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Bryan 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”). (Doc. 1.) Plaintiff protectively filed an application on September 4, 2014, alleging disability beginning on November 7, 2011. (R. 10.) After Plaintiff appealed the initial October 29, 2014, denial of the claim, a hearing was held by Administrative Law Judge (“ALJ”) Daniel Balutis on August 16, 2016. (Id.) ALJ Balutis issued his Decision on August 31, 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. 16.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on October 17, 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 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 failed to provide adequate explanation for ignoring evidence concerning absenteeism; 2) the ALJ's rejection of Plaintiff's claim that she, on frequent occasions, suffers from pain of sufficient intensity to preclude her attendance at work is not supported by substantial evidence; and 3) the ALJ fails to give appropriate weight to the opinion of the treating physician. (Doc. 9 at 8-9.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly denied.

         I. Background

         Plaintiff was sixty years old at the time of the ALJ Hearing. (R. 54.) She has a GED and vocational training to be a machinist. (R. 57-58.) She has past relevant work as a shipping clerk/shipping checker, office clerk, and electrical assembler. (R. 16.) Plaintiff alleged that her ability to work was limited by a back injury. (R. 184.)

         A. Medical Evidence

         Walter C. Peppelman, D.O., of the Pennsylvania Spine Institute performed an Independent Medical Examination on June 4, 2009. (R. 275-78.) Though before the alleged onset date of November 7, 2011, the report provides historic perspective of Plaintiff's back symptoms, many of which she said she had for twenty years. (See, e.g., R. 71, 74.) Plaintiff presented with complaints of back pain which she had since 1996. (R. 275.) She reported that none of the treatments (which included facet injections, nerve blocks, bracing of her lumbar spine because of subjective complaints of low back pain) had provided any long term periods of relief. (R. 275.) Dr. Peppelman performed a back examination and recorded the following:

She complains of tenderness to deep palpation at the lumbosacral junction towards the sacroiliac joints bilaterally and up towards the mid lumbar area. She has no associated paravertebral spasms. She does not complain of any pain with head or shoulder compression. The patient does not show any findings of symptom magnification and inappropriate illness behavior. The patient is able to heel-toe walk. She complains of pain when bending forward at about fingertips to knees and extends from 15 to 20 degrees with no problem. She has a nondyskinetic ambulatory gait. Examination of her lower extremities reveal all deep tendon reflexes equal and symmetric. There is no evidence of any clonus or Babinski's. Negative sitting root sign and negative straight leg raising. No evidence of any sensory or motor deficits. No evidence of any ankle clonus. Good range of motion of hips, knees and ankles.
The examination of the patient was an absolutely normal exam. She has subjective complaints but no objective findings.

(R. 276-77.)

         Dr. Peppelman also reviewed several MRIs of Plaintiff's back, the last of which had been done in January 2008, and stated that they revealed “normal axial and sagittal alignment only minor degenerative and normal aging changes of the lower lumbar spine.” (R. 277.) He added that the MRI “actually looks younger than the patient's age. The discs are well hydrated. There are no disc herniations or nerve root compression and nothing at all from an anatomic standpoint that explain the vast subjective complaints offered by the patient.” (Id.) Dr. Peppelman also noted that between 2004 and 2008, the MRIs showed very slight increased changes at the L4-L5 interval with slight spondylolisthesis present. (Id.) He added that “spondylolisthesis is present in a very high percentage of females in the late forties and continues to progress.” (Id.) Dr. Peppelman found that

[t]he chronic pain syndrome is her subjective complaint and is not, nor has it been, in any previous medical records founded with any type of radiographic or clinical objective findings. This was the accepted injury [from the alleged work-related event in 1996] and [she] was able to go back to work within those restrictions and now, because of subjective complaints only, the patient takes herself off of work on a rather routine basis.

(Id.) He reiterated that Plaintiff did not have “any radiographic or MRI evidence that would create any impairment” and her subjective complaints of back pain “did not correspond to any anatomic abnormality nor is there any clinical objective findings that substantiate any pathology creating impairment.” (Id.) Regarding alternative explanations for Plaintiff's complaints, Dr. Peppelman opined that her complaints were “psycho-social issues and are not related to any mechanical or developmental problems within the patient's spine.” (R. 278.)

         The last MRI to which Dr. Peppelman referred, the study done on January 4, 2008, showed the following: 1) a stable appearance when compared to the 2007 study; 2) disc protrusion at L-5-S1 with left facet arthrosis, discogenic disease, bulging, and spondylosis abutting the left S1 nerve root; 3) facet arthrosis resulting in grade 1 spondylosis at ¶ 4-L5; 4) spodylosis and disc bulging at ¶ 1-L2 and L2-L3 associated with Schmorl's nodes and chronic superior endplate compression deformity with loss of height; 5) stable L5 cystic lesion; and 6) a cystic lesion in the anterior aorticocaval region. (R. 277, 293.) Other 2008 and 2009 studies indicated that the lumbosacral spine remained stable and unchanged from earlier studies. (R. 284, 287, 289.)

         Closer to the relevant time period, Plaintiff had a lumbar spine MRI on January 19, 2011. (R. 280-81.) At the time, Plaintiff was seeing Rene R. Rigal, M.D., for pain management. (See, e.g., R. 352-60.) Dr. Rigal noted that the new study did not demonstrate any changes compared to the MRIs of January 2008 and June 2009 and there continued to be a grade 1 spondylolisthesis with 2mm offset at ¶ 4-5. (R. 352.)

         At Plaintiff's May 16, 2011, office visit, Dr. Rigal noted that Plaintiff had bilateral L4-5 joint ablations on April 20, 2011, and the procedure provided Plaintiff with total relief. (R. 356.)

         Plaintiff reported to her primary care doctor, John Pellegrino, D.O., on June 11, 2011, that she was having low back pain and the last shot she received did not even last a month. (R. 494.) No problems were recorded on physical examination and Dr. Pellegrino assessed “back pain.” (Id.)

         On August 8, 2011, Plaintiff was seen by Cheressa Mix, PA-C, at Dr. Pellegrino's office for follow up on her back pain. (R. 493-94.) Plaintiff reported that she had taken a different job at work “because she was tired of being harassed by her supervisor.” (R. 492.) She also said she did not like her new position because it required her to be up and down frequently which was harder on her back. (Id.) No problems were noted on physical exam. (Id.)

         Plaintiff returned to Dr. Rigal on September 13, 2011, after having last been seen on May 16th. (R. 358.) Dr. Rigal noted that the April 2011 ablation “provided the patient total relief of her symptoms until recently when her pain returned.” (Id.) Physical examination showed the following: no pain upon movement of the spine at the waist; pain on forward flexion at 60 degrees, lateral rotation to 2 degrees, lateral tilt or hyper extension to 2 degrees; negative straight leg raising to 90 degrees; deep tendon reflexes preserved bilaterally and symmetrical; no motor or sensory deficits; mild paraspinal tenderness upon palpation; and no tenderness of the sacroiliac joints or sciatic notch. (R. 359.) Dr. Rigal planned to schedule Plaintiff for bilateral L4-5 facet joint ablations. (Id.)

         In December 2011, Plaintiff saw Shiyi Abla-Yao, M.D., of Central Penn Interventional Pain Medicine. (R. 457-60.) Plaintiff reported to Dr. Abla-Yao that she had chronic back pain related to a work injury in 1996 and that she had persistent pain since then. (R. 457.) Plaintiff described the pain as constant with numbness and radiation of pain to the posterior aspect of the thighs. (Id.) She also said the problem was aggravated by bending and twisting, and she had experienced some relief with previous physical therapy. (Id.) Physical examination showed limited range of motion of the back and tenderness to palpation of the mid-lumbar region. (R. 460.) Dr. Abla-Yao determined that treatment with a TENS unit was appropriate to address the back pain. (Id.)

         On January 19, 2012, Plaintiff reported to Dr. Abla-Yao that she was stable with the TENS use for the treatment of her back pain and she had no complaints at that time. (R. 453.) However, Dr. Abla-Yao also noted that Plaintiff reported dull pain and the problem was mild. (Id.) Musculoskeletal exam showed no limitation of the range of motion of the back and no other problems were recorded. (R. 455.)

         Ms. Mix again saw Plaintiff on March 20, 2012, for Plaintiff's annual exam. (R. 491.) Plaintiff reported that she had been fired from her job, she was doing well other than back pain, and she was seeing Dr. Abla-Yao for pain management. (Id.) Again, no problems were noted on physical exam. (Id.)

         A March 23, 2012, MRI showed no interval change from the previous MRI dated January 19, 2011. (R. 373.)

         Plaintiff saw Dr. Pellegrino in Septemeber 2012 and reported that her pain was improved since she stopped working. (R. 488.) No problems were noted on physical exam. (R. 488.) When Plaintiff saw Dr. Pellegrino for her annual exam on March 21, 2013, Plaintiff said she continued to have low back pain and she saw Dr. Abla-Yao for injections. (R. 486.) Again no muculoskeletal problems were noted on physical exam. (R. 486.)

         When Plaintiff saw Dr. Abla-Yao on March 26, 2013, Plaintiff complained of back pain. (R. 409.) Dr. Abla-Yao noted that Plaintiff was being seen for acupuncture, she had good pain relief, and she had good activity levels. (Id.) Physical exam showed tenderness to palpation of the lumbar region of the back. (R. 411.) On April 2, 2013, Dr. Abla-Yao again noted that Plaintiff complained of back pain and was being seen for acupuncture treatment. (R. 405.) Dr. Abla-Yao also noted that Plaintiff had good pain relief and good activity levels, and she did not take much pain medication. (Id.) She added “there are no associated symptoms. The problem is located in the lumbar region over spine. She reports dull pain. The back pain is mild. It does not impair her activities of daily living.” (Id.) Dr. Abla-Yao again found tenderness to palpation of the lumbar region. (R. 407.)

         A lumbar spine MRI done on April 3, 2013, showed no significant change from the previous study done on March 23, 2012. (R. 370-71.)

         In September 2013, Plaintiff reported to Dr. Pellegrino that her insurance would not pay for more acupuncture and she had more back pain. (R. 484.) In November, Plaintiff reported that she had continuing problems with her insurance and Workmen's Comp, including difficulty getting Flexeril and the Duragesic patch. (R. 482.) In December, Plaintiff said she was doing better with the pain patch. (R. 480.) On January 16, 2014, she again reported doing well with the patch and she denied any other problems. (R. 478.)

         Plaintiff saw Dr. Abla-Yao on January 20, 2014, at which time she reported that, although she had good relief from past acupuncture, the pain had increased again, and she was interested in receiving an injection to further improve her pain. (R. 383.) Plaintiff denied numbness but reported radiation of pain and she said the lumbar pain worsened with bending, lifting, and walking, and was aggravated by standing. (Id.) Dr. Abla-Yao noted that the problem was mild to moderate. (Id.) Physical examination showed limited range of motion of the back and tenderness to palpation of the lumbar region. (R. 385.) Dr. Abla-Yao scheduled Plaintiff for further lumbar/sacral injections which she administered on February 19, 2014. (R. 386, 388.)

         Also on February 19, 2014, Plaintiff saw Dr. Pellegrino and reported that Dr. Abla-Yao had just given her a steroid injection, she still had a lot of pain, and she wanted to increase the dosage of the pain patch. (R. 476.) Dr. ...

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