WASIELA v. ASTRUE
Filing
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MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that 8 Plaintiff's Motion for Summary Judgment is DENIED and 11 Defendant's Motion for Summary Judgment is DENIED. The case is hereby REMANDED to the Commissioner of Social Security for further proceedings consistent with the accompanying Memorandum Opinion. Signed by Judge Sean J. McLaughlin on 6/11/12. (rlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TINA M. WASIELA,
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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Civil Action No. 11-114 Erie
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District Judge.
I.
INTRODUCTION
Tina M. Wasiela (“Plaintiff”), commenced the instant action pursuant to 42 U.S.C. §
405(g), seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”), denying her claims for disability insurance benefits (“DIB”) and
supplemental security income (“SSI) under Titles II and XVI of the Social Security Act, 42
U.S.C. § 401, et seq. and § 1381 et seq. Plaintiff filed her applications on February 16, 2007,
alleging disability since January 1, 2000 due to fibromyalgia, chronic fatigue syndrome, diabetes,
a back injury and depression (AR 119-123; 153).1 Her applications were denied (AR 69-78), and
following a hearing held on November 5, 2009 (AR 25-66), the administrative law judge
(“ALJ”) issued his decision denying benefits to Plaintiff on February 3, 2010 (AR 11-19). Her
request for review by the Appeals Council was denied (AR 1-6), rendering the Commissioner’s
decision final under 42 U.S.C. § 405(g). Plaintiff filed her complaint in this Court on May 20,
2011 challenging the ALJ’s decision. Presently pending before the Court are the parties’ crossmotions for summary judgment. For the following reasons, both motions will be denied and the
matter will be remanded to the Commissioner for further proceedings.
1
References to the administrative record [ECF No. 6], will be designated by the citation “(AR ___)”.
1
II.
BACKGROUND
Plaintiff was 47 years old on the date of the ALJ’s decision and has a high school
education (AR 18). She has past relevant work experience as a telephone assembler, flagger,
school cleaner, bakery clerk, hotel cleaner and retail clerk (AR 154). Plaintiff reported that she
stopped working full time on June 6, 2006 (AR 154).2
Medical History
A. Physical impairments
1.
Heritage Primary Care
Plaintiff was treated at Heritage Primary Care from June 2005 to September 9, 2009
(AR 319-323; 444-503; 521-561). Treatment records reveal that Plaintiff was seen for
complaints of diabetes, depression, fibromyalgia, fatigue, thoracic back pain, and paresthesias in
2005 (AR 499-503). In 2006, Plaintiff was treated for low back pain and lumbar strain (AR 319321). In 2007, Plaintiff was treated for strep throat, depression, attention deficit disorder,
allergic rhinitis, diabetes, irritable bowel syndrome, periodic limb movement sleep disorder, and
osteoarthritis (AR 476-498). Plaintiff was treated for diabetes, depression, back pain, shoulder
pain, arthralgias, and sinusitis in 2008 (AR 444-475).
Plaintiff continued to receive treatment throughout 2009 (AR 521-561). On March 26,
2009, she complained of low back pain radiating to her left thigh (AR 547). Her chief complaint
on March 26, 2009 was low back pain that began in 2004 after pulling a heavy garbage can (AR
547). On physical examination, Carl Eby, M.D., found tenderness on palpation of Plaintiff’s
lumbosacral spine and some spasms of the paraspinal muscles (AR 549). She had normal range
of motion in her lumbosacral spine, her straight leg raising tests were negative, and her motor
strength was normal (AR 549). She was assessed with, inter alia, lower back pain and
prescribed medication (AR 550). On July 7, 2009, Dr. Eby reported that Plaintiff was doing
“fairly well” with her back pain and her musculoskeletal examination was normal (AR 534;
538). On July 31, 2009, Plaintiff complained of body aches, weakness and fatigue (AR 531).
She was assessed with arthralgias at multiple sites, fibromyalgia, and fatigue (AR 532). When
2
Plaintiff amended her alleged onset date to June 6, 2006 at the administrative hearing (AR 32).
2
seen by Dr. Eby on September 9, 2009, he found some tenderness on palpation of the Plaintiff’s
lumbosacral spine with some spasms of the paraspinal muscles (AR 526). Pain was elicited on
motion, and her straight leg raise testing was positive on the left (AR 526). Dr. Eby noted that
her lumbosacral spine exhibited a normal appearance and she had normal range of motion (AR
526). She was assessed with, inter alia, chronic lower back pain, and it was noted she was
treating with neurology and pain management (AR 526).
2. Physical therapy
Plaintiff underwent physical therapy for her complaints of low back pain on three
separate occasions (AR 211-251; 265-294; 404-423). Plaintiff’s first course of physical therapy
occurred from July 11, 2005 to September 30, 2005 at Keystone Rehabilitation Systems (AR
211-251). The discharge summary revealed that she progressed “slowly” in therapy and was
able to return to work, but continued to experience pain (AR 211). Plaintiff participated in a
second course of physical therapy from January 20, 2006 to March 24, 2006 at HealthSouth
Rehabilitation Center of Erie (AR 265-294). On February 22, 2006, Plaintiff reported a forty
percent overall improvement in her symptoms, but continued to report deep, burning pain (AR
279). Some L5 mobility was noted on physical examination, but her radicular symptoms had
improved, her gait pattern had improved in speed, and her antalgic gait was less frequent (AR
279). Plaintiff attended physical therapy sessions at Waterford Physical Therapy from June 12,
2007 to January 24, 2008 (AR 404-423). The discharge summary revealed that Plaintiff “made
very little progress” despite exercises, core stability training and intermittent lumbar traction (AR
423). It was noted that “after extensive physical therapy intervention,” Plaintiff expressed an
interest in self-managing her symptoms (AR 423). Plaintiff’s long term goals were not met and
she was “strongly advised” to consult with a neurosurgeon (AR 423).
3. Diagnostic studies
A lumbar MRI dated March 5, 2005 was negative (AR 264). X-rays taken on July 5,
2005 revealed moderate degenerative disc disease of the thoracic spine, and mild anterior lipping
and spurring due to degenerative joint disease of the lumbar spine at the L1 and L2 level (AR
258). An EMG study in February 2006 revealed lumbar radiculopathy (AR 343). Bilateral hip
3
x-rays dated May 15, 2006 were normal (AR 342). A CT scan of the Plaintiff’s lumbar spine
dated October 23, 2006 was negative (AR 309-310). A lumbar MRI dated October 31, 2006
showed very mild spondylosis at the L4-L5 level, but was otherwise unremarkable (AR 323).
A lumbar MRI dated October 26, 2007, revealed a right-sided protruding disc at the L2L3 level with moderate lateral recess stenosis and possible L2-L3 nerve root impingement (AR
393). On March 6, 2008, a CT scan showed a mild bulge at the L4-L5 level, and a lateral bulge
at the L2-L3 level, with protrusion into the inferior aspect of the neural foramen with mild
indentation upon the thecal sac (AR 395-396). There was also some evidence of abutement of
the existing nerve root at the L2 level (AR 395-396). An EMG in June 2008 showed mild
chronic left L3 radiculopathy with paraspinal denervation (AR 394).
4. Theresa Wheeling, M.D.
Plaintiff received treatment from Theresa Wheeling, M.D., a physiatrist, from January 16,
2006 to January 9, 2008 (AR 332-343; 363-368). On January 16, 2006, Plaintiff reported
suffering a work related injury in October 2004 to her lower thoracic/upper lumbar area (AR
339). Dr. Wheeling reviewed Plaintiff’s diagnostic studies, and found no evidence of disc
disease, noting that the integrity of her discs “look[ed] quite nice” (AR 339). There was very
minimal bulge and very mild facet arthropathy on cross sections at the L5-S1 level (AR 339).
She diagnosed Plaintiff with thoracic pain and lumbosacral pain (AR 340). She opined that
Plaintiff had sacroiliac joint dysfunction and piriformis syndrome,3 and some thoracic myofascial
pain, but no discogenic pain (AR 341). She recommended therapy and medication at bedtime
(AR 341).
On March 8, 2006, Plaintiff reported that oral steroids had completely eliminated her
symptoms (AR 338), and on April 11, 2006, it was noted that lumbar traction and electrical
stimulation had been added to her treatment regimen (AR 336). Plaintiff reported that although
she had good and bad days, overall her condition had improved (AR 336). On May 15, 2006,
Plaintiff’s reflexes continued to remain intact and she had no distal weakness (AR 335). On
3
Piriformis syndrome is an uncommon neuromuscular disorder that is caused when the piriformis muscle, a narrow
muscle located in the buttocks, compresses the sciatic nerve. See http://www.webmd.com/painmanagement/guide/piriformis-syndrome-causes-symtoms-treatments.
4
August 1, 2006, Plaintiff reported that she had resigned from her job but was feeling better and
her pain was “more tolerable” (AR 337). On November 22, 2006, Dr. Wheeling noted that
Plaintiff was managing independently with her TENS unit and independent exercise, and was
undergoing injection therapy (AR 333). Plaintiff reported an exacerbation of her back pain that
caused her to seek emergency room treatment (AR 303-308; 312-318). On physical
examination, Dr. Wheeling found she was markedly positive for sacroiliac joint and piriformis
dysfunction (AR 333).
When seen by Dr. Wheeling on February 21, 2007, she reported she had purchased a
treadmill and had lost ten pounds (AR 332). On physical examination, Dr. Wheeling found her
reflexes and strength were intact, but she noted that Plaintiff had “incredibly limited” range of
motion in her right hip with flexion abduction and external rotation (AR 332). She was
continued on medication and the TENS unit (AR 332). On June 7, 2007, Plaintiff complained of
left leg pain resulting from chiropractic treatment (AR 368). Physical examination revealed
tightness in her left sided hamstrings and pain when attempting straight leg raise testing (AR
368). Dr. Wheeling suspected either “new” acute left L5/S1 radiculopathy with resultant
tightening in the hamstrings, or a “pure” hamstring injury (AR 368). She was prescribed a
course of steroids and physical therapy (AR 368).
On September 5, 2007, Dr. Wheeling reported that Plaintiff had been doing very well
with physical therapy, medication and injection therapy (AR 367). Physical examination
revealed that Plaintiff’s hamstrings were markedly improved, and her hip range of motion had
improved (AR 367). Dr. Wheeling added lumbar traction to her regimen, noting it had “helped
nicely in the past” (AR 367). On October 25, 2007, Dr. Wheeling noted that Plaintiff presented
with acute left L5-S1 radiculopathy, but that a recent epidural injection had resulted in “nice pain
relief” (AR 366). On October 31, 2007, Dr. Wheeling noted that Plaintiff’s lumbar MRI showed
a significant bulging disc at the L2-3 level (AR 365).
On January 9, 2008, Dr. Wheeling recommended that Plaintiff see a pain management
specialist prior to any surgical evaluation (AR 364). On physical examination, Dr. Wheeler
found no weakness in L-2 or L-3 distribution, her reflexes were intact, and she noted that all of
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Plaintiff’s symptoms were in the L-5 distribution (AR 364). She recommended Plaintiff undergo
an epidural injection and take the previously prescribed Lyrica twice a day (AR 364).
5. Jithendrai Rai, M.D.
Plaintiff was treated by Jithendrai Rai, M.D., a pain management specialist at Erie Spine
and Pain Management from July 21, 2006 to September 18, 2009 upon referral by Dr. Wheeling
(AR 369-386; 569-573). Dr. Rai administered right sacroiliac joint injections on July 21, 2006,
September 13, 2006, and November 13, 2006 (AR 384-386). On June 27, 2007, he administered
both right and left sacroiliac joint injections (AR 383). On July 30, 2007, Dr. Rai noted that
Plaintiff had “significant” radicular symptoms down her right lower extremity for which
injection therapy provided significant relief (AR 382). Plaintiff reported a gradual recurrence of
pain, aggravated by standing (AR 382). On physical examination, Dr. Rai noted tenderness to
punch palpation of bilateral sciatic notches, a mild restriction in range of motion and flexion of
the lumbosacral spine, and straight leg raise testing was nonconclusive bilaterally (AR 382). Dr.
Rai found that Plaintiff’s radicular symptoms were recurring, but were not “quite as bad” (AR
382). Plaintiff received a lumbar epidural injection on September 20, 2007 (AR 381).
On October 22, 2007, Plaintiff reported increasing numbness in her left thigh and burning
discomfort in her feet (AR 380). Physical examination revealed very mild tenderness over the
bilateral SI joints, range of motion of the lumbosacral spine was normal, and straight leg raise
testing was negative (AR 380). Dr. Rai formed an impression that Plaintiff had meralgia
paresthetica4 affecting her left thigh, resulting from compression of the lateral femoral cutaneous
nerve, and he recommended a nerve block (AR 380).
Dr. Rai administered a lumbar epidural on January 22, 2008 (AR 379). On March 21,
2008, Plaintiff reported that the January injection had helped for a couple of weeks, and
decompression therapy was providing temporary relief from her symptoms (AR 378). Physical
examination revealed diffuse tenderness of the lumbar paravertebral muscles, restricted range of
motion, mild tenderness of the lower lumbar facet joints, with negative straight leg raise testing
4
Meralgia paresthetica is a “disorder characterized by tingling, numbness, and burning pain in the outer side of the
thigh.” See http://www.ninds.nih.gov/disorders/meralgia_paresthetica_/meralgia_paresthetica.htm.
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(AR 378). In addition to injection therapy, Dr. Rai recommended a spinal cord stimulator to help
combat Plaintiff’s radiating pain (AR 378). Plaintiff also received a lumbar epidural injection on
March 27, 2008 (AR 377).
When seen on April 25, 2008, Plaintiff reported that the previous injection provided the
longest lasting relief (AR 376). Dr. Rai noted that her MRI revealed evidence of a mild disc
bulge at the L4-L5 level which appeared to be approaching the nerve root, but not causing
significant impingement (AR 376). On physical examination, Plaintiff had diffuse tenderness of
the lumbar paravertebral muscles, restricted range of motion, tenderness over the lower lumbar
facet joints (AR 376). He recommended repeating the lumbar injection to combat Plaintiff’s
radiating back pain (AR 376).
Plaintiff continued to receive lumbar epidural injections in June, July, August,
September, October and November 2008 (AR 369-375). At her September 8, 2008 visit,
Plaintiff complained of low back pain with radicular symptoms in her lower extremities (AR
372). She reported that walking, standing and sitting all aggravated her pain, and although
injection therapy provided some pain relief, it was getting progressively worse (AR 372). On
physical examination, Dr. Rai found tenderness at the paravertebral muscles, and her muscle
strength was 5/5 (AR 372). She was diagnosed with lumbar spondylosis and lumbar
radiculopathy (AR 372). On October 17, 2008, Plaintiff continued to complain of pain
aggravated by prolonged walking and standing (AR 370). Plaintiff reported that her pain was
relieved by lying down and sitting down, and that Lyrica and Cymbalta helped (AR 370). On
physical examination, Dr. Rai found tenderness of the paravertebral muscles, the right sciatic
notch and the lumbar facets (AR 370). Plaintiff exhibited a decreased lumbar range of motion
(AR 370). Her muscle strength was 5/5 and she exhibited a normal gait (AR 370). Her
diagnosis remained the same and Celebrex was added to her medication regimen (AR 370).
On February 9, 2009, Plaintiff continued to complain of back pain aggravated by
prolonged walking and standing (AR 573). Plaintiff reported relief by lying down, and indicated
that Lyrica and Cymbalta helped with the burning pain, as did injection therapy (AR 573). On
physical examination, Dr. Rai found tenderness of the lumbar paravertebral muscles, decreased
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lumbar range of motion, and mild lumbar facet tenderness (AR 573). Her straight leg raise
testing was negative, muscle strength was 5/5, and her gait was normal (AR 573). Plaintiff
received a lumbar epidural injection on March 17, 2009 (AR 572). On April 16, 2009, Plaintiff
reported some relief from her last injection but that her pain was recurring (AR 571). Her
physical examination remained unchanged from her February visit, and Dr. Rai prescribed
Lortab and Lyrica (AR 571). Thereafter, Plaintiff received epidural injections June 4, 2009 and
September 18, 2009 (AR 569-570).
On November 19, 2009, Dr. Rai completed a document entitled “Medical Statement
Regarding Pain” (AR 575). Dr. Rai indicated that Plaintiff suffered from chronic pain that
resulted in the need for her to lie down at unpredictable times for two or more hours per day (AR
575).
6. Donald Rezek, M.D.
Plaintiff was treated by Donald Rezek, M.D., a neurologist, from May 22, 2008 to
September 18, 2009 for her complaints of chronic numbness and tingling in her legs (AR 387392; 520). On physical examination, Plaintiff’s motor examination demonstrated normal muscle
strength, tone and bulk in all extremities (AR 392). Plaintiff’s reflexes were normal and her gait
was antalgic (AR 392). Dr. Rezek reviewed Plaintiff’s MRI’s, and noted there was no clear cut
disc protrusion (AR 392). He formed an impression of chronic radiculopathy/radiculitis, and
degenerative disc disease of the lumbar spine (AR 392). He prescribed Cymbalta (AR 392).
On July 16, 2008, Dr. Rezek noted that Plaintiff had significant benefit from Lyrica and
Cymbalta, although she was unable to tolerate higher dosages (AR 389). Plaintiff reported
problems with her legs shaking during the day, and it was noted she was on Mirapex for periodic
limb movements during sleep (AR 389). She was diagnosed with chronic
radiculopathy/radiculitis, degenerative disc disease of the lumbar spine, periodic limb
movements of sleep, as well as probable restless leg syndrome, and probable peripheral
polyneuropathy secondary to diabetes (AR 389). Dr. Rezek increased the Mirapex dosage (AR
389).
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On September 16, 2008, Dr. Rezek noted that Plaintiff’s gait was “quite limited” and
“tend[ed] to be antalgic because of her left leg” (AR 388). No other abnormalities were noted,
and her medications were continued (AR 388). On December 16, 2008, Plaintiff complained of
increased discomfort in her feet consistent with plantar fasciitis, and Dr. Rezek noted she had
been “injected with some benefit by her physician” (AR 387). Plaintiff also noted some
increased burning in her left hip (AR 387). Physical examination revealed normal coordination
testing and her gait was within normal limits (AR 387).
On September 8, 2009, Plaintiff reported a tendency to invert her right foot, and noted
some tenderness in her left leg (AR 520). Her systemic review was otherwise unremarkable, and
Dr. Rezek noted that her coordination testing was normal (AR 520). Dr. Rezek further noted that
Plaintiff’s neck had a decreased range of motion and that she had increased movement of her
lower back (AR 520). Water physical therapy was recommended and her medications were
continued (AR 520).
7. Other treatment
Plaintiff was treated for carpal tunnel syndrome by Patrick Williams, D.O. beginning on
October 17, 2005 (AR 427-428). An EMG showed mild carpal tunnel syndrome, and Dr.
Williams administered injection therapy (AR 427-428). Four years later, Plaintiff was seen by
John Lubahn, M.D. on April 7, 2009 complaining of tingling and numbness in her left hand (AR
562-568). It was noted that Plaintiff’s right hand had received a carpel tunnel release several
years earlier and Plaintiff had done relatively well (AR 567). On May 18, 2009, Dr. Luban
performed a left carpal tunnel release (AR 566). On September 15, 2009, Dr. Lubahn noted
“slow progress” following the release (AR 563).
8. State agency reviewing physician
On May 14, 2007, Reynaldo, M. Torio, M.D., a state agency reviewing physician,
reviewed the medical evidence of record and concluded that Plaintiff could perform light work
(AR 344-349). In rendering this assessment, Dr. Torio noted that Plaintiff had chronic back pain
since October 2004 treated with physical therapy, medications, and a TENS unit, and that she
was to undergo injection therapy (AR 349). He further noted that an October 31, 2006 lumbar
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MRI showed very mild spondylosis of the lumbar spine at the L4-L5 level, and was otherwise
unremarkable (AR 349). He observed that her physical examination on February 21, 2007
revealed intact reflexes and strength, with some limited range of motion of the right hip with
flexion, abduction and external rotation, but that she admitted she was not performing her
stretching exercises (AR 349).
Dr. Torio recognized Plaintiff claimed limitations with respect to standing, walking,
lifting, carrying, bending, sitting, kneeling, concentrating, and remembering due to pain and
fatigue (AR 349). He noted, however, that she was able to participate in daily activities, relate
fairly well with others, and had pursued appropriate care for her pain (AR 349). He found her
treatment to have been “essentially routine and conservative in nature” (AR 349). Finally, Dr.
Torio found that the medical record revealed her medications had been “relatively effective” in
controlling her symptoms (AR 349).
B. Mental impairments
Plaintiff was seen by Douglas M. Buyer, Ph.D., on February 28, 2005 (AR 402-403). Dr.
Buyer noted that he met Plaintiff “some years ago” and at that time she was typically
disorganized, flustered and emotionally reactive (AR 402). He indicated that Plaintiff seemed
worse, noting that she was overtly depressed, easily cried, and demonstrated a fragile, unstable
affect (AR 402). Plaintiff spoke “largely in tangents” and obtaining information was difficult
(AR 402). Dr. Buyer was unable to give a diagnostic assessment, but provided her with a list of
psychiatrists and psychotherpists, since his practice was restricted to treating children (AR 403).
Treatment notes from Fuat Ulus, M.D. from March 21, 2005 to October 6, 2005 reveal
that Plaintiff was diagnosed with a mood disorder and attention deficit hyperactivity disorder,
adult version (AR 252-256). Her global assessment of functioning (“GAF”) score ranged from
60 to 70 (AR 252-256).5 By her October 12, 2005 visit, Plaintiff reported doing “quite well”
mentally and emotionally and was satisfied with the counseling she received (AR 252).
5
The Global Assessment of Functioning Scale (“GAF”) assesses an individual's psychological, social and
occupational functioning with a score of 1 being the lowest and a score of 100 being the highest. The GAF score
considers “psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)
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On December 30, 2009, Plaintiff underwent a psychological evaluation, conducted by
Byron E. Hillin, Ph.D. on behalf of the Pennsylvania Bureau of Disability Determination (AR
576-584). Dr. Hillin reported that Plaintiff was cooperative with the evaluation, provided
information spontaneously, and appeared truthful (AR 576). Plaintiff stated that she had low
energy and multiple medical problems, including diabetes, chronic fatigue syndrome, chronic
neck and back pain, breathing difficulties, carpal tunnel syndrome, and depression (AR 576).
Plaintiff reported that she stopped working, in part, due to a work injury (AR 578). She also
reported that she lived with her daughter, was able to drive, enjoyed knitting, was active in her
church (AR 579-580). She described her activities of daily living as limited due to low energy,
and she indicated that she relied more on her daughter for cooking and heavy cleaning (AR 579).
On mental status examination, Dr. Hillin reported that Plaintiff was appropriately dressed
with good hygiene and exhibited good eye contact (AR 579). Plaintiff was able to walk with an
appropriate gait, no motor restlessness or motor fidgeting was present, and she was able to stand
and sit without difficulty (AR 579). Dr. Hillin noted that Plaintiff’s primary complaints were of
a “medical nature” (AR 580). Plaintiff described her mood as depressed, sad and anxious, and
she had occasional difficulty focusing, but denied suicidal thoughts (AR 580). Dr. Hillin found
her insight was appropriate, and her thoughts were relevant, coherent and goal directed (AR
580). He found she had average intelligence, and that her attention and concentration were good
(AR 580). Her social judgment remained intact (AR 581). Dr. Hillin diagnosed Plaintiff with
mood disorder, not otherwise specified, mild, and assigned her a GAF score of 65 (AR 190). He
found that she was in need of continued medical treatment, including treatment for mild
depression, and her prognosis remained fair (AR 581). Dr. Hillin concluded that Plaintiff’s
ability to understand, remember, and carry out instructions were not affected by her mental
impairments (AR 583). He also concluded that she was only moderately limited in her ability to
interact appropriately with the public, supervisors and co-workers (AR 583). He found her
34 (4th ed. 2000). An individual with a GAF score of 61 – 70 may have “[s]ome mild symptoms” or “some
difficulty in social, occupational, or school functioning, … but generally functioning pretty well” and “has some
meaningful interpersonal relationships.” Id. An individual with a GAF score of 51 – 60 may have “[m]oderate
symptoms” or “moderate difficulty in social, occupational, or school functioning … .” Id.
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markedly limited however, in her ability to respond appropriately to work pressures in a usual
work setting and changes in a routine work setting (AR 583).
On May 22, 2007, Ray M. Milke, Ph.D., a state agency reviewing psychologist, reviewed
the psychiatric evidence of record and determined that Plaintiff did not have any serious mental
health impairment (AR 350-362). Dr. Milke noted that Plaintiff had a diagnosis of a mood
disorder and ADHD, but had only mild limitations in all areas of functioning (AR 360).
Administrative hearing
Plaintiff and Joseph Kuhar, a vocational expert, testified at the hearing held by the ALJ
on November 5, 2009 (AR 25-66). Plaintiff testified that she lived with her adult daughter (AR
34). Plaintiff claimed an inability to work due to mental health issues, but acknowledged that
she had discontinued professional mental health counseling (AR 36- 41). Plaintiff testified that
asthma and allergies also prevented her from working, but her symptoms had not required
emergency room treatment (AR 41-43). Plaintiff indicated that she had carpal tunnel surgery on
both wrists, and continued to suffer from decreased fine motor skills and grip strength (AR 45).
Plaintiff further testified that she had irritable bowel syndrome for which she was prescribed
medication (AR 46)
Plaintiff testified that she injured her back in 2004 and stopped working in June 2006
(AR 44; 52). She claimed that prior to quitting her job, she frequently had to rest and lie down
during the day (AR 52). Physical therapy was ineffective in relieving her symptoms (AR 44-45).
She stated that she used a TENS unit for twenty minutes six to eight times per day, but it too was
ineffectual in relieving her symptoms (AR 48-49). She saw Dr. Rai for injection therapy which
provided temporary relief (AR 52-53). Plaintiff testified that she would lay down during the day
for approximately three to four hours to combat the pain, and also took narcotic medication (AR
50; 54; 57-58). Plaintiff was able to drive short distances, attend church and prayer meetings,
walk six-tenths of a mile, stand for twenty minutes before needing to sit, sit for fifteen to twenty
minutes before needing to change positions, and lift eight pounds (AR 46-50). Plaintiff claimed
she was unable to pick up an item off the floor, and on “bad” days she needed assistance dressing
(AR 49). She performed minimal household chores (AR 49).
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The vocational expert was asked to assume an individual of the same age, education and
work experience as Plaintiff, who was able to perform light work that did not expose her to
pulmonary irritants such as dust, smoke, or fumes, and needed to be in reasonable proximity of
restroom facilities (AR 61-62). Such individual would not be able to operate foot controls;
crawl, kneel, climb or balance at heights; could perform no more than occasional fine
manipulation with her hands; could perform no constant gross manipulation with her hands; and
was limited to simple, routine, repetitive work (AR 61-62). The vocational expert testified that
such an individual could perform the light positions of a hostess, counter clerk, or office helper,
and the sedentary positions of a surveillance system monitor, routing clerk, and desk/information
clerk (AR 62-63).
Following the hearing, the ALJ issued a written decision finding that the Plaintiff was not
entitled to a period of disability, DIB or SSI within the meaning of the Act (AR 11-19). Her
request for an appeal with the Appeals Council was denied rendering the ALJ’s decision the final
decision of the Commissioner (AR 1-6). She subsequently filed this action.
III.
STANDARD OF REVIEW
The Court must affirm the determination of the Commissioner unless it is not supported
by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence does not mean a large or
considerable amount of evidence, but only “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 1097, 229 (1938)); see also Richardson v.
Parales, 402 U.S. 389, 401 (1971); Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). It has
been defined as less than a preponderance of evidence but more than a mere scintilla. See
Richardson, 402 U.S. at 401; Jesurum v. Secretary of the United States Dept. of Health and
Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). Additionally, if the ALJ’s findings of fact are
supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402
U.S. at 390. A district court cannot conduct a de novo review of the Commissioner’s decision
nor re-weigh evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D.Pa. 1998); see
also Monsour Medical Center v. Heckler, 806 F.2d 1185, 90-91 (3d Cir. 1986) (“even where this
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court acting de novo might have reached a different conclusion … so long as the agency’s
factfinding is supported by substantial evidence, reviewing courts lack power to reverse either
those findings or the reasonable regulatory interpretations that an agency manifests in the course
of making such findings.”). To determine whether a finding is supported by substantial
evidence, however, the district court must review the record as a whole. See 5 U.S.C. § 706.
IV.
DISCUSSION
Title II of the Social Security Act provides for the payment of disability insurance
benefits to those who have contributed to the program and who have become so disabled that
they are unable to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). Title
XVI of the Act establishes that SSI benefits are payable to those individuals who are similarly
disabled and whose income and resources fall below designated levels. 42 U.S.C. § 1382(a). A
person who does not have insured status under Title II may nevertheless receive benefits under
Title XVI. Compare 42 U.S.C. § 423(a)(1) with 42 U.S.C. § 1382(a). In order to be entitled to
DIB under Title II, a claimant must additionally establish that his disability existed before the
expiration of his insured status. 42 U.S.C. § 423(a), (c). The ALJ found that the Plaintiff met the
disability insured status requirements of the Act through September 30, 2011 (AR 11). SSI does
not have an insured status requirement.
A person is “disabled” within the meaning of the Social Security Act if he or she is
unable to “engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The Commissioner uses a five-step evaluation process to determine when an
individual meets this definition. 20 C.F.R. §§ 404.1520; 416.920. The ALJ must determine: (1)
whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the
claimant has a severe impairment or a combination of impairments that is severe; (3) whether the
medical evidence of the claimant’s impairment or combination of impairments meets or equals
the criteria listed in 20 C.F.R., Pt. 404, Subpt. P, Appx. 1; (4) whether the claimant’s
impairments prevent him from performing his past relevant work; and (5) if the claimant is
14
incapable of performing his past relevant work, whether he can perform any other work which
exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Barnhart v.
Thomas, 540 U.S. 20, 24-25 (2003). If the claimant is determined to be unable to resume
previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given
claimant’s mental or physical limitations, age, education, and work experience, he or she is able
to perform substantial gainful activity in jobs available in the national economy. Doak v.
Heckler, 790 F.2d 26, 28 (3d Cir. 1986).
The ALJ concluded that Plaintiff’s back disorder, diabetes mellitus, carpal tunnel
syndrome, asthma and mood disorder were severe impairments, but determined at step three that
she did not meet a listing (AR 13-15). The ALJ described the Plaintiff’s residual functional
capacity as follows:
…[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b)6 except that in addition, the
claimant cannot work out sic pulmonary irritants such as dust, smoke, and fumes;
she must work with reasonable proximity to restroom facilities; she cannot
operate the controls; she can perform no crawling, kneeling, climbing, or
balancing on heights; she can perform no more than occasional fine manipulation
with their sic hands; she can perform no constant gross manipulation with the
hands; and finally, she is limited to simple, repetitive, routine work.
(AR 15) (footnote added). At the final step, the ALJ concluded that Plaintiff could perform the
jobs cited by the vocational expert at the administrative hearing (AR 19). The ALJ also
determined that Plaintiff’s statements concerning the intensity, persistence and limiting effects of
6
This definition states:
… 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.
20 C.F.R. §§ 404.1567(b), 416.967(b).
15
her symptoms were not entirely credible (AR 15-16). Again, we must affirm this determination
unless it is not supported by substantial evidence. See 42 U.S.C. § 405(g).
Plaintiff contends that the ALJ’s rejection of Dr. Rai’s opinion that she would need to lie
down at unpredictable times during the day was based upon a selective and inadequate review of
the medical record. [ECF No. 9] pp. 15-20. In evaluating a claim for benefits, the ALJ must
consider all the evidence in the case. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The
Third Circuit has also directed that “[w]here competent evidence supports a claimant’s claims,
the ALJ must explicitly weigh the evidence,” Dobrowolsky v. Califano, 606 F.2 403, 407 (3d
Cir. 1979), and “adequately explain in the record his reasons for rejecting or discrediting
competent evidence.” Sykes v. Apfel, 228 F.3d 259, 266 (3d Cir. 2000). Without this type of
explanation, “the reviewing court cannot tell if significant probative evidence was not credited or
simply ignored.” Cotter v. Harris, 642 F.2d 700, 705-07 (3d Cir. 1981); see also Plummer, 186
F.3d at 429 (ALJ must give some reason for discounting the evidence he rejects).
In concluding that Dr. Rai’s opinion was entitled to little weight, the ALJ found, inter
alia, that it was “poorly” supported by the “objective” medical evidence of record since the
Plaintiff maintained normal strength, sensation, reflexes and gait, and her diagnostic studies
failed to demonstrate a herniated disc (AR 17). The ALJ stated the following with respect to the
medical evidence:
… In terms of her musculoskeletal complaints, MRI and CT scan of the lumbar
spine were initially within normal limits (Exhibit 5F/5; Exhibit 8F/9), and
ultimately showed only “very mild” spondylosis (Exhibit 10F/5) and disc
protrusion without herniated disc (Exhibit 18F). EMG of the lower extremity was
generally unremarkable, and imaging of the bilateral hips [was] within normal
limits (Exhibits 12F, 19F, and 20F). Treatment notes indicate some elements of
noncompliance (Exhibit 15F). She has tried epidural injections (Exhibit 35F),
physical therapy (Exhibit 23F), and chiropractic care, but her physical
examination findings are relatively benign. She has some tenderness and limited
range of motion, but straight leg raising test is negative and her physician notes
generally good reflexes (Exhibits 15F and 16F). Gait, coordination, and cranial
nerve examination was normal (Exhibit 17F; Exhibit 32F), as was recent
sensation, strength, and reflex testing by her primary care physician (Exhibit
33F/6). …
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(AR 16).
The ALJ characterized the Plaintiff’s EMG as “generally unremarkable,” but failed to
note that the report demonstrated mild chronic left L3 radiculopathy with paraspinal denervation
(AR 394). The ALJ further found that Plaintiff’s MRI and CT scan revealed disc protrusion but
no herniation (AR 16). However, the remaining findings from that diagnostic study revealed
moderate lateral recess stenosis and possible L2-L3 nerve root impingement (AR 393). The ALJ
also failed to address Plaintiff’s thoracic x-ray which showed degenerative joint disease of the
lumber spine at the L1 and L2 level (AR 258). There was also no discussion by the ALJ of the
CT scan in March 2008, which the radiologist read as follows: “[r]ight paracentral to lateral
bulge including into the inferior aspect of the neural foramen. This is causing just mild
indentation upon the thecal sac though it was likely causing at least some degree of abutment of
the exiting nerve root sleeves. Suggest correlation with symptomatology. No other areas of
significant stenosis identified.” (AR 396). Treatment note entries from Dr. Rai contain
additional findings arguably germane to the evaluation of his opinion which the ALJ did not
address. On July 30, 2007, Dr. Rai found that Plaintiff presented with “significant” radicular
symptoms (AR 382). Dr. Rai also repeatedly found tenderness, back spasms and limited range
of motion (AR 370; 372; 376; 378; 380; 382; 571; 573). Also missing from the ALJ’s discussion
are clinical findings of Dr. Eby based upon his physical examination of the Plaintiff’s lumbar
spine. Dr. Eby found Plaintiff’s lumbosacral spine was tender, that she experienced muscle
spasms and pain on motion, and that her straight leg raise testing was positive on the left (AR
526).
In sum, the ALJ failed to fully consider all pertinent diagnostic studies and findings as
discussed above. On remand, the ALJ is directed to address this evidence consistent with Cotter.
Plaintiff further challenges the ALJ’s decision to accord “considerable weight” to the
opinion of Dr. Torio, the non-examining state agency reviewing physician. Dr. Torio concluded
that Plaintiff could perform light work (AR 344-349), and the ALJ found this opinion was
“supported by the evidence” and was “consistent with the record as a whole” (AR 17). In light
of our finding that the ALJ failed to consider all the pertinent medical evidence, it follows that
17
his reliance on Dr. Torio’s opinion cannot stand. Moreover, the Commissioner’s regulations
provide:
[B]ecause nonexamining sources have no examining or treating
relationship with you, the weight we will give their opinions will depend on the
degree to which they provide supporting explanations for their opinions. We will
evaluate the degree to which these opinions consider all the pertinent evidence in
your claim, including opinions of treating and other examining sources.
20 C.F.R. §§ 1527(d)(3); 416.927(d)(3); see also SSR 96-6p, 1996 WL 374180 at *3. Since Dr.
Torio’s assessment was rendered in May 2007, he did not have the benefit of the previously
described diagnostic studies, nor the bulk of Dr. Rai’s treatment notes. On remand, the ALJ is
directed to consider “the degree to which [Dr. Torio] consider[ed] all the pertinent evidence in
[the] claim” pursuant to the regulations. 20 C.F.R. §§ 1527(d)(3); 416.927(d)(3).
Plaintiff also argues that a remand is independently warranted based upon her contention
that the ALJ failed to give adequate consideration to the St. Vincent Outpatient records
diagnosing her with a mood disorder, depression and ADDHD. [ECF No. 9] p. 22. However,
the ALJ clearly accepted these findings since he found that Plaintiff’s mood disorder was a
severe impairment (AR 13). Moreover, the ALJ considered and cited to these treatment records
(AR 16).
We also find no merit to Plaintiff’s contention that the ALJ improperly rejected Dr.
Hillin’s opinion that she would be markedly limited in her ability to respond appropriately to
work pressures and changes in the usual work setting. Dr. Hillin was a consulting psychologist
who examined the Plaintiff pursuant to the request of the Commissioner. The ALJ noted that Dr.
Hillin’s opinion was inconsistent with his findings on mental status examination, which were
generally within normal limits (AR 17). She did not suffer from any suicidal thoughts, delusions
or hallucinations, and her thought content was relevant, coherent and goal directed (AR 17; 580).
Dr. Hillin found that Plaintiff displayed average intelligence, and her attention and concentration
were good (AR 17; 580). Moreover, the ALJ further pointed out that Dr. Hillin’s opinion was
not consistent with his diagnosis of a mild mood disorder and GAF score of 65 (AR 18). A GAF
score of 65 indicates that an individual may have only “mild” symptoms or some difficulty in
18
social or occupational functioning, but is “generally functioning pretty well.” American
Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)
34 (4th ed. 2000).
Plaintiff’s final argument is that the ALJ erred in assessing her credibility. An ALJ must
consider subjective complaints by the claimant and evaluate the extent to which those complaints
are supported or contradicted by the objective medical evidence and other evidence in the record.
29 C.F.R. §§ 404.1529(a), 416.929(a); Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). In
assessing subjective complaints, SSR 96-7p and the regulations provide that the ALJ should
consider the objective medical evidence as well as other factors such as the claimant’s own
statements, the claimant’s daily activities, the treatment and medication the claimant has
received, any statements by treating and examining physicians or psychologists, and any other
relevant evidence in the case record. 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p, 1996
WL 374186 at *2. As the finder of fact, the ALJ can reject, partially or fully, subjective
complaints if he finds them not credible based on other evidence in the record. Baerga v.
Richardson, 500 F.2d 309, 312 (3d Cir. 1974). The ALJ is empowered to evaluate the credibility
of witnesses and his determination is entitled to deference by this Court. See Van Horn v.
Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). In light of the Court’s finding that the ALJ’s
review of the medical record was inadequate, appropriate consideration could not have been
given to the Plaintiff’s subjective complaints.
V.
CONCLUSION
For the reasons discussed above, both Motions will be denied and the matter will be
remanded to the Commissioner for further proceedings.7 An appropriate Order follows.
7
The ALJ is directed to reopen the record and allow the parties to be heard via submissions or otherwise as to the
issue addressed in this Memorandum Opinion. See Thomas v. Comm’r of Soc. Sec., 625 F.3d 800-01 (3d Cir. 2010).
19
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TINA M. WASIELA,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 11-114 Erie
ORDER
AND NOW, this 11th day of June, 2012, and for the reasons set forth in the
accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that the Plaintiff’s Motion for Summary Judgment [ECF No.
8] is DENIED, and the Defendant’s Motion for Summary Judgment [ECF No. 11] is DENIED.
The case is hereby REMANDED to the Commissioner of Social Security for further proceedings
consistent with the accompanying Memorandum Opinion.
The clerk is directed to mark the case closed.
s/ Sean J. McLaughlin
United States District Judge
cm:
All parties of record
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