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Stugart v. Berryhill

United States District Court, M.D. Pennsylvania

June 22, 2018

JUSTIN STUGART, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          BRANN JUDGE.

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge.

         I. Introduction

         In this Social Security appeal we do not write upon a blank slate. Quite the contrary, this is Justin Stugart's second appeal of an adverse disability decision. Both of Stugart's appeals have involved a consideration of two inextricably intertwined issues. In both appeals, Stugart, a younger worker in his 30's, asserts that he is totally disabled due to the combined effects of degenerative disc disease and obesity. Further, in both appeals Stugart has argued that the Administrative Law Judge (ALJ) erred in determining that he retained the residual functional capacity to perform a range of sedentary work despite his spinal impairments. Moreover, in both of these appeals, the gravamen of Stugart's argument has been his assertion that the ALJ's evaluation of his residual functional capacity failed to fully account for the debilitating effect of Stugart's reported back pain. Thus, at the heart of both of these appeals has been a legal and factual dispute regarding the sufficiency of the ALJ's evaluation of Stugart's subjective complaints of disabling pain.

         The ALJ performs this analysis of a claimant's subjective complaints of pain guided by a series of legal guideposts which provide that:

Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling (“SSR”) 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. SSR 96-7p. In determining a claimant's credibility regarding the severity of symptoms, the ALJ must consider the following factors in totality: (1) the extent of daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication; (5) treatment other than medication for the symptoms; (6) measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or other symptoms. SSR 96-7p; 20 C.F.R. §§ 404.1529, 416.929; accord Canales v. Barnhart, 308 F.Supp.2d 523, 527 (E.D. Pa. 2004).

McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015)(footnotes omitted).See Higbie v. Berryhill, No. 3:17-CV-00433, 2018 WL 1474559, at *1 (M.D. Pa. Mar. 7, 2018), report and recommendation adopted, No. 3:17-CV-433, 2018 WL 1471121 (M.D. Pa. Mar. 26, 2018).

Once the ALJ has made this determination:
[W]e examine the ALJ's decision against a very deferential standard of review, one which is limited to addressing the question of whether the findings of the ALJ are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200(3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536(M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Rather, “substantial evidence” is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971).

Deiter v. Berryhill, No. 3:16-CV-2146, 2018 WL 1322067, at *1 (M.D. Pa. Feb. 5, 2018), report and recommendation adopted, No. 3:16-CV-2146, 2018 WL 1315655 (M.D. Pa. Mar. 14, 2018).

         Given the deferential standard of review that applies to Social Security Appeals, which calls upon us simply to determine whether substantial evidence supports the ALJ's findings, we conclude that substantial evidence exists in this case which justified the ALJ's credibility determinations that led to the denial of this particular claim. We further conclude that the basis for these credibility determinations has now been adequately articulated by the ALJ in this, the second agency decision addressing this claim. Therefore, for the reasons set forth below, we recommend that the district court affirm the decision of the Commissioner in this case.

         II. Statement of Facts

          On November 3, 2011, Justin Stugart protectively applied for disability insurance benefits and supplemental security income pursuant to Titles II and XVI of the Social Security Act (“Act”). (Tr. 623.) In his disability applications Stugart alleged that he had become disabled due to the combined effects of degenerative disc disease and obesity. (Tr. 516.) According to Stugart the alleged onset of this disability occurred on or about January 5, 2011. (Tr. 623.)

         Stugart was born in 1982, (Tr. 161), was in his late 20's at the time of the alleged onset of his disability, and was considered a younger worker under the Commissioner's regulations. Stugart had a high school education and past relevant work as cashier/checker, a foreman/supervisor in a sawmill, a supervisor in log sorting, and a boomer conveyor operator. (Tr. 30, 49, 72-73.)

         Stugart's medical history was prolonged, complex, and marked by contradictory clinical and opinion evidence. Moreover, that medical history, which now spans some five years, reflected both periods of recovery and episodes of relapse. This medical history began in early January 2011 after Stugart went to a hospital emergency room reporting that he had reported injured himself at work, and was experiencing low back pain that radiated into his legs. (Tr. 221.) While Stugart was initially diagnosed with acute low back pain or strain and left sciatica, (Tr. 222), subsequent MRI and EMG examinations in 2011 revealed lumbar herniations, with varying degrees of spinal stenosis, (Tr. 235), and chronic lumbar radiculopathy.[1] (Tr. 257.)

         In March of 2011, Stugart underwent a laminectomy and discectomy to address these spinal conditions. (Tr. 291, 326.) The initial results of this medical procedure were promising. Thus, the neurosurgeon who performed the procedure, reported that Stugart did “extremely well” postoperatively with pain, and cleared him to return to sedentary work on March 28, 2011. (Tr. 291.) However, within days, by March 30, 2011, Stugart reported the onset of severe pain in his right leg, (Tr. 291), and a lumbar MRI scan on April 7, 2011 showed a new large herniation. (Tr. 292, 353.) Consequently, Stugart underwent a second laminectomy and discectomy on April 15, 2011. (Tr. 291.) Stugart's neurosurgeon reported that he did “remarkably well, ” with this procedure and experienced a dramatic resolution of his leg pain. (Tr. 300.) On May 6, 2011, Stugart's doctor reported that he was doing “very well with continued resolution of the leg pain, ” recommended that he increase his activities as tolerated, and released him to return to work on May 9, 2011. (Tr. 364.)

         However, despite these procedures Stugart's medical history in 2011 and 2012 continued to be marked by mixed, equivocal and contradictory medical reports and evaluations. Thus, in 2011 Stugart continued to periodically report to emergency room personnel and his primary treating source that he was experiencing severe back pain. (Tr. 269, 279, 387.) Examinations in December of 2011 revealed some decreased range of motion, (Tr. 449-50), as did examinations conducted February of 2012, (Tr. 444-5) but physical therapy notes from October through December 2011 reported improvement in Stugart's strength and mobility. (Tr. 397-410.)

         By 2012 physicians who were treating Stugart were documenting that he reported experiencing intractable back pain, and were recommending that he engage in further physical therapy or consider surgical fusion to alleviate his pain. (Tr. 428, 473-4, 496.) These doctors noted one complicating factor that Stugart needed to address prior to undergoing surgery, which they predicted enjoyed a 60-70% success rate in alleviating his pain-Stugart would need to cease tobacco use in order to enhance his chances for recovery and pain relief through surgery. (Id.)

         This mixed and equivocal picture, marked by clear evidence of some back impairment but uncertainty regarding the severity of that impairment, was also reflected in the November 24, 2011Adult Function Report submitted by Stugart. (Tr. 173.) In this report Stugart, stated that he could walk “50 y[a]rds on a good day, ” before needing to rest for 10 to 15 minutes, (Tr. 178), and listed problems with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, and completing tasks. (Tr. 178.) However, Stugart's self-report also indicated that he had no problems performing personal care activities, was able to prepare frozen meals for himself, and was able to go out of the house every couple of days either walking, riding in a car, or using public transportation. (Tr. 176.) According to Stugart he was also able to shop in stores for “basic things” once a week for 15 to 20 minutes, (Tr. 176), had no problems managing his money, and engaged in hobbies, including playing video games and playing pool (Tr. 177). Stugart also related that he had daily social contact with his girlfriend, attended physical therapy and went to doctors' appointments, as needed. (Tr. 177.)

         The complex and contradictory nature of this medical history was further underscored by a consultative examination conducted by Dr. R. Craig Nielsen on December 23, 2011. (Tr. 413.) During this examination, Dr. Nielsen reported that Stugart appeared to be in distress in that he moved in a guarded fashion, and got in and out of his chair and on and off of the examination table “rather gingerly.” (Tr. 417.) A physical examination revealed that Stugart's back was diffusely tender to light tapping, (Tr. 417), and Stugart could not perform a straight leg raising test from the supine position because he complained of pain, but he performed a straight leg raising test from the sitting position without difficulty. (Tr. 417.) Likewise, Stugart was only able to bend forward at the waist to about 10 or 20 degrees due to pain and the sensation that he was falling and would not be able to pull himself back up. (Tr. 417.) His gait was slow, but normal; his stance was normal; his lifting and grasping were normal; and he had no joint deformities. (Tr. 418.) Given these clinical results, Dr. Nielsen diagnosed Stugart with persistent low back pain and pelvic and groin pains of unclear etiology, (Tr. 418), but stated that he had “no idea why [Stugart] should have so much pain upon moving his hip joints on today's exam, ” (Tr. 418), rated Stugart's prognosis as “fair to good, ” and opined that he had no physical limitations. (Tr. 418-20.)

         On September 13, 2012, an initial administrative hearing was conducted in this case. Stugart and a vocational expert appeared and testified at this hearing. Following this hearing, on December 10, 2012, the ALJ issued a decision denying Stugart's application for benefits. (Tr. 620-32.) In this decision, the ALJ found that Stugart retained the residual functional capacity to perform a range of sedentary work despite his chronic back pain, and concluded that Stugart's assertions of wholly disabling spinal pain were not fully credible. (Id.)

         Stugart appealed this decision and on February 18, 2015, the district court remanded this matter for further consideration by the Commissioner. (Tr. 590-614.) In this decision directing a remand, the district court concluded that the ALJ's initial opinion did not adequately address and explain the basis for the credibility determination which partially discounted the credibility of Stugart's claims of totally disabling pain. (Id.)

         Following this remand a second administrative hearing was conducted on August 28, 2015. Once again, Stugart and a vocational expert appeared and testified at this hearing. In addition, on remand, the ALJ had the benefit of further medical records and opinions. This additional evidence continued to present a profoundly mixed and contradictory portrait of the severity of Stugart's condition.

         For example, in July of 2013, Dr. Michael Haak, examined Stugart. (Tr. 819.) At that time the doctor found that Stugart was in no apparent distress, and had a normal gait as well as a well-healed surgical scar, (Tr. 819), but had tenderness and a reduced range of motion secondary to low back pain. (Tr. 819.) Stugart displayed equal and symmetric motion in his hips and knees; straight leg testing was negative for radicular complaints, but increased his low back pain; his motor strength was equal and symmetric; and his pulses were normal. (Tr. 819.) While Dr. Haak concluded based upon this examination that Stugart could not return to work as a saw mill operator, the doctor did not offer an opinion on whether he could otherwise perform sedentary work.

         Similarly, in January 2015, the neurosurgeon who had treated Stugart in 2012 examined him because Stugart had complained of pain for the last few months in his low back, right groin, and right thigh. (Tr. 841.) On examination, the doctor found Stugart to be in good condition, without any acute distress, and his mechanical and neurological examinations were all satisfactory. (Tr. 841.) The doctor also examined a December 2014 lumbar MRI conducted on Stugart, and concluded that it showed no evidence of nerve root compression. (Tr. 841.)

         One month later, in February 2015, Stugart had a surgical consultation with Dr. Haak. (Tr. 834). At that time, Stugart was still smoking, even though he had been informed nearly three years earlier that cessation of smoking was a precondition to successful surgery. Accordingly, Dr. Haak told Stugart to see him after he stopped smoking. (Tr. 834.)

         On October 1, 2015, at the request of the ALJ, Dr. Eric Schmitter, an orthopedic specialist, completed a series of medical interrogatories relating to Stugart's condition. (Tr. 908.) After reviewing Stugart's medical records Dr. Schmitter determined that his symptoms were “probably exaggerated, ” because there were “no objective or documented neurologic deficits.” (Tr. 909.) Dr. Schmitter concluded that Stugart could perform medium to light work, carry and lift 20 and ten pounds, respectively, stand/walk up to six hours in an eight-hour workday, sit without ...


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