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Hoffman v. Colvin

United States District Court, M.D. Tennessee, Nashville Division

October 1, 2014

TAMMY G. HOFFMAN, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant

For Tammy G. Hoffman, Plaintiff: Christina Norton Norris, LEAD ATTORNEY, Norris & Norris, PLC, Nashville, TN.

For Social Security Administration, Defendant: Sam Delk Kennedy, Jr., LEAD ATTORNEY, Office of the United States Attorney (MDTN), Nashville, TN.

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MEMORANDUM

WILLIAM J. HAYNES, JR., United States District Judge.

Plaintiff, Tammy G. Hoffman, filed this action under 42 U.S.C. § 405(g) against the Defendant Carolyn Colvin, acting Commissioner of Social Security, seeking judicial review of the Commissioner's denial of her application for disability insurance benefits (" DIB" ) and supplemental security income (" SSI" ) under the Social Security Act. On August 11 and 18, 2010, Plaintiff filed claims for DIB and SSI alleging an onset date of June 9, 2010 and citing her chronic spinal disc disorder and mental impairments. After a hearing, the Administrative Law Judge (" ALJ" ) denied Plaintiff's claims.

In sum, the ALJ evaluated Plaintiff's claim for DIB and SSI benefits using the sequential evaluation process set forth at 20 C.F.R. § § 404.1520, 416.920 (Docket Entry No. 11, Administrative Record at 18-31).[1] At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her amended alleged onset date. Id. at 20. At step two, the ALJ determined that Plaintiff had severe impairments consisting of lumbar degenerative disc disease, fibromyalgia, major depressive disorder, and bipolar disorder. Id. at 21. At step three, the ALJ found that Plaintiff did not prove an impairment or combination of impairments that met or equaled one of the listed impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 22. The ALJ found that Plaintiff could alternate between sitting and standing and walking every hour; that she may frequently use her feet for foot controls, occasionally engage in postural activity; that she may not work around unprotected heights or other hazards; that she can perform simple and detailed, but not complex tasks; and that she can adapt to only occasional changes in the workplace. Id. at 24. The ALJ concluded that Plaintiff retained the residual functional capacity to perform less than a full range of light work. Id.

Citing vocational expert testimony, the ALJ also found that although Plaintiff could not return to her past relevant work, Plaintiff retained the capacity to perform jobs that existed in significant numbers in the economy. Id. at 29-30. The vocational expert testified that a hypothetical individual with Plaintiff's age, education, past work experience, and credible limitations

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could return to her past relevant jobs as a receptionist, motel clerk, and cashier. Id. at 77-79. The vocational expert also testified that other jobs existed in the national economy which Plaintiff is able to perform, and identified representative jobs such as office helper, general clerk, and table worker. Id. at 30. Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act and was not entitled to disability benefits. Upon reconsideration, the Appeals Council upheld the ALJ's denial of benefits.

Before the Court is Plaintiff's motion for judgment on the administrative record (Docket Entry No. 26) to which the Commissioner filed a response. (Docket Entry No. 29). After review of the parties' motion papers and the administrative record, the Court concludes that Plaintiff's motion for judgment on the record should be granted because of Plaintiff's combined impairments and the ALJ's error in declining to give appropriate weight to the opinions of Plaintiff's medical and mental health providers.

A. Review of the Evidentiary Record

The Administrative Record reflects that Plaintiff is 49 years old and was graduated from high school with mostly Cs and Ds. Plaintiff has been employed since age 17 and her highest earning years were 1993-1994. (Docket Entry No. 11 at 167). Prior to 1997, Plaintiff worked primarily part-time and unskilled manual labor jobs for less than six (6) months. Id. at 162-172. Plaintiff was often fired due to her inability to perform the job. Plaintiff worked full-time as a front-desk worker at Wyndham Resorts in 1998 for less than six (6) months. Id. at 57, 60-61, 163. Because Plaintiff needs frequent breaks and to stand up and walk around due to her pain, she was unable to perform her duties and was terminated. Id. at 60-61.

In 1998, Plaintiff was a part-time grocery cashier earning $1,224.75, id. at 57-58, but after less than three months left due to her pain from standing. Id. at 60. From late 2010 to early 2011, Plaintiff was a part-time school cafeteria worker, earning $1,002.3 8, but was terminated within three months for her inability to stand, lift, push and pull, and her crying at work. Id. at 61-62,170. After the birth of her child, Plaintiff stopped working from 2002-2004, but resumed working in 2004 until May 2011, when she was terminated from her last regular job. Id. at 21, 54-55,167. Plaintiff's last job was as a part-time on call retail grocery stocker for a wholesale baker. In May 2011, Plaintiff was terminated for her inability to push and pull and her crying at work. Id. at 21, 55, 62, 167. In 2011, Plaintiff performed paid " make work" jobs for family members, id. at 59-60, 69-71, 222-23, 235-36, but the ALJ found these jobs were not substantial gainful activities. Id. at 28.

Plaintiff's medical history reflects that Plaintiff had increasing back pain after a March 2009 automobile wreck in which her automobile was rear-ended. Id. at 284-85. In April 2009, a lumbar MRI showed progression of disc bulge at L3/4 and L4/5, id. at 346-47, but in June 2009, Plaintiff's treating physician referred her to Dr. Eric Schlosser, a neurosurgeon, id. at 284-85, who found Plaintiff's back pain to radiate into her right hip. Id. at 277-79,262-64. In July 2009, Dr. Schlosser recommended epidural steroid injections (ESI), id. at 257, that Plaintiff received in July, August, and September 2009. Id. at 291-293. By October 2009, however, the steroid injections failed to relieve Plaintiff's pain and Plaintiff was prescribed Percocet. Id. at 251.

In November 2009, a lumbar myelogram and a CT of Plaintiff's lumbar spine revealed minimal or mild disc bulges at T12/L1,

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L3/4, and L4/5, with mild to moderate bilateral foraminal stenosis at L3/4 and L4/5. Id. at 290, 294. The overall impression was " mild multilevel lumbar spondylosis; no significant central stenosis; foraminal narrowing at L3/4 and L4/5." Id. In late November 2009, Dr. John Nwofia, M.D. treated Plaintiff's pain that was aggravated by sleeping, sitting, standing, and walking. Id. On December 1, 2009, Plaintiff underwent a right-sided surgical laminectomy, foraminotomy, and right-sided discectomy at L4/5. Id. at 260. Dr. Eric Schlosser's diagnosis was: " lumbar disc displacement at L4/5 and lumbar radiculopathy, right-sided L5 nerve root." Id. at 260. Dr. Schlosser approved a medical management of Plaintiff's persistent pain by Dr. Nwofia. Id. Dr. Schlosser also found " a large disc bulge." Id. at 261. Dr. Schlosser found improvement in Plaintiff's back and leg pain, but described continued leg pain in Plaintiff's right leg " is not unexpected." Id. at 250.

After her surgeries, Plaintiff described her pain as precluding her from standing or sitting more than fifteen minutes at a time. Id. at 268-269. Plaintiff's pain interfered with her personal care and prevented her from lifting all, but very light objects. Id. at 268. Despite her pain medications, Plaintiff slept less than 4 hours at night. Id. at 269.

By mid-January 2010, Plaintiff told Dr. Nwofia that her right leg pain had improved, but her low back pain persisted. Id. at 343. Plaintiff described persistent right elbow pain. Id. An MRI of her right elbow revealed chronic lateral epicondylitis. Id. at 352, 775. Dr. Nwofia administered a steroid injection in her right elbow and advised Plaintiff that if the injection did not help, to see a surgeon. Id. at 343. The steroid injection did not relieve Plaintiff's elbow pain and on February 5, 2010, Dr. Steven Larsen performed a right debridement and epicondylectomy. Id. at 775-776. Dr. Larsen applied an elbow splint and later a long arm cast on her right arm, that Plaintiff wore for six weeks. Id. at 776. In February 2010, Dr. Nwofia also administered four trigger-point injections in Plaintiff's right lumbar spine for her lower back pain. Id. at 341. Dr. Nwofia's diagnoses were: 1) congenital spondylosis lumbosacral region, 2) degeneration of lumbar or lumbosacral intervertebral disc, 3) lumbosacral neuritis or radiculitis, unspecified, and 4) spinal enthesopathy.[2] Id.

By April 2010, Plaintiff was undergoing physical therapy for her right arm, id. at 339, but also wore a Lumbar Sacral Orthosis (LSO) lower back brace.[3] Id. Plaintiff told Dr. Nwofia her pain control improved with medications, but she experienced numbing and tingling in her right leg and had lower back pain below her knee that caused Plaintiff difficulty sleeping. Id. Dr. Nwofia discontinued Percocet and started Plaintiff on Lortab and Neurontin, but also ordered a lumbar MRI and an EMG, bilateral lower extremities. Id.

In late April 2010, Plaintiff had a second MRI of her lumbar spine. Id. at 350. The MRI showed post-surgical changes from the previous right laminectomy at L4/5. Id. Dr. Nwofia found " There is a left and central L4/5 disc bulge, L5/S1 and L3/4 bulges as well." Id. at 336. The May 2010 EMG reported " sub-acute bilateral

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SI radiculopathies." Id. at 337-38. Dr. Nwofia prescribed a series of bilateral and left L5 transforaminal epidural steroid injections (ESI) on June 9, 15 and 29, 2010. Id. at 330-36. Plaintiff experienced improvement in her right leg pain, but pain in her left leg remained and Plaintiff agreed to undergo a lumbar discogram. Id. at 329.

After the lumbar discogram on July 28, 2010, id. at 326-27, the surgeon noted " abnormal but painless L3/4 and L4/5 discs with complete posterior tears." Id. at 327. The discogram would not yield any pain despite annular tears at L3/4 and L4/5 posteriorly and bilaterally with mild to moderate foraminal stenosis. Id. at 324. In Dr. Nwofia's opinion, " [s]urgery is probably not going to help her" and advised Plaintiff to continue her pain medication regimen, including muscle relaxants, a TENS unit, and if her pain persisted, facet arthropathy. Id. On August 16, 2010, Dr. Nwofia's diagnosis was: (1) post-Laminectomy syndrome of lumbar region, (2) lumbosacral neuritis or radiculitis, unspecified, (3) degeneration of lumbar or lumbosacral intervertebral disc, and (4) lumbosacral spondylosis without myelopathy. Id.

By September 2010, Plaintiff reported continued cramping in her legs and feet, and a tender palpation over the lumbar facets. Id. at 413. Dr. Nwofia's diagnosis was: Spondylosis with Facet Arthropathy, id. at 410, for which Plaintiff consulted another neurosurgeon, Dr. Allen, who declined her insurance. Id. at 412. The October 30, 2010 physical examiner did not include a review of Plaintiff's medical records. Plaintiff notes that despite discounting this consultant's opinion, the ALJ adopted the RFC reported by this examiner.

By January 17, 2011, Plaintiff described her leg pain as worsening more to the left than right as well as numbness in her right foot, with diminished sensation as in the toes of her left foot. Id. at 406. Dr. Nwofia advised a series of bilateral transforaminal steroid injections that Plaintiff received in her elbow every six weeks from her orthopedist. Id. at 458. Spinal fusion surgery was not recommended because " an L5-S1 fusion would likely result in the levels about wearing out [illegible] those levels would require fusion as well." Id. at 511.

From January through April 2011, Plaintiff's primary care physician prescribed anti-depressants, including Celexa and Wellbutrin. Id. at 446-47, 450, 457, 459. In April 2011, a psychologist evaluated Plaintiff for SSA and found her speech pressured and rambling with tangential thought process, blunt affect, and difficulty answering questions. Id. at 420. Plaintiff's intelligence was rated as " low average." Id. at 421.

On April 8, 2011, Plaintiff underwent a mental health consultant examination (" CE" ), performed by Alice Garland, MS, LSPE, who found three moderate/marked limitations. Id. at 415-21. The ALJ did not give this examination any weight, as Alice Garland is not an acceptable medical source. Although Garland's report was co-signed by a psychiatrist, it is unclear if the psychiatrist ever examined or met with Plaintiff. Id. In April 2011, Plaintiff underwent a second series of bilateral transforaminal ESI. Id. at 399-402. On April 18, 2011, a truck struck the rear of Plaintiff's vehicle. Id. at 578. Plaintiff was transported to Skyline ER by ambulance with back and neck pain and told the emergency room doctors that she had been able to walk at the scene without difficulty, but was " just shook up." Id.

In May 2011, Plaintiff's primary care physician referred her to Dr. Mohammad Ali to evaluate Plaintiff's chronic pain, fatigue,

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and difficulty sleeping. Id. at 789. On examination, Dr. Ali noted, inter alia. " ꖨꭹ trigger points along spine, forearms and anterior chest, [straight leg raising] slr [left] lt leg past 30 degrees," and " bilateral lateral epicondylar tenderness." Id. Dr. Ali's diagnoses were: (1) fibromyalgia (Primary), (2) sciatica, and (3) degenerative disc disease. Id. at 790. After blood tests, Dr. Ali later confirmed his diagnosis of fibromyalgia and injected kenalog into Plaintiff's left lateral epicondyle to relieve her left elbow pain. Id. at 787-88, 790. In June 2011, Dr. Ali confirmed his prior diagnoses and prescribed Robaxin and Cymbalta for Plaintiff's underlying depression. Id. at 787-788. In May 2011, Dr. Nwofia notes Plaintiff appeared fatigued, drawn, and near tears and that her prior steroid injections had not helped. Id. at 398, 564. On May 16, 2011, Dr. Nwofia, noted, " [S]he could not tolerate the pain and the lack of sleep at night. She has been averaging 2-3 hours and then she feels very tired in the daytime." Id. at 398. Dr. Nwofia, M.D. completed two Medical Source Statements, dated June 17, 2011, id. at 601-03, and November 12, 2012, two weeks before hearing the ALJ. Id. at 639-40.

On June 11, 2011, Plaintiff was admitted to Centennial Medical Center emergency room with complaints of depression and reporting chronic pain. Id. at 495-96. Plaintiff described the anti-depressants, prescribed by her primary care physician, as unhelpful, and said " she just does not want to wake up in the morning." Plaintiff sought admission to Parthenon Pavilion, but her insurance was not accepted. Id. at 697. The Centennial emergency room staff called the Mobile Crisis team, that transported Plaintiff to their facility, the Crisis Stabilization Unit (" CSU" ), for evaluation. Id. at 496. Plaintiff left CSU against medical advice to get her medication for her chronic pain. Id. at 499.

On June 16, 2011, Plaintiff was admitted at Centerstone and diagnosed with major depressive disorder recurrent, severe with Psychotic Features. Id. at 699. Dr. Amanda Bacchus noted Plaintiff's Global Assessment of Function (" GAF" ) as 42. Id. at 681-82.

In July 2011, Dr. Steven Larson, Plaintiff's orthopedic surgeon, referred her to physical therapy. Id. at 634. From July 11, 2011 through September 9, 2011, Plaintiff completed fourteen physical therapy sessions, id. at 604-638, to decrease her pain to 4/10; to decrease her headaches; to increase her cervical and lumbar range of motion (ROM) to within normal limits; to reach overhead, to the side, and out to the front; to perform housecleaning; to improve her tolerance for sitting, standing, walking; and to be able to sleep through the night. Id. at 635. Upon her discharge on September 9, 2011, Plaintiff's lumbar and cervical range of motion had increased; she was able to reach overhead, out, and to the side; and could walk for fifteen feet without difficulty. Id. at 604-06. Plaintiff's pain level, however, had ...


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