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West v. Berryhill

United States District Court, E.D. Pennsylvania

October 27, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff, 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.


         Plaintiff 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. (Tr. 30-31).

         On 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.

         On 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.

         On June 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.


         Upon 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).

         To 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.

         As explained in the following agency regulation, each case is evaluated by the Commissioner according to a five-step process:

(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 omitted).


         Pursuant 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. 18-32).

         At step 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 medical records.

         The 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 as follows:


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. (Id.)
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.” (Id.)
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.” (Id.)
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 ...

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