Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2009

Steven Ianuzzi v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2654




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                                                                   NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 08-2654


                                  STEVEN J. IANUZZI
                                      Appellant

                                            v.

                               MICHAEL J. ASTRUE,
                            Commissioner of Social Security




                           On Appeal From the United States
                                      District Court
                        For the Western District of Pennsylvania
                         (D.C. Civil Action No. 3-07-cv-00109)
                        District Judge: Hon. William L. Standish


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 2, 2009

                 BEFORE: McKEE and STAPLETON, Circuit Judges,
                          and IRENAS,* District Judge

                          (Opinion Filed: February 19, 2009)




*Hon. Joseph E. Irenas, Senior United States District Judge for the District of New
Jersey, sitting by designation.
David M. Axinn (Argued)
Cohen & Axinn
1904 North Juniata Street
P.O. Box 597
Hollidaysburg, PA 16648
 Attorney for Appellant

Quinn N. Doggett
Social Security Administration
SSA/OGC/Region III
P.O. Box 41777
Philadelphia, PA 19101
 and
Craig Ornsom (Argued)
Social Security Administration
SSA/OGC/Region III
300 Spring Garden Street - 6th Floor
Philadelphia, PA 19123




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellant Steven J. Ianuzzi appeals from a summary judgment entered by the

District Court in favor of the Commissioner of Social Security. We will reverse and

remand.

                                       I. The Process

       Following an evidentiary hearing, the ALJ issued a decision holding that Ianuzzi

was not “disabled” for purposes of Social Security disability insurance benefits and

                                             2
supplemental security income. He concluded that the claimant had the residual functional

capacity to perform “medium” exertional level work and, in particular, to perform two of

his past jobs – automobile sales representative (classified as light exertional work) and

credit manager (classified as sedentary exertional work) – as well as other light and

sedentary exertional level work. See 20 C.F.R. § 404.1567 Physical exertion

requirements. The Appeals Council denied Ianuzzi’s request for review, and he

commenced this civil action in the District Court.

       Ianuzzi insisted before the District Court that the ALJ’s decisions were not

supported by substantial evidence. The District Court agreed with him that the finding

regarding the capacity to do medium exertional level work was not supported by

substantial evidence. The Court granted summary judgment, however, because it found

substantial evidence to support the ALJ’s conclusion with respect to the capacity to

perform past employment and other light and sedentary exertional level work.

                      II. The Evidence Regarding Debilitating Pain
                           and the Side Effects of Its Treatment

       There was an extensive medical record before the ALJ. A substantial segment of

that record dealt with the extent of Ianuzzi’s physical, exertional limitations. His attack

on the Commissioner’s decision, however, focuses on the evidence of disabling pain and

the consequences of its treatment and, for present purposes, we will limit ourselves to that

evidence.

       Following a motor vehicle accident, Ianuzzi sought help from his family physician,

                                              3
Dr. John F. Reinhardt, complaining of chronic and constant headache. After an MRI and

other diagnostic work, Dr. Reinhardt diagnosed Ianuzzi as having whiplash, headaches

and degenerative joint disease and referred him to Dr. James Burke, a brain surgeon, for

pain management. Upon examination, Dr. Burke noted that Ianuzzi had radiographic

evidence of degenerative disc disease of the cervical spine and appeared to be

symptomatic for occipital neuralgia.

       Dr. Burke turned the pain management responsibilities over to Dr. John Johnson,

an anesthesiologist, on May 31, 2005. Dr. Johnson was Ianuzzi’s treating, pain

management physician continually from that date through July 20, 2006, when he

submitted the report that is relevant here. Dr. Johnson’s initial, primary diagnoses were:

(1) bilateral occipital neuralgia; (2) myofascial pain; and (3) cervical and lumbar

radiculitis. In the course of regular visits during this period, Dr. Johnson treated Ianuzzi

with trigger point injections, occipital nerve blocks, cervical epidural steroid injections,

and multiple medications. These treatments produced short term relief, but the pain

thereafter returned to or near the original levels.

       The District Court accurately described Dr. Johnson’s July 20, 2006, report as

follows:

       In the report, Dr. Johnson indicates that he first saw Plaintiff on May 31,
       2005 and that he last saw Plaintiff that day. Dr. Johnson listed Plaintiff’s
       impairments as “occipital headaches 2-3x’s day – pain radiates to shoulders,
       back pain, neck pain.” Dr. Johnson noted that Plaintiff’s then current
       treatment included lumbar epidural steroid injections, cervical epidural
       steroid injections, bilateral occipital nerve blocks, Percocet and Fentanyl

                                               4
      patches,19 and he described Plaintiff’s clinical findings as “tenderness in
      occipital regions bilaterally, tenderness along paraspinal musculature of
      cervical spine and diffuse tenderness in lumbar spine region.” Regarding
      Plaintiff’s prognosis, the legible portion of Dr. Johnson’s response indicated
      that Plaintiff’s pain would continue, and that his range of motion and
      activities would continue to be decreased.
              19
                 Fentanyl skin patches should only be used to control
              moderate to severe chronic (around the clock, long-lasting)
              pain that cannot be controlled by the use of other pain
              medications in people who are tolerant (used to the effects of
              the medication) to narcotic pain medications because they
              have taken this type of medication for at least one week.
              Fentanyl skin patches should not be used to treat mild pain,
              short-term pain, pain after an operation or medical or dental
              procedure, or pain that can be controlled by medication that is
              taken as needed. See www.nlm.nih.gov/medlineplus/druginfo
              (last visited 4/17/2008).

                                           ***

      Dr. Johnson indicated that Plaintiff was markedly limited in activities of
      daily living, social functioning, the ability to engage in sustained work and
      the ability to deal with stress, but that he was unable to evaluate Plaintiff’s
      deficiencies of concentration, episodes of decompensation in work or work-
      like settings and ability to respond appropriately to co-workers, supervisors
      or the public.

District Court Opinion at 16-17.

      In the ALJ’s view, “Dr. Johnson placed severe limitations on the claimant’s ability

to perform mental work-related activities.” Adm. Record at 18.

      Dr. Elizabeth Dunmore of the Pennsylvania Bureau of Disability Determination

performed a consultive examination of Ianuzzi on January 27, 2006. She reported:

      Since that time he has had problems with chronic migraines, neck and back
      pain. The back pain is the his [sic] most debilitating problem. The pain
      starts in his lower back and radiates into the legs. He also experiences pain

                                             5
       at the back of his neck. The pain is constant. It is 8/10 in severity.
       Percocet does help to take the edge off, but then he has problems with
       drowsiness. The pain is worse with the ambulation. He is especially
       bothered with steps. The patient had worked as a sales manager for
       automobile sales. He discontinue[d] this work in mare [sic] [March] of
       2006 because of pain, headaches and inability to concentrate. He spends his
       day resting in a dark room and taking medications.

                                            ***

       IMPRESSION:

       1. Chronic pain syndrome. The patient presents with a chronic pain
       syndrome as outlined above. He has severe subjective pain with minimal
       objective findings. The pain is chronic in nature and requires narcotic
       medications.

Adm. Record at 363; Adm. Record at 365.

                                      III. Discussion

       We agree with the District Court that the record does not contain substantial

evidence to support the conclusion that Ianuzzi has the residual functional capacity to do

medium exertional level work. We also agree with the District Court that the ALJ stated

alternative grounds for the denial of benefits to Ianuzzi and that we could affirm that

denial if we found those grounds satisfactory. Our problem is that while the ALJ stated

alternative grounds, he did so without satisfactorily addressing the substantial conflicting

evidence. The controlling principle here is the one that we adopted in Moret v. Karn, 

(3d Cir. 1984), from Professor Davis’s preeminent treatise:

       Even if the evidence in the record, combined with the reviewing court’s
       understanding of the law, is enough to support the order, the court may not
       uphold the order unless it is sustainable on the agency’s findings and for the

                                              6
       reasons stated by the agency.

(quoting from K. Davis, Administrative Law Treatise § 14:29 (1980). While

we are not prepared to say that the ALJ or the Appeals Council could not state reasons

upon which the denial of benefits to Ianuzzi could be sustained, we find no reasoning in

the record that we can endorse.

       Ianuzzi’s primary problem is chronic and substantial pain. Every doctor who has

treated him has so concluded and has aggressively treated him for that problem. Finding

no evidence to the contrary, we conclude from their diagnoses and the potency of their

prescribed treatments that all considered Ianuzzi’s pain problem to be a serious and

constant one. Dr. Johnson, the treating physician who was responsible for the

management of his pain over a substantial period of time and, accordingly, was in the best

position to know, in the ALJ’s words, “placed severe limitations on the claimant’s ability

to perform mental work- related activities.” Adm. Record at 18.

       It was in this context that the ALJ, in finding Ianuzzi able to perform his prior

employment, failed to address in any way why these severe limitations were consistent

with his serving as an automobile sales representative and a credit manager.

       Nor is a satisfactory explanation found elsewhere in the ALJ’s opinion. The ALJ

did say that he gave “little weight” to Dr. Johnson’s assessment of Ianuzzi’s pain problem

because he was an “anesthesiologist” and “not a mental health specialist and his treatment

notes fail to document any mental health issues.” The record does not support, however,



                                              7
the notion that an anesthesiologist who practices pain management medicine is

unqualified to assess the impact of pain on his or her patient’s life activities. Many

anesthesiologists do practice pain management medicine, and Ianuzzi was referred to Dr.

Johnson precisely for that reason. While Dr. Johnson’s treatment notes may fail to

document any mental health issues, they most certainly document a serious pain issue.

       This is not a case in which the ALJ determined that there was no medically

determinable impairment that could reasonably be expected to produce the alleged

symptoms. He expressly disavowed such a problem:

       After considering the evidence of record, the undersigned finds that the
       claimant’s medically determinable impairments could reasonably be
       expected to produce the alleged symptoms, but that the claimant’s
       statements concerning the intensity, persistence and limiting effects of these
       symptoms are not entirely credible.

Adm. Record at 17. It thus seems apparent that the ALJ’s problem was not with the

medical evidence, but rather with the fact that he did not find Ianuzzi “entirely credible.”

He fails to explain, however, what he found not credible and why.1



   1
   The paragraph that follows this credibility observation states only the following in
support:

       On March 28, 2005, the physical therapist reported the claimant stated in
       his initial interview that he had been in a motor vehicle accident in May,
       2003, and had chronic back and cervical pain but did not complain of
       headaches until “about one month ago. . . .” The physical therapist reported
       his initial examination disclosed SCM insertional pain at the mastoid
       processes bilaterally (Exhibit 13F). A patient’s report of pain upon such
       palpitation is generally regarded as a sign that the patient has “extreme
       sensitivity” or is falsely reporting.

                                              8
                                     IV. Conclusion

      We will reverse the judgment of the District Court and remand this matter to it

with instructions to return it to the Commissioner for further proceedings. The

Commissioner may either grant Ianuzzi the benefits claimed or reconsider his application.




Adm. Record at 17. This does not support a finding of “falsely reporting” on Ianuzzi’s
part.

                                            9