Perry's curriculum, which Perry performed successfully. Todd wrote: “Patient continues to demonstrate good range of motion and is demonstrating improved strength bilaterally.” (Id.) On November 3, 2011, Perry stated that her legs felt “normal.” (R. 389.) Todd noted that Perry “continue[d] to demonstrate slight Trendelenburg gain with ambulation but overall is improving well, able to reciprocally ascend and descend stairs.” (Id.)

         C.

         In November 2011, while on vacation at Disney World in Florida, Perry went to the emergency room complaining of swelling in her left leg. (R. 386, 388, 435.) An MRI was negative for Deep Vein Thrombosis. (R. 386, 435.) Upon returning home, she saw Dr. Garino, who told her that “she was doing too much activity.” (R. 386, 390.) One week later, Perry fell over her dog, landed on her knees and heard her “right knee pop.” (R. 224, 275-76, 386, 390.) Dr. Garino examined her, diagnosed her with a dislocated right knee and directed her to the Paoli Hospital ER for “sedation and manipulation.” (R. 224-31, 235, 275, 386, 390.) The procedure successfully popped her knee back into place and she was discharged on November 30, 2011 in “stable condition with weight bearing as tolerated.” (R. 235.)

         On December 6, 2011, Perry returned to physical therapy. She reported “significant relief” after the relocation of her right knee and an ability to “walk normally.” (R. 386.) She noted recurring swelling and stiffness and ranked her pain level as 1/10 at rest with increases up to 5/10. (Id.) In particular, she experienced “sharp pain in the right medial knee with overpressure” and “lacked eccentric control for the right knee.” (Id.) On December 13, 2011, Perry stated that “her knees felt very good after the reevaluation” and “denied any sharp pain in right knee with passive range of motion, ” demonstrating “improved range of motion.” (R. 384.)

         On December 19, 2011, however, Perry returned to Dr. Garino with severe pain in her right knee. (R. 18, 239.) He determined that she had again dislocated the knee and directed her to the ER for another relocation procedure. (R. 238-46.) After the December 19 procedure, Perry reported decreased pain-from 10/10 to 2/10. (R. 242.)

         On January 24, 2012, upon returning to physical therapy, Perry reported general laxity in her right knee and “tenderness over her left patellar tendon and her right lateral joint line.” (R. 379.) She ranked her pain as 3/10 at rest with increases to 6/10. (Id.) She noted difficulty with stairs and stated she had been limited with her walking capabilities. (Id.) Notwithstanding these limitations, Perry reported that “recently she has been helping to take care of her mother-in-law which includes prolonged standing and going up and down stairs multiple times of the day.” (Id.) On January 26, 2012, Perry reported increased pain at a level of 6/10. (R. 374.) On February 7, 2012, Perry stated that her knees were feeling better and that she was not experiencing any pain in her right knee. (R. 374-75.) On February 9, Perry stated that her right knee was bothering her and she “continues to not have time to rest at home.” (R. 373.) On February 21, she reported that her right knee was again dislocated. (R. 376.) Dr. Garino recommended a right knee revision. (R. 425-27.)

         On March 2, 2012, Perry went to the Paoli Hospital ER complaining of back pain after she “strained her lower back” while “attempting to move her mother.” (R. 249- 59.) She did not report pain in her lower extremities. (Id.) She ambulated without difficulty and exhibited normal range of motion in her extremities, which were noted as “nontender.” (R. 250.) She was released in stable condition. (Id.)

         D.

         On March 20, 2012, Perry was admitted to Paoli Hospital for an “elective revision” total right knee replacement. (R. 18, 29, 261-77.) According to hospital records, Perry had “a failed knee replacement secondary to lateral instability which she developed after falling over her dog in the early postoperative period back in November or December 2011. She has now dislocated her knee on numerous occasions and she is indicated for revision of total knee.” (R. 275.) Perry's pain was well-controlled after the procedure and she was discharged with instructions for medication and physical therapy. (R. 18, 263.) Upon discharge, Dr. Garino diagnosed failed total knee replacement, right side and status post revision knee replacement. (R. 18, 275.)

         Perry continued attending physical therapy with Todd. On April 24, 2012, Perry stated that she had been assisting her mother-in-law and her legs had been “more achy.” (R. 369.) On May 10, she reported increased pain in her left knee and pain in her back and hips. (R. 367.) On May 15, she stated that both of her knees had been really bothering her, the left in particular. (R. 367-68.) On May 17, Todd wrote: “Patient still feels that her knees are so much better. Patient notes that her mother-in-law is in the hospital so she has not been doing the heavy lifting. Patient is no longer reporting significant sensitivity to touch on the lower leg. Patient also notes that the tape has really helped the left knee.” (R. 364.) On May 29, 2012, however, Perry reported that her knees had been bothering her more lately and ranked her pain level at 9/10. (R. 364.) The same day, Todd noted that Perry “ha[d] been making fair progress” and demonstrated increased strength and range of motion. (R. 366.)

         On June 1, 2012, Todd noted that Perry was “frustrated by persistent pain” and continued to have lateral knee pain on the right with pinpoint tenderness and sharp discomfort. (R. 363.) On June 12, Todd noted that Perry “ha[d] not been very diligent about doing the exercises at home.” (R. 362.) Perry nevertheless stated that her shooting pains had ceased and that her “knees have been feeling better lately.” (R. 362.) On June 19, Perry again reported that her knees were feeling better and she was “planning on going to the shore this weekend, where she will be doing a lot more walking.” (R. 361.) Though she continued to report some pain in her right knee, she demonstrated improved gait with decreased compensations. (Id.) On June 26, 2012, Perry again stated that her knees felt great and though she felt some “tightness, ” she was “doing a lot of walking on the sand and denied any knee pain.” (Id.) Todd noted “improved range of motion and improved strength.” (Id.) Perry apparently ceased attending physical therapy at this point.[4]

         On July 20, 2012, Dr. Garino completed a Physical Capabilities Questionnaire in conjunction with Perry's claim for continued long-term disability benefits. (R. 440-45.) He found her able to work at a light exertional level defined as exerting up to twenty pounds of force occasionally, ten pounds of force frequently or a negligible amount of force constantly. He limited her to no squatting, climbing ladders or stairs, kneeling or crawling; occasional sitting, standing, walking and bending at her waist; frequent use of foot controls and driving; and no limitations on the use of her upper extremities. (R. 441.) Dr. Garino did not, however, complete a Social Security Medical Source Statement delineating Perry's functional capacity.

         E.

         Several months later, Perry consulted with another orthopedic surgeon, Gregory Deirmengian, M.D. (R. 18, 407, 424.) Dr. Deirmengian examined Perry on October 4, 2012 and described her as “well-appearing, in no acute distress.” (R. 408.) He noted her complaints of bilateral knee pain, right worse than left. (R. 18, 407.) Perry reported that her knees were “worse than before surgery, ” “sore all the time” and caused “sharp pain.” (Id.) Dr. Deirmengian's examination of her knees showed normal alignment, full extension and no instability. (Id.) Though he noted mild effusions and some joint tenderness, Dr. Deirmengian stated that he was unable to identify a mechanical issue to explain Perry's pain. (R. 18, 407-08.) He noted that x-rays of her knees showed “well-aligned and well-fixed knee replacement, the right side is a stem revision and the left side is a primary knee replacement.” (R. 408.) He wrote: “She really does not have any instability, loosening, malalignment, patellofemoral tracking, or any other mechanical issue that would explain her pain.” (R. 408.) He recommended pain management, physical therapy and a follow-up with Dr. Garino.

         On October 17, 2012, Dr. Garino examined Perry's knees and noted that both were “[n]eurovascularly intact” and exhibited “satisfactory range of motion and normal strength and tone.” (R. 18, 418-20.) He diagnosed her with stiff knee joints and referred her to pain management. (R. 18, 419-20.)

         On November 6, 2012, Perry had an initial evaluation with pain management specialist Brian Pierson, M.D. (R. 18, 485-86.) She reported that pain had returned in both knees after initially doing “extremely well” following her knee replacements. (R. 485.) She stated that climbing stairs was particularly painful. (Id.) Dr. Pierson noted Perry's long history of degenerative joint disease. He observed that her knee replacements were “mechanically doing well” and, notwithstanding a little “popping on the left, ” did not exhibit instability. (Id.) He further noted “routine postoperative appearance, ” mildly antalgic gait, full extension in both knees, tenderness in both incisions and “decreased sharp/dull discrimination bilaterally, lateral to the incisions.” (R. 486.) He diagnosed probable neuromas, [5] DJD of knees bilaterally, status post bilateral total knee arthroplasty, gastroesophageal reflux disease, obesity and well-controlled depression. (R. 18, 486.) He referred Perry to Dr. Nestor Veitia and then wrote: “Given the pain she is experiencing and lack of response to medication, I think it will be essentially impossible for [Perry] to return to work at this time.”[6] (Id.)

         On December 4, 2012, Dr. Veitia examined Perry and indicated that he would “attempt exploration of left knee scar for possible neuroma.” (R. 489, 18, 488-91, 493- 94.) In an unsigned note dated January 17, 2013, Dr. Veitia stated that Perry “will be under [his] care for surgery and follow up care, and will be able to return to work on a date which will be determined at a post-operative evaluation. Restrictions will also be determined, at that time.” (R. 495.) On March 20, 2013, Dr. Veitia performed the surgical procedure on Perry's left leg and reported “possible left leg neuroma.” (R. 18, 29, 497.) He identified some “small structures” in the mid lateral knee calf area that “may have represented small neuromas” and successfully cut and cauterized them back into the soft tissue. (Id.) In post-operative visits on April 2 and April 9, 2013, Perry reported “significant improvement” in her symptoms and that she “no longer ha[d] pain over the sensitive area” in her left knee. (R. 19, 498-501.)

         F.

         On August 5, 2013, Perry returned to Dr. Pierson complaining of knee pain.[7] (R. 18-19, 502-09.) Upon examination, Dr. Pierson noted a slow but not antalgic gait, full extension of both knees, a nicely healing incision, and “decreased sharp/dull discrimination bilaterally.” (Id.) On September 5, 2013, notwithstanding Perry's continued complaints of pain, Dr. Pierson noted normal affect, normal conversation, normal gait, healthy incisions, no effusions, no swelling and full range of motion. (R. 509.) He continued Perry on her narcotic medication and provided cortisone injections that provided “excellent initial relief.” (R. 506.) In subsequent visits, Perry reported that her knee pain returned after each injection and increased significantly. (R. 504- 09.) On October 4, 2013, Dr. Pierson stated: “The current complaints of increased symptoms a full week following the injections are very difficult for me to explain. [Perry] is looking for ...


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