MICHAEL A. TELESCA, District Judge.
Represented by counsel, Patrick Dennis McHugh ("Plaintiff" or "McHugh"), brings this action pursuant to Titles II and XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). The Court has jurisdiction over this action pursuant to 42 U.S.C. § 405(g).
On August 27, 2009, Plaintiff filed applications for DIB and SSI, claiming disability as of December 19, 2008, based on conditions afflicting his neck, back, and right shoulder. T.133, 143-149, 169.
This action followed. Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
On April 25, 2007, Plaintiff was involved in a motor vehicle accident ("MVA") and sustained injuries to his neck and right upper extremity. On June 12, 2007, Plaintiff underwent an MRI of the cervical spine, which revealed disc herniations at C6-C7, C5-C6, C4-C5, and C3-C4. An MRI of Plaintiff's right shoulder revealed tenodesis with no identifiable tears, moderate osteoarthritis of the acromioclavicular joint with slight encroaching of the supraspinatus outlet, and degenerative changes of the superior labrum.
On September 27, 2007, Plaintiff was referred by his primary care physician, Thomas F. Hughes, M.D., to Lee R. Guterman, M.D., who found that Plaintiff had "severe limited range of motion of his cervical spine on flexion, extension, lateral bending, and rotation[.]" Dr. Guterman noted that Plaintiff "ha[d] a weak grip, approximately 4/5, biceps 4/5, triceps 4+/5."
Following a referral from Dr. Guterman, P. Jeffrey Lewis, M.D., evaluated Plaintiff on November 2, 2007. Plaintiff had a herniated disc at C6-C7 with right C7 radiculopathy and muscle atrophy of the right triceps muscle. Dr. Lewis also noted that Plaintiff had right cubital tunnel syndrome from the ulnar nerve compressing the elbow on the right. Both conditions were caused by Plaintiff's 2007 MVA.
On November 15, 2007, Plaintiff met with Eugene Gosy, M.D. and Deborah Dzielski, ANP. Plaintiff's neck extension was 10% of normal, and his flexion and right rotation were 50% of normal. Plaintiff's trapezius was tender, there were no trigger points on the spine, and straight-leg raises ("SLRs") were negative. Plaintiff's strength in both his upper and lower extremities was 5/5, his joint pressing maneuvers were normal, his sensation was intact to pinprick, and his cranial nerves were intact.
On November 21, 2007, Plaintiff had x-rays taken of his cervical spine, which revealed spondylosis at C5-C6 and C6-C7, and mild dextroscoliosis, possibly due to spasm. T.380. On November 30, 2007, Dr. Lewis performed disc replacement surgery on Plaintiff. T.340-42. Post-surgery, Plaintiff underwent physical therapy and pain management treatment with Dr. Gosy. T.216-20, 221-27.
Due to continued pain, Plaintiff began pain management treatment with Gerald L. Peer, M.D. in early August 2008. T.284-86. Dr. Peer assessed that lateral flexion of Plaintiff's right shoulder bilaterally was 50% of normal, his abduction was 90% of normal, his upper extremity strength was 5/5 bilaterally, and his range of motion in his left shoulder was full. T.289. Plaintiff could walk heel to toe, and had right-sided hypoesthesia at C6-C7.
On September 17, 2008, Plaintiff was involved in another MVA, which resulted in increased neck pain and injury to his right shoulder. T.327. On November 17, 2008, Plaintiff underwent a magnetic resonance arthrogram of his right shoulder, which revealed a full thickness tear of his posterior supraspinatus tendon. T.241. On December 17, 2008, orthopedist Joseph E. Buran, M.D. performed arthroscopic surgery on Plaintiff's right shoulder to repair the torn rotator cuff. T.238-39. Post-surgery, Dr. Buran noted that Plaintiff was doing "generally" well, his pain had diminished, and he was neurologically intact. Dr. Buran determined that Plaintiff was disabled and referred him to a physical therapist. T.304, 307.
Due to his chronic pain, Plaintiff returned to see Dr. Peer on February 11, 2009, at which time Dr. Peer determined that Plaintiff was temporarily totally disabled due to his right shoulder surgery. T.270.
On March 25, 2009, Plaintiff underwent a computed tomography ("CT") scan of his cervical spine, which showed no abnormalities at C2-C3, C3-C4 and T1-T2. T.243.
In April 2009, Dr. Lewis noted that Plaintiff was recovering well from his recent shoulder, and that he appeared to have symptoms associated with ulnar nerve compression syndrome at the elbow. T.329. An MRI of Plaintiff's cervical spine revealed subtle degenerative changes at C5-C6 with the possibility of scoliosis. T.337. Dr. Lewis opined that Plaintiff could return to work on a part-time basis. T.322.
On June 19, 2009, Plaintiff returned to Dr. Buran's office. Vincent E. Lorenz conducted an assessment and determined that Plaintiff was doing well but had some residual loss of range of motion in his shoulder. He also noted that Plaintiff had "excellent strength" and had "good function and can return to work in reference to his shoulder." T.312. Lorenz assessed that Plaintiff "is disabled at this time, not because of the shoulder, but because of the neck." T.312.
On June 23, 2009, Plaintiff underwent an EMG nerve study which revealed mild chronic left C8 radiculopathy and bilateral nerve compression. T.331, 338-39.
On July 8, 2009, Dr. Guterman examined Plaintiff and found slight weakness in his right grip and biceps, diminished range of motion in his neck, and diminished pinprick sensation in the left C7-C8 distribution. T.507. Dr. Guterman assessed that Plaintiff had a "reasonable" range of motion in the cervical spine except for right rotation, which was limited. Flexion and extension were good. Dr. Guterman concluded that Plaintiff could not return to doing scaffold work. T.507.
On November 24, 2009, Plaintiff underwent surgery on his left elbow to address his cubital tunnel syndrome. T.428. Post-surgery, Plaintiff reported to Dr. Lewis that he felt much better and that he was able to feel his fingers. T.429.
X-rays and an MRI of Plaintiff's cervical spine were taken on February 26, 2010. The x-rays revealed dextroscoliosis; early degenerative discogenic changes at C5-C6; and status post-prosthetic disc insertion at C6-C7, with no evidence of loosening or migration. T.138. The MRI revealed a mild disc bulge at C4-C5, and an annular tear and small central disc herniation at C3-C4. T.136-37.
At a follow-up visit on March 5, 2010, Dr. Lewis reported that Plaintiff had some residual symptoms from the November 2009 surgery but was improving. T.134. Plaintiff had residual neck pain and the MRI showed an artifact at C6-7 and C5-C6 (the prosthetic disc replacement), with some degeneration and bulging at C3-C4 and C4-5, which possibly was the site of Plaintiff's pain. T.134. Dr. Lewis did not believe that further surgery was required, and he advised Plaintiff to continue taking Loratab and begin pain management therapy. T.134.
Kathleen Kelley, M.D. performed a consultative examination of Plaintiff on December 9, 2009. Dr. Kelley diagnosed Plaintiff with status post-cervical spine surgery with radiculopathy, status post-right shoulder surgery with decreased range of motion, left ulnar decompression, seizure disorder since childhood, and headaches with associated migraines. Dr. Kelley opined that when Plaintiff engaged in repetitive bending or twisting of the cervical spine, he required comfort breaks. She also opined that Plaintiff needed to refrain from repetitive activity using his right arm, especially with overhead reaching.
Neurologist Michael J. Battaglia, M.D. had treated Plaintiff for his epilepsy for about 20 years. He noted, in a March 28, 2010 report, that he had last seen Plaintiff in May 2006. T.487-88. Dr. Battaglia stated that Plaintiff suffered from complex partial seizures, as well as nocturnal seizures. Dr. Battaglia opined that Plaintiff's seizures were clustering, and noted that Plaintiff would suffer from a severe headache the day after a seizure. Plaintiff reported to Dr. Battaglia on March 26, 2010, that his seizures had increased from 2 to 15 times a night, each lasting a couple of minutes. T.487. Dr. Battaglia recommended that Plaintiff undergo blood tests and advised him to avoid drinking any alcohol. Dr. Battaglia noted that it was unsafe for Plaintiff to drive a motor vehicle because of his "poorly controlled" epilepsy, and that Plaintiff should not swim, climb ladders or work at heights. T.488.
Plaintiff testified that he was 41-years-old and had an Associate's Degree. His past relevant work was as a foreman and scaffold rigger in a family business involved in stained glass renovations of historic buildings. Plaintiff testified that he has suffered from epilepsy since he was 9 or 10 years-old. T.36-40.
In April 2007, Plaintiff was involved in an MVA, in which he sustained multiple herniated discs in his cervical spine. Following the accident, he tried physical therapy and massage therapy, epidural and trigger point injections, use of a TENS unit and pain management, but none of these modalities provided longterm relief. T.42-44. Plaintiff testified that, after this accident, he attempted to go back to work. Because it was a family business at which he had worked for approximately 20 years, they accommodated his disability. He could not do anything physical and was only able to give others instructions. He testified that he worked approximately 20 hours per week. T.55-56.
In September 2008, Plaintiff was involved in another MVA, in which he sustained injuries to his right shoulder and left elbow. Plaintiff did not return to work after this accident. Subsequently, he underwent surgery on his right rotator cuff and his left elbow. T.39-46.
Plaintiff testified that he treated with Drs. Capicotta, Guterman, and Lewis for his neck injury, and that Dr. Lewis performed surgery on his neck in 2007. Plaintiff testified that he also treated with Drs. Gosy, Peer and Wagmire for pain management. He saw Dr. Guterman for trigger point injections every three to five months. T.41-43.
After his neck surgery, Plaintiff experienced pain at the level of a 4 or 5 out of 10. He testified further that, since his surgery, he has fewer muscle spasms and his right arm symptoms have been alleviated. He still experienced shoulder pain, but not as extensively as before his shoulder surgery. Plaintiff testified that he can lift his right arm to shoulder height, frontwards and sideways but is limited in extending his arm backwards. T.48-53.
Plaintiff stated that he takes medication for his migraine headaches, epilepsy, and pain. T.58. Plaintiff's migraine headaches and epilepsy are discussed further,
Vocational Expert Jay Steinbrenner ("the VE") testified that Plaintiff's window manufacturing job was skilled and medium in exertional demands. Plaintiff's part-time light-duty job after his neck injury was skilled and sedentary. T.60-61.
The ALJ presented the VE with a hypothetical individual of the same age as Plaintiff, with the same education and vocational background, and who was limited to sedentary work, but who could not perform overhead reaching with his dominant (right) arm; climb ropes, ladders and/or scaffolds; and who needed to avoid all concentrated exposure to height and hazards. The VE testified that this individual could not perform Plaintiff's past job, but could perform certain unskilled sedentary jobs, such as telephone marketer and telephone surveyor. The VE testified further that if this individual needed to lie down during regular breaks, but not at will, this individual could still perform these jobs. T.61-64.
Title 42 U.S.C., Section 405(g) directs the Court to accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
However, "[b]efore the insulation of the substantial evidence test comes into play, it must first be determined that the facts of a particular case have been evaluated in light of correct legal standards."
The ALJ followed the required five-step analysis,
Plaintiff argues that the ALJ erred in concluding that Plaintiff's impairments do not meet or equal the listed impairment for spinal disorders as set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A).
At step three, the burden of establishing that a condition meets or equals one of the listed impairments rests with the claimant.
Listing 1.04(A) provides, in relevant part, as follows:
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A). Thus, a disability under Listing 1.04(A) requires an image of a herniated nucleus pulposus (herniated disc), evidence of neuro-anatomic distribution of pain, limited motion, motor loss, sensory loss, and positive straight-leg-raising tests.
Under the regulations, the ALJ's determination as to whether the claimant's impairment meets or equals the Listings must reflect a comparison of the symptoms, signs, and laboratory findings about the impairment, as shown in the medical evidence, with the medical criteria as shown with the listed impairment.
Failure to set forth a "specific rationale" does not dictate remand in all cases, such as where the ALJ's disability determination can be "reasonably inferred" based on "substantial evidence" contained elsewhere in the opinion.
First, the ALJ failed to support his step-three conclusions with a "specific rationale[,]"
Second, unlike in
In addition, as described
On remand, the ALJ should explain his reasons for finding that Plaintiff does not meet or equal Listing 1.04(A) and should do so with sufficient specificity to allow a court to meaningfully review such justification.
Plaintiff's second argument is principally focused on the ALJ's failure to address, at step two, whether his epilepsy and migraine headaches were severe impairments.
The Commissioner is required to "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity" to establish eligibility for Social Security benefits. 20 C.F.R. §§ 404.1523; 416.923. If the Commissioner "do[es] find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process."
The ALJ found that "there are [sic] no objective evidence [Plaintiff] has a seizure disorder." T.23. This statement is erroneous and is plainly contradicted by the medical record. For instance, in the diagnosis section of her report, consultative examiner Dr. Kelley referenced a "seizure disorder" based on Plaintiff's history of epileptic seizures since childhood. T.435. Neurologist Dr. Battaglia diagnosed Plaintiff with epilepsy, which is clearly recognized as "a type of seizure disorder."
Not only did the ALJ err in concluding that Plaintiff did not suffer from a seizure disorder, he erred in ignoring Plaintiff's history of migraine headaches in formulating his list of Plaintiff's "severe" impairments. As consultative examiner Dr. Kelley observed, Plaintiff suffers from "headaches and associated migraines" which are intertwined with his epilepsy/seizure disorder. T.435. Plaintiff testified that he has chronic headaches approximately 20 to 30 times per month, and that these headaches transform into migraines 2 to 15 times per month. T.47. Plaintiff's "bad" headaches, which cause photosensitivity, occur approximately 10 times per month. T.48. Plaintiff's epileptic seizures, which occur in clusters ranging from 30 seconds to 5 minutes in duration, sometimes combine with a severe headache. The resultant symptoms can last for several days. T.53-54. The seizures that last approximately 5 minutes cause debilitating after-effects, and the post-seizure symptoms can last for a 5- to 8-day period. According to Plaintiff, the seizures are sometimes so severe that he does not leave the house. T.54. Plaintiff believes his inability to sleep through the night due to chronic pain increases his stress level which increases the frequency of his seizures. T.53. Plaintiff testified that his previous employer made accommodations for him when he suffered from epileptic seizures and related symptoms by,
Where, as here, an ALJ misreads a critical piece of evidence in the record, and then relies on his error in reaching his opinion, the decision cannot be said to be supported by "substantial evidence."
Courts in this Circuit have generally remanded for a renewed severity determination when an ALJ has made an error at step two.
On remand, prior to conducting a renewed severity determination the ALJ shall re-contact Plaintiff's neurologist, Dr. Battaglia, and request a functional assessment report. Dr. Battaglia's report should also include an evaluation of the side effects, if any, caused by Plaintiff's various medications. This information should prove useful in re-assessing Plaintiff's RFC.
Plaintiff argues that the ALJ failed to properly evaluate his credibility. In particular, Plaintiff claims, the ALJ ignored the objective medical evidence substantiating his subjective complaints of pain (e.g., EMG evidence of radiculopathy and bilateral medial nerve compression) and failed to consider the limiting effects of Plaintiff's seizure disorder and migraine headaches. The Court has already determined sufficient bases exist for ordering the matter remanded. However, the Court will briefly address Plaintiff's contentions so that further errors can be avoided on remand.
The ALJ here found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that his statements concerning the symptoms' intensity, persistence and limiting effects were only "partially consistent with the record." T.23. In particular, the ALJ noted that the record did not support Plaintiff's claim of frequency of of seizures because treatment notes from his primary care physician, Dr. Hughes, from November 2008, to November 2009, "indicated he denied any seizures and headaches."
"Because the ALJ's adverse credibility finding, which was crucial to his rejection of [the claimant's] claim, was based on a misreading of the evidence, it did not comply with the ALJ's obligation to consider `all of the relevant medical and other evidence,' 20 C.F.R. § 404.1545(a)(3), and cannot stand."
For the foregoing reasons, this Court finds that the Commissioner's denial of DIB and SSI was erroneous as a matter of law and not based on substantial evidence. Plaintiff's motion (Dkt. No. 9) for judgment on the pleadings is granted to the extent that the Commissioner's decision is reversed and the matter is remanded for further administrative proceedings consistent with this Decision and Order. The Commissioner's cross-motion for judgment on the pleadings (Dkt. No. 13) is denied.