Beilman v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 1/6/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:CIVIL ACTION NO. 3:16-CV-1156
CAROLYN W. COLVIN,
Acting Commissioner of
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”).
alleged disability beginning on September 26, 2011.
Administrative Law Judge (“ALJ”) who evaluated the claim, Michelle
Wolfe, concluded in her August 28, 2014, decision that Plaintiff
had the severe impairments of cervicalgia, lumbar facet syndrome,
cervical and lumbar sprain, sacroliliitis, obesity, asthma
traumatic brain injury with post-concussive syndrome, and
cervicogenic headaches, as well as non-severe impairments including
GERD, anxiety disorder, depressive disorder and carpal tunnel
ALJ Wolfe found that these impairments did not
meet or equal a listing when considered alone or in combination.
She also found that Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work with certain
nonexertional limitations and that she was capable of performing
jobs that existed in significant numbers in the national economy.
ALJ Wolfe therefore found Plaintiff was not disabled
from September 26, 2011, through the date of the decision.
In the “Statement of Errors Alleged,” Plaintiff identifies two
errors: 1) “the ALJ erred by concluding the Plaintiff did not have
a severe medically determinable impairment or combination of
impairments”; and 2) “the ALJ erred by concluding the Plaintiff’s
impairments did not meet or equal a listed impairment.”
After careful review of the record and the parties’
filings, the Court concludes this appeal is properly denied.
Plaintiff protectively filed for DIB July 7, 2012.
The claim was initially denied on February 6, 2013, and Plaintiff
filed a request for a hearing before an ALJ on April 5, 2013.
ALJ Wolfe held a hearing on May 20, 2014, in Harrisburg,
Plaintiff, who was represented by an
attorney, appeared at the hearing as did Vocational Expert (“VE”)
As noted above, the ALJ issued her
unfavorable decision on August 28, 2014, finding that Plaintiff was
not disabled under the Social Security Act during the relevant time
Plaintiff’s request for review of the ALJ’s decision was dated
October 30, 2014.
The Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision on April 19,
In doing so, the ALJ’s decision became the
decision of the Acting Commissioner.
On June 15, 2016, Plaintiff filed her action in this Court
appealing the Acting Commissioner’s decision.
filed her answer and the Social Security Administration transcript
on August 24, 2016.
(Docs. 9, 10.)
brief on October 11, 2016.
on November 10, 2016.
Plaintiff filed her supporting
Defendant filed her brief
Plaintiff did not file a reply
brief and the time for doing so has passed.
Therefore, this matter
is ripe for disposition.
Plaintiff was born on March 8, 1986, and was twenty-five years
old on the alleged disability onset date.
She has a high
school education and past relevant work as a diet clerk, a
dispatcher, a resident aide, and a security guard.
Plaintiff alleged disability beginning on September 26, 2011,
due to cervical whiplash, lumbago, pinched nerves in her back, neck
The Court focuses on the evidence cited by the parties which
is supported by citation to the record and that relied upon by the
ALJ. Therefore, statements in Plaintiff’s “Statement of the Case”
which are unaccompanied by citation are not necessarily included in
the Court’s review of evidence.
injury, back injury, anxiety, erosive lichen planus, and
Moses Taylor Hospital records from September 26, 2011, show
that Plaintiff had a CT scan of the brain due to head and neck pain
following a motor vehicle accident.
indicates that Plaintiff was in a neck brace.
Impression was “[n]o acute intracranial abnormality [and] [n]o
skull fracture identified.”
X-rays on the same date showed
“straightening of the normal lordosis which may represent muscle
spasm” and no evidence of fracture or subluxation.
Plaintiff was advised to follow up if symptoms persisted.
Cervical spine CT showed no acute bone abnormality and loss of
normal cervical lordosis which could be secondary to muscle spasm.
At the time, Plaintiff received primary care treatment at The
Wright Center Medical Group.
At her September 23,
2011, appointment Plaintiff was seen by Alycia Coar, PA-C, and
reported a two-day history of pain in her left calf, stating that
it hurt when she walked and elevation had not provided relief.
Her medical problems included back pain from a 2005 work
Other than the presenting problem, Plaintiff
denied any other difficulties.
Examination showed full
range of motion bilaterally in her upper and lower extremities and
Plaintiff was sent to the ER and advised to call if the symptoms
worsened, persisted, or changed.
On September 28, 2011, Plaintiff was seen at the Wright Center
by Jignesh Sheth, M.D., for complaints of neck and back pain
related to the September 26, 2011, accident.
had full range of motion bilaterally in her upper and lower
extremities, she was alert and oriented x3 and her affect was
Dr. Sheth diagnosed asthma, tobacco use
disorder, generalized anxiety disorder, Lichen Planus, cellulitis,
and sleep disorder.
Office notes from the same date
relate more specifically to Plaintiff’s complaints related to the
September 26, 2011, accident and dizziness is noted to be an
additional presenting problem.
that she was in the passenger seat not wearing a seat belt when she
was rear-ended by a pickup truck while in stopped traffic.
She remembers the impact and then being in the ambulance
on her way to Moses Taylor Hospital where neck, chest and CT scan
of her head were negative.
medications for pain.
She was discharged without
Examination showed tenderness of the
thoracic and lumbar parvertebral region bilaterally.
Neurological examination was normal.
prescribed pain medication and referred to a chiropractor.
Other than presenting problems, the Review of Systems was negative.
(R. 246, 251.)
On October 19, 2011, Plaintiff was again seen by Dr. Sheth for
complaints related to her motor vehicle accident: neck, back and
shoulder pain, headaches, and nausea and vomiting.
Plaintiff reported that she was seeing a chiropractor and improved
initially but was getting worse.
problems, the Review of Systems was negative.
Other than presenting
Examination showed tenderness of the thoracic and lumbar
parvertebral region bilaterally and normal neurological findings.
Dr. Sheth noted that he was awaiting approval for a MRI
to assess Plaintiff’s severe neck pain and made a neurology
At Plaintiff’s November 14, 2011, visit to the Wright Center,
Plaintiff reported to Nancy Greer, CRNP, that she was still in
Examination showed that Plaintiff had neck
stiffness and full range of motion of her upper extremities
Ms. Greer noted that Plaintiff had a CT
scan which showed muscle spasm but it was difficult to ascertain on
evaluation because Plaintiff was very obese.
examination was normal.
Ms. Greer noted that Plaintiff did
not appear to be in any pain and she had noticeable full range of
motion but palpable muscle tenderness.
The Review of
Systems indicates that Plaintiff denied any problems.
Ms. Greer recorded that Skelaxin would be tried for pain “for this
visit only” and that Plaintiff was advised that she should continue
with the chiropractor for non-medicine pain relief and she would
not be given a long-term narcotic–-she “would need to have another
Regarding generalized anxiety disorder, office
records indicate that Plaintiff was doing well on her current
Plaintiff followed up at the Wright Center on December 6,
2011, reporting that she was seeing a chiropractor (Dr. Yusavage)
three times a week and she did not feel it was helping.
Plaintiff also reported that she now had pain starting between her
shoulder blades and shooting to her left hip and “her legs go numb
and she falls to the floor,” and she has left leg tingling and
numbness, especially if she is sitting for a while.
Review of Systems, Plaintiff denied any problems other than the
specific presenting complaints.
Examination showed that
Plaintiff had bilateral muscle spasm and tightness in her neck, and
stiffness with palpation of lower paraspinal muscles, no spinal
tenderness, pain with single leg raise on the left but not on the
right, and equal strength in all extremities.
Greer planned to check EMG/NCV of upper extremities and order an
MRI of the lumbar spine.
Plaintiff was advised that
pain medications would be refilled until all testing was done.
Plaintiff was seen at Regional Hospital of Scranton on
December 12, 2011, with the chief complaint of thoracic back pain
radiating down the left leg resulting from the motor vehicle
Vicodin, Skelaxin, Prednisone, and Klonopin
were recorded to be her medications.
Though the Nurses Note
is difficult to read it appears that Plaintiff refused Percocet and
Toradol, she “threw objects in room,” and she said she expected an
MRI that night.
Physical examination showed tenderness
in the left back thoracic and lumbar region.
Electrodiagnostic examination/consultation was performed on
December 14, 2011, due to complaints of low back pain extending to
the left hip along with left leg weakness and loss of grip strength
in both hands.
The following history was provided:
Approximately one and a half weeks ago,
she developed electric pains extending from
her left low back into her left hips and from
her left inguinal region to her left knee.
She has had numbness in the dorsum of her
left foot and the left leg occasionally gave
way. She has also ad occasional numbness in
her right hip. On December 6, 2011, while
eating she lost grip strength in both hands.
She has longstanding difficulty opening tight
bottles. She has had no numbness or tingling
in her hands and no neck pain. She has a 10
year history of an autoimmune disorder. She
also was involved in an automobile accideent
in which she was rear-end[ed] in September of
Examination showed the following:
She was obese. Deep tendon reflexes
were absent in the biceps, triceps,
quadriceps and Achilles tendons. She had
decreased sensation to pinprick in the dorsum
of the left great toe and the left medial
arch. There was also decreased sensation to
pinprick in the left medial calf. There was
moderate weakness in the left anterior
tibialis, quadriceps femoris, iliiopsoas and
hamstrings. Toe tapping was moderately
decreased in the left and normal in the
right. She had no loss of sensation to
pinprick in either upper extremity and there
was no loss of strength in either upper
Clinical Interpretation showed “[a]n old or chronic mild
left L3 radiculopathy was presented based upon mild motor unit loss
and chronic motor unit changes of the left L3 distribution.
was suspected involvement of the left L4 distribution.
paraspinal involvement contained increased insertional
MRI of the lumbar spine on January 5, 2012, showed “normal
lumbar spine” and a “2.8 X 3.7 centimeter left ovarian cyst” with a
similar finding described on a 2005 study.
At her visit to the Wright Center on January 6, 2012,
Plaintiff had the same complaints related to the accident as at her
December 6, 2011, visit.
(R. 264, 268.)
Ms. Greer noted that the
MRI of the lumbar spine was a normal study and the EMG study of the
upper extremities showed mild nerve root irritation.
the Review of Systems, Plaintiff denied problems other than those
Physical examination was the same as
(R. 265-66, 270.)
Plaintiff was advised that she had
to try physical therapy as the Wright Center would not continue to
provide narcotic pain medications.
generalized anxiety disorder, office records indicate that
Plaintiff continued to do well on her current medications.
On February 16, 2012, Plaintiff presented to the Wright Center
for a recheck for her return to work.
reported that she had been seeing the chiropractor and it had been
helping but she fell on the stairs at home and said that
“everything the therapy was helping is now injured again.”
Plaintiff did not feel she could go back to work due to the
Review of Systems indicated that Plaintiff
denied problems other than left arm pain, back pain, limitations of
movement, muscle pain and neck pain.
mild neck soreness with palpation, left upper arm sore to
palpation, and lower back muscles sore to palpation.
Greer noted that Plaintiff would need to be x-rayed again because
of the fall and she should hold off on physical therapy until the
x-rays were done.
She also noted that Plaintiff had a
follow up appointment on March 9th and she would need to be off work
On February 23, 2012, Plaintiff presented for facial swelling
with blistering on her lips.
Review of Systems shows
that Plaintiff denied back pain, stiffness, or trouble walking, and
denied anxiety, depression, or paranoia.
Examination showed problems with Plaintiff’s lips, her neck was
supple on inspection, and she had full range of motion bilaterally
of upper and lower extremities.
On March 13, 2012, Plaintiff presented for heartburn, anxiety,
depression, and asthma and was seen by Dr. Sheth.
reported that her anxiety was of sudden onset following the motor
vehicle accident, she was unaware of any aggravating factors, and
it was not alleviated by anything.
related problems, Plaintiff said she felt better compared to her
previous visit, she was “improving and mostly well controlled,” she
was taking prescribed medications with no side effects, and she
reported moderate upper and lower back aching pain that did not
In the Review of Systems, Plaintiff reported
ambulatory dysfunction, back pain, stiffness and spasms, and
Examination showed that the neck was symmetric
and supple on inspection, facet pain of the thoracic and lumbar
vertebra, moderate spasm on the paravertebral muscles, limited
range of motion with discomfort but full range of motion
bilaterally of upper and lower extremities, cooperative attitude,
normal mood and affect, logical and coherent thought processes, and
no thoughts of delusions, hallucinations, obsessions,
preoccupations or somatic thoughts were elicited.
noted that Plaintiff had worsening anxiety disorder symptoms and
started her on Celexa.
Regarding her accident symptoms,
Dr. Sheth noted that Plaintiff was continuing PT/OT at Allied
Services which she had been in for five weeks, she reported good
progress, her pain was tolerable and worse at night, it was
relieved with Advil, and she still complained of headaches.
He recommended that she get a letter from Allied for release
to work. (Id.)
On April 13, 2012, Dr. Sheth noted that Plaintiff continued to
do well with physical therapy, she was feeling much better, and
wanted to go back to work.
He noted “Correspondence:
Return to Work,” and commented that Plaintiff was in good general
health and he would follow her annually.
On April 25, 2012, Plaintiff said she felt worse since her
last visit, she was taking medication as prescribed and she had no
She reported that she went back to work
and did sedentary work on the first day but, when she did full duty
on the second day (involving bed changes and laundry) she started
having neck and back pain after four hours, was vomiting from the
pain, and has been worse since then.
Examination showed the
neck was symmetric and supple on inspection, facet pain of the
lumbar vertebra, moderate spasm on the paravertebral muscles,
limited ranges of motion with discomfort, full range of motion of
the upper and lower extremities bilaterally, and normal mood,
affect and thought processes.
Dr. Sheth noted a
referral to Advanced Pain Management Specialists and the
chiropractor, Dr. Yusavage.
Dr. Sheth also advised aqua
therapy and he noted that Plaintiff would consider these options.
On May 5, 2012, Pravin Patel, M.D., of Advanced Pain
Management Specialists, conducted an initial evaluation of
Plaintiff’s chief complaints were pain in
the neck with muscle spasms and headaches, and low back pain, more
on the left side radiating down the left leg, with numbness in the
At the time, Plaintiff was taking only
Albuterol as needed for asthma.
Physical examination showed
that Plaintiff was alert, awake and oriented times three,
excruciating tenderness with muscle spasms of both paracervical
muscles, right more than left, bilateral trapezoids and rhomboids.
Active and passive range of motion was complete but
painful with slight restrictions in extension and flexion.
Motor function of the upper extremities was 5/5, there was no
paresthesia, and no pain in the upper extremities.
was also tenderness along the lumbar facet joints, L4-L5 and L5-S1
with excruciating tenderenss of both sacroiliac joins and Patrick’s
and Gillette’s signs positive bilaterally.
passive range of motion was restricted especially in extension,
flexion and lateral flexion.
Straight leg raising test was
positive on the left side at forty-five degrees and negative on the
Plaintiff’s gait was normal.
diagnosed cervicalgia, neck pain with muscle spasms, low back pain,
bilateral lumbar facet syndrome, and bilateral sacroiliac joint
pain and sacroilitis.
He opined that the pain was
related to injuries she sustained in the September 2011 accident
and he planned to give her a series of injections, trigger point
release, moist heat compresses, stretching exercises, and over-thecounter NSAID pain relievers.
On May 11, 2012, Dr. Sheth noted that Plaintiff said she was
following up with pain management and her pain was 10/10 which was
hindering her from sleeping and was associated with vomiting.
He also recorded that Plaintiff presented with anxiety and
new onset of not remembering ordinary and familiar things.
In the Review of Systems, Plaintiff reported back pain, neck pain
and stiffness, she denied trouble walking, and she reported some
anxiety and frustration.
Examination showed that her
neck was supple on inspection, and she had a full range of motion
bilaterally of her upper and lower extremities.
Plaintiff had a lumbar back brace and continued to express that she
was going to think about Dr. Sheth’s referrals for physical
therapy, aqua therapy, and chiropractor services.
Sheth noted that Plaintiff’s anxiety was mostly controlled and he
advised her to exercise to control stress.
that he would start Remeron.
He also noted
Regarding memory loss, Dr.
Sheth commented it was “mostly pseudodementia from anxiety and
Plaintiff received the injections recommended by Dr. Patel and
reported “remarkable improvement” as of June 20, 2012.
Dr. Patel recorded that Plaintiff was getting fewer muscle spasms
and was not in as much pain as she had been.
continuing with the treatment.
Dr. Patel noted continuing
improvement on July 2, 2012, and again recommended continuation of
the course of treatment.
On July 16, 2012, Plaintiff was seen at the Wright Center for
injury related to a fall that day.
Plaintiff said her
legs went numb when she was walking down the stairs and she fell.
As a result, she had pain and swelling in her right foot and
pain just above her right knee.
Plaintiff reported that Dr.
Patel’s pain management treatment had not been helpful.
Examination showed that Plaintiff had full active flexion with pain
and full active extension without pain, anterior and posterior draw
tests were negative in the right knee, right valgus test at full
extension was negative, Plaintiff had pain with right varus stress
test at full extension, dorsiflexion and plantarflexion of the
right foot illicited pain above the knee, movement of the right
great toe illicited pain in the dorsum of the foot, and Plaintiff’s
attitude was cooperative with normal mood.
was given a prescription for Neurontin and Meloxicam, and x-rays of
the foot, knee and femur were ordered.
At her July 26, 2012, follow-up examination with Dr. Patel, he
recorded that Plaintiff had been doing well (claiming she had
reached 60% relief) but a week earlier she had weakness in her
lower extremities and fell which aggravated her low back pain.
Plaintiff was taking Flexeril and Tylenol with Codeine for
pain and using alternating heat and ice compresses.
Although Plaintiff reported excruciating pain in the low back and
hip areas with muscle spasms, examination showed minimal muscle
spasms of the paravertebral muscles, some tenderness of the
bilateral lumbar facet joints and sacroiliac joints, but not as
severe as noted before the injections.
showed that active and passive range of motion was slightly
restricted in extension, flexion, and lateral flexion, straight leg
raising test was negative, reflexes were symmetrical 2+
bilaterally, motor function was 5/5 in both lower extremities, and
Plaintiff’s gait was normal.
Dr. Patel recommended that
Plaintiff start aqua therapy, discontinue Flexeril and Tylenol with
Codeine, start Norflex and Cymbalta, continue using TENS unit
regularly, and avoid injury or fall.
At her August 13, 2012, Wright Center visit, Plaintiff
reported that her neck pain and back pain had been worsening since
her last visit and she was taking medications prescribed by Dr.
Patel without improvement.
She reported headaches and
vomiting associated with the neck pain and said the pain was
aggravated by lying down and minimally improved with ibuprofen.
She said the lower back pain was moderately alleviated by
ibuprofen and muscle relaxants and the symptoms disturbed her
In the Review of Systems, Plaintiff reported back
and neck pain but denied a history of falls, muscle pain and
weakness, and she denied anxiety, depression and mood changes.
Examination showed that her neck was symmetric and supple on
inspection, she had full range of motion bilaterally of her upper
and lower extremities, and she was alert and oriented x3, with
normal affect and coordination.
Plaintiff was again
referred to Advanced Pain Management Specialists for the
cervicalgia, and she continued to think about the options Dr. Sheth
had previously presentd to address her lumbagao.
On September 5, 2012, Plaintiff was seen by Sheryl Oleski,
D.O., of Northeastern Rehabilitation Associates.
Plaintiff told Dr. Oleski that, since the accident, she had neck
and back pain with pins and needles intermittently into the right
hand as well as pins and needles into the legs, chronic headaches,
trouble with memory and word findings, some balance issues and
ringing in her ears.
Plaintiff said that her treatments
with Dr. Patel and with chiropractor Dr. Jason Yusavage had not
been helpful, and medications–-including Tramadol, Skelaxin,
Orphenadrine, Diclofenac, Naproxen, Ibuprofen, Flexeril, and
Vicodin--either did not help or only slightly took the edge off her
Plaintiff rated her pain at 9/10 at the time of the
visit and said that it generally ranged from 7-10/10.
described the pain as aching, stabbing neck pain, intermittent
tingling that radiates into the right thumb, difficulty on occasion
with grip strength, she denied aching, stabbing, burning back pain
but did complain of intermittent numbness and tingling into her
legs that was worse when standing or walking, and the pain was
worse when getting up from a sitting position, walking, bending,
standing, coughing, and sneezing, lying on her back and lying on
better with sitting.
Plaintiff said the pain was a little
Plaintiff said she was not working
and a Functional Capacity Evaluation conducted at John Heinz
indicated she was not capable of returning to work at the time.
Physical evaluation showed that Plaintiff did not
demonstrate any overt pain behavior, she had a normal reciprocal
gait pattern, was able to toe and heel walk, she had a full
cervical range of motion, there was painful arc with the left
shoulder range, lumbar range of motion was limited by 50% and 25%
in extension, hip and knee range of motion were full but hip range
of motion caused increased back pain, strength testing was 5/5,
muscle strength reflexes were 2+ and symmetric, straight leg raise
test was mildly aggravated on the right but negative on the left,
sacroiliac joint provocation maneuvers were acutely aggravating on
the right and essentially negative on the left, and a lot of lumbar
muscle spasm was present as was diffuse cervical muscle spasm.
Dr. Oleski diagnosed cervical sprain consistent with
whiplash injury, lumbar sprain, sacroiliitis with suspected right
sacral disorder, and traumatic brain injury with post concussive
syndrome and associated myofascial pain.
She opined that
Plaintiff was not capable of working at the time and an “out of
work note” was provided.
At her October 15, 2012, visit to the Wright Center, Plaintiff
reported that her neck pain had been improving since her last visit
and her lower back pain remained the same.
the back pain as 8/10 in severity and stated that it was moderately
alleviated by ibuprofen and muscle relaxants.
added that the symptoms disturbed her sleep and she also complained
of numbness in both legs.
Examination showed tenderness at
the lumbosacral segments bilaterally and tenderness of the spine,
normal mood, anxious affect appropriate to mood, and coherent,
logical thought processes.
Dr. Sheth commented that
Plaintiff went to the chiropractor, physical therapy, and aqua
therapy but nothing really helped her.
He added that she
had used narcotics in the past but was on ibuprofen which was
helping along with flexeril.
Dr. Sheth also commented that
Plaintiff’s neck pain was well controlled and she was no longer
using the collar, and her anxiety disorder was mostly controlled.
On October 18, 2012, Plaintiff was seen for nausea/dizziness
and vomiting at the Wright Center.
back pain and neck pain as well as anxiety,
reporting that she was feeling more anxious and agitated about her
health problems including concern that something was going wrong
(R. 313, 315.)
Examination showed full range of
motion bilaterally of upper and lower extremities, and worsening
mood since prior visit with angry affect.
aqua therapy, and chiropractor services were again recommended for
back pain, lamictal was started for anxiety, and the nausea and
vomiting was noted to possibly be related to food poisoning.
Plaintiff returned to Dr. Oleski on November 8, 2012,
continuing to complain of low back pain with pins and needles into
her legs and worsening neck pain with headaches, including migraine
headaches, and intermittent dizziness.
Dr. Oleski found
a limited cervical range of motion, cervical muscle spasm,
tenderness to palpation of the C2-3 facet joints, and otherwise
normal physical examination.
Dr. Oleski planned
neuropsychological testing for early December and recommended a
neurological consultation regarding her headaches and dizziness.
Plaintiff was to continue her home exercise program and
medication regimen, and Dr. Oleski also noted that Plaintiff would
remain out of work due to her “present condition” and would be seen
again in January after the recommended work up was complete.
Dr. Oleski saw Plaintiff again on November 30, 2012, because
Plaintiff was “having acute exacerbation and muscle spasm.”
She noted that Plaintiff was moving very stiffly and
appeared to be in discomfort, with significant muscle spasm seen in
the cervical and periscapular girdle as well as across the
Dr. Oleski recommended a medication
regimen to break the spasm, she administered a Toradol injection to
attempt to alleviate Plaintiff’s pain, and also recommended a trial
of trigger point injections to which Plaintiff consented.
Plaintiff began treating with Kenneth A. Sebastianelli, M.D.,
of Primed, on December 6, 2012.
History notes indicate
that Plaintiff reported neck and back pain since her accident in
September 2011, she had been following with pain management, had
tried physical therapy, aqua therapy and epidural injections
without relief, she was frustrated because nothing seemed to help
her pain, she was taking heavy doses of pain medications and muscle
relaxants, and she had a history of lichen planus with no lesions
at the time.
Review of Systems indicates that Plaintiff had
the musculoskeletal problems identified in the history, she had no
depressive thoughts, and she had no headaches, dizziness,
imbalance, arm or leg weakness.
Exam showed the
following: her neck was supple; she had cervical spine and lumbar
tenderness with palpation, positive Spurling’s sign, positive
straight leg test in both legs when elevated forty to eighty
degrees, and hand grasp strength 3/5 in both hands; and she was
oriented times three with no focality.
Sebastianelli planned for Plaintiff to continue with pain
management and set her up with a neurology appointment.
On Dr. Sebastianelli’s consultation, Plaintiff was seen by
Ralf van der Sluis, M.D., at Scranton Neurological Associates on
January 2, 2013, for evaluation of her headaches.
findings included that Plaintiff appeared to be in a mild degree of
chronic pain and discomfort, she had no neck stiffness, Adson sign
was positive on the left causing paresthesia down the entire arm
and positive on the right causing paresthesia in the biceps area,
mood was mildly depressed, and her affect was mildly constricted.
Dr. van der Sluis adjusted Plaintiff’s medication
regimen, planned to do a workup for intracranial etiology, and
suggested additional physical therapy and blood work.
On January 7, 2013, Dr. Oleski recommended physical therapy
two to three times per week for four weeks and a return visit in
In a Medical Source Statement of Ability to Do Work-Related
Actvities (Physical) dated January 15, 2013, Dr. van der Sluis did
not complete any of the eight sections of the form, marking each
On the last page of the form he stated
“patient has posttraumatic headaches and a postconcussion syndrome.
She cannot work until 3/13/2013.”)
On January 18, 2013, Dr. van der Sluis did a nerve conduction
study because of numbness and tingling in both arms and hands.
The study was normal “without evidence of a nerve
entrapment, a polyneuropathy, or radiculopathy.
There was no EMG-
evidence of active denervation or chronic reinnervation.”
On January 24, 2013, Dr. Sebastianelli noted that Plaintiff
presented with the same symptoms as at her first visit.
He also noted that Plaintiff said she has a lack of concentration
at times, her neck hurts at times, and she was told that she had
carpal tunnel syndrome after she had the nerve testing.
Review of Systems indicates no joint pain or stiffness, back pain
or paresthesias, no depressive thoughts, and no headaches,
dizziness, imbalance, arm or leg weakness.
findings include the following: Plaintiff was tearful at times; her
neck was supple; she had some paracervical muscle tenderness in her
neck and no problem in her extremities; and she was oriented times
three with no focality.
Regarding Plaintiff’s backache, Dr.
Sebastianell commented “[t]here is some component of anxiety and
possibly even some depression.
did not help.
We tried Cymbalta in the past which
We will start Fluoxetine 20 mg daily.
to continue the Ibuprofen and the Flexeril.”
She is going
anxiety, Dr. Sebastianelli commented that alternative medicines
like acupuncture may help and he thought a sleep study may be
On February 22, 2013, Plaintiff saw Lindsey Sorber, PA-C, of
Dr. Oleski’s office and reported that her pain was getting worse,
she had constant daily headaches and multiple symptoms related to
her head and neck complaints.
Examination showed that
Plaintiff had a limited cervical range of motion, with 25% of full
side bending, 75% of full rotation and functional flexion and
extension, she had functional shoulder range of motion and normal
range of motion in the arms, she had normal strength but
significant amount of cervical and periscapular spasm, and she had
tenderness along the occipatal notch.
planned to adjust Plaintiff’s medication regimen and pursue MRIs of
the cervical spine and brain and a neurological consultation.
The March 5, 2013, MRI of the brain was negative.
The March 7, 2013, cervical spine MRI showed mild spondylosis, a
disc bulge at C5-6 with suggestion of a small superimposed disc
protrusion, no evidence of central canal stenosis, mild reversal of
normal lordosis, and mild ectopia of the cerebellar tonsils.
On March 12, 2013, Dr. Oleski noted that Plaintiff did not
improve on the adjusted medication regimen, she continued with
persistent neck pain and headaches with headaches the most severe,
she still had low back pain.
She rated her pain at
Plaintiff again complained of 10/10 pain in April
2013 but she had full range of motion of the cervical spine, noting
pain with range of motion throughout all planes and pain to
palpation of the cervical paraspinal muscles and upper trapezius
muscles, and she had a normal neurologic examination of the
bilateral upper extremities.
At her visit with Dr. Sebastianelli on March 20, 2013,
Plaintiff was tearful and reported that her mouth ulcers had been
unbearable–-she was unable to eat or drink anything and she wanted
to go back on steroids.
Plaintiff’s lips and in her mouth.
Examination showed ulcers on
On May 31, 2013, Plaintiff again told Dr. Oleski that her pain
was 10/10 and the medication prescribed by the neurologist had not
of severe aching pain affecting the head,
neck, arms, back as well as her left leg. . .
. She states the pain limits her ability to
stand and walk more than sit. The pain
interferes with sleep. She describes the
pain as aching, burning and stabbing. She
states it is there all the time. There are
no remitting factors.
Examination showed several trigger points present in the
cervical and periscapular girdle and a lot of tenderness to
palpation surrounding the lower lumbar lateral masses with positive
lumbar facet loading maneuvers.
In her “Plan,” Dr.
Oleski noted that Plaintiff was “in agony” and she recommended a
trial of Methadone.
Dr. Oleski made other medication
adjustments and noted that Plaintiff should continue to follow
closely with her neurologist.
She also administered trigger
In June Plaintiff reported that her pain
was unchanged compared to her last visit, but she also said that
the Methadone helped some and she stopped taking the morning does
because it was too sedating.
On July 22, 2013, Plaintiff reported to Brant Adomiak, CRNP,
of Dr. Sebastianelli’s office that she had been in another accident
on July 18, 2013.
Plaintiff was not wearing a seat belt
and said her body went side to side when she was hit.
did not go to the ER but since the accident she said she had been
experiencing headaches–-feeling like a rubber band was around her
head, had ringing in her ears, and she felt off balance and
experienced some neck pain as well as numbness at the digits on her
Dr. Sebastianelli also noted that Plaintiff’s
March 7, 2013, MRI showed a disc bluge at C5-C6.
Examination showed tenderness along the cervical spine and
decreased range of motion in the neck, 4/5 hand grasp strength in
both hands, and decreased pin prick sensation at the digits of the
Dr. Sebastianelli adjusted Plaintiff’s
medication regimen and was directed to do neck exercises at home
and follow up with the neurologist as scheduled.
On August 5, 2013, Plaintiff saw Dr. Oleski and reported
worsening pain located diffusely throughout her head, neck, low
back, left arm and left leg.
She rated the pain as
10/10 and said it interfered with her ability to sleep.
She had been given Percocet by her primary care provider following
the July accident and stopped taking Methadone five days before her
August 5th office visit because she ran out of it and said it had
Examination showed that Plaintiff was alert
and oriented, she had normal mood and gait, and she was tender to
Plaintiff was reminded of her
medication agreement that she should not receive any pain
medications from any other doctor and was reminded to get the blood
work previously ordered.
Plaintiff was not interested in a
formal course of physical therapy or pursuing any injections.
At the request of Dr. Sebastianelli, Plaintiff saw Timothy
Bundy, D.O., of Northeaster Rehabilitation Associates, P.C., on
September 23, 2013, for follow up regarding her upper and lower
back pain as well as diffuse pain.
She again reported
He recommended that Plaintiff gradually be
titrated off all opioids and that they be discontinued completely
because of lack of significant benefit.
started Plaintiff on Lyrica and discussed with her the importance
of regular physical activity and beginning an exercise program such
The September 27, 2013, x-rays of the left wrist and elbow
showed no acute abnormality.
(R. 406, 407.)
At her Northeastern Rehabilitation visit on October 22, 2013,
Plaintiff was seen by Katherine Worsnick, PA-C.
Plaintiff continued to complain of 10/10 diffuse pain and reported
she was unable to start Lyrica because her insurance company found
she did not meet the diagnostic criteria.
showed that Plaintiff was alert, her mood was appropriate, and she
had a reciprocal gait patten.
Plaintiff was not
interested in pursuing injections, aquatic or physical therapy, or
chiropractic treatment but wanted to return to rheumatology.
In November, Plaintiff reported to Dr. Oleski that her pain
Dr. Oleski provided a sample of Lyrica
and indicated she would try to get it covered by the insurance
On February 4, 2014, Plaintiff reported to Dr. Oleski that she
had some temporary (5 hour) benefit with Oxycontin but Lyrica was
She said her pain was so bad that she was
unable to walk and she rated her pain as 10+.
showed that Plaintiff had a reciprocal gait with a forward truncal
lean, she was using a walker, she had diffuse tenderness to
palpation just about everywhere, she had some cervical paraspinal
muscle spasm present, straight leg raise test was negative,
sensation was grossly intact to light touch, and there was no
evidence of atrophy or fasciculations.
continued to diagnose diffuse myofascial pain syndrome, chronic
cervical and lumbar sprain, associated post concussive syndrome,
and a history of headaches.
Dr. Oleski recommended that
Plaintiff follow through with the sleep study that had been
recommended by neurology and noted that the lack of sleep or sleep
apnea could be contributing to increased pain levels and headaches.
Plaintiff requested, and was given, some trigger point
injections and was directed to follow up with rheumatology and
Plaintiff had a rheumatology consultation with Chad Walker,
D.O., on February 13, 2014.
Examination showed the
following: normal muscle tone in the upper and lower extremities;
symmetric deep tendon reflexes diminished bilaterally; diffusely
tender to palpation with any range of motion testing; and 18/18
Dr. Walker noted that
Plaintiff clearly had fibromyalgia features and she had been tried
on all the fibromyalgia medications that he normally recommended
with the exception of Gralise and Savella.
a sample of Gralise.
He gave her
On March 27, 2014, Plaintiff returned to Dr. Sebastianelli
complaining of depression, congestion, and a flare up of her planus
On examination, Dr. Sebastianelli found that
both nare were inflamed and red and Plaintiff had generalized
tenderness at all joints.
Plaintiff again saw Dr. Oleski on April 28, 2014, and reported
that she was “substantially worse” than when last seen.
Plaintiff received trigger point injections and Dr. Oleski adjusted
On January 15, 2013, the state agency medical consultant,
David Hutz, M.D., opined that Plaintiff could lift twenty pounds
occasionally and ten pounds frequently, she could walk for about
six hours in an eight-hour day and sit for the same amount of time.
He also concluded that she could occasionally climb ramps
and stairs, balance, stoop, crouch and crawl but she could never
climb ladders, ropes or scaffolds, and she should avoid
concentrated exposure to extreme cold, wetness, vibration, fumes
and odors, and hazards.
On April 13, 2012, Dr. Sheth noted the Plaintiff wanted to go
back to work and indicated “Correspondence: Return to Work,”
commenting that Plaintiff was in good general health and he would
follow her annually.
On September 5, 2012, Dr. Oleski opined that Plaintiff was not
capable of working at the time and an “out of work note” was
On January 15, 2013, Dr. van der Sluis stated that Plaintiff
had “patient has posttraumatic headaches and a postconcussion
She cannot work until 3/13/2013.”
On January 17, 2013, the state agency psychological
consultant, Dennis Gold, Ph. D., concluded that Plaintiff did not
have a medically determinable mental impairment.
On April 17, 2014, Dr. Sebastianelli directed correspondence
“To Whom It May Concern,” stating that Plaintiff “reported problems
with her memory after her motor vehicle accident in 2011.
memory problems were compounded by the pain medications she was
On May 20, 2014, Dr. Sebastianelli directed correspondence to
Amanda Beilman has been under my care
since 12/6/12. As previously documented in
her records, she has multiple medical
problems stemming from her motor vehicle
accident of 12/6/11. She suffers from
diffuse, chronic pain involving her neck, mid
and lower back as well as her arms and legs.
She has seen multiple physicians, and has
been extensively treated with a wide variety
of medications and therapies. Despite this,
she remains quite symptomatic.
I feel that within a reasonable degree
of medical certainty, she is medically
disabled from obtaining meaningful
employment. I feel this is permanent. I
have provided copies of her extensive past
As noted above, ALJ Wolfe issued her Decision on August 28,
She made the following Findings of Fact and
Conclusions of Law:
The claimant meets the insured status
requirements of the Social Security Act
through March 31, 2017.
The claimant has not engaged in
substantial gainful activity since
September 26, 2011, the alleged onset
date (20 CFR 404.1571 et seq.).
The claimant has the following severe
impairments: cervicalgia, lumbar facet
syndrome, cervical and lumbar sprain,
sacroiliitis, obesity, asthma, traumatic
brain injury with post-concussive
syndrome, and cervicogenic headaches (20
The claimant does not have an impairment
or combination of impairments that meets
or medically equals the severity of one
of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a)
except she can occasionally balance,
stoop, crouch, crawl, kneel, and climb,
but the claimant can never climb on
ladders, ropes, or scaffolds. The
claimant must avoid concentrated
exposure to temperature extremes of
cold, wetness, vibrations, fumes, odors,
dusts, gases, poor ventilation, loud
excessive noise, and hazards including
moving machinery and unprotected
heights. She can occasionally push/pull
with the upper and lower extremities.
The claimant cannot work on/with
computers, screens, or monitors and she
is limited to simple, routine tasks.
The claimant is unable to perform any
past relevant work (20 CFR 404.1565).
The claimant was born on March 8, 1986
and was 25 years old, which is defined
as a younger individual age 18-44, on
the alleged disability date (20 CFR
The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).
Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 404.1569 and
The claimant has not been under a
disability, as defined in the Social
Security Act, from September 26, 2011,
through the date of this decision (20
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2
It is necessary for the
“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 than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
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 claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
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).
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
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
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs which existed in significant numbers
in the national economy.
III. 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).
means “more than a mere scintilla.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
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). 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.
Kent, 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
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
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.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
See, e.g., Knepp v.
“There is no requirement
that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Hur v. Barnhart, 94 F. App’x 130, 133 (3d
“[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. Comm’f of
Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
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.
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 . . .”).
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
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.
See, e.g., Albury v. Comm’r
of Soc. Sec., 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.
Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Plaintiff asserts that the Acting Commissioner’s decision
should be reversed or remanded for the following reasons: 1) “the
ALJ erred by concluding the Plaintiff did not have a severe
medically determinable impairment or combination of impairments”;
and 2) “the ALJ erred by concluding the Plaintiff’s impairments did
not meet or equal a listed impairment.”
(Doc. 11 at 7.)
Plaintiff’s first claimed error relates to step two of the
sequential evaluation process where the determination is made
whether Plaintiff has a severe impairment or combination of
20 C.F.R. 404.1520(c).
Plaintiff’s statement that
the ALJ erred by concluding she did not have a severe impairment or
combination of impairments is fundamentally flawed because the ALJ
did find that Plaintiff had several severe impairments:
cervicalgia, lumbar facet syndrome, cervical and lumbar sprain,
sacroiliitis, obesity, asthma, traumatic brain injury with postconcussive syndrome, and cervicogenic headaches.
extent Plaintiff intended to claim error based on the ALJ’s finding
that her medically determinable mental impairments of anxiety
disorder and depressive disorder were not severe (see R. 18),
Plaintiff has not satisfied her burden of showing error on this
Plaintiff’s conclusory statements related to her anxiety
and its impact on her functioning (Doc. 11 at 11-12), whether
considered in relation to step two or step three, are insufficent
to support a claim of error in the ALJ’s analysis of her mental
Plaintiff’s step three claimed error regarding listing 1.04
which addresses disorders of the spine (Doc. 11 at 9-11) is
similarly unavailing in that Plaintiff claims she has an inability
to ambulate effectively and quotes relevant material (id. at 9) but
does not show how she satisfies the definition of that term as
defined for purposes the Act.
app. 1, § 1.00B2b.
See 20 C.F.R. pt. 404, subpt. P,
As set out by Defendant, Plaintiff failed to
establish the presence of all listing criteria set out in 20 C.F.R.
pt. 404, subpt. P, appendix 1, § 1.04A-C.
(Doc. 12 at 21-22.)
these reasons, Plaintiff has not shown that the ALJ erred in her
step three determination.
Though not listed as a formal statement of error, in the
Argument section of her brief, Plaintiff states that the ALJ also
erred by failing to give controlling weight to her treating
(Doc. 11 at 12.)
Plaintiff cites relevant
considerations regarding the deference due treating physicians’
(Id. at 12-13.)
She then states that “[t]he ALJ erred
in evaluating the treatment provided by Drs. Patel, Oleski,
Sebastianelli and van der Sluis.
The Judge wrote that little
weight was given to their opinions, in part because they were not
supported by other tests and notes, such as a lack of neurological
(Id. at 13 (citing R. 29).)
In this section of her
brief, Plaintiff provides this single citation to the ALJ’s
decision but provides no citation to record evidence supporting the
broad statements regarding this claimed error.
(See Doc. 11 at 13-
Furthermore, the broad construction of the argument presented
by Plaintiff does not directly refute the specific reasons cited by
ALJ Wolfe for discounting opinions provided.
The record set out above shows that Plaintiff was treated from
the time of her accident in September 2011 to early 2014 for pain
which she claimed to be severe and not relieved by treatments or
The ALJ thoroughly reviewed the evidence, explained
why she found Plaintiff’s statements concerning the limiting
effects of her symptoms not entirely credible, provided specific
explanations regarding the opinions of record, and limited
Plaintiff to simple, routine tasks to accommodate her headache and
In the face of this careful RFC
analysis, Plaintiff must do more than has been done here to show
the ALJ erred on the treating physician basis alleged.
For the reasons discussed above, Plaintiff’s appeal is
An appropriate Order is filed simultaneously with
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 6, 2017
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