United States District Court, E.D. Tennessee, Winchester
REPORT AND RECOMMENDATION
SUSAN K. LEE, Magistrate Judge.
Plaintiff Melissa Carol Greenhaw ("Plaintiff") brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her disability insurance benefits ("DIB") and supplemental security income ("SSI"). Each party moved for a judgment [Docs. 15 & 17] with supporting briefs [Docs. 16, 18 & 20]. This matter is now ripe, and for the reasons stated below, I RECOMMEND that (1) Plaintiff's motion for judgment on the pleadings [Doc. 15] be DENIED; (2) the Commissioner's motion for summary judgment [Doc. 17] be GRANTED; and (3) the decision of the Commissioner be AFFIRMED.
I. ADMINISTRATIVE PROCEEDINGS
Plaintiff initially filed her applications for DIB and SSI on January 27, 2011, alleging disability as of August 4, 2007 (Transcript [Doc. 10] ("Tr.") 141, 148). Plaintiff's claim was denied initially and upon reconsideration, and she requested a hearing before the ALJ (Tr. 78, 87, 90, 91). The ALJ held a hearing on December 17, 2012, during which Plaintiff was represented by an attorney (Tr. 42). The ALJ issued an unfavorable decision on January 15, 2013, finding Plaintiff was not disabled because she was capable of making a successful adjustment to other work that existed in significant numbers in the national economy (Tr. 26-36). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final, appealable decision of the Commissioner (Tr. 1-3). Plaintiff timely filed the instant action seeking judicial review of the Commissioner's unfavorable decision [Doc. 1].
II. FACTUAL BACKGROUND
A. Education and Employment Background
Plaintiff was 37 years old on her alleged disability date, August 4, 2007 (Tr. 34). Plaintiff completed a tenth grade education (Tr. 49, 194), and she is able to read and write (Tr. 50). She has past relevant work experience as a machine feeder, front desk clerk, merchandiser, laborer, security guard, and convenience store clerk (Tr. 66, 202-09). Plaintiff's most recent employment was as a merchandiser where she primarily built and installed new store displays (Tr. 202-03). Plaintiff's impairments are the result of a work-related injury that took place on August 4, 2007, when a 120-pound beam fell on her (Tr. 46).
B. Medical Records
Only the portion of Plaintiff's medical records relevant to the parties' arguments will be addressed herein, but all relevant records have been reviewed.
On August 6, 2007, two days after her work accident, Plaintiff had x-rays taken of her right shoulder, thoracic spine, and lumbar spine at the Phelps County Regional Medical Center, and none of the x-rays showed any evidence of fracture or abnormality (Tr. 440-42). An MRI from October 23, 2007, however, showed degenerative disk disease at the C3-4 vertebrae with a small central posterior non-compressive disk protrusion, a 6-millimeter perineural cyst in the right C6-7 intervertebral neural foramen, and a 7-millimeter perineural cyst in the left C7-T1 intervertebral neural foramen (Tr. 450). An MRI dated November 8, 2007, showed L2-3 moderate posterior annular bulging; L4-5 disk desiccation with left posterior foraminal disk protrusion with annular tear and neural impingement of the exiting left L4 nerve root; mild facet arthrosis at L3-4, L4-5, and L5-S1; and hyperintensity in the L3 vertebral body suggestive of atypical hemangioma (Tr. 448).
As the records of Richard Fishbein, M.D., Jeffrey E. Hazlewood, M.D., Karen M. Williams, M.D., and Deborah J. Morton, M.D. are significant to the issues raised by Plaintiff, their records will be briefly summarized below.
1. Dr. Fishbein
On June 5, 2008, Plaintiff had an independent medical evaluation with Dr. Fishbein, who reviewed Plaintiff's previous records before making his own assessment (Tr. 255-59). Dr. Fishbein found that Plaintiff ambulated with an antalgic gait and utilized a cane; had a slow and guarded range of motion as well as poor posture; and experienced tenderness to palpation over the lumbar musculature (Tr. 259). Plaintiff's sitting straight-leg test was mildly positive with pain in her lower back, and the C-5 backward extension caused pain in her muscles (Tr. 259). Dr. Fishbein opined that Plaintiff's left shoulder, neck, and low back injuries were related to her work, that she had not reached maximum medical improvement, and that she was "medically unable to return to any form of employment." (Tr. 259). Dr. Fishbein stated that Plaintiff needed to have back surgery, needed to see another neurosurgeon, and needed to continue to seek symptom-relieving measures such as physician care, analgesics, injection, rest, and occupational/physical therapy (Tr. 259).
2. Dr. Hazlewood
Plaintiff's initial evaluation with Dr. Hazlewood occurred on June 29, 2009 (Tr. 260-65). He noted that Plaintiff experienced pain in the lumbar region as well as the left lower extremity ("LLE") (Tr. 261). Plaintiff described her lumbar pain as a constant ache or burn and the LLE pain as pinching (Tr. 261). Plaintiff was taking Lortab at the time (Tr. 261).
Plaintiff had several follow-up visits with Dr. Hazlewood from July 2009 to June 2010 (Tr. 453-65). On July 20, 2009, Dr. Hazlewood noted that Plaintiff's pain in her lower back, mid-back, and left leg were no better, citing an average pain level of six to seven out of ten (Tr. 463). Dr. Hazlewood's impression, based on the examinations given that day, included chronic low back pain with non-radicular referral down the LLE; a disk protrusion at L4-5; significant pain behavior with previous positive Waddell's signs; obesity; and gait dysfunction (Tr. 463-64). At this visit, Dr. Hazlewood recommended that Plaintiff continue opiate treatment no more than 84 Lortab tablets per month (Tr. 464). Dr. Hazlewood also opined that any kind of invasive procedure or further therapy would not be of benefit to Plaintiff (Tr. 464).
On August 17, 2009, Plaintiff had another follow-up visit with Dr. Hazlewood (Tr. 459-62). Plaintiff's lower back and left leg pain had not improved, and she reported that the pain worsened with prolonged lying, sitting, walking, standing, and bending (Tr. 459). Plaintiff also reported having less pain in the cervical and left shoulder girdle region (Tr. 459). A previous MRI showed a bulging disc and disc protrusion at C3-4 (Tr. 459). Plaintiff stated that nothing helped her pain except for medication, specifically, Lortab (Tr. 459). After this exam, Dr. Hazlewood recommended continued opiate treatment, albeit reduced opiate use from the past, and he again stated that Plaintiff was not a good surgery candidate (Tr. 460). Dr. Hazlewood noted that he gave Plaintiff a sample of Cymbalta, as he believed Plaintiff was experiencing depression (Tr. 460). Additionally, Dr. Hazlewood completed an addendum in which he assigned Plaintiff a 5% whole person impairment rating due to the lower back pain and disc protrusion (Tr. 460). Dr. Hazlewood did not recommend permanent restrictions for Plaintiff from a work standpoint (Tr. 460).
Plaintiff also had an EMG study, which Dr. Hazlewood had recommended, on August 17, 2009 (Tr. 461-62). Motor testing rated five out of five for strength in the bilateral lower extremities, and the electrodiagnostic studies of the LLE were normal with no evidence of a left lumbrosacral radiculopathy, sciatic neuropathy, focal peroneal, tibial, or sciatic neuropathy, or generalized polyneuropathy based on the one extremity examination (Tr. 461-62).
Plaintiff's next follow-up visit with Dr. Hazlewood was on September 14, 2009. At this point, Robaxin and Cymbalta had been added to Plaintiff's medications (Tr. 458). Plaintiff reported that the medication was definitely helping, and she reported that her pain was three to five on a scale of ten (Tr. 458). Plaintiff reported that the medication allowed her to complete chores that had previously been impossible for her (Tr. 458). Dr. Hazlewood recommended that Plaintiff continue opiate treatment, but he urged her to reduce her Robaxin intake from a whole tablet to a half tablet and strongly urged her not to exceed 75 Lortab tablets per month (Tr. 458).
Between Plaintiff's September and November visits, Dr. Hazlewood sent a letter to an insurance company confirming Plaintiff's 5% whole person impairment (Tr. 457). He added, however, that he could not identify the cause of Plaintiff's pain (Tr. 457). Unfortunately, he lamented, it was likely that Plaintiff would continue to complain of pain, even though Plaintiff had no permanent disability (Tr. 457).
On November 9, 2009, Plaintiff had her next follow-up appointment with Dr. Hazlewood (Tr. 456). Plaintiff's pain rating went up to five or six on a scale of ten, and she reported that the pain in her left shoulder had increased (Tr. 456). Dr. Hazlewood diagnosed Plaintiff with chronic lower back pain, but he added opioid dependency to his diagnosis as well (Tr. 456). He ordered a drug screen for Plaintiff's next follow-up visit, which would take place in three months (Tr. 456).
On January 27, 2010, Plaintiff again returned to Dr. Hazlewood's office (Tr. 455). Plaintiff reported that the TENS unit was helping with her pain, in addition to the medications (Tr. 455). Dr. Hazlewood ordered that Plaintiff have a Comprehensive Metabolic Panel before the next visit, as Plaintiff had not had any blood work done in over a year (Tr. 455). Plaintiff did not have this blood work completed until February 2010, but all results came back as within normal limits (Tr. 453).
Plaintiff's last formal follow-up visit with Dr. Hazlewood was on April 21, 2010 (Tr. 454). Plaintiff reported that the TENS unit was continuing to help manage her pain, and she gave a pain rating of four to seven on a scale of ten (Tr. 454). Dr. Hazlewood recommended another follow-up visit in three months (Tr. 454). However, only progress notes followed this visit, and Plaintiff's contact with Dr. Hazlewood's office ceased within two months of the last visit (Tr. 453). A progress note dated June 18, 2010 indicates Dr. Hazlewood's office contacted Plaintiff regarding financial arrangements through self-pay or private insurance for continued treatment after Plaintiff settled her worker's compensation claim (Tr. 453). There are no further entries regarding any visits with Dr. Hazlewood.
3. Dr. Williams
Plaintiff apparently began to see Dr. Williams sometime in 2008 (Tr. 540), although records of her treatment with Dr. Williams from only May 2009 through October 2012 are in the record (Tr. 346-78, 528-539). Dr. Williams's records first mention Plaintiff having lower back pain on August 18, 2009 (Tr. 364). Plaintiff was diagnosed with degenerative disc disease on a consistent monthly basis from October 2009 through February 2011 (Tr. 347-62). On February 2, 2011, still in Dr. Williams's care, Plaintiff had an MRI of her lumbar spine and was diagnosed with a small left foraminal disc bulge at L4-5; a nonspecific 9 millimeter lesion in the L3 vertebral body; and mild degenerative disc disease at L2-3 (Tr. 366).
On April 6, 2011, Plaintiff had an appointment with Dr. Williams for an ear infection and to refill her medications (Tr. 538). On May 9, 2011, during another follow-up appointment, Dr. Williams assessed Plaintiff with hypertension, anxiety, and thyroid disease, and Dr. Williams refilled her prescriptions (Tr. 537). On July 6, 2011, Dr. Williams added chronic back pain to her assessment of Plaintiff, but she noted that Plaintiff was "doing well" (Tr. 536). On August 19, 2011, Plaintiff saw Dr. Williams for a sinus infection (Tr. 535). Plaintiff returned to Dr. Williams on September 15, 2011 and reported that she was better since her last appointment, but she was still having cold symptoms (Tr. 534).
On October 20, 2011, Plaintiff reported to Dr. Williams that she had fallen the day before and had scraped her knee (Tr. 533). Plaintiff saw Dr. Williams again on December 27, 2011 for a refill of her medications, and she complained of swelling in her knee (Tr. 532). Plaintiff next saw Dr. Williams for a checkup and medication refills on March 14, 2012 (Tr. 531). During her appointment with Dr. Williams on May 22, 2012, Plaintiff reported that she had hurt herself in a fall on May 15, 2012, but the x-rays were all negative (Tr. 530). On August 6, 2012, Plaintiff saw Dr. Williams for a routine checkup and refills of her medication (Tr. 529). Plaintiff saw Dr. Williams for the last appointment in the record on October 4, 2012, during which Plaintiff complained of ear pain and congestion (Tr. 528).
In a letter dated November 5, 2012, Dr. Williams noted a worsening of Plaintiff's condition, a diagnoses of fibromyalgia, and she opined that "[t]hough [Plaintiff] wants to work, it would be very ...