United States District Court, E.D. Pennsylvania
K. CARACAPPA, UNITED STATES CHIEF MAGISTRATE JUDGE
Heather Marie West, brought this action under 42 U.S.C.
§ 405(g), seeking judicial review of the final decision
of the Commissioner of Social Security
(“Commissioner”) denying plaintiff's claims
for disability insurance benefits (“DIB”) under
Title II of the Social Security Act (“Act”) and
Supplemental Security Income (“SSI”) under Title
XVI of the Act. Presently before this court are
plaintiff's request for review, the Commissioner's
response, and plaintiff's reply. For the reasons set
forth below, plaintiff's request for review be denied.
FACTUAL AND PROCEDURAL HISTORY
was born on January 19, 1977 and was thirty-five (35) years
old on the alleged disability onset date. (Tr. 31). Plaintiff
completed high school and has past relevant work experience
as a construction worker, van driver, and security guard.
September 25, 2012, plaintiff protectively filed applications
for DIB and SSI, alleging disability beginning on August 15,
2012. (Tr. 18). The applications were denied at the state
level on November 27, 2012. Id. Plaintiff
subsequently requested a hearing before an Administrative Law
Judge (“ALJ”). Id.
April 2, 2014, ALJ Craig De Bernardis held a hearing and
heard testimony from an impartial vocational expert. (Tr.
18). The ALJ also ordered a consultative psychiatric
evaluation of the plaintiff. Id. On September 10,
2014, the ALJ held a hearing and heard testimony from the
plaintiff, who was represented by counsel. Id. Dr.
Philip Braun, a medical expert in psychology and an impartial
vocational expert were also present, but did not testify.
Id. The ALJ ordered a consultative orthopedic
examination of the plaintiff. On April 8, 2015, the ALJ held
a hearing and heard testimony from the plaintiff, Dr. Braun
and an impartial vocational expert. Id.
2, 2015, the ALJ issued an opinion finding that plaintiff was
not disabled under the Act from August 15, 2012 through the
date of the decision. (Tr. 18-32). Plaintiff filed a request
for review, which was denied by the Appeals Council on
November 17, 2016, making the ALJ's decision the final
decision of the Commissioner. (Tr. 1-5). Plaintiff appealed
that decision to this court. On August 24, 2017, the case was
referred to the undersigned magistrate judge for the entry of
a final judgment in accordance with 28 U.S.C. § 636(c)
and Fed.R.Civ.P. 73.
judicial review, this court's role is to determine
whether the ALJ's decision is supported by substantial
evidence. 42 U.S.C. § 405(g); Pierce v.
Underwood, 587 U.S. 552 (1988). “Substantial
evidence is more than a mere scintilla but may be somewhat
less than a preponderance of the evidence.”
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005). It is relevant evidence viewed objectively as adequate
to support a decision. Richardson v. Perales, 402
U.S. 389, 401 (1971). In determining whether substantial
evidence exists, the reviewing court may not weigh the
evidence or substitute its own conclusion for that of the
ALJ. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.
2002). If the court determines the ALJ's factual findings
are supported by substantial evidence, the court must accept
the findings as conclusive. Richardson, 402 U.S. at
390; Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999). It is the ALJ's responsibility to resolve
conflicts in the evidence and to determine credibility and
the relative weights to be given to the evidence.
Richardson, 402 U.S. at 401. While the Third Circuit
Court of Appeals has made it clear that the ALJ must analyze
all relevant evidence in the record and provide an
explanation for disregarding evidence, this requirement does
not mandate that the ALJ “use particular language or
adhere to a particular format in conducting his
analysis.” Jones v. Barnhart, 364 F.3d 501,
505 (3d Cir. 2004). Rather, it is meant “to ensure that
there is sufficient development of the record and explanation
of findings to permit meaningful review.” Id.
Moreover, apart from the substantial evidence inquiry, a
reviewing court must also ensure that the ALJ applied the
proper legal standards. Coria v. Heckler, 750 F.2d
245 (3d Cir. 1984).
establish a disability under the Act, a claimant must
demonstrate there is some “medically determinable basis
for an impairment that prevents him from engaging in any
‘substantial gainful activity' for a statutory
twelve-month period.” Stunkard v. Sec'y of
Health and Human Servs., 841 F.2d 57 (3d Cir. 1988)
(quotation omitted); 42 U.S.C. § 423(d)(1) (1982). The
claimant satisfies his burden by showing an inability to
return to his past relevant work. Doak v. Heckler,
790 F.2d 26, 28 (3d Cir. 1986); Rossi v. Califano,
602 F.2d 55, 57 (3d Cir. 1979). Once this showing is made,
the burden of proof shifts to the Commissioner to show the
claimant, given his age, education, and work experience, has
the ability to perform specific jobs that exist in the
economy. 20 C.F.R. § 404.1520. See Rossi, 602
F.2d at 57.
explained in the following agency regulation, each case is
evaluated by the Commissioner according to a five-step
(i) At the first step, we consider your work activity if any.
If you are doing substantial gainful activity, we will find
that you are not disabled.
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement in § 404.1509, or a combination of
impairments that is severe and meets the duration
requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an impairment(s)
that meets or equals one of our listings in appendix 1 of
this subpart and meets the duration requirement, we will find
that you are disabled.
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If
you can still do your past relevant work, we will find that
you are not disabled.
(v) At the fifth and last step, we consider our assessment of
your residual functional capacity and your age, education and
work experience to see if you can make an adjustment to other
work. If you can make an adjustment to other work, we will
find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
20 C.F.R. § 404.1520 (references to other regulations
ADMINISTRATIVE LAW JUDGE'S DECISION
to the five-step sequential evaluation process, the ALJ
determined plaintiff had not been under a “disability,
” as defined by the Act from August 15, 2012 through
June 2, 2015, the date of the ALJ's decision. (Tr.
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since August 15, 2012, the
alleged onset date. (Tr. 20). At step two, the ALJ found that
plaintiff had the following severe impairment: disorder of
the spine; affective disorder; anxiety-related disorder. In
making this determination, the ALJ relied on plaintiff's
court has reviewed the medical records and finds that the
ALJ's summary of the medical records is in depth and
inclusive of all pertinent records. The ALJ's summary is
OF THE SPINE
On April 13, 2010, the [plaintiff] alleged that she had back
pain, which “began back in 2007.” (Exhibit 23F at
35). According to the [plaintiff], the pain involved
“her hips, legs, low back and even sometimes her
neck.” (Id.) The [plaintiff] took “one
Percocet yesterday given to her by her friend….”
(Id.) The [plaintiff] “ambulates with a
non-antalgic gait.” (Exhibit 23F at 36). She had normal
muscle strength in her upper and lower extremities.
(Id.) The physician's assistant who examined the
[plaintiff] ordered a magnetic resonance imaging (hereinafter
“MRI”) study. (Id.)
An MRI of the [plaintiff's] lumbar spine performed on May
24, 2010, showed “no disc herniation.” (Exhibit
9F at 11). There was also “no central or neural
foraminal stenosis.” (Id.) “There is a
small to moderate central disc herniation at the T10-11
level, which extends inferiorly along the posterior aspect of
the upper T11 vertebral body. This abuts the ventral aspect
of the spinal cord without significant central spinal
stenosis or cord compression.” (Id.)
A pain management specialist gave the [plaintiff] injections
in her thoracic spine on October 8, 2010, and November 1,
2010. (Exhibit 23F at 27, 29, 33). The [plaintiff] said that
the injections provided “30% relief of her pain.”
(Exhibit 23F at 26). The pain management specialist also gave
the [plaintiff] Vicodin for her alleged pain. (Id.)
On November 23, 2010, the pain management specialist gave the
[plaintiff] a third epidural injection in her thoracic spine.
(Exhibit 23F at 25). He renewed the prescription of Vicodin.
The [plaintiff] returned to see the pain management
specialist on May 18, 2011. (Exhibit 23F at 23). “She
ran out of her medications a long time ago. She does continue
to work driving for Bucks County Transport, although she is
no longer in a bus. She is now in a minivan, which helps her
with her pain issues. It is a smoother drive. (Id.)
The range of motion of the [plaintiff's] lumbar spine was
“normal.” (Id.) There was no sign of
lumbar radiculopathy. (Id.) The physician's
assistant renewed the prescription of Vicodin and recommended
that the [plaintiff] undergo physical therapy. (Id.)
Dr. Sanjay Shah gave the [plaintiff] a lumbar epidural
injection on June 1, 2011, despite the fact that there was no
evidence of disorder in her lumbar spine. (Exhibit 23F at
21). “[Dr. Shah] [felt] that there [was] some
inflammation in this [lumbar] area that is contributing to
[plaintiff's] low back pain symptoms.”
On June 15, 2011, the [plaintiff] said that she had
“50% relief of her lower lumbar pain.” (Exhibit
23F at 19). In response to the [plaintiff's] complaint of
pain in her thoracic spine, Dr. Shah gave [plaintiff] another
epidural injection in that area. (Id.)
When the [plaintiff] alleged on August 4, 2011, that the
lumbar injection failed to provide her with significant
relief, Dr. Shah gave [plaintiff] “bilateral medial
branch blocks” in her lumbar spine. (Exhibit 23F at
16). On August 11, 2011, Dr. Scott E. Rosenthal gave the
[plaintiff] medial branch rhizotomies in her lumbar spine.
(Exhibit 23F at 15). “[Plaintiff] underwent her second
rhizotomy on the left low back on September 1, 2011.”
(Ehxibit 23F at 14). The [plaintiff] said it provided her
with “50% improvement of her low back pain.”
(Id.) [Plaintiff] denied “any side
effects” of her medications, which included Oxycodone
and other narcotics. (Exhibits 23F at 14, 13, 9). The range
of motion in the [plaintiff's] lumbar spine was
“almost normal.” (Exhibit 23F at 14). “She
ambulates in a non-antalgic gait.” (Exhibit 3F at 14,
9). There was no weakness in the [plaintiff's] legs.
(Exhibits 23F at 12).
The [plaintiff] continued to work as a driver on November 23,
2011. (Exhibit 23F at 11, 10). [Plaintiff's] pain
medications “cut her pain in half and [allowed] her to
function.” (Exhibit 23F at 9; 9F at 10.) She walked
without a limp. (Exhibit 23F at 9; 9F at 10).
The [plaintiff] complained of increased pain on April 18,
2012. (Exhibit 23F at 8; 9F at 9). Muscle strength in her
legs, however, was normal (Exhibit 23F at 8; 9F at 9). There
were no neurological deficits and no sign of radiculopathy.
(Exhibit 23F at 8; 9F at 9). “[Plaintiff] [continued]
on Oxycodone.” (Exhibit 23F at 8; 9F at 9). In response
to the [plaintiff's] allegation of pain, Dr. Shah gave
the [plaintiff] a lumbar steroid injection on April 24, 2012.
(Exhibit 23F at 6; 9F at 7). [The injection] enabled
[plaintiff] to continue working as a driver. (Exhibit 23F at
4, 5). [Plaintiff] was “also walking better” on
May 15, 2012. (Exhibit 23F at 4, 5; 9F at 6).
[Plaintiff's] pain lessened and the [plaintiff] had
“no side effects of medications.” (Exhibit 23F at
4, 5; 9F at 6).
Dr. Shah gave the [plaintiff] lumbar steroid injections on
July 19, 2012, and October 5, 2012. (Exhibit 23F at 3; 14F at
12; 9F at 2, 4). “It helped about 40%, but …
only lasted about one week.” (Exhibit 14F at 12; 16F at
9). The physician's assistant prescribed MS Contin for
the [plaintiff's] alleged pain. (Id.) The
[plaintiff] said that MS Contin “does seem to help
moderating her pain.” (Exhibit 14F at 11). “In
particular, [plaintiff] states the morning that [plaintiff]
takes her Oxycodone and MS Contin together she is able to
help get her children ready for school and does not
experience any side effects on the current regimen.”
On February 4, 2013, in response to the [plaintiff's]
allegation of increased pain, Dr. Rosenthal increased
“the morphine MS Contin” and continued the
prescription of Oxycodone. (Exhibit 14F at 10). The
[plaintiff] alleged that she spent most of the day in bed
because of pain. (Id.) She was “ambulating
with a cane.” (Id.)
Increased morphine “helped” the [plaintiff] with
her alleged pain, “in particular during her more active
period in the morning.” (Exhibit 14F at 9). Despite the
[plaintiff's] complaint of “heartburn” and
vomiting at night, Dr. Rosentahl continued to prescribe
Oxycodone. (Id.) Since the [plaintiff's]
insurance would not pay for MS Contin, Dr. Rosentahl
prescribed Kadian. (Id.) He advised the [plaintiff]
“to avoid eating late at night.” (Id.)
The [plaintiff] had no side effects of medications on March
18, 2013. (Exhibit 14F at 8). The [plaintiff] asked Dr. Shah
for a lumbar steroid injection, which he provided.
(Id.) On April 4, 2013, the [plaintiff] said it
“greatly improved her pain.” (Exhibit 14F at 7).
The [plaintiff] said that she “has been more active.
She believes the injection did help her to do that, and has
been trying to resume her old lifestyle. She denies side
effects [of] her medication.” (Id.) Dr. Shah
continued the [plaintiff's] medications. (Id.)
“I did encourage her to get outside and try to walk a
little as tolerated. …” (Id.)
On May 2, 2013, the [plaintiff] was “doing well.”
(Exhibit 14F at 6). “[Plaintiff] feels a little better.
She has been getting back to daily activities.”
(Id.) The [plaintiff] denied side effects of her
medication. (Id.) Dr. Patrick Fall gave the
[plaintiff] a lumbar steroid injection. (Exhibit 14F at 5).
The [plaintiff] said that this injection provided her with
“80% relief for two months.” (Exhibit 14F at 5).
The [plaintiff] continued to receive prescription of Kadian
and Oxycodone on November 4, 2013. (Exhibit 14F at 13; 35F at
21). [Plaintiff] asked for another lumbar injection on
November 27, 2013 which Dr. Shah gave her because of
“post laminectomy syndrome.” (Exhibit 14F at 4;
35F at 20). The [plaintiff] never had a laminectomy. The
[plaintiff] said that this injection gave her “70%
relief, ” which continued as of January 7, 2014, when
Dr. Shah gave her a left trochanteric bursa injection.”
(Exhibit 14F at 3; 35F at 19). He did so ...