BRIZUELA v. ASTRUE
Filing
11
MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that the 8 Plaintiff's Motion for Summary Judgment is DENIED and the 9 Defendant's Motion for Summary Judgment is GRANTED. JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue, Commissioner of Social Security, and against Plaintiff, Tomas Brizuela. The clerk is directed to mark the case closed. Signed by Judge Sean J. McLaughlin on 12/28/2012. (rlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TOMAS BRIZUELA,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Civil Action No. 11-327 Erie
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District Judge.
I.
INTRODUCTION
Tomas Brizuela (“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 his claim for disability insurance benefits (“DIB”) under Title II of
the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff filed his applications on September 25,
2008 alleging disability since February 2, 2008 due to back problems (AR 85-91; 106).1 His
application was denied (AR 51-55), and following a hearing held on April 1, 2012 (AR 25-48),
the administrative law judge (“ALJ”) issued his decision denying benefits to Plaintiff on August
31, 2010 (AR 10-19). Plaintiff’s request for review by the Appeals Council was subsequently
denied (AR 1-5), rendering the Commissioner’s decision final under 42 U.S.C. § 405(g). The
instant action challenges the ALJ’s decision. Presently pending before the Court are the parties’
1
References to the administrative record [ECF No. 6], will be designated by the citation “(AR ___)”.
1
cross-motions for summary judgment. For the reasons that follow, the Plaintiff’s motion will be
denied and the Commissioner’s motion will be granted.
II.
BACKGROUND
Plaintiff was 34 years old on the date of the ALJ’s decision and has a general equivalency
diploma (AR 17-18; 29). He last worked as a steel fitter until February 2, 2008 (AR 13).
The medical records reveal that Plaintiff injured his back in March 2006 during an
altercation with security guards at a casino (AR 149; 162). An MRI dated June 15, 2006
revealed a large central to left L5-S1 disc herniation (AR 154). In August 2006, Plaintiff
underwent a lumbar discectomy performed by William Diefenbach, M.D. and returned to his
normal activities (AR 173; 175).
Plaintiff was seen by Dr. Diefenbach at Saint Vincent Neurosurgery in February 2008
and reported that while playing ping pong he coughed and felt a “pop” in his back, followed by
radiating pain down his left leg (AR 175). He further reported difficulties with daily activities
and that his pain was only alleviated by lying down (AR 175). An MRI of Plaintiff’s lumbar
spine dated February 5, 2008 revealed a herniated disk at the L5-S1 level on the left, effacing the
S2 nerve root in the lateral recess (AR 177; 193).
On March 5, 2008, Plaintiff underwent a lumbar discectomy performed by Dr.
Diefenbach for his recurrent herniated disk (AR 175). The next day, it was reported that Plaintiff
was able to walk “very well” and he was discharged in stable condition (AR 206). When seen
for follow-up on March 19, 2008, Plaintiff complained of left sacroiliac joint pain and left foot
paresthesia, but denied any leg pain (AR 170). It was noted that Plaintiff’s gait was steady with
a “significant antalgic2 appearance” (AR 170). Plaintiff was prescribed a Medrol Dosepak (AR
170).
2
An antalgic gait is a “limp in which a phase of the gait is shortened on the injured side to alleviate the pain
experienced when bearing weight on that side.” See http://medical-dictionary.thefreedictionary.com/antalgic+gait.
2
On April 21, 2008, physical therapy was recommended (AR 170). On April 30, 2008,
Plaintiff underwent an initial evaluation for physical therapy (AR 270). He reported that his
recent surgery had been successful but he complained of intermittent radicular pain (AR 270).
On physical examination, Plaintiff exhibited a limited range of motion on extension and flexion
activities exacerbated his symptoms (AR 270). His muscle strength was 4/5, and his symptoms
were immediately reduced through “simple prone lying and correction of posture” (AR 270).
Plaintiff was to undergo various treatment modalities and was instructed in a simple home
exercise program (AR 270). At his appointment on May 12, 2008, Plaintiff reported that he was
only able to play eight holes of golf because of radiating pain (AR 274).
On July 2, 2008, Plaintiff telephoned Saint Vincent Neurosurgery and reported that he
felt he should continue to remain off work because he was unable to stand for more than two
hours and was undergoing physical therapy (AR 169). Contact was made with Plaintiff’s
physical therapist on July 3, 2008, who reported that Plaintiff had stopped attending physical
therapy for approximately one month, but had returned to therapy the previous week (AR 169).
Plaintiff’s therapist stated that Plaintiff had not “communicated there was anything wrong” and
had reportedly been coaching baseball (AR 169). Daniel Muccio, M.D., requested that Plaintiff
schedule an office visit to discuss his return to work (AR 169).
Plaintiff returned to Saint Vincent Neurosurgery on July 7, 2008 and was seen by Dr.
Muccio (AR 173). Dr. Muccio noted that Plaintiff’s radicular pain had improved, but he
continued to have residual left buttock pain with increased activity (AR 173). Plaintiff reported
that he had been coaching little league and while acting as a catcher he noticed increased pain,
and since then had avoided squatting and bending (AR 173). On examination, Dr. Muccio found
Plaintiff in no apparent distress, with a minimally tender back and a normal gait and stance (AR
173). He prescribed a Medrol Dosepak, extended Plaintiff’s physical therapy treatment for one
month, and ordered an MRI (AR 173). Dr. Muccio informed Plaintiff that he could perform light
work (AR 173).
3
On July 14, 2008, Plaintiff reported to his physical therapist that his back hurt as a result
of prolonged sitting on a bench and standing in long lines at a monster truck rally (AR 278). An
MRI of Plaintiff’s lumbar spine dated July 16, 2008 was unremarkable (AR 241). On July 28,
2008, Plaintiff reported to his physical therapist that he was “very sore” after walking up and
down “a lot of stairs” (AR 280).
Plaintiff reported to his physical therapist on August 1, 2008 that he was sore secondary
to being on his feet “a lot” (AR 281). On August 6, 2008, Plaintiff reported increased soreness
secondary to playing tennis (AR 282). He indicated that he had no problems with daily
activities, but still had some intermittent nerve pain (AR 282). Plaintiff’s therapist reported that
his strength was “grossly good-normal” and that Plaintiff was very active at home (AR 285). He
reported that Plaintiff had minor intermittent radicular symptoms that were provoked by his
compromised posture and body mechanics (AR 285). He recommended that Plaintiff be released
to return to work in some capacity or undergo a functional capacity evaluation (AR 285).
On August 8, 2008, Plaintiff stated to his physical therapist that he was “still sore from
playing tennis” (AR 282). On August 11, 2008, Plaintiff telephoned Saint Vincent Neurosurgery
and was “upset” that he had been directed to obtain pain medication from his primary care
physician (AR 168). Plaintiff stated that he “did not care” what the MRI results revealed and
that he continued to have pain (AR 168). He was scheduled for an appointment with Dr. Muccio
(AR 168). On August 13, 2008, Plaintiff reported to his physical therapist that he still had nerve
pain and low back pain, but thought it was due to the physical exertion of jumping several times
to catch a baseball the prior week (AR 283).
On August 21, 2008, Plaintiff was seen by Dr. Muccio and complained of low back pain
radiating into his left buttock with an inability to stand for more than thirty minutes without
severe pain (AR 171). He also reported some left leg weakness, but denied any numbness or
paresthesias (AR 171). On examination, Dr. Muccio found Plaintiff in no apparent distress and
his gait and stance were normal (AR 171). He reviewed Plaintiff’s MRI and observed that there
4
was no residual or recurrent nerve root compression (AR 171). Dr. Muccio noted that Plaintiff
“continue[d] to report high pain levels postoperatively” (AR 171). He decided to keep Plaintiff
off work for the following eight weeks, ordered additional diagnostic studies, and referred him to
Jithendra Rai, M.D., a pain management specialist (AR 171-172).
On September 3, 2008, Plaintiff was seen by his physical therapist and reported almost
constant “nerve pain” (AR 289). He had grossly good strength and his straight leg raising test
was positive, but he had only “intermittent radicular symptoms, more prevalent with prolonged
standing” (AR 289). Due to Plaintiff’s limited progress, it was recommended that Plaintiff
continue to exercise at a fitness center (AR 289).
An EMG/NCV study conducted on September 5, 2008 was mildly abnormal, revealing a
“very mild” SI radiculopathy without evidence of active denervation (AR 179). No additional
lumbosacral radiculopathy or isolated mononeuropathy of the left leg was seen (AR 179).
Plaintiff was seen by Dr. Rai on September 18, 2008, and described his pain as constant,
aching, and sharp with burning radiation down his left leg (AR 331). He indicated that it
affected his activities and was exacerbated by prolonged walking and standing (AR 331). He
claimed that physical therapy had been ineffective and that it was only relieved by lying down
(AR 331). Plaintiff denied any lower extremity weakness or problems with balance (AR 331).
Dr. Rai noted that Plaintiff sat comfortably in the chair (AR 331). On physical examination, Dr.
Rai found Plaintiff had mild tenderness in his lumbar spine and severe tenderness over the left
sciatic notch (AR 331-332). Plaintiff had a restricted lumbar range of motion in all planes, and
his straight leg raising test “appear[ed]” to be positive on the left (AR 331-332). Dr. Rai found
Plaintiff had full muscle strength in his legs, normal deep tendon reflexes, normal sensation, and
a normal gait (AR 332). Dr. Rai formed an impression of lumbar radiculopathy and lumbar disc
displacement, recommended that Plaintiff undergo a lumbar epidural steroid injection, and
prescribed Lortab (AR 332).
5
An MRI dated October 22, 2008 revealed a small left-sided recurrent disc herniation at
the L5-S1 level and a posteriorly displaced nerve root (AR 182; 190). On October 23, 2008,
Plaintiff had a caudal epidural injection administered by Dr. Rai (AR 330). A post-mylographic
CT scan of Plaintiff’s lumbar spine dated November 5, 2008 revealed pool filling of the left S1
nerve root sleeve and soft tissue density in the ventral left lateral aspect of the same area (AR
187; 190).
On January 15, 2009, Plaintiff underwent a consultative examination performed by John
Kalata, D.O. (AR 290-295). Dr. Kalata noted that Plaintiff walked with a “sort of limping gait”
favoring his left leg (AR 290). Plaintiff reported “unbearable pain” involving his lower back and
left leg, exacerbated by sitting and standing (AR 290-291). On physical examination, Dr. Kalata
found that Plaintiff could only raise his left leg about ten degrees and right leg fifteen degrees
(AR 294). He could not walk on his heels or toes or crouch (AR 294). Plaintiff’s reflexes were
diminished but no atrophy was observed (AR 295). Dr. Kalata’s impressions were, inter alia,
chronic discogenic disease of the lumbar spine and severe sciatic neuritis on the left side (AR
294).
Dr. Kalata assessed Plaintiff’s ability to perform work-related physical activities, opining
that Plaintiff could only frequently lift and carry 2-3 pounds, occasionally lift and carry 10
pounds, stand for 1 hour or less, sit for 3 hours, and occasionally kneel (AR 296-297). Dr.
Kalata further opined that Plaintiff was limited in his pushing and pulling abilities with his lower
extremities, and could never perform postural activities other than kneeling (AR 296-297).
Dilip Kar, M.D., a state agency reviewing physician, reviewed the medical evidence of
record on February 5, 2009 and concluded that Plaintiff could occasionally lift and/or carry 10
pounds, frequently lift and/or carry slightly less than 10 pounds, stand and walk for 2 hours in an
8-hour workday, sit for 6 hours in an 8-hour workday, and occasionally perform postural
activities (AR 314-316). In reaching this conclusion, Dr. Kar considered Dr. Kalata’s functional
assessment, and found that it was inconsistent with the medical and non-medical evidence in the
6
file (AR 320). Dr. Kar was of the view that Dr. Kalata relied heavily on Plaintiff’s subjective
complaints and that his assessment overestimated Plaintiff’s functional limitations (AR 320).
Plaintiff returned to Dr. Jai on March 12, 2009 and described his pain as a 4 on a scale of
1-10 (AR 329). On physical examination, Dr. Jai reported that Plaintiff’s straight leg raising test
was negative, he had full muscle strength, normal deep tendon reflexes, a normal gait, and only
mild lumbar and sciatic tenderness (AR 329). Plaintiff had a decreased lumbar range of motion
in all planes (AR 329). Dr. Rai refilled Plaintiff’s medications and recommended another caudal
injection (AR 329).
On June 29, 2009, Plaintiff stated to Dr. Rai that he wanted to “hold off” on further
injections (AR 328). Plaintiff denied any weakness or problems with balance (AR 328). On
physical examination, Dr. Rai found mild tenderness, a restricted range of motion in all planes,
and a negative straight leg raising test (AR 328). Plaintiff was diagnosed with lumbar
radiculopathy and lumbar disc displacement (AR 328). Dr. Rai refilled his medications and
advised him to return in three months for a medication refill (AR 328).
Plaintiff returned to Dr. Rai on September 29, 2009 and complained of burning, sharp,
radiating pain aggravated by prolonged walking and standing (AR 327). Dr. Rai found that
Plaintiff had full muscle strength in his arms and legs and his gait was steady (AR 327). He had
a reduced range of motion in his lumbar spine and some tenderness, but his straight leg raising
test was negative (AR 327). His diagnosis remained the same and Dr. Rai refilled his Lortab
prescription and advised Plaintiff to follow up for medication refills (AR 327).
On January 13, 2010, Plaintiff reported low back and left leg pain when seen by Dr. Rai
(AR 326). He indicated that he was able to obtain some relief by sitting and lying down, and that
his medication helped control his pain without any side effects (AR 326). On physical
examination, Plaintiff had full muscle strength, normal sensation, normal deep tendon reflexes,
and a steady gait (AR 326). Dr. Rai found some tenderness of the lumbar spine and a reduced
range of motion, but his straight leg raising test and Patrick test remained negative (AR 326).
7
His Lortab prescription was refilled and he was to return every two months for a medication
refill (AR 326).
Finally, on April 8, 2010 Plaintiff returned to Dr. Rai and reported that medication took
the edge off his pain with no side effects (AR 325). He denied any weakness or problems with
balance (AR 325). On physical examination, Dr. Rai found that his muscle tone and bulk were
symmetric, he had 5/5 muscle strength in his upper and lower extremities, his deep tendon
reflexes were 2+ and symmetric in his upper and lower extremities, his sensory examination was
intact, and his gait was normal (AR 325). Plaintiff’s lumbar spine was mildly tender to palpation
and he had a reduced range of motion, but his straight leg raising test and Patrick’s test were
negative (AR 325). Plaintiff’s diagnosis remained the same and his medications were refilled
(AR 325).
Plaintiff and Kelly Ramuss, a vocational expert, testified at the hearing held by the ALJ
on April 1, 2010 (AR 25-48). Plaintiff testified that a sciatic nerve injury precluded him from
working (AR 31). He stated that he had not been treated by Dr. Muccio since September 2008,
but regularly saw Dr. Rai for pain management therapy (AR 31-33). Plaintiff indicated that he
saw Dr. Rai every three months for approximately “three minutes” and was prescribed
hydrocodone for pain management (AR 34; 40-41). He indicated he could stand for 20 minutes,
sit for 40 minutes, walk for 20 minutes, and lift up to five pounds (AR 35). Plaintiff testified that
he played poker every couple of months but needed to lie down every 15 to 20 minutes (AR 35).
Plaintiff claimed that he attempted to play golf in May of 2008 but could only complete four
holes because of pain (AR 36). Plaintiff testified that he coached baseball but “ended up laying
down a lot” on the field while directing assistant coaches (AR 37). Plaintiff claimed that he
spent 90 percent of his day lying down watching television, playing video games or reading (AR
38). Plaintiff indicated that he lived with his wife, who worked full-time, and his son (AR 37).
He stated that his only activity was walking his son one block to school and back (AR 38). He
8
was able to drive to doctor’s appointments as needed (AR 39). Plaintiff testified that his wife
performed all of the household chores and grocery shopping (AR 38-39).
The vocational expert was asked to assume an individual of the same age, education and
work experience as Plaintiff, who was able to perform sedentary work,3 but could rarely climb
ramps or stairs, balance, stoop, crouch or kneel (AR 46). Such individual was further precluded
from crawling, operating foot controls, and pushing with his lower extremities, and needed the
option to sit or stand at will (AR 46-47). The vocational expert testified that such an individual
could perform the jobs of a surveillance systems monitor, ticket checker, and telephone quote
clerk (AR 46-47).
Following the hearing, the ALJ issued a written decision finding that Plaintiff was not
entitled to a period of disability or DIB within the meaning of the Act (AR 10-19). His request
for an appeal with the Appeals Council was denied, rendering the ALJ’s decision the final
decision of the Commissioner (AR 1-5). He 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, 108
S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Richardson v. Parales, 402 U.S. 389, 401, 91
S.Ct. 1420, 28 L.Ed.2d 842 (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
3
Sedentary work involves lifting no more than 10 pounds at a time, and occasionally lifting or carrying of articles
like docket files, ledgers, and small tools. 20 C.F.R. § 404.1567(a). Sedentary jobs involve mostly sitting, with
occasional walking and standing required in order to carry out job duties. Id.
9
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 or
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
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
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. 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 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); see also Barnhart v. Thomas, 540 U.S. 20, 2425, 124 S.Ct. 376, 157 L.Ed.2d 333 (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
10
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 was a severe impairment, but
determined at step three that he did not meet a listing (AR 12-13). The ALJ described the
Plaintiff’s residual functional capacity as follows:
…[T]he claimant had the residual functional capacity (RFC) to perform sedentary
work (20 CFR 404.1567(a)) where he rarely climbs (ramps and stairs only),
balances, stoops, crouches, or kneels; where he does not crawl; where he does not
operate foot controls or perform pushing with the lower extremities; and where he
is allowed the option to sit or stand at will.
(AR 13) (footnote omitted). At the final step, the ALJ concluded that Plaintiff could perform
the jobs cited by the vocational expert at the administrative hearing (AR 18-19). Again, we must
affirm this determination unless it is not supported by substantial evidence. See 42 U.S.C. §
405(g).
Plaintiff first challenges the ALJ’s step three analysis, arguing that his back disorder met
Listing 1.04A of the listed impairments as set forth in 20 C.F.R. Pt. 404. Subpt. P, App. 1. See
[ECF No. 8] p. 5. Section 1.04A requires:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine); … .
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04.
11
In support of his contention that his back impairment met the Listing, Plaintiff relies on
his diagnostic studies and Dr. Muccio’s diagnosis of lumbar radiculopathy and lumbar disc
displacement, as well as Dr. Diefenbach’s diagnosis of “nerve root edema.” See [ECF No. 8] pp.
5-6; 9. Plaintiff argues that it is “reasonable to expect” that such condition precludes him from
ambulating effectively.4 Id. However, “[f]or a claimant to show that an impairment matches a
listing, it must meet all of the specified medical criteria. An impairment that manifests only
some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S.
521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (emphasis in original); see also Williams v.
Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).
Here, substantial evidence supports the ALJ’s conclusion that Plaintiff did not meet the
requirements of 1.04A. When evaluated for physical therapy on April 30, 2008, Plaintiff’s
muscle strength was 4/5 (AR 270). On July 7, 2008, Dr. Muccio found Plaintiff’s back was only
minimally tender, and he had a normal gait and stance (AR 173). On August 8, 2008, Plaintiff’s
physical therapist reported that his strength was “grossly good-normal” (AR 285). On August
21, 2008, Dr. Muccio found Plaintiff’s gait and stance were normal (AR 171). On September 18,
2008, Dr. Rai reported that Plaintiff’s straight leg raising test “appear[ed]” to be positive on the
left, but his finding does not reveal whether it was in both the sitting and supine position as
required by the Listing (AR 331-332). At that same examination, Dr. Rai found Plaintiff had full
muscle strength in his legs, normal deep tendon reflexes, normal sensation, and a normal gait
(AR 332). When examined by Dr. Kalata on January 15, 2009, no atrophy was observed (AR
4
The inability to ambulate effectively means “an extreme limitation of the ability to walk, i.e., an impairment(s) that
interferes very seriously with the individual’s ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity functioning … to permit
independent ambulation without the use of handheld assistive device(s) that limits functioning of both upper
extremities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00B2(b). Here, there is no evidence of an inability to ambulate
effectively. Plaintiff’s gait and stance were reported as “normal” by Dr. Muccio in July 2008 (AR 173) and August
2008 (AR 171). Dr. Rai also found Plaintiff’s gait was “normal” in September 2008 (AR 332), March 2009 (329)
and April 2010 (AR 325), and found it was “steady” in September 2009 (AR 327) and January 2010 (AR 326).
12
295). Finally, when seen by Dr. Rai throughout the rest of 2009 and through April 2010, his
muscle strength, deep tendon reflexes, sensation and gait were all found by Dr. Rai to be normal,
and his straight leg raising test continued to be negative (AR 325-329). At his final visit with Dr.
Rai on April 8, 2010, Plaintiff’s muscle tone and bulk were symmetric, he had 5/5 muscle
strength in his upper and lower extremities, his deep tendon reflexes were 2+ and symmetric in
his upper and lower extremities, his sensory examination was intact, his gait was normal, and his
straight leg raising test was negative (AR 325).
Plaintiff next argues that the ALJ ignored the diagnostic studies and certain findings from
his physical therapy records. See [ECF No. 8] p. 6. With respect to his physical therapy records,
Plaintiff contends that the ALJ “failed to mention” his positive straight leg raising test, that his
therapy was discontinued due to limited progress, and that his therapist recommended a home
TENS unit. Id. 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). Where competent evidence supports
a claimant’s claims, the ALJ must 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 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). Consideration
of all the evidence however, does not mean that the ALJ must explicitly refer to each and every
finding contained in a report. Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). As long as
the ALJ “articulates at some minimum level [his] analysis of a particular line of evidence,” a
written evaluation of every piece of evidence is not required. Phillips v. Barnhart, 91 Fed.
Appx. 775, 780 n.7 (3d Cir. 2004).
After reviewing the ALJ’s decision and the medical evidence of record, we are satisfied
that the ALJ complied with the dictates of Cotter and its progeny. Although the ALJ did not
specifically reference each and every diagnostic study, the ALJ discussed the results of the
13
September 2008 electromyogram and the November 2008 mylogram (AR 14). As the ALJ
observed, these tests revealed that Plaintiff had “very mild left S1 radiculopathy … without
evidence of denervation” and a “small left L5-S1 disc herniation” (AR 14). Objectively, the
remaining diagnostic studies relied on by the Plaintiff are not supportive of his position. For
example, one of the diagnostic studies the Plaintiff faults the ALJ for failing to discuss was the
MRI of his spine dated July 16, 2008, which was read as “unremarkable” (AR 241). The MRI
dated October 22, 2008 revealed only a “small” left-sided recurrent disc herniation at the L5-S1
level (AR 14; 190).
We also find that the ALJ’s review of the physical therapy treatment notes was adequate.
Although the ALJ did not refer specifically to the positive straight leg raising test as found by the
physical therapist in September 2008, the ALJ acknowledged that Dr. Rai found Plaintiff had a
positive straight leg raising test in the same time frame (AR 15). However, this finding in the
physical therapy note of September 2008 and Dr. Rai’s finding at or about the same time do not,
in and of themselves, support Plaintiff’s claimed limitations. As noted by the ALJ,
neurologically, Plaintiff had normal and symmetrical muscle tone, bulk and strength (AR 15).
He also had 2+ deep tendon reflexes, normal sensation in his lower extremities, and a normal gait
(AR 15).
Plaintiff further challenges the ALJ’s decision to accord little weight to the opinion of Dr.
Kalata, the consultative examiner who evaluated the Plaintiff pursuant to the request of the
Commissioner. See [ECF No. 8] pp. 7; 10. Dr. Kalata opined that Plaintiff could frequently lift
and carry only 2-3 pounds, occasionally lift and carry 10 pounds, stand for 1 hour or less, sit for
3 hours, and occasionally kneel (AR 296-297). He also found that Plaintiff was limited in his
pushing and pulling abilities with his lower extremities, and could never perform postural
activities other than kneeling (AR 296-297).
We first observe that the treating physician rule does not apply to a consulting
physician’s opinion. Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (doctrine had no
14
application to physician who examined claimant once). The Commissioner’s regulations
provide, however, that the ALJ must consider the extent to which the opinion is supported by a
logical explanation, the degree of the medical source’s specialization in a relevant field, and the
extent to which the source’s opinion is consistent with the entirety of the evidence. See
generally 20 C.F.R. § 404.1527(d)(1)-(6). We find that the ALJ evaluated Dr. Kalata’s opinion
consistent with this standard.
In according Dr. Kalata’s assessment little weight, the ALJ observed that Dr. Kalata’s
findings were inconsistent with the information contained in the Plaintiff’s treatment records and
his opinions were based “significantly” on the Plaintiff’s statements (AR 16). The ALJ
specifically noted that while Dr. Kalata observed Plaintiff sitting uncomfortably in a chair, Dr.
Rai reported that Plaintiff was able to sit comfortably (AR 16). The ALJ further observed that
treatment records from Dr. Rai’s office revealed that Plaintiff’s gait was described as “normal”
or “steady” in September 2008, September 2009, and April 2010 (AR 16). The ALJ also found
Dr. Kalata’s assessment inconsistent with the assessment of Dr. Kar, the state agency reviewing
physician (AR 16). Dr. Kar concluded, after a thorough review of the medical evidence, that Dr.
Kalata’s assessment was inconsistent with the totality of the evidence and overestimated the
severity of the Plaintiff’s limitations (AR 320). He concluded that Plaintiff could perform a
reduced range of sedentary work (AR 313-320).
Plaintiff also argues that the ALJ erred in evaluating his subjective complaints. See [ECF
No. 8] pp. 6-8. 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. 20 C.F.R. § 404.1529(a); Hartranft v. Apfel, 181 F.3d 358, 362
(3d Cir. 1999). Once an ALJ concludes that a claimant has a medical condition that could
reasonably produce the complained of symptoms, he or she must evaluate the intensity of the
symptoms and the extent to which they impair the individual’s ability to work. Hartranft, 181
F.3d at 362. “This obviously requires the ALJ to determine the extent to which a claimant is
15
accurately stating the degree of pain or the extent to which he or she is disabled by it.” Id. In
assessing subjective complaints, Social Security Ruling (“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); SSR 96-7p, 1996
WL 374186 at *2. An ALJ may reject a claim of disabling pain where he “consider[s] the
subjective pain and specif[ies] his reasons for rejecting these claims and support[s] his
conclusion with medical evidence in the record.” Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir.
1990).
We find the ALJ’s assessment of the Plaintiff’s subjective complaints was consistent with
the above standards. Plaintiff testified that debilitating back pain required him to lie down up to
90 percent of the time (AR 14). The ALJ found however, that this testimony was inconsistent
with the objective findings, his own statements to his various health care providers regarding his
activities, and with his level of treatment (AR 14-16).
In this regard, the ALJ cited to the objective diagnostic studies, which revealed “only a
small L5-S1 disc herniation” and “very mild left S1 radiculopathy … without evidence of active
denervation” (AR 14). The ALJ also referenced several findings on physical examination,
noting that in September 2008 Dr. Rai found Plaintiff had no kyphoscoliotic5 deformity in his
spine, and his lumbar paravertebral muscles were only mildly tender (AR 15). While Plaintiff
had a positive straight leg raising test at this examination, the ALJ noted that neurologically, he
had normal and symmetrical muscle tone, bulk, and strength, and he had 2+ deep tendon
reflexes, normal sensation in his lower extremities and a normal gait (AR 15). The ALJ further
observed that in June 2009, Plaintiff’s physical examination again revealed no kyphoscoliotic
5
Kyphoscoliosis is the backward and lateral curvature of the spinal column. See http://medicaldictionary.thefreedictionary.com/kyphoscoliosis.
16
deformity in his spine and only mild tenderness was noted, and he had a negative straight leg
raising test (AR 16). The ALJ noted that in September 2009, Dr. Rai found Plaintiff had a steady
gait and full muscle strength, and while he had a reduced range of motion and some tenderness,
his straight leg raising test remained negative (AR 16). The ALJ observed that at the end of his
physical therapy in September 2009, his therapist reported that his strength was grossly good and
Plaintiff complained of only intermittent radicular symptoms that were more prevalent with
prolonged standing (AR 14). Finally, the ALJ noted that at his last physical examination
performed by Dr. Rai in April 2010, Plaintiff’s neurological examination showed symmetric
muscle tone and bulk, full muscle strength in all extremities, 2+ and symmetric deep tendon
reflexes, intact sensation and a normal gait (AR 14). The ALJ found that while he had some
reduced range of motion and some tenderness, his straight leg raising test and Patrick’s test were
negative (AR 14).
The ALJ further found that Plaintiff’s testimony was inconsistent with his reports to his
various health care providers (AR 15-16). Plaintiff argues that the ALJ improperly considered
his “failed” attempts to play golf and coach little league. See [ECF No. 8] p. 6; 8. We disagree.
The ALJ considered the Plaintiff’s testimony that he had only been able to play four holes of
golf, had used a cart, and had to lie down on the tee boxes because of back pain (AR 15). The
ALJ observed, however, that Plaintiff reported in May 2008 that he had completed eight holes of
golf secondary to pain, and reasonably found Plaintiff’s statements made contemporaneously at
the time of treatment more persuasive (AR 15). The ALJ concluded that regardless of the
number of holes played, the fact Plaintiff would attempt such a physically demanding activity
belied his claims of debilitating back pain (AR 15). The ALJ further observed that Plaintiff
reported to Dr. Diefenbach in July 1008 that he was coaching little league baseball, but testified
that back pain required him to lie down and direct others in their duties (AR 15). The ALJ
reasonably concluded that Plaintiff’s ability to show up consistently for an entire season and
provide guidance to a group of parents was not indicative of functional limitations that would
17
preclude work activity at the sedentary level (AR 15). Finally, the ALJ found it significant that
given the “extreme level of inactivity” as testified to by the Plaintiff at the hearing, there was no
evidence of muscle atrophy, and that he retained normal muscle strength, tone and bulk (AR 1415).
The ALJ also found that Plaintiff’s claims of debilitating back pain were discredited by
his own treating sources. For example, the ALJ “found it difficult” to afford weight to Plaintiff’s
statements when Plaintiff’s physical therapist indicated that his back issues did not preclude the
performance of a regular exercise regimen (AR 15). The ALJ further observed that Dr. Muccio
found Plaintiff could perform light duty (AR 16). Plaintiff argues that the ALJ improperly
considered Dr. Muccio’s opinion in August 2008 that he should remain off work for eight weeks
due to an inability to stand for greater than 30 minutes. See [ECF No. 8] p. 7. The ALJ found,
however, that “even assuming” Plaintiff could not stand for more than 30 minutes at a time, he
would not be precluded from performing a limited range of sedentary work (AR 17). The ALJ
accommodated any limitation in this area by allowing Plaintiff the option to sit and stand as
needed (AR 17). The ALJ finally noted that a claimant’s impairment must be expected to last for
a continuous period of at least 12 months (AR 17). He noted that eight weeks was not a
“vocationally significant” period (AR 17).
Finally, the ALJ considered the Plaintiff’s treatment regimen, observing that since
Plaintiff’s treatment since late November 2008 had consisted of only routine medication
management for his pain (AR 16). The ALJ noted that his prescription was for hydrocodone,
and that Plaintiff repeatedly reported to Dr. Rai that it helped his pain without any side effects
(AR 16). The ALJ further observed that Plaintiff’s physical therapist recommended he engage in
regular active exercise, and that he had not required emergency intervention for pain issues (AR
17).
In sum, the ALJ adequately explained his basis for discrediting Plaintiff’s complaints of
disabling pain and all of his findings are supported by substantial evidence. See Hartranft, 181
18
F.3d at 362 (holding that ALJ’s credibility determination was supported by substantial evidence
where ALJ found plaintiff’s complaints about pain and other symptoms were inconsistent with
the objective medical evidence, plaintiff’s treatment regimen, and plaintiff’s description of his
daily activities); Sternberg v. Comm’r of Soc. Sec., 438 Fed. Appx. 89, 96 (3d Cir. 2011)
(holding that substantial evidence supported ALJ’s credibility determination where he considered
plaintiff’s testimony, weighed it against various conflicting evidence in the record, and specified
his reasons for finding plaintiff’s subjective complaints of pain not entirely credible); Harkins v.
Comm’r of Soc. Sec., 399 Fed. Appx. 731, 735 (3d Cir. 2010) (same).
Plaintiff also challenges the ALJ’s reliance on the vocational expert’s testimony that there
were a number of jobs in the national economy that he could perform despite his “eroded”
residual functional capacity. See [ECF No. 8] pp. 8; 10. Plaintiff argues that the ALJ should
have credited the vocational expert’s testimony that there would be no jobs he could perform if
he was required to lie down unpredictably and would be unable to perform his job 70 percent of
the workday on a consistent basis (AR 47). Testimony of a vocational expert concerning a
claimant’s ability to perform alternative employment may only be considered for purposes of
determining disability if the hypothetical question accurately portrays the claimant’s
impairments. Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). However, the ALJ is
only required to accept such testimony if such limitation was supported by the record.
Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). For the reasons previously
discussed, substantial evidence supports the ALJ’s rejection of this claimed limitation.
Finally, Plaintiff argues that the ALJ failed to fully develop the record. See [ECF No. 8]
p. 8. The ALJ has a duty to develop a “full and fair” record in social security cases. See Ventura
v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). Here, it is unclear what medical evidence the
Plaintiff claims that the ALJ should have obtained. The administrative record contained
evidence from all of the Plaintiff’s treating sources, including Dr. Rai, a pain management
specialist (AR 160-164; 325-336); Dr. Diefenbach, a neurosurgeon (AR 165-190); Saint Vincent
19
Health Center (AR 192-261); and Saint Vincent Rehab Solutions (AR 262-289). The ALJ also
subpoenaed the records from Dr. Rai’s office post-hearing (AR 23-24). Accordingly, we reject
Plaintiff’s contention that the ALJ failed in his duty to fully develop the record.
V.
CONCLUSION
An appropriate Order follows.
20
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TOMAS BRIZUELA,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 11-327 Erie
ORDER
AND NOW, this 28th day of December, 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. 9] is
GRANTED. JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue,
Commissioner of Social Security, and against Plaintiff, Tomas Brizuela.
The clerk is directed to mark the case closed.
s/ Sean J. McLaughlin
United States District Judge
cm:
All parties of record
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?