United States District Court, M.D. Pennsylvania
DEBORAH L. ANSTEY, Plaintiff,
NANCY A. BERRYHILLActing Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
E. SCHWAB, CHIEF UNITED STATES MAGISTRATE JUDGE
an action brought under Sections 205(g) and 1631(c)(3) of the
Social Security Act, 42 U.S.C. §405(g) and 42 U.S.C.
§ 1383(c)(3), seeking judicial review of the final
decision of the Commissioner of Social Security
(“Commissioner”) denying Plaintiff Deborah L.
Anstey's (“Ms. Anstey”) claims for disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act. This matter has
been referred to the undersigned United States Magistrate
Judge to prepare a report and recommended disposition
pursuant to the provisions of 28 U.S.C. § 636(b) and
Rule 72(b) of the Federal Rules of Civil Procedure. For the
reasons expressed herein, it is recommended that the final
decision of the Commissioner of Social Security be
VACATED, and that Ms. Anstey's request
for the award of benefits or a new administrative hearing be
Procedural History and Background
Anstey is a high school graduate and attended three years of
college. Tr.173. She has previous work experience as
a student helper, a government inspector, and an owner of an
auction house. Id. Ms. Anstey attempted to return to
the work force as a cashier in November of 2013, but
ultimately quit after a few weeks of
employment. Tr.53; 155. At the time of her
applications, Ms. Anstey lived with her family and cared for
her ill fiancé. Tr.190-191. She had no difficulty
with personal care, prepared meals daily, and performed most
household chores. Tr.191-192. Ms. Anstey was able to
drive, and shopped in stores or online. Tr.193. She
enjoyed working on puzzles, playing games, and watching
television and movies at home. Tr. 194. She spent
time with her family and attended weekly medical and
chemotherapy appointments with her fiancé.
of 2002, Ms. Anstey underwent a spinal fusion for treatment
of congenital kyphosis. Tr.241. Dr. Gillick of
Scranton Orthopaedic Specialist P.C. performed the successful
procedure, which resulted in significant pain reduction and
improved range of motion for Ms. Anstey. Tr.287. She
continued working until June 1, 2012. Tr.172.
Ongoing pain from Ms. Anstey's spinal fusion is the basis
of her claim for disability. Tr.197-198.
her spinal fusion, Ms. Anstey presented to Dr. Gillick
several times prior to the alleged disability onset date. On
April 15, 2009, Ms. Anstey followed up with Dr. Gillick
complaining of severe pain in her back on her left side.
Tr.239. Dr. Gillick reviewed previous X-rays, and
opined that she displayed excellent correction from her
spinal fusion. Id. Nine months later, on January 11,
2011, Ms. Anstey returned, complaining of pain and
discomfort. Tr.237. Dr. Gillick observed tenderness
near the iliac crest incision. Id. Ms. Anstey
received a trigger injection at the tender spot. Id.
On March 7, 2011, Ms. Anstey followed up with Dr. Gillick,
complaining of no relief from the trigger injection.
Tr.236. Dr. Gillick performed another trigger
injection but this time he inserted the injection directly
into the bone. Id.
December 4, 2013, Ms. Anstey protectively filed a claim for
supplemental security income under Title XVI of the Social
Security Act, alleging a disability onset date of August 1,
2013. Tr.122-127. On April 3, 2014, Ms. Anstey
protectively filed a claim for disability insurance benefits
under Title II of the Social Security Act, alleging a
disability onset date of August 1, 2013. Tr.122-127.
Ms. Anstey alleges she is disabled because of her spinal
fusion. Tr.172. Ms. Anstey was born on September 5,
1976, and at the time of alleged onset of disability date,
Ms. Anstey was thirty seven-years old, and thus was defined
as a “younger individual” under the regulations
promulgated under the authority of the Act. Tr.168.
after Ms. Anstey submitted her Title XVI application, the
Bureau of Disability Determination requested Ms. Anstey
undergo a consultative examination. On February 6, 2014, Dr.
Murray conducted a disability evaluation. Tr.241. A
physical examination revealed decreased range of motion in
Ms. Anstey's shoulders and lumbar spine.
Tr.242-243. A neurological examination revealed full
motor strength in her upper extremities, intact sensation,
and diminished motor strength in her lower extremities.
Tr.243. Dr. Murray observed that her gait was stiff
and antalgic, favoring the right hip. Id. Dr. Murray
assessed Ms. Anstey with the following: spinal fusion T1-L2;
chronic pain syndrome; pain in the right iliac crest/hip at
the bone grafting; and pain in the upper back between the
shoulder blades. Id. Dr. Murray ordered an X-ray of
her spine, which revealed mild degenerative disc disease in
the lumbar, cervical, and thoracic spine.
Tr.246-247. Dr. Murray also completed a medical
source statement of ability to do work-related physical
activities, and opined that Ms. Anstey could never lift and
carry up to ten pounds; never reach, push, or pull; never
balance, stoop, kneel, crouch, crawl, or climb stairs, ramps,
ladders or scaffolds, occasionally handle and finger
bilaterally; and never operate foot controls with her right
foot or perform postural activities, including overhead
March 24, 2014, state agency physician Dr. Smith assessed Ms.
Anstey's physical residual functional capacity
(“RFC”) after reviewing the medical evidence of
record that was available to her. Tr.85-87. Dr.
Smith assessed that Ms. Anstey possessed the following
exertional limitations: occasionally lift and/or carry
(including upward pulling) twenty pounds; frequently lift
and/or carry (including upward pulling) ten pounds; stand
and/or walk (with normal breaks) for a total of about six
hours per eight-hour workday, sit (with normal breaks) for a
total of about six hours per eight-hour workday; and limited
in her right lower extremity in her ability to push and/or
pull (including operation of hand and/or foot controls).
Tr.86. Dr. Smith determined that Ms. Anstey had
postural limitations, limiting Ms. Anstey to the following:
frequently stoop, kneel, crouch, and crawl' never climb
ladders/ropes/scaffolds; and no limitations in climbing
ramps/stairs and balancing. Id. Dr. Smith also
assessed that Ms. Anstey had no manipulative, visual, or
communicative limitations. Tr.86-87. Dr. Smith
determined Ms. Anstey also had environmental limitations, and
that she should avoid concentrated exposure to the following:
extreme cold; extreme heat; wetness; humidity; noise;
vibration; fumes; odors; dusts; gases; poor ventilation; and
Anstey returned to Dr. Gillick on February 3, 2014, over
three years after her last appointment with him.
Tr.258. She complained of increased back pain that
radiated into her right leg. Id. Ms. Anstey reported
she used Ibuprofen to control her symptoms. Id. Upon
examination, Dr. Gillick observed tenderness in her
cervical/thoracic area, as well as the low lumber lumbosacral
area. Id. Dr. Gillick was not clear what the
etiology of her pain was, and noted that because she did not
have insurance, no physical therapy or MRI could be performed
at the time. Id. Dr. Gillick prescribed Flexeril and
Tramadol. Id. Ms. Anstey followed up with Dr.
Gillick three months later, with similar findings.
Tr.259. Dr. Gillick renewed her Flexeril script, and
also prescribed Ibuprofen 800. Id. Dr. Gillick noted
that Ms. Anstey did not have health insurance. Id.
March 28, 2014, Ms. Anstey's claims were denied at the
initial level of administrative review. Tr.104-111.
At this level of review, the adjudicator found that Ms.
Anstey had the following medically determinable impairment:
spine disorders. Tr.84. The adjudicator determined
that Ms. Anstey was “not disabled” because she
had the RFC to perform her past relevant work as an
inspector. Tr.89. On April 25, 2014, Ms. Anstey
filed a request for an administrative hearing.
Gillick completed a medical source statement on July 21,
2014. Tr.255-257. Dr. Gillick opined that Ms. Anstey
could lift ten pounds occasionally; sit for six hours in an
eight-hour workday; stand for two hours in an eight-hour
workday; sit/stand at will; extra work breaks; and would be
absent from work at least two days per month. Id.
Anstey saw Dr. Montgomery on June 26, 2015, complaining of a
muscle spasm in her back that caused headaches.
Tr.271. Dr. Montgomery diagnosed Ms. Anstey with
degenerative disc disease of the lumbar spine, prescribed her
Baclofen, a muscle relaxant, and referred her to a
physiatrist. Tr.272. Ms. Anstey presented to Dr.
Horchos of Northeastern Rehabilitation Associates, P.C. on
August 6, 2015 by referral from Dr. Montgomery for a
comprehensive physiatric evaluation. Tr.287. After
an examination, Dr. Horchos observed that Ms. Anstey had good
cervical range of motion, adequate upper extremity strength,
and mildly limited forward flexion. Tr.288. Dr.
Horchos opined that Ms. Anstey would benefit from PRP
injections, and possibly Botox injections to ease her
symptoms. Id. Dr. Horchos diagnosed Ms. Anstey with
thoracic pain, facet syndrome, and neuritis/radiculitis.
Anstey followed up again with Dr. Gillick on September 14,
2015. Tr.296. An examination revealed tenderness and
pain with flexion and extension, normal motor and sensory
findings, and negative straight leg raising test results.
Id. Dr. Gillick recommended an MRI to try to
determine what the root of her pain is. Id.
September 29, 2015, Ms. Anstey appeared and testified during
a hearing before the ALJ with the assistance of counsel.
Tr.44-79. In addition, impartial vocational expert
Patricia L. Chilleri testified. Id. At the hearing,
Ms. Anstey testified that her condition has gotten
progressively worse over the last several months.
Tr.53. She explained that she cannot be on her feet
comfortably for more than an hour, and cannot sit for more
than twenty minutes before she needs to stand up.
Tr.53-54. Ms. Anstey testified that standing still in
one spot is painful, and described the pain as “nails
going into my heels” and “like getting stuck with
a hot poker.” Tr.68. Ms. Anstey reported that
she suffers from stabbing pain and numbness, as well as daily
headaches. Tr.54; 66. She explained that in order to
fall asleep at night, she has to numb her hip and lower back
before she can fall asleep. Tr.67. She testified
that she takes Neurontin for nerve pain and Baclofen, a
muscle relaxer. Tr.57. She does not take any
narcotic pain medication, except for when the pain is
“terrible.” Id. Ms. Anstey testified
that she is able to “do a lot less” and “it
takes a lot longer than it used to.” Tr.62.
Gillick saw Ms. Anstey on September 30, 2015 to discuss the
results of her MRI taken five days prior. Tr.299.
Ms. Anstey complained of bitter pain in her low back and
numbness in her hands and legs. Id. Upon
examination, Dr. Gillick observed tenderness over the
posterior spine on the right side, as well as pain with
gentle flexion and extension. Id. Ms. Anstey's
straight leg test caused increased back pain. Id.
Dr. Gillick determined that with the exception of some
degenerative change in the facets, possibly L2-3, she has no
significant stenosis. Id. Dr. Gillick opined that
her spinal fusion is not a contributing factor to any of her
current pain issues. Id. She received another
injection at the iliac crest graft site, and was told to
follow up. Id.
November 25, 2015, the ALJ denied Ms. Anstey's
applications for benefits in a written decision.
Tr.6-23. The ALJ concluded that Ms. Anstey was
‘not disabled' because she could engage in a
limited range of sedentary work that did not preclude her
from performing other work that existed in the national
economy during the relevant period. Tr.18. After the
ALJ denied her applications, Ms. Anstey sought review of her
claim by the Appeals Council. Tr.121. On May 15,
2017, the Appeals Council denied Ms. Anstey's request for
review. Tr.1-5. This denial makes the ALJ's
November 25, 2015 decision the final decision of the
Commissioner subject to judicial review.
11, 2017, Ms. Anstey initiated this action by filing a
complaint. Doc.1. Ms. Anstey claims that the
ALJ's decision is not supported by the substantial
evidence of record because the record demonstrates greater
restrictions. Doc.1 at 2. As relief, she requests
that this Court reverse the ALJ's decision and award
benefits. Doc.1 at 3. On September 12,
2017, the Commissioner filed an answer to Ms. Anstey's
complaint. Doc.5. In her answer, the Commissioner
maintains that the decision denying Ms. Anstey's
applications for benefits is correct and in accordance with
the law and regulations, and that the Commissioner's
findings of fact are supported by substantial evidence.
Doc.5 at 3. Together with her answer, ...