Tyler v. Astrue
Filing
31
MEMORANDUM OPINION re cross-motions for summary judgment. Signed by Judge Leonard P. Stark on 9/28/12. (ntl)
IN THE UNITED STATES biSTRICT COURT
FOR THE DISTRICT dF DELAWARE
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THERESA TYLER,
Plaintiff,
C.A. No. 10-599-LPS
v.
MICHAELJ. ASTRUE,
Commissioner of Social Security,
Defendant.
Gary Linarducci, Esquire, of LINARDUCCI &
BUT~ER, PA, Wilmington, DE.
Attorney for Plaintiff.
Charles M. Oberly, III, Esquire, United States AttornFY and Heather Benderson, Esquire
OFFICE OF THE UNITED STATES ATTORNEY, ~ilmington, DE.
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Eric P. Kressman, Esquire, SOCIAL SECURITY ADMINISTRATION - REGION III OFFICE
OF GENERAL COUNSEL, Philadelphia, PA.
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Attorneys for Defendant.
MEMORANDUM OPINION
September 28, 2012
Wilmington, Delaware
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INTRODUCTION
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Plaintiff, Theresa Tyler ("Tyler" or "Plaintiff!), appeals from a decision of defendant,
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Michael J. Astrue, the Commissioner of Social Secuility ("Commissioner" or "Defendant"),
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denying her claim for disability insurance benefits ("Pill") under Title II of the Social Security
Act, 42 U.S.C. §§ 401-433. This Court has jurisdictibn pursuant to 42 U.S.C. § 405(g).
Presently pending before the Court are cross-kotions for summary judgment filed by
Plaintiff and Defendant. (D.I. 24, 28) Plaintiff seek~ reversal of Defendant's decision and an
award ofDffi or, in the alternative, remand for furth+ analysis. (D.I. 25 at 18) Defendant
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requests the Court affirm his decision. (D.I. 29 at 21) For the reasons set forth below, the Court
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will deny Plaintiffs motion for summary judgment a~d grant Defendant's motion for summary
judgment.
II.
BACKGROUND
A.
Procedural History
Plaintiff filed her claim for DID on August 7, 2007, alleging disability since December
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31, 2003, due to high blood pressure, neck fusion, ru1hritis, and back pain. (D .I. 12 (hereinafter
"Tr.") at 10, 112) Plaintiffs claim for DID was denitd initially and upon reconsideration. (Id. at
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45-49, 54-58) Thereafter, Plaintiff requested a heari*g before an administrative law judge
("ALJ"). (Id. at 60-63) A hearing was held on Aprill7, 2009 before an ALJ, at which Plaintiff
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was represented by counsel. (Id. at 10) Plaintiff and a vocational expert testified at the hearing.
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(See id. at 20-41) On August 3, 2009, the ALJ issue1 a written decision in which he found that
Plaintiff was not disabled as defined in the Social
Se~urity Act.
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(!d. at 16) Plaintiff requested
review of the ALl's decision on August 5, 2009. (!d.' at 6) The Appeals Council denied
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Plaintiffs request for review on June 10, 2010. (Id. ~t 5) Thus, the August 3, 2009 decision of
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the ALJ became the final decision of the Commissiofer. See 20 C.F.R. §§ 404.955, 404.981;
Sims v. Apfel, 530 U.S. 103, 107 (2000).
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On July 14, 2010, Plaintiff filed a complaint ,eekingjudicial review ofthe ALl's August
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3, 2009 decision. (D.I. 2) Subsequently, on
Septem~er 23, 2011, Plaintiff moved for summary
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judgment. (D.I. 24) In response, on November 22, 21011, the Commissioner filed a cross-motion
for summary judgment. (D.I. 28)
B.
Factual Background
1.
Plaintiff's Medical History, treatment, and Condition
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Plaintiff was forty-seven years old on her all+ed disability onset date and was considered
a younger individual for disability determination p~oses. See 20 C.F.R. § 404.963(c); Tr. at
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112. She was forty-nine years old when the ALJ ren~ered a decision in this case. (Tr. at 16)
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Less than twenty days after the ALJ' s decision, Plair¥ff turned fifty years old. (!d. at 20)
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Plaintiff has a limited education; she left school in tefth grade and never obtained aGED. See
20 C.F.R. § 404.1564(b)(3); Tr. at 20. Plaintiffhas ~revious work experience as a packer,
assembler, and cashier. (Tr. at 34) In her application for DIB, Plaintiff relied on cervical and
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lumbar injuries as the cause of her disability. Plaintiffs relevant medical history is detailed
below.
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a.
Cervical and Lumbat Injuries
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Plaintiffhas a significant history of cervical spine injury. (!d. at 12) Plaintiff underwent
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a cervical fusion in 2002. (!d. at 12, 281) On May 1f, 2007, Plaintiffwas injured in a motor
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vehicle accident, which aggravated her past cervical
~pine
injuries. (!d. at 12-13, 282-83, 291,
307-08) As a result of the accident, Plaintiff was dia~osed with a strained neck and sprained
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ankle. (!d. at 212)
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Several days after the accident, Wayne I. Tuc~er, D.O., found that Plaintiffhad
tenderness and spasms along her spine. (!d. at
282-8~)
On May 25, 2007, Plaintiff told Dr.
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Tucker that she was sore and felt weak on the left si1e of her body. (!d. at 284) Dr. Tucker
observed spinal tenderness and spasms on two subsefuent examinations. (!d. at 285-86)
On July 9, 2007, Plaintiff underwent MRis other cervical and lumbar spine. (!d. at 13,
281, 289) The MRI of her cervical spine showed
sta~s-post cervical fusion at C6-7 and small
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central disc osteophyte complexes at C3-4 and C4-5,lbut no signs of disc extrusion or significant
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central canal or foramina! stenosis. (!d. at 13, 281) tn MRI ofPlaintiffs lumbar spine revealed
degenerative changes superimposed onto congenital farrowing at L4-5, which contributed to
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moderate central canal stenosis and mild bilateral fotminal stenosis. (!d. at 13, 289) A normal
variant ofleft-sided hemisacrolization at L5 and lig*entum flavum thickening on the left side at
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T10-11 also appeared, but there was no disc extrusiop at any level. (!d.)
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Ten days later, on July 19, 2007, Dr. Tucker ~gain observed tenderness in Plaintiffs
cervical and lumbosacral spine. (!d. at 287) Subseq111ently, on August 9, 2007, Plaintiff
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presented to Conrad K. King, Jr., M.D., with neck,
l~wer
back, and right ankle pain exacerbated
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by activity and partially relieved by medicine. (!d. a~ 308) Dr. King determined that Plaintiff had
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full range of motion in her cervical spine with discotfort at the extremes of rotation, extension,
and lateral bending. (!d. at 311) Dr. King also detetined that Plaintiff had moderate myospasm
in her left trapezius and mild myospasm in her right rapezius. (!d.) Based on his examination,
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Dr. King diagnosed Plaintiffwith strain/sprain ofherjcervical and lumbar spine and bruising,
with sprain, of her right ankle. (!d.) Dr. King opine4 that Plaintiff was "currently totally
disabled." (!d. at 310-11) Upon reexamination sevefal days later and in two subsequent
evaluations, Dr. King found tenderness and tightnesslin Plaintiffs spine. (!d. at 302)
On August 27, 2007, Bruce J. Rudin, M.D.,
cervical spine in January 2004, examined Plaintiff.
t~e orthopedist who had fused Plaintiffs
(~d. at 13, 194-95, 291)
Dr. Rudin noted
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Plaintiffhad likely sustained a fairly significant soft ~issue injury and fairly severe lumbar
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stenosis with severe facet disease at L4-5. (!d. at 13,1291) Dr. Rudin observed that Plaintiffwas
neurologically normal, but that she had restricted ran~e of motion in her neck and back with
surrounding bone tenderness. (!d.) He recommendet Plaintiff undergo lumbar epidural steroid
injections. (!d. at 13)
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On September 11, 2007, Dr. King found
Plai~tiffs physical status essentially unchanged.
(!d. at 305) He continued to diagnose Plaintiff with tervical and lumbar sprain/strain, but this
reso~ving.
time noted that her right ankle bruise/sprain was
(!d.) Dr. King opined that Plaintiff
remained disabled. (!d. at 305-06)
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Subsequently, on October II, 2007, V.K.
Kara,
M.D., a state agency physician,
reviewed the record evidence and concluded that Platntiff retained the residual functional
capacity ("RFC") to occasionally lift/carry twenty po
ds, frequently lift/carry ten pounds,
stand/walk at least two hours in an eight-hour workd y, sit about six hours in an eight-hour
workday, and had an unlimited ability to push or pul . (!d. at 296) Dr. Kataria further limited
Plaintiff to no balancing and to only occasional clim ing, stooping, kneeling, crouching, and
crawling. (!d. at 298) He also stated that Plaintiffs ould avoid concentrated exposure to
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vibration and hazards. (Id. at 299) Ultimately, Dr. ~ataria opined Plaintiff had a sedentary RFC.
(Id. at 297)
On October 16, 2007, Plaintiff complained to Dr. King of continued neck and low back
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pain exacerbated by daily activities. (Id. at 304) Dr.IKing observed tightness in Plaintiffs
trapezius and lumbar paraspinal muscles with palpabJe trigger points. (!d.) He opined that
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Plaintiff remained disabled. (!d.)
In November 2007, Plaintiff reported to Dr.
~ng that while the cooler weather increased
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her neck and lower back discomfort, she did "derive relief with use of pain medication." (Id. at
326) On examination, Dr. King observed moderate-r-marked myospasm of Plaintiffs trapezius
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and lumbar paraspinal muscles. (Id. at 326) Again, ?r. King opined that Plaintiff remained
disabled. (Id. at 326-27)
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Plaintiff visited with Dr. King or his associatf, Damon Cary, D.O., ten times between
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December 11,2007 and January 27,2009. (Id. at 31f-17, 322-25, 338-43) On December 11,
2007, Dr. King observed that Plaintiff had moderate }esidual myospasm ofthe trapezius and
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lumbar paraspinal muscles with palpable trigger poi4ts. (Id. at 324) On January 9, 2008, Dr.
Cary found ongoing muscle spasms over the trapeziaf and lumbar paraspinal muscles along with
trigger points in the lumbar region. (Id. at 322) On iuly 31, 2008, Dr. King again found trigger
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points in Plaintiffs trapezial and lumbar paraspinal tuscles. (Id. at 339) On September 26,
2008, Dr. King found tightness in these muscles.
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at 341) On January 27, 2009, Dr. King
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observed that Plaintiff had moderate-to-marked myofpasm in her trapezial and lumbar paraspinal
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muscles with a limited range of motion ofher cervic~ and lumbar spine. (Id. at 343)
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2.
The Administrative Hearing I
Plaintiffs administrative hearing took place 9n April 7, 2009. (Id. at 10, 17) Plaintiff
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testified at the hearing and was represented by couns+l. (Id. at 10) A vocational expert also
testified. (Id. at 34-40)
a.
Plaintiff's Testimony
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At the hearing, Plaintiff testified that she is fqrty-nine years old and lives with her
husband. (Id. at 20) Plaintiff stated that she is activd in her church and serves as an assistant to
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her pastor. (Id. at 29) She stated that she dropped o4t of high school in tenth grade and never
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received aGED. (Id.) Plaintiff testified that she pretiously was employed doing automotive
assembly work at General Motors. (Id. at 21) She f$ther testified that she was injured at work
after getting hit with a forklift in both 2002 and
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(!d.) Plaintiff stated that she has not
returned to work since her car accident in 2007. (Id. rt 21-22) She stated that she had undergone
surgery on her neck and fingers. (Id. at 22)
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Plaintiff also testified that she presently expetences neck and back pain as well as pain in
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her fingers. (Id. at 23) She stated that the pain varief day to day, but impacts her ability to grip
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objects and do housework and laundry. (Id. at 23, 2~, 27-28) She indicated that Dr. Roden has
been treating her pain, on and off, for the past seven years. (Id. at 24-25) Plaintiff stated that she
takes Percocet and medicine to treat high blood pres~ure. (Id. at 25) She testified that she drives,
but does not drive far from her home. (Id. at 25) Sh also testified that she can carry eight to ten
pounds, can stand for fifteen minutes before she nee s to sit down and rest, and can sit for half an
hour before she needs to get up. (Id. at 27, 30) She
rther testified that she can lift her head and
use both of her arms without any problems. (Id. at 3$)
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b.
Vocational Expert's testimony
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A vocational expert, Ellen C. Jenkins, also te$tified at the hearing. (See id. at 34-40) Ms.
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Jenkins classified Plaintiffs past relevant work expepence as follows: (1) Plaintiffs job as a
packer as a medium exertion level, unskilled job; (2)1Plaintiffs job as an assembler as a light
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exertion level, semi-skilled job; and (3) Plaintiffs jop as a cashier as a light exertion level,
unskilled job. (!d. at 34)
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The ALJ asked the vocational expert the follqwing question:
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Let's say we have a person who is 47~ears of age on her onset
date, has a 1Oth grade education ... ri t-handed by nature,
suffering from degenerative disc dise se, lumbar, cervical, mostly
cervical. She had a cervical fusion . ·1· in '02 as a work injury and
she's had several automobile acciden~since, some injury to the
left upper extremity. All of these thin s cause her to have
moderate pain and discomfort somew at relieved by her
medication without significant side e I ects, but she indicates in her
testimony today she derives some sle~iness from one or a
combination. And ifl find because of her pain she needs to have
simple, routine, unskilled jobs, SVP ~'she's able to attend tasks
and complete schedules, low-stress cgncentration and memory, she
can lift 10 pounds regularly and 20 o~ occasion, sit for an hour,
stand for five or 10 minutes if neede~d onsistently on an alternate
basis during an eight hour day, five d ys a week, would have to
avoid heights and hazardous machin
and nothing along
climbing, balancing, stooping, no overhead reaching with the left
upper extremity and would be mildly Jimited as to push and pull in
the right lower extremity, and no repetitive neck turning jobs, and
would seem to be able to do light work activities, can you can give
me jobs that such a person could do opt there in the national
economy in significant numbers in yopr opinion as a Vocational
Expert?
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(Id. at 35-36) In response, the vocational expert tesfed that, despite those limitations, such an
individual could perform the light, unskilled jobs of ropier operator and information clerk. (!d.
at 36) The vocational expert also testified that PlaintIf could perform her past job as a cashier so
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long as there was a stool that permitted a sit/stand option. (ld.)
3.
The ALJ's Findings
On August 3, 2009, the ALJ issued the
follo~ing findings: 1
1.
The claimant last met the insured sta4s requirements of the Social
Security Act on June 30, 2009.
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2.
The claimant did not engage in substttial gainful activity during
the period from her alleged onset date of May 11, 2007 through her
date last insured of June 30,2009 (20 C.F.R. 404.1471 et. seq.).
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3.
Through the date last insured, the clat~ant had the following
severe impairment: degenerative disc isease of the cervical spine
and lumbar spine (20 C.F.R. 404.152 (c)).
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4.
Through the date last insured, the claitnant did not have an
impairment or combination of impainPents that met or medically
equaled one of the listed impairments lin 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. 401.1525 and 404.1526).
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5.
After careful consideration of the enti e record, the undersigned
finds that, through the date last insure , the claimant had the
residual functional capacity to perfo light work as defined in 20
C.F.R. 404.1567(b) except the claim t must be able to sit for one
hour then stand for fifteen minutes oughout an eight-hour
workday. She must avoid heights, mF.ing machinery and she
cannot engage in prolonged climbing d stooping. The claimant
cannot perform repetitive neck tumin .
6.
Throughout the date last insured, the
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