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Colon v. Saul

United States District Court, E.D. Pennsylvania

September 26, 2019

ANDREW SAUL, Commissioner of Social Security[1]


          ELIZABETH T. HEY, U.S.M.J.

         Miguel Colon (“Plaintiff”) seeks review of the Commissioner’s decision denying his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). For the reasons that follow, I conclude that the decision of the Administrative Law Judge (“ALJ”) denying benefits is not supported by substantial evidence and will remand the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).


         Plaintiff protectively filed for DIB and SSI on February 19, 2015, claiming that he became disabled on December 12, 2012, due to depression, fibromyalgia, left shoulder rotator cuff tear, tendonitis, impingement, cervical degenerative disc disease (“DDD”) with radiculopathy, bilateral carpal tunnel syndrome (“CTS”), diabetes mellitus, asthma, sleep disturbance, bilateral hip paresthesia, and bicep muscle tear. Tr. at 115, 116, 218, 225, 250.[2] The applications were denied initially, id. 121-25, 126-30, and Plaintiff requested an administrative hearing before an ALJ, id. at 131, which took place on March 23, 2017. Id. at 35-88. On August 8, 2017, the ALJ found that Plaintiff was not disabled. Id. at 19-30. The Appeals Council denied Plaintiff’s request for review on September 14, 2018, id. at 1-3, making the ALJ’s August 8, 2017 decision the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1472.

         Plaintiff commenced this action in federal court on November 5, 2018. Doc. 1. The matter is now fully briefed and ripe for review. Docs. 15, 17-18.[3]


         To prove disability, a claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for . . . not less than twelve months.” 42 U.S.C. § 423(d)(1). The Commissioner employs a five-step process, evaluating:

1. Whether the claimant is currently engaged in substantially gainful activity;
2. If not, whether the claimant has a “severe impairment” that significantly limits his physical or mental ability to perform basic work activities;
3. If so, whether based on the medical evidence, the impairment meets or equals the criteria of an impairment listed in the listing of impairments (“Listings”), 20 C.F.R. pt. 404, subpt. P, app. 1, which results in a presumption of disability;
4. If the impairment does not meet or equal the criteria for a listed impairment, whether, despite the severe impairment, the claimant has the residual functional capacity (“RFC”) to perform his past work; and
5. If the claimant cannot perform his past work, then the final step is to determine whether there is other work in the national economy that the claimant can perform.

See Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Plaintiff bears the burden of proof at steps one through four, while the burden shifts to the Commissioner at the fifth step to establish that the claimant is capable of performing other jobs in the local and national economies, in light of his age, education, work experience, and RFC. See Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).

         The court’s role on judicial review is to determine whether the Commissioner’s decision is supported by substantial evidence. 42 U.S.C. § 405(g); Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Therefore, the issue in this case is whether there is substantial evidence to support the Commissioner’s conclusions that Plaintiff is not disabled and is capable of performing jobs that exist in significant numbers in the national economy. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” and must be “more than a mere scintilla.” Zirnsak, 777 F.2d at 610 (quoting Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). The court has plenary review of legal issues. Schaudeck, 181 F.3d at 431.


         A. ALJ’s Findings and Plaintiff’s Claims

         The ALJ found that Plaintiff suffered from several severe impairments at the second step of the sequential evaluation; cervical and lumbar DDD, bilateral hip degenerative joint disease, CTS, left shoulder rotator cuff tear, depression, and post-traumatic stress disorder (“PTSD”). Tr. at 21. The ALJ found that Plaintiff did not have an impairment or combination of impairments that met the Listings, id. at 22, and that Plaintiff retained the RFC to perform light work with the abilities to sit for six hours, stand for four hours, and walk for four hours during the workday; frequently operate bilateral foot controls; occasionally climb ramps and stairs, balance, stoop, crouch, and reach with his non-dominant upper left extremity; never kneel, crawl, or climb ladders, ropes, or scaffolds; avoid all exposure to unprotected heights or moving mechanical parts; with a limitation to perform simple, routine, repetitive tasks involving no more than occasional interaction with the public and no more than few workplace changes; with no ability to work at a production rate pace or meet strict quota requirements, but able to meet all end-of-day goals. Id. at 23. At the fourth step of the evaluation, the ALJ found that Plaintiff could not perform his past relevant work as a maintenance supervisor or a store laborer. Id. at 28. However, at the fifth step, the ALJ found, based on the testimony of a vocational expert (“VE”), that Plaintiff could perform work that exists in significant numbers in the national economy, including jobs as an agricultural produce sorter and conveyor line bakery worker. Id. at 29.

         Plaintiff claims that the ALJ (1) failed to properly consider the opinions of treating physician Erica Coulter, M.D., and consultative examiner Roger Boatwright, M.D., (2) failed to adequately explain his finding that Plaintiff did not medically equal the Listings, (3) failed to explain his implicit rejection of testimony from lay witness Sally Ortiz, and (4) unreasonably relied on VE testimony. Doc. 14 at 4-17. Defendant responds that the ALJ properly considered the medical opinions and evidence and substantial evidence supports the ALJ’s decision. Doc. 17 at 16-30. In his reply brief, Plaintiff reiterates the arguments in his opening brief. Doc. 18.[4]

         B. Summary of Medical Evidence

          The notes in the record from Plaintiff’s primary care physician, Erica L. Coulter, M.D., begin in November 2013, when she was treating Plaintiff for atypical chest pain for which the doctor recommended a stress test; type II diabetes mellitus for which he was prescribed Lantus Solostar and Apidra Solastar[5] and participated in a diabetes group; CTS of the right hand[6] for which she referred him to an orthopedist; chronic left shoulder pain for which chiropractic treatment had offered limited improvement; hypertension for which he took lisinopril;[7] and arthralgias due to depression, fibromyalgia, [8] and osteoarthritis. Tr. at 907-08. In January 2014, Dr. Coulter recommended Plaintiff consult with an orthopedist regarding his left shoulder pain because an MRI showed diffuse tendonosis of the rotator cuff.[9] Id. at 897. Also in January 2014, Plaintiff complained of increased bilateral hip pain for which Dr. Coulter prescribed Tylenol with codeine. Id. at 891.

         On February 21, 2014, following a three-year history of neck and left shoulder, arm, and hand pain, Plaintiff underwent a left carpal tunnel release and left shoulder arthroscopy.[10] Tr. at 339, 361. During the arthroscopy, Paul F. Carroll, M.D., of Orthopedic Associates of Lancaster (“OAL”), also performed a biceps tenotomy and subacromial decompression.[11] Id. at 361-63. Three months after the surgery, Dr. Carroll noted that Plaintiff’s sensation in the area was intact, he had a negative Tinel’s sign in the left wrist, [12] had full range of motion of the fingers and wrist, was nontender to palpation over the shoulder, had full range of motion without pain in the shoulder with no impingement signs, and had excellent rotator cuff strength. Id. at 391-92. The concurrent physical therapy records also evidence significant improvement after surgery. See id. at 1039-40 (6/30/14 – discharge notes).

         Dr. Coulter continued to treat Plaintiff during the same period of his treatment with Dr. Carroll. On May 13, 2014, Dr. Coulter noted that Plaintiff’s shoulder pain was improving with physical therapy after surgery and he was no longer taking pain medication. Tr. at 873.

         Plaintiff began treatment with Thomas Ring, M.D., at OAL for bilateral hip pain in August of 2014. Tr. at 398-401. The following month, Dr. Ring reviewed an MRI of Plaintiff’s pelvis performed on September 4, 2014, which showed degenerative changes of the bilateral hip joints and the bilateral sacroiliac (“SI”) joints. Id. at 408. He referred Plaintiff to pain management specialist Jeffrey Conly, M.D., id., who performed two SI joint steroid injections on September 18, 2014. Id. at 426. The following month, Plaintiff complained of worsening hip pain with walking and extended periods of sitting. Id. at 427. An MRI performed on October 10, 2014, revealed no herniation or stenosis, but “a mild annular bulge at ¶ 3-L4 and less so at ¶ 4-L5, ” id. at 437, 680, and Plaintiff was referred for physical therapy. Id. at 437. In October 2014, Dr. Coulter noted that Plaintiff had been diagnosed with sacroiliitis and was “doing better after injections.” Id. at 867.

         On October 31, 2014, Plaintiff began complaining of vertigo and tension headaches, for which Dr. Coulter prescribed Zofran and meclizine[13] and added benign positional vertigo treatment to his physical therapy plan. Tr. at 861.[14] In February 2015, the doctor noted Plaintiff’s complaints of intermittent paresthesia in his legs causing his legs to buckle from weakness and pain for which Dr. Coulter wanted an EMG of his legs and was considering a referral to Dr. Conly. Id. at 848.

         In June 2015, Plaintiff returned to Dr. Conly, complaining of worsening pain in the prior few weeks for which Dr. Conly recommended medial and lateral branch block injections at ¶ 5, S1, and S2, tr. at 1060, which were performed on June 24, 2015. Id. at 1065. The records indicate that these injections provided complete relief for a week and a half, after which the pain returned. Id. at 1061, 1065. Dr. Conly referred Plaintiff to orthopedic surgeon Carl Adolph, M.D. Id. at 1064.

         On August 18, 2015, Dr. Adolph performed a left SI joint fusion. See tr. at 1074. X-rays performed on January 22, 2016 showed a stable instrumented left SI joint fusion. Id. at 1143. On the same date, physician’s assistant Christina Bulley noted that Plaintiff “ha[d] no complaints for his left SI joint, ” but he complained of pain in his right SI joint. Id. at 1144. On February 9, 2016, Dr. Adolph performed a right SI joint fusion. Id. at 1152. Follow up X-rays showed the bilateral SI joint fusions had “no evidence of any complications.” Id. at 1154, 1155. Thirteen days after surgery, Plaintiff reported a “constant sharp pain that radiate[d] over the posterior aspect of the leg to his foot, ” and increased pain with walking, sitting, and laying down. Id. at 1156.

         On March 21, 2016, Plaintiff reported to Dr. Adolph that his lower leg pain was gone, and that he had mild discomfort in the posterior right “glute” area but did not need any prescription or over-the-counter pain medications. Tr. at 1159. On May 27, 2016, Plaintiff complained of “some pain at times if he stands for long periods or walks long distance, ” and occasional discomfort in his right buttock and weakness in his shoulder. Id. at 1163. On examination, the doctor noted deconditioning, but no significant limp, and weakness in the left arm around the shoulder girdle. Id. at 1165.

         Plaintiff saw Dr. Carroll again on November 16, 2015, complaining of pain and locking in his right index and ring fingers and his left index and middle fingers, for which Dr. Carroll performed cortisone injections on the left hand.[15] Tr. at 1131-32. On December 17, 2015, physician assistant (“PA”) Rene Battista indicated that Plaintiff had no improvement in the symptoms of his left hand and orthopedic surgeon Vincent Battista, M.D., noted triggering[16] in the two fingers on the left hand and in Plaintiff’s right ring finger. Id. at 1137, 1138. Dr. Battista performed release surgery on Plaintiff’s left index and middle fingers and on his right ring finger. Id. at 1141, 1142, 1171-72 (12/29/15 - operative report, left middle and index fingers), 1169 (1/8/16 - operative report, right ring finger). Three weeks later, Dr. Battista noted that Plaintiff was progressing well with no numbness or tingling, but did complain of pain in his right ring finger and left middle finger and mild difficulty with flexion in both hands. Id. at 1142. On February 29, 2016, PA Battista noted that Plaintiff had stiffness but no pain in both hands and normal strength in both hands. Id. at 1158.

         On October 6, 2016, during a recheck of his earlier trigger finger releases, Plaintiff complained to Dr. Battista of pain and an inability to fully flex his left ring finger and thumb and his right middle finger. Tr. at 1176. On examination, Dr. Battista noted triggering of these three fingers. Id. at 1178. On October 11, 2016, Dr. Battista performed release surgery on the left ring finger and thumb, and a steroid injection of the right middle finger. Id. at 1167, 1181. Plaintiff’s left hand was doing “nicely” at his follow up appointment on December 1, 2016, and Plaintiff was preparing for release surgery for the right index and middle fingers, which was completed on December 16, 2016. Id. at 1181-82, 1183. Plaintiff was “doing well” at his follow up appointment on December 29, 2016. Id. at 1183.

         In addition to the issues with his shoulder, hips, and hands, Plaintiff was admitted to Lancaster General Hospital on June 4, 2016, with complaints of dizziness and edema. Tr. at 1423. On discharge, he was diagnosed with chronic kidney disease. Id. Renal function improved during the course of his two-day admission. Id.

         Roger Boatwright, M.D., conducted an examination at the request of the Administration on June 8, 2015. Tr. at 946-50. Dr. Boatwright noted that, although Plaintiff’s gait was normal, he was unable to walk on heels and toes, and could perform only a half-squat due to his low back and hip pain. Id. at 948. On examination, the doctor found tenderness in both SI joints and from L1 to L5. Id. The doctor diagnosed Plaintiff with depression, fibromyalgia, type 2 diabetes, asthma, sleep apnea, hypercholesterolemia, hypertension, history of left shoulder rotator cuff tear, bilateral hip paresthesias, and bilateral CTS. Id. at 949. In an attached range of motion chart, the doctor indicated limited range of motion of the lumbar spine. Id. at 958.

         Dr. Boatwright also completed a Medical Source Statement of Ability to do Work-Related Activities, finding Plaintiff could frequently lift twenty pounds and occasionally carry twenty pounds. Tr. at 951.[17] The doctor also found that Plaintiff could sit for four hours (thirty minutes at one time), and stand and walk for two hours each (ten minutes at a time) in an eight-hour day. Id. at 952. Dr. Boatwright found Plaintiff was limited to occasional use of his left hand to reach, handle, finger, feel, and push/pull. Id. at 953.

         Plaintiff’s primary care physician, Dr. Coulter, completed a Medical Source Statement of Ability to do Work-Related Activities regarding Plaintiff’s physical impairments on April 7, 2017, finding that Plaintiff could occasionally lift and carry up to twenty pounds, frequently reach with either hand, occasionally reach overhead with either hand, never handle, finger, feel, or push/pull with either hand, and occasionally use foot controls, climb stairs and ramps, and crawl. Id. at 1346-48.[18] The doctor indicated that Plaintiff’s use of a cane was medically necessary. Id. at 1347.

         Plaintiff began mental health treatment at Community Services Group (“CSG”) on October 4, 2013, at which time Lillian Pacheco, M.Ed., diagnosed Plaintiff with major depressive disorder (“MDD”), single episode, mild[19] and PTSD.[20]Tr. at 830. On October 13, 2013, psychiatrist Hector Diaz, M.D., concurred in the diagnoses, noting a history of chronic depression and trauma, and found that Plaintiff had a Global Assessment of Functioning (“GAF”) score of 55.[21]Id. at 1215-17. On mental status exam (“MSE”), the doctor indicated that Plaintiff was in “mild to moderate distress” and tearful at times, his affect was restricted, and he had “fairly good insight” and sound judgment. Id. at 1216. On October 16, 2013, the doctor recommended increasing tricyclic antidepressants (at the time Plaintiff was taking amitriptyline) and replacing trazodone with mirtazapine.[22]Id. at 816. Two weeks later, the doctor noted that Plaintiff ...

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