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Smith v. Colvin

United States District Court, M.D. Pennsylvania

December 28, 2017

KENDRA SMITH, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          Martin C. Carlson United States Magistrate Judge

         I. Introduction

         In this Social Security appeal we most assuredly do not write upon a blank slate. Quite the contrary, this is Kendra Smith's second application for Social security benefits. On September 15, 2009, the plaintiff protectively filed applications for SSI payments and Childhood Disability Insurance Benefits alleging a disability onset of June 3, 2005 after she was injured in an automobile accident (“First Applications”). These initial 2009 applications were denied on February 19, 2010 and there is nothing in the administrative record to suggest that Smith further pursued the denial of these initial applications.

         Instead, on July 29, 2010, Smith filed a second application for SSI benefits, which alleged an initial onset of disability in August of 2009. This second application is now before the court, has been the subject of extensive administrative agency proceedings over the past eight years, and has been the subject of one prior appeal to the United States District Court, an appeal which resulted in a remand of this case in July of 2014 for further proceedings. Stine v. Colvin, Civil No. 3:13-CV-884. (Doc. 25.)

         It is this protracted appeals process that now sets the stage for the current litigation. In the instant appeal we are now called upon to assess one important aspect of this protracted decision making process, and evaluate the weight which an Administrative Law Judge (“ALJ”) placed upon a December 2009 evaluation by a non-treating, non-examining state agency expert's report in December of 2015 when the ALJ denied Smith's disability benefit application following this court's 2014 ruling remanding this case for further consideration. In its December 2015 decision, the ALJ “generally assign[ed] significant weight to this opinion, ” (Tr. 1018), a judgment which we find to be problematic on numerous scores.

         First, this judgment gave significant weight to a non-treating, and non-examining opinion which was rendered by a state agency physician in connection with Smith's first application, and afforded that opinion significant weight in adjudicating a second, and different application. Second, while affording significant weight to this temporally remote non-examining and non-treating source opinion, the ALJ rejected a more recent and contemporaneous treating source opinion which found that Smith was wholly disabled. Third, the ALJ's reliance on this December 2009 non-treating and non-examining source opinion failed to sufficiently take into account a host of medical complications experienced by Smith after this opinion was first issued, including spinal fusion surgery, and extensive chronic pain treatments spanning from 2010 through 2015. Fourth, the rationale for the ALJ's decision to afford this temporally remote opinion significant weight-the ALJ's conclusion that this 2009 opinion was consistent with the longitudinal medical records from 2009 through 2015-was not fully supported by this medical record, which contains substantial evidence documenting on-going and significant chronic pain experienced by Smith. Fifth, and perhaps most troubling, we are constrained to observe that the ALJ's reliance on this temporally remote non-treating and non-examining opinion increased over time without an adequate explanation for how that opinion gained greater credence as it became more remote in time from Smith's actual medical condition. Specifically, when the ALJ first considered this particular opinion in the initial decision denying benefits to Smith in April of 2012, the ALJ gave this 2009 opinion little weight observing that “this opinion overstates the claimant's limitations.” (Tr. 1081.) Three years later in December of 2015, when the ALJ considered the same medical opinion following the remand of the case to the Commissioner for further proceedings, the ALJ now “generally assign[ed] significant weight to this opinion, ” (Tr. 1018), without an adequate explanation of how this opinion had gained greater credence over time.

         Taking all of these factors into consideration, we find that we lack sufficient confidence in this assessment of the medical opinion evidence to conclude that the ALJ's evaluation of this medical opinion proof is supported by substantial evidence in the record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3). Therefore, for the reasons set forth below, that decision will be vacated and remanded for further proceedings consistent with this opinion and order.

         II. Statement of Facts and of the Case

         This is Kendra Smith's second application for Social Security benefits. On September 15, 2009, the plaintiff protectively filed applications for SSI payments and Childhood Disability Insurance Benefits alleging a disability onset of June 3, 2005 after she was injured in an automobile accident (“First Application”). In connection with this initial application, a state agency physician, a non-treating and non-examining source, reviewed the medical records available to this physician in December of 2009 and opined that Smith suffered from severe back impairments, but retained the capacity to perform some limited sedentary work. (Tr. 705-711.)

         In the six years which followed this December 2009 assessment by the state agency physician there were a host of intervening legal, medical and factual developments that affected Smith's disability claim, none of which were, or could have been, considered by the state agency physician when she issued this initial guarded opinion in December of 2009. For example, in January 2010, Smith complained of incapacitating back pain. (Tr. 832.) Diagnostic studies showed disc space narrowing with focal degeneration, but no nerve root compression. (Id.) Two months later, on March 4, 2010, Smith underwent a spinal fusion surgery. (Tr. 764.) This surgery did not, however, alleviate Smith's complaints of chronic back pain. Quite the contrary, in April and May of 2010, Smith reported that her pain had not improved following surgery. (Tr. 806, 812.)

         This chronic back pain led Smith to submit a second application for SSI benefits on July 29, 2010. This application is the claim that is now at issue in this case. Smith's July 2010 application alleged an onset of disability beginning in August of 2009 based upon a series of medical conditions which had been the subject of intensive treatment in 2010, including degenerative disc disease, chronic pain, lumbar radiculopathy, fibromyalgia, depression and anxiety. (Tr. 1009.) Thus, on its face, Smith's second disability application embraced only a brief period of time encompassed by her prior application and a narrow window of time examined by the state agency non-treating and non-examining source's December 2009 opinion. However, this claim also extended far beyond the very limited time frame considered by the state agency physician in December of 2009, and encompassed extensive treatment, including spinal fusion surgery, that Smith received after this December 2009 opinion was issued by the state agency physician.

         As Smith pursued this second disability claim, she also continued to undergo extensive medical care and treatment for chronic back pain. Thus, while Smith's surgeon reported some improvement in her condition in June and August of 2010, (Tr. 810-11), she reported that she was feeling “extremely frustrated and depressed” with continued “excruciating radicular pain” when Smith was seen by her primary care physician/internal medicine specialist, Dr. Abroo Nawaz, in September 2010. Dr. Nawaz diagnosed Smith as suffering from lumbar degenerative disc disease, fibromyalgia, and depression with anxiety. The doctor adjusted Smith's medications and suggested she continue aqua therapy. When her condition had not improved, in October 2010, Dr. Nawaz again adjusted Smith's medications and referred her to Hershey Medical Center (“HMC”) for a second opinion regarding her back symptoms. (Tr. 915-922.) By October 2010, Smith was being seen at HMC for an evaluation of her chronic back pain. (Tr. 893). The clinical results of this evaluation were mixed. Smith was able to stand and walk on her heels and toes without difficulty, and she displayed a normal heel-to-toe gait. (Tr. 894.) However, she claimed that she needed to use a cane for ambulation at home; she had a positive straight leg raise test on the right side, but negative on the left; she had full strength in her lower extremities, and full sensation in her left leg, but diminished sensation in the lateral aspect of her right upper and lower leg; and she displayed poor limited range of motion in all planes. (Tr. 894.)

         A second post-operative consult in December of 2010 at HMC for Smith's chronic back pain yielded similar mixed results. At that time, Smith continued to complain of unrelieved pain following her surgery. (Tr. 888.) On examination, Smith had no deficits in neurological function, but displayed an antalgic gait. (Tr. 889.) Despite her limp, Smith was able to walk on her heels and toes. (Tr. 889.) She displayed normal strength, but had “ratchety giveaway strength” with right ankle dorsiflexion. (Tr. 889.) Straight leg raise testing was positive in the supine position, but she was negative in the seated position. (Tr. 889.)

         Based upon this medical record, which contained significant new information beyond that which was available to the state agency physician in December of 2009, Smith's primary care physician, Abroo Nawaz, M.D., completed a functional capacity assessment on February 8, 2011, in which he found that Smith was not capable of performing even limited part-time work. In particular, Dr. Nawaz concluded that Smith could only occasionally lift and/or carry up to ten pounds; (Tr. 897), could stand or walk for less than two hours in an eight-hour workday, and sit for less than two hours in an eight-hour workday due to pain; (Tr. 897-98), would be limited in her ability to push or pull with her lower extremities; and could never climb, balance, crawl, or twist, and could occasionally stoop, kneel, crouch, and bend. (Tr. 898-99.) Dr. Nawaz recounted that Smith was in constant pain, would likely be absent from work more than three times per month, and found that she was incapable of performing even part-time sedentary work due to her chronic back pain. (Tr. 901.)

         It was against this medical background that the ALJ conducted an initial hearing into Smith's claim on December 5, 2011, (Tr. 33-69), and issued the first decision denying that claim on April 12, 2012. (Tr. 1072-83.) This April 2012 decision addressed the state agency physician's December 2009 medical opinion which now lies at the heart of this appeal in a summary and dismissive fashion largely discounting that opinion and observing that “this opinion overstates the claimant's limitations.” (Tr. 1081.) Smith appealed this ruling, and in July of 2014 the district court ordered this case remanded to the Commissioner for further proceedings in light of the ALJ's failure at Step 2 of the analytical paradigm that applies to Social Security appeals to acknowledge that a well-documented medical condition experienced by Smith, lumbar radiculopathy, was a medically determinable severe impairment. Stine v. Colvin, Civil No.3:13-CV-884. (Doc. 25.)

         On remand, the ALJ received additional medical records which confirmed that Smith continued to seek treatment for chronic back pain, while providing mixed information regarding the severity of that pain. Thus, Smith's medical history indicated that she saw Dr. Brian Steinmetz one time, on December 31, 2014, for her low back pain, radiculopathy and numbness. Upon examination Dr. Steinmetz diagnosed Smith with low back pain and neuritis or radiculitis, and recommended a lumbar epidural steroid injection as treatment for this back pain. (Tr. 1408-1411.) Two months later, in February of 2015, Smith began treating with Dr. Kochumol Thomas. During his initial examination, Dr. Thomas found that Smith was still experiencing tenderness and moderate pain with lumbar spine motion. Consequently, he referred Smith to the pain clinic for treatment of her back-related symptoms. (Tr. 1461-1467.) On April 14, 2015, Smith saw pain management specialist, Dr. Amanpreet Sandhu, who diagnosed her with lumbar spondylosis, degenerative disc disease, and radiculopathy. Dr. Sandhu subsequently performed bilateral lumbar facet steroid injections to alleviate this pain. On July 7, 2015, Dr. Sandhu also administered bilateral lumbar medial branch blocks to Smith's spine along with a caudal epidural steroid injection. On July 14, 2015, Dr. Sandhu diagnosed Smith with lumbar spondylosis without myelopathy; intervertebral disc displacement of the lumbar spine; and post-laminectomy syndrome. (Tr. 1429-1432.)

         It was against the backdrop of this medical record that the ALJ conducted a second hearing concerning Smith's disability application on September 16, 2015. (Tr. 1031-71.) At this hearing Smith and a vocational expert both appeared and testified. (Id.) Following this hearing, on December 22, 2015, the ALJ issued a second decision denying this disability application. (Tr. 1003-21.) In this adverse decision, the ALJ acknowledged that Smith had an extensive medical history relating to her chronic back pain, much of which post-dated the December 2009 medical opinion issued by the state agency physician. (Tr. 1015-19.) During this lengthy treatment, the ALJ found that Smith “was observed to ambulate with an antalgic gait, walk with an extreme limp, have a forward flexed stance and walk extremely slowly with a slight limp from a waiting room to an examination room, and to guard her back as she gets up and down.” (Tr. 1015-16.) The ALJ also documented a protracted treatment history for this chronic back pain, much of which took place after the December 2009 state agency physician opinion, and concluded that this course of treatment involved multiple treatment modalities including: “the utilization of prescribed pain medication, the use of heat, ice, a TENS unit, and topical ointment, . . . a history of physical therapy treatment, median nerve branch injections, epidural steroid injections, a rhizotomy procedure, and lumbar spine surgery.” (Tr. 1016.) Furthermore, the ALJ found that the only treating source opinion describing Smith's condition and limitations during the course of this on-going therapy, Dr. Nawaz's 2011 medical source statement, concluded that Smith “is limited to substantially less than the full range of work at the sedentary exertional level and is not capable of working.” (Tr. 1018.)

         Notwithstanding this body of evidence, the ALJ denied Smith's application for benefits, finding that she was capable of performing a full range of sedentary work. (Tr. 1013.) In reaching this conclusion the ALJ gave limited weight to the treating source opinion of Dr. Nawaz. (Tr. 1018.) Instead, the ALJ conferred greater weight upon an opinion which the ALJ had discounted in 2012, the December 2009 state agency doctor's opinion, and “generally assign[ed] significant weight to th[e] [December 2009 state agency doctor's] opinion because it [wa]s consistent with the claimant's medical records on a longitudinal basis, including the lack of persistently documented abnormal clinical examination findings . . . .” (Tr. 1018.) The ALJ's decision assigning significant weight to this December 2009 state agency opinion did not explain how that medical opinion had gained greater credence and weight in 2015 than it enjoyed in 2012 when the ALJ discounted this opinion, finding that “this opinion overstates the claimant's limitations.” (Tr. 1081.) Moreover, this decision did not reconcile the ALJ's conclusion that this 2009 medical opinion was “consistent with the claimant's medical records on a longitudinal basis, including the lack of persistently documented abnormal clinical examination findings, ” (Tr. 1018), with the ALJ's findings that Smith “was observed to ambulate with an antalgic gait, walk with an extreme limp, have a forward flexed stance and walk extremely slowly with a slight limp from a waiting room to an examination room, and to guard her back ...


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