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Avaritt v. Berryhill

United States District Court, M.D. Pennsylvania

April 18, 2018

RYAN AVARITT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          RICHARD P. CONABOY United States District Judge

         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 July 11, 2014, alleging disability beginning on March 12, 2013. (R. 16.) He later amended the onset date to June 14, 2014. (Id.) After Plaintiff appealed the initial October 3, 2014, denial of the claims, a video hearing was held on December 14, 2016, and Administrative Law Judge (“ALJ”) Patrick S. Cutter issued his Decision on March 9, 2017, concluding that Plaintiff had not been under a disability as defined in the Act from June 14, 2014, through the date of the decision. (R. 16-27.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on July 20, 2017. (R. 1-6.) 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 residual functional capacity assessment is not supported by substantial evidence; 2) the ALJ did not properly evaluate Plaintiff's obesity; 3) the ALJ did not properly weigh opinion evidence; 4) substantial evidence does not support the ALJ's finding that Plaintiff's severe spine impairment does not meet or equal listing 1.04A; 5) the ALJ's multiple errors with symptoms evaluation require reversal; and 6) substantial evidence does not support the ALJ's step two evaluation. (Doc. 10 at 1-2.). For the reasons discussed below, the Court concludes Plaintiff's appeal is properly granted.

         I. Background

         Plaintiff was forty-five years old on the amended alleged onset date of June 14, 2014. (R. 26.) He has at least a high school education and past relevant work as a cashier, grocery clerk, fast food worker, and nurse assistant. (R. 25-26.)

         Plaintiff alleged that his inability to work was limited by chronic COPD, bipolar disorder, major depressive disorder, lower back pain, and arthritis. (R. 245.)

         A. Medical Evidence[1]

         1. Physical Impairments

         Preceding the alleged onset date of June 14, 2014, Plaintiff was seen by his primary care provider Thomas P. Kunkle, D.O. On February 25, 2014, Dr. Kunkle noted that Plaintiff had extreme lower back pain from slipped and bulging discs, he had a history of degenerative disc disease, and he had not been on any pain medications for the previous year but wanted something for pain. (R. 442.) On March 25th, Dr. Kunkle recorded that Plaintiff had severe edema on his ankles and his back was about the same. (Id.) Dr. Kunkle planned to arrange physical therapy. (Id.)

         Plaintiff began physical therapy at the Drayer Physical Therapy Institute in May 2014. (R. 427.) Records indicate that Plaintiff presented with lumbar spine pain, resultant immobility and activity of daily life limitations. (R. 427.) Plaintiff attended several physical therapy sessions in May and June (see, e.g., 395-413), ultimately reporting no improvements in his pain level (R. 399). On June 20, 2014, Plaintiff was assessed to have significant pain symptoms and difficult mobility. (Id.) At his June 27th appointment the therapist noted that Plaintiff was unable to progress due to his pain level. (R. 395.)

         Plaintiff saw Dr. Kunkle on July 9, 2014, and reported that physical therapy was not working. (R. 435.) In August, Plaintiff requested that Dr. Kunkle complete disability forms. (R. 443.)

         On September 29, 2014, Spencer Long, M.D., conducted an internal medicine examination at the request of the Bureau of Disability Determination. (R. 464-67.) Dr. Long noted Plaintiff had lower back pain for over ten years which had gradually gotten worse. (R. 464.) He recorded that MRI showed a slipped disc at ¶ 4-L5 and previous treatment with pain management and nerve stimulation did not work. (Id.) Physical examination showed that Plaintiff was

obese, slow moving, depressed appearing [and] uncomfortable. He walks with assistance of a cane and a limp. He cannot walk on heels or toes. He cannot squat. Stance normal. He uses a cane. Needed no help changing for exam or getting on and off exam table. Able to rise from chair without difficulty.

(R. 466.) Other than hip and buttock pain bilaterally with single leg raise to thirty degrees, systems evaluation was normal. (R. 466-67.) Dr. Long's diagnoses included lower back pain, degenerative disc disease, and arthritis of the hips and knees. (R. 467.)

         Lumbosacral spine x-ray of September 30, 2014, showed degenerative changes, spondylolisthesis, and an old compression fracture. (R. 468.)

         In August 2015, Plaintiff told Dr. Kunkle that he wanted to talk about trying to make his back and hips better. (R. 606.) On physical examination, Dr. Kunkle noted that Plaintiff was generally alert and healthy. (R. 607.) His diagnoses included generalized osteoarthritis, and he planned to send Plaintiff to an orthopedist. (Id.) Nursing Notes from the office visit indicate that Plaintiff reported his pain medication was not working and he was having trouble walking. (R. 614.)

         On October 1, 2015, Plaintiff saw Eric Kutz, D.O., of Arlington Orthopedics for left hand pain, numbness and tingling. (R. 490-91.) Evaluation of the left hand showed positive Tinel's test at the wrist and elbow, 4/5 grip strength, and diminished sensation. (R. 490.) Dr. Kutz diagnosed carpal tunnel syndrom and cupital tunnel syndrome. (R. 491.) He recommended left cupital tunnel and carpal tunnel release. (Id.) The procedures were done on October 7, 2015. (R. 484-85.) At his October 22, 2015, postoperative visit with Dr. Kutz, Plaintiff presented with pain (rated at 10/10) and swelling on the left side. (R. 487.) He reported that symptoms were aggravated by daily activities. (Id.) Physical examination of the left wrist showed decreased active range of motion and limited strength. (R. 488.) Plaintiff was referred to physical therapy and advised to resume activity as tolerated. (Id.)

         At his October 25, 2015, office visit for a refill of pain medications, Dr. Kunkle's physical examination was unremarkable other than noting obesity and healing surgical scars. (R. 618.) Dr. Kunkle noted that the orthopedic surgeon had referred Plaintiff to a pain center. (Id.) Plaintiff was referred to Select Physical Therapy where he tolerated his initial November 12, 2015, treatment with minimal complaints of pain. (R. 495-96.) Plaintiff subsequently missed at least two therapy appointments. (R. 493-94.)

         Plaintiff was seen by Paul Ritenour, D.O., at the Fourth and Diamond Medical Clinic on September 7, 2016. (R. 646.) At this initial visit, Plaintiff subjectively reported that he was generally healthy. (R. 646.) Physical examination did not reveal any musculoskeletal problems, and Dr. Ritenour noted that he would recheck Plaintiff in two weeks. (R. 646.)

         Records indicate that Dr. Ritenour referred Plaintiff to the Mansfield Pain Clinic where Plaintiff had his initial visit with Ali Rao, M.D., on September 16, 2016. (R. 647.) Physical examination showed that Spurling and Hoffman tests were negative bilaterally, cervical facet tenderness was positive bilaterally, straight leg raise was positive on the right, lumbar facet tenderness was positive bilaterally, and lumbar facet loading test was positive bilaterally. (R. 650.) Dr. Rao diagnosed the following: radiculopathy of the cervical region, spondylosis of the cervical region, other cervical disc degeneration, radiculopathy of the lumbar region, spondylosis of the lumbosacral region, spinal stenosis of the lumbar region, other interverebral disc degeneration of the lumbar region, and other vertebral disc displacement of the lumbar region. (R. 651.) Dr. Rao prescribed Percocet for moderate to severe pain, Topamax for neuropathic pain, and Flexeril for muscle cramps/spasms. (Id.) He also recommended bilateral lumbar medial branch blocks. (Id.)

         Dr. Ritenour saw Plaintiff again on September 20, 2016, and recorded no objective problems. (R. 645.) As with the previous visit, back examination revealed no tenderness, and Plaintiff had free range of motion of his extremities and no deformities, edema or erythema. (Id.)

         At his October 18, 2016, visit with Dr. Rao, Plaintiff received lumbar facet injections to address lumbar spondylosis and lumbar degenerative disc disease. (R. 658.) At his November 1stvisit, Plaintiff did not have the scheduled second injections because the first had not helped. (R. 665.) Plaintiff continued to report pain in his neck, low back, hips, and knees. (R. 663.)

         December 8, 2016, x-ray of the lumbar spine showed degenerative disc disease with a grade 1-2 spondylolisthesis L5 on S1. (R. 667.)

         2. Mental Impairments

         Plaintiff was seen by providers including Maribeth Bucher, CRNP, at Holy Spirit Hospital in Camp Hill, Pennsylvania, preceding his amended alleged onset date of June 14, 2014. On March 13, 2014, she noted no problems in her mental status examination and specifically stated that Plaintiff was in a much better frame of mind. (R. 367.) No. mental status findings were recorded in May or July 2014. (R. 366, 432.)

         At his September 30, 2014, visit to Holy Spirit, fair hygiene, blunted affect, and anxious/depressed mood were noted. (R. 515.) Mental status examination was otherwise normal. (Id.) His exam was similar in October but in November his mental status exam was normal other than the notation of fair hygiene. (R. 513, 514.) Blunted affect and depressed mood were again noted in February 2015. (R. 509.) Records indicate that Plaintiff was “no show” for his April and June 2015 visits. (R. 509, 510.)

         On September 29, 2014, Michael Caiazzo, Psy. D., performed a consultative psychiatric evaluation. (R. 456-60.) Plaintiff reported that he was residing with his partner and he had most recently been employed as a cashier and stocker at a convenient store for three months but he left because it was too painful. (R. 456.) Dr. Caiazzo noted that Plaintiff was cooperative, he used a cane, and wore a back brace. (R. 457.) Mental status examination revealed the following: Plaintiff's thought process was coherent and goal directed; his affect was of full range and appropriate in speech and thought content; his mood was euthymic; his attention and concentration were impaired due to nervousness; his recent and remote memory skills were impaired due to nervousness; his cognitive functioning was average; and his insight and judgment were fair. (R. 458.) Dr. Caiazzo stated that the results of the evaluation appeared to be consistent with psychiatric problems which could significantly interfere with Plaintiff's ability to function on a daily basis. (R. 459.) He recommended that Plaintiff continue with medication management and that he receive weekly outpatient therapy.

         On March 26, 2016, Plaintiff sought emergency treatment at OhioHealth Hospitals in Mansfield, Ohio, because he was “severely depressed” and suicidal. (R. 522.) Plaintiff reported he had relocated to Ohio from Pennsylvania in November 2015 and had not taken any psychiatric medications since then. (Id.) Mental status examination showed that Plaintiff was alert and oriented to time, place, and person; his hygiene, dressing, and grooming were unkempt; his mood was irritable with congruent affect; he reported recurrent intrusive thoughts of suicide and wanting to take an overdose but also stated he did not intend to take an overdose or do anything to hurt himself; his attention span was poor; his memory for recent and immediate events was poor; his IQ was average as was his general fund of knowledge; and his insight and judgment were poor. (R. 523.) Major depression, recurrent, severe, and noncompliance with treatment were diagnosed. (Id.) Inpatient treatment was recommended by the consulting physician and it was estimated that he would be hospitalized for five to seven days. (R. 524, 540.) On March 27th Plaintiff demanded to go home and he reported that he had not gotten his pain medication. (R. 531.) Notes of the same date indicate Plaintiff had not had any narcotic pain medication since he moved to Ohio. (Id.) Plaintiff was discharged on March 30, 2016, with improved mental status examination. (R. 525.) Plaintiff was counseled about the importance of medication and appointment compliance. (Id.)

         Following his hospital discharge, Plaintiff had an Initial Psychiatric Evaluation at Catalyst Life Services on April 14, 2016. (R. 570.) The evaluation was conducted by Debbie Marshall, PMHNP-BC.[2] (See R. 576.) Plaintiff said he had many life stressors over the preceding three years, he was living with his daughter and her family but was not happy about it, he would be OK if her were on his own, his chronic pain increased his irritability, and he had no income or benefits aside from a medical card and food stamps. (Id.) He noted that one stressor was the death of his partner eighteen months earlier and he had not maintained steady employment or stable housing since then. (R. 567, 570.) Plaintiff reported that some of the medications prescribed during his hospitalization were helping but he still had irritability. (Id.) He also reported decreased sleep, amotivation, anergia, and crying spells. (Id.) Mental status exam showed average eye contact and activity, clear speech, logical thought processes, cooperative behavior, and no report of impaired cognition. (R. 573.) His diagnois was unspecified depressive disorder and unspecified personality disorder. (R. 575.) Plaintiff's list of medical problems included a history of diabetes that was controlled by diet at the time of intake, and a history of hypertension, thyroid dysfunction, heart problems, and diverticulitis. (R. 572.)

         Ms. Marshall saw Plaintiff on April 25th, May 25th, and June 27th, and recorded similar problems with Plaintiff's living situation. (R. 577, 580, 583.) He reported no new medical concerns at these visits. (Id.) On June 27, 2016, Ms. Marshall noted that Plaintiff was pursuing disability, he was “referred for vocational, ” and hoped to get a part-time job the following week. (R. 583.)

         B. Opinion Evidence

         1. Physical Ability Opinions

         Dr. Kunkle completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) on August 1, 2014. (R. 444-47.) He opined that Plaintiff could never lift or carry any weight; because Plaintiff “needs to lie down” he could sit for one hour and stand/walk for fifteen minutes at one time without interruption and in an eight-hour day he could sit for a total of two hours and stand/walk for a total of thirty minutes; he medically required the use of a cane; and the identified limitations were supported by MRI showing spondylolisthesis at ¶ 5-S1. (R. 444-45.) Of the identified postural activities, Dr. Kunkle determined that Plaintiff was precluded from all except climbing stairs and ramps which he could only do occasionally. (R. 446.) Dr. Kunkle further opined that Plaintiff could perform activities like shopping, he could travel without a companion for assistance, he was able to ambulate without using a wheelchair, walker, two canes or two crutches, he could not walk a block at a reasonable pace on rough or uneven surfaces, he could use standard public transportation, he could climb a ...


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