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Slaughter v. Berryhill

United States District Court, M.D. Pennsylvania

May 18, 2018

DAWN SLAUGHTER 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 October 25, 2013, alleging disability beginning on April 1, 2010. (R. 10.) Based on a determination that part of the period was previously adjudicated, Administrative Law Judge (“ALJ”) Scott M. Staller considered only the period beginning May 23, 2012. (R. 10-11.) After Plaintiff appealed the initial June 30, 2014, denial of the claims, a hearing was held on January 26, 2016. (R. 35-61.) ALJ Staller issued his Decision on March 29, 2016, concluding that Plaintiff had not been under a disability, as defined in the Social Security Act (“Act”) through the date of the decision. (R. 24.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on September 13, 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 October 2, 2017. (Doc. 1.) She asserts in her supporting brief that the Acting Commissioner's determination is error for the following reasons: 1) the ALJ did not properly evaluate the opinion of the consulting psychologist; 2) substantial evidence does not support the ALJ's RFC assessment; and 3) the ALJ made multiple errors in evaluating Plaintiff's symptoms. (Doc. 9 at 1-2.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly granted in part.

         I. Background

         Plaintiff was born on December 21, 1971. (R. 22.) She has a limited education and past relevant work as a home health aide. (Id.) Plaintiff alleged that her inability to work was limited by bulging discs, diabetes, depression, arthritis, and muscle spasms. (R. 269.)

         A. Medical Evidence[1]

         1. Physical Impairments

         A lumbar MRI from March 2010 showed “posterior disc bulge with more focal left paracentral protrusion resulting in mild to moderate central canal narrowing at ¶ 4-L5.” (R. 402.) The Pinnacle Health System Emergency Department physician also noted “[t]here is probably very mild mass effect on the bilateral L5 nerve roots.” (Id.)

         In November 2011, Plaintiff when to Pinnacle Health's Harrisburg Campus Emergency Department with mid back pain that radiated down her right side. (R. 395.) She reported that it started a year earlier but had gotten worse. (Id.) Plaintiff also said she had numbness and tingling down both legs. (Id.) Physical examination of the back showed normal range of motion, tenderness midline to lower back, straight leg raise without pain on the left, and straight leg raise with pain on the right at thirty degrees. (R. 397.) Patient was diagnosed with low back pain and discharged with the tingling in her leg and pressure in her back completely resolved. (R. 397.)

         On March 8, 2012, Lauren N. Welsh, M.D., and Vitaly Gordin, M.D., of the Penn State Milton S. Hershey Medical Center evaluated Plaintiff for low back pain at the request of Arthur Williams, M.D., Plaintiff's primary care provider. (R. 326-28.) By history, Dr. Welsh noted that Plaintiff continued to suffer from back problems which began in on March 4, 2010, when she was vacuuming at her job and she had some severe low back pain, weakness, and urinary incontinence. (R. 326.) Plaintiff rated her pain at 7/10 and described it as throbbing in the middle of her back and shooting down the back or her legs into her feet with numbness and tingling in both legs and weakness with the onset of pain. (R. 326-27.) Dr. Welsh added that Plaintiff had no incontinence since the March 2010 event, respositioning helped alleviate the pain, medications (Flexeril, Naproxen and Tylenol) helped minimally alleviate the pain, she had trouble sleeping due to pain, she had lower back muscle spasms three to four times a week, and her pain was in the lumbar and lower thoracic areas. (R. 327.) Physical examination showed that Plaintiff had 5/5 upper and lower extremity strength bilaterally, normal muscle mass and tone, reflexes were minimal to none but equal bilaterally, muscle strength was equal everywhere except for right weakness flexing her right thigh, and straight leg raise was positive on the left. (Id.) Plaintiff was diagnosed with lumbar spondylosis with lumbar radiculopathy and lumbar epidural injections were planned. (Id.) Plaintiff received L5-S1 left paramedian epidural steroid injections on March 19, 2012. (R. 339.)

         On May 24, 2012, Dr. Vitaly noted that Plaintiff reported reasonable improvement of her symptoms and rated her pain at 5/10. (R. 339.) Plaintiff also reported that her pain worsened with kneeling or stooping. (Id.) Physical examination showed that Plaintiff's gait was guarded, she had mild weakness in her left leg with 4 motor strength with knee extension and dorsiflexion of the left foot drop, and straight leg raising was mildly positive on the left side. (Id.) Dr. Vitaly noted that Plaintiff would be scheduled for steroid injections. (Id.)

         In August 2012, Plaintiff reported to Dr. Vitaly that the injection provided her with reasonable pain relief in the midportion of her spine and she had much less pain above the waistline but she complained of pain in the lumbosacral junction that radiated to the posterior aspect of her thighs which she rated at 6/10. (R. 337.) Dr. Vitaly noted that Plaintiff became tearful when describing how the pain affected her quality of life. (Id.) Physical examination showed that straight leg raising was mildly positive on the left side in sitting position with extension of the leg at 90 degrees and foot dorsiflexion. (Id.) Examination also showed that palpation of the lumbar facet joints at ¶ 4-5 and L5-S1 was associated with pain that reproduced Plaintiff's symptoms on both sides. (Id.) Dr. Vitaly planned to schedule a lumbar facet joint injection. (R. 338.)

         A cervical x-ray dated October 12, 2012, showed a very mild degree of degenerative change at the C5-C6 level. (R. 429.)

         Dr. Vitaly saw Plaintiff again on November 2, 2012. (R. 332.) Plaintiff reported that she had experienced left-sided numbness after her October 5, 2012, injection and fell twenty-four to forty-eight hours after the injection at which time she went to Harrisburg Hospital and was diagnosed with hypertension. (Id.) Plaintiff said the hospital experience, including a lumbar puncture, caused increased pain and anxiety. (Id.) Physical examination showed decreased range of motion in the lumbosacral region. (Id.)

         In January 2013, Plaintiff saw her Hamilton Health Center primary care provider, Dr. Willaims, for migraines and back pain. (R. 353-54.) His plan was for Plaintiff to consult with an orthopedic specialist and pain management specialist for her back and sciatic pain. (R. 354.) Dr. Williams continued to assess Plaintiff with “backache” through August 2013 and found that she had a decreased range of motion in her lower back. (R. 350-52.)

         On November 2013, Plaintiff went by ambulance to the Pinnacle Health Emergency Department because of an acute exacerbation of low back pain associated with some numbness and tingling. (R. 371.) Physical examination showed that Plaintiff had lumbar paraspinal muscle spasm and flat, anxious affect. (Id.) Doctor Notes indicated that computerized tomography of her back showed bulging discs at several levels and moderate spinal stenosis without critical narrowing. (R. 372.) Follow up with primary care and treatment for depression were recommended. (R. 373.) The impression recorded of the CT of the lumbar spine was no acute lumbar spine abnormality, disc bulges at ¶ 4-L5 and L5-S1 resulting in moderate central canal stenosis, with minimal bilateral neuroforaminal stenosis present at ¶ 4-L5. (R. 417.)

         Hua Yang, M.D., performed an internal medicine examination on May 1, 2014, at the request of the Bureau of Disability Determination. (R. 484-87.) He noted that Plaintiff was unaccompanied and she presented with the chief complaint of lower back pain which she reported was slightly improved but she developed numbness and tingling on the left side of her body. (R. 484.) Dr. Yang recorded the following additional information related by Plaintiff:

Currently, she describes lower back pain as intermittent, stabbing and pressure in nature, rated at 10 to 20 of 10. Any position can trigger pain. The medication helps to relieve the pain. The pain sometimes radiates up to the left arm and both lower legs. She also reported she has intermittent muscle spasm in the lower back. Averagely, she has two three spells per week, and each spell lasting one hour. There are no clear trigger factors. Naproxen and cyclobenzaprine help to relieve the symptoms. The last spell was three days ago. She fell a couple times, and she started using the cane since 2012, per her doctor. The last fall was in 09/13.

(R. 484.) Regarding her mental health, Dr. Yang noted that Plaintiff reported depression and anxiety since 2012, she had constant thoughts of suicide, but not homicide, she denied suicidal or homicidal ideation at the time, and her primary care doctor prescribed medication for her. (R. 484-85.) He also referred her to a psychiatrist with whom she had an appointment the following month. (R. 485.) Regarding activities of daily living, Plaintiff reported that she lived by herself, she cooked two to three times a week, her friend helped her do housework, she showered and dressed herself daily with some assistance, and her activities included watching TV, listening to the radio, and reading. (R. 485.) Dr. Yang made the following findings:

GENERAL APPEARANCE, GAIT, STATION: She is right handed. The claimant appeared to be in no acute distress. Gait is slightly unstable without cane. She is not able to walk on heels and toes. She is unable to squat. Stance normal. With a cane, she walks stable. Needed no help changing for exam or getting on and off exam table. Able to rise from chair without difficulty.
MUSCULOSKELETAL: No. scoliosis, kyphosis, or abnormality in thoracic spine. SLR of bilateral legs to 30 degrees in lying position and sitting position. There is decreased ROM in the hip and the left shoulder. No. evident joint deformity. Joints stable and nontender. No. redness, heat, or effusion.
MENTAL STATUS SCREEN: The claimant dressed appropriately, maintained good eye contact, and appeared oriented in all spheres. No. evidence of hallucinations or delusions. No. evidence of impaired judgment or significant memory impairment. Affect normal. The claimant denied suicidal ideation.

(R. 486-87.) Dr. Yang diagnosed lower back pain, history of depression and anxiety, history of hypertension, and history of type 2 diabetes. (R. 487.) He found Plaintiff's prognosis to be fair. (Id.)

         On the same date, Dr. Yang completed a Medical Source Statement to Do Work-Related Activities (Physical). (R. 488-93.) He opined that Plaintiff could lift or carry up to ten pounds occasionally and never lift over that. (R. 488.) He found that Plaintiff could sit for two hours and stand/walk for one hour at a time without interruption and she could sit for a total of eight hours and stand/walk for a total of three hours in an eight-hour day. (R. 489.) He noted that a cane was medically necessary and Plaintiff could use her free hand to carry small objects. (R. 489.) Dr. Wang reported that Plaintiff could use her right hand continuously and with her left hand she was limited to frequent reaching. (R. 490.) He concluded that Plaintiff could never climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl, but she could occasionally climb stairs and ramps. (R. 491.) Finally, Dr. Wang opined that Plaintiff could never be exposed to unprotected heights or moving mechanical parts and she could occasionally operate a motor vehicle. (R. 492.) He noted that all limitations were due to low back pain. (R. 489-92.)

         Plaintiff had several primary care visits at Hamilton Health Center from June 2014 through December 2015. She saw Dr. Williams through October 2014 and he regularly found tenderness on palpation of her middle and/or lower back. (R. 523-27.) At the October 15, 2014 visit, Dr. Williams noted that Plaintiff was extremely upset because she could not get narcotics secondary to marijuana in her urine. (R. 523.) In December 2014, Plaintiff saw Burhanuddin Farooqi, M.D., as her primary care provider. (R 521-22.) He noted that Plaintiff sought medication refills and wanted a prescription for a back brace. (R. 521.) He found slight tenderness to palpation over the mid lower back and recommended a physical therapy consultation. (R. 522.)

         Plaintiff had a physical therapy evaluation at Drayer on February 12, 2015, at which moderate difficulty standing and severe difficulties sleeping, traveling, lifting, and walking were noted. (R. 517.) Clinical Assessment indicated that Plaintiff had limited mobility due to low back pain and she had lower extremity radicular symptoms. (Id.) The Problem List included pain, decreased strength, decreased range of motion, decreased mobility, and decreased function. (Id.) The evaluator further noted severe limitations with sidebending and rotation, tenderness to palpation over the paraspinals and vertebrae, and Plaintiff ambulated with trunk rotation and pelvic list. (R. 518.)

         In March 2015, Dr. Farooqi recorded that Plaintiff reported no acute medical complaints. (R. 521.) Dr. Farooqi assessed lower back pain through December 30, 2015, but he did not record related physical examination findings. (See R. 563-66.)

         Michael Fernandez, M.D., of the Orthopedic Institute of Pennsylvania conducted a spinal evaluation on March 12, 2015. (R. 510.) Physical examination showed that lumbar paraspinal muscles were tender in multiple locations and lumbar range of motion was moderately to significantly restricted in all planes. (R. 510.) Dr. Fernandez noted that Plaintiff's gait was steady and her extremities were intact and well-perfused with moderate peripheral edema. (Id.) He assessed thoracolumbar pain and possible urinary incontinence, intermittent. (R. 511.) Given Plaintiff's complaints, Dr. Fernandez thought it reasonable to check a thoracic spine MRI. (Id.)

         Plaintiff saw Dr. Fernandez again on December 31, 2015. (R. 585.) He recorded that Plaintiff had about three to four months of increasing back and leg pain. (Id.) She reported that her “legs give out” and the pain was constant. (Id.) He noted that the MRI which had been recommended was denied by her insurance. (Id.) Dr. Fernandez's physical exam findings included the following: steady and independent gait; generalized tenderness about her lumbar paraspinal region; no midline tenderness; moderately restricted lumbar range of motion; good range of motion of her hips and knees; 5/5 lower extremity strength; lower extremity sensory exam intact to light touch and pain; moderate lower extremity peripheral edema; positive right straight leg raise; and normal peripheral vascular exam. (Id.) Dr. Fernandez assessed chronic low back pain and lumbar stenosis with radiculopathy. (Id.) He again suggested a lumbar spine MRI which was scheduled for January 6, 2016. (Id.)

         Plaintiff went to the Pinnacle Health Emergency Department on February 7, 2016, complaining of right side numbness and tingling and intermittent headache for two days. (R. 611.) She also reported blurred vision, right sided chest pain, back pain, neck pain, spasms, paresthiesias, and anxiety. (Id.) Physical exam included findings that Plaintiff was very anxious and fearful, her heart rate was tachycardic, right-shoulder range of motion was limited, and she resisted movement of the right arm due to pain. (R. 613.) Plaintiff later had full range of motion of her right arm and her blood pressure and heart rate were coming down. (R. 613.) Plaintiff was discharged with directions to follow up with primary care provider as soon as possible and follow up with her doctor about back pain and blood pressure. (R. 617.)

         Plaintiff was seen at Hamilton Health on February 19, 2016, for ER followup. (R. 602.) Plaintiff reported that her pain was worse and physical examination showed tenderness to palpation and muscle spasm in her back, and her cervical spine showed abnormalities. (R. 602-03.) The assessment was neck pain, back pain, and ...


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