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Shortes v. Berryhill

United States District Court, M.D. Pennsylvania

November 1, 2017

LISA BURKETT SHORTES, 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 November 18, 2013, alleging a disability onset date of September 26, 2013. (R. 18.) After she appealed the initial denial of the claim, a hearing was held on June 22, 2015, and Administrative Law Judge (“ALJ”) Gerard Langan issued his Decision on October 1, 2015, concluding that Plaintiff had not been under a disability from the alleged onset date of September 26, 2013, through December 31, 2013, the date last insured. (R. 18, 27.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on February 6, 2017. (R. 1-6, 14.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on April 6, 2017. (Doc. 1.) She asserts in her supporting brief that the ALJ erred when he failed to give controlling weight to the treating source's opinion. (Doc. 8 at 4.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly granted.

         I. Background

         Plaintiff was born on November 6, 1962, and was fifty-one years old on the date last insured. (R. 26.) She has a high school education and past relevant work as a home health aide, collection clerk, and fast food worker. (Id.)

         A. Medical Evidence[1]

         Plaintiff states that she alleged disability as of September 26, 2013, based on degenerative disc disease, herniated discs, a broken vertebrae in the thoracic spine, anxiety, and depression. (Doc. 8 at 2 (citing R. 158).) Plaintiff said she was primarily treating with Dr. James Kim prior to her her date last insured of December 31, 2013. (Id.)

         Plaintiff first saw James B. Kim, D.O., of “Dr. Kim's Rehabilitation Office, LLC” on July 23, 2013. (R. 295.) Dr. Kim recorded that Plaintiff subjectively

presented with complaints of right sided neck pains, right trapezius pains, shoulder pain and pain going down the right upper extremity causing weakness. She states that this has been going on for about the past 2-1/2 weeks.
She also complains of low back pains with pain down the right lower extremity . .. In the morning her leg feels like it's on fire. She has difficulty sleeping due to these pains. As far as . . . lumbar symptoms, she has had a history of lumbar injury from 2001 when she ended up with L3-L4-L5 HNP.

(Id.) Dr. Kim's mental status examination revealed no problems. (R. 295.) His spinal examination showed tenderness and spasms in the lumbar paraspinal musculature, tenderness and spasms in the right trapezius region, the cervical paraspinal was “not that bad, ” flexion of the lumbar spine was 70 degrees, and hyperextension was 5 degrees past neutral. (R. 295-96.) Motor examination of the upper extremities showed chest tenderness in the anterior and lateral aspect of the right shoulder, full passive range of motion in both shoulders, muscle strength 4 for the right shoulder and 5/5 for the left shoulder, and bilateral elbow flexors/extensors and bilateral grip were 5/5. (R. 296.) Motor examination of the lower extremities showed normal muscle strength and tone, and negative straight leg raising bilaterally to 70 degrees. (Id.) No problems were noted with deep tendon reflexes, sensory responses, or ambulation. (Id.) Dr. Kim's assessment included cervical myofascial pains with right upper extremity radicular symptoms, right shoulder rotator cuff tendinopathy, lumbar myofascial pains with a history of lumbar HNP and right lower extremity radicular symptoms, and depression. (Id.) His plan was to start Plaintiff on Mobic after she completed a Medrol Dosepak “due to the severity of the symptoms, ” and Neurontin for neuropathic pains. (Id.) Dr. Kim referred Plaintiff to Physical Therapy and ordered diagnostic testing of the right shoulder and spine. (R. 297.)

         At her August visit, Dr. Kim noted that physical therapy seemed to help and recorded that Plaintiff said she was getting more right trapezius pain after they had put a harness on her neck when she had the MRI. (R. 291.) Dr. Kim also noted that the MRI of the cervical spine showed multlevel disc osteophyte complex prominent at ¶ 4-C5 and C6-C7 with minimal borderline spinal stenosis, there appeared to be disc material which could represent extruded disc material but these were not acute findings, and foraminal stenosis was noted; MRI of the lumbar spine reportedly showed no spinal stenosis or foraminal stenosis but showed degenerative disc disease; and x-ray of the right shoulder was negative. (Id.) Spinal examination indicated tenderness and spasms in the lumbar paraspinal musculature, the right trapezius region, and the cervical paraspinal musculature. (R. 292.) Motor examination of the upper and lower extremities revealed no problems, and the gait analysis was also unremarkable. (R. 293.)

         On September 24, 2013, Plaintiff reported to Dr. Kim that she still got neck and back pains and she had also noticed mid to low back pains which she said started a few days before and could have been attributed to twisting the wrong way. (R. 288.) Plaintiff continued to report that physical therapy helped. (Id.) Physical examination was much the same as the previous month but Plaintiff also had tenderness and spasm in the lower thoracic region as well as the right lower ribs. (R. 289.) Plaintiff reported that she was having difficulty with her work which was in the kitchen so Dr. Kim noted that he would “hold her off work at least until next time I see her.” (R. 290.)

         On October 8, 2013, Plaintiff complained of low back and neck pain as well as pain and numbness down the right lateral thigh and mid back pains going into the right ribs which increased with turning. (R. 284.) Dr. Kim noted that x-rays of the thoracic spine reportedly showed some degenerative changes and the right rib series was negative. (Id.) Spinal examination was much the same as at previous visits but Dr. Kim newly noted “[g]uarding hyperextension.” (R. 286.) He ordered MRI of the thoracic spine. (Id.)

         At her October 22nd visit, Dr. Kim recorded that the MRI showed “a small right paracentral disc protrusion at ¶ 9-T10 but it also showed edema at the anterior/superior endplate of T9 without loss of vertebral body height and this was suspicious for endplate fracture.” (R. 280.) Physical examination findings were similar to those reported previously, but Dr. Kim additionally found tenderness in the left gluteal region. (R. 282.) Dr. Kim referred Plaintiff to orthopedist Dr. Allister Williams. (R. 283.)

         Plaintiff was seen by Anthony Blundetto, PA-C, at Mountain Valley Orthopedics for follow up on November 11, 2013. (R. 348, 498.) She rated her low back and right hip pain at 7/10 and reported five days of significant pain relief from the cortizone injection in her right hip which she received at her previous visit. (Id.) She also had a hyperextension brace for her T9 compression fracture. (Id.) Plaintiff was taking Celebrex daily, and she had been prescribed a lidoderm patch for her right hip pain. (Id.) Plaintiff reported numbness and tingling at the right ring and little fingers. (Id.) Examination included findings of 5/5 muscle strength in the upper and lower extremities, intact sensation to light touch, negative straight leg raise bilaterally, and moderate tenderness in the right hip trochanter. (R. 499.) The diagnosis was T9 compression fracture, right hip greater trochanter bursitis, and right hand paresthesias. (Id.) Mr. Blundetto noted that he discussed the pathophysiology with Plaintiff and she wished to hold off on further management/intervention regarding her hand, she would continue using the brace, and she would follow up with Dr. Williams. (Id.)

         On November 26, 2013, Dr. Kim noted that Plaintiff was using a hyperextension back brace which she would be using for six weeks and then have a lighter one for another six weeks. (R. 276.) Plaintiff said she still got pain down her legs which started in her back although she had been given a trochanteric bursa injection on the right. (Id.) Plaintiff said she also got right-sided rib pain, and she complained of headaches and depression. (Id.) Examination was much the same as previously assessed with an additional notation that the back brace fit well. (R. 278.) Dr. Kim noted that Plaintiff would continue with the use of back support and he planned to order a bone density scan to check for osteoporosis in light of her compresson fracture. (Id.)

         On December 24, 2013, Plaintiff complained to Dr. Kim of low and mid back pain, neck pain, and right posterior thigh pain. (R. 368.) Dr. Kim noted that Plaintiff was being followed by Dr. Williams for spinal surgery and her brace had been changed, a Flector patch had been added to her medications, and she would be seeing neurology and clinical psychology for depression and headaches in the new year. (Id.) He also noted that Plaintiff had recently slipped on the ice but had not fallen. (Id.) Physical examination was much the same as previously assessed. (R. 370.) Dr. Kim advised Plaintiff to continue using the back brace and medications, and he stressed the importance of regular exercise. (Id.)

         On January 29, 2014, Plaintiff returned to Dr. Kim for a follow up visit at which time he noted that Plaintiff had a fall on January 7, 2014, and she saw Dr. Williams on January 13, 2014. (R. 364.) Dr. Kim further noted that Plaintiff was to continue the back support/brace into the middle of February and then stop and Dr. Williams had advised that Plaintiff use a cane for safety which she had been doing. (Id.) Physical examination remained basically the same. (R. 366.)

         July 17, 2014, records from Mountain Valley Orthopedics report that Plaintiff had a history of low back and right lower extremity pain which had been progressively worsening over the previous several months. (R. 344.) Plaintiff said she had tried physical therapy and behavior modification without relief of her symptoms, and she wanted to proceed with surgery. (Id.) The surgery, “TLIF L4-L5, " was scheduled for July 29, 2014. (Id.) At the time Plaintiff's gait was mildly antalgic and she was using a cane. (R. 346.) Plaintiff's strength was 5 out of 5, she had positive tenderness to palpation over the facet joints bilaterally at ¶ 4-L5 and L5-S1 levels, she had pain in that region with hyperextension, and she had tenderdness to palpation at the greater trochanteric bursa of both hips. (Id.)

         B. ...


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