Fanelli v. Colvin
Filing
13
MEMORANDUM (Order to follow as separate docket entry)This case involves a woman 63 years of age who worked for 26 years for the same employer. The record copiously documents numerous severe medical impairments and the claimants testimony regarding t he limiting effects of these impairments, by the Agencys own reckoning, could reasonably be expected to cause the alleged symptoms of which Plaintiff complains. Accordingly, this case is remanded to the Social Security Administration to better expla in: (1) what evidence actually supports the proposition that the claimant has the residual functional capacity to perform her past relevant work; and (2) why Plaintiffs complaints of debilitating pain were regarded as non-credible. In the alternativ e the Social Security Administration may choose to award benefits inasmuch as there is certainly substantial evidence of record to justify that result. An Order to this effect will be filed contemporaneously.Signed by Honorable Richard P. Conaboy on 2/10/17. (cc)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Angela L. Fanelli
:
Plaintiff
: Case No. 3:16-CV-1060
v.
:
Carolyn W. Colvin
Acting Commissioner of Social
Security
: (Judge Richard P. Conaboy)
:
Defendant
:
___________________________________________________________________
Memorandum
I.
Background.
We consider here Plaintiff’s appeal from a decision of the
Social Security Administration (“SSA” or “Agency”) denying an
application for Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”).
Plaintiff filed her application on
October 1, 2013 and alleged a disability onset date of September
20, 2013.
The application was denied at the administrative level
on December 27, 2013 whereupon Plaintiff filed a timely request for
a hearing on January 24, 2014.
In her request, Plaintiff stated
that she was unable to work due to various afflictions including
cirrhosis of the liver, neuropathy, myelopathy, problems in her
cervical spine and thoracic spine, and a herniated lumbar disc.
Plaintiff’s hearing was conducted by Administrative Law Judge
(“ALJ”) Michelle Wolfe on July 15, 2015.
1
The ALJ issued a decision
dated August 25, 2015 that denied Plaintiff’s application for
benefits.
Plaintiff then requested review by the Appeals Council.
The Appeals Council affirmed the ALJ’s decision by determination
dated April 1, 2016.
The Appeals Councils determination
constitutes a final decision by the Agency that confers
jurisdiction on this Court to hear Plaintiff’s appeal pursuant to
42 U.S.C. § 405(g).
II.
Testimony Before the ALJ.
The Plaintiff testified that she lives in West Wyoming,
Pennsylvania in a one-story home.
She lives alone.
She was born
on November 12, 1954 and was 60 years of age on the date of the
hearing.
She stated that she never worked after her alleged
disability onset date, September 20, 2013.
(R.59-60).
`Plaintiff stated that she collected unemployment compensation
benefits for about six months after she stopped working.
stopped working because she had been laid off.
She
On the date of her
hearing she was five feet two inches tall and weighed 140 pounds.
She is a high school graduate but has no post-graduate schooling or
training.
She is single and has no children.
Plaintiff did not
look for other work after she was laid off because she was hopeful
that her boss would call her back to her job as a
secretary/receptionist.
years.
She had worked for the same company for 26
(R.60-62).
In addition to her duties as a secretary/receptionist,
2
Plaintiff also helped clients of her home builder employer pick
colors and choose accessories for their home.
She stated that she
believes she has been disabled since her last day of employment
because her boss had been very lenient with her due to their long
association.
She explained that her boss understood that she had
physical difficulties stemming from a liver transplant.
He allowed
her to go home when she felt the need and to go into an adjacent
room at the work site to lie down if she felt the need.
Her boss
understood her physical limitations and accommodated them.
(R.62-
63).
Plaintiff also stated that she must be on medication for the
rest of her life to prevent her body from rejecting her new liver
and to combat Hepatitis C.
She was participating in a pain
management program at the time of her hearing at the direction of
her primary care physician.
The pain management program had been
preceded by a regimen of physical therapy.
Her pain management
program included a series of epidural injections.
(R.63-64).
Plaintiff testified further that she uses a variety of
medications.
Her anti-rejection medication produces side effects
such as diarrhea, urinary urgency, and difficulty sleeping.
She
testified that she does not go to bed or rise at any set time.
If
she goes to bed late she does not rise until approximately 10:00
a.m.
Her activity level depends upon the way she feels on a given
day.
If she feels up to it, she dusts or prepares a simple meal.
3
Sometimes she orders prepared food and brings it home.
She shops
once each week and generally only gets what she needs.
Typically,
she will be in the store no more than 15 minutes.
If she purchases
anything heavy she gets someone in the store to take it to her car.
When she gets home a neighbor will take any heavy items into her
house for her.
(R.64-67).
She can do only minimal exercise because of her back problems.
She does use a computer but cannot sit at it for long.
for no more than 15 minutes.
She can sit
She does walk but cannot go very far
before she needs to sit and rest.
When she stands in one place too
long she experiences pain in her lower legs and her feet throb.
She attributes these symptoms to her neuropathy and myelopathy.
She described a “good day” as one where her back pain and neck pain
are less severe and her feet are throbbing less than ususal.
A
“bad day” is one where she is confined to the couch and only
occasionally is able to get up to walk a little.
really cannot do anything.
each week are “bad days”.
Such days she
She stated that, on average, three days
(R.68-70).
Her primary problem is the pain she experiences, to some
degree, every day in her feet, legs, neck and back.
She testified
that she has a cervical problem that causes neck pain that radiates
into her shoulder blades.
arms and into her hands.
At times this pain radiates down her
This results in a loss of hand strength.
Writing is difficult for her and she sometimes drops things as a
4
result of her hand weakness.
(R.71).
Plaintiff also testified that her earnings began to decrease
in 2010 because of her medical problems.
Her boss was flexible
with her and allowed her to call off or go home early when her
symptoms flared.
Her problems of neck, back, arm, and foot pain
were compounded after she underwent her liver transplant in
November of 2008.
fatigue.
Afterwards, she also began experiencing general
She has problems of urinary and bowel urgency and has had
“accidents” at work.
Her doctors have told her that these problems
are a result of her anti-rejection medications but that taking
these medications is absolutely necessary to prevent scarring of
her liver that could lead to the need for a second liver
transplant.
Plaintiff opined that she did not know whether such a
procedure could even be arranged.
Any medications that she takes
must be approved by her transplant team at the University of
Pennsylvania Hospital.
After her transplant in 2008, she initially
saw these physicians every three months for some time.
follows up with them every six months.
Now she
She understands that she
will need this type of close monitoring for the rest of her life.
(R.71-74).
Carmine Abraham, a vocational expert, (“VE”), also testified.
The VE stated that Plaintiff is 60 years of age and close to
retirement age.
She has a high school education and her past
relevant work has been as a secretary/receptionist - - an
5
occupation listed in the Dictionary of Occupational Titles (“DOT”)
as “light, semi-skilled work”.
The VE was asked a hypothetical
question by the ALJ in which he was asked to assume a person of the
same age, education, and work experience as the Plaintiff who has
the residual functional capacity (“RFC”) to work at the “light”
exertional level subject to certain limitations including:
The individual has occasional pushing and
pulling with the lower extremity; occasional
balancing, stooping, crouching, crawling,
kneeling, and climbing; but never on ladders,
ropes, or scaffolds.
The individual needs to
avoid concentrated exposure to temperature
extremes of cold and heat, wetness and
humidity, fumes, odors, dust gases, and poor
ventilation, as well as vibrations and hazards,
including moving machinery and unprotected
heights.
Given this RFC profile, the VE was asked whether the
individual would be able to perform the Plaintiff’s past work
as generally and actually performed. The VE responded that,
based on that hypothetical, the Plaintiff could perform her
past work.
The ALJ then added limitations to the previous
hypothetical question including that the individual would be
6
capable of standing only four hours and walking only four
hours during a work day and would need an option to transfer
positions from sitting to standing with a maximum of each such
interval being up to one hour and that the individual would
not be off task when transferring.
Presented with that
additional limitation, the VE maintained that the Plaintiff
would still be able to perform her past relevant work.
The
ALJ then added an additional limitation such that the claimant
would be subject to all the limitations already assumed and in
addition would be able to work only at the sedentary level.
The VE indicated at that point that, given the additional
limitation of sedentary work, Plaintiff would be unable to
perform her past relevant work.
The VE testified further that, having limited the
claimant to a sedentary exertional level with all the other
limitations previously discussed, she would still possess
transferable skills which could permit her to function in
other occupations and that these other occupations would be
semi-skilled positions only.
The VE stated that such semi-
skilled jobs did exist in significant numbers in the national
economy including: receptionist and information clerk.
The
ALJ then inquired whether, if the claimant required additional
breaks during a work day beyond normal breaks and lunch
periods and, as a result, would be off task for more than 20%
7
of the day, the claimant would continue to be employable in
these jobs.
Considering this additional limitation, the VE
testified that this would eliminate both the claimant’s past
relevant work and any other work in the national economy.
The VE was also questioned by the Plaintiff’s attorney.
Plaintiff’s attorney inquired whether, if a person with all
the limitations discussed in the ALJ’s various hypotheticals
could also be expected to miss work more than two times in a
month due to her established impairments, whether that person
would be capable of employment.
The VE responded that missing
work with that frequency would render the claimant
unemployable.
III. Physical Impairment Evidence.
A.
Dr. Lauren P. Argenio.
Dr. Argenio was Plaintiff’s primary care physician at all
times relevant to this claim.
Her office notes reveal that
she saw Plaintiff in her office on six occasions between
October 7, 2013 and January 13, 2015.
On each of these
occasions, Dr. Argenio noted gastrointestinal symptoms
including diarrhea, secondary to use of an anti-rejection drug
prescribed after Plaintiff’s liver transplant.
Also, Dr.
Argenio’s office notes document persistent musculoskeletal
problems such as low back pain, multi-level disc disease with
myelopathy and neuropathic pain and numbness in both of
8
Plaintiff’s legs and feet.
Dr. Argenio consistently assessed
that Plaintiff was suffering from cervical and thoracic disc
degeneration; cervical, thoracic and lumbar myelopathy; and
cervical and thoracic stenosis.
Dr. Argenio referred
Plaintiff to Dr. Joseph D. Paz for pain management in August
of 2014 due to her persistent complaint of low back pain with
attendant numbness, tingling and burning sensation running
down both her legs into her feet.
B.
(R.812-843).
Dr. Joseph D. Paz.
Dr. Paz initially evaluated Plaintiff on August 13, 2014.
Dr. Paz reviewed an MRI of Plaintiff’s cervical and thoracic
spine dated May 31, 2013.
His interpretation of that film was
multi-level spondylotic changes in the cervical spine and
severe narrowing of the spinal canal causing spinal cord
impingement at C5-C6 and C6-C7.
Dr. Paz also reviewed three films of Plaintiff’s lumbar
spine taken over a period of 15 years.
These films indicated
foraminal stenosis at L5-S1 on the right with mild scoliosis
and moderate multi-level degenerative changes involving the
discs, end plates, and articular facets by July of 2008.
An
MRI of Plaintiff’s lumbar spine in March of 2000 disclosed
“further degenerative disc disease at L3-L4, L4-L5, and L5S1...with disc bulging at these levels but no evidence of
spinal canal or foraminal stenosis.”
9
On August 13, 2014, Dr.
Paz’s impressions were: “(1) prominent central and right-sided
L5-S1 disc herniation with a large right-sided extruded
fragment causing mass effect on the thecal sac.
There is also
prominent central bulging of the L4-L5 disc with a degree of
secondary narrowing of the canal. (2) There is central bulging
of the L3-L4 disc.”
Dr. Paz assessed cervicaglia, cervical
syndromes not elsewhere class, lumbago and neuritis or
radiculitis thoracic or lumbo sacral unspecified.
From August 2014 through December of 2014 Dr. Paz
continued to treat Plaintiff.
His office notes of October 1,
2014 allude to an EMG performed by a Dr. Bundy that
demonstrated radiculopathy at L5-S1.
(R.at722-723).
He also
noted that Plaintiff “has pain across her lower back radiating
to both lower extremities along with neuropathic type pain in
her ankles and feet.”
At this point, Plaintiff was already
taking Gabapentin (a nerve pain medication) at a dose of 500
mg., five times daily to try to control her lower limb
neuropathy.
On October 28, 2014, Dr. Paz examined Plaintiff once
again.
His notes indicate that she presented with low back
pain radiating to her buttocks and legs.
She had decreased
range of motion in both flexion and extension of her low back
with a positive bi-lateral straight leg-raising test.
Dr. Paz
also noted that Plaintiff exhibited sacroiliac joint and
10
sciatic notch tenderness along with positive bi-lateral
Patrick’s, Gillette’s, and Gaensler’s Tests.
He then gave
Plaintiff a sedative and performed a diagnostic epidural
steroidal injection at L4-L5 and L5-S1 with fluoroscopy.
His
diagnosis at that time was lumbar radiculitis and lumbar
stenosis.
On November 11, 2014 and December 2014, Dr. Paz’s
findings of October 28, 2014 were still present.
On both
dates he gave her additional epidural steroidal injections at
the River View Ambulatory Surgery Center in an attempt to
alleviate the effects of his initial diagnoses of lumbar
radiculitis and lumbar stenosis.
(R.700-712).
The last office note offered by Dr. Paz concerning the
Plaintiff addresses her visit of December 12, 2015. Dr. Paz
noted at that time that Plaintiff continued to experience pain
across the lower back and had developed a new complaint, pain
over her hips and iliac crests.
Dr. Paz opined that she had
developed neuropathic pain from her use of anti-rejection
medications.
At this time, Dr. Paz increased her dose of
Gabapentin (Neurontin) and recommended bilateral sacroiliac
injections under fluoroscopic guidance.
C.
(R.798-800).
Khella Sami, M.D.
Dr. Sami, Chief of the Department of Neurology at Penn
Presbyterian Medical Center, saw Plaintiff on at least two
11
occasions.
He initially saw her for a neurological evaluation
on October 16, 2013.
On January 10, 2014, Dr. Sami saw her
for a neurological follow-up.
He noted cervical myelopathy,
disc herniation, and peripheral neuropathy.
He also noted
gait disturbance due to a combination of the myelopathy and
neuropathy.
He described Plaintiff as “a high risk surgical
candidate due to her immunosuppression resulting from her
liver transplant.”
Dr. Sami opined that Plaintiff should be
on disability due to “her significant neurologic and other
comorbidities.”
D.
(R.340-344).
Dr. Bahirwani.
Dr. Ranjeeta Bahirwani, a gastroenterologist at the
University of Pennsylvania Hospital, saw Plaintiff on February
10, 2014.
Her office note of that encounter relates the
diagnoses reached by her colleague, Dr. Sami, in connection
with Plaintiff’s neurological symptoms.
With respect to
problems related to Plaintiff’s digestive system, Dr.
Bahirwani noted Plaintiff had developed hepatitis C virus
cirrhosis as documented by a liver biopsy performed in
December of 2013.
urgency.
She noted Plaintiff’s complaints of bowel
She also noted that Plaintiff’s immunosuppressive
medication had been “switched from Tacrolinus to Rapamune due
to severe peripheral neuropathy that has significantly
impaired her quality of life.”
Dr. Bahirwani alluded to some
12
unidentified “they” who had concluded that Plaintiff should be
on disability due to significant neurologic problems.
It is
unclear, however, whether she shared that assessment.
(R.345).
IV.
ALJ Decision.
The ALJ’s decision (Doc. 10-2 at 39-55) was unfavorable
to the Plaintiff.
It included the following Findings of Fact
and Conclusions of Law:
1.
The claimant meets the insured status
requirements of the Social Security Act through
December 31, 2018.
2.
The claimant has not engaged in a substantial
gainful activity since September 20, 2013, the
alleged onset date of her disability.
3.
The claimant has the following severe
impairments: recurrent cirrhosis/hepatitis C
status-post orthotopic liver transplantation in
2008, cervical degenerative disc
disease/spondylosis with myelopathy, thoracic
degenerative disc disease/spondylosis, lumbar
degenerative disc disease, and sacroiliitis.
4.
The claimant does not have an impairment or
combination of impairments that meets or
medically equals the severity of one of the
13
listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5.
After careful consideration of the entire
record, the undersigned finds that the claimant
has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant: could
occasionally push/pull with the lower
extremities; could occasionally balance, stoop,
crouch, crawl, kneel, and climb, but never on
ladders, ropes, or scaffolds; must avoid
concentrated exposure to temperature extremes
of cold/heat, wetness, humidity, fumes, odors,
dusts, gases, poor ventilation, vibrations, and
hazards, including moving machinery and
unprotected heights; and would be limited to
four hours of standing and walking throughout
the workday, with a sit/stand option, wherein
each maximum interval between transfer would be
up to one hour, but with no time off task.
6.
The claimant is capable of performing past
relevant work as a secretary/receptionist.
This work does not require the performance of
14
work-related activities precluded by the
claimant’s residual functional capacity.
7.
The claimant has not been under a disability,
as defined in the Social Security Act, from
September 20, 2013, through the date of this
decision.
V.
Disability Determination Process.
The Commissioner is required to use a five-step analysis
to determine whether a claimant is disabled.1
It is necessary
for the Commissioner to ascertain: 1) whether the applicant is
engaged in a substantial activity; 2) whether the applicant is
severely impaired; 3) whether the impairment matches or is
equal to the requirements of one of the listed impairments,
whereby he qualifies for benefits without further inquiry; 4)
whether the claimant can perform his past work; 5) whether the
1
“Disability” is defined as the “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 that 12
months . . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that an individual is disabled
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.
42 U.S.C. § 423(d)(2)(A).
15
claimant’s impairment together with his age, education, and
past work experiences preclude him from doing any other sort
of work.
20 CFR §§ 404.1520(b)-(g), 416.920(b)-(g); see
Sullivan v. Zebley, 493 U.S. 521, 110 S. Ct. 885, 888-89
(1990).
The disability determination involves shifting burdens of
proof.
The initial burden rests with the claimant to
demonstrate that he or she is unable to engage in his or her
past relevant work.
If the claimant satisfies this burden,
then the Commissioner must show that jobs exist in the
national economy that a person with the claimant’s abilities,
age, education, and work experience can perform.
Mason v.
Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs
that exist in the national economy that Plaintiff is able to
perform.
(R.at 51).
VI. Standard of Review
This Court’s review of the Commissioner’s final decision
is limited to determining whether there is substantial
evidence to support the Commissioner’s decision.
42 U.S.C. §
405(g); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
Substantial evidence means “more than a mere scintilla.
It
means such relevant evidence as a reasonable mind might accept
16
as adequate to support a conclusion.”
Richardson v. Perales,
402 U.S. 389, 401 (1971); see also Cotter v. Harris, 642 F.2d
700, 704 (3d Cir. 1981).
The Third Circuit Court of Appeals
further explained this standard in Kent v. Schweiker, 710 F.2d
110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise.
A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence.
Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion.
See Cotter, 642 F.2d at 706
(“Substantial evidence” can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted).
17
The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the
Secretary to analyze all evidence.
If she has not done so and
has not sufficiently explained the weight given to all
probative exhibits, “to say that [the] decision is supported
by substantial evidence approaches an abdication of the
court’s duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.”
Califano, 606 F.2d 403, 406 (3d Cir. 1979).
Dobrowolsky v.
In Cotter, the
Circuit Court clarified that the ALJ must not only state the
evidence considered which supports the result but also
indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why
probative evidence has been rejected is required so that a
reviewing court can determine whether the reasons for
rejection were improper.”
Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake an exhaustive discussion
of all the evidence.
See, e.g., Knepp v. Apfel, 204 F.3d 78,
18
83 (3d Cir. 2000).
“There is no requirement that the ALJ
discuss in its opinion every tidbit of evidence included in
the record.”
2004).
Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir.
“[W]here [a reviewing court] can determine that there
is substantial evidence supporting the Commissioner’s
decision, . . .
the Cotter doctrine is not implicated.”
Hernandez v. Commissioner of Social Security, 89 Fed. Appx.
771, 774 (3d Cir. 2004) (not precedential).
A reviewing court may not set aside the Commissioner’s
final decision if it is supported by substantial evidence,
even if the court would have reached different factual
conclusions.
Hartranft, 181 F.3d at 360 (citing Monsour
Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.
1986); 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner
of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive . . .”).
“However, even if the
Secretary’s factual findings are supported by substantial
evidence, [a court] may review whether the Secretary, in
making his findings, applied the correct legal standards to
the facts presented.”
Friedberg v. Schweiker, 721 F.2d 445,
447 (3d Cir. 1983) (internal quotation omitted).
Where the
ALJ’s decision is explained in sufficient detail to allow
meaningful judicial review and the decision is supported by
substantial evidence, a claimed error may be deemed harmless.
19
See, e.g., Albury v. Commissioner of Social Security, 116 F.
App’x 328, 330 (3d Cir. 2004) (not precedential) (citing
Burnett v. Commissioner, 220 F.3d 112 (3d Cir. 2000) (“[O]ur
primary concern has always been the ability to conduct
meaningful judicial review.”).
An ALJ’s decision can only be
reviewed by a court based on the evidence that was before the
ALJ at the time he or she made his or her decision.
Matthews
v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VII. Discussion.
A. General Considerations
At the outset of our review of whether the ALJ has met
the substantial evidence standard regarding the matters at
issue here, we note the Third Circuit has repeatedly
emphasized the special nature of proceedings for disability
benefits.
See Dobrowolsky, 606 F.2d at 406.
Social Security
proceedings are not strictly adversarial, but rather the
Social Security Administration provides an applicant with
assistance to prove his claim.
Id.
“These proceedings are
extremely important to the claimants, who are in real need in
most instances and who claim not charity but that which is
rightfully due as provided for in Chapter 7, Subchapter II, of
the Social Security Act.”
Hess v. Secretary of Health,
Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).
such, the agency must take extra care in developing an
20
As
administrative record and in explicitly weighing all evidence.
Dobrowolsky, 606 F.2d at 406.
Further, the court in
Dobrowolsky noted “the cases demonstrate that, consistent with
the legislative purpose, courts have mandated that leniency be
shown in establishing the claimant’s disability, and that the
Secretary’s responsibility to rebut it be strictly construed.”
Id.
B.
Plaintiff’s Allegations of Error.2
1.
Whether the ALJ’s Determination that Plaintiff Can
Perform Her Past Relevant Work is Supported by
Substantial Evidence.
The ALJ based her conclusion that Plaintiff retains the
residual functional capacity to perform her past relevant work
as a secretary/receptionist on the report of Catherine Smith,
M.D., a physician in the employ of the state agency that
performs initial disability determinations.
Dr. Smith
determined that Plaintiff could perform her past relevant work
in her written report of December 26, 2013.
Dr. Smith never
examined the claimant or even had any personal contact with
her.
Her opinion is based solely upon her review of records
from physicians who had treated Plaintiff prior to December
2
Plaintiff has actually identified four alleged errors by the ALJ. Having reviewed Plaintiff’s
Brief the Court finds that all alleged errors coalesce into the two questions the Court has analyzed in
this Memorandum.
21
26, 2013.
This Court is skeptical of the ALJ’s decision to
assign great weight to Dr. Smith’s conclusions.
Dr. Smith’s opinion is based only upon cold medical
records compiled by other physicians.
The Court must note
that these cold records did include objective diagnostic test
results in the form of EMG’s and MRI’s that posit
radiculopathy at L5-S1, degenerative disc disease at L3-L4,
L4-L5, and L5-S1 and L5-S1 and multi-level spondylotic changes
in the cervical spine causing deformity of the spinal cord and
cord impingement at C5-C6 and C6-C7.
755).
(R.at 700-702 and 722-
Despite these well-documented objective findings, Dr.
Smith noted no impairment related to Plaintiff’s obviously
compromised back.3
Reliance upon Dr. Smith’s conclusions is also rendered
unreasonable in light of subsequent reports by treating
physicians Sami, Bahirwani, Argenio, and Paz that either
explicitly opine that Plaintiff is disabled or strongly
support that proposition.
The preference for evidence
provided by treating physicians, particularly when supported
by diagnostic testing as is the case here, is well established
in this Circuit.
2000).
Morales v. Apfel 225 F.3d 310, 317 (3d. Cir.
See also 20 CFR § 404.1527 that directs the agency
3
The ALJ may have been aware of this deficiency given her statement that she “does not
concur with every limitation suggested by this evaluator (Dr. Smith) or the evaluator’s exclusion of
other limitations warranted by the evidence...”. (R.49-50).
22
that the opinion of the treating physician should be given
controlling weight if well-supported by medically acceptable
clinical and laboratory diagnostic techniques and not
inconsistent with other substantial evidence in the record.
The question here is whether Dr. Smith’s report can be viewed
as “other substantial evidence in the record.”
The unequivocal opinion of Dr. Sami, buttressed by the
findings of Drs. Paz, Argenio, and Bahirwani, that Plaintiff
is disabled constitutes powerful and obviously substantial
evidence.
The report of Dr. Smith, based upon medical records
that predate treatment afforded by the treating physicians,
seems too tenuous to constitute the requisite substantial
evidence to support the ALJ’s RFC finding here.
Dr. Smith’s
conclusions are further compromised by her inexplicable
failure to even allude to any impairment related to
Plaintiff’s exceedingly well-documented back symptomology.
This necessitates a remand for the Agency to re-evaluate
Plaintiff’s residual functional capacity.
To find otherwise
would be an abdication of this Court’s responsibility under
Richardson and Dobrowolsky, supra.
2.
Whether the ALJ Adequately Explained the Reasons for
Discounting the Claimant’s Subjective Complaints of
Pain?
Plaintiff testified at length about the persistence and
23
intensity of her pain in the low back radiating down her legs
and into her feet as well as her pain in the cervical region
radiating down her arms and into her hands.
When a claimant
testifies as to the limiting effects of pain stemming from
impairments established, as here, in the record, such
complaints are normally entitled to great weight.
Apfel, 228 F.3d 259, 266 (3d. Cir. 2000).
Sykes v.
An ALJ may not
discount such complaints without credible contrary medical
evidence.
1984).
Green v. Schweiker, 749 F.2d 1066, 1068 (3d. Cir.
The Court has thoroughly reviewed this record and has
found no such contrary medical evidence.
Certainly, the ALJ’s
opinion points to none.
The ALJ has conceded that Plaintiff has multiple welldocumented back problems.
(R.48).4
The ALJ then offers the
familiar recitation that “the claimant’s statements concerning
the intensity, persistence, and limiting effects of these
symptoms are not entirely credible for the reasons explained
in this decision.”
(Id.).
The ALJ’s explanation for
impugning Plaintiff’s credibility does not afford a reasonable
basis to discount Plaintiff’s account of the character and
intensity of her pain.
4
The ALJ has acknowledged that Plaintiff has severe medical impairments that could be
expected to produce such pain including cervical degenerative disc disease/spondylosis with
myelopathy, thoracic degenerative disc disease/spondylosis, lumbar degenerative disc
disease/radiculopathy and sacroiliitis. (R.45).
24
We learn that the Plaintiff underwent lumbar spinal
injections and sacroiliac injections on no few that five
occasions from January through May of 2015.
These injections
supplemented various pain control medications the Plaintiff
had been ingesting since at least 2013.
We are then told that
Plaintiff had a negative straight-leg raise test in January of
2015 and that her pain was reduced by 35% after a May, 2015
spinal injection.
(R.49).
We are not informed, however, that
Dr. Paz noted positive bi-lateral straight-leg raising tests
on multiple occasions along with positive Patrick’s,
Gillette’s, and Gaensler’s tests on multiple occasions.
Neither are we informed that Plaintiff’s relief from pain
after each of her epidural injections was short-lived and,
thus, necessitated numerous repeat procedures.
This sort of
evaluation, where the evaluator mentions only isolated facts
that militate against the finding of disability and ignores
much other evidence that points another way, amounts to a
“cherry-picking” of the record which this Court will not
abide.
See Dyer v. Colvin, 2015 WL 3953135 (M.D. Pa. June 29,
2015); see also Pike v. Colvin, 2015 WL 1280484 (W.D. NY March
20, 2015).
Still another infirmity of the ALJ’s reasoning is her
decision to rely on Dr. Smith’s opinion for one purpose and
discount it for another.
(R.49-50).
25
Her explanation for
doing so is cryptic and inadequate.
Thus, because the Court
finds the ALJ’s explanation for not fully crediting
Plaintiff’s complaints regarding the limiting effects of pain
that is logically related to her documented impairments, this
case must be remanded for the Agency to clarify or justify its
conclusion.
VIII.
Conclusion.
This case involves a woman 63 years of age who worked for
26 years for the same employer.
The record copiously
documents numerous severe medical impairments and the
claimant’s testimony regarding the limiting effects of these
impairments, by the Agency’s own reckoning, “could reasonably
be expected to cause the alleged symptoms” of which Plaintiff
complains.
Accordingly, this case is remanded to the Social
Security Administration to better explain: (1) what evidence
actually supports the proposition that the claimant has the
residual functional capacity to perform her past relevant
work; and (2) why Plaintiff’s complaints of debilitating pain
were regarded as non-credible.
In the alternative the Social
Security Administration may choose to award benefits inasmuch
as there is certainly substantial evidence of record to
justify that result. An Order to this effect will be filed
contemporaneously.
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: February 10, 2017
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