Wilkinson v. Astrue

Filing 17

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. (See Memorandum)Signed by Honorable Richard P. Conaboy on 5/4/12. (cc, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA A. WILKINSON,

:
:
:
:
:
:
:
:
:
:
:

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

CIVIL NO. 4:10-CV-2376
(Judge Conaboy)

MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Patricia A. Wilkinson’s claim for supplemental
security income benefits.
Supplemental security income (SSI) is a federal income
supplement program funded by general tax revenues (not social
security taxes).

It is designed to help aged, blind or other

disabled individuals who have little or no income.
Wilkinson was born in the United States on June 7, 1960.
Tr. 30, 89, 93, 97 and 116.1

Wilkinson graduated from high school

in 1978 and can read, write, speak and understand the English
language and perform basic mathematical functions. Tr. 31, 120 and
127.

During her elementary and secondary schooling Wilkinson

attended regular education classes. Tr. 127.

At the time of the

1. References to “Tr.___” are to pages of the administrative
record filed by the Defendant as part of his Answer on March 21,
2011.

administrative hearing held in this case on October 14, 2009,
Wilkinson did not have a driver’s license because of a conviction
for driving under the influence of alcohol.2 Tr. 31.
Records of the Social Security Administration reveal
that Wilkinson has a limited work and earnings history. Tr. 114.
Wilkinson had reported earnings in 1977 ($671.60), 1978
($1218.28), 1979 ($3226.30), 1980 ($3867.24), 1981 ($1242.46),
1983 ($1740.24), 1989 ($1141.47), 1990 ($2382.88), 1991
($3170.43), 1992 ($2747.53), 1993 ($569.81), 1999 ($923.63), 2000
($2799.07), 2001 ($3740.38), 2002 ($3293.39) and 2003 ($1179.00).
Id.

Wilkinson’s total earnings were $33,913.71. Id.

Although

Wilkinson had positions as a cook, waitress and a pre-school
teaching assistant, a vocational expert testified that Wilkinson
had no past relevant employment.3 Tr. 56, 122 and 133.
Wilkinson claims that she became disabled on March 31,
2003, because of “back pain, anxiety and depression[.]” Tr. 121. At
that time Wilkinson was working as a child care provider at a day
care facility. Tr. 33 and 1333.

She quit that job because she had

2. As will be set forth in detail infra, Wilkinson has a
substantial history of abusing alcohol. The legal limit in
Pennsylvania is a blood alcohol level of .08 percent. 75
Pa.C.S.A. § 3731.
3. Past relevant employment in the present case means work
performed by Wilkinson during the 15 years prior to the date her
claim for disability was adjudicated by the Commissioner. 20
C.F.R. §§ 416.960 and 416.965. In order to be considered past
relevant employment, an individual’s earnings must reach a
certain level. Id.
2

to lift toddlers weighing up to 20 pounds. Tr. 137. Wilkinson has
not worked since March 31, 2003.

Tr. 121.

At the administrative hearing when asked why she could
not work, Wilkinson stated that she suffers from (1) severe back
pain as the result of a surgical fusion of the spine, (2) emotional
health issues involving depression and anxiety, and (3) the
physical residuals of a motor vehicle accident which occurred in
June, 2008.4 Tr. 34.

With respect to the motor vehicle accident,

Wilkinson claimed that she sustained a broken thigh bone (femur)
and injury to her shoulder which increased her pain and impacted
her ability to work. Tr. 34-36.
On December 7, 2007, Wilkinson protectively filed5 an
application for supplemental security income benefits. Tr. 12, 93,
97, 99 and 116.

The alleged disability onset date of March 31,

2003, has no impact on Wilkinson’s application for supplemental
security income benefits because supplemental security income is a
needs based program and benefits may not be paid for “any period
that precedes the first month following the date on which an
application is filed or, if later, the first month following the
date all conditions for eligibility are met.”

See C.F.R. §

4. At the time of this accident, Wilkinson’s blood alcohol level
was .173 percent, twice the legal limit.
5. 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

416.501.

Consequently, Wilkinson is not eligible for SSI benefits

for any period prior to January 1, 2008.
On July 2, 2008, the Bureau of Disability Determination6
denied Wilkinson’s application for supplemental security income
benefits. Tr. 67-68, 72-82 and 93.

On August 22, 2008, Wilkinson

requested a hearing before an administrative law judge. Tr. 8, 8385 and 95.

Approximately 14 months later, a hearing commenced on

October 14, 2009, before an administrative law judge. Tr. 24-59.
On December 18, 2009, the administrative law judge issued a
decision denying Wilkinson’s application.7 Tr. 12-22.

On January

27, 2010, Wilkinson requested that the Appeals Council review the
administrative law judge’s decision.

Tr. 6-7.

After about 9

months had passed, the Appeals Council on October 23, 2010,
concluded that there was no basis upon which to grant Wilkinson’s
request for review. Tr. 1-5.

Thus, the administrative law judge’s

decision stood as the final decision of the Commissioner.
Wilkinson then filed a complaint in this court on
November 17, 2010.

Supporting and opposing briefs were submitted

6. The Bureau of Disability Determination is an agency of the
Commonwealth of Pennsylvania which initially evaluates
applications for supplemental security income benefits on behalf
of the Social Security Administration. Tr. 73.
7. Wilkinson was 42 years of age on the alleged disability onset
date and 49 years of age on the date of the administrative
hearing and the date the ALJ issued her decision. Wilkinson is
presently 51 years of age.
4

and the appeal8 became ripe for disposition on August 15, 2011,
when Wilkinson elected not to file a reply brief.
For the reasons set forth below we will vacate the
decision of the Commissioner and remand the case to him 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 by
substantial evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently.”); Cotter v.

8. 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.
5

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);

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

Substantial evidence has been described as more than a mere
scintilla of evidence but less than a preponderance.
F.2d at 1213.

Brown, 845

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

6

its weight."
(1971).

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488

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.
1064.

Mason, 994 F.2d at

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
benefits[.]”).

If the record is not adequately developed, remand

for further proceedings is appropriate.

7

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 supplemental security income claims.
416.920; Poulos, 474 F.3d at 91-92.

See 20 C.F.R. §

This process requires the

Commissioner to consider, in sequence, whether a claimant (1) is
engaging in substantial gainful activity,9 (2) has an impairment

9. If the claimant is engaging in substantial gainful activity,
the claimant is not disabled and the sequential evaluation
proceeds no further. Substantial gainful activity is work that
“involves doing significant and productive physical or mental
(continued...)
8

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 administrative law

9. (...continued)
duties” and “is done (or intended) for pay or profit.” 20 C.F.R.
§ 416.910.
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. § 416.920(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.
§ 416.920(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.
§§ 416.923 and 416.945(a)(2). An impairment significantly limits
a claimant’s physical or mental abilities when its effect on the
claimant to perform basic work activities is more than slight or
minimal. Basic work activities include the ability to walk,
stand, sit, lift, carry, push, pull, reach, climb, crawl, and
handle. 20 C.F.R. § 416.945(b). An individual’s basic mental or
non-exertional abilities include the ability to understand, carry
out and remember simple instructions, and respond appropriately
to supervision, coworkers and work pressures. 20 C.F.R. §
416.945(c).
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.
9

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. §
416.945; 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
Wilkinson’s medical records.
Wilkinson at a young age developed scoliosis, an
abnormal lateral curvature of the spine.13 Tr. 181.

In 1981 when

Wilkinson was about 22 years of age, she had surgery to correct the
scoliosis. Id.

The surgery consisted of the insertion of

12. If the claimant has the residual functional capacity to do
his or her past relevant work, the claimant is not disabled.
13. Scoliosis is defined as “an appreciable lateral deviation in
the normally straight vertical line of the spine.” Dorland’s
Illustrated Medical Dictionary, 1681 (32nd Ed. 2012).
10

instrumentation, a Harrington rod,14 which fused the spine from the
upper thoracic region to the L3 level of the lumbar region of the
spine.15 Tr. 181 and 265.
On March 28, 2003, Wilkinson had an x-ray of the lumbar
and thoracic regions of the spine.16 Tr. 265.

The x-rays

14. A Harrington rod is defined as “a rigid contoured rod used
in Harrington instrumentation.” Dorland’s Illustrated Medical
Dictionary, 1651 (32nd Ed. 2012). Harrington instrumentation is
defined as “a system of metal hooks and rods inserted surgically
in the posterior elements of the spine to provide distraction and
compression in treatment of scoliosis and other deformities.”
Dorland’s Illustrated Medical Dictionary, 944 (32nd Ed. 2012).
The Harrington rod, a stainless steal device developed by Dr.
Paul Harrington in 1953, was utilized to treat scoliosis from the
early 1960s to the late 1990s. Harrington Rod, Seton Spine &
Scoliosis Center, http://www.setonspineandscoliosis.com/scoliosis
/harrington.html (Last accessed May 2, 2012): Keith Bridwell,
M.D., Idiopathic Scoliosis: Options of Fixation and Fusion of
Thoracic Curves, http://www.spineuniverse.com/conditions/
scoliosis/idiopathic-scoliosis-options-fixation-fusion (Last
accessed May 2, 2012); Instrumentation Systems for Scoliosis
Surgery, National Scoliosis Foundation, http://www.scoliosis.org
/resources/medicalupdates/instrumentationsystems.php (Last
accessed May 2, 2012).
15. Scoliosis can be congenital, the result of a developmental
abnormality, or idiopathic, that is of unknown cause. The most
common type of scoliosis is idiopathic adolescent scoliosis.
Jonathan Cluett, M.D., Scoliosis, About.com Orthopedics,
http://orthopedics.about.com/cs/scoliosis/a/
scoliosis.htm (Last accessed April 26, 2012);Scoliosis,
OrthoInfo, American Academy of Orthopaedic Surgeons, http://
orthoinfo.aaos.org/topic.cfm?topic=A00236 (Last accessed April
26, 2012). One medical record suggests that Wilkinson’s scoliosis
was idiopathic. Tr. 214.
16. In order to understand the issues in this case, it is
necessary to outline the anatomy of the spine. The spine
(vertebral column) from the head to the tailbone is divided into
five regions: the cervical (consisting of 7 vertebrae, C1-C7 in
descending order), the thoracic (12 vertebrae, T1-T12 in
descending order), the lumbar (5 vertebrae, L1-L5 in descending
order), the sacrum (5 fused vertebrae, S1-S5 in descending order)
(continued...)
11

16. (...continued)
and the coccyx (4 fused vertebrae). Other than the first two
vertebrae of the cervical spine (C1 and C2), the vertebrae of the
cervical, thoracic and lumbar regions are similarly shaped.
A vertebra consists of several elements, including the
vertebral body (which is the anterior portion of the vertebra),
pedicles, laminae and the transverse processes. The vertebral
body is the largest part of the vertebra and is somewhat oval
shaped. The pedicles are two short processes made of bone that
protrude from the back of the vertebral body. The laminae are
two broad plates extending dorsally and medially from the
pedicles and fusing to complete the vertebral arch (which is the
posterior portion of the vertebra) and encloses the spinal cord.
On an axial view of the vertebra, the transverse processes are
two somewhat wing-like structures that extend on both sides of
the vertebral body from the point where the laminae join the
pedicles. The transverse processes serve for the attachment of
ligaments and muscles. The endplates are the top and bottom
portions of a vertebral body that come in direct contact with the
intervertebral discs.
The intervertebral discs (made of cartilage) are the
cushions (shock absorbers) between the bony vertebral bodies that
make up the spinal column. Each disc is made of a tough outer
layer and an inner core composed of a gelatin-like substance. The
outer layer of an intervertebral disc is called the annulus
fibrosus. Jill PG Urban and Sally Roberts, Degeneration of the
intervertebral disc, PublicMedCentral,http://www.ncbi.nlm.nih.
gov/pmc/articles/PMC165040/(Last accessed April 26, 2012); see
also Herniated Intervertebral Disc Disease, Columbia University
Medical Center, Department of Neurology, http://www.columbianeuro
surgery.org/conditions/herniated-intervertebral-disc-disease/
(Last accessed April 26, 2012).
“The facet joints [also known as the zygapophyseal 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/causesmechanical-facet.html (Last accessed April 26, 2012). The facet
joints are in the back of the spine and act like hinges, There
are two superior (top) and two inferior (bottom) portions to each
(continued...)
12

revealed the fusion with the Harrington rod from the upper thoracic
spine down to the L3 level of the lumbar spine. Tr. 183. It was
noted that there was still scoliosis but that the area under the
rod was fused. Tr. 182.

On flexion and extension there were

abnormal movements noted below the fusion level at L3-L4. Id.
There was also a grade 1 spondylolisthesis17 of L5 over S1 and a
“[v]ery minimal perhaps a few millimeter spondylolisthesis of L4
over L5[.]” Tr. 265.

The x-rays revealed osteopenia18 and marginal

sclerosis19 of the facet joints. Id.

16. (...continued)
facet joint called the superior and inferior articular processes.
17. “The word spondylolisthesis derives from two parts spondylo which means spine, and listhesis which means slippage.
So, a spondylolisthesis is a forward slip of one vertebra (i.e.,
one of the 33 bones of the spinal column) relative to another.
Spondylolisthesis usually occurs towards the base of your spine
in the lumbar area. . . Spondylolisthesis can be described
according to its degree of severity. One commonly used
description grades spondylolisthesis, with grade 1 being least
advanced, and grade 5 being most advanced. The spondylolisthesis
is graded by measuring how much of a vertebral body has slipped
forward over the body beneath it.” Spineuniverse.com,
Spondylolisthesis: Back Condition and Treatment, http://www.
spineuniverse.com/conditions/spondylolisthesis/spondylolisthesisback-condition-treatment (Last accessed April 26, 2012). Grad 1
spondylolithesis is where up to 25% of the vertebral body has
slipped forward over the vertebral body beneath it. Id. Symptoms
of this condition include pain in the lower back, pain and
weakness in one or both legs, and an altered gait. Id. Some
people who have this condition exhibit no symptoms. Id.
18. Osteopenia is defined as “any decrease in bone mass below
the normal.” Dorland’s Illustrated Medical Dictionary, 1347 (32nd
Ed. 2012).
19.

Sclerosis is defined as “an induration or hardening, such as
(continued...)
13

On April 8, 2003, Wilkinson had an appointment with Rein
Anton, M.D., Ph.D., a neurosurgeon at the Guthrie Clinic, Sayre,
Pennsylvania. Tr. 181-183.

At that appointment Wilkinson

complained of low back pain which radiated “into the left leg and
sometimes all the way down to the foot.” Id.

The results of a

physical examination were essentially normal. Tr. 182. Notably,
Wilkinson had full range of motion in all four extremities; she had
no joint swelling or tenderness; she was oriented to person, place
and time and had insight into her existing medical problems; she
was neurologically intact; she had normal sensation to pinprick,
touch, vibration and temperature in the upper and lower
extremities; she had normal motor strength in the upper and lower
extremities; she had a normal gait and coordination and was able to
walk on heels and toes and hop on either leg; she had normal deep
tendon reflexes; and her speech was fluent. Tr. 182.
Dr. Anton reviewed the x-rays and concluded that the
grade 1 spondylolisthesis at the L5-S1 level was stable. Tr. 183.
Dr. Anton further stated that Wilkinson had no abnormal
neurological findings. Id.

He did state, however, that Wilkinson

“has a very abnormal spine which still has scoliosis, arthritis,
and abnormal movements below the fusion level, as well as
spondylolisthesis. This is a very complicated situation. The

19. (...continued)
hardening of a part from inflammation, increased formation of
connective tissue, or disease of the interstitial substance.”
Dorland’s Illustrated Medical Dictionary, 1680 (32nd Ed. 2012).
14

decision needs to be made if the rod can be removed and if the
spines need to be fused, connecting the past fusion to the nonfused
lumbar spine down to the sacrum.” Id.

Dr. Anton advised Wilkinson

to consult with the surgeon who performed the original surgery20
and that because she had no neurological symptoms at the moment it
was not an urgent matter but that if the pain persisted surgery was
possibly an option. Id.

Dr. Anton did not schedule a follow-up

appointment but noted that he would see Wilkinson on an as needed
basis. Id.
On January 22, 2004, Wilkinson had an initial
appointment with Edward L. Jones, M.D.,21 a family practitioner, at
Guthrie Clinic, Athens, Pennsylvania. Tr. 255-256.

The appointment

was primarily for a gynecological examination and to schedule a
mammogram. Id.

At the appointment Wilkinson told the medical

provider that she “occasionally continues to have back pain” and
Wilkinson “request[ed] recommendations regarding medication.” Id.
It was noted that Wilkinson smoked a pack of cigarettes per day.
Id.

The results of a physical examination were essentially normal

other than cystic breasts and a urinalysis revealed the presence of
pus in the urine, pyuria. Tr. 256.

The medical provider advised

20. There is no indication in the record that Wilkinson
consulted with the surgeon who performed the original surgery.
21. The record is not clear as to whether Wilkinson had an
appointment with Dr. Jones or only Kim Trahan, a certified
physician assistant.
15

Wilkinson to quit smoking, referred her for a mammogram, and
ordered blood work and a urine culture. Id.
We were unable to discern the results of the urine
culture in the administrative record.

A mammogram was performed

on February 4, 2004, the results of which were not of a serious
nature. Tr. 263.

The interpreting physician merely recommended a

“six-month sonographic follow-up of complex nodule, upper outer
quadrant of the left breast.” Id.

On April 16, 2004, it appears

that Wilkinson had a consultation with Physician Assistant Trahan
(referred to in footnote 21) regarding complaints of depression
and questions regarding menopause and menometrorrhagia (excessive,
irregular uterine bleeding).

On May 7, 2004, Wilkinson had a

colonoscopy which revealed non-bleeding internal hemorrhoids and
she was advised to consume a high fiber diet and have a follow-up
colonoscopy in 10 years. Tr. 268.

On October 22, 2004, Wilkinson

had a follow-up left breast ultrasound which was benign in nature.
Tr. 262.

On February 15, 2005, Wilkinson had an appointment with

Dr. Jones’s physician assistant regarding a respiratory infection.
Tr. 252.

The records of these appointments give no indication of

Wilkinson’s physical functional abilities, such as gait, muscle
strength or range of motion of her extremities or spine.

Wilkinson’s next medical appointment was with Dr. Jones
on August 29, 2005. Tr. 250-251.

At that appointment Wilkinson

complained of “pain in her back, going into her left buttock, left

16

hip, and down her left leg, which [was] becoming increasingly
severe over the past three or four days.” Tr. 250.

A physical

examination of Wilkinson revealed that she was in moderate
distress, “very slow to move and change position,” and she had
tenderness over the sciatic notch; a straight leg raise test was
positive on the left at 50 degrees and according to Dr. Jones
positive on the right at 80 degrees;22 and the iliopsoas sign was
negative bilaterally.23 Id.

Wilkinson had fair to good motor

strength in the right lower extremity but weakness in “her
foot/ankle region on the left.” Id.

Dr. Jones’s assessment was

that Wilkinson suffered from “[s]ciatica24 with weakness going into

22. 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 April 26, 2012).
23. “The iliopsoas muscle [is] one of the largest and most
powerful hip flexors . . . It is a major muscle responsible for
movement of the leg and trunk . . . Low back pain is often
misdiagnosed as it relates to the joints of the lumbar spine.
Attention may be given to these joints when the source of diffuse
achy pain may actually be the iliopsoas muscle. . . The iliopsoas
muscle inserts onto the vertebrae of the lumbar spine, and when
it is hypertonic or in spasm, it may cause significant
dysfunction in the spine and put added pressure on the discs.”
Blake Biddulph, D.C., Iliopsoas Muscle Injury Symptoms,
Livestrong.com, http://www.livestrong.com/article/88551-iliopsoas
-muscle-injury-symptoms/ (Last accessed May 2, 2012).
24. Lumbar radiculopathy or sciatica is defined as “a syndrome
characterized by pain radiating from the back into the buttocks
and along the posterior or lateral aspect of the lower limb; it
is most often caused by protrusion of a low lumbar intervertebral
(continued...)
17

the left leg.” Id.

Dr. Jones prescribed the medications Lortab,25

Ibuprofen26 and Flexeril,27 referred Wilkinson to physical therapy
and advised her to apply “[h]eat locally to her sciatic notch.” Id.
Dr. Jones stated that if Wilkinson could not tolerate physical
therapy that he would have to “reassess” her condition and that she
would “need some neurosurgical care.” Tr. 251.
On August 30, 2005, Wilkinson had a CT scan of the
lumbar spine which revealed “[o]steoporosis,28 postoperative
changes and a Harrington rod posteriorly associated with fused bone
graft material extending from the thoracic region inferiorly down
to the level of L4. No osseous fracture or vertebral body

24. (...continued)
disk. The term is also used to refer to pain anywhere along the
course of the sciatic nerve.” Dorland’s Illustrated Medical
Dictionary, 1678 (32nd Ed. 2012); see also Center for Pain
Management, Lumbar Radiculopathy/Sciatica, http://www.indypain.
com/chronic-pain-acute-pain-conditions/lumbar-radiculopathy-sciat
ica/ (Last accessed May 3, 2012).
25. “Lortab contains a combination of acetaminophen and
hydrocodone. Hydrocodone is in a group of drugs called opioid
pain relievers. An opioid is sometimes called a narcotic.
Acetaminophen is a less potent pain reliever that increases the
effects of the hydrocodone.” Lortab, Drugs.com,
http://www.drugs.com/lortab.html (Last accessed May 2, 2012).
Other brand names for this drug are Norco and Vicodin. Id.
26. Ibuprofen (Motrin) is a nonsteroidal anti-inflammatory drug.
Ibuprofen, Drugs.com, http://www.drugs.com/ibuprofen.html (Last
accessed May 2, 2012).
27. “Flexeril (cyclobenzaprine) is a muscle relaxant.” Flexeril,
Drugs.com, http://www.drugs.com/flexeril.html (Last accessed May
2, 2012)
28. Osteoporosis is defined as “reduction in bone mineral
density, leading to fractures after minimal trauma.” Dorland’s
Illustrated Medical Dictionary, 1348 (32nd Ed. 2012).
18

compression deformity [was] identified.

No spinal canal stenosis29

[was] appreciated.” Tr. 261.
On September 19, 2005, Wilkinson had x-rays of the
lumbar spine which revealed the fusion, the Harrington rod, a
moderate levoscoliosis,30 “5 mm. of spondylolisthesis of L4 on L5
which does not change from flexion to extension,” and severe
osteoarthritic changes of the facet joints at L4-L5 and L5-S1 below
the fusion. Tr. 267. The x-rays were interpreted by Leon Feldhamer,
M.D., and his impression was that the spondylolisthesis at L4-5 was
stable. Id.
On September 23, 2005, Wilkinson had an appointment with
Dr. Anton at which Wilkinson complained of “low back pain radiating
in to the left leg, sometimes all the way to the left foot” and
“numbness in the same area that comes and goes.” Tr. 184-185.

Dr.

Anton noted that Wilkinson reported that the pain had “improved
substantially lately” and that Wilkinson was seen in 2003 after
which “the pain subsided, but now the pain came back.” Id.

When

29. “Spinal stenosis is a narrowing of one or more areas in your
spine – most often in your neck or lower back. This narrowing can
put pressure on the spinal cord or spinal nerves at the level of
compression. Depending on which nerves are affected, spinal
stenosis can cause pain or numbness in your legs, back, neck,
shoulders or arms; limb weakness and incoordination; loss of
sensation in your extremities; and problems with bladder or bowel
function. Pain is not always present, particularly if you have
spinal stenosis in your neck.” Spinal Stenosis, Definition, Mayo
Clinic staff, Mayoclinic.com, http://www.mayoclinic.com/health
/spinal-stenosis/DS00515 (Last accessed May 2, 2012).
30. Levoscoliosis is a type of scoliosis where the curvature of
the spine is to the left. Levoscoliosis, http://levoscoliosis.
net/ (Last accessed May 2, 2012).
19

Dr. Anton conducted a review of Wilkinson’s systems31 Wilkinson
reported that she tires easily; she has night sweats; she is
sensitive to heat; she is irritable and has poor sleep; she has
abdominal distress and hemorrhoids; and she has headaches,
dizziness, weakness of the muscles, and pain in the legs. Tr. 184.
The results of a physical examination were essentially normal other
than “bilateral facial weakness related to [Wilkinson’s] Moebius
syndrome,”32 some questionable numbness and tingling in the
extremities, and the inability to “hop because of low back pain.”
Tr. 184-185.

Dr. Anton noted that Wilkinson “walked in [his]

office.” Tr. 185.
Dr. Anton reviewed the radiographs and stated that
Wilkinson had grade 1 spondylolisthesis at the L4-L5 level with
major lumbar stenosis at that level, abnormal discs at the L3-L4
and the L5-S1 levels, and minimal spondylolisthesis and no major
stenosis at the L5-S1 level. Tr. 185.

He further stated after

reviewing the recent CAT scan that above the L3 level of the lumbar

31. “The review of systems (or symptoms) is a list of questions,
arranged by organ system, designed to uncover dysfunction and
disease.” A Practical Guide to Clinical Medicine, University of
California, School of Medicine, San Diego, http://meded.ucsd.edu/
clinicalmed/ros.htm (Last accessed April 27, 2012).
32. “Moebius syndrome is a rare birth defect caused by the
absence or underdevelopment of the 6th and 7th cranial nerves,
which control eye movements and facial expression.” Moebius
Snydrome Information Page, National Institue of Neurological
Disorders and Stroke, National Institutes of Health,
http://www.ninds.nih.gov/disorders/mobius/moebius.htm (Last
accessed May 2, 2012). An alternate spelling for this condition
is Mobius.
20

spine, the spine was fused with the Harrington rod and that “it is
obvious that the rod is deeply incased in the fusion[.]” Id.

He

again noted that there was lumbar stenosis at the L4-L5 level and
to a much lesser extent at the L3-L4 and L5-S1 levels. Id.
Dr. Anton in the impression section of the report of the
September 23rd appointment reiterated the findings of grade 1
spondylolisthesis and major lumbar stenosis at the L4-L5 level. Id.
Dr. Anton recommended that Wilkinson “try one more time with
conservative treatment” and referred her to a pain clinic for
epidural and cortisone injections at the L4-L5 level as well as
injections at the L5-S1 and L3-L4 levels of the spine. Id.

Dr.

Anton stated that “[i]f all these treatments fail, then lumbar
fusion is an option. In that case, previous fusion needs to be
hooked up to new [fusion],” Id.

Dr. Anton noted that at this time

Wilkinson is not interested in surgery and that she would like to
try nonsurgical treatment. Id.

Dr. Anton referred Wilkinson to the

pain clinic and noted that he would follow Wilkinson on an as
needed basis.33 Id.

33. The administrative law judge in this case basically
dismissed as unremarkable the record of the September 23, 2005,
appointment with Dr. Anton by stating that it “is a relatively
normal neurological examination and the doctor is thus
recommending a fairly normal course of action for the claimant’s
pain.” Tr. 17. The administrative law judge does not comment on
the finding of grade 1 spondylolithesis and major lumbar stenosis
or the finding of severe osteoarthritic changes of the facet
joints at L4-5 and L5-S1 below the fusion as a potential source
of Wilkinson’s pain. Also, the portion quoted by the ALJ related
to Dr. Anton’s interpretation of the radiographs (not Dr. Anton’s
neurological examination of Wilkinson) and it is clear that the
(continued...)
21

After Wilkinson’s

September 23, 2005, appointment with

Dr. Anton we do not discern in the administrative record any
medical records of Wilkinson being treated until April 23, 2006. On
that date in the early morning hours, Wilkinson was transported by
ambulance to the emergency department at Robert Packer Hospital,
Sayre, Pennsylvania because of a possible drug overdose. Tr. 230231.

Allegedly, Wilkinson’s husband walked in on her when she was

consuming a “handful of Effexor tablets.”34 Tr. 230.

Wilkinson

also allegedly had consumed a quantity of alcohol around midnight.
Id.

The emergency room physician, Raman Sucharita, M.D., placed

Wilkinson on a heart monitor and ordered a battery of blood tests,
including blood alcohol testing which revealed a blood alcohol
level of .182 percent. Tr. 231. Repeat blood alcohol testing was
scheduled for 9:00 a.m. Id.

However, at about 6:00 a.m.

Wilkinson’s husband signed her out against medical advice and took
her home stating that he would “bring her back [] if he found that

33. (...continued)
radiographs did not reveal a normal spine. Furthermore, the
statement by the ALJ that Dr. Anton “recommended a fairly normal
course of action for the claimant’s pain” is troubling because
the ALJ fails to mention that Dr. Anton indicated that if the
conservative treatment failed that Wilkinson would most likely
need further surgery.
34. “Effexor (venlafaxine) is an antidepressant . . . used to
treat major depressive disorder, anxiety, and panic disorder.”
Effexor, Drugs.com, http://www.drugs.com/effexor.html (Last
accessed May 3, 2012).
22

she had any further problems or if she indicated any suicidal
ideations.”35

Id.

Later that day, Wilkinson after sobering up returned to
the emergency department apparently concerned about her mental
health and her suicide attempt and requested a psychiatric
evaluation. Tr. 232.

Wilkinson told James Raftis, D.O., the

emergency room physician, that she felt very anxious; she is always
on edge; she suffers from depression and is sleeping all the time;
and she was having poor concentration. Id.

She further told Dr.

Raftis “that in the last six months she began drinking vodka and
now drinks up to a half bottle of vodka daily” which she stated was
a “new problem for her.” Id.

She also stated that she had no

homicidal ideations but was concerned about some “aggressive”
statements she made to her family and “it scared her.” Id.
Wilkinson denied “any other recent illnesses.” Id.
A physical examination by Dr. Raftis was essentially
normal. Id.

Dr. Raftis noted that Wilkinson appeared in no

distress and a neurological examination was grossly intact. Id.
repeat blood alcohol test was ordered. Id.
detected. Id.

No alcohol was

A

Dr. Raftis’s impression was that Wilkinson was

suffering from an “[a]nxiety disorder with major depression and
suicidal ideation” and alcohol abuse. Id.

There is a notation in

this record that Dr. Raftis intended to consult the hospital’s

35. A subsequent medical record indicates that Wilkinson “signed
out with her husband’s agreement against medical advice.” Tr.
232.
23

“Crisis Service for evaluation of [Wilkinson] for voluntary
psychiatric admission for further inpatient treatment.” Id.
Subsequently, Wilkinson was voluntarily admitted to the
Behavioral Science Unit of the Robert Packer Hospital because the
next record we encounter is a discharge summary from that unit
dated April 27, 2006. Tr. 229-230. The discharge summary was
prepared by Charles McGurk, M.D., a psychiatrist. Id.

That

document states in pertinent part as follows:
MENTAL STATUS EXAM: On admission, . . . She said that
she sometimes heard whispers when she woke up in the
morning, possibly associated with sleep deprivation or
drinking the previous night. No other signs of
psychosis were present. Suicidal ideation had been
present and in view of her suicidal behavior risk was
considered to be high if not in the hospital. No
homicidal ideation was elicited. Sensorium was grossly
intact. Insight and judgment was poor.

`

MEDICAL EVALUATION: Review of systems was positive for
pain in her back and legs. Medical history included a
congenital syndrome affecting her face called the
Mobius syndrome. She also has a history of anemia and
continuing back pain . . . .
SUMMARY OF HOSPITAL COURSE: The patient was admitted
to the Behavioral Science Unit on a voluntary status.
She participated actively in the treatment program
including individual and group psychotherapy . . . .
The patient had talked freely with staff and in therapy
groups about her problems. Her suicidal ideation had
abated and she was felt to be safe for discharge, i.e.,
risks of suicidal behaviors were minimal on 4/27/2006.
Thus she was discharged to home. . . .
REFERRAL: The patient was referred to Northern Tier
Counseling for psychotherapy. . . .

Tr. 229-230.

Her condition at discharge was noted to be “partially

improved” and her medications at discharge were Effexor, Risperdal,

24

Klonopin and Trazodone36. Tr. 230.

The discharge summary also

reveals that Wilkinson had a prior stay in the Behavioral Science
Unit at the Robert Packer Hospital in June, 2005. Tr. 229.
However, the administrative record does not contain those records.
On May 10, 2006, Wilkinson was evaluated by Suresh
Undavia, M.D., a psychiatrist, located in Vestal, New York. Tr.
187-191. A mental status examination was essentially normal except
for Wilkinson’s report that she was hearing voices. Tr. 189. Dr.
Undavia’s assessment was that Wilkinson suffered from major
depressive disorder, recurrent with some psychotic features and a
“[m]ood disorder secondary to chronic medical condition - chronic
pain.” Tr. 190.

Dr. Undavia gave Wilkinson a Global Assessment of

Functioning (GAF) score of 50 to 55.37 Id.
36. Risperdal is an antipsychotic medication used to treat
schizophrenia and symptoms of bipolar disorder. Risperdal,
Drugs.com, http://www.drugs.com/risperdal.html (Last accessed May
2, 2012). Klonopin (clonazepam) is a benzodiazepine drug used to
treat seizure disorders or panic disorder. Klonopin, Drugs.com,
http://www.drugs.com/klonopin.html (Lasr accessed May 2, 2012).
Trazodone is an antidepressant medication. Trazodone, Drugs.com,
http://www.drugs.com/trazodone.html (Last accessed May 2, 2012).
37. The Diagnostic and Statistical Manual of Mental Disorders
uses a multiaxial approach in diagnosing mental disorders. The
GAF score allows a clinician to indicate his judgment of a
person’s overall psychological, social and occupational
functioning, in order to assess the person’s mental health
illness. Diagnostic and Statistical Manual of Mental Disorders
3–32 (4th ed. 1994). A GAF score is set within a particular range
if either the symptom severity or the level of functioning falls
within that range. Id. The score is useful in planning treatment
and predicting outcomes. Id. A GAF score of 21-30 represents
behavior considerably influenced by delusions or hallucinations
or serious impairment in communication or judgment or inability
to function in almost all areas. A GAF score of 31-40 represents
(continued...)
25

On August 26, 2006, Wilkinson was admitted to the
psychiatric unit of a hospital in Binghamton, New York, under the
care of Dr. Undavia. Tr. 208-213.

At admission on August 26th

Wilkinson was given a GAF score of 35. Tr. 210. The records of this
hospitalization reveal that Wilkinson had been abusing alcohol and
was depressed over having had an affair. Tr. 211. After examining
Wilkinson subsequent to her admission Dr. Undavia gave Wilkinson a
GAF score of 40. Tr. 212.

It was his opinion that Wilkinson

suffered from a mood disorder with psychotic features. Id.

Dr.

Undavia’s initial diagnosis was bipolar disorder II with a history
of psychotic features and alcohol abuse, episodic. Id.

He further

noted that she had a “[h]istory of mood disorder secondary to
chronic medical condition - Mobius syndrome.” Id.

During her stay

at the hospital, Wilkinson received psychotherapy and
electroconvulsive therapy (ECT).
Wilkinson was discharged from the hospital on September
1, 2006. Tr. 208-210.

At discharge, she was diagnosed as suffering

from major depressive disorder, recurrent with some psychotic

37. (...continued)
some impairment in reality testing or communication or major
impairment in several areas, such as work or school, family
relations, judgment, thinking or mood. Id. A GAF score of 41-50
indicates serious symptoms or any serious impairment in social,
occupational or school functioning. Id. A GAF score of 51 to 60
represents moderate symptoms or any moderate difficulty in
social, occupational, or school functioning. Id. A GAF score of
61 to 70 represents some mild symptoms or some difficulty in
social, occupational, or school functioning, but generally
functioning pretty well with some meaningful interpersonal
relationships. Id.
26

features, a mood disorder secondary to chronic alcohol abuse, and
an unresolved grief reaction apparently related to her marital
affair. Id.

Dr. Undavia gave her a discharge GAF score of 45. Id.

Wilkinson’s medications at discharge were Valium38 and Trazodone.
Id.

It was further noted that Wilkinson would be receiving

outpatient ECT and would be receiving care from Dr. Undavia “once
the ECT course has finished.” Tr. 209.
During Wilkinson’s stay in the psychiatric unit from
August 26 to September 1, 2006, radiographs (x-rays) of her
cervical, thoracic and lumbar spine were taken. Tr. 220-223.
The x-ray of the cervical spine revealed “[m]oderate
arthritic disease, C5-6 and mild arthritic disease, C6-7.” Tr. 222.
The alignment of the vertebrae were “within normal limits.” Id.
The x-ray revealed moderate joint space narrowing at the C5-6
level, moderate spur formation at the C5-6 level, and mild spur
formation at the C6-7 level. Id.
The x-ray of the thoracic spine revealed “[m]oderate
scoliosis . . . with Harrington rod in place.” Tr. 220.
Tr. 229.
The x-ray of the lumbar spine also revealed “moderate
scoliosis . . . with Harrington rod in place.” Tr. 221. The lumbar

38. “Valium (diazepam) belongs to a group of drugs called
benzodiazepines. Diazepam affects chemicals in the brain that may
become unbalanced and cause anxiety. Valium is used to treat
anxiety disorders, alcohol withdrawal symptoms, or muscle
spasms.” Valium, Drugs.com, http://www.drugs.com/valium.html
(Last accessed May 3, 2012).
27

spine x-ray did reveal degenerative changes “at the L5-S1 level as
indicated by sclerosis within the apophyseal joints”39 and “7 mm of
anterior subluxation40 of L4 on L5 with respect to S1.”41 Id.
On October 4, 2006, Wilkinson was brought by her family
to the emergency department of the Robert Packer Hospital, Sayre,
after she cut her leg. Tr. 227.

The laceration was “from her groin

down her thigh, around her knee and down her lower leg to her
ankle.” Tr. 226. The laceration was primarily superficial other
than at the shin where it was about 3 inches. Tr. 228. Wilkinson’s
blood alcohol level was .258%. Tr. 226.

Wilkinson was treated in

the emergency department and then involuntarily committed to the
Behavioral Science Unit of Robert Packer Hospital where she stayed
until her discharge from the hospital on October 10, 2006. Tr. 224225.
At the time of admission to the Behavioral Science
Unit,42 Dr. McGurk’s assessment was that Wilkinson suffered from
major depression, recurrent, severe with psychotic features;
alcohol dependence; and panic disorder by history. Tr. 227.
39. The apophyseal joints are the facet joints described in
footnote 16.
40. Subluxation is defined as “an incomplete or partial
dislocation.” Dorland’s Illustrated Medical Dictionary, 1791
(32nd Ed. 2012).
41. This is describing the spondylolithesis mentioned in
footnote 17.
42. Wilkinson had two previous admissions to the Behavioral
Science Unit, the first in June, 2005 and the second in April,
2006. Tr. 224.
28

Dr.

McGurk gave her a GAF score of 25.

Id.

During her stay in the

Behavioral Science Unit, Wilkinson received individual and group
psychotherapy and was prescribed Effexor and the sleep aid
Ambien.43 Id.

“She was also given Klonopin because she was very

anxious during the course of her stay . . . [and] given thiamine,
daily vitamins and folic acid because she had been drinking.” Tr.
225.

As therapy proceeded she denied any further suicidal

ideations and stated that she would cease drinking. Id.
Consequently, it was determined that she was no longer a danger to
herself and was discharged on October 10, 2006. Id.

At discharge

her diagnosis was major depression, recurrent, severe with
psychotic features; panic disorder; and alcohol dependence. Tr.
224. She was given a GAF score of 50. Id.
On November 6, 2006, Wilkinson appears to have had an
appointment regarding her depression and anxiety disorder with
either Dr. Jones or Physician Assistant Trahan at the Guthrie
Clinic in Athens, Pennsylvania. Tr. 248-249.

The appointment

lasted 40 minutes and Wilkinson was advised that Dr. Jones would
not take over her psychiatric care but that she should continue
with her psychiatrist. Id.

Wilkinson was continued on the Effexor,

her prescription for Klonopin (clonazepam) was increased, and she
was strongly encouraged not to drink and asked to contact
Alcoholics Anonymous. Id.

A follow-up appointment was scheduled in

43.
Ambien, Drugs.com, http://www.drugs.com/ambien.html (Last
accessed May 2, 2012).
29

three months, and if at that time her insurance had lapsed because
of her divorce, the clinic would attempt to “get her to Northern
Tier Counseling” for psychiatric care. Id.
On December 18, 2006, Wilkinson was taken by her husband
and daughter to the emergency department at Robert Packer Hospital
because she consumed a large amount of vodka and became suicidal.
Tr. 236. The report of this emergency department visit states in
pertinent part as follows: “She has been drinking large amounts of
vodka over the past several weeks. She admits to drinking around 24
ounces of vodka a day. Her husband indicates that she is also
drinking Benadryl elixir and NyQuil, although the patient denied
this. Does admit to using marijuana approximately a month ago, but
states that she usually does not abuse recreational drugs. Tonight,
she became extremely combative . . . she became suicidal. She got a
knife . . . and was threatening to kill herself and had to be
physically restrained and disarmed. . . Apparently did not actually
harm herself tonight . . . .” Id.

While in the emergency

department, several diagnostic tests were ordered, including a
blood alcohol test which reveal a blood alcohol level of .270%. Id.
Wilkinson was admitted to the hospital for overnight observation.
Tr. 246. She was discharged the next day “with an outpatient
followup appointment for counseling and a recommendation to start
Antabuse[.]”44 Id.
44. “Antabuse (disulfiram) interferes with the metabolism of
alcohol resulting in unpleasant effects when alcohol is consumed.
(continued...)
30

Wilkinson subsequently started on Antabuse and had
appointments with either Dr. Jones or Physician Assistant Trahan on
December 20 and 22, 2006 and January 4 and February 19, 2007. Tr.
242-247. At the appointment on January 4, 2007, Wilkinson reported
that she was “doing pretty well[.]” Tr. 244.

A physical

examination was essentially normal and she had been abstinent since
starting on the Antabuse. Id.

It was noted that “[s]he [would]

continue with her excellent lifestyle modifications.” Id.

At the

appointment on February 19, 2007, it was reported that Wilkinson
had been sober for 60 days and that she was seeing a therapist who
was “helping her dramatically.” Tr. 242.

She did complain of “back

pain, left leg pain, and occasional left foot numbness[.]” Id.

It

was further noted that she had been treated with steroid
“injections without significant improvement” and that nerve blocks
had been recommended but that she had “not had those as yet.” Id.
The assessment was “alcohol abuse, chronic back pain and
depression/anxiety.” Id.
On April 27, 2007, Wilkinson had an appointment with
Aileen Colunio, a certified family nurse practitioner, at the
Anesthesia/Pain Clinic, Guthrie Clinic, located in Sayre. Tr. 379380.

The record of this appointment indicates it was a follow-up

appointment and that Wilkinson had been last seen in October, 2005,

44. (...continued)
Antabuse is used to treat chronic alcoholism.” Antabuse,
Drugs.com, http://www.drugs.com/antabuse.html (Last accessed May
2, 2012).
31

when she received an epidural injection which did not provide any
pain relief. Tr. 379.

Wilkinson reported to Ms. Colunio that she

had pain in her low back which radiated into her left hip and
numbness down her left leg to her heel. Id.

Wilkinson also

reported that she “helps care for her 1-year-old great-niece with a
lot of bending and lifting.” Id.

A physical examination was

normal except for an antalgic gait, reported pain on forward
flexion, limited movement with respect to extension and lateral
flexion of the spine, and reported pain on palpation of the spinal
processes and paravertebral musculature of the lumbosacral region
of the spine; reported pain over the left sacroiliac joint and left
gluteal musculature; and a positive Fabere sign45 on the left but
negative on the right. Id.

Ms. Colunio scheduled Wilkinson for “a

left L5-S1 facet joint injection,” continued Wilkinson’s
prescription for Norco and continued her aquatherapy. Id.

Ms.

Colunio reviewed her findings and recommendations with John W.
Lockard, M.D., who approved the treatment.

On May 5, 2007,

Wilkinson had a “left L5 transforaminal epidural steroid injection
under fluoroscopic guidance” performed by Dr. Lockard. Tr. 233.
On June 13, 2007, Wilkinson visited the emergency
department at the Robert Packer Hospital in Sayre “complaining of
increasing depression” and stating that she felt “she could harm

45. The Faber test or Patrick’s test is a pain provocation test
which reveals problems at the hip and sacroiliac regions. Faber
is an acronym which stands for flexion, abduction and external
rotation.
32

herself although she denie[d] any specific plan and any actual
suicidal ideation.” Tr. 238.

Wilkinson admitted she had been

drinking and had stopped her psychiatric medications. Id.
Diagnostic tests were ordered, including a blood alcohol level. Tr.
238 and 418. The emergency department physician also noted that
someone from the “Crisis Department [would] speak with her.”
However, at some point after the examination by the emergency
department physician, Wilkinson “eloped” from the hospital. Tr.
238.

The blood testing revealed that Wilkinson’s blood alcohol

content was .126 percent. Tr. 418.
In August, 2007, Wilkinson commenced receiving care from
Constance Sweet, M.D., of Sweet Family Practice, located in Wysox,
Pennsylvania. Tr. 403-404.

Specifically, on August 27, 2007,

Wilkinson had an appointment at Sweet Family Practice for what
appears to be an annual female health examination. Id.

It is not

clear if Dr. Sweet examined Wilkinson or a certified registered
nurse practitioner. Id.

In any case, a review of Wilkinson’s

systems revealed only complaints regarding her “mobius syndrome,”
depression and anxiety. Id.

The results of a physical examination

were essentially normal. Id.

The individual examining Wilkinson

did notice a strong odor of alcoholic beverage on Wilkinson. Tr.
403.

As for Wilkinson’s psychiatric condition it was merely noted

that Wilkinson was “crying” and again there was a notation of her
consumption of alcoholic beverage. Tr. 404.

The record of this

appointment gives no indication of Wilkinson’s physical functional
33

abilities, such as gait, muscle strength or range of motion of her
extremities or spine.

Wilkinson was prescribed the medications

Librium46 and Lexapro.47 Id.

After two weeks had passed, Wilkinson

had a follow-up appointment with Dr. Sweet regarding her anxiety.
Tr. 402.

Wilkinson reported a 60-70% improvement. Id.

started Wilkinson on the drug Trazodone. Id.

Dr. Sweet

The record of this

appointment gives no indication of Wilkinson’s physical functional
abilities, such as gait, muscle strength or range of motion of her
extremities or spine.
It appears that in mid-September, 2007, Wilkinson was
evaluated by Marion Beach, CANAC,48 at New Horizons, located in
Binghamton, New York. Tr. 270-280. Wilkinson was referred to New
Horizons by an Alcohol Crisis Center. Tr. 271.

Wilkinson was

interviewed by Ms. Beach and during that interview admitted that
during the past month had been drinking a pint to a quart of vodka
at least 2 to 4 time per week. Tr. 273.

Wilkinson stated that her

46. Librium (chlordiazepoxide) “is used to treat anxiety and
acute alcohol withdrawal. It is also used to relieve fear and
anxiety before surgery. This medication belongs to a class of
drugs called benzodiazepines which act on the brain and nerves
(central nervous system) to produce a calming effect.” Librium
Oral, WebMD, http://www.webmd.com/drugs/drug-5263-librium+oral.
aspx?drugid=5263&drugname=librium+oral (Last accessed May 2,
2012).
47. “Lexapro (escitalopram) is an antidepressant . . . used to
treat anxiety in adults and major depressive disorder in
adults[.]” Lexapro, Drugs.com, http://www.drugs.com/lexapro.html
(Last accessed May 12, 2012).
48. It is unclear what this abbreviation represents. Possibly
it stands for a certified alcohol and narcotics addiction
counselor.
34

marriage is “strained” because of her drinking. Tr. 277. When asked
about her recreational activities, Wilkinson stated that she
engages in gardening, reading and family functions.49 Tr. 275.
Wilkinson admitted smoking 1 pack of cigarettes per day. Id.

Ms.

Beach conducted a mental status/risk assessment and noted that
Wilkinson had no current suicidal ideations or intent; no homicidal
ideations or intent; appropriate affect; Wilkinson’s mood was “ok”;
her social ability “ok”; and there was no evidence that Wilkinson
suffered from psychosis. Tr. 278.

Ms. Beach concluded that

Wilkinson was not a risk to herself or others but that she should
seek mental health services in Pennsylvania. Id.

Ms. Beach’s

diagnosis was that Wilkinson suffered from alcohol dependence,
nicotine dependence, anxiety, depression and panic attacks. Tr.
280.

The document was not signed or dated by Ms. Beach. Id.
On November 5, 2007, Wilkinson had an appointment at the

Guthrie Clinic in Athens, Pennsylvania, at which she complained of
a sore throat and white spots in the back of her throat. Tr. 240.
Wilkinson was diagnosed with oropharyngeal candidiasis (Thrush), a
fungal infection. Id.

She was prescribed medications and advised

to quit drinking. Id.

The report of this appointment notes

Wilkinson’s alcohol abuse. Id.

The record of this appointment

49. It is not clear that Wilkinson was indicating that she was
presently engaging in those activities. In a document dated March
8, 2008, filed with the Social Security Administration Wilkinson
stated as follows: “I used to love to garden - landscape move big
rocks, plant shubs (sic) [and] small trees. I loved to carry my
toddler nieces around [and] it makes me sad I can’t do that
anymore.” Tr. 149.
35

gives no indication of Wilkinson’s physical functional abilities,
such as gait, muscle strength or range of motion of her extremities
or spine.
On November 13, 2007, Wilkinson had an appointment with
Dr. Sweet regarding “anxiety-alcohol ‘getting out of hand.’” Tr.
401.

It was noted that Wilkinson was “very stressed” because of

divorce proceedings. Id.
normal. Id.

A physical examination was essentially

It was stated that Wilkinson was anxious but that she

was in no acute distress and was alert and oriented to person,
place and time. Id.

Dr. Sweet’s assessment was that Wilkinson

suffered from severe anxiety as the result of family stress and
that Wilkinson was medicating herself with alcohol. Id.

He stated

that Wilkinson was abusing alcohol and prescribed Antabuse. Id.
The record of this appointment gives no indication of Wilkinson’s
physical functional abilities, such as gait, muscle strength or
range of motion of her extremities or spine.
The next appointment Wilkinson had with Dr. Sweet was
not until April 4, 2008. Tr. 400.

Wilkinson was suffering from

bronchitis and was prescribed an antibiotic. Id.

She also

complained of depression and anxiety. Id. Dr. Wilkinson prescribed
Lexapro. Id.

The record of this appointment gives no indication of

Wilkinson’s physical functional abilities, such as gait, muscle
strength or range of motion of her extremities or spine.
In April, 2008, Dr. Undavia who treated Wilkinson in May
and August of 2006 refused to complete a medical source statement
36

of Wilkinson’s mental work-related abilities because he had not
followed Wilkinson as a patient and had no current information
regarding Wilkinson. Tr. 193-199.
On April 22, 2008, Raphael Kon, M.D., performed a
physical consultative examination of Wilkinson on behalf of the
Bureau of Disability Determination. Tr. 281-288.

Dr. Kon found

that Wilkinson had no limitation of range of motion of her
shoulders, elbows, wrists or knees. Tr. 287.

The range of motion

of her hips, cervical region of her spine and ankles were also
normal. Tr. 288.

With respect to range of motion of the lumbar

region, Wilkinson could only bend forward 45 degrees out of a
possible 90 degrees and could bend from side to side 10 degrees out
of a possible 20 degrees. Id.
Dr. Kon found that Wilkinson although very anxious was
alert, awake and oriented and able to follow commands. Tr. 282. A
physical examination was essentially normal, except as noted above
the limitations in the range of motion of the lumbar region, and
some paravertebral tenderness, a positive straight leg raise test
on the left, and diminished ankle reflexes. Tr. 283.

Wilkinson had

normal grip strength; her sensory, motor and hand examinations were
normal; her knees revealed no deformities; her gait and station
were intact. Id.

Dr. Kon noted that Wilkinson was not currently on

any pain medications. Tr. 284.

Dr. Kon concluded that Wilkinson

could sit 6 hours, stand for 1 to 2 hours, and lift and carry 3
pounds because of her spinal surgery. He further indicated that she
37

could never bend, kneel, stoop, crouch, balance and climb and that
she had limitations with respect to working at heights, in
temperature extremes, and in wet and humid environments. Tr. 285286.

Dr. Kon’s assessment limited Wilkinson to less than the full-

range of sedentary work.
On May 14, 2008, Larue Montayne, D.Ed., a psychologist,
performed a psychological consultative evaluation of Wilkinson on
behalf of the Bureau of Disability Determination. Tr. 289-294.
Wilkinson reported that she was upset over her recent divorce and
had to move from a beautiful country home to a trailer park. Tr.
290.

She told Dr. Montayne that she began having mental problems

about seven years ago when her sister killed her husband. Tr. 291.
Wilkinson told Dr. Montayne that she liked to work in the garden,
read, write poetry, paint and decorate her home.50 Tr. 292.

Dr.

Montayne indicated that Wilkinson was oriented to person, place and
time, but not the date; she recalled his name; she was alert and
cooperative; her attention was good; her speech was clear and
understandable; the content of her thought was appropriate; she had
some difficulty with memory; her demeanor was appropriate; and she
was quite aware of her surroundings. Tr. 291. Wilkinson was able to
recall five digits forward and three in reverse; her judgment was
fair. Tr. 293.

Dr. Montayne diagnosed Wilkinson as suffering from

an adjustment disorder with depression and recommended that
Wilkinson attend individual therapy. Tr. 293-294.
50.

See fn. 49, supra.
38

On June 10, 2008, Dr. Montayne completed a form on which
she indicated that Wilkinson had a slight restriction in the
ability to understand, remember and carry out short, simple
instructions, and a “marked” restriction in the ability to
understand, remember and carry out detailed instructions. Tr. 295.
Dr. Montayne indicated that Wilkinson had no restriction with
respect to

interacting appropriately with others, but was

moderately restricted in the ability to respond appropriately to
work pressures and changes in a work setting. Id.
On May 23, 2008, Sharon A. Wander, M.D., reviewed
Wilkinson’s medical records on behalf of the Bureau of Disability
Determination and completed a physical residual functional capacity
assessment. Tr. 297-303.

Dr. Wander concluded that Wilkinson’s

primary diagnosis was low back pain and her secondary diagnosis was
a history of scoliosis repair. Tr. 297. The only medical conditions
mentioned by Dr. Wander contributing to Wilkinson’s low back pain
were as follows:
By history: Back surgery in 1981.
Seen on 4/8/03 History of scoliosis, [status post]
thoracic and thoracolumbar fusion extending down to
L3 level from the upper part of the thoracic spine with
a rod. There are no neurologic findings. Referred to
pain clinic.
On 4/22/2008 [physical examination] by Dr. R. Kon, M.D.
. . .
“History of Scoliosis: [status post] fusion of her
Thoracic spine and current K-wire placement51 of her
51.

Dr. Kon in his report referred to a “K-wire” (Kirschner
(continued...)
39

entire thoracic and lumbar spine.” Still [complains
of] pain after spinal surgery.
P/E unremarkable, musculoskeletal unremarkable
neurononfoccal. Grip strength 5/5. Sensory and motor
are intact.
She does have a positive straight leg raising on the
left.
Her back reveals a large scar from the base of her neck
down to her sacral. She does have paravertebral
tenderness.
Her lumbar spine reveals approximately 50% reduction
with flexion, extension, side bending and rotation
of her lumbar spine.
gait and station are intact.
Tr. 302.

There is no indication that Dr. Wander reviewed any of

the reports of the radiographs (including the x-rays and CAT scans
of Wilkinson’s thoracic and lumbar spine). If she had, she would
have recognized that Wilkinson’s spinal fusion was as the result of
the insertion of a Harrington rod.52
51. (...continued)
wire) placement. Tr. 282. Dr. Wander repeats this terminology in
her report. We assume that Dr. Kon was referring to the
Harrington rod. A K-wire is a totally different device from a
Harrington Rod. The diameter of the Harrington rod is much
greater than the diameter of a K-Wire. Orthopedic Hardware,
Musculoskeletal Radiology, Department of Radiology, University of
Washington, http://www.rad.washington.edu/academics/academicsections/msk/teaching-materials/online-musculoskeletal-radiologybook/orthopedic-hardware (Last accessed April 30, 2012); John
Park, Orthopedic Hardware and Procedures, http://www.bonepit.com
/Lectures/Ortho%20hardware-John%20Park.pdf (Last accessed April
30, 2012); Dorland’s Illustrated Medical Dictionary, 944 & 2082
(32nd Ed. 2012).
52. The record does not contain evidence of Dr. Wander’s
qualifications. An internet search for her qualifications
suggests that she is a pediatrician and obtained her medical
(continued...)
40

Dr. Wander found that Wilkinson had the residual
functional capacity to perform a limited range of light work. Tr.
297-301. The only limitations were with respect Wilkinson’s ability
to stoop, crouch and climb ramps, stairs, ladders, ropes and
scaffolds. Tr. 299.

According to Dr. Wander, Wilkinson could never

climb ladders, ropes or scaffolds but occasionally ramps and
stairs. Id.

Also, Wilkinson could only occasionally stoop53 and

crouch. Id.

Dr. Wander found no manipulative, visual or

communicative limitations. Tr. 299-300.

However, with respect to

environmental limitations, Dr. Wander concluded that Wilkinson
should avoid concentrated exposure to extreme cold, humidity,
vibration and hazards. Tr. 300.
52. (...continued)
degree from University Cetec, School of Medicine, Santo Domingo,
Dominican Republic, which was closed in 1984. Wellness.com, About
Sharon Wander, M.D., http://www.wellness.com/dir/2431350/
pediatrician/pa/wilkes-barre/sharon-wander-disability-determinati
on-sctn-md (Last accessed April 28, 2012). There is no indication
that she has any expertise in neurosurgery or the diagnosis of
musculoskeletal disorders and in the limitations imposed by those
disorders.
53. “Some stooping (bending the body downward and forward by
bending the spine at the waist) is required to do almost any kind
of work[.]” Social Security Ruling 85-15. “Occasionally” is
defined as up to 1/3 of an 8-hour workday or approximately 2.67
hours. Dr. Kon as previously noted concluded apparently based on
his examination of Wilkinson and his review of her medical
records that Wilkinson could never engage in stooping. That
opinion arguably is supported by the fact that Wilkinson had a
Harrington rod from the upper thoracic region of the spine down
to the L3 level of the lumbar spine, two areas of
spondylolisthesis, severe lumbar spinal stenosis and a 50%
decrease in her lumbar range of motion. Dr. Wander, however,
contends that Wilkinson can engage in stooping up to 2.67 hours
out of an 8 hour day.
41

On June 7, 2008, Wilkinson was injured when her car hit
a tree. She broke the femur bone in her right leg, and had a right
lung contusion and a minimal pneumothorax54 that cleared within a
day. Tr. 323-336.

At the time of the accident, Wilkinson was under

the influence of alcohol. Tr. 422.

Her blood alcohol level as

previously noted was .173 percent. Id.

The fracture of the femur

was surgically repaired (open reduction internal fixation (ORIF))
by Paul A. Suarez, M.D., at the Robert Packer Hospital in Sayre.
Tr. 344-345.
On June 11, 2008, while recovering from the surgery in
the hospital, Wilkinson tried to choke a sitter at her bedside. Tr.
353.

As a result of this incident Wilkinson was evaluated by Jay

Shaw, M.D., a psychiatrist. Tr. 353-355.

Dr. Shaw diagnosed

Wilkinson as suffering from delirium secondary to her general
medical condition and he could not rule out alcohol withdrawal. Tr.
354.

Dr. Shaw gave Wilkinson a GAF score of 20. Id.

Dr. Shaw’s

recommendation was to “[o]ptimize benzodiazepine to control alcohol
withdrawal delirium.” Id.

On June 12, 2008, Wilkinson had improved

to the point where she could be safely transferred to the
Behavioral Science Unit of the hospital. Tr. 360.

On June 20,

2008, Wilkinson was discharged from the hospital with a diagnosis
of severe and recurrent major depression, alcohol dependence,
status post motor vehicle accident and a GAF score of 50. Tr. 433.
54. Pneumothorax is defined as “an accumulation of air or gas in
the pleural space[.]” Dorland’s Illustrated Medical Dictionary,
1476 (32nd Ed. 2012).
42

On June 23, 2008, Wilkinson had a follow-up appointment
with Richard Damian, a general surgeon, at the Guthrie Clinic in
Sayre. Tr. 381.

Dr. Damian concluded that “[f]rom the standpoint

of her injuries I believe she is doing quite well. . . She is
ambulating well and following up with orthopedics.” Tr. 381. Also,
on June 23, 2008, Wilkinson was examined by Dr. Suarez who
concluded that Wilkinson was “doing well.” Tr. 367. He stated that
Wilkinson should “continue with her walker and slowly progress to a
cane.” Id.

A follow-up appointment with Dr. Suarez was scheduled

in one month. Id.
On July 1, 2008, Joseph J. Kowalski, M.D., a
psychiatrist, reviewed Wilkinson’s medical records on behalf of the
Bureau of Disability Determination, including Dr. Montayne’s
report, and concluded that Wilkinson suffered from depression and
alcohol dependence. Tr. 308, 313 and 320.

With respect to whether

Wilkinson met the criteria of a Listed impairment (mental), Dr.
Kowalski found that Wilkinson had mild limitations with respect to
activities of daily living and maintaining social functioning and
moderate limitations with respect to maintaining concentration,
persistence or pace. Tr. 315.

He further found that she had no

repeated episodes of decompensation of an extended duration. Id.
With respect to Wilkinson mental residual functional capacity Dr.
Kowalski concluded that Wilkinson was able to make simple
decisions, carry out short and simple instructions, sustain an
ordinary routine without special supervision, and had the mental
43

capacity to work on a sustained basis. Tr. 320. Dr. Kowalski
completed a mental functional capacity form consistent with those
abilities. Tr. 318-319.
On July 30, 2008, Wilkinson had an appointment with Dr.
Sweet to have a physical examination and medical assistance
paperwork completed. Tr. 399. Wilkinson complained of chronic pain
since the motor vehicle accident. Id.

Previously, she stated that

her problem was in her left leg but now both legs were painful. Id.
Dr. Sweet’s examination notes are unrevealing. Id.

There are no

positive (adverse) physical examination findings noted. Id.

Dr.

Sweet’s diagnosis was that Wilkinson suffered from depression and
alcohol abuse but was “doing much better overall” and Wilkinson was
instructed to continue the current medications for her depression.
Id.

Dr. Sweet also diagnosed Wilkinson with chronic back and leg

pain and prescribed narcotic pain medications Ultram and Oxycodone
(Oxy 15). Id.
On July 30, 2008, Dr. Sweet also completed a form on
behalf of Wilkinson in which Dr. Sweet stated that Wilkinson was
temporarily disabled for 12 months or more from June 7, 2008 until
August 1, 2009 as a result of the automobile accident. Tr. 322. Dr.
Sweet stated that Wilkinson’s diagnosis involved depression, back
pain, and chronic arthropathy (joint disease) caused by trauma. Id.
Dr. Sweet noted that her assessment was based on physical
examinations, clinical history and appropriate tests and diagnostic
procedures. Id.
44

On August 6, 2008, Wilkinson had a follow-up appointment
with Dr. Suarez regarding her surgically repaired right femur
fracture. Tr. 383.

The assessment was that Wilkinson was doing

well and that she could discontinue the use of the walker but she
could use a cane if going long distances. Id.

Dr. Suarez did note

that she does have some pain in the left leg from another issue
which Wilkinson was receiving care from another physician
(referring to Dr. Sweet). Id.
On August 19, 2008, Wilkinson after contracting poison
ivy had an appointment with Dr. Sweet. Tr. 398. There is no
indication in the notes how she encountered the poison ivy. Id.
The physical examination findings were essentially normal except
for the observation by Dr. Sweet of the rash on Wilkinson’s neck,
arms and legs. Id.

The record of this appointment gives no

indication of Wilkinson’s physical functional abilities, such as
gait, muscle strength or range of motion of her extremities or
spine.
On September 22, 2008, Wilkinson had an appointment with
Dr. Sweet regarding her chronic pain. Tr. 397.

Wilkinson told Dr.

Sweet that “she has good [and] bad days.”

The comment was

Id.

made that Wilkinson “was abusing alcohol, but much improved” and
“still gets depressed but better.” Id.

Also it was stated that

“pain in back is getting worse” and Wilkinson “feels stable with
depression [and] [n]o thought regarding going back to alcohol.” Id.
The physical examination results were essentially normal. Id.
45

It

was stated that Wilkinson appeared in no acute distress. Id. Dr.
Sweets assessment was that Wilkinson suffered from stable
depression, resolved poison ivy and “chronic pain - following with
Dr. Suarez October 17, 2008, about femur.” Id.

The record of this

appointment gives no indication of Wilkinson’s physical functional
abilities, such as gait, muscle strength or range of motion of her
extremities or spine.
On October 16, 2008, Wilkinson had an appointment with
Cheryl Perry, a certified registered nurse practitioner, at Sweet
Family Practice, regarding a urogynecological condition. Tr. 396.
Other than with respect to that condition, the physical examination
findings were essentially normal. Id.

It was noted that Wilkinson

“look[ed] good and [had] gained [weight] favorably.” Id.

The

record of this appointment gives no indication of Wilkinson’s
physical functional abilities, such as gait, muscle strength or
range of motion of her extremities or spine.
On October 17, 2008, Wilkinson had a follow-up
appointment with Dr. Suarez regarding the fractured right femur.
Tr. 384.

A physical examination revealed the following: “Her gait

is satisfactory. Her femur is well-healed and nontender with good
range of motion of the hip, knee and ankle.” Id.

Dr. Suarez

reviewed x-rays of the femur and stated as follows: “X-ray shows
significant amount of callus formation with excellent radiographic
healing and excellent alignment.” Id.

Dr. Suarez released

Wilkinson to “her activities as tolerated” with reference to her
46

femur. Id.

Dr. Suarez referred to “radicular symptoms”55 and noted

that if that worsens “it would be reasonable to contact
Neurosurgery for reevaluation.” Id.
On November 18, 2008, Wilkinson had an appointment with
Ms. Perry at Sweet Family Practice regarding dizziness when bending
over. Tr. 395.

On February 16, 2009, Wilkinson had an appointment

with Dr. Sweet for what appears to be her annual female health
examination. Tr. 394.

On May 20, 2009, Wilkinson had an

appointment with Dr. Sweet regarding anxiety and alcohol abuse. Tr.
392. The records of these appointments give no indication of
Wilkinson’s physical functional abilities, such as gait, muscle
strength or range of motion of her extremities or spine.
On June 16, 2009, Wilkinson had an appointment with Dr.
Sweet regarding chronic pain. Tr. 391. The record of this
appointment indicates that Wilkinson had decreased range of motion
in the back and extremities. Id.

Dr. Sweet’s assessment was that

Wilkinson suffered from chronic back pain and anxiety. Id.
After the administrative law judge issued her decision
in this case counsel for Wilkinson submitted additional medical
records to the Appeals Council. We will now review those records
but do not rely on them in deciding to remand this case to the
Commissioner for further proceedings.

55. This is an obvious reference to Wilkinson’s problems with
her low back, buttocks and left leg.
47

Three of the records submitted relate to medical
treatment Wilkinson had prior to the administrative law judge
issuing her decision on December 18, 2009.

Specifically, those

records relate to treatment on November 2 and 19 and December 10,
2009. Tr. 449-454 and 475-482.
On November 2, 2009, Wilkinson was treated at the
emergency department of the Robert Packer Hospital in Sayre for a
suicide attempt. Tr. 449-454.

Wilkinson cut herself with a razor

and was transported to the hospital by ambulance. Id.
alcohol level was .13 percent. Id.

Her blood

The record of this visit gives

no indication of Wilkinson’s physical functional abilities, such as
gait, muscle strength or range of motion of her extremities or
spine.
On November 19, 2009, Wilkinson visited Towanda Family
Practice and was seen by Barbara Gordon, a nurse practitioner. Tr.
475-477.

Wilkinson apparently was “released from [Dr. Sweet’s]

care” and was seeking prescriptions “for her meds” because she lost
them “in a visit to [Robert Packer Hospital].” Id.

When nurse

Gordon reviewed Wilkinson’s systems it appears there were no
complaints other than back pain. Id.

Also, it appears that

Wilkinson told nurse Gordon that she was not suffering from
depression, suicidal ideations, hallucinations or memory loss but
that she was nervous, anxious and had insomnia. Tr. 476.

She also

told nurse Gordon that “[t]here is no substance abuse.” Id.

The

results of a physical examination performed by nurse Gordon were
48

essentially normal. Id.

The record of this appointment gives no

indication of Wilkinson’s physical functional abilities, such as
gait, muscle strength or range of motion of her extremities or
spine.
On December 10, 2009, Wilkinson had an appointment with
Karen Saylor, M.D., at Towanda Internal Medicine. Tr. 478-482. The
purpose of the appointment was to establish care so that Wilkinson
could obtain pain medications. Tr. 478.
referral to the pain clinic. Id.

Wilkinson also requested a

Wilkinson told Dr. Saylor that

her “last drink was nearly a month ago.” Id.

The results of a

physical examination were essentially normal other than as follows:
Wilkinson was “anxious-appearing,” she had “partial paralysis of
facial muscles,” and she was “tremulous and tearful.” Tr. 480.

Dr.

Saylor’s assessment was that Wilkinson suffered from anxiety,
depression, alcohol dependence and chronic pain, Tr. 481. Dr.
Saylor “told [Wilkinson] that chronic opioid therapy [was] not in
her best interest [and] likely dangerous given her alcohol and
mental health history[.]”
her opioid drugs. Id.

Dr. Saylor declined to prescribed for

Wilkinson received prescriptions for the

antidepressant Paxil and the anti-anxiety medication Ativan, a
benzodiazepine. Id.
Seven of the records submitted to the Appeals Council
related to medical treatment received by Wilkinson on or after the
date the administrative law judge issued her decision.
456-472 and 483-496.
49

Tr. 455-

On December 18, 2009, Wilkinson was treated for a
urinary tract infection by nurse Gordon at Towanda Family Practice.
Tr. 483-487. The record of this appointment gives no indication of
Wilkinson’s physical functional abilities, such as gait, muscle
strength or range of motion of her extremities or spine.
On December 23, 2009, Wilkinson was seen by Dawn
Lambert, a certified and registered nurse practitioner, at Towanda
Internal Medicine regarding a rash. Tr. 488-490.

Wilkinson also

wanted “to discuss pain medications that were adjusted by Dr.
Saylor on 12/10/09.” Tr. 488. The note of this appointment goes on
to state as follows:
Patient presents with boyfriend who verbally expresses
his displeasure with the regimen that patient is on.
Boyfriend states that patient is in withdrawal at this
time, is shaking in bed so badly that he cannot sleep
and that patient is driving him nuts. . . Patient and
boyfriend were clearly informed by this provider that
plaintiff would be seen [and] examined by a nurse
practitioner; boyfriend expressed displeasure by saying
“we expected to see a real doctor.”
Id.

Nurse Lambert reviewed with Wilkinson her systems during which

Wilkinson complained of a rash on her arms, legs and chest,
informed Ms. Lambert that she vomited one time the previous night,
and that she had back pain in the lower lumbar area. Tr. 489. The
results of a physical examination were essentially normal other
than mildly elevated blood pressure and a rash on the chest and
upper and lower extremities. Tr. 489-490

The record of this

appointment gives no indication of Wilkinson’s physical functional

50

abilities, such as gait, muscle strength or range of motion of her
extremities or spine.
On December 31, 2009, Wilkinson was treated at the
emergency department of the Robert Packer Hospital and then
admitted to the hospital because of acute psychotic behavior. Tr.
455-456 and 470-471.
463 and 471.

Her blood alcohol level was .13 percent. Tr.

On January 3, 2010, Sheela Prabhu, M.D., requested

that Wilkinson be evaluated by a psychiatrist. Tr. 472. The task
was assigned to Jay Shah, M.D. Id.
evaluated by Dr. Shaw. Tr. 472.

Wilkinson refused to be

Wilkinson apparently stated to Dr.

Shaw as follows: “I do not want to sound rude but me and you had
not clicked in the past and therefore I refuse to be evaluated by
you.” Id.

Wilkinson was assigned to another psychiatrist. Id.

However, the name of that psychiatrist or the records of an
evaluation by that psychiatrist were not submitted by Wilkinson’s
attorney.

Instead a discharge summary was submitted to the Appeals

Council. Tr. 468-469.

That summary was prepared by Shishira

Bharadwaj, M.D., a specialist in internal medicine. Id.
Wilkinson was discharged to home on January 5, 2010, apparently
with instructions to seek mental health care at Northern Tier
Counseling. Tr. 468.
The final medical record we encounter is a report of an
appointment Wilkinson had with Dr. Saylor on January 21, 2010. Tr.
491-496. That report indicates that Wilkinson’s active problems
included depression with anxiety, alcohol dependence, mobius
51

syndrome, chronic back pain, lumbosacral neuritis,56 lumbar spinal
stenosis, spondylolisthesis, and osteoporosis. Tr. 491. The results
of a physical examination were essentially normal other than
slightly elevated blood pressure. Id.

It was stated that Wilkinson

had a normal gait. Tr. 493. The record of this appointment gives no
indication of Wilkinson’s physical functional abilities.
DISCUSSION
The administrative law judge at step one of the
sequential evaluation process found that Wilkinson had not engaged
in substantial gainful work activity since December 7, 2007, the
application date. Tr. 14.
At step two of the sequential evaluation process, the
administrative law judge found that Wilkinson had the following
severe impairments: “disorders of the back, status post fusion;
affective disorder; generalized anxiety disorder; personality
disorder; alcohol dependence; and status post right femur
fracture.” Tr. 14. The administrative law judge found that
Wilkinson’s alleged eye problems57 and shoulder pain were nonsevere impairments. Id.

56. Neuritis is defined as “inflammation of a nerve, with pain
and tenderness, anesthesia and paresthesias, paralysis, wasting,
and disappearance of the reflexes.” Dorland’s Illustrated Medical
Dictionary, 1263 (32nd Ed. 2012). Lumbosacral neuritis is the
inflammation of nerves in the low back.
57. At the time of the administrative hearing, it appears that
Wilkinson for the first time alleged she had an eye problem.
52

At step three of the sequential evaluation process the
administrative law judge found that Wilkinson’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr. 14-16.
At step four of the sequential evaluation process the
administrative law judge found that Wilkinson had no past relevant
work but had the residual functional capacity to perform a limited
range of light work.58

Tr. 16.

Specifically, the administrative

58. The terms sedentary, light, medium, heavy and very work are
defined in the regulations of the Social Security Administration
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
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
(continued...)
53

law judge found that Wilkinson could perform light work that
required lifting59 20 pounds occasionally and 10 pounds frequently;
standing and/or walking at least three hours in an 8-hour workday;
sitting about six hours in an 8-hour workday; an unlimited ability
to push and pull objects; occasional climbing of ramps and stairs,
and stooping and crouching; and frequent balancing, kneeling, and
crawling. Id.

However, the work could not require Wilkinson to

climb ladders, ropes or scaffolds; must not involve concentrated
exposure to extreme cold, humidity, vibration, and hazards
including moving machinery and heights; and must be limited to
unskilled work with simple, routine, repetitive tasks in a low
stress environment (defined as no more than occasional decision
making required and no more than occasional changes in the work
58.

(...continued)
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.
(e) Very heavy work. Very heavy work involves lifting
objects weighing more than 100 pounds at a time with
frequent lifting or carrying of objects weighing 50
pounds or more. If someone can do very heavy work, we
determine that he or she can also do heavy, medium,
light and sedentary work.

20 C.F.R. § 416.967.
59. In her decision the administrative law judge does not
specify how much Wilkinson could carry on a frequent or
occasional basis.
54

setting) with only occasional judgment required on the job, and no
quota/production rate-based work, but rather goal oriented work.
Id.
In setting this residual functional capacity the
administrative law judge rejected the opinion of Dr. Sweet and Dr.
Kon and relied on the opinion of Dr. Wander.

She also

characterized Dr. Anton’s interpretation of radiographs as “a
relatively normal neurological examination and the doctor is thus
recommending a fairly normal course of action for claimant’s pain.”
Tr. 17. Not only did the administrative law judge engage in her lay
characterization of Dr. Anton’s interpretation of the radiographs
as a “normal neurological examination” the administrative law judge
characterized Dr. Kon’s findings that Wilkinson suffered from
chronic pain, lumbar radiculopathy and a 50% reduction in range of
motion of the lumbar spine as “a somewhat benign evaluation.” Tr.
18.
Based on the above residual functional capacity and the
testimony of a vocational expert the administrative law judge at
step five of the sequential evaluation process found that Wilkinson
could perform unskilled light work as a ticket taker, a video
monitor, and a telephone receptionist, and that there were a
significant number of such jobs in the regional and national
economies. Tr. 21.
The administrative record in this case is 496 pages in
length, primarily consisting of medical and vocational records.
55

Wilkinson makes the following arguments: (1) the administrative
law judge failed to give significance to the treating source
opinions of Dr. Sweet, consultative examiner Dr. Kon and the
treating psychiatrists; and (2) the administrative law judge
failed to perform her affirmative obligation to assist Wilkinson
in developing the record and exhibited bias against Wilkinson. We
have thoroughly reviewed the record in this case and find some
merit in Wilkinson’s first argument. We need not address
Wilkinson’s second argument.
This is a very difficult case for several reason. The
administrative law judge did not clearly delineate Wilkinson’s
medically determinable physical impairments.

She refers to severe

disorders of the back but does not specify those disorders.
Although the administrative law judge mentions scoliosis, a history
of fusion surgery with Harrington rod implantation,
spondylolisthesis, lumbar stenosis, and left lower extremity
radiculopathy in the body of her opinion, we cannot determine from
her decision what she found to be (1) the non-severe medically
determinable physical impairments and (2) the severe medically
determinable impairments. We are also not satisfied that the
administrative law judge gave an adequate explanation for rejecting
the opinion of Dr. Kon.
The only evidence which arguably supports the
administrative law judge’s decision is the opinion of Dr. Wander.
However, it is not clear that Dr. Wander appropriately considered
56

the medical evidence as previously noted. Consequently, her opinion
cannot be considered substantial evidence.

Dr. Wander, who merely

did a review of the medical records, assumed that Wilkinson’s
scoliosis was corrected with a K-wire.

Furthermore, Dr. Wander did

not address Wilkinson lumbar radiculopathy, osteoporosis,
spondylolisthesis or severe lumbar spinal stenosis.

Basically all

Dr. Wander seems to address is Wilkinson’s history of surgery in
1981 to correct the idiopathic scoliosis and it is not clear that
Dr. Wander fully understood how that condition was corrected, i.e.,
erroneously indicating it was corrected with a K-wire.60
In this case the administrative law judge erred at step
two of the sequential evaluation process.

The Social Security

regulations contemplate the administrative law judge considering
whether there are any medically determinable impairments and then
when setting a claimant’s residual functional capacity considering
the symptoms of both medically determinable severe and non-severe
impairments.

20 C.F.R. § 416.929.

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. § 416.920(c).
If a claimant has no impairment or combination of impairments which
significantly limit 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

60. It is not clear what medical records Dr. Wander reviewed in
light of the fact that she referred to the Harrington rod as a Kwire.
57

any severe impairments, the evaluation process continues.
C.F.R. § 416.920(d)-(g).

20

A failure to find a medical condition

severe at step two will not render a decision defective if some
other medical condition was found severe at step two.

However, all

of the medically determinable impairments both severe and nonsevere must be considered at step four when setting the residual
functional capacity.

The social security regulations mandate such

consideration and this court has repeatedly so indicated. See,
e.g., Christenson v. Astrue, Civil No. 10-1192, slip op. at 12
(M.D. Pa. May 18, 2011)(Muir, J.); Little v. Astrue, Civil No. 101626, slip op. at 19-21 (M.D.Pa. September 14, 2011)(Kosik, J.);
Crayton v. Astrue, Civil No. 10-1265, slip op. at 32-35 (M.D.Pa.
September 27, 2011)(Caputo, J.); 20 C.F.R. §§ 416.923 and
416.945(a)(2).
Consequently, a failure at step two to address a medical
condition and make a determination as to whether or not it is a
medically determinable impairment is reversible error.

The failure

of the administrative law judge to specify the medically
determinable impairments, or to give an adequate explanation for
discounting them, makes the administrative law judge’s decisions at
steps two and four of the sequential evaluation process defective.
The error at step two of the sequential evaluation
process draws into question the administrative law judge’s residual
functional capacity determination and assessment of the credibility
of Wilkinson.

The administrative law judge found that Wilkinson’s
58

medically determinable impairments could reasonably cause
Wilkinson’s alleged symptoms but that Wilkinson’s statements
concerning the intensity, persistence and limiting effects of those
symptoms were not credible.

This determination by the

administrative law judge was based on an incomplete and faulty
analysis of all of Wilkinson’s medically determinable impairments.
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.61
61. If the administrative law judge at one of the steps of the
sequential evaluation process finds that a claimant is disabled
and there is medical evidence of drug addition or alcohol abuse,
the administrative law judge must determine whether or not the
drug addiction or alcoholism is a contributing factor material to
the determination of disability. If drug addiction or alcoholism
is a contributing factor material the determination of
disability, a request for benefits must be denied.
The Social Security regulations set forth the procedure
to be followed in making this determination. 20 C.F.R. §§
404.1535 and 416.935. In deciding this issue of materiality of
drug or alcohol abuse, it is critically important for the
administrative law judge to consider all of the psychiatric or
physical impairments that remain after excluding the impairments
caused by drug and alcohol abuse. The administrative law judge
must address in his decision all psychiatric and physical
impairments raised by the evidence and decide whether or not each
impairment is medically determinable, and if an impairment is
medically determinable, whether the condition is severe or nonsevere. Furthermore, if it is not possible to disentangle the
limitations attributable to drug addiction or alcoholism from
those caused by the other psychiatric or physical impairments,
the administrative law judge cannot conclude that substance
abuse, whether drug or alcohol abuse, is a contributing factor
material to the determination of disability. See Brueggemann v.
Barnhart, 348 F.3d 689, 693-696 (8th Cir. 2003).
(continued...)
59

An appropriate order will be entered.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
Dated: May 4, 2012

61.

(...continued)
The administrative law judge did not reach the point of
having to determine the issue of the materiality of Wilkinson’s
alcohol abuse but the Commissioner in the present appeal still
argues that absent alcohol use Wilkinson can function well enough
to perform unskilled work. Undoubtedly Wilkinson’s alcohol abuse
was a substantial fact with respect to her mental impairments.
However, it is not clear that her alcohol abuse was a substantial
or material factor with respect to her physical impairments. On
remand, the administrative law judge can address this issue if
the need arises.
60