WILKERSON v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION
Filing
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ORDER denying 11 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Signed by Magistrate Judge Robert C. Mitchell on 10/08/2014. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRANDY L. WILKERSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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2: 14-cv-456
MEMORANDUM and ORDER
Mitchell, M.J.:
Presently before the Court for disposition are cross motions for summary judgment. For
the reasons that follow the plaintiff's motion (ECF.No.11) will be DENIED; the defendant's
motion (ECF No.13) will be GRANTED and the decision of the Commissioner will be
AFFIRMED.
On April 10, 2014, Brandy L. Wilkerson, by her counsel, filed a complaint pursuant to
Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g) for review of the
Commissioner's final determination disallowing her claim for a period of disability or for
disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, as
amended, 42 U.S.C. §§416(i) and 423.
On February 25, 2011, the plaintiff filed an application for disability benefits alleging
that she had been disabled since February 1, 2011 (R.127-128), and benefits were denied on June
1, 2011 (R.68-72). On June 11, 2011, the plaintiff requested a hearing (R.73) and pursuant to that
request a hearing was held on August 2, 2012 (R.27-58). In a decision dated September 24,
2012, benefits were denied (R.8-21), and on November 28, 2012, reconsideration was requested
(R.7). Upon reconsideration and in a decision dated February 28, 2014, the Appeals Council
affirmed the prior determination (R.1-3). The instant complaint was filed on April 10, 2014.
In reviewing an administrative determination of the Commissioner, the question before
any court is whether there is substantial evidence in the agency record to support the findings of
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the Commissioner that the plaintiff failed to sustain her burden of demonstrating that she was
disabled within the meaning of the Social Security Act.
It is provided in 42 U.S.C. Section 405(g) that:
The court shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing. The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive....
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Johnson v. Comm'r. 529 F.3d
198 (3d Cir.2008). The court may not set aside a decision supported by substantial evidence.
Hartranft v. Apfel, 181 F.3d 358 (3d Cir.1999).
At the hearing held on August 2, 2012, (R.27-58), the plaintiff appeared with counsel
(R.29) and testified that she was born on September 7, 1976 (R.32); that she is married and has
three children (R.32); that she has a high school education and EMT training (R.34); that she
worked as an aide in a nursing facility (R.34) and that she wanted to return to light work but the
facility would not permit it (R.36).
The plaintiff also testified that she experiences continuing back and leg pain (R.35,38);
that she was involved in a car accident in December 2011 which worsened her condition (R.37);
that she takes medication and attends physical therapy (R.39); that she lays down three or four
times a day for about an hour (R.40,46); that she can sit for about one to one and a half hours
(R.44); that she can stand for twenty to thirty minutes (R.45); that she can walk about fifty yards
(R.45); that she can lift about five pounds (R.45) and that one or two days a week she cannot do
anything (R.49).
At the hearing a vocational expert was called upon to testify (R.52-57). She described the
plaintiff's former employment as medium exertional semi-skilled work (R.53). When asked to
assume an individual of the plaintiff's age, education and prior work experience who is restricted
to light work, the witness testified that such an individual could not perform the plaintiff's prior
work (R.53-54). However, she also testified that such an individual could perform a wide range
of jobs which exist in the national economy provided she could work an eight hour day (R.5455). However, with the limitations the plaintiff described, the witness testified she could not be
employed (R.56).
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The issue before the Court for immediate resolution is a determination of whether or not
there is substantial evidence to support the findings of the Commissioner that the plaintiff was
not disabled within the meaning of the Act.
The term "disability" is defined in 42 U.S.C. Section 423(d)(1)(A) as:
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....
For purposes of the foregoing, the requirements for a disability determination are provided in 42
U.S.C. Section 423(d)(2)(A):
An 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 ... "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.
A "physical or mental impairment" is "an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques." 42 U.S.C. Section 423(d)(3). These provisions
are also applied for purposes of establishing a period of disability. 42 U.S.C. Section
416(i)(2)(A).
While these statutory provisions have been regarded as "very harsh," nevertheless, they
must be followed by the courts. NLRB v. Staiman Brothers, 466 F.2d 564 (3d Cir. 1972);
Choratch v. Finch, 438 F.2d 342 (3d Cir. 1971); Woods v. Finch, 428 F.2d 469 (3d Cir. 1970).
Thus, it must be determined whether or not there is substantial evidence in the record to support
the conclusion of the Commissioner that the plaintiff was not disabled within the meaning of the
Social Security Act.
For this purpose, certain medical evidence was reviewed.
A cystourethroscopy and bilateral retrograde pyelogram were performed on January 29,
2010. It was believed that she had passed a kidney stone (R.249-253).
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The plaintiff was treated for sacroiliitis and lumbosacral somatic dysfunction between
February 2, 2010 and November 4, 2010. Steroid injections were provided (R.229-246).
The plaintiff was treated at the UPMC Horizon emergency room between January 18,
2010 and December 20, 2010 for chronic back pain for which a myelogram was performed,
headaches, a dental abscess and a lumbar strain (R. 254-329).
The plaintiff received treatment at UPMC Neurological Surgery between August 17,
2010 and March 1, 2011 both prior to and after her surgery. Following surgery she was advised
to pursue physical therapy. On March 1, 2011, it was observed that the plaintiff could not return
to work for at least six weeks (R.345-355).
The plaintiff received outpatient treatment including treatment for menorrhagia at UPMC
Greenville between February 23, 2009 and March 10, 2011(R.340-342, 356-366).
In a report of a consultative examination performed on May 3, 2011, Dr. Iftikhar A.
Chatha diagnosed post-surgical chronic low back pain and noted the need for extensive therapy
(R.367-373).
In a residual functional capacity assessment completed on August 2, 2011, Dr. Thomas
Pineo reported that the plaintiff had a lumbosacral sprain/strain and could lift two to three
pounds, stand or walk for an hour or less and sit for three hours. He also observed that the
plaintiff had to lie down three times a day for an hour at a time and concluded that the plaintiff
had been disabled since February 1, 2011 (R.375-377, 461-463).
The plaintiff was treated on August 12, 2011 by Michael J. Namey, D.O. for back pain.
Left sciatica was diagnosed and medication was prescribed (R.404-408, 458-460).
The plaintiff was treated by Anthony Elisco, D.O. between September 13, 2011 and
September 28, 2011 for a urinary tract infection (R.398-403).
The plaintiff was treated at UPMC Horizon on December 15, 2011 following a motor
vehicle accident. An L4 compression fracture was noted (R.378-388).
The plaintiff was treated on December 30, 2011 by Edward Uberti, D.O. following a
motor vehicle accident. A mild L4 compression was observed (R.409-411).
The plaintiff was hospitalized at UPMC Presbyterian Hospital from January 31, 2011
through February 4, 2011. An L4-L5 and L5-S1 microdiscectomy was performed. On discharge
activity as tolerated was permitted and medication was prescribed (R.332-339, 389-397).
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The records of Alicia Baker, D.O. for the period between October 10, 2008 and March
12, 2012 reveal a normal abdomen and lumbar spine and report a hysterectomy was performed
on July 30, 2009. Some improvement in the L4-L5 and L5-S1 disc bulge was noted (R.433-457).
The plaintiff was treated by Dr. Adnan A. Abla between January 19, 2011 and March 20,
2012. He performed an L4-L5 and L5-S-1 microdiscectomy and foraminotomy on February 2,
2011. Pain continued post-surgically. The fracture plaintiff sustained on December 14, 2011
appeared stable and physical therapy was to continue. On March 20, 2012 much pain
improvement was noted. Medication was prescribed as well as a recommendation to return to
normal activities (R.412-432).
Alicia A. Baker, D.O. treated the plaintiff on July 2, 2012 for back pain. Medication was
prescribed (R.464-470).
In reviewing a disability claim, in addition to considering the medical and vocational
evidence, the Commissioner must consider subjective symptoms. Baerga v. Richardson, 500
F.2d 309 (3d Cir. 1974). As the court stated in Bittel v. Richardson, 441 F.2d 1193, 1195 (3d
Cir. 1971):
Symptoms which are real to the claimant, although unaccompanied by objective
medical data, may support a claim for disability benefits, providing, of course, the
claimant satisfies the requisite burden of proof.
In Good v. Weinberger, 389 F. Supp. 350, 353 (W.D. Pa. 1975), the Court stated:
Bittel seeks to help those claimants with cases that so often fall within the spirit-but not the letter--of the Act. That plaintiff did not satisfy the factfinder in this
regard, so long as proper criteria were used, is not for us to question.
The applicable regulations require more explicit findings concerning the various
vocational facts which the Act requires to be considered in making findings of disability in some
cases. The regulations, published at 20 C.F.R. §§404.1501, et seq., set forth an orderly and
logical sequential process for evaluating all disability claims. In this sequence, the
Administrative Law Judge must first decide whether the plaintiff is engaging in substantial
gainful activity. If not, then the severity of the plaintiff's impairment must be considered. If the
impairment is severe, then it must be determined whether she meets or equals the "Listings of
Impairments" in Appendix 1 of the Regulations which the Commissioner has deemed of
sufficient severity to establish disability. If the impairment does not meet or equal the Listings,
then it must be ascertained whether she can do his past relevant work. If not, then the residual
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functional capacity of the plaintiff must be ascertained, considering all the medical evidence in
the file. The finding of residual functional capacity is the key to the remainder of findings under
the new regulations. If the plaintiff's impairment is exertional only, (i.e. one which limits the
strength she can exert in engaging in work activity), and if her impairment enables her to do
sustained work of a sedentary, light or medium nature, and the findings of age, education and
work experience, made by the Administrative Law Judge coincide precisely with one of the rules
set forth in Appendix 2 to the regulations, an appropriate finding is made. If the facts of the
specific case do not coincide with the parameters of one of the rules, or if the plaintiff has mixed
exertional and non-exertional impairments, then the rules in Appendix 2 are used as guidelines in
assisting the Administrative Law Judge to properly weigh all relevant medical and vocational
facts.
Based on the evidence presented, the Commissioner concluded:
The claimant has the following severe impairments: lumbar disc herniations status
post surgery and L4 compression fracture.
The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments …
Listing 1.04 is not met because the record does not demonstrate compromise of a
nerve root … or the spinal cord with additional findings of: A. Evidence of nerve
root compression characterized by neuro-anatomic distribution of pain, limitation
of motion of the spine, motor loss … accompanied by sensory or reflex loss, and
positive straight-leg raising or; B. Spinal arachnoiditis or; C. Lumbar spinal
stenosis resulting in pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively …
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work …
The claimant alleges disability due to back surgery. At the hearing, the claimant
testified that she has back injuries that significantly limit her. She stated she
underwent surgery in 2011 and she was injured in a motor vehicle accident later
in 2011. According to the claimant, she still experiences back pain and pain in her
legs in spite of treatment…. She stated she lies down for an hour 3-4 times per
day. In terms of treatment, the claimant stated that she takes medications that do
not cause side effects. She stated she also uses a TENS unit and participates in
physical therapy… Finally, the claimant reported numerous activities of daily
living. She reported that she takes care of her three children, attends
appointments, watches television, reads, spends time with others, has no problem
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getting along with others, follows instructions "good," gets along with authority
figures "good," handles stress "good," is able to manage her finances and is
generally independent in personal care.
After carefully consideration of the evidence, the undersigned finds that the
claimant's medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity
assessment.
In terms of the objective evidence, the claimant's limited medical history is
inconsistent with and unsupportive of the claimant's allegations of disability. The
claimant's medical record establishes that the claimant's impairments do not
prevent her from engaging in work within the residual functional capacity as
stated above. The medical record shows that the claimant was significantly
limited for about a 3-month period after her first back surgery and for about a 4month period after her motor vehicle accident. However, treating notes show the
claimant has made a good recovery. Nonetheless, the undersigned has given the
claimant's testimony some credence in limiting her to the residual functional
capacity as determined.
Specifically, the claimant underwent L4-L5 and L5-S1 microlumbar discectomy
and foraminotomy for disc herniations … The claimant was noted to have
immediately shown good results in lower extremity pain. The claimant was
prescribed medications and advised to avoid all strenuous activity… On March 1,
2011 … Dr. Abla prescribed physical therapy and medications. He stated the
claimant could not go back to work for at least 6 weeks … In April of 2011, Dr.
Abla stated he was pleased with the claimant from a neurosurgical standpoint as
the claimant was slowly improving. Dr. Abla decreased the claimant's physical
therapy. On May 17, 2011, the claimant complained of "some stiffness." Dr. Abla
determined the claimant could return to all of her normal activities because he
was not placing any restrictions on the claimant…
On July 12, 2011, the claimant complained of tenderness in her back … On
August 2, 2011, the claimant complained of some low back soreness. The
claimant denied lower extremity numbness. Dr. Abla again stated the claimant no
longer had any restrictions...On August 2, 2011, the claimant complained of back
pain. Upon examination, the claimant had mild tenderness in her lumbar spine.
Dr. Pineo diagnosed the claimant with ongoing low back pain related to
degenerative disc disease and status-post L4-L5 and L5-S1 microdiscectomy and
foraminotomy. Dr. Pineo hoped the claimant's back pain would improve. He
stated the claimant was unable to return to work. On August 12, 2011 … Dr.
Namey diagnosed the claimant with deteriorated left sciatica and deteriorated
lumbar strain. He prescribed medications. His assessment that the claimant was
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deteriorating is given little weight as it is inconsistent with Dr. Abla placing the
claimant on no restrictions 10 days earlier..
The claimant's condition then temporarily worsened after being [in] a motor
vehicle accident in December of 2011… Dr. Uberti diagnosed the claimant with
right-sided lumbar radiculopathy and new L4 compression fracture. Dr. Uberti
advised the claimant to see Dr. Abla for treatment. The claimant returned to Dr.
Abla on January 17, 2012. The claimant complained of low back pain radiating
down her right leg. Upon examination, the claimant exhibited lumbar muscle
tightness and positive straight leg raising. Dr. Abla stated a MRI of the claimant
showed a L4 fracture. Dr. Abla prescribed medications and one month of physical
therapy…
In February of 2012, the claimant admitted her pain was improving to Dr. Abla…
Dr. Abla stated the claimant's fracture was stable and did not require surgery. Dr.
Abla recommended the claimant finish physical therapy and prescribed
medications. On March 12, 2012, the claimant complained of back pain… Dr.
Baker diagnosed fracture of the L4 lumbar vertebra that was improving with
physical therapy and conservative management. Dr. Baker was hopeful the
claimant could return to work after completing physical therapy. On March 29,
2012, the claimant denied leg pain. The claimant rated her back pain at a level of
4-5 out of 10. Dr. Abla stated the claimant could return to all of her normal
activities.
Most recently, the claimant reported being "definitely a lot better" to Dr. Baker…
In addition to receiving treatment, Iftikhar A. Chatha, M.D.. performed a
consultative examination of the claimant on May 3, 2011 … Dr. Chatha
diagnosed the claimant with chronic low back pain, status-post disc surgery in
February of 2011 with almost no relief. Dr. Chatha stated the claimant would
need extensive PT/OT… The objective evidence in its entirety does not
demonstrate abnormalities, which would interfere with the claimant's ability to
perform the range of work identified above…
[T]he claimant's daily activities of living, which are relatively full and
independent, are consistent with the above residual functional capacity assessment
and are inconsistent with a disabling level of functioning...
The course of medical treatment and the use of medication in this case are also
not consistent with disabling impairments…
[T]he opinion of Dr. Abla is given the most weight because it is supported by the
evidence, is consistent with the record as a whole and was completed by a treating
specialist…
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Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform…
The claimant has not been under a disability, as defined in the Social Security
Act, from February 1, 2011, through the date of this decision… (R.13-21).
The record demonstrates that the plaintiff suffered a back injury which was exacerbated
by a subsequent automobile accident. While there are varying opinions as to the severity of her
injuries, her treating neurosurgeon, Dr. Abla has consistently reported improvement, and except
for short periods of time, no limitations upon her activities. Thus, an issue of credibility was
created, the resolution of which resides with the Commissioner who determined that the treating
specialist was the most credible. Diaz v. Commissioner, 577 F.3d 500. 506 (3d Cir.2009).
Summary judgment is appropriate when there are no disputed material issues of fact, and
the movant is entitled to judgment as a matter of law. Lichtenstein v. U.P.M.C., 691F.3d 294
(3d Cir. 2012). In the instant case, there are no material factual issues in dispute, and it appears
that the Commissioner's conclusion is supported by substantial evidence. For this reason the
plaintiff's motion for summary judgment will be denied; the defendant's motion for summary
judgment will be granted, and the decision of the Commissioner will be affirmed.
An appropriate Order will be entered.
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ORDER
AND NOW, this 8th day of November, 2014, for the reasons set forth in the foregoing
Memorandum the plaintiff's motion (ECF.No.11) will be DENIED; the defendant's motion (ECF
No.13) will be GRANTED and the decision of the Commissioner will be AFFIRMED.
s/ Robert C. Mitchell
United States Magistrate Judge
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