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Anstey v. Berryhill

United States District Court, M.D. Pennsylvania

April 16, 2018

DEBORAH L. ANSTEY, Plaintiff,
v.
NANCY A. BERRYHILL[1]Acting Commissioner of Social Security, Defendant.

          Chief Judge, Conner

          REPORT AND RECOMMENDATION

          SUSAN E. SCHWAB, CHIEF UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         This is 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 GRANTED.

         II. Procedural History and Background

         Ms. 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.[2] Tr.53; 155. At the time of her applications, Ms. Anstey lived with her family and cared for her ill fiancé.[3] 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. Id.

         In June of 2002, Ms. Anstey underwent a spinal fusion for treatment of congenital kyphosis.[4] 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.

         Following 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.

         On 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.[5] Tr.168.

         Shortly 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 reaching. Tr.250-254.

         On 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 hazards. Tr.87.

         Ms. 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.

         On 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. Tr.114-115.

         Dr. 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.

         Ms. 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. Id.

         Ms. 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.

         On 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.

         Dr. 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.

         On 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.

         On July 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, ...


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