Kinney v. HHS Commissioner of Social Security Administration

Filing 15

MEMORANDUM Our review of the administrative record reveals that the decision of the Commissioner is not supported by substantial evidence. We will, therefore, pursuant to 42 U.S.C. § 405(g) vacate the decision of the Commissioner and remand the case to the Commissioner for further proceedings.An appropriate order will be entered. Signed by Honorable Richard P. Conaboy on 3/8/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAURIE A. KINNEY,

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Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

CIVIL NO. 3:11-CV-1848
(Judge Conaboy)

MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Laurie A. Kinney’s claim for social security
disability insurance benefits.
Disability insurance benefits are paid to an individual
if that individual is disabled and “insured,” that is, the
individual has worked long enough and paid social security taxes.
The last date that a claimant meets the requirements of being
insured is commonly referred to as the “date last insured.”

It is

undisputed that Kinney met the insured status requirements of the
Social Security Act through December 31, 2008.
95, 444 and 446.1

Tr. 13, 15, 81,

In order to establish entitlement to disability

insurance benefits Kinney was required to establish that she

1. References to “Tr.___” are to pages of the administrative
record filed by the Defendant as part of his Answer on December
9, 2011.

suffered from a disability on or before that date. 42 U.S.C. §
423(a)(1)(A), (c)(1)(B); 20 C.F.R. § 404.131(a)(2008); see Matullo
v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
On April 11, 2008, Kinney protectively filed2 an
application for disability insurance benefits.3 Tr. 13, 51, 74-80,
95 and 597.

In her application for disability insurance benefits

Kinney claimed that she became disabled on November 15, 2003. Tr.
74.

However, when interviewed by an officer of the Social

Security Administration she stated that she became unable to work
on November 8, 2003, because of a back injury.4 Tr. 88.
Kinney’s application for disability insurance benefits
was initially denied by the Bureau of Disability Determination5 on
June 16, 2008. Tr. 53-56.

On June 24, 2008, Kinney requested a

2. Protective filing is a term for the first time an individual
contacts the Social Security Administration to file a claim for
benefits. A protective filing date allows an individual to have
an earlier application date than the date the application is
actually signed.
3. Kinney previously filed an application for supplemental
security income benefits as well as an application for disability
insurance beneftis. Those prior applications were denied on
April 17, 2006, and Kinney did not seek administrative review of
the denial of those applications. Consequently, the relevant
time period is from April 18, 2006, to December 31, 2008,
Kinney’s date last insured.
4. As will be explained in more detail infra the record reveals
that on or about November 8, 2003, Kinney suffered a compression
fracture of the L2 vertebral body of the lumbar spine. Tr. 244.
5. The Bureau of Disability Determination is an agency of the
state which initially evaluates applications for disability
insurance benefits on behalf of the Social Security
Administration. Tr. 53.
2

hearing before an administrative law judge. Tr. 57-58.

After

approximately 12 months had passed, a hearing was held on June 10,
2009, before an administrative law judge. Tr. 32-50 and 616-633.
On July 9, 2009, the administrative law judge issued a decision
denying Kinney’s application for benefits. Tr. 13-20 and 569-576.
On July 22, 2009, Kinney filed a request for review of the
decision with the Appeals Council of the Social Security
Administration. Tr. 7-9 and 584.

On November 13, 2009, the

Appeals Council concluded that there was no basis upon which to
grant Kinney’s request for review. Tr. 1-4 and 580-583.

Thus, the

administrative law judge’s decision stood as the final decision of
the Commissioner.
Kinney then filed on January 15, 2010, an action in this
court. Kinney v. Astrue, Civil No. 10-00104 (M.D. Pa)(Muir, J.).
On July 27, 2010, that case was remanded by Judge Muir to the
Commissioner for further proceedings. Tr. 514-565.

Judge Muir’s

opinion in relevant part explained the basis for the remand as
follows:
From our detailed review . . . of the administration law
judge’s decision and the medical records, it [is] not
hard for one to discern the legal and factual errors
made by the administrative law judge. At this point we
will specify those errors.
First, the administrative law judge at step 2 of the
sequential evaluation process found that the only severe
impairment was degenerative disc disease and the only
other impairment that was medically determinable –
status post compression fracture – was a non-severe
impairment. However, the medical records reveal that
Kinney was diagnosed with several other impairments.
3

Specifically, she was diagnosed with suffering from
foraminal stenosis on the right at the L5-S1 level,
facet hypertrophy, sacroiliitis bilaterally, a history
of hypertension, and a depressive disorder. Also, the
state agency physician, Dr. Potera, after reviewing the
medical records concluded that Kinney suffered from
right leg radiculopathy.
As noted [previously] all medically determinable
impairments, severe and non-severe, are to be considered
in the subsequent steps of the sequential evaluation
process. The failure of the administrative law judge to
find these conditions as medically determinable
impairments, or give an adequate explanation for
discounting them, makes the subsequent steps of the
sequential evaluation process defective.
Second, the administrative law judge as stated earlier
concluded that the compression fracture was a non-severe
impairment and that it caused no functional limitations.
In light of the medical records and the Physical
Residual Functional Capacity Assessment form completed
by the state agency physician, Dr. Potera, it is hard to
discern how the administrative law judge came to the
conclusion that the compression fracture was a nonsevere impairment. A severe impairment as explained . .
. is an impairment that significantly limits an
individual’s ability to perform basic work activities
such as walking, standing, sitting and pushing. An
impairment is non-severe when medical and other evidence
established only a slight abnormality that would have no
more than a minimal effect on an individual’s ability to
work. Dr. Potera determined that Kinney’s primary
diagnosis was a compression fracture at the L2 level and
based on that primary diagnosis Dr. Potera significantly
limited her to less than the full range of work. Tr.
436-440. Absent from the administrative record is a
statement by a medical professional that the compression
fracture had no more than a minimal effect on Kinney’s
ability to work. The conclusion that the compression
fracture was not a severe impairment is not supported by
substantial evidence.
Third, the failure to address the issue of whether or
not Kinney suffered from foraminal stenosis on the right
at the L5-S1 level, facet hypertrophy, sacroiliitis
bilaterally, a history of hypertension, a depressive
disorder and right leg radiculopathy does not only call
4

into question the administrative law judge’s residual
functional capacity determination but it also calls into
question the administrative law judge’s assessment of
Kinney’s credibility. The administrative law judge
concluded that Kinney’s statements concerning the
intensity, persistence and limiting effects of her pain
were not credible. This finding is suspect because the
administrative law judge did not make a determination as
to whether or not Kinney suffered from the above
conditions. It is also suspect because the
administrative law judge concluded that the compression
fracture was a non-severe impairment causing no
functional limitations.
Fourth, the administrative law judge used
inappropriate boilerplate language in assessing Kinney’s
credibility and we will repeat some of that language.
The administrative law judge at page 6 of her decision
stated as follows:
Generally, when an individual has suffered pain
over an extended period of time, there will be
observable signs such as a significant loss of
weight, an altered gait or limitation of motion,
local morbid changes, or poor coloring or station.
In the present case, the claimant has complained of
pain over an extended period of time. None of the
above signs of chronic pain is evident. While not
conclusory by itself, this factor contributes to
the determination that the claimant is not disabled
as a result of pain.
Tr. 18 (emphasis added). The medical records, as
detailed in this order, reveal where examining
physicians noted an altered gait, local morbid changes
(muscle atrophy), loss of weight and limitation of range
of motion. The administrative law judge’s finding that
the medical records contain no evidence of a significant
weight loss, an altered gait, limitation of motion, or
local morbid changes is clearly erroneous.
Finally, Kinney was unrepresented at the administrative
hearing. That hearing lasted 23 minutes. There was no
attempt by the administrative law judge to obtain an
assessment from Kinney’s treating physicians regarding
Kinney’s functional capacity. The administrative law
judge had a responsibility to investigate the facts and
develop the arguments both for and against granting
5

benefits. In this case she did not fulfill that
responsibility
Kinney v. Astrue, Civil No. 10-00104, slip op. at 48-52 (M.D.Pa.
July 27, 2010)(Muir, J.)(Doc. 11).
A second hearing before the same administrative law
judge was held on January 25, 2011. Tr. 495-512.

On June 6, 2011,

2011, the administrative law judge issued a decision denying
Kinney’s application. Tr. 444-456.

Where a case is on remand from

a Federal District Court, the decision of the ALJ becomes the
final decision of the Commissioner 61 days after it is rendered
and notice given to the claimant of the ALJ’s decision, if no
exceptions are filed with the Appeals Council and the Appeals
Council does not review the decision on its own. Tr. 442.

No

exceptions were filed and the Appeals Council did not review the
decision of the ALJ on its own.
Kinney then filed a timely complaint in this court on
October 6, 2011.

Supporting and opposing briefs were submitted

and the appeal6 became ripe for disposition on April 9, 2012, when
Kinney elected not to file a reply brief.
Kinney was born in the United States on March 15, 1964.
Tr.

37, 51, 74, 81, 95, and 168, 589, 594, 597 and 621.

She

6. Under the Local Rules of Court “[a] civil action brought to
review a decision of the Social Security Administration denying a
claim for social security disability benefits” is “adjudicated as
an appeal.” M.D.Pa. Local Rule 83.40.1.
6

graduated from high school in 1982, can read, write, understand
and speak English and perform basic mathematical functions.
38, 46, 87, 93 and 622.

Tr.

During her elementary and secondary

schooling, Kinney attended regular education classes. Tr. 93.
After high school, Kinney did not complete “any type of special job
training, trade or vocational school.” Id.
Kinney has past relevant work experience7 as a
convenience store clerk which was described by a vocational expert
as unskilled, light work,

and as a waitress described as semi-

skilled, light work.8 Tr. 46, 82-86 and 89.

In documents filed

7. Past relevant employment in the present case means work
performed during the 15 years prior to the date the Commissioner
adjudicated Kinney’s case. 20 C.F.R. §§ 404.1560 and 404.1565.
8. The terms sedentary, light and medium work are defined in the
Social Security regulations as follows:
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are
met.
(b) Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
(continued...)
7

with the Social Security Administration Kinney stated that her
work as a convenience store clerk and waitress occurred from 1990
to 2003 and that she worked 4 hours per day, 5 days per week.
89, 110 and 112.

Tr.

The job she performed the longest according to

her statement was the waitress position and the heaviest items
lifted weighed 50 pounds and she frequently lifted 10 pound items.
Tr. 89.
Although Kinney’s work history spans 21 years, she has a
relatively low earnings history with an average yearly income of
$2962.80.

Records from the Social Security Administration reveal

that Kinney had earnings in the years 1983, 1984, 1987, and 1990
through 2003 as follows:
1983
1984
1987
1990
1991
1992
1993

8.

$ 2906.58
1354.24
178.22
1005.27
484.66
1015.00
524.62

(...continued)
ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.

20 C.F.R. § 404.1567.
8

1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
Tr. 82 and 613.

878.50
1548.75
230.00
5162.93
6987.26
10398.61
9497.88
8978.42
5954.37
5113.44
Kinney’s total earnings during those years were

$62,218.75. Tr. 613.

Kinney had no earnings in the years 1985,

1986, 1988, 1989 and has had no earnings since 2003.
For the reasons set forth below we will remand the case
to the Commissioner for further proceedings.
STANDARD OF REVIEW
When considering a social security appeal, we have
plenary review of all legal issues decided by the Commissioner.
See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d
Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin.,

181

F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d
857, 858 (3d Cir. 1995).

However, our review of the

Commissioner’s findings of fact pursuant to 42 U.S.C. § 405(g) is
to determine whether those findings are supported by "substantial
evidence."

Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Factual findings which are supported by substantial evidence must
be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001)(“Where the ALJ’s findings of fact are supported
9

by substantial evidence, we are bound by those findings, even if
we would have decided the factual inquiry differently.”); Cotter
v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)(“Findings of fact by
the Secretary must be accepted as conclusive by a reviewing court
if supported by substantial evidence.”);

Keefe v. Shalala, 71

F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176
(4th Cir. 2001);

Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529

n.11 (11th Cir. 1990).
Substantial evidence “does not mean a large or
considerable amount of evidence, but ‘rather such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565
(1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197,
229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d
198, 200 (3d Cir. 2008);
(3d Cir. 1999).

Hartranft v. Apfel, 181 F.3d 358, 360

Substantial evidence has been described as more

than a mere scintilla of evidence but less than a preponderance.
Brown, 845 F.2d at 1213.

In an adequately developed factual

record substantial evidence may be "something less than the weight
of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all
the other evidence in the record," Cotter, 642 F.2d at 706, and
10

"must take into account whatever in the record fairly detracts
from its weight."

Universal Camera Corp. v. N.L.R.B., 340 U.S.

474, 488 (1971).

A single piece of evidence is not substantial

evidence if the Commissioner ignores countervailing evidence or
fails to resolve a conflict created by the evidence.
F.2d at 1064.

Mason, 994

The Commissioner must indicate which evidence was

accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642
F.2d at 706-707.

Therefore, a court reviewing the decision of the

Commissioner must scrutinize the record as a whole.

Smith v.

Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v.
Califano, 606 F.2d 403, 407 (3d Cir. 1979).
Another critical requirement is that the Commissioner
adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131
(2d Cir. 2000)(“The ALJ has an obligation to develop the record in
light of the non-adversarial nature of benefits proceedings,
regardless of whether the claimant is represented by counsel.”);
Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction
v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari,
270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433.
437 (7th Cir. 2000);

see also Sims v. Apfel, 530 U.S. 103, 120

S.Ct. 2080, 2085 (2000)(“It is the ALJ’s duty to investigate the
facts and develop the arguments both for and against granting

11

benefits[.]”).

If the record is not adequately developed, remand

for further proceedings is appropriate. Id.
SEQUENTIAL EVALUATION PROCESS
To receive disability benefits, the plaintiff must
demonstrate an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.”

42 U.S.C. § 432(d)(1)(A).

Furthermore,
[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), “work which exists in the
national economy” means work which exists in significant
numbers either in the region where such individual
lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in
evaluating claims for disability insurance benefits.
C.F.R. §404.1520; Poulos, 474 F.3d at 91-92.

See 20

This process

requires the Commissioner to consider, in sequence, whether a

12

claimant (1) is engaging in substantial gainful activity,9 (2) has
an impairment that is severe or a combination of impairments that
is severe,10 (3) has an impairment or combination of impairments
that meets or equals the requirements of a listed impairment,11
(4) has the residual functional capacity to return to his or her
past work and (5) if not, whether he or she can perform other work
in the national economy. Id.

As part of step four the

9. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
proceeds no further.
10.
The determination of whether a claimant has any severe
impairments, at step two of the sequential evaluation process, is
a threshold test. 20 C.F.R. § 404.1520(c). If a claimant has no
impairment or combination of impairments which significantly
limits the claimant’s physical or mental abilities to perform
basic work activities, the claimant is “not disabled” and the
evaluation process ends at step two. Id. If a claimant has any
severe impairments, the evaluation process continues. 20 C.F.R.
§ 404.1520(d)-(g). Furthermore, all medically determinable
impairments, severe and non-severe, are considered in the
subsequent steps of the sequential evaluation process. 20 C.F.R.
§§ 404.1523 and 404.1545(a)(2).
11. If the claimant has an impairment or combination of
impairments that meets or equals a listed impairment, the
claimant is disabled. If the claimant does not have an impairment
or combination of impairments that meets or equals a listed
impairment, the sequential evaluation process proceeds to the
next step. 20 C.F.R. § 404.1525 explains that the listing of
impairments “describes for each of the major body systems
impairments that [are] consider[ed] to be severe enough to
prevent an individual from doing any gainful activity, regardless
of his or her age, education, or work experience.” Section
404.1525 also explains that if an impairment does not meet or
medically equal the criteria of a listing an applicant for
benefits may still be found disabled at a later step in the
sequential evaluation process.
13

administrative law judge must determine the claimant’s residual
functional capacity. Id.12
Residual functional capacity is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis.

See Social

Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A
regular and continuing basis contemplates full-time employment and
is defined as eight hours a day, five days per week or other
similar schedule.

The residual functional capacity assessment

must include a discussion of the individual’s abilities.

Id; 20

C.F.R. § 404.1545; Hartranft, 181 F.3d at 359 n.1 (“‘Residual
functional capacity’ is defined as that which an individual is
still able to do despite the limitations caused by his or her
impairment(s).”).
MEDICAL RECORDS
Before we address the administrative law judge’s
decision and the arguments of counsel, we will review in detail
Kinney’s medical records.

The medical records contained within

the administrative record span the time period of January 1, 2003,
through March 17, 2011.

Because the relevant time frame is from

April 18, 2006 (the date after her prior applications for

12. If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
14

supplemental security income benefits and for disability insurance
benefits were denied) through the date last insured (December 31,
2008), the medical records prior to and after those dates have
limited relevance other than to show the nature of her medical
condition for historical purposes.
The first medical record we encounter in the
administrative record is from January 1, 2003. Tr. 130-133.

That

medical record reveals that Kinney had an appointment at the
Williamsport Hospital & Medical Center, Urgicenter,13 for IV
antibiotic treatment for an acute dental abscess.

Tr. 131-132.

Kinney returned to the Urgicenter on January 2, 2003, for a
“recheck” of her IV antibiotic treatment.

Tr. 134-137. Kinney was

given Percocet for severe pain, instructed to continue with the
antibiotic and follow-up with her family physician if she did not
improve. Tr. 137.

The record reveals that Kinney repeatedly

sought treatment for dental problems at the Emergency Department
of the Williamsport Hospital.14

13. The Emergency Department at the Williamsport Hospital was
divided into two separate treatment areas: (1) Emergency and (2)
Urgicenter. The Urgicenter was for patients with less critical
medical conditions. When Kinney visited the Urgicenter in
contrast to the emergency treatment area, we will so indicate.
14. We will not review in this memorandum the numerous records
of Kinney seeking such treatment but refer the reader to Judge
Muir’s memorandum.
15

On February 11, 2003, Kinney visited the Williamsport
Hospital complaining of chest pressure and pain which had lasted 5
days.

Tr. 138-145.

She was admitted to the hospital on that date

and discharged on February 12, 2003. Tr. 138. The treating
physician, James R. Owens, M.D., stated in a report of the
encounter as follows:
This is a 38-year-old female . . . who presents with
chest pain to sharp intensity with radiation to the
left jaw with pain originating at the upper sternum
x 5 days starting on Friday. This pain was intermittent
at first lasting only a few minutes with waxing and
waning presentation. Yesterday the chest pain became
chest pressure with chest tightness all throughout.
The patient had dyspnea on exertion but shortness of
breath when sitting or lying. Denies nausea, vomiting
or diaphoresis. Does have some palpitations with pain
and increased blood pressure which the patient is able
to “feel.” Last evening the patient had a two pillow
orthopnea with the patient feeling better in the upright
position . . . No history of previous chest pain
episodes. . . In the emergency room the pain decreased
to 4 out of 10 after one sublingual Nitroglycerin . . .
.
Tr. 138.

Kinney’s blood pressure initially was 151/104 but

subsequently decreased to 125/82. Tr. 140.

Dr. Owens noted a

history of degenerative joint disease in the hips, back and left
knee secondary to a motor vehicle accident. Tr. 139.

Dr. Owens

ordered blood tests and gave a differential diagnosis,15 including

15. “Differential diagnosis” is “[t]he process of weighing the
probability of one disease versus that of other diseases possibly
accounting for a patient’s illness.” http://www.medterms.
com/script/main/art.asp?articlekey=2991 (Last accessed March 4,
(continued...)
16

myocardial infarction, unstable angina, gastroesophageal reflux
disease and esophageal spasm. Tr. 140.

Kinney was also found to

have an elevated blood sugar. Tr. 141.
On February 23, 2003, Kinney visited the Emergency
Department at the Williamsport Hospital complaining of low back
pain resulting from an injury at work. Tr. 146-150.
was musculoligamentous16 low back pain. Tr. 147.

The diagnosis

Kinney was

directed to take several pain medications and have bed rest for 12 days. Tr. 150.

She was discharged from the hospital in stable

condition and given an excuse from work for February 24 and 25,
2003. Tr. 148-150.
On March 11, 2003, Kinney visited the Emergency
Department at the Williamsport Hospital complaining of chest
tightness. Tr. 151-154.

Her blood pressure was 160/100. Tr. 153.

The record of this visit indicates that she left the hospital
without seeing a physician but that she “has ap[poin]t[ment]
[with] [primary] MD tomorrow.” Tr. 153.

Kinney’s primary care

physician noted on the record was Jay K. Miller, M.D. Tr. 151.
On April 30, 2003, Kinney visited the Urgicenter at the
Williamsport Hospital complaining of low back pain. Tr. 155-160.

15. (...continued)
2013).
16.

This is medical term for describing a back strain or sprain.
17

The record of this visit indicates that she had flu like symptoms
for three days but that those symptoms had generally resolved. Tr.
159.

She still, however, had pain throughout the lumbar area

which according to her was consistent with her chronic back pain.
Id.

She claimed that she had bulging discs without a “radicular

component” or “loss of bowel or bladder function.” Id.

The

physical examination revealed that her blood pressure was 155/99
and she “was palpably tender throughout the paraspinal musculature
of the lumbar region, prominently left side and extending into the
gluteal musculature.” Id.

Kinney was prescribed pain medications

and instructed to use warm compresses, do mild stretching, and
follow-up with her primary care physician, Dr. Miller.

Tr. 160.

She was also given a note excusing her from work. Id.
On May 13, 2003, Kinney visited the Emergency Department
at the Williamsport Hospital complaining of a severe migraine
headache. Tr. 161-167.
of 1 to 10.

Kinney rated her pain as a 10 on a scale

The pain was on the right side above the right eye

and throbbing in nature. The headache was accompanied by nausea.
The physical examination revealed that her blood pressure was
150/102.

She was very photophobic, tender on both temples and

both sides of the neck “seemed to be quite tense.”

Tr. 163.

The

examining physician, Maher Alhashimi, M.D., was unable to see the
fundus of the eye. Id.

Dr. Alhashimi administered various

18

medications which seemed to relieve her headache and brought her
blood pressure down to 120/80. Tr. 164.

Dr. Alhashimi prescribed

a combination of drugs - Midrin, Reglan and Klonopin – and she was
discharged from the hospital on May 14, 2003, with instructions to
follow-up with her primary care physician, Dr. Miller. Id.
On July 2, 2003, Kinney visited the Emergency Department
at the Williamsport Hospital complaining of heavy vaginal bleeding
and back pain. Tr. 174-179. Her blood pressure was 139/94.
178.

Tr.

Blood tests were ordered and the results were unremarkable.

Tr. 177.

The diagnosis was “heavy vaginal bleeding, etiology

uncertain.” Id.

The treating physician Gerhard C. Senula, M.D.,

talked to her about having an ultrasound examination and she was
given a prescription for Provera and instructed to follow-up with
Dr. Miller. Id.
On August 22, 2003, Kinney visited the Urgicenter at the
Williamsport Hospital complaining of neck pain. Tr. 180-186.
blood pressure was 147/96. Tr. 184.

Her

She was diagnosed as

suffering from an acute myofascial strain, given pain medications,
discharged and told to follow-up with her primary care physician,
Dr. Miller. Tr. 185.
On November 8, 2003, Kinney visited the Williamsport
Hospital. Tr. 215-219.

On that date which corresponds with

Kinney’s alleged disability onset date, Kinney had an altercation

19

with her spouse and suffered a back injury.

The records suggest

that both Kinney and her husband were consuming alcohol. Tr. 216
Kinney was pushed into a wall resulting in pain to her lumbar and
sacral regions. Tr. 217.

She was transported to the Williamsport

Hospital by ambulance. Tr. 215.

Kinney’s condition was monitored,

she was given pain medications (Toradol and Nubain), and after
several hours was discharged with instructions to apply ice to the
affected regions and fill a prescription for Percocet, a pain
medication. Tr. 218-219.

There is no indication that radiographs

were taken of her lower back on November 8, 2003.
On November 10, 2003, Kinney returned to the
Williamsport Hospital complaining of severe back pain. Tr. 220225. Radiographs of her lumbar spine were taken and revealed a
compression fracture of the L2 vertebra. Tr. 222.

Dr. Senula’s

diagnosis was as follows: “L2 compression fracture with mild
retropulsion of bony fragments.” Id.17

A report of this

17. The pathophysiology of a compression fracture has been
described in an article by Andrew L. Sherman, M.D.,M.S., as
follows:
The lumbar spine provides both stability and support,
allowing humans to walk upright. Proper function of the
lumbar spine requires that it have a normal posture
(ie, a normal lumbar curve). Any injury that changes
the shape of a lumbar vertebra will alter the lumbar
posture, increasing or decreasing the lumbar curve. As
the body attempts to compensate for the alteration in
the lumbar spine in order to maintain an upright
(continued...)
20

17.

(...continued)
posture, this will tend to distort the curves of the
thoracic and cervical spine.
Lumbar compression fractures can be a devastating
injury, therefore, for 2 reasons. First, the fracture
itself can cause significant pain, and this pain
sometimes does not resolve. Second, the fracture can
alter the mechanics of the posture. Most often, the
result is an increase in thoracic kyphosis, sometimes
to the point that the patient cannot stand upright. In
trying to maintain their ability to walk, patients with
kyphosis report secondary pain in their hips,
sacroiliac joints, and spinal joints. These patients
are also at risk for falls and accidents, increasing
the risk of secondary fractures in the spine and
elsewhere.
Fractures in the lumbar spine occur for a number of
reasons. In younger patients, fractures are usually due
to violent trauma. Car accidents frequently cause
flexion and flexion distraction injuries. Jumps or
falls from heights cause burst fractures. These
fractures can also result in serious neurological
injury. In older patients, lumbar compression fractures
usually occur in the absence of trauma, or in the
context of minor trauma, such as a fall. The most
common underlying reason for these fractures in
geriatric patients, especially women, is osteoporosis.
Other disorders that can contribute to the occurrence
of compression fractures include malignancy,
infections, and renal disease.

http://emedicine.medscape.com/article/309615-overview (Last
accessed March 4, 2013). According to Thomas A. Zdeblick, M.D.,
Professor and Chairman, Orthopaedic Surgery, University of
Wisconsin, “[w]edge fractures are considered serious when the
fracture affects adjacent vertebrae, anterior wedging is 50%,
severe hyperkyphosis (bent forward) is present, or bone
fragment(s) are suspect in the spinal canal.” http://www.
spineuniverse.com/conditions/osteoporosis/vertebral-wedge-fract
ure (Last accessed March 4, 2013). “Kyphosis is a curving of
the spine that causes a bowing of the back, which leads to a
(continued...)
21

visit was also prepared by Hani J. Tuffaha, M.D., which states in
pertinent part as follows:
This is a 39-year-old Caucasian female who was
reportedly pushed by her husband and fell to the
floor on 11/8/03. The husband was apparently
drinking prior to that. She was evaluated in the
emergency room on that date and was complaining of
low back pain with no weakness, radicular pain or
numbness. She was treated symptomatically and
discharged. She returned to the emergency room
on 11/10/03 complaining of severe low back pain
especially with movement and change of position.
She stated that Percocet and Motrin gave her
temporary partial relief. She reported that
when she stands she “loses urine.” . . . She
continues to be free of any radicular type of pain
or numbness in her lower extremities. She is
unaware of focal weaknesses in her lower extremities.
She denies any mid or upper back pain or any neck
pain.18
*

*

*

*

*

*

*

*

*

*

*

Of significance is a history of chronic, intractable
low back pain syndrome attributed to an auto accident
a couple years ago.
*

*

*

*

*

*

*

*

*

*

*

Examination of her lower back after I turned her on
her side partially revealed some tenderness in the mid
and upper lumbar region. There is some paravertebral
muscle stiffness. Her straight-leg raising is unlimited
to 75 degrees bilaterally at which point it resulted in

17. (...continued)
hunchback or slouching posture.” Kyphosis, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/ency/article/001240.htm
(Last accessed March 4, 2013).
18. It is worth noting that at the time of the examination,
Kinney was medicated with Toradol and morphine sulfate.
22

increased low back pain but no leg pain.19 There is
some pain with internal and external rotation of the
hips. The femoral nerve stretching test is moderately
painful bilaterally.
*

*

*

*

*

*

*

*

*

*

*

Her lumbar spine x-rays were reviewed along with a
lumbar CT scan. There is evidence of a compression
fracture of L2 with mild impingement on the spinal
canal from the posterior aspect of L2 compression.
The pedicles, facets, laminae and spinous process are
intact. There is no angulation of (sic) malalignment.
IMPRESSION: Compression fracture of L2 with no
significant compression of the cauda equina.20 The
patient has severe low back pain with no radiculopathy.
It is not clear at this time why she becomes
incontinent of urine during standing.
Tr. 223-224.

Dr. Tuffaha noted that he doubted she would need

surgical intervention and gave her a prescription for Hydrocodone
as well as a lumbar support. Tr. 225.

He further ordered an MRI

of the lumbar spine. Id.

19. The straight leg raise test is done to determine whether a
patient with low back pain has an underlying herniated disc. The
patient, either lying or sitting with the knee straight, has his
or her leg lifted. The test is positive if pain is produced
between 30 and 70 degrees. Niccola V. Hawkinson, DNP, RN, Testing
for Herniated Discs: Straight Leg Raise, SpineUniverse,
http://www.spineuniverse.com/experts/testing-herniated
-discs-straight-leg-raise (Last accessed March 4, 2013).
20. The “cauda equina” is “the collection of spinal roots that
descend from the lower part of the spinal cord and are located
within the lumbar cistern of the caudal dural sac; their
appearance resembles the tail of a horse.” See Dorland’s
Illustrated Medical Dictionary, 308 (32nd Ed. 2012).
23

The report of the x-rays taken on November 10, 2003,
states in pertinent part as follows: “[E]xamination reveals
moderate superior plate and anterior L2 compression fracture
deformity . . . There appears to be some fragment retropulsion off
the posterior L2 vertebral body encroaching the spinal canal.”
Tr. 226.

The report of the CT scan taken on November 10, 2003,

states in pertinent part as follows: “There is a comminuted21
compression fracture through only the body of L2.”

Tr. 227.

On November 19, 2003, an MRI of Kinney’s lumbar spine
was taken. Tr. 243-244 and 361.

The report of that MRI conflicts

with Dr. Tuffaha’s earlier assessment of the fracture to the
extent that the MRI revealed angulation of the lumbar spine at the
L2 level.

That report states in relevant part as follows:
There is a moderate sized wedge shaped compression
fracture of the L2 vertebral body . . . This results
in bulging of the posterosuperior aspect of the L2
vertebral body into the spinal canal as well as
angulation of the lumbar spine at this level. No
free fragment is seen. At the L1-2 disc level, no
disc herniation is seen.
*

*

*

*

*

*

*

*

*

*

*

Sections through the L4-5 disc level demonstrate disc
bulging with a super-imposed right neural foraminal
disc protrusion.
*

*

*

*

*

*

*

*

*

*

21. A comminuted fracture is a fracture in which the bone is
broken, splintered or crushed into a number of pieces.
24

*

There is evidence of degenerative disc change at the
L4-5 and L5-S1 disc levels. At the L5-S1 disc level,
there is diffuse disc bulging with a super-imposed right
neural foraminal disc protrusion with associated
osteophyte22 formation, which result in neural foraminal
narrowing.23
Tr. 243-244 (emphasis added).
On December 5, 2003, Kinney had another appointment with
Dr. Tuffaha. Tr. 242.

In a report of that visit Dr. Tuffaha

stated that Kinney complained of severe mid and low back pain but
no radicular pain.

Kinney described “jerking” in the legs at

night and urinary incontinence or urgency when she stands. Id.
She further reported increased pain at night.

The physical

examination revealed that she ambulated with crutches and had
marked restriction of range of motion at the waist. Id.24

Dr.

Tuffaha’s impression was as follows: “Healing superior compression
fracture of L2 with no neurological deficits.” Id.
On February 20, 2004, Kinney had an appointment with Dr.
Tuffaha.

Tr. 241.

In a report of that visit Dr. Tuffaha stated

that Kinney
22. An osteophyte is a bony growth or spur.
See Dorland’s
Illustrated Medical Dictionary, 1348 (32nd Ed. 2012).
23. “Neural foraminal” refers to the space or opening in the
vertebra where a nerve passes out from the spinal cord.
24. The medical record of this appointment does state that she
was wearing a simple lumbar corset with no metal stays in the
front but it is not clear whether she removed the corset prior to
the physical examination by Dr. Tuffaha.
25

continues to be symptomatic with low back pain, which
is particularly bothersome with prolonged sitting and
lying down. She is able to walk for fifteen minutes.
She remains free of radicular pain, but describes
“shakiness” in the legs at times. She is using a
pair of crutches since she does not have a walker
or cane. She is taking Lortab 7.5, four times per
day.25
On examination, there is tenderness over the lumbar
spine with dramatic painful response. . . .
Id.

Dr. Tuffaha goes on to state that x-rays of February 20,

2004, reveal a “healing” compression fracture and then in the
impression section of his report refers to a “healed” compression
fracture with lingering low back pain. Id.

Dr. Tuffaha

recommended to Kinney the option of surgical fusion to alleviate
her back pain. Id.
X-rays were taken on February 20, 2004. Tr. 246.

The

report of those x-rays do not refer to a “healed” compression
fracture.

That report states as follows:
Lateral view of the lumbar spine were obtained in
neutral, flexion, and extension. There is at least
a 50% anterior wedge compression26 fracture of L2 with
associated compression of the superior cortical plate
of L2. There are several millimeters of posterior
displacement of L2 at the L1-2 level. There is no
motion at the L1-2 level between flexion and extension.
The motion occurs at other disc spaces.

25. Lortab 7.5 is a pain medication consisting of a combination
of acetaminophen and hydrocodone.
26. See footnote 17, supra, explaining that wedge fractures can
be serious when the anterior wedging is 50%.
26

IMPRESSION: Moderate compression fracture of L2. The
degree of compression fracture has increased only
minimally since the films from 11/10/03 but the degree
of localized kyphosis at that area has increased
somewhat. No other changes have occurred.
Id.
On April 25, 2004, Kinney visited the Emergency
Department at the Williamsport Hospital complaining of severe back
pain. Tr. 260-265.

Her blood pressure was 154/105.

Tr. 264.

She

was given pain medications, monitored for several hours and
discharged after her pain subsided. Id.
follow-up with Dr. Tuffaha.

She was instructed to

Tr. 265.

On June 23, 2004, Kinney visited the Emergency
Department at the Williamsport Hospital complaining of low and mid
back pain. Tr. 260-265.

Her blood pressure was 126/92. Tr. 270.

She was given pain medications, monitored for approximately an
hour and discharged after she stated she was feeling better.
270 and 273.

Tr.

She was instructed to follow-up with Dr. Tuffaha.

Tr. 271.
Also, on June 23, 2004, radiographs of Kinney’s lumbar
spine were taken. Tr. 245 and 274.

The report of those

radiographs states in relevant part as follows:
There is an anterior wedging of the L2 vertebral
body. The vertebra is decreased in height anteriorly
by 50% relative to the posterior vertebral body margin
which remains normal in height. The compression
fracture has not progressed during the interval studies.
There is minimal fragmental displacement anteriorly,
27

although no change since the prior study. The superior
endplate of L2 is increasing in density suggesting
bone healing. As would be expected, there is localized
kyphosis at the L1-2 level.
Flexion and extension films show no translation of the
lumbar vertebra in the AP direction. There is mild
disc space narrowing at the L5-S1
IMPRESSION: 1. Stable compression fracture of L2.
2. No abnormal vertebral motion within the lumbar
spine with flexion or extension.
Tr. 274.
On July 23, 2004, Kinney was examined by Arun
Kalyanasundaram, M.D., at the Geisinger Medical Center, Danville,
Pennsylvania. Tr. 377-378.

The report of that visit prepared by

Dr. Kalyanasundaram states in part as follows:
Dr. Tuffaha from Williamsport was taking care of her
back injury. Primarily, her pain medications were being
taken care of by him. He had recommended surgery.
. . . Pain has been getting worse. Apparently, Dr.
Tuffaha did not continue to follow her 2 months earlier
secondary to her wanting a second opinion. Since then,
has been going from ER to ER for pain meds. Seen in our
ER and then referred here for a PCP.27 States that her
legs have been shaking after standing for 10 minutes.
No bowel problems. States that she has been having
some urinary incontinence that has improved. No
numbness or tingling down her legs.
*
Tr. 377.

*

*

*

*

*

*

*

*

*

*

Dr. Kalyanasundaram’s physical examination of Kinney

revealed that her weight was 183 pounds, and she had lower back
tenderness and pain on flexion. Tr. 378.

Dr. Kalyanasundaram

stated that Kinney “needs crutches secondary to pain.” Id.
27.

“PCP” is an abbreviation for primary care physician.
28

His

assessment was that Kinney was suffering from a wedge fracture of
the L2 vertebra and he started her on methadone for long term pain
relief. Id.
On July 26, 2004, Kinney had an MRI of the lumbar spine
which revealed the following:
[A] compression fracture of L2 with wedge deformity and
a burst component.28 There is a retropulsed fragment but
no spinal cord or nerve root compression at this level.
There is resultant mild kyphotic deformity centered on
this level.
There is narrowing of the neural foramen on the right
at L5-S1.
There is a small left paracentral disk protrusion at
L5-S1.
There is a disk bulge and a small central protrusion
at L4-L5.
Tr. 428 (emphasis added).
On August 9, 2004, Kinney had an appointment with Dr.
Kalyanasundaram.

Tr. 379.

Dr. Kalyanasundaram noted that

Kinney’s back pain had “improved on the methadone” and that she
“[t]akes 1 percocet daily.” Id.

Kinney’s physical examination was

essentially normal other than a slightly elevated blood pressure.
Id.

Her weight was 183 pounds. Id.
On October 1, 2004, Kinney visited the Urgicenter at the

Williamsport Hospital complaining of severe sharp and burning low
back pain which radiated to her legs. Tr. 306-312.

28.

See footnote 30, infra.
29

Kinney was

diagnosed with chronic low back pain and a lumbar compression
fracture. Tr. 309.

It was noted that she was recently treated at

Geisinger Medical Center and she was discharged with instructions
to follow-up at that facility. Tr. 308 and 312.

At the time of

her discharge her condition was unchanged. Tr. 311.

This appears

to be the first time Kinney reported radicular symptoms, that is,
radiating pain to the lower extremities.
On October 7, 2004, Kinney had an appointment with David
Andreyesik, M.D., at the Geisinger Medical Center. Tr. 381.

The

report of that visit states in part that Kinney “[r]ecently had a
history of radiating pain to the right lower extremity to the
level of the right foot.

This has been ongoing for the past three

weeks . . . The radiating right lower extremity pain which
occurred three weeks ago was after an encounter, when being thrown
against a wall. . . She is currently using medications without
significant relief. . . She is here today for an evaluation.” Id.
(emphasis added).29

The physical examination of Kinney was

essentially normal other than having “[p]ositive pain on palpation
in the mid and lower back areas.” Id.

X-rays were performed which

revealed an “L2 burst fracture.” Id.30

Dr. Andreyesik noted that

29. This appears to be an additional trauma to Kinney’s spine
after the alleged disability onset date of November 8, 2003.
30.

Thomas A. Zdeblick, M.D., Professor and Chairman,
(continued...)
30

“[a]n MRI from November of 2003 also revealed an L2 burst
fracture.” Id.

Dr. Andreyesik’s assessment was that Kinney was

suffering from an L2 burst fracture and ordered a new MRI. Id.
On November 3, 2004, Kinney visited the Urgicenter at
the Williamsport Hospital complaining of severe back pain of a
burning sharp nature and radiating to the legs. Tr. 315.

The

physical examination record states that Kinney was in moderate to

30. (...continued)
Orthopaedic Surgery, University of Wisconsin, describes a burst
fracture as follows:
A burst fracture is a descriptive term for an injury to
the spine in which the vertebral body is severely
compressed. They typically occur from severe trauma,
such as a motor vehicle accident or a fall from a
height. With a great deal of force vertically onto the
spine, a vertebra may be crushed.
If it is only crushed in the front part of the spine,
it becomes wedge shaped and is called a compression
fracture. However, if the vertebral body is crushed in
all directions it is called a burst fracture. The term
burst implies that the margins of the vertebral body
spread out in all directions. This is a much more
severe injury than a compression fracture for two
reasons. With the bony margins spreading out in all
directions the spinal cord is liable to be injured. The
bony fragment that is spread out toward the spinal cord
can bruise the spinal cord causing paralysis or partial
neurologic injury.
Thomas A. Zdeblick, M.D., Burst Fractures: Defined and Diagnosed,
SpineUniverse, http://www.spineuniverse.com/conditions/spinal
-fractures/burst-fractures-defined-diagnosed (Last accessed March
4, 2013).
31

severe distress. Tr. 316.

She had decreased range of motion in

the back, muscle spasm and vertebral point-tenderness.

Id.

Kinney was discharged with instruction to take certain medications
and follow-up with her physician at Geisinger Medical Center.

Tr.

319.
On November 15, 2004, Kinney had an appointment with Dr.
Kalyanasundaram at Geisinger Medical Center. Tr. 382.

Kinney

reported that she still had back pain and it might have gotten
worse.

Id.

She also stated that she had “radicular symptoms if

she walked a lot.”

Id.

The physical examination revealed a

weight of 181 pounds, tenderness in the mid and lower back areas,
and a positive straight leg raising test at about 45 degrees. Id.
Because of insurance problems an MRI had not been performed and
one was again ordered. Id.
On April 8, 2005, Kinney had an appointment with Dr.
Kalyanasundaram at the Geisinger Medical Center. Tr. 383. Kinney
was depressed at this appointment. Id.

She stated that back pain

might have gotten worse and she still was having radicular
symptoms. Id.

A physical examination revealed that she weighed

174 pounds, she had tenderness in the mid and lower back areas,
and she had a positive straight leg raising test at 45 degrees.
Id.

Dr. Kalyanasundaram gave her a prescription for the pain

medication Percocet and the antidepressant Celexa.
32

Id.

On July 22, 2005, Kinney had an appointment with Juan C.
Salgado Campo, M.D., at Geisinger Medical Center.

Tr. 384-386.

Dr. Salgado Campo’s report of this appointment notes Kinney’s
worsening radicular symptoms, the recent start of an
antidepressant and the failure to obtain an MRI because of
insurance issues. Tr. 384.

He further noted that Kinney now has

insurance and, therefore, he reordered an MRI. Tr. 386.

Dr.

Salgado Campo’s physical examination of Kinney revealed that she
had lost weight. Tr. 385.

She weighed 166 pounds.

The physical

examination further revealed a positive straight leg raising test
at 30 degrees. Id.

Kinney was diagnosed with a vertebral fracture

and a depressive disorder. Tr. 386.
On September 28, 2005, Kinney had an appointment with
Patricia A. Sanchez, M.D., at Geisinger Medical Center. Tr. 387388.

At that appointment Kinney weighed 166 pounds, she had mild

to moderate spasm of paralumbar muscles, she had some limitation
of flexion, a positive straight leg raising test of the left lower
extremity at 45 degrees, bilateral muscle atrophy of the legs, and
bilateral muscular weakness of the legs. Tr. 387.

Dr. Sanchez’s

assessment was that Kinney was suffering from chronic lumbar pain
as the result of a lumbar fracture and disk compression. Id.
On October 28, 2005, Kinney visited the Emergency
Department at Williamsport Hospital complaining of bilateral leg
33

spasm. Tr. 353-360.

Kinney apparently became impatient and left

before she could be seen by a physician. Id.
On December 20, 2005, Kinney had an appointment with Dr.
Salgado Campo at the Geisinger Medical Center regarding her
chronic pain. Tr. 389.

The physical examination revealed that

Kinney weighed 169 pounds, she had a positive straight leg raising
test and she walked with crutches. Id.

The diagnoses was

vertebral wedge fracture and chronic back pain. Id.

Dr. Salgado

Campo completed a disability sticker form for her motor vehicle.
Id.
On January 16, 2006, Kinney had an appointment with
Shaik Mohd L. Ahmed, M.D., at Geisinger Medical Center,
Interventional Pain Center. Tr. 390-392.

Kinney complained of

pain in the distal thoracic, the low back with radiation to the
buttocks and occasional radiation of pain to the right posterior
thigh and calf. Tr. 390.

The physical examination revealed that

Kinney’s gait was slow and antalgic, her flexion of the back was
reduced 50 degrees and causes low back pain, her extension and
rotation of the back produced low back pain, she had a positive
bilateral straight leg raising test and a positive bilateral
Patrick’s maneuver, and her sacroiliac joint was tender. Tr. 392.
Dr. Ahmed’s assessment was that Kinney was suffering from an L2
compression fracture, facet syndrome, foraminal stenosis on the
34

right at the L5-S1 levels, facet hypertrophy, lumbago,
degenerative disc disease, and sacroilitis bilaterally. Id.
His plan was to attempt facet joint injections to alleviate the
pain.31 Id.
On March 10, 2006, Kinney had an appointment at the
Geisinger Medical Center regarding an abscess in the vulvar area.
Tr. 393-394.

The physical examination revealed that she weighed

160 pounds and her blood pressure was 158/94. Tr. 394.

She was

treated with antibiotics.
On March 13, 2006, Kinney had an appointment with Dr.
Ahmed at the Interventional Pain Center and a lumbar facet block
injection (steroid injection) was administered. Tr. 395-396.

She

had significant relief of pain after this procedure and a followup visit was scheduled for one month from the date of the
injection. Tr. 396.
On April 28, 2006, Kinney had an appointment with Dr.
Salgado Campo at Geisinger Medical Center. Tr. 397-398.

At that

appointment Kinney weighed 153 pounds and she had a positive
straight leg raising test. Tr. 397.

31. Kinney was referred to Dr. Ahmed by Dr. Salgado Campo for a
consultative examination. Dr. Ahmed’s report of this
consultation included a section entitled “History of Present
Illness” and a section entitled “Physical Exam.”
35

Additional steroid injections were administered on July
12 and October 31, 2006, and February 26, June 20, and September
25, 2007, resulting in temporary relief of pain.
406-407, 409-411, and 415.

Tr. 399-400,

At the appointment on February 26,

2007, it was observed that Kinney had multiple “pox” marks on her
face, arms and legs with no active drainage and that she had
increased pain with range of motion of the lumbar spine and
palpation of the lumbar facets. Tr. 410.

At the appointment on

June 20, 2007, it was noted that Kinney continued with severe
lumbago but also was having some right L5-S1 radiculopathy. Tr.
411.
On July 12, 2006, an MRI revealed that Kinney had a
“chronic anterior wedging of L2 vertebral body with a burst
component without significant canal narrowing.”

Tr. 430.

It

further revealed “some degenerative disc desiccation and
generalized disc bulging at L4-L5 and L5-S1. Small posterior
central disc protrusion is present at L4-L5. At L5-S1 there is
also small right lateral disc protrusion with narrowing of the
right neural foramen. No focal disc herniation is seen in the rest
of the lumbar intervertebral discs.” Id.
On July 31, 2006, Kinney visited the Geisinger Medical
Center complaining of a severe migraine headache and was examined
by Yuba R. Acharya, M.D. Tr. 401-402.
36

Kinney’s headache was

“mainly lateralized to the right side involving the right eye and
occipital region” and she had been having “electric shock like
pain in both legs associated with jerky movements of her legs
mainly at night.” Dr. Acharya’s physical examination of Kinney
revealed that Kinney was ill and uncomfortable appearing, sobbing
most of the time and had mild to moderate spasm of the paralumbar
muscles and some limitation of flexion.

Other than those findings

the physical examination was essentially normal. Id.

Dr.

Acharya’s assessment was that Kinney was suffering from an acute
migraine headache and backache caused by the intervetebral disc
protrusion.

Dr. Acharya was of the opinion that the jerking of

the legs was caused by “restless leg syndrome or some
psychological factor.”

Tr. 402.

He gave her an injection in the

clinic of Imitrex for the migraine headache and a script for that
medication to be filled.

He also continued her on Methadone and

Lortab for her back pain. Id.
On September 18, 2006, Kinney consulted J. Scott
Martin, a neurosurgeon, at the Geisinger Medical Center, regarding
her back pain to determine whether surgery was an option. Tr. 405.
Dr. Martin’s physical examination of Kinney revealed essentially
normal findings other than she had crutches in the room, a very
poor range of forward bending, and a rash over her anterior thigh.
He stated in his report of the examination that “[h]er sensory
37

examination is probably satisfactory although it is somewhat
chaotic at times and variable. . .

Her MRI shows the fractured L2

with some angulation. At 4-5 and 5-1 there are some minimal disk
problems but certainly nothing surgical. . .

I see nothing that

can be surgically corrected from a neurosurgical standpoint, and I
do not recommend any surgery.” Id.
On November 24, 2006, Kinney had an appointment at
Geisinger Medical Center with Dr. Salgado Campo. Tr. 408. The
report of that appointment states in part as follows: “[Prior
medical history] remarkable for narcotic dependent chronic pain
secondary to traumatic vertebral fractures, as well as restless
leg syndrome and [history of] migraines who comes today for yearly
check up.

Offers no major complaints.”

The physical examination

of Kinney revealed essentially normal findings other than a
slightly elevated blood pressure and a positive straight leg
raising test on the right lower extremity at 30 degrees. Kinney
weighed 157 pounds.

Kinney was walking with crutches.

Dr.

Salgado Campo’s assessment was that Kinney was suffering from
chronic pain syndrome.
and Lortab for the pain.

He noted that Kinney was taking Methadone
Tr. 408.

On June 22, 2007, Kinney had an appointment with Dr.
Salgado Campo. Tr. 414.
pounds. Id.

At this appointment Kinney weighed 152

Kinney had a positive straight leg raising test on
38

the right and was walking with crutches. Id.

Kinney was diagnosed

with chronic pain syndrome and prescribed the drugs Methadone,
Lortab and Imitrex. Id.
The reports of the July 12 and October 31, 2006, and the
September 25, 2007, appointments with Dr. Ahmed where Kinney
received steroid injections indicated that Kinney’s history and
physical were the “same as done on 1/16/2006.”32 Tr. 399, 406 and
415.
On January 9, 2008, a physical performed by Dr. Ahmed’s
physician’s assistant revealed that Kinney had a positive straight
leg raising test “right greater than left.” Tr. 419.
On January 16, 2008, Kinney had an appointment at the
Geisinger Medical Center for bilateral pulse radiofrequency

32. Dr. Ahmed used the abbreviation “H & P” for history and
physical.
39

neuroplasty.

Tr. 423-425.33

The report of this procedure states

in pertinent part as follows:
This is a 43 year old . . . female with long standing
history of axial lumbar spine or low back pain
(Lumbago). The patient underwent a series of lumbar
facet medial branch injections under fluoro. In our
pain clinic female had good but short term relief with
these blocks. Consequently, the patient was offered
this pulse radifrequency (sic) neuroplasty procedure
in order to provide her a longer duration of pain
relief. Risks, side effects & complications of the
procedure including but not limited to nerve damage,
nueritis, . . . were explained to the patient. The
patient consented . . . .
Tr. 423.

The report goes on to state that local anesthesia of the

skin and subcutaneous tissue was applied, needles were positioned
bilaterally using flouroscopic imaging at the L2 through L5
levels, and pulse radiofrequency generated a temperature of 42

33. The medical record uses the term “neuroplasty.” However,
the description of the procedure is more in line with the
definition of pulse radiofrequency neurotomy. The Mayo Clinic
describes this procedure as follows:
Radiofrequency neurotomy is a procedure to reduce back
and neck pain. It uses heat generated by radio waves to
damage specific nerves and temporarily interfere with
their ability to transmit pain signals.
In radiofrequency neurotomy, the radio waves are
delivered to the targeted nerves via needles inserted
through the skin above your spine. Imaging scans are
used during radiofrequency neurotomy to help the doctor
position the needles precisely.
http://www.mayoclinic.com/health/radiofrequency-neurotomy/MY00947
(last visited July 19, 2010).
40

degrees Celsius at those levels for approximately two minutes.
Tr. 424.
On April 18, 2008,

Kinney visited the Geisinger Medical

Center complaining of “prolonged menstrual bleeding.” Tr. 426-427.
She was examined by Zhanna V. Siciliano, M.D.

The physical

examination was essentially normal other than it was observed that
she had a generalized rash on her legs. Tr.427.

The record

reveals that she was still taking Methadone and Lortab for back
pain. Tr. 426-427.

She weighed 159 pounds.

Tr. 427.

Dr.

Siciliano’s assessment was as follows: “This is a 44 year old
female with [past medical history] of fracture of L2 with an
angulation, tobacco abuse who presented with prolonged menstrual
bleeding.” Id.

Dr. Siciliano made a gynecology referral,

continued her prescription for Methadone and Lortab, and counseled
her regarding tobacco cessation. Id.
On May 30, 2008, Kinney had an appointment with Dr.
Siciliano at Geisinger Health System in Danville. Tr. 714-715.
Dr. Siciliano’s assessment was that Kinney suffered from “swollen
left leg probably due to venous insufficiency.” Tr. 715.
On June 16, 2008, Leo P. Potera, M.D., a state agency
medical consultant reviewed the medical records in this case and
completed a physical residual functional capacity assessment form.
Tr. 435-440.

Dr. Potera found that Kinney’s primary diagnosis was
41

a compression fracture at the L2 level and her secondary diagnosis
was degenerative disc disease lumbar spine with right leg
radiculopathy.34 Tr. 435.

He concluded that these conditions

restricted her ability to engage in work activities to the extent
that she could occasionally lift 20 pounds, frequently lift 10
pounds, stand and walk for 2 hours in an 8-hour workday, and sit
for about 6 hours in an 8-hour workday.

He also found that she

was limited in lower extremities, occasionally could climb,
balance, stoop, kneel, crouch, and crawl, and that she should
avoid concentrated exposure to fumes, odors, dusts, gases, poor
ventilation, and hazardous activities.

Tr. 437-438.

The final medical record we encounter before Kinney’s
date last insured is from September 12, 2008, when Kinney had an
appointment with Dr. Siciliano at Geisinger Health System in
Danville. Tr. 747-748.

Dr. Siciliano’s assessment was that Kinney

suffered from chronic back pain and prescribed pain medications.
Tr. 748.
After the date last insured there are numerous medical
records and we will comment on three of them.

34. Radiculopathy is a term to describe the irritation of a
nerve resulting in pain and other symptoms such as numbness,
tingling, and weakness in the upper or lower extremities. In
Kinney’s case the cause of lumbar radiculopathy was neural
foraminal narrowing at the L5-S1 level. Tr. 411.
42

On February 9, 2010, Kinney had an appointment with Dr.
Ahmed at which she received a steroid injection. Tr. 821.

The

report of this appointment indicates that Kinney’s history and
physical was the “same as done on 1/16/2006.” Id.
On November 26, 2010, well after the date last insured,
Shadia Santos, M.D., completed a functional assessment on behalf
of Kinney. Tr. 926.

That assessment limited Kinney to less that

full-time sedentary employment. Id.

However, the assessment does

not specifying when Kinney’s limitations commenced or how long
they were expected to last.

Dr. Santos commenced treating Kinney

after the date last insured.
Finally, on March 17, 2011, Kinney was evaluated by John
Kelsey, Ph.D., a state agency psychologist.

Dr. Kelsey concluded

that Kinney had marked limitations in her ability to respond
appropriately to work pressures in a usual work setting and to
changes in a routine work setting. Tr. 645. Again this assessment
does not indicate that the limitations commenced prior to Kinney’s
date last insured. Id.
DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Kinney had not engaged in
substantial gainful work activity from the alleged disability

43

onset date of November 8, 2003, through her date last insured of
December 31, 2008. Tr. 447.
At step two of the sequential evaluation process, the
administrative law judge found that Kinney had the following
severe impairments: “degenerative disc disease . . . and
degenerative joint disease . . . of the lumbar spine, status post
compression fracture of L2, foraminal stenosis, facet
arthropathy,35 sacralization,36 hypertension, status post left
wrist fracture, chronic pain, migraines, substance induced anxiety
disorder, marital problems, adjustment reaction and depressive
disorder.”37 Tr. 447.

35. “The facet joints connect the posterior elements of the
[vertebrae] to one another. Like the bones that form other joints
in the human body, such as the hip, knee or elbow, the articular
surfaces of the facet joints are covered by a layer of smooth
cartilage, surrounded by a strong capsule of ligaments, and
lubricated by synovial fluid. Just like the hip and the knee, the
facet joints can also become arthritic and painful, and they can
be a source of back pain. The pain and discomfort that is caused
by degeneration and arthritis of this part of the spine is called
facet arthropathy, which simply means a disease or abnormality of
the facet joints.” Facet Arthropathy, Back.com,
http://www.back.com/causes-mechanical-facet.html (Last accessed
March 4, 2013).
36. Sacralization is defined as “anomalous fusion of the fifth
lumbar vertebra to the first segment of the sacrum, so that the
sacrum consists of six segments.” Dorland’s Illustrated Medical
Dictionary, 1650 (32nd Ed. 2012).
37. The ALJ did not address Kinney’s right lower extremity
radiculopathy.
44

At step three of the sequential evaluation process the
administrative law judge found that Kinney’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr.447-449.
At step four of the sequential evaluation process the
administrative law judge found that Kinney through the date last
insured could not perform her past relevant light work but had the
residual functional capacity to perform a limited range of
unskilled, sedentary work.38 Tr. 449.

Specifically, the

administrative law judge found that Kinney could perform sedentary
work but she had to have a sit/stand option at will or her own
direction; she was limited with respect to pushing and pulling
with the bilateral lower extremities; she could only occasionally
climb, balance, stoop, kneel, crouch and crawl; she could never,
climb ladders; she was limited in her ability to reach overhead;
she had to avoid vibrations, fumes and hazards; and she was
limited to simple, routine tasks and low stress defined as only
occasional decision making and only occasional changes in the work
setting. Id.
In setting Kinney’s residual functional capacity, the
ALJ found that Dr. Ahmed from 2006 to 2010 “reported no adverse
38. Incongruously the ALJ found that Kinney could lift and/or
carry 10 pounds frequently and 20 pounds occasionally which are
the weight requirements for light work.
45

objective findings.” Tr. 450.

The ALJ also rejected the opinion

of Dr. Santos who found that Kinney was limited to less than fulltime sedentary work and the marked mental limitations assessed by
Dr. Kelsey. Tr. 454.

She further found that Kinney’s statements

about her alleged symptoms and limitations were not credible to
the extent they prevented her from engaging in a limited range of
sedentary work. Tr. 450.
At step five, the administrative law judge based on a
residual functional capacity of a limited range of sedentary work
as described above and the testimony of a vocational expert found
that Kinney had the ability to perform unskilled, sedentary work
as a ticket taker, garment inspector, and video monitor, and that
there were a significant number of such jobs in the regional
economy. Tr. 456.
The administrative record in this case is 957 pages in
length and we have thoroughly reviewed that record.

Kinney

argues, inter alia, that the administrative law judge erred by
failing to appropriately evaluate Kinney’s credibility.

That

argument has merit.
The ALJ based her credibility judgment of Kinney partly
on the erroneous finding that Dr. Ahmed did not report any adverse
objective medical findings.

The ALJ stated in her decision as

follows:
46

After careful consideration of the evidence, the
undersigned finds that the claimant’s medically
determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent
with the above residual functional capacity
assessment.
The claimant alleged that she could not sustain work
because of her back pain, left wrist weakness and
depression . . . However, objective signs and findings
on physical examination are not particularly adverse
and do not support a finding of disabled. . . On
physical examination, Dr. Ahmed reported no adverse
objective findings . . . .
Tr. 450.

Contrary to the ALJ’s assertion of “no adverse objective

findings” Dr. Ahmed on several occasional made such findings.
As stated in our review of the medical evidence on January 16,
2006, Kinney had an appointment with Dr. Ahmed, M.D., at Geisinger
Medical Center, Interventional Pain Center. Tr. 390-392.

Kinney

complained of pain in the distal thoracic, the low back with
radiation to the buttocks and occasional radiation of pain to the
right posterior thigh and calf. Tr. 390.

The physical examination

revealed that Kinney’s gait was slow and antalgic, her flexion of
the back was reduced 50 degrees and caused low back pain, her
extension and rotation of the back produced low back pain, she had
a positive bilateral straight leg raising test and a positive
bilateral Patrick’s maneuver, and her sacroiliac joint was tender.
Tr. 392.

Moreover, the reports of the July 12 and October 31,
47

2006, and the September 25, 2007,

appointments with Dr. Ahmed

where Kinney received steroid injections indicated that Kinney’s
history and physical were the “same as done on 1/16/2006.” Tr.
399, 406 and 415.

Consequently, we conclude that the ALJ’s

credibility judgment is based on a faulty premise.
In addition, there was no attempt by the administrative
law judge to obtain an assessment from Kinney’s treating
physicians regarding Kinney’s functional capacity during the
relevant time period.

The administrative law judge had a

responsibility to investigate the facts and develop the arguments
both for and against granting benefits.

In this case she did not

fulfill that responsibility.
Kinney also argued that the testimony of the vocational
expert was confusing and inconsistent.
Brief, p. 17.

Doc. 11, Plaintiff’s

We agree that the vocational experts testimony does

appear to be inconsistent and fails to support the conclusion that
Kinney can engage in the jobs identified based on the residual
functional capacity set forth in the ALJ’s decision. All of the
jobs identified by the ALJ were sedentary positions. Tr. 507.
ALJ in her decision limited Kinney to jobs that required a
“sit/stand option at will or at her own direction” and a
limitation on pushing and pulling with the bilateral lower

48

The

extremities. Tr. 449.

The vocational expert was asked the

following series of questions by the ALJ:
Q. Now, assume if you will, we are dealing with an
individual of the same age, same education and same
past work experience as the claimant. Assume further
that this individual retains the capacity to perform
sedentary work. However, that sedentary work is
limited. There would be a bilateral lower extremity
push/pull limitation . . . There would be a bilateral
overhead reach limitation . . . Can such an individual
perform any of the same past relevant work as the
claimant?
A. [No]
Q. Could such an individual perform any other job in
the regional or national economy?
A. Within that hypothetical outline, I think the
video monitor position previously cited would remain
in play, but the ticket taker and garment inspector
would be compromised by the bilateral push/pull
limitation.
Q.

The lower extremity push/pull limitation?

A.

Oh, it was a lower, I thought – ?

Q. I’m sorry. I didn’t way upper/lower. Lower
extremity push/pull, bilateral lower extremity.
A. Within that outline your Honor, I think the three
previous cited jobs would remain viable.
*

*

*

*

*

*

*

*

*

*

Q. Now, I’ve taken that last hypothetical, and
clarifying that it is a bilateral lower extremity
push/pull limitation. If I added the following
restriction a sit/stand option at the will or
direction of the individual, could such individual
perform the past relevant work of the claimant?
A. [No]
49

*

Q. Could such an individual perform any other job
in the regional or national economy?
A. Within that hypothetical outline, your Honor,
my vocational opinion would be that an individual
would be precluded from sustaining gainful
employment as they would not be able to maintain
a persistence in work days.
Tr. 508-510 (emphasis added).

Based on the residual functional

capacity set by the ALJ in her decision and these answers of the
vocational expert, we have to conclude that Kinney could not
perform the jobs identified by the ALJ in her decision.
Consequently, we cannot conclude that he vocational expert’s
testimony is substantial evidence supporting the ALJ’s decision.
Our review of the administrative record reveals that the
decision of the Commissioner is not supported by substantial
evidence.

We will, therefore, pursuant to 42 U.S.C. § 405(g)

vacate the decision of the Commissioner and remand the case to the
Commissioner for further proceedings.
An appropriate order will be entered.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
Dated: March 8, 2013

50