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Daniello v. Colvin

United States District Court, Third Circuit

June 3, 2013



MARY PAT THYNGE, Magistrate Judge.


On February 22, 2013, plaintiff Irene R. Daniello ("plaintiff") filed this action against defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("defendant").[1] Plaintiff seeks judicial review, pursuant to 42 U.S.C. ยง 405(g), of a decision by defendant denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act. Presently before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, the court recommends plaintiff's motion for summary judgment be denied, and that defendant's cross-motion for summary judgment be granted.


A. Procedural History

On July 14, 2006, plaintiff applied for DIB. Plaintiff alleged her disability began July 7, 2006 due to mild scoliosis, herniated discs, and a recent heart attack with stent placement. Her claim was initially denied on July 6, 2007, and upon reconsideration on September 13, 2007. Plaintiff subsequently filed a written request for a hearing on September 18, 2007. A hearing before Administrative Law Judge ("ALJ") Edward J. Banas was conducted on June 26, 2008.[2] Plaintiff, represented by counsel, testified at the hearing. Also appearing and testifying was Diana Sims, an impartial vocational expert, as well as plaintiff's husband and sister. After plaintiff raised previously a undisclosed claim of depression, the ALJ ordered she undergo a psychological exam following the hearing. This consultative examination was conducted by psychologist, Joseph Keyes, Ph.D, on July 25, 2008.[3]

A supplemental hearing was conducted by ALJ Banas on January 8, 2009.[4] During this hearing, impartial medical expert, Hillel Raclaw, Ph.D, testified via telephone. Plaintiff and her husband also testified. Thereafter, plaintiff's attorney submitted written interrogatories for Dr. Keyes to clarify his report, which were answered on February 18, 2009, and the record was closed.[5] On March 27, 2009, the ALJ denied her claims, finding plaintiff was not considered disabled under sections 216(I) and 223(d) of the Social Security Act.[6] The ALJ determined that after consideration of the entire record, plaintiff had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a), except that she occasionally needed to change positions, and is limited to simple, routine work due to pain and depression.[7]

Plaintiff filed a request for review of that decision, which was granted by the Appeals Council on November 23, 2009.[8] The hearing was originally scheduled for August 11, 2010, but did not proceed as plaintiff objected to the medical advisor testifying by phone during the hearing.[9] The hearing before ALJ Banas occurred on November 4, 2010.[10] Present at the hearing were plaintiff and her counsel, Sims, and the medical expert, Dr. Raclaw, who was permitted to testify by telephone over plaintiff's objection.

On December 16, 2010, the ALJ issued a written decision denying plaintiff's application for DIB. Specifically, the ALJ found that while her medically determinable impairments could reasonably produce the alleged symptoms, plaintiff's statements regarding their intensity, persistence and limiting effects were not credible to the extent that they were inconsistent with the residual functioning capacity assessment.[11] As a result, the ALJ held plaintiff was not disabled under sections 216(I) and 223(d) of the Social Security Act.

Plaintiff's subsequent appeal to the Appeals Council was denied on June 12, 2012. Consequently, the December 16, 2010 ALJ decision is the final decision of the Commissioner. Seeking judicial review of this decision, on February 22, 2013, plaintiff moved for summary judgment in the District Court of Delaware. Defendant filed a cross-motion for summary judgment.

B. Plaintiff's Medical History, Condition and Treatment

Plaintiff was thirty-seven years old at the time of the November 4, 2010 hearing. She alleges disability began July 2006, when she was thirty-two years old. She is a high school graduate with prior vocational experience as a waitress, cashier and retail price accuracy team member. Most recently, plaintiff worked part-time at Target through October 2010. Her detailed medical history is contained in the record; however, this recommendation will provide a brief summary of the pertinent evidence. Specifically, the recommendation will address the relevant medical history and evidence regarding plaintiff's physical ability to do work in relation to her heart and back conditions, as well as in regard to her mental state.

1. Plaintiff's Physical Ability to Do Work

a. Plaintiff's Heart Attack and Cardiac Condition

Plaintiff was admitted to the hospital on July 8, 2006[12], complaining of chest pains. Treating physicians concluded she had suffered a myocardial infarction, related to smoking and use of oral contraceptives.[13] A catheterization confirmed coronary artery disease with 90% stenosis of the LAD and a 25% ejection fraction with ischemic cardiomyopathy.[14] Plaintiff underwent a thrombectomy and stenting, and was released after a few days.[15] She returned to work in August 2006, roughly one month after her heart attack.[16] Records from her cardiologist, Dr. Ramos, indicate she underwent cardiac rehabilitation.[17] On November 8, 2006, Dr. Ramos noted plaintiff was "doing very well from the cardiac standpoint."[18] In February 2007, plaintiff told Dr. Ramos that as a result of occasional of chest discomfort while at work, she reduced her work hours and had no further discomfort.[19] Dr. Ramos' notes reflect that by August 2007 plaintiff returned to smoking, despite his repeated warnings to quit.[20]

On January 29, 2008, Dr. Ramos reported plaintiff was doing "pretty well from a cardiac standpoint, " and she could perform her usual activities without difficulty.[21] Dr. Ramos' treatment records show he did not impose any exertional restrictions.[22] Follow-up testing in May 2008 was normal, as the echocardiogram revealed an ejection fraction of 35 to 40%, and a stress test showed no evidence of ischemia. Plaintiff's medical records show normal blood pressure readings. Plaintiff continues to be seen by Dr. Ramos for follow-up care. Most recently, in the May 24, 2010 follow-up visit note, Dr. Ramos stated plaintiff was doing "fairly well from a cardiac standpoint since I last saw her 10 months ago."[23] He noted plaintiff presented at the emergency room with atypical chest pain, which was determined to be non-cardiac related. Although plaintiff continues to smoke, she denied any further chest pain or cardiac symptoms. A stress test was negative for ischemia.[24]

b. Plaintiff's Back Condition

In her records with Social Security, plaintiff advised she has experienced back pain since the birth of her last child in 2005, [25] and has undergone several MRI's and x-rays to determine the source of the pain. A lumbar spine MRI conducted on June 21, 2006 showed degenerative disc disease from L3-L4 through L5-S1, most significantly involving the L5-S1 level with mild disc bulges and spondylotic changes, with a small central disc herniation at L3-4.[26] The MRI also suggested a tear of the annulus fibrosis at L4-5, and a left paracentral disc herniation at L5-S1. On July 3, 2006, pain management and rehabilitative specialist, Irene Mavrakakis, M.D., concluded the MRI indicated probable mild scoliosis, but no neurological changes.[27] A June 29, 2006 lumbosacral spine x-ray showed degenerative disc disease at L5-S1; the results, however, were unremarkable.[28]

Plaintiff's first documented visit to Dr. Mavrakakis occurred on July 3, 2006. Plaintiff told Dr. Mavrakakis that she was "doing well until recently, " and rated her lower back pain seven out of ten on the visual analog scale ("VAS").[29] Dr. Mavrakakis diagnosed chronic lower back and lower extremity pain secondary to lumbar radiculitis, concurrent sacroiliac syndrome, and myofascial pain, with no evidence of weakness, numbness or bowel or bladder dysfunction. Dr. Mavrakakis' progress note, however, indicated "low back pain and left leg pain, " as well as increased "lower extremity pain secondary to lumbar radiculitis, " but also advised plaintiff "denies leg pain."[30] Dr. Mavrakakis continued plaintiff on Celebrex, Darvocet and other medications, and did not prescribe any additional medications. She told plaintiff to continue with home exercises, and avoid exacerbating activities. Also discussed was a possible MRI, and a different work environment. Dr. Mavrakakis offered a surgical evaluation, but plaintiff declined.[31]

A diagnostic imaging report dated May 25, 2007 revealed five lumbar spine films showed normal alignment of the lumbar vertebrae, [32] with the disc spaces well maintained.[33] Subtle left convex scoliosis was evident, with no bony destruction or fracture. A follow-up MRI on June 14, 2007 indicated similar results to the June 2006 MRI, including a small midline L3-4 disc herniation and annular tear, a tiny annular tear and central disc herniation at L4-5, and a L5-S1 bulge which mildly encroached on the left neuroframen.[34]

On July 3, 2007, state agency physician Michael Borek, D.O., completed a physical residual functional capacity ("RFC") assessment of plaintiff.[35] Dr. Borek determined plaintiff was able to occasionally lift up to twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk for a total of six hours in an eight-hour work day, and her ability to push and/or pull was unlimited, other than restrictions for lifting and/or carrying.[36] He felt plaintiff was fairly credible. He concluded her condition was severe, but had not lasted twelve months. As a result, he found plaintiff sufficiently improved to do sedentary work in light of her back problems. He further noted there was limited medical evidence of record ("MER") to establish the severity of back pain.[37]

Dr. Borek's assessment was confirmed in a subsequent medical evaluation by state agency cardiologist, Carl Bancoff, M.D., on September 10, 2007, who found plaintiff could perform a modified range of medium work.[38] An additional medical evaluation conducted by state agency physician, Gurcharan Singh, M.D., on September 10, 2007, stated plaintiff's condition changed from July 23, 2007 with increased back pain and limited ability despite mediation.[39] Dr. Singh concluded the latest note from Pain Treatment and Rehabilitation dated May 27, 2007, revealed moderate right sacroiliac joint and midline lumbar tenderness. Patrick's testing produced right and left SI joint area pain. Plaintiff had no neurological changes.[40] He reviewed the medications related to her cardiac condition and noted "only muscle relaxant for lower back pain."[41] Dr. Singh agreed with Dr. Borek's July 3, 2007 RFC assessment.

Plaintiff underwent physical therapy with Edelman Physical Therapy from February 2, 2007 through April 26, 2007. After she stopped physical therapy, she was instructed to continue with at-home rehabilitative exercise. She initially informed Dr. Mavrakakis on September 25, 2007 that she completed the home exercises "as time allows."[42] She stated on December 20, 2007[43] that she did do the exercises, but by July 29, 2008, was no longer doing her home exercises.[44]

Plaintiff continued to visit Dr. Mavrakakis on a regular basis between July 2006 and October 2010. The record reflects that Dr. Mavrakakis' progress notes from July 3, 2006 to September 22, 2008[45] indicate little change in plaintiff's symptoms or examination findings. Plaintiff repeatedly complained of back pain. Dr. Mavrakakis' progress notes consistently diagnosed "chronic lower back and lower extremity pain secondary to lumbar radiculitis, concurrent sacroiliac syndrome and myofascial pain."[46] Beginning on May 22, 2007, Dr. Mavrakakis also assessed facet syndrome.[47] Examinations typically indicated "minimal" or "mild" sacroiliac joint tenderness with occasional "mild" lumbar spasm.

There are a few instances in which a specific incident triggered an increase in pain. For example, plaintiff complained of increased pain during a March 27, 2007 visit, after a long-distance car ride.[48] She advised during a visit on May 25, 2007 that she experienced increased pain following a slip on a wet bathroom floor, [49] as well as after playing with her children in July 2007.[50] During these exacerbations, Dr. Mavrakakis' findings increased to "moderate" tenderness. Plaintiff consistently denied any leg pain, weakness, numbness or bowel or bladder dysfunction.

As of July 25, 2007, [51] plaintiff also received pain medication injections from Dr. Mavrakakis, which she continues to receive intermittently. Throughout her treatment with Dr. Mavrakakis, plaintiff was prescribed numerous medications, including Flexeril, Neurontin, Celebrex, Skelaxin, Darvocet, the dosage and frequency for which varied over the four year time span of her alleged disability. Plaintiff did, however, consistently advise she improved while on medication, and denied any side effects.[52] Although plaintiff visited Dr. Mavrakakis monthly for prescription refills, she apparently never requested a referral. While Dr. Mavrakakis suggested a surgical consultation, plaintiff refused.[53] She confirmed during the June 26, 2008 hearing that she did not want surgery.[54]

On June 2, 2008, Dr. Mavrakakis completed a Medical Source Statement.[55] Therein she reported a diagnosis of lumbosocral spondylosis, [56] a diagnosis never previously described in her progress notes. In her report, Dr. Mavrakakis opined plaintiff could sit for a total of three hours during an eight hour work day, [57] and on a regular and continuing basis lift one to five pounds, occasionally lift six to ten pounds, and never lift over eleven pounds.[58] She indicated plaintiff could constantly balance, occasionally stoop, frequently perform postures of the neck, constantly engage in repetitive use of her hands, and required no assistive device for ambulating.[59] She concluded plaintiff would be absent, on average, two days per month due to her impairments.[60]

On May 8, 2009, plaintiff informed Dr. Mavrakakis that she was working four days per week, eight hours per day which caused increased pain.[61] She confirmed medication provided pain relief. At this time, she rated her pain as five out of ten, which is considered a moderate level of pain or discomfort. Dr. Mavrakakis suggested to avoid exacerbating activities. On June 17, 2009, plaintiff was given pain injections, including at the left L5-S1 joint.

Dr. Mavrakakis indicated in her February 8, 2010 progress note that plaintiff suffered from sacroiliac syndrome and facet syndrome.[62] A February 25, 2010 lumbar spine x-ray demonstrated at the lumbosacral juncture avulsed versus unfused spophysis at the inferior posterior aspect of L5. Otherwise, the examination was unremarkable, and commensurate with plaintiff's age with only mild degenerative changes present.[63] On March 2, 2010, an MRI showed no evidence of acute injury, but indicated interval progression of degenerative disc disease, severe at L5/S1, with a slight increase of the central and left lateral disc herniation, and mild central canal stenosis with narrowing and encroachment of the left S1 nerve. The MRI also revealed an increase in the size of small disc herniations with annular fissuring, arthrosis of the facet joints and hypertrophy of lumbar spine, as compared to the June 14, 2007 MRI.

Dr. Mavrakakis referred plaintiff to Matthew Eppley, M.D., a neurosurgeon, who examined plaintiff on April 13, 2010. Dr. Eppley noted intact neurological findings, but suggested possible spinal surgery.[64] An April 22, 2010 MRI of the lumbar spine showed posterocentral and left paracentral disc protrusion, impinging the left S1 nerve roots in the thecal sac, which had not significantly progressed.[65] A May 2, 2010 cervical spine x-ray showed no evidence of subluxation or prevertebral soft tissue swelling or degenerative changes.[66] A subsequent MRI conducted on May 4, 2010 revealed degenerative disc disease at the L5/S1 level, normal disc spaces at the other levels, and no acute osseous abnormality.[67]

Because of left sided facet tenderness during the May 10, 2010 examination, [68] plaintiff received a L5-S1 facet joint injection on June 2, 2010.[69] On July 26, 2010, she told Dr. Mavrakakis that she was doing well, and rated her pain as five out of ten.[70] During the August 27, 2010 visit, severe tenderness of the left sacroiliac joint and lumbar spasm were reported by Dr. Mavrakakis.[71] A September 8, 2010 lumbar discogram showed pain at the L4-L5 disc level with a posterior annular tear, pain at the L5-S1 disc level with diffuse internal disruption, and a normal study at the L3-L4 disc spaces.[72]

As of the September 15, 2010 visit with Dr. Mavrakakis, plaintiff had been prescribed Vicodin, Neurontin, Zocor, Plavix, Celexa, Ativan and Flexeril.[73] During this visit, Dr. Mavrakakis confronted plaintiff regarding her overuse of narcotics, threatened to discharge her as a patient, and required her to attend drug counseling.[74] Dr. Mavrakakis recommended plaintiff seek less physical work and undergo vocational rehabilitation.[75] Plaintiff advised she intended to quit her present job because of pain.[76]

Dr. Mavrakakis prepared a Medical Source Statement detailing plaintiff's medical condition from July 2005 through August 31, 2010.[77] Therein she reported plaintiff suffered daily from right low back pain, which increased by bending, lifting, pulling or pushing. Dr. Mavrakakis noted positive objective signs, including reduced range of motion, abnormal posture in the lumbar area, tenderness, trigger points, muscle spasm and abnormal gait.[78] She opined plaintiff could sit for a total of three hours during a eight hour work day, and would be absent from work twice a month.[79] She further concluded plaintiff's conditions had not improved, and prevented her from working any longer than as indicated on the June 2, 2008 Medical Source Statement.[80]

2. Plaintiff's Mental Ability To Work

Plaintiff did not initially allege any mental impairment or depression in her disability reports dated July 14, 2006, July 26, 2007, or September 25, 2007 or in her function report of July 14, 2006.[81] In her initial July 2006 report, plaintiff did not check any boxes that her illness, injuries or conditions affected memory, task completion, concentration, understanding, following instructions, getting along with others or dealing with authority.[82] She did, however, indicate in her 2007 report that "since the heart attack, " she "did not handle stress well."[83]

During the June 26, 2008 hearing, plaintiff mentioned for the first time depression.[84] She testified her depression began following the July 2006 heart attack.[85] She never previously advised of her concerns about depression because she was "embarrassed."[86] Dr. Mavrakakis' June 2008 Medical Source Statement, however, indicated plaintiff had no limitation in dealing with work stress.[87] In light ...

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