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Laucella v. Berryhill

United States District Court, M.D. Pennsylvania

July 17, 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 April 2, 2014, alleging disability beginning on September 30, 2012. (R. 12.) After Plaintiff appealed the initial May 16, 2014, denial of the claim, a hearing was held by Administrative Law Judge (“ALJ”) Susan L. Torres on March 8, 2016. (Id.) ALJ Torres issued her Decision on April 15, 2016, concluding that Plaintiff had not been under a disability, as defined in the Social Security Act (“Act”), from September 30, 2012, through the date of the Decision. (R. 25.) Plaintiff requested review of the ALJ's decision which the Appeals Council denied on September 14, 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 November 3, 2017. (Doc. 1.) She asserts in her supporting brief that the Acting Commissioner's determination should be reversed or remanded for the following reasons: 1) the ALJ erred in failing to adequately consider the number of work absences that would result from emergency room visits and hospital admissions during the relevant time period; 2) the ALJ erred in according limited weight to Plaintiff's treating physicians' opinions; and 3) the ALJ erred in failing to include bilateral radiculopathy as a severe impairment at step two of the sequential evaluation process. (Doc. 13 at 19.) For the reasons discussed below, the Court concludes Plaintiff's appeal is properly granted in part.

         I. Background

         Plaintiff was born on January 15, 1969, and was forty-three years old on the alleged disability onset date. (R. 24.) She has a high school education and past relevant work as a hair stylist, deli worker, and claims clerk. (Id.) In an April 3, 2014, Disability Report, Plaintiff alleged that her ability to work was limited by diabetes, a heart condition, a back condition, PTSD, and gastroparesis. (R. 147.)

         A. Medical Evidence

         1. Primary Care

         Jason Galicia, M.D., of Keytsone Health was Plaintiff's primary care provider during the relevant time period. (R. 490-532, 598-602, 841-58, 858-61, 872-87.) In February 2012 Dr. Galicia noted the following chronic problems and the status of each: 1) diabetes mellitus was poorly controlled with Plaintiff taking medications regularly but not checking blood sugars at home; 2) hyperlipidemia was controlled with medication; 3) GERD was stable and controlled with medication; 4) coronary atherosclerosis was fairly controlled with Plaintiff taking medication regularly and she had not yet seen a cardiologist; 5) chronic low back pain status was stable with Plaintiff taking medications regularly and Plaintiff complained of worsening symptoms; and 6) PTSD was stable and Plaintiff did not require medications. (R. 498.) Physical exam of the spine was positive for posterior tenderness, paravertebral muscle spasm, and bilateral lumbosacral tenderness. (R. 499.)

         In July 2013, Plaintiff presented to Dr. Galicia for medical assistance form completion. (R. 504.) He noted that she had not been seen for eighteen months because of insurance constraints. (Id.) Dr. Galicia reported that diabetes was poorly controlled and other chronic conditions were either fairly controlled or stable. (Id.) He recorded no problems on physical exam. (R. 505-06.)

         October 2013 office visit notes indicate Plaintiff was having worsening exacerbation of her lumbosacral pain and worsening radiation of the left lower extremity with weakness and numbness. (R. 513.) Physical exam of the extremities showed positive 3/5 muscle strength on the left lower extremity, 75% sensory deficit as a pressure, pain on light touch on the left lower extremity, and absent reflexes on both lower extremities. (R. 514.)

         On March 14, 2014, Plaintiff saw Dr. Galicia for follow up after she had been in the hospital overnight due to nausea and vomiting. (R. 529.) Office notes indicate Plaintiff had been diagnosed with gastroparesis secondary to uncontrolled diabetes and opioid use. (R. 529.)

         In June 2014, Plaintiff complained of gait imbalance and unsteadiness and worsening back issues especially with prolonged standing. (R. 883.) Dr. Galicia added that pain management had increased her medications and she was doing well on Valium, morphine, and oxycodone. (Id.) Dr. Galicia noted that Plaintiff was being followed by endocrinology for her diabetes. (R. 882.) Regarding Plaintiff's thoracic or lumbar radiculitis, he recorded that her “unsteadiness could be proprioception loss, likely from the back issue, continue pain management evaluation and will trial physical therapy next visit if persistent.” (Id.)

         In July 2014, Dr. Galicia reported that Plaintiff was “having difficulty sustaining any form of work because of her radicular symptoms and with disc bulging, ” and she was having difficulty with uncontrolled blood sugars which were “very labile.” (R. 877.) He noted that her pain specialist recommended that she was not suitable for any kind of work and she also needed disability because of her uncontrolled blood sugars. (Id.)

         In December 2014, Dr. Galicia noted Plaintiff's lumbago was doing well on her narcotic regimen, her gastroparesis was stable on Reglan, she would be given a new prescription for Valium for her PTSD, and she was stable from a cardiac standpoint. (R. 857.)

         Plaintiff saw Dr. Galicia in April 2015 for a routine visit. (R. 598.) He noted that her diabetes was being managed by endocrinology and she was also seeing pain management. (R. 599.) Dr. Galicia's Assessment/Plan included the following: her diabetes was improving but she would need further adjustments about which he would defer to endocrinology; cardiac problems were stable on medication regimen; gastroparesis was stable with Plaintiff taking Reglan as needed; GERD was controlled with Protonix; Plaintiff was followed monthly by pain management for lumbosacral radiculopathy and was reportedly doing well on a narcotic regimen; and PTSD was stable on her psychiatric regimen and she would discuss medication side effects with psychiatry. (R. 598.) No problems were recorded on physical exam. (R. 599.)

         In November 2015, Dr. Galicia noted that Plaintiff recovered well from a recent episode of gastroparesis exacerbation and she would continue Reglan as needed. (R. 846.)

         In January 2016, Plaintiff reported chronic left shoulder pain for which Dr. Galicia recommended further diagnostic evaluation and ordered an upper extremity MRI. (R. 841.)

         2. Endocrinology Specialist

         On April 9, 2014, Plaintiff presented to Tiffany Morton, M.D., of Summit Endocrinology for evaluation of poorly controlled diabetes. (R. 231.) Dr. Morton noted that Plaintiff had not been checking her blood sugars and needed a new meter, she was following with GI for gastroparesis and Reglan had improved her symptoms, she had a history of peripheral neuropathy with numbness and tingling worse at night, she was followed in the pain clinic for chronic back pain, she was not working, and she was filing for disability. (R. 231.) No problems were found on physical exam and Dr. Morton specifically noted that Plaintiff walked with a normal gait and 5/5 muscle strength bilaterally in the upper and lower extremities. (R. 232-33.) She also noted that Plaintiff subjectively complained of neuropathy symptoms but foot check showed full sensation. (R. 233.) Dr. Morton's plan was for Plaintiff to continue on her current medication regimen and check her blood sugars four times daily for two to three weeks and bring the meter to her next visit. (R. 233.)

         On September 23, 2014, Dr. Morton noted that Plaintiff's last visit was five months earlier and she had missed several appointments in the interim. (R. 1073.) Plaintiff reported that she was fatigued, and had neuralgias and numbness but no leg swelling or weakness. (Id.) No problems were noted on physical exam. (R. 1074-75.) Dr. Morton assessed Plaintiff's diabetes to be poorly controlled in setting of noncompliance and poor follow-up. (Id.) She noted, however, that Plaintiff had started taking insulin as directed and her blood sugars were improving. (Id.) Dr. Morton also noted that Plaintiff's foot check was normal although she subjectively complained of neuropathy symptoms. (R. 1075.)

         In November 2014, Plaintiff again reported fatigue and arthralgias but denied leg swelling, numbness, and weakness. (R. 1078.) She also reported decreased energy and hair loss. (Id.) No problems were recorded on physical exam. (R. 1079-80.) Dr. Morton continued to find diabetes poorly controlled with a history of poor compliance and lack of blood sugar data and, although she was attempting to improve, blood sugar levels were worse than at the previous visit. (R. 1080.) She again noted that Plaintiff's foot check showed full sensation but subjective neuropathy symptoms were reported and she was taking neurontin. (Id.) Office notes indicate Plaintiff was being seen at the pain clinic for neuropathy and chronic back pain with a taper of narcotic medications planned. (R. 1078.) In March 2015, Dr. Morton again reported poorly controlled diabetes, adding that Plaintiff had not been checking her blood sugars. (R. 594.)

         3. Pain Management

         a. Rehab Medicine Associates

         Plaintiff was seen at Rehab Medicine Associates, P.C., almost monthly from March 2014 through September 2016. (R. 465-88, 580-83.) She was primarily seen by Jay J. Cho, M.D., who initially evaluated her on March 19, 2012, at the request of Dr. Galicia. (R. 488.) Plaintiff complained of pain in the low back which sometimes extended to the left thigh and hamstring. (Id.) At the time she was working as a packer in a factory where she was standing and bending all day as well as lifting. (Id.) Physical exam showed almost full mobility of the lumbar spine, tenderness at the piriformis, and mildly limited trunk rotation. (R. 487.) Dr. Cho found no sign of radiculopathy. (Id.) He thought the pain was purely muscle, myofascial type pain with underlying facet degenerative joint disease at ¶ 5-S1. (Id.) He noted that she was starting to see early signs of sensory diabetic neuropathy in the legs. (Id.) Ne recommended Percocet as needed for pain and McKenzie's exercises as the best way to decrease back pain and increase muscle strength. (Id.)

         In April Dr. Cho noted that Plaintiff was able to resume all activities though she said Oxycodone (given for surgery) was not strong enough. (R. 485-86.) Plaintiff was working as a packer for a food company and attending school for criminal justice at the time. (R. 486.) Exam showed lumbar spine mobility was full, single leg raise was negative bilaterally, DTR was present but somewhat depressed, and pinprick exam was impaired in the foot area. (R. 484-85.) Dr. Cho recommended that Plaintiff stop Percocet and start Oxycodone and Amitriptyline. (R. 485.)

         In May Dr. Cho stopped Amitriptyline and tried Klonopin which was reported to be “working excellent” in June with Plaintiff continuing all activities. (R. 483, 484.) Although he found some tenderness at the upper mid-thoracic area due to scapula muscle weakness with neuropathy, absent DTR in the legs, and significant sensory loss in the legs with trophic change in July, Dr. Cho noted that pain was controlled well and Plaintiff had resumed all activities, “including vocation.” (R. 482.)

         On September 13, 2012, Plaintiff reported increased pain and back spasms related to taking care of her father. (R. 481.) Office notes indicate she was working as a packer at the time. (Id.) This report continued in October when Dr. Cho observed that Plaintiff was doing well overall. (R. 480.) In November, Plaintiff reported she was temporarily working a second job and her pain was much better controlled. (R. 479.) Dr. Cho found some trapezius tenderness, absent DTR in the legs and impaired pinprick, and the ability to heel/toe walk. (Id.) He continued to assess lumbar spine pain with facet DJD, myofascial pain, and diabetic neuropathy. (R. 479.) He commented that the current medications were controlling symptoms reasonably well. (Id.)

         In January 2013 Dr. Cho found increased muscle spasms and diabetic neuropathy were causing more pain. (R. 477.) He related the back pain to an upper respiratory infection. (Id.) Plaintiff was much better by the end of January and continued to work as a packer on second shift. (R. 476.) She reported at the time she was going for water exercise and therapy and going to the gym regularly which helped with her leg and back pain. (Id.) In March and early April, lower back pain was reportedly well controlled. (R. 474, 475.) Although Dr. Cho noted the development of right shoulder tendinopathy in March which Plaintiff said caused lifting problems, he noted that pain was well controlled in April and Plaintiff had been able to resume all activities. (Id.) On April 29, 2013, Dr. Cho noted that Plaintiff was “doing excellent.” (R. 473.) The Review of Systems indicated that Plaintiff had more energy, had been able to increase her activities, she was going to the gym, her blood sugar was more stable, and she could perform her jobs. (Id.) On May 20, 2013, Dr. Cho noted that Plaintiff was able to perform her job and all activities but she had pain in the right shoulder due to overuse for which he gave her Voltaren gel. (R. 472.) On June 24, 2013, he noted that Plaintiff reported the gel was working “fantastic” for her and she was “very happy.” (R. 471.)

         On July 22, 2013, Plaintiff stated that her lower back pain was not too bad but she had more tingling/numbness and aching pain in both feet and she felt some weakness after walking for a while. (R. 470.) She also reported that she had been in the hospital emergency room because of severe constipation and the ER doctor gave her magnesium citrate. (Id.) Dr. Cho commented that “[m]ore diabetic peripheral neuropathy is now a problem.” (Id.) He recommended cutting back on Oxycodone and Valium, and he gave her laxatives. (Id.) No major problems were noted in August and September (R. 468, 469) but Plaintiff reported a lot of pain in her back related to two jobs with continuous bending and lifting (R. 467). Physical exam showed markedly limited lumbar spine mobility with reversed lordosis, palpable muscle spasms mid to lower lumbar area, S-I joint tenderness, trochanter bursa tenderness, ongoing absent DTR, and diffuse neuropathic change in the legs with impaired pinprick. (Id.) Dr. Cho noted that he reviewed the November 14, 2013, MRI films which showed mild facet DJD, mainly L4-5, with mild foraminal stenosis and mild central spinal canal stenosis, and small size left L5-S1 herniated disc but clinically nonsignificant. (Id.)

         In early 2014, Dr. Cho noted that Plaintiff's main problem was systemic pain with advanced diabetic polynueropathy and her lower back pain was “not a big issue.” (R. 466.) He recommended that she stay on all medications and control her diabetes, take vitamins, and do her exercises. (Id.) Plaintiff continued to work through March 2014 (R. 465, 466) but in May she reported that she stopped working at the end of March having been “on and off of work since 2012 due to diabetes, polyneuropathy and other things.” (R. 583.) Dr. Cho noted that Plaintiff had applied for disability and he agreed that Plaintiff was not able to work with the diabetic polyneuropathy, proximal muscle weakness, and back pain with aching. (R. 583.) On physical exam he found lumbar spine aching pain and mildly limited range of motion; sitting single leg raise at 90 degrees bilaterally; decreased muscle tone; tenderness in the trochanter bursa, S-I joint, gluteus, and lumbar spine; and absent DTR. (Id.)

         In June, Plaintiff reported trouble doing activities of daily living, she had aching in her entire body, and she had no energy. (R. 582.) On physical exam, Dr. Cho's findings included decreased muscle tone with atrophy in the proximal muscles, trunk muscles, and shoulder muscles; tenderness in the lower back, S-I joint, and gluteus; absent DTR; and sensory impairment. (Id.) He stated the following in the “Comment” section of the record: “[a]dvanced diabetic polyneuropathy is a big problem[;] [p]roximal muscle weakness[;] [t]his patient is not able to work any job.” (Id.) In September 2014, Jeffrey Sarsfield, M.D., noted that Plaintiff was on permanent disability due to diabetic neuropathy. (R. 581.)

         b. Summit - Pain Medicine

         Plaintiff had an initial visit with Amanpreet Sandhu, M.D., of Summit - Pain Medicine on November 3, 2014. (R. 586-89.) She presented with chronic pain involving her lower back which she attributed to bulging discs as well as a burning sensation involving both feet which she attributed to diabetic neuropathy. (R. 586.) She said the pain, which she rated at 8/10-10/10, interfered with sleep, her ability to do activities of daily living, and social functioning. (R. 586.) Plaintiff also said she was unable to work due to chronic pain, she could not sit or stand for long periods, and she could not lift or do any bending activity. (Id.) Dr. Sandhu noted that Plaintiff had recently gone on Medicaid and was told she would not be seen by Dr. Cho or Dr. Sarsfield anymore. (Id.) Physical exam showed musculoskeletal normal range of motion, motor 5/5 bilateral upper and lower extremities, sensory soft touch intact bilaterally except decreased sensation in the feet bilaterally, normal gait, SLR negative, Faber positive bilaterally, SI tenderness bilaterally, positive midline and paraspinal muscle tenderness of the lumbosacral spine, lumbar flexion and extension caused pain, and facet loading strongly positive bilaterally. (R. 587-88.) Dr. Sandhu assessed the following: intervertebral disc displacement lumbar without myelopathy; lumbago; myalgia and myositis unspecified; neuritis or radiculitis thoracic or lumbosacral unspecified; other chronic pain; sacroiliitis not eslewhere classified; spondylosis lumbar without myelopathy; and diabetes with neurological manifestations type II uncontrolled. (R. 588.) Dr. Sandhu explained that Plaintiff had multiple pain generators and “unfortunately” she was on high-dose narcotics and had developed significant tolerance and dependency. (R. 589.) Because of this, Dr. Sandhu recommended Plaintiff taper down the narcotics substantially and discontinue Valium, and noted that following the taper Plaintiff would be considered for interventional spine procedures. (Id.) For the neuropathic component of her pain and diabetic neuropathy, Dr. Sandhu recommended that Plaintiff continue Neurontin. (Id.) Plaintiff was to follow up with Dr. Sandhu as needed but she did not return to the practice. (Id.)

         c. American Spine

         Plaintiff was seen for back pain almost monthly from December 2014 through February 2016 at American Spine in Hagerstown, Maryland, by Mike Yuan, M.D., Shirley Coffie, ANP, or Susan Bennett, PA. (R. 889-969.) On December 4, 2014, Plaintiff said she had pain in her lower back which radiated to both feet, ankles, calves, thighs, and arms. (R. 965.) She described the pain as aching, burning, deep, diffuse, dull, sharp, shooting, stabbing, and throbbing; she said it was aggravated by daily activities and relieved by pain medications and rest. (Id.) Examination of back and spine showed posterior tenderness, lumbosacral paravertebral muscle spasm, and antalgic gait. (R. 968.) Dr. Yuan assessed displacement of intervertebral disc with MRI ordered; degeneration of lumbar or lumbosacral intervertebral disc; thoracic or lumbar radiculitis; and chronic pain syndrome. He noted that Plaintifff had previously been managed by Dr. Cho and his office was closed. (Id.) Dr. Yuan planned to change Plaintiff's pain medication regimen. (R. 969.)

         In January and February 2015, Dr. Yuan noted that Plaintiff's pain was stable and her medication regimen would be continued as it was ...

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