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Munn-Deblock v. Berryhill

United States District Court, M.D. Pennsylvania

June 5, 2018

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


          RICHARD P. CONABOY, United States District Judge

         Pending before the Court is Plaintiff's appeal from the Acting 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 April 17, 2014, alleging disability beginning on August 30, 2012. (R. 19.) After Plaintiff appealed the initial August 11, 2014, denial of the claims, a hearing was held by Administrative Law Judge (“ALJ”) Daniel Balutis on July 21, 2016. (Id.) ALJ Balutis issued his Decision on July 21, 2016, concluding that Plaintiff had not been under a disability, as defined in the Social Security Act (“Act”) from August 30, 2012, through the date of the Decision. (R. 29.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on June 13, 2017. (R. 1-5.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         Plaintiff filed this action on August 11, 2017. (Doc. 1.) She asserts in her supporting brief that the Acting Commissioner's determination should be reversed for the following reasons: 1) the ALJ erred in rejecting Plaintiff's treating physician's opinion; and 2) the ALJ's residual functional capacity (“RFC”) finding did not incorporate all of the limitations attributable to Plaintiff's anxiety and panic disorder. (Doc. 15 at 3.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly granted.

         I. Background

         Plaintiff was born on January 13, 1967, and was forty-five years old on the alleged disability onset date. (R. 26.) She has a high school education and past relevant work as a unit clerk. (Id.) Plaintiff alleged that her inability to work was limited by anxiety, chronic pain, osteoarthritis, migraine headaches, Raynaud syndrome, panic disorder, spinal stenosis, ankylosing spondylitis, shortness of breath, and angina. (R. 197.)

         A. Medical Evidence

         Plaintiff saw her primary care physician, Lisa Pathak, M.D., on her alleged disability onset date of August 30, 2012, at which time Plaintiff reported that her back was worse but the neurosurgeon did not think it was bad enough for surgery, and her podiatrist was going to do surgery for toe problems. (R. 336.) Plaintiff told Dr. Pathak that she did not feel she could work because she was in constant pain and under constant stress. (Id.) Dr. Pathak noted that a bone scan showed “abnormal finding mid thoracic spine diffusely and increased activity in right toe.” (Id.) General examination showed the following: Plaintiff was tearful and very anxious; she had right scapular, under right shoulder pain with light palpation and minimal to moderate thoracic pain to touch; she was sad and tearful, anxious and upset. (Id.) Dr. Pathak assessed thoracic spondylosis without myelopathy; cervical disc herniation with myelopathy; anxiety state, unspecified; and chronic pain syndrome. (Id.) Dr. Pathak noted that Plaintiff declined Clavil for the cervical disc herniation because of the possible side effect of weight gain and she would pursue recommended pain management. (Id.) Dr. Pathak recorded that she wrote a note for short-term disability so that Plaintiff could get her foot surgery and get pain management under control. (R. 337.)

         Plaintiff sought an extension of her disability at her October 4, 2012, visit with Dr. Pathak because she had not yet seen a pain management specialist. (R. 362.) Dr. Pathak again saw Plaintiff on October 18, 2012, at which time Plaintiff reported that the specialist associated the pain she was experiencing with years of poor posture, she had another MRI on October 17th, and she had repeat appointments later in the month with Dr. Rohan, an orthopedist, and Dr. Castro, her pain management specialist. (R. 369.) Physical examination revealed no abnormalities. (Id.)

         Plaintiff saw Ajay Kumar, M.D., of the Pain and Neuropathy Center of PA on November 16, 2012, for evaluation of pain in the right thoracic area, pain in the right arm, and tingling and numbness in the toes of the lower extremities. (R. 441.) He noted by history that Plaintiff's MRI showed disc herniations at several levels of the thoracic spine. (Id.) Sensory examination to light touch and pinprick showed significant feeling of paresthesia in the right forearm and feeling of paresthesia in bilateral dorsum of the feet and the toes. (R. 442.) Examination of the right upper extremity showed positive Adson test, tenderness along the periscapular area, and range of motion of the right shoulder of 0-130 degrees, minimally painful. (Id.) Dr. Kumar also found miniminal tenderness of the lumbar spine and negative straight leg raise bilaterally. (Id.) He planned to do NCV/EMG of the lower extremities, MRI of the right brachial plexus, and x-ray of the cervical spine. (R. 443.) On December 7, 2012, Dr. Kumar explained that the pain was most likely coming from the spine and he planned to request authorization for a thoracic epidural steroid injection to help her pain. (R. 440.) He also noted “[t]he patient is temporary [sic] disabled at this point.” (Id.)

         Dr. Pathak's December 19, 2012, office visit records indicate Plaintiff again sought extension of her disability. (R. 371.) As of that time, Plaintiff reported that she had seen Dr. Kumar who was trying to determine the cause of her pain and he planned to do thoracic injections at the end of the month. (Id.) Plaintiff claimed continuing intense pain under her right scapula and right arm movement caused severe burning wrap-around pain. (Id.) Plaintiff also reported stress due to her financial situation. (Id.) General examination showed that Plaintiff appeared uncomfortable, she had obvious pain on palpation just inferior to right scapula with surrounding spasming, any movement of her right arm caused complaint of burning pain to the right nipple, Plaintiff was unable to rotate the right shoulder, and mental status exam was normal except Plaintiff was tearful at times. (Id.)

         Dr. Kumar administered the steroid injection on January 5, 2013, without complications or side effects. (R. 437.) At her January 18th visit with Dr. Kumar, Plaintiff reported modest relief from the injection but said she was still in constant pain. (R. 435.) He planned to do another injection at a different level to see if it would better help Plaintiff's pain. (R. 436.) He again noted that Plaintiff was temporarily disabled. (Id.) Plaintiff had the injection on February 2, 2013, without complications or side effects. (R. 434.) She reported further improvement on February 8th and received another injection on February 16th. (R. 430, 432.) She reported added improvement but said she still had pain which she rated at six out of ten. (R. 428.) Dr. Kumar noted that Plaintiff remained temporarily disabled and he would follow up with her in six weeks. (R. 429.)

         Plaintiff presented at Dr. Pathak's office for an update on disability on February 18, 2013. (R. 375.) After reporting that Dr. Kumar had done three more injections on her thoracic spine, Dr.

Pathak recorded that Plaintiff states that her job was posted and she now no longer has a job to go back to. States she is very upset about it but Dr. Kumar continued to say she was not able to go back yet and she has been listening to his request. She has a person who is in HR that is helping her to find a new job in the hospital with a new superior. States that in order to get this to work out correctly she needs to be cleared to go back to work by 3/11/13 so that way she can get unemployment with disability benefits for 6 months. States that if a job does not show up she wants to consider going back to school. States that she is slowly feeling better from the injections and her range of motion is getting a lot better. States if she keeps getting the injections with Dr. Kumar she feels she will be getting much better and be able to get back to her regular life.

(R. 375.) Physical examination showed tenderness to palpation in the right thoracic region and decreased range of motion of the right shoulder on abduction and internal and external rotation. (Id.)

         At her March 26, 2013, office visit with Dr. Pathak, Plaintiff again presented for an update on disability, stating that she needed additional records. (R. 381.) Plaintiff reported that her depression had been well controlled with Wellbutrin and she stated that mainly her depression and anxiety was situational related to financial issues while on disability. (Id.) Physical examination findings were not remarkable. (Id.)

         At her April 5, 2013, visit with Dr. Kumar, Plaintiff reported that the pain had become more intense and she had a new onset of muscle spasms and pain in the shoulder blade area. (R. 425.) Examination showed tenderness along the periscapular area, right shoulder range of motion of 0 to 30 degrees minimally painful, restricted range of motion of the cervical spine, multiple trigger points in the right levator scapulae, rhomboid and trapezius muscles, and moderate tenderness in the thoracic paraspila area. (R. 426.) Dr. Kumar administered trigger point injections. (Id.) Though Plaintiff experienced some improvement, she reported 6-7 out of 10 pain on June 7, 2013, at which time her physical examination was basically the same as in April. (R. 424.) Dr. Kumar advised Plaintiff to continue with home stretching and strengthening program and he would reevaluate her in four to six weeks. (Id.) Plaintiff returned to Dr. Kumar on July 5, 2013, and requested injections to help the pain. (R. 421.) He indicated that the injections would be scheduled and Plaintiff was to take Advil and Motrin on an as-needed basis to help with her pain. (R. 422.)

         In May 2013, Plaintiff told Dr. Pathak that she hoped to stay on disability through “the end of the summer to be able to get a couple more injections with Dr. Kumar since they really help.” (R. 385.) Dr. Pathak noted that Plaintiff's thoracic spondylosis was stable, Plaintiff was still on disability due to pain and weakness in her right upper extremity, and she would continue to get injections from pain management. (Id.)

         Plaintiff was again seen by Dr. Kumar on July 12, 2013, for an emergency visit after she fell at a store and experienced “excruciating” pain (9 out of 10) on the top of the shoulder. (R. 419.) Plaintiff reported difficulty moving the shoulder up and significant worsening of the mid-back pain with radicular symptoms, and off and on tingling and numbness in the right arm. (Id.) Dr. Kumar noted that Plaintiff had an x-ray of the shoulder which showed probability of a joint injury. (Id.) Dr. Kumar advised Plaintiff to follow up with an orthopedic surgeon and noted that further studies may be warranted if her symptoms did not improve. (R. 420.)

         At her next visit on August 2, 2013, Dr. Kumar noted that the x-ray of the right shoulder did not show any evidence of significant AC joint injury. (R. 417.) Plaintiff reported improved symptoms but she still had pain in the right shoulder, pain in the mid-back was doing down to the chest wall, and pain, tingling and numbenss in the right arm. (Id.) She rated her pain as 8-9 out of 10. (Id.) Due to persistent radicular symptoms and worsening pain, Dr. Kumar recommended another MRI and NCV/EMG study. (R. 418.) He also recommended physical therapy three times a week for four weeks and follow up with an orthopedic surgeon. (Id.) Plaintiff told Dr. Kumar that her insurance would not cover an orthopedic surgeon and she did not know if she could afford it. (Id.) He planned to see Plaintiff back in a month. (Id.)

         On August 15, 2013, Plaintiff reported to Dr. Pathak that she was losing her insurance at the end of the month, she was getting injections for her back pain “after the slip and fall that happened at Weiss, ” and she was getting pain in her back again which affected her breathing, and she was very financially stressed. (R. 552.) Physical examination was not remarkable; mental status findings included the notation that Plaintiff was crying and very emotional. (Id.)

         On August 30, 2013, Dr. Kumar reported that Plaintiff's mid-back pain had improved about 50-60% after the last epidural steroid injection and she was not getting any radicular symptoms down the chest wall but she was complaining of more pain in the right shoulder blade area. (R. 414.) Dr. Kumar administered trigger point injections, recommended continuation of home exercise program, and planned to see Plaintiff again in two months. (R. 415-16.)

         In October 2013, Plaintiff reported to Dr. Pathak that she was not able to work due to severe anxiety and depression and she needed a form for short-term disability which would last until February or March of 2014. (R. 547.) Other than a notation that Plaintiff was “crying and sad” general examination findings were normal. (Id.) Disability was again discussed in December 2013 when Plaintiff said she was unable to work because of severe anxiety, including panic attacks. (R. 556.) Plaintiff reported she was taking Percocet as needed for severe back pain and she could not afford to see Dr. Kumar. (Id.) General examination findings indicated no problems. (Id.)

         In February 2014, Plaintiff told Dr. Pathak that she was still very stressed out and “would like to see Kr. Kumar again because her back was hurting again.” (R. 554.) Dr. Pathak recorded that Plaintiff said her son was having problems with being home schooled and pornography was found on his computer, she lost her unemployment, she started getting stabbing pains in the left hip where she gets ankylosing spondylitis. (Id.) General examination findings did not indicate any problems. (Id.) Dr. Pathak gave Plaintiff a prescription for physical therapy and referred her to Dr. Kumar for further injections. (R. 555.)

         At her May 6, 2014, visit with Dr. Pathak, Plaintiff reported numerous problems. (R. 563.) Dr. Pathak recorded that Plaintiff's son ran away from home but was found, her husband lost his job and had been drinking, Plaintiff was crying and close to having a nervous breakdown, her hip was very painful and prevented her from sitting for a long time, her calf was aching, her hands were “locking up” and she had no strength, she was having memory loss and trouble concentrating, and she was having problems with insomnia. (R. 563.) General examination showed that Plaintiff was crying, upset, and shaking, and her affect was sad, but she had good eye contact and normal speech, and she was oriented times three. (R. 565.) Extremity and musculoskeletal examination showed no problems. (Id.)

         In June 2014, Plaintiff reported to Dr. Pathak that her son and husband were both working and she was doing better, she did not want to take the increased medication dosage suggested by the psychiatrist she had seen, and she continued to complain of leg pain. (R. 575.) General examination showed some point tenderness in her back and radiation of pain down her leg. (Id.) Dr. Pathak assessed spinal stenosis of the thoracic region, with sciatica noted to be her working diagnosis. (Id.)

         On July 8, 2014, Plaintiff was seen at Dr. Pathak's office for what she believed was a spider bite on her neck. (R. 579.) Other than neck problems, no problems were noted on general examination. (Id.) On July 16, 2014, Plaintiff was seen for worsening pain from the bite. (R. 581.) Other than neck problems, the provider did not report any problems on general examination. (Id.) Dr. Pathak diagnosed cellutis and absess of the neck and planned to get an MRI. (R. 582.)

         Plaintiff had her first of three visits with neurologist Kenneth W. Lilik, M.D., on February 18, 2015, on Dr. Pathak's referral for complaints of leg and lower back pain. (R. 915.) Dr. Lilik noted that Plaintiff had the onset of sharp pain in her left calf in March 2014 and she developed left hip pain in July 2014 that had been intermittently uncomfortable. (Id.) He also noted that an August 2013 MRI showed thoracic disc herniation between T6-7, T7-8 and T9-10 and an a June 2014 MRI scan of the left hip showed no pathologic abnormalities. (Id.) Physical examination indicated straight leg raising caused pain at ninety degrees, left hip pain upon rotation of the hip, moderately decreased toe tapping on the left and normal on the right, difficulty walking on toes of left foot but able to walk on heels of both feet, and sensory exam normal to light touch. (R. 916.) Dr. Lilik noted that the EMG and nerve conduction study done by him on the same date indicated old or chronic mild bilateral L4 and left L5 radiculopathies and suspected left L1 radiculopathy. (Id.) His diagnostic impression included the EMG and nerve conduction study findings, multiple thoracic disc herniations, migraine, left hip pain, depression, and history of ankylosing spondylitis. (R. 916-17.)

         On March 6, 2015, Plaintiff saw Shalini Byadgi, M.D., to establish care. (R. 589.) Records indicate that Plaintiff presented with a history of GERD and back pain, she had the pain for twelve years but it got worse when she fell on July 8, 2014, she had been seen by Dr. Dholoki, a Lords Valley psychiatrist, who presribed Wellbutrin and Xanax, she took Flexeril as needed for spasm but she took it rarely, she rarely took Percocet, physical therapy did not help at all, and she had constipation for which she was doing all that she was told to do and was frustrated that she still had some issues. (Id.) Physical examination showed mild lumbar ...

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