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Kiefel v. Berryhill

United States District Court, M.D. Pennsylvania

April 3, 2018

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



         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 (“Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Act. (Doc. 1.) Plaintiff protectively filed applications on December 21, 2011, alleging disability beginning on December 1, 2011. (Doc. 9 at 1.) After he appealed the initial February 29, 2012, denial of the claims, a hearing was held on December 13, 2012, and Administrative Law Judge (“ALJ”) Therese Hardiman issued her Decision on March 20, 2013, concluding that Plaintiff had not been under a disability during the relevant time period. (Id. at 2.) Plaintiff requested review of the ALJ's decision which the Appeals Council granted and subsequently remanded the matter to the ALJ for further consideration. (Id.; R. 29.)

         Upon remand, ALJ Hardiman considered additional evidence and held another hearing on April 2, 2015. (R. 29.) She issued her decision on November 3, 2015, in which she concluded that Plaintiff had not been under a disability within the meaning of the Act from December 1, 2011, through the date of the decision. (R. 49.) Plaintiff sought review of the decision which the Appeals Council denied on March 6, 2017. (R. 1-6, 23-25.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on August 3, 2017. (Doc. 1.) He asserts in his supporting brief that the Acting Commissioner's determination is error for the following reasons: 1) the ALJ did not comply with the Appeals Council's order directing her to obtain evidence from a medical expert; and 2) the ALJ's conclusion that Plaintiff had no severe impairment or combination of impairments is not supported by substantial evidence. (Doc. 9 at 24.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly granted.

         I. Background

         Plaintiff was twenty-seven years old on the alleged onset date of December 1, 2011. (Doc. 9 at 3.) He has a high school education and completed one year of community college. (Id.) At the time of his second hearing he was working at McDonald's approximately fourteen hours per week on three to four-hour shifts. (Id.) He also has past work experience as a painter/helper/prep person at an auto body shop. (Id. at 3-4.) Plaintiff alleges that his inability to work is limited by ankylosing spondylytis, scoliosis, Chrohn's disease, an inability to sleep/stand/sit/bend/squat/turn at the waist, and severe stiffness in his joints and ankles. (R. 264.)

         A. Medical Evidence

         Plaintiff's claimed errors relate to specific evidence of record related to certain physical impairments. The Court's review will focus on the relevant evidence relied upon by the parties and the ALJ.

         By way of history, Plaintiff was diagnosed with Crohn's disease with inflammatory bowel disease in 1996. (R. 332, 583.) He was diagnosed with ankylosing spondylitis in 2002. (R. 583.)

         In the year before his alleged onset date of December 1, 2011, Plaintiff was seen several times by rheumatologist, James W. Ross, M.D. At his initial visit on March 2, 2011, Dr. Ross noted Plaintiff was being seen regarding his previous diagnosis of spondyloarthopathy with Crohn's disease with worsening back pain. (R. 408.) He recorded that Plaintiff had been hospitalized two months earlier for severe pain and flaring of Crohn's disease with bloody stools. (Id.) He also recorded that Plaintiff was on Humira which had improved his pain at one time but he reported worsening pain predominantly in the back lumbar area, sacroiliac and groin area with symptoms worse in the morning and with prolonged sitting. (Id.) Joint exam showed abnormal movement in the lumbar spine with Schober's test measuring 4 cm, chest expansion of 5 cm, finger to floor distance of 27 c., and head to wall distance of 0 cm. (R. 409.) Dr. Ross also found that Plaintiff had mild thoracic and lumbar scoliosis and significant paralumbar muscle spasm. (Id.) Dr. Ross listed the following problems: spondyloarthropathy with sacroiliitis; Crohn's diease with Crohn's causing inflammatory bowel disease; spondyloarthropathy; severe low back pain unclear whether inflammatory or mechanical; and chronic medication use with Humira. (Id.) Dr. Ross noted that “[o]verall it sounds suspicious that Jonathan has inflammatory back symptoms that are persisting and appears to have lost effectiveness of Humira for his spine control. Still there may be some mechanical issues contributing to back symptoms also.” (R. 410.) He recommended additional studies including a bone scan to assess the back to determine if there were signs of inflammation. (Id.) Dr. Ross added that overall, there were “very limited options in regards to having inflammatory bowel disease and spondyloarthropathy.” (Id.) He further noted that muscle spasm appeared to be contributing to Plaintiff's symptoms. (Id.) Dr. Ross doubted that an MRI would be useful but he had reviewed x-rays done in September 2010 and March 2011 which showed that Plaintiff had sacroiliitis on the left joint more than the right with some space loss and sclerosis, and “no findings of fusion in the lumbar spine or syndesmophyte, so he does not have classic findings of ankylosing spondylitis at this time. Also hip x-rays show only mild inferior space loss in both hips and discuss with him that at this point there is no findings [sic] that indicate need for hip replacement.” (Id.)

         At a follow-up visit on April 7, 2011, Dr. Ross noted that Plaintiff had again been hospitalized two weeks earlier due to severe back pain. (R. 413.) He added that Plaintiff had seen pain management and been given a fentanyl patch and prednisone with improved pain symptoms though he continued to report groin, sacroiliac and hip discomfort with activity. (Id.) Dr Ross stated that Plaintiff had “chronic loss of motion in the spine.” (Id.) He reviewed the bone scan done on March 10, 2011, which was read as abnormal uptake, left side aspect at ¶ 5 which Dr. Ross found consistent with degenerative changes. (Id.) Physical examination showed tenderness in the lower thoracic area, slight pain on range of motion, the presence of scoliosis, tenderness along the outer aspect of the iliac area bilaterally, good range of motion of the hips, and no peripheral synovitis. (R. 413-14.) His Impression included the notation that Plaintiff “does have previous damage in his SI joints consistent with spondyloarthropathy” but the current cause of his back pain was unclear since the recent bone scan did not show significant uptake in the back” but it was “still possible that some of the symptoms are inflammatory.” (R. 414.)

         Notes from the October 6, 2011, appointment indicate that Plaintiff was seen for follow-up concerning his history of sacroiliitis with Crohn's disease and spondyloarthropathy in addition to chronic back pain unrelated to inflammatory process. (R. 500.) Dr. Ross recorded that Plaintiff continued to report daily pain present throughout the day and the Crohn's disease was under control with Humira. (Id.) He noted that Plaintiff continued on a fentanyl patch and Percocet from his primary care doctor for pain management although he reported missing work and school because of back discomfort. (Id.) Musculoskeletal examination showed pain with range of motion of the lumbar spine, some crepitus of the cervical spine, and back pain with range of motion of the hips. (Id.) Dr. Ross listed Plaintiff's problems as low back pain, history of inflammatory bowel disease, spondyloarthropathy that did not appear active, chronic medication use, depression/anxiety, and vitamin D deficiency. (R. 501.) In the Impression and Plan portion of the record, Dr. Ross noted that Plaintiff “does have chronic back pain that does not appear to be related to the current inflammatory process. Other than pain management with analgesics and physical therapy, I do not have any suggestions.” (Id.)

         In November 2011, Plaintiff was seen by orthopaedic surgeon Michael C. Racklewicz, M.D., on referral of his primary care doctor, Janusz Wolanin, M.D. (R. 425.) Dr. Racklewicz noted that Plaintiff was seen for back pain and pain going down into his hips, he had been treated by Dr. Ross for the ankylosing spondylitis for years, and he was on fentanyl patches, Humira, Percocet, and Zoloft. (Id.) Examination showed internal rotation of both hips at 20 degrees and external rotation of 40 degrees with pain more than that with the remainder of exam findings basically normal except for some tenderness to palpation of the spine. (Id.) AP of the pelvis showed some minimal sclerosis of the superior margin of both hips which Dr. Racklewicz described as more than he expected in a twenty-seven year old but not enough to warrant a total joint replacement. (Id.) He recommended that Plaintiff return to his rheumatologist. (Id.)

         On January 3, 2012, Plaintiff saw Dr. Wolanin for medication refills for chronic pain. (R. 581.) Dr. Wolanin recorded normal physical examination findings.[1] (R. 582.)

         Plaintiff was seen at the Geisinger Wyoming Valley Emergency Department on January 31, 2012, for evaluation of low back pain. (R. 576.) He reported that he had lost his fentanyl patch the night before, it was the second time it happened with that prescription, and he was told his doctor and rheumatologist would not refill it when he called the pharmacy. (Id.) Physical examination was normal except for tenderness in the lower lumbar area. (R. 577.) Plaintiff was given hydromorphone and instructed to discuss the problem of the fentanyl patches falling off with his treating providers if it continued to happen. (R. 578.) The ED diagnosis was acute exacerbation of chronic back pain and medication loss. (Id.)

         In March 2012, Dr. Wolanin noted that Plaintiff complained of increased pain over the preceding week and he found sacroiliac joint tenderness bilaterally. (R. 571.) In April 2012, Plaintiff again complained of increasing back and hip pain but examination findings were normal. (R. 569.)

         Plaintiff was again seen at the Geisinger Wyoming Valley Emergency Department on April 24, 2012, for back pain beginning two days earlier and abdominal pain on the day of the ED visit. (R. 522.) Physical examination showed severe tenderness to palpation of the entire abdomen and severe tenderness to light palpation of the thoracic, lumbar and sacral spine. (R. 524.) Plaintiff was given dilaudid and appeared well at the time of discharge. (Id.)

         The MRI done on May 8, 2012, because of low back pain and bilateral leg pain showed levoscoliosis and minimal posterior disc bulge at ¶ 5-S1. (R. 561.)

         Plaintiff saw Dr. Ross, his treating rheumatologist, on August 15, 2012, for follow up of his sacroiliitis with Crohn's disease. (R. 548.) Dr. Ross noted continued chronic pain with some partial improvement on Humira and Crohn's partially improved with Humira as well as some days with increased back pain if he had diarrhea. (Id.) He also noted that Plaintiff continued with oxycodone from his other physicians and he was on morphine for back pain. (Id.) On examination, Dr. Ross found decreased flexion of the lumbar spine and tenderness in the sacroiliac area. (Id.) He listed Plaintiff's problems to be spondyloarthropathy, Crohn's disease with inflammatory bowel disease, low back pain, and vitamin D deficiency. (R. 548-49.) Dr. Ross noted that Plaintiff's spondylitis and Crohn's arthritis were as stable as possible with Humira and his other back symptoms required narcotics. (Id.)

         Plaintiff was seen in the Emergency Department at Geisinger Wyoming Valley on December 24, 2012, with complaints of lower back, hip, and leg pain for the preceding four days. (R. 790.) Plaintiff described the pain as moderate and said it worsened with change in position. (Id.) He noted that he had a bloody stool earlier in the day. (Id.) Physical examination showed mild tenderness in the entire abdomen, tenderness over the lumbar spine in the L-3, 4, and 5 area, and mild to moderate tenderness of the paralumbar muscles. (R. 791.) The diagnosis was back pain/ankylosing spondylitis. (R. 793.)

         On January 7, 2013, Plaintiff saw gastroenterologist Anthar Altaf, M.D. (R. 740.) Physical examination was not remarkable. (Id.) Crohn's disease was the primary encounter diagnosis with ankylosing spondylitis of the lumbar region noted as being managed by a rheumatologist. (R. 741.)

         Plaintiff had a colon biopsy in February 2013. (R. 822.) It showed “[c]olonic mucosa with focal minimal crypt distortion [and] [n]o evidence of significant inflammation or dysplasia in the biopsy. (R. 822.)

         Plaintiff went to the Geisinger Wyoming Valley Emergency Department on March 28, 2013, with the main complaint of right hand pain resulting from having punched someone. (R. 795.) He also complained of hip pain related to ankylosing spondylitis. (Id.) In addition to right hand problems, physical exam showed bilateral sacroiliac joint tenderness. (R. 797.)

         At his April 12, 2013, visit with Dr. Altaf, office records indicate Plaintiff had been off Humira for a month due to a change in insurance. (R. 749.) Dr. Altaf noted that Humira was originally prescribed for ankylosing spondylitis, the Crohn's disease had been treated in the past with Prednisone, Plaintiff had been in prolonged remission, and his last colonoscopy was normal. (Id.) At the time of the visit, Plaintiff reported that he had lower abdominal pain for two days without diarrhea. (Id.) Dr. Altaf found no problems on physical examination but noted that Plaintiff may have been going into a flare of the Crohn's disease because he stopped Humira which had helped the Crohn's. (R. 750.) He prescribed Prednisone. (Id.)

         Plaintiff was seen at the Geisinger Emergency Department on May 31, 2013, with complaints of pain in the hips, pelvis, and lower back which he described as typical of an exacerbation of his chronic pain. (R. 799.) Plaintiff explained that his pain was well controlled for a while when he was taking Humira but he had stopped taking it when his insurance changed five months earlier. (Id.) ED records indicate Plaintiff said he had run out of morphine and oxycodone but understood that these prescriptions could not be refilled by the ED. (Id.) Physical exam showed tenderness over the thoracic and lumbar region, bilateral tenderness with movement of the pelvic cradle. (R. 801.) Plaintiff was given IV Zofran and Dilaudid. (Id.) Exacerbation of pain related to ankylosing spondylitis was diagnosed. (Id.)

         On June 13, 2013, rheumatologist Shantanu Bishwal, M.D., saw Plaintiff as a new patient on Dr. Wolanin's referral. (R. 627.) The office record indicates Plaintiff was transitioning from Dr. Ross because of a change in insurance. (Id.) Plaintiff reported that he had seen Dr. Altaf for Crohn's disease and had not been on Humira since January 2013 which had caused a flare up of his inflammatory spondyloarthritis. (Id.) He noted that he had been diagnosed with Crohn's disease at age ten and the musculoskeletal symptoms began when he was eighteen, adding that methotrexate and sulfasalzine did not help and injections had made the symptoms worse. (Id.) Physical examination showed bilateral hip stiffness with internal and external rotation. (R. 629.) Dr. Bishwal's “Problem List as of 6/13/2013 included ankylosing spondylitis of the lumbar region and Crohn's disease. (R. 630.)

         On June 25, 2013, Plaintiff went to the Geisinger Emergency Department complaining of acute exacerbation of his chronic pain related to ankylosing spondylitis which started the day before. (R. 803.) He again explained his reason for stopping Humira and noted the subsequent flare of his Crohn's disease but stated that is not what brought him to the ED. (Id.) Examination showed diffuse lower lumbar tenderness. (R. 805.) Diagnosis included acute exacerbation of chronic pain, ankylosing spondylitis, and opiate tolerance. (Id.) Plaintiff was given MS Contin and his condition improved. (Id.)

         Plaintiff was seen at the Wyoming Valley Health Care System Emergency Department on July 1, 2013, with complaints of abdominal pain which he rated at ten and described as sharp, diffuse, and constant. (R. 861-62.) Plaintiff explained his history of Crohn's disease and said he was out of oxycodone and morphine and it was too early for the prescriptions to be refilled according to the pharmacy and Dr. Wolanin. (R. 861, 863.) The ED record states that Plaintiff appeared in severe distress due to pain and was poorly groomed. (R. 862, 864.) Examination findings included abdomen diffusely tender with moderate intensity. (R. 864.) An IV was started and Plaintiff was given a morphine injection. (R. 862.) A CT scan of the abdomen and pelvis showed thickening of ...

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