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Higbie v. Berryhill

United States District Court, M.D. Pennsylvania

March 7, 2018

NANCY A. BERRYHILL[1] Acting Commissioner of Social Security Defendant.

          Conner Chief Judge.


          Martin C. Carlson United States Magistrate Judge.

         I. Introduction and Litigation History

         One critical function for a Social Security Administrative Law Judge (ALJ) is assessing the credibility of a plaintiff's claims of disabling pain. The ALJ performs this function guided by a series of legal tenets. These guideposts provide that:

Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir.2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling (“SSR”) 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir.1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. SSR 96-7p. In determining a claimant's credibility regarding the severity of symptoms, the ALJ must consider the following factors in totality: (1) the extent of daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication; (5) treatment other than medication for the symptoms; (6) measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or other symptoms. SSR 96-7p; 20 C.F.R. §§ 404.1529, 416.929; accord Canales v. Barnhart, 308 F.Supp.2d 523, 527 (E.D.Pa.2004).

McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015)(footnotes omitted).

         Stephanie R. Higbie's (“Higbie”) appeal is centered on this recurring question of claimant credibility. The pivotal issue in this appeal is whether the ALJ who denied Higbie social security benefits erred in determining her credibility with regard to the severity of the symptoms due to a chiari malformation, a structural defect in the part of the brain called the cerebellum. (Doc. 21 p. 8.) The plaintiff reported that this pressure has caused her to suffer from frequent recurring headaches that interfered with her daily life. (Doc. 21 p. 8.)

         Higbie protectively filed for Supplemental Security Income under Title XVI of the Social Security Act on September 14, 2013, alleging that her onset date of disability was April 27, 2008. (Tr. 15.) Higbie's claim was denied on October 2, 2013. (Tr. 15.) Subsequently, she filed a request for an Administrative Law hearing, which was held on March 25, 2015 in Wilkes Barre, Pennsylvania. (Tr. 15.) Higbie appeared and testified at this hearing, and following this hearing the ALJ issued a decision dated May 11, 2015 finding that Higbie was not disabled within the meaning of the Social Security Act. (Tr. 15, 24.) In response to this unfavorable decision, Higbie filed a request for review with the Appeals Council, which was denied on January 6, 2017. (Tr. 2-4.) Higbie now appeals to the U.S. District Court of the Middle District of Pennsylvania to review the ALJ's decision denying her benefits. (Doc. 1.)

         Both parties have briefed this case, and it is ripe for resolution. Given the deferential standard of review that applies to Social Security Appeals, which calls upon us to simply determine whether substantial evidence supports the ALJ's findings, we conclude that the ALJ's credibility determination in Higbie's case and the decision that Higbie was not disabled which flowed from that credibility determination are supported by substantial evidence. Therefore, for the reasons set forth below, we recommend that the district court affirm the decision of the Commissioner in this case.

         II. Factual Background

         Ms. Higbie is a married mother of three with a GED and no prior work history. When Higbie applied for disability benefits in 2013, she listed chronic migraines and back and leg pain as severe conditions that limit her ability to work. (Tr. 124.) These chronic migraines are the result of a chiari malformation (a structural defect in the part of the brain called the cerebellum)[2] from which Higbie suffers. Higbie underwent a decompression surgery to treat her chiari malformation in September 2008, which initially gave her some relief from her headaches. (Tr. 18.) She reported, however, that approximately one month after surgery her headaches returned. (Tr. 18.) despite her subjective complaints, physical examinations conducted of Higbie at this time disclosed that she was neurologically intact, and revealed that there was “bilateral greater occipital nerve (GON)/facet tenderness, but no other abnormalities.” (Tr. 18.)

         Higbie was also involved in a motor vehicle accident on February 5, 2009. (Tr. 18; 292.) As a result of this accident, she suffered from lower back pain, and she also reported to her treating neurosurgeon, Dr. Brett Schlifka (“Dr. Schlifka”), that she was experiencing more pain in her head and neck. (Tr. 292.) Higbie had MRIs of her brain taken in November 2010, February 2012, and March 2013 that all showed she had “stable post-operative changes” in the cerebellum region of her skull and no abnormalities detected. (Tr. 18.) In search of relief from her pain, Ms. Higbie saw a pain management specialist, Dr. Matthew Kline (“Dr. Kline”), for nerve root injections in January, March, April, and May of 2011. (Tr. 19.) Despite Higbie's consistent complaints about headaches, various examinations from October 2013 to March 2015 showed that Higbie had no neurological deficits or intracranial abnormalities, except for a finding of significant GON tenderness, . (Tr. 19-20.) Thus, for the most part, Higbie's medical records revealed no abnormal findings and concluded that Higbie was neurologically intact. (Tr. 18-20.) In addition to these largely unremarkable treatment notations, the medical records contained two medical opinions that made determinations about her work capabilities. (Tr. 76-78, 793.)

         The first medical opinion was from a state agency psychological consultant, Dr. Louis Tedesco, (“Dr. Tedesco”) who reviewed Higbie's treatment records and opined in October 2013 that Higbie was not disabled and could do light exertional work. (Tr. 76-78.) The second opinion was from Higbie's treating neurologist, Dr. Todd Rozen (“Dr.Rozen”), who stated on a Pennsylvania Department of Public Welfare form in October 2014 that Higbie was permanently disabled. (Tr. 793.) Though Dr. Rozen was Higbie's treating neurologist, because Higbie did not have health insurance the treatment provided by Dr. Rozen leading up to the date of that opinion was very sporadic in nature. (Tr. 22.) The last time Dr. Rozen had seen Ms. Higbie before he filled out this welfare form was one year earlier, October 4, 2013. (Tr. 450.) Thus, at the time that Dr. Rozen completed this disability form, it had been a little over a year since he had seen her, and no mention of disability had ever been made in any of his progress notes concerning Higbie's care. The next documented appointment that Higbie had with Dr. Rozen after her October 4, 2013 appointment was not until March 11, 2015. (Tr. 705.)

         In consideration of the foregoing medical history and evidence, the ALJ denied Higbie's disability claim. (Tr. 24.) Although the ALJ concluded that Higbie is not disabled, the ALJ found that she suffered from the following severe impairments: (1) headaches/migraines and (2) status-post Arnold-Chiari malformation and decompression. (Tr. 17.) The ALJ ‘s decision then detailed Higbie's reported pain due to chronic headaches, (Tr. 20-1), but “[a]fter careful consideration of the evidence, . . . f[ound] that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms [was] not entirely credible.” (Tr. 21-22.)

         In reaching this conclusion regarding the credibility of Higbie's claims of disabling pain, the ALJ examined Higbie's subjective complaints in light of all of the evidence. On this score, the ALJ noted that Higbie's treatment history was episodic and sporadic. (Tr. 22.) While acknowledging that this sporadic treatment was due, in part, to Higbie's lack of insurance, (Id.), the ALJ went on to observe that there were no indications of emergency treatment during this period, and when Higbie sought treatment for her headaches the results of her “examinations were fairly benign and thus the severity of her headaches were subjective.” (Id.) The ALJ also found that the state agency expert, Dr. Tedesco, had reviewed Higbie's medical records and found that she was capable of performing a limited range of light exertional work. (Id.) Ultimately, the ALJ found this opinion, which was consistent with Higbie's treatment history and medical records, was entitled to greater weight that the October 2014 statement by Higbie's treating physician, Dr. Rozen, which concluded that Higbie was wholly disabled. Having made these findings, the ALJ determined that Higbie “has the residual functional capacity to perform light work” but she cannot climb ladders, ropes, or scaffolding. (Tr. 18.) However, the ALJ limited Higbie to simple, routine tasks and determined that Higbie “must avoid concentrated exposure to vibrations and hazards including moving machinery and unprotected heights, ” and excessive noise. (Tr. 18.)

         In this appeal, Higbie challenges the ALJ's decision on two closely-related grounds. First, she argues that the ALJ's finding concerning Higbie's credibility is not based on substantial evidence. (Doc. 21 p. 11.) Second, she contends that the ALJ's finding regarding her credibility is not based on the correct legal standard since the ALJ did not give sufficient weight to Higbie's subjective complaints of pain. (Doc. 21 p. 12.) The parties have fully briefed these issues, and this case is ripe for resolution. Because Higbie's credibility arguments are closely intertwined we will address them collectively in this Report and Recommendation, rather than segmenting these arguments. Acknowledging, as we must, that these ...

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