WILLIAM L. STANDISH, District Judge.
Plaintiff, Leah K. Henderson, seeks judicial review of a decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("the Commissioner"), denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f.
Plaintiff filed an application for SSI on April 25, 2007, alleging disability since February 1, 2003 due to bipolar disorder, depression, panic attacks, post — traumatic stress disorder, migraine headaches and lupus.
On September 23, 2009, ALJ Alma Deleon issued a decision denying Plaintiff's application for SSI based on a determination that, despite severe impairments of bipolar disorder and myalgia, Plaintiff retained the residual functional capacity ("RFC") to perform work existing in significant numbers in the national economy.
(R. 143-46, 164-65).
Plaintiff's disability hearing following remand was held on October 27, 2010 before ALJ George A. Mills, III. Plaintiff, who was represented by counsel, and another VE testified at the hearing. (R. 52-98). On December 23, 2010, ALJ Mills issued a decision denying Plaintiff's application for SSI based on his conclusion that Plaintiff was capable of performing past relevant work. (R. 9-25). Plaintiff filed a request for review of ALJ Mills' adverse decision; however, the request was denied by the Appeals Council on May 20, 2011. (R. 3-5). Thus, ALJ Mills' decision became the final decision of the Commissioner. This appeal followed.
Plaintiff's testimony during the hearing before ALJ Mills on remand by the Appeals Council may be summarized as follows:
Plaintiff was born on March 24, 1972.
In the past, Plaintiff has been employed by a retail clothing store (holiday season
In 2007, following the development of numbness in Plaintiff's hands and feet which eventually evolved into paralysis, she was diagnosed with a Chiari malformation, a birth defect,
Plaintiff has suffered from migraine headaches since she was 6 years old. On average, Plaintiff gets migraine headaches twice a week that incapacitate her for the entire day.
Plaintiff also suffers from severe depression. Dr. Steven Brown, who had been Plaintiff's primary care physician ("PCP") for 17 years at the time of the hearing
With respect to physical abilities, on level ground, Plaintiff can walk 50 feet before she gets tired; she can stand for 15 minutes at a time and sit for 15 to 20 minutes at a time; she gets lightheaded when she bends forward; she drops things due to problems with her hands and arms; and she limits lifting to objects weighing less than 5 pounds. Temperature extremes exacerbate the pain in Plaintiff's joints from the RA. (R. 79-80).
As to activities of daily living, Plaintiff is able to take care of her personal hygiene without assistance. With regard to cooking, Plaintiff does the prep work while her fiance does any heavy lifting, such as putting the food in the oven. He also does the dishes. (R. 84). Plaintiff has a driver's license. However, she limits her driving to trips that are no more than 10 to 15 minutes from her home. (R. 62).
On a typical day, Plaintiff rises between 9:00 and 10:00 a.m., takes a pain pill and eats breakfast. She then takes a nap for an hour or so.
Plaintiff was a snow skier; she rode horses and a motorcycle with her fiance; and she participated in ballroom dancing. Since her surgery to correct the Chiari malformation, Plaintiff can no longer engage in these activities. Plaintiff does accompany her fiance when he goes fishing, but she cannot cast a rod. Plaintiff and her fiance belong to a church and attend 45-minute services on Sundays. However, they sit in the back of the church to enable Plaintiff to stand as needed without disrupting the service. (R. 86-87).
During the remand hearing, the VE classified Plaintiff's past work as follows: retail clerk — light and unskilled;
ALJ Mills asked the VE to assume a hypothetical person of Plaintiff's age, education and work experience who can perform light work with the following restrictions:
If, in addition to the limitations set forth in ALJ Mills' first hypothetical question, the hypothetical person was limited to unskilled work, the VE testified that Plaintiff's past job as a telephone customer service representative would be eliminated. However, the hypothetical person could still perform Plaintiff's past job as a retail clerk. The VE further testified that his answer would not change if, in addition, the hypothetical person was limited to work that did not involve a rapid production pace or production quotas because the job of a retail clerk does not require either. (R. 93-94).
If, in addition to all of the foregoing limitations, the hypothetical person's impairments affected her concentration, resulted in her being off task one-third of an 8-hour workday, and caused her to be absent from work more than 2 days a month, the VE testified that there would be no jobs the hypothetical person could perform. (R. 95-96).
Plaintiff's counsel asked the VE one question; that is, whether the hypothetical person could perform any job if she also lost consciousness up to two times a month. Again, the VE testified that there would be no jobs the hypothetical person could perform. (R. 96).
On December 29, 2003, Plaintiff presented to Western Psychiatric Institute and Clinic ("WPIC") stating; "I'm depressed and want to kill myself." Plaintiff reported that she had been feeling depressed and hearing voices and apparently became suicidal when she did not receive a response to a letter she wrote to her parents concerning sexual abuse by her uncle and others during childhood. Plaintiff reported that she was unemployed and living with her husband and 10-year old son, and that her mother had custody of her 17-year old daughter due to accusations of child abuse. Plaintiff was admitted to WPIC for evaluation and treatment. At the time of discharge on January 2, 2004, Plaintiff's mood was significantly improved and she denied suicidal ideation and auditory hallucinations. Plaintiff's diagnoses included adjustment disorder with depression, psychotic disorder and rule out borderline personality disorder, as well as migraine headaches. Plaintiff's score on the Global Assessment of Functioning ("GAF") Scale was rated a 60,
On July 8, 2004, an MRI of Plaintiff's brain was performed due to complaints of numbness and tingling in all extremities with blurred vision and total body pain. The MRI showed a signal abnormality on the anterolateral aspect of Plaintiff's right thalamus with no abnormal enhancement. Otherwise, the MRI was unremarkable. (R. 273).
On March 11, 2005, Plaintiff was evaluated by Dr. Leslie Tar, a rheumatologist, for fibromyalgia based on a referral by Dr. Brown, Plaintiff's PCP. Dr. Tar noted that Plaintiff was taking Baclofen and Nortriptyline and reported significant improvement.
On May 24, 2005, Plaintiff presented to the Emergency Department of Jefferson Regional Medical Center for pain control of a migraine headache. Plaintiff reported a migraine headache of two days' duration with nausea, but no vomiting. Plaintiff was treated with several medications. At the time of discharge, she was described as "much improved" and instructed to followup with her PCP. (R. 285-95).
On December 6, 2005, Plaintiff was seen by Dr. Brown for complaints of worsening migraine headaches and a rash on her right index finger. Dr. Brown increased Plaintiff's dosage of Topamax and prescribed medication for the rash. (R. 314-15).
On March 31, 2006, at her request, Plaintiff was discharged from outpatient mental health treatment at FamilyLinks, Inc. because she was "doing very well and ... did not need to come in for treatment anymore."
On March 27, 2007, Plaintiff was seen by Dr. Brown for completion of a Health-Sustaining Medication Assessment Form from the Pennsylvania Department of Public Welfare ("PA DPW Form"). In the record of the office visit, Dr. Brown noted that Plaintiff suffers from depression, bipolar disorder, fibromyalgia and migraine headaches; Plaintiff had not taken her medications during the previous year due to the loss of health insurance; Plaintiff was anxious for a refill of Topamax to stabilize her mood and control her migraine headaches; and Plaintiff thought she would be fine without a refill of her anti-depressant medication. In the PA DPW Form, Dr. Brown indicated Plaintiff needed health-sustaining medications and was disabled from employment for 6 months, i.e., from March 27, 2007 to September 27, 2007. (R. 308-10).
Plaintiff was treated by Dr. Brown on May 22, 2007 for sinusitis. A week later, Plaintiff called Dr. Brown's office for an increase in her Topamax for continuing migraine headaches. (R. 306-07).
On June 20, 2007, Plaintiff was seen by Dr. Brown for complaints of numbness in her hands and feet of several weeks' duration. Dr. Brown noted that this type of numbness is a well-known side effect of Topamax, but that Plaintiff had taken very high doses of the medication in the past without this side effect. Dr. Brown's assessment included: "1) Paresthesia lower extremities suspect secondary to Topamax. 2) Migraine headaches improved nicely. 3) Weight loss secondary to Topamax. 4) Anxiety regarding dental procedure." Plaintiff was given a prescription for blood work and anti-anxiety medication to take prior to her upcoming dental procedure. (R. 305).
Plaintiff's next follow-up visit with Dr. Brown took place on July 23, 2007. Plaintiff reported that she was "currently fairly physically active," but that she suffered from 1 or 2 migraine headaches a week with vomiting and the need to retreat to a dark room. Dr. Brown increased Plaintiff's dosage of Topamax; prescribed lab work; and referred her for a rheumatology consult. (R. 304).
On September 14, 2007, Plaintiff was seen by Dr. Brown for complaints of numbness in her feet. Dr. Brown noted that previous numbness in Plaintiff's hands and feet had resolved but recurred in her lower extremities following a back injury. Dr. Brown also noted that Plaintiff's migraine headaches were stable. The diagnoses were lower extremity paresthesias, lumbar strain/sprain and fibromyalgia. Dr. Brown prescribed Flexeril for Plaintiff.
Plaintiff did not show for consultative psychological disability examinations scheduled with Lanny Detore, E.D.D., a counselor, on August 15, 2007, October 17, 2007 and November 14, 2007.
During an office visit with Dr. Brown on April 18, 2008, Plaintiff reported numbness and weakness in her hands of one month duration which was causing her to drop things. She also reported an increase in anger. Dr. Brown diagnosed Plaintiff with anxiety and depression and prescribed Celexa for her.
On May 14, 2008, an electrodiagnostic evaluation of Plaintiff was performed by Dr. Mary Ann Miknevich. Plaintiff reported a 6-month history of daily, intermittent numbness in her hands and difficulty holding objects. The symptoms initially started in her left hand and progressed to her right hand and feet. EMG and nerve conduction testing of both upper extremities was "essentially unremarkable." Dr. Miknevich noted that Plaintiff's symptoms were of relatively recent onset, and recommended repeat electrical testing at a future date if the symptoms increased in intensity or frequency. (R. 367-70).
During Plaintiff's next office visit with Dr. Brown on June 6, 2008, she reported numbness in her legs and feet, excessive sleepiness and a dry cough. Dr. Brown ordered an MRI of Plaintiff's cervical spine. (R. 366).
In a medical record dated October 9, 2008, Dr. Brown noted that Plaintiff's severe migraine headaches were controlled with a high dose of Topamax and the occasional use of Maxalt; Plaintiff's bipolar disorder was treated with Celexa; Flexeril was prescribed for Plaintiff's fibromyalgia and she was being followed by a rheumatologist; a recent MRI revealed that Plaintiff had a Chiari malformation; a neurologist who evaluated Plaintiff did not believe the Chiari malformation was causing any issues and recommended that treatment be limited to Plaintiff's migraine headaches; since the neurology consultation, Plaintiff had developed a new symptom of intermittent occipital stabbing pain that occasionally extended to the temporal area lasting a few minutes to an hour; the new pain was entirely different from the pain Plaintiff experienced during a migraine headache; and Plaintiff's fiance had witnessed several brief episodes of syncope (fainting). Based on the foregoing, Dr. Brown indicated that Plaintiff would be referred for a neurosurgical evaluation as soon as possible. (R. 365).
On October 29, 2008, Plaintiff was evaluated by Dr. David Kaufmann, a neurosurgeon, in connection with her 6-month history of neck pain, headaches and intermittent numbness and tingling in her upper and lower extremities. Plaintiff reported that her present neck pain and headaches, which she described as "severe, stabbing pain in the occipitocervical area ... that tends to come on spontaneously," were "quite distinct" from the migraine headaches she suffered from since
Plaintiff was admitted to UPMC Mercy Hospital on November 18, 2008 for a suboccipital decompressive craniotomy and patch for the Chiari malformation. She was discharged on November 23, 2008 with medication for pain management and instructions to follow-up with Dr. Brown in a week.
In a letter to Dr. Brown dated January 14, 2009, Dr. Kaufmann reported that he had seen Plaintiff for a follow-up visit that day. Plaintiff reported that the severe, debilitating headaches she was having before the surgery had completely resolved. She continued, however, to get the migraine headaches she had been having for 30 years. The numbness and tingling in Plaintiff's upper extremities were also resolved by the surgery. Plaintiff reported that "for the most part," she was able to perform all daily activities and had stopped taking pain medication. Dr. Kaufman prescribed a course of physical therapy ("PT") to improve the range of motion in Plaintiff's neck. Plaintiff informed Dr. Kaufmann that she was applying for disability benefits and needed papers filled out. Due to his unfamiliarity with disability qualification, Dr. Kaufmann indicated that he was referring Plaintiff for a functional capacity evaluation ("FCE"). (R. 355-56).
Plaintiff's FCE was performed at Valley Outpatient Rehabilitation on January 27, 2009. The evaluator concluded that Plaintiff was capable of sustaining work at the light level on a full-time basis, i.e., 8 hours a day/5 days a week.
Plaintiff was seen by Dr. Brown on February 5, 2009 to follow-up on her recent surgery. Dr. Brown noted that 3 months had passed since Plaintiff's surgery to correct the Chiari malformation, and that she was "recovering nicely." Plaintiff reported that the constant numbness in her upper extremities was much better; her migraine headaches had returned to their previous level of severity; but she had daily severe myofascial pain from the fibromyalgia. Dr. Brown indicated that he wanted Plaintiff to be evaluated by a rheumatologist. (R. 364).
During Plaintiff's next follow-up visit with Dr. Kaufmann on February 25, 2009, Plaintiff continued to deny weakness, numbness or paresthesias in her upper or lower extremities or problems with gait or balance. Plaintiff did, however, have an incident earlier that week during which her level of consciousness was altered spontaneously; specifically, she experienced some alternating eye movements, failed to respond to stimuli and her hands trembled. Plaintiff could not recall the incident which had been witnessed by her fiance. Dr. Kaufmann did not believe that Plaintiff's recent incident and continuing migraine headaches were related to the Chiari malformation or the corrective surgery,
Plaintiff returned to Dr. Brown on March 20, 2009 with complaints of fibromyalgia pain. Plaintiff reported that the pain, which was the worst she could remember, interrupted her sleep, precluded her from reaching her arms up to fix her hair and affected her overall activity level. Dr. Brown noted that Plaintiff was tearful which was "unusual for her." Pain medication was prescribed for Plaintiff. (R. 363).
During a mental health evaluation at FamilyLinks, Inc. on March 31, 2009, Plaintiff reported that "she was struggling with depression, anxiety, anger and thoughts of suicide."
On July 9, 2009, Plaintiff was seen by Dr. Brown for a check-up. Plaintiff indicated that her headaches were "mostly stable," but she complained of diffuse myalgias secondary to fibromyalgia and recent numbness in her upper and lower extremities. Plaintiff reported that she was seeing a therapist on a regular basis, and she was awaiting an appointment with a psychiatrist. Dr. Brown indicated that Plaintiff would be referred to a neurosurgeon for her sensory symptoms. (R. 408).
On July 29, 2009, Plaintiff was evaluated by Dr. Mary Ann Eppinger, a staff psychiatrist at FamilyLinks, Inc. Plaintiff reported mood swings since she was a teenager and anxiety and depression for 6 years. Plaintiff's symptoms included irritability, decreased energy, interrupted sleep and poor concentration, and she expressed the desire for medication that stabilized her mood but did not make her a "zombie." With regard to Plaintiff's mental status examination, Dr. Eppinger noted that Plaintiff was well groomed; her motor behavior, speech, affect, mood, attention span and appetite were normal; her thoughts were logical; she maintained eye contact and was cooperative; her impulse control and intelligence were average; her level of anxiety was low; she denied hallucinations or suicidal/homicidal potential; her judgment and insight were fair; she was oriented to time, place and person; her recent and remote memory were intact; she recently had been using marijuana on a daily basis for pain control; and her motivation for treatment was good. Dr. Eppinger rated Plaintiff's score on the GAF scale a 55, and her treatment recommendations were medication and outpatient therapy. (R. 380-83).
During a follow-up visit with Dr. Brown on August 29, 2009, Plaintiff was "really upset and discouraged" about the severity of her pain, noting that it was much worse than it had been a couple of years ago. Plaintiff reported that since the surgery to correct the Chiari malformation, her fibromyalgia symptoms had become more prominent. Dr. Brown noted that Plaintiff had tried a lot of medications to control
In connection with an office visit on November 3, 2009, Dr. Brown noted that Plaintiff presented with a "constellation" of continued neurologic symptoms. Plaintiff complained of numbness in her hands and feet, arm weakness, occasional spots in her vision, a reduction in tears, and constant head pain radiating into her shoulders, upper arms and neck. Dr. Brown noted that Plaintiff was "fairly distressed;" she had been taking hydrocodone (an opiate (narcotic) analgesic) with "essentially no relief;" she was trying to stay active and be productive; but she could not do anything on a consistent basis. Dr. Brown recommended an eye examination and prescribed Dilaudid for Plaintiff to take until her upcoming pain management evaluation.
On November 6, 2009, Plaintiff was evaluated for pain management by Dr. Zheng Wang at the Jefferson Pain and Rehabilitation Center. Plaintiff reported chronic pain in the neck, shoulders, hips, elbows and knees, and a medical history of fibromyalgia, RA and Chiari malformation. On a scale of 0 (no pain) to 10 (excruciating pain), Plaintiff rated her pain level a 10 at that time. Plaintiff reported that her sitting, standing and walking tolerances were moderately compromised due to joint pain. Plaintiff's physical examination revealed a mildly reduced ROM in her cervical spine; increasing pain in her neck with cervical ROM; tenderness over her well-healed surgical neck scar; tenderness and spasm in her bilateral cervical paraspinal muscles; normal bilateral shoulder ROM; normal sensation and motor strength in both upper extremities; some rheumatoid nodules in her left wrist; normal lumbar ROM and negative straight leg test; good bilateral hip ROM and stability; normal sensation and motor strength in both lower extremities; and normal deep tendon reflexes in her upper and lower extremities. Dr. Wang's impression included: 1. Chronic neck pain status post cervical surgery for Chiari deformity, 2. Fibromyalgia, and 3. RA involving shoulder, elbow, hip and knee joints. Plaintiff signed a narcotic contract with the facility and provided a urine sample for a toxicology screen. If the screen was negative, Dr. Wang indicated that he would prescribe Opana for pain control and Vicodin extra strength for breakthrough pain.
(R. 409).
Based on a referral by Dr. Brown, Plaintiff was evaluated by Dr. Edward Mistier, a neurologist, on December 4, 2009 for left-sided weakness and numbness of 3 months' duration. With regard to Plaintiff's physical examination, Dr. Mistier noted that she was awake, alert and oriented; her speech was clear and fluent; her memory, concentration and fund of knowledge were good; her cranial nerves were intact; her motor strength in the upper and lower extremities was "fairly good;" she had giveaway weakness of the shoulders and left thigh; her hand rolling and finger tapping were normal; she had good finger-to-nose testing; her sensation was completely absent on the left side of her body to pinprick and vibration; her reflexes were symmetric; her toes were downgoing; and her gait was odd. Dr. Mistier described his impression as numbness and weakness on the left side of Plaintiff's body of unknown etiology. Dr. Mistier indicated that he was going to review Plaintiff's recent MRIs of the brain and cervical spine, as well as the MRIs performed prior to and following Plaintiff's neck surgery by Dr. Kaufmann, and he was going to check an EMG/nerve conduction study to look for nerve damage. (R. 405).
On March 10, 2010, Plaintiff returned to Dr. Kaufmann. Plaintiff reported that she had been doing reasonably well after her neck surgery in November 2008 until the previous November when she experienced numbness on both sides of her face and the left side of her body; a neurologist advised her to go to the Emergency Room of Jefferson Hospital where she was admitted for several days; an MRI of her brain did not reveal any abnormalities; the neurologist rendered the opinion that Plaintiff was suffering from complex migraine headaches; a few days after her discharge from the hospital, her numbness improved significantly; the severity of her headaches, however, worsened and she developed some left-sided weakness for which PT was prescribed; and several weeks before this office visit, she developed numbness and tingling in her right hand and foot. Dr. Kaufmann's physical examination of Plaintiff showed that she was alert and appeared comfortable. Plaintiff's incision was well-healed, and her cranial nerves were intact. Plaintiff's motor testing revealed full 5/5 strength in all muscle groups of the upper and lower extremities, although Plaintiff appeared to have some breakaway weakness on the left side (4+ to 5-/5). Plaintiff's sensation to light touch on the right side was intact, but she had patchy areas of numbness on the left side. Plaintiff was independently ambulatory with a normal gait. Dr. Kaufmann ordered an MRI of Plaintiff's brain and cervical spine. (R. 392-93).
The impression of the MRIs of Plaintiff's brain and cervical spine, which were performed on March 31, 2010, were described as follows:
(R. 388-91).
Plaintiff returned to Dr. Kaufmann on April 14, 2010. Plaintiff reported that she continued to have severe headaches which she described as consistent with her history of migraine headaches. Plaintiff did not report any new weakness or numbness, but she continued to complain of the numbness she had at the time of her prior visit. Dr. Kaufmann noted that Plaintiff's MRIs looked "quite good from a surgical point of view, with no evidence of any recurrence of the Chiari malformation...." Dr. Kaufmann agreed with the opinion of Plaintiff's neurologist that her symptoms were most consistent with complex migraine headaches. Dr. Kaufman did not feel that Plaintiff would benefit from further surgery and that the best course of action was to have Plaintiff follow-up with her neurologist. (R. 386-87).
Plaintiff was seen by Dr. Brown on June 11, 2010 for complaints of migraine headaches occurring 3 to 4 times a month, fatigue and constipation. Plaintiff reported that her migraine headaches had worsened since she changed to the generic version of Topamax. Dr. Brown's impression included worsening migraine headaches, chronic numbness and weakness in the upper and lower extremities and opiate-induced constipation. (R. 404).
On June 18, 2010, Plaintiff was seen by Dr. Wang for continued complaints of neck, bilateral shoulder and thoracic pain. She rated her pain that day a 7 and indicated the pain was constant. Plaintiff reported that the medications and injections enabled her to be more active, and that her sitting, standing and walking tolerances had increased to 60 minutes, 30 minutes and 30 minutes, respectively. Noting that Plaintiff was making progress, Dr. Wang administered facet injections at the levels of bilateral C6 and a trigger point injection in the thoracic spine. Plaintiff tolerated the injections well and she was instructed to return in 4 weeks. (R. 400-01). During her next visit with Dr. Wang on July 16, 2010, Plaintiff continued to complain of constant neck, thoracic and low back pain, rating her pain level a 7. (R. 398-99).
On October 22, 2010, Dr. Brown completed a Medical Statement Regarding Social Security Disability Claim in connection with Plaintiff's application for SSI. Dr. Brown identified Plaintiff's diagnoses as migraine headaches and fibromyalgia noting that she suffers from numbness and weakness in her upper and lower extremities. He also noted her history of depression. Dr. Brown indicated that Plaintiff's treatment included pain management by injections, PT, opiate analgesics, anti-inflammatory medications and muscle relaxants, Topamax for prevention of migraine headaches and Maxalt for acute migraine headache attacks. As to work capacity, Dr. Brown rendered the opinion that Plaintiff had none. (R. 394).
In a Medical Source Statement of Claimant's Ability to Perform Work-Related Physical Activities completed the same day, Dr. Brown rendered the following opinions: (1) Plaintiff had no ability to lift and carry objects; (2) Plaintiff could stand/walk less than 2 hours in an 8-hour workday; (3) Plaintiff could sit less than 6 hours in an 8-hour workday; (4) Plaintiff experiences fatigue and requires rest periods during the day; (5) Plaintiff's pain is severe; (6) Plaintiff should never engage in the following postural activities: climbing, balancing, stooping, kneeling, crouching
In order to establish a disability under the Social Security Act, a claimant must demonstrate an inability to engage in any substantial gainful activity due to a 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. See 42 U.S.C. § 423(d)(1). A claimant is considered unable to engage in any substantial gainful activity only if her physical or mental impairment or impairments are of such severity that she is not only unable to do her previous work but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See 42 U.S.C. § 423(d)(2)(A).
When presented with a claim for disability benefits, an ALJ must follow a sequential evaluation process. See 20 C.F.R. § 416.920(a)(4). The process was described by the Supreme Court in Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), as follows:
493 U.S. at 525-26, 110 S.Ct. 885.
The claimant bears the burden of establishing steps one through four of the sequential evaluation process for making disability determinations. At step five, the burden shifts to the Commissioner to consider "vocational factors" (the claimant's age, education and past work experience) and determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy
With respect to ALJ Mills' application of the sequential evaluation process in the present case, steps one and two were resolved in Plaintiff's favor: that is, ALJ Mills found that Plaintiff had not engaged in substantial gainful activity since April 25, 2007, the date she filed her application for SSI, and the medical evidence established that Plaintiff suffers from the following severe impairments: status-post suboccipital decompressive craniotomy for Chiari malformation, history of headaches due to migraines and Chiari malformation, fibromyalgia, RA of the shoulders, hips, elbows and knees, history of bipolar disorder, anxiety disorder, cannibas abuse and adjustment disorder. (R. 11).
Turning to step three, ALJ Mills found that Plaintiff's impairments were not sufficiently severe to meet or equal the requirements of any impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1, and, in particular, Listing 11.08 relating to spinal cord or nerve root lesions, Listing 14.09 relating to inflammatory arthritis, and Listings 12.04, 12.06 and 12.09 relating to affective disorders, anxiety-related disorders and substance addiction disorders, respectively. (R. 11-14).
Before proceeding to step four, ALJ Mills assessed Plaintiff's RFC, concluding she retained the RFC to perform light work with the following limitations: (1) she cannot climb ladders, ropes or scaffolding, (2) she can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, and (3) she cannot work in environments with temperature extremes, vibrations, fumes, dust, odors, pollutants and hazards. In addition, Plaintiff is limited to performing unskilled, routine, repetitive work, and she is unable to perform rapid production work or work requiring quotas. (R. 14-24).
At step four, in accordance with the VE's testimony, ALJ Mills concluded that Plaintiff was capable of performing her past work as a retail clerk. Thus, Plaintiff had failed to establish that she was disabled and the sequential evaluation process ended without the need to address step five. (R. 17).
The Court's review of the Commissioner's decision is limited to determining whether the decision is supported by substantial evidence, which has been described as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). It consists of something more than a mere scintilla, but something less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.1979). Even if the Court would have decided the case differently, it must accord deference to the Commissioner and affirm the findings and decision if supported by substantial evidence. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.1986).
Plaintiff challenges ALJ Mills' assessment of her RFC on two grounds. First, Plaintiff asserts the ALJ erred by rejecting the opinion of Dr. Brown concerning the physical limitations caused by her pain. (Docket No. 11, pp. 5-9). Second, Plaintiff asserts the ALJ erred by finding that her subjective complaints of pain were not entirely credible.
Like the present case, in Lintz v. Astrue, Civil Action No. 08-424, 2009 WL 1310646 (W.D.Pa. May 11, 2009), the claimant's alleged disabling impairments included a diagnosis of fibromyalgia;
2009 WL 1310646, at *7.
See also Perl v. Barnhart, Civil Action No. 03-4580, 2005 WL 579879 (E.D.Pa. Mar. 10, 2005) ("This presumption of deference to the testimony of a claimant and the reports of his treating doctors, barring contrary evidence, is particularly significant when the alleged disability concerns a diagnosis of fibromyalgia.").
At the time of the hearing before ALJ Mills, Dr. Brown had been Plaintiff's PCP for 17 years, and the administrative record establishes that Dr. Brown treated Plaintiff for fibromyalgia and migraine headaches on a regular basis during the relevant time period. As noted previously, in the medical source statement completed shortly before the remand hearing, Dr. Brown, opined, among other things, that due to severe pain from fibromyalgia and migraine headaches; (1) Plaintiff has no ability to lift and carry objects, and (2) Plaintiff cannot stand, walk and sit for a total of 8 hours during an 8-hour workday. If accepted, the foregoing opinions dictate a finding that Plaintiff cannot engage in substantial gainful activity because (a) even sedentary work (the lowest exertion level of work recognized in the Social Security Regulations) requires an ability to lift and carry items such as docket files, ledgers and small tools, and (b) all exertion levels of work require the ability to work on a "regular and continuing basis" which means 8 hours a day/5 days a week. ALJ Mills, however, determined that Dr. Brown's assessment of Plaintiff's physical RFC was not entitled to "significant weight." (R. 19). After consideration, the Court concludes that ALJ Mills' proffered reasons for rejecting Dr. Brown's opinion were improper.
In a letter to Dr. Brown dated February 25, 2009, Dr. Kaufmann, the neurosurgeon who performed the surgery to correct Plaintiff's Chiari malformation in November 2008, stated: "In terms of her disability application, she is going to discuss the issue with you, but it does seem that from the number of different problems that she has that she would have difficulty with full time physically strenuous work." (R. 353). ALJ Mills' initial reason for rejecting Dr. Brown's opinion of Plaintiff's physical RFC is the foregoing statement of Dr. Kaufmann. According to ALJ Mills, Dr. Brown's "opinion is not consistent with the finding of Dr. Kaufmann, a specialist in neurology, that the claimant was unable to do only `strenuous' work." (R. 19). While ALJ Mills' interpretation of Dr. Kaufmann's statement may be reasonable, the precise meaning of
ALJ Mills also rejected Dr. Brown's opinion of Plaintiff's physical RFC because it "is not supported by the objective medical signs and findings set forth in his progress notes and in the records of the claimant's other treating and examining physicians." (R. 19). For the reasons noted by the district court in Lintz, supra, it is error for an ALJ to rely on the lack of objective evidence to reject a treating physician's opinion in a disability case involving a diagnosis of fibromyalgia due to the nature of the disease.
According to ALJ Mills, "[t]he only physical findings noted by Dr. Brown were numerous fibromyalgia trigger (sic)
In sum, ALJ Mills erred by failing to address the unique circumstances presented by a claimant alleging disability based on a diagnosis of fibromyalgia. See Aidinovski v. Apfel, 27 F.Supp.2d 1097, 1103 (N.D.Ill.1998) ("ALJ Holtz did not acknowledge even once that the disease raises uniquely challenging issues for a disability determination because the objective evidence in a fibromyalgia case generally
ALJ Mills also rejected Dr. Brown's opinion regarding Plaintiff's physical RFC based on the report of the FCE that was performed in January 2009. (R. 376-79). Simply put, the conclusion of an evaluator whose qualifications are unknown that Plaintiff retained the RFC to perform light work following a 2-hour, 45-minute test does not constitute substantial evidence supporting the rejection of the opinion of a 17-year treating physician that is well supported by evidence in the administrative record.
ALJ Mills also rejected Dr. Brown's opinion that Plaintiff has difficulty with reaching, handling and dexterity because it allegedly is not supported by objective findings. Again, due to the nature of fibromyalgia, the lack of objective evidence to support this opinion is to be expected. In any event, the record does contain evidence of complaints by Plaintiff and findings by her treating physicians which support this opinion. For example, on March 20, 2009, Plaintiff informed Dr. Brown during an office visit that her fibromyalgia pain was the worst she could remember and precluded her from reaching her arms up to fix her hair (R. 363); on July 9, 2009, Plaintiff complained of numbness in her upper extremities during an office visit with Dr. Brown (R. 408); during an office visit with Dr. Brown on November 3, 2009, Plaintiff complained of numbness in her hands, arm weakness, and constant head pain radiating into her shoulders and upper arms (R. 406); during her evaluation by Dr. Wang for pain management on November 6, 2009, Plaintiff reported chronic pain in her shoulders and elbows, among other areas, and Dr. Wang diagnosed Plaintiff with fibromyalgia and RA involving her shoulders and elbows (R. 402-03); during her evaluation by Dr. Mistier, a neurologist, on December 4, 2009, Plaintiff reported left-sided numbness and weakness of 3 months' duration and her physical examination revealed giveaway weakness in the shoulders (R. 405); Dr. Kaufmann's examination of Plaintiff on March 10, 2010, revealed some breakaway weakness and patchy-areas of numbness on the left side (R. 392-93); during an office visit with Dr. Kaufmann on April 14, 2010, Plaintiff continued to complain of numbness in her upper and lower extremities (R. 386-87); and, following his examination of Plaintiff on June 11, 2010, Dr. Brown's impressions included chronic numbness and weakness in the upper extremities (R. 404).
Finally, ALJ Mills stated "the objective findings do not indicate that the claimant has a condition that is causing severe pain that requires her to be homebound despite medications, as alleged by Dr. Brown." (R. 19). This statement refers to Dr. Brown's notation in the medical source statement that Plaintiff suffers from intermittent migraine headaches, and that, during acute episodes, she is homebound despite preventative medication. (R. 395).
A migraine is a very painful type of headache. People who get migraines often describe the pain as pulsing or throbbing in one area of the head. During migraines, people are very sensitive to light and sound. They may also become nauseated and vomit. www.nlm.nih.gov/medlineplus/migraine.html.
Plaintiff has a well-documented, longstanding history of migraine headaches. She has been prescribed Topamax for years to prevent migraine headaches and Maxalt to take when she gets an acute migraine headache, despite taking the preventative medication. In light of the symptoms of migraine headaches, there is
Pain itself may constitute a disabling impairment, and a claimant's complaints of pain must be seriously considered, even where not fully supported by objective evidence. Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981). ALJ Mills concluded that Plaintiff's subjective complaints were not entirely credible due to the lack of objective findings to support the degree of pain alleged by Plaintiff. As noted with regard to ALJ Mills' improper rejection of Dr. Brown's opinion of Plaintiff's RFC, lack of objective evidence to support a claimant's subjective complaints of pain is not a legitimate basis for an adverse credibility determination in a case involving a diagnosis of fibromyalgia. Plaintiff has been consistently diagnosed by treating physicians with fibromyalgia based on her description of the pain and the presence of tender points, including diagnosis by a rheumatologist who is a specialist in the disease. Therefore, ALJ Mills' first proffered reason for his adverse credibility determination does not constitute substantial evidence supporting such determination.
ALJ Mills also found that evidence of normal grip testing and normal strength testing of Plaintiff's upper and lower extremities during physical examinations undermined her allegations of extremity numbness and weakness. (R. 23). The Court disagrees. First, the Court notes that numbness and tingling are symptoms of fibromyalgia. www.nlm.nih.gov/medlineplus/ency/article/000427.htm. Second, during her physical examination by Dr. Mistier, a neurologist, on December 4, 2009, Plaintiff exhibited giveaway weakness in her shoulders and left thigh and her sensation was completely absent on the left side of her body to pinprick and vibration. (R. 405). Third, decreased muscle strength is not a symptom of fibromyalgia. See Preston v. Sec'y of Health and Human Services, 854 F.2d 815, 820 (6th Cir.1988) ("As noted in the medical journal articles in the record, [fibromyalgia] patients manifest normal muscle strength and neurological reactions and have a full range of motion".).
ALJ Mills' adverse credibility determination also was based on his observation that Plaintiff reported migraine headaches and fibromyalgia pain during an office visit with Dr. Brown in December 2005, but did not seek treatment from Dr. Brown after that visit until March 27, 2007. While this observation is supported by the record, ALJ Mills fails to mention Dr. Brown's notation during the March 27, 2007 office visit that Plaintiff had lost her health insurance a year before this office visit.
With regard to Dr. Brown's treatment records, ALJ Mills also noted the following in support of his adverse credibility determination: (1) Plaintiff was reported to be "well-appearing" during an office visit in June 2007; (2) on September 14, 2007, Plaintiff told Dr. Brown her migraine headaches were stable; and (3) Dr. Brown noted in connection with an office visit on October 9, 2008, that Plaintiff's migraine headaches were controlled with a high dose of Topamax. While these records of Dr. Brown do indeed contain these notations, ALJ Mills erroneously failed to acknowledge numerous other records of Dr. Brown that do not support his adverse credibility determination. See Garfield v. Schweiker, 732 F.2d 605 (7th Cir.1984) (While it is often impracticable and fruitless for every document in claim for social security disability benefits to be discussed separately, ALJ may not select only evidence that favors his ultimate conclusion; his written decision should contain, and his ultimate determination be based upon, all of the relevant evidence in the record).
For example, on May 29, 2007, Plaintiff requested an increase in her dosage of Topamax from Dr. Brown because she continued to have migraine headaches, although not as severe as previously (R. 306); during an office visit on July 23, 2007, Plaintiff reported pain in her arms and legs and migraine headaches once or twice a week which required her to retreat to her room, and Dr. Brown increased Plaintiff's dosage of Topamax and referred her for a rheumatology consult (R. 304); during an office visit on January 15, 2008, Plaintiff informed Dr. Brown that her migraine headaches had increased the last 2 months to 1 or 2 a week and her dosage of Topamax was increased again (R. 373); during an office visit on April 18, 2008, Plaintiff reported a loss of feeling and weakness in her hands for a month which was causing her to drop objects and Dr. Brown ordered diagnostic tests (R. 371); during an office visit on June 6, 2008, Plaintiff complained of numbness in her legs and feet, as well as excessive sleepiness, and Dr. Brown ordered an MRI of Plaintiff's cervical spine (R. 366); during an office visit on February 5, 2009 following the surgery to correct her Chiari malformation, Plaintiff reported that her headaches had returned to their previous level, but she was suffering from daily severe myofascial pain from her fibromyalgia, and Dr. Brown referred her for another rheumatology consult (R. 364); during an office visit on March 20, 2009, Plaintiff was tearful and continued to complain of severe fibromyalgia pain, including pain in her arms that was preventing her from lifting her arms to fix her hair, and Dr. Brown prescribed Vicodin for Plaintiff (R. 363); although Plaintiff described her migraine headaches as "mostly stable" during an office visit on July 9, 2009, she complained of diffuse myalgias secondary to fibromyalgia (R, 408); during an office visit on August 29, 2009, Plaintiff was "really upset and discouraged" about the severity of her pain, and Dr. Brown noted that Plaintiff, who he described as a "reliable patient," had tried a lot of medications to control her pain without success (R. 407); during an office visit on November 3, 2009, Dr. Brown noted that Plaintiff, who he described as "fairly-distressed," presented with a "constellation" of continued neurologic symptoms, including numbness in her hands and feet, arm weakness, and constant head pain radiating into her shoulders, uppers arms and neck (R. 406); and
ALJ Mills also found that Plaintiff's failure to show up for three scheduled consultative psychological examinations undermines her credibility.
ALJ Mills also found that Plaintiff's credibility is "somewhat" undermined by her inconsistent statements regarding illicit drug use. With regard to the hospital record dated December 29, 2003, Plaintiff reported the use of cocaine and marijuana; she denied any significant drug problem, however, (R. 336). Contrary to ALJ Mills' characterization of these statements, they are not necessarily inconsistent. Plaintiff's statements may be interpreted as meaning that she occasionally used cocaine and marijuana, and she may not consider such occasional use a "significant" drug problem.
As to Plaintiff's statement during a psychiatric evaluation on July 29, 2009 that she had quit smoking marijuana for pain control 6½ weeks before the evaluation (R. 381), and her testimony during the remand hearing on October 27, 2010 that since becoming a born again Christian three years before the hearing she did not smoke marijuana "at all anymore" (R. 75), the Court agrees the statement and testimony are inconsistent. However, this one inconsistency regarding marijuana use does not constitute substantial evidence undermining Plaintiff's credibility regarding her complaints of pain when the record is considered in its entirety.
With respect to ALJ Mills' adverse credibility determination, the Court also notes his failure to address two types of evidence that should have been discussed.
Second, ALJ Mills failed to address the many types of treatment modalities Plaintiff has pursued in an attempt to control the pain from her fibromyalgia and migraine headaches which supports the credibility of her subjective allegations. See Kelley v. Callahan, 133 F.3d 583 (8th Cir. 1998) ("Although a claimant's allegations of disabling pain may also be discredited by evidence that the claimant has received minimum medical treatment and/or has taken only occasional pain medications, such is not the case with Kelley.... Again, the record shows numerous visits to doctors. She testified that she takes many prescription medications. She has availed herself of many pain treatment modalities, including a TENS unit, physical therapy, trigger point injections of cortisone, chiropractic treatments, and nerve blocks. In addition, she has had several surgeries and many diagnostic tests, including X-rays, CT scans, DNA tests, MRIs, and blood tests"); Ward v. Apfel, 65 F.Supp.2d 1208 (D.Kan.1999) ("Plaintiff's desire to seek relief from her pain corroborates her complaints. Plaintiff is taking Lortabs, Ambien, Naproxen, Cyclobenzaprine, and Hydrocodone. She uses a theracane to apply pressure to the knots in her back. She has implemented all the doctor's suggestions, including resting at work, getting a new chair, and rearranging files and her computer. Plaintiff speaks with her doctor once a month, and sets up appointments on an as needed basis when her condition changes.").
As noted in Dr. Brown's medical source statement, Plaintiff takes opiate analgesics, anti-inflammatory medications and muscle relaxants; she has participated in PT; she is treated by a pain management specialist with injections; and she takes Topamax to prevent migraine headaches
ALJ Mills ended the sequential evaluation process at step four based on a determination that Plaintiff retained the RFC to perform her past relevant work as a retail clerk. This determination is flawed.
The ALJ's questions and Plaintiff's responses with respect to her job in the retail clothing store were as follows:
(R. 67).
Clearly, as described by Plaintiff, her job with the retail clothing store was more akin to a stockperson than a retail clerk which may have a significant effect on the classification of the job. On remand, the Commissioner should procure additional VE testimony to reconsider the classification of this job as performed by Plaintiff for purposes of step four of the sequential evaluation process.
In sum, on remand, the ALJ should (a) obtain a consultative physical evaluation of Plaintiff; (b) obtain testimony from a VE regarding the proper classification of Plaintiff's job in the retail clothing store as performed by Plaintiff for purposes of step four of the sequential evaluation process; (c) re-evaluate the medical opinions in the administrative record; and (d) reevaluate the credibility of Plaintiff's allegations of disabling pain utilizing the proper analysis in cases involving a diagnosis of fibromyalgia.
20 C.F.R. § 416.929(c)(3).
