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Strohecker v. Berryhill

United States District Court, M.D. Pennsylvania

July 11, 2018

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



         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 in March 2014, alleging disability beginning on September 24, 2013. (R. 9.) After Plaintiff appealed the initial May 8, 2014, denial of the claims, a hearing was held on March 7, 2016, and Administrative Law Judge (“ALJ”) Gerard W. Langan issued his Decision on May 2, 2016, concluding that Plaintiff had not been under a disability as defined in the Act from September 24, 2013, through the date of the decision. (R. 19.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on September 8, 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 November 3, 2017. (Doc. 1.)

         He asserts in his supporting brief that the Acting Commissioner's determination is error for the following reasons: 1) the vocational expert did not provide sufficient evidence of specific jobs Plaintiff could perform; and 2) the ALJ did not properly assess the opinion of Mark Bohn, M.D., a State agency consulting physician. (Doc. 14 at 5.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly granted in part.

         I. Background

         Plaintiff was born on September 24, 1984, and was twenty-nine years old on the alleged disability onset date of September 24, 2013. (R. 18.) He has at least a high school education and past relevant work as a landscaper, equipment operator, and master carpenter. (R. 18.) Plaintiff alleged that his ability to work was limited by widespread pain, swelling of hands and feet, multiple bulging discs, and depression. (R. 154.)

         In his supporting brief (Doc. 14), Plaintiff does not provide a factual background with citation to evidence of record. In the Argument section of his brief related to the consulting physician opinion, Plaintiff provides citation to multiple exhibits consisting of over two hundred pages without specific citation to records contained therein. (Doc. 14 at 7 (citing Exs. 3F, 4F, 5F, 6F, 7F, 8F, and 9F).) Lacking the presentation of facts by Plaintiff, the Court will set out evidence of record pertinent to Plaintiff's claimed errors in order to provide a framework for discussion.

         Dennis Probst, M.D., of Haven Family Practice was Plaintiff's primary care provider prior to the alleged onset date and continuing through the date of the decision. (R. 224-83, 309-438, 457-78.) The record shows that Dr. Probst generally saw Plaintiff on a monthly basis. (Id.)

         In early 2013, Dr. Probst assessed thoracic back pain and thoracolumbar pain which he reported as chronic. (R. 263, 264.) He referred Plaintiff to Marek Kurowski, M.D., of Haven Pain Management, and Dr. Kurowski administered back injections in March 2013. (R. 261, 290.) At his March 19, 2013, visit with Dr. Probst, Plaintiff reported that he did not think he would return to Dr. Kurowski because he was running out of money for co-pays. (R. 261.) However, Plaintiff returned for further injections in April. (R. 292.) In May 2013, Dr. Probst noted that Plaintiff planned to see a rheumatologist. (R. 260.)

         In June 2013, Plaintiff complained of multiple joint arthralgias and noted that rheumatology wanted him to have more blood work. (R. 258.) Dr. Probst reviewed the recent MRI which showed minor disc bulging at ¶ 4-L5 and L5-S1, with no herniations, no compressed nerves, and no stenosis. (R. 257.)

         In August 2013, Plaintiff reported that his pain was improving with medication and he rated it as 3/10 with medication and 10/10 without. (R. 253.) Muscolskeletal and neurolgic examinations were normal except for tenderness at multiple bilateral fibromyalgia points. (R. 254.) Dr. Probst's assessment included lumbago and pain in joints, site unspecified. (R. 255.)

         Plaintiff again saw Dr. Probst on September 23, 2013, the day before the alleged onset date. (R. 249.) Plaintiff complained of joint and back pain and again was found to have multiple bilateral tender fibromyalgia points as well as an antalgic gait. (R. 250-51.) Musculoskeletal and neurologic exams were otherwise normal. (R. 251.) Dr. Probst's assessment remained the same and he planned to see Plaintiff in another month. (R. 252.) Although Plaintiff reported increased pain beginning in October (increased from 3/10 to 5/10), examination findings and assessments remained consistent through December 2013, at which time it was noted that Plaintiff was going to rheumatology in January. (R. 241-42, 244-45, 247-48.)

         On January 20, 2014, Dr. Probst noted that Plaintiff was taking prednisone as prescribed by the rheumatologist. (R. 237.) Physical exam and assessment remained the same as in previous months. (R. 234-35.) In February Plaintiff complained of anxiety/depression but he said it did not interfere with this activities of daily living. (R. 233.) Records are fairly consistent through May 2014 (see, e.g., R. 416-17) with an additional indication of a March 9, 2014, hospital emergency department visit for an arm laceration sustained while Plaintiff was splitting wood (R. 212).

         On June 20, 2014, Plaintiff complained of swelling of his knees and feet, shoulder pain, and left sided numbness although physical exam remained the same as in previous months. (R. 408, 412.) Dr. Probst noted that Plaintiff was to be seen by rheumatology the following month. (R. 413.)

         In addition to multiple tender fibromyalgia points, August 2014 musculoskeletal examination showed limited range of motion (plantar surface tender), tender low back muscles bilaterally, and limited extension and flexion due to pain. (R. 402.) General low back tenderness and generally limited extension and flexion were not recorded on physical exam from September 2014 through February 2015 although tenderness at ¶ 4 and thirty degree flexion on active range of motion were specifically noted. (R. 375, 379, 384, 389, 393, 398.) These examinations otherwise revealed no problems. (Id.) On October 17, 2014, Dr. Probst noted that rheumatology had diagnosed bilateral sciatica and started Plaintiff on Gabapentin. (R. 394.) Plaintiff was also taking Oxycodone for joint pain. (Id.) Plaintiff continued on Gabapentin and Oxycodone through February 2015. (See R. 380.)

         Although Plaintiff regularly reported arthralgias/joint pain and back pain (see, e.g., R. 397, 392, 402), at his February 2015 office visit with Dr. Probst he also reported difficulty walking, hand joint pain, and elbow pain (R. 374). Physical exam showed that Plaintiff had an antalgic gait but no limp and musculoskeletal and neurologic exams remained the same. (R. 374-75.) Plaintiff's subjective reports and Dr. Probst's examination findings remained the same in March 2015. (R. 369-70.) Dr. Probst noted that rheumatology had recommended Cymbalta for joint pain but Plaintiff had taken it for only a few days and felt fatigued. (R. 371.) Plaintiff planned to restart the medication. (Id.)

         On April 13, 2015, Plaintiff reported to Dr. Probst that he had injured his back when he was helping a friend move things, but physical exam remained the same as in previous months. (R. 362, 265.) Office visits through June indicate similar exam findings. (R. 352-61.)

         In July 2015, Dr. Probst's neurologic exam continued to indicate no limp, no assistive devices, and antalgic gait, but he also noted that Plaintiff's left knee was wrapped in an ace bandage, he had diminished ankle and knee reflexes bilaterally, and positive supine straight leg raising test. (R. 350.)

         Musculoskeletal exam showed tenderness of the paraspinal region at ¶ 4, active range of motion extension of ten degrees, and passive range of motion extension of ten degrees and flexion of thirty degrees. (Id.) Knee examination showed limited range of motion and positive ...

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