United States District Court, E.D. Tennessee, Greeneville Division
MARY A. DAVIDSON,
CAROLYN W. COLVIN, Acting Commissioner of Social Security
REPORT AND RECOMMENDATION
DENNIS H. INMAN, Magistrate Judge.
This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. § 636 for a report and recommendation. Plaintiff's application for disability insurance benefits under the Social Security Act were denied after a hearing before an Administrative Law Judge ["ALJ"]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 13], and the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 15].
The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
The plaintiff was born on July 6, 1957. She was 53 years of age at the time her disability insurance "insured status" expired on December 31, 2010. She filed her application for disability insurance benefits on May 23, 2011, nearly 5 months after her insured status expired. She cannot perform her past relevant work as a dietary worker and cook, which was medium and semiskilled, or as a medical technician, which was heavy and skilled.
Plaintiff's medical history is set forth in her brief as follows:
The Plaintiff apparently suffered an industrial injury in 1994 and suffered an injury to her right shoulder. She came under the care of Dr. A. Evan Lewis, Ph.D., M.D. who reported in May 1997, that the disability to her right shoulder from pain would be approximately 30 to 40 percent. He thought the prime source of her pain was in the achromioclavicular joint and he considered that joint to be 100% disabled. In addition, she had evidence of radiculopathy of the cervical spine at the C6/C7 level with numbness and tingling down the second and third digits of her right hand (AR 257). An MRI showed a C6/C7 disk abnormality which fit perfectly with the Plaintiff's complaints of pain radiating down the right arm. Dr. Lewis thought the Plaintiff would have a great deal of difficulty obtaining or retaining any kind of employment which would involve any kind of physical activity of the right arm but she might be able to hold a sedentary job which did not include use of a computer terminal (AR 258). The Plaintiff continued under the care of Dr. Lewis and in February 2008, he noted that she had depression and obesity. She was doing well on Lexapro but failed various other drugs (AR 158). In May 2008, Dr. Lewis noted that the Plaintiff had been shaking and depressed and had increased her Lexapro. She was also pre-diabetic which might be related to her depression (AR 156). In July 2008, it was noted that she was having depression and panic and that she was shaking and crying and was agitated and could not sit still (AR 154). In September 2008, the Plaintiff was suffering from shoulder pain and Dr. Lewis noted that she had multiple defects with difficulty with her clavicle and rotator cuff (AR 153). In December 2008, she was diagnosed as suffering from foot pain caused by Morton's neuromas which had previously been removed twice (AR 150). In March 2009, she was suffering from diabetes mellitus 2 (AR 148).
In June 2009, she came under the care of Dr. Edward Griffin. He diagnosed her as suffering from diabetes, hyperlipidemia, a history of cervical cancer, PES cavus and tobacco addiction (AR 172).
The Plaintiff came under the care of Dr. Terry Nye in 2010. It was noted that she had diabetes mellitus, cervical disc disease, mood disorder, tobacco addition, a history of Morton's neuromas x 2, cervical cancer, hyperlipidemia, a thyroid cyst in 1994, and pes cavus (AR 177). In June 2010, it was noted that her left should had hurt chronically for a number of years (AR 180). She also had GERD and depression (AR 182.)
The plaintiff was seen by Dr. David M. Pryputniewicz, a neurosurgeon. She was complaining of bilateral lower extremity pain, numbness, and some lumbar pain. It was noted that she had low back pain which had waxed and waned since 1994 and had a significant increase of pain in April 2011. An MRI in April 2011 had revealed central canal stenosis of L4-5 resulting in central canal stenosis. Dr. Pryputniewicz diagnosed lumbar stenosis, synovial cyst, and lumbar herniated nucleus pulposus. She could not return to her work at that time (AR 213).
The plaintiff was seen by Dr. W. Turney Williams, a pain specialist, in June 2011 for low back and bilateral lower extremity pain. He diagnosed lumbar degenerative disc disease, lumbar spinal stenosis of the L4-5 of the synovial cyst, lumbar radiculopathy, chronic pain syndrome, and a history of diabetes (AR 216).
The plaintiff came under the care of Dr. Michael Kauzlarich, D.O., in December 2010. He noted her chief complaint was chronic right shoulder and back pain after a severe industrial accident several years ago. He diagnosed type 2 diabetes mellitus and cervicothoracic somatic dysfunction (AR 219). On December 10, 2010, he assessed her as having cervicothoracic and lumbar somatic dysfunctions and prescribed OMT techniques (AR 221). She underwent therapy (AR 225-230). In August 2011, Dr. Kauzlarich opined that the Plaintiff could not perform sedentary work prior to December 31, 2010 (AR 295). On January 7, 2011, he described the Plaintiff as suffering from cervical, thoracic and lumbar somatic dysfunction (AR 299). On April 25, 2011, he noted that she had spinal stenosis as well as thoracic, cervical and lumbar somatic dysfunction (AR 303). On May 9, 2011, he noted that an MRI had showed some central canal stenosis at L4-L5 as well as synovial cyst on the right side encroaching on the posterior aspect of the right L5 nerve root. She also had a left L4-5 herniated disc which was encroaching on the L5 region and a slight deformity of the T12 vertebral body and kyphosis of T11-T12. The combination of those findings had given her a fair amount of back pain and a fairly limited mobility with some difficulty walking steadily (AR 304).
A state agency reviewing physician, Dr. Frank Pennington, opined that the Plaintiff's evidence was technically insufficient (AR 234), because the medical evidence in the file was not for the relevant time from the alleged onset date to the date last insured and there was no medical evidence from the relevant time frame (AR 237). Similarly, the state agency reviewing psychologist, Dr. Amin Azimi opined that there was insufficient evidence (AR 239).
The plaintiff continued to be cared for by Dr. David M. Pryputniewicz, a neurosurgeon. In September 2011, he noted that she ambulated flexed at the waist (AR 269). H noted that an MRI of the cervical spine on September 8, 2011 revealed spondylitic changes at C5-6 and C6-7 resulting in central canal stenosis. He also diagnosed lumbar stenosis with neurogenic claudication, unspecified synovial cyst, and a lumbar HNP (AR 270). He opined that the Plaintiff was disabled (AR 271). She underwent an L4-5 decompression with arthrodesis (AR 276). On October 4, 2011, Dr. Pryputniewicz reported that the Plaintiff could not return to work at that time (AR 278). He similarly opined that the Plaintiff could not return to work in November 2011 (AR 284). In December 2011, x-rays showed progression of the fusion at L4-5 and maintenance of spinal alignment (AR 287). In November 2011, Dr. Pryputniewicz opined that the Plaintiff could not do sedentary work and per the patient she could not perform that activity before December 31, 2010 (AR 267). In December 2011, Dr. Pryputniewicz opined that the Plaintiff might return to her previous employment and activities as a homemaker and could gradually resume normal daily activities (AR 288).
In October 2011, Dr. Kauzelarich noted that the pain in the Plaintiff's legs had been gone post surgery but she still had a history of type II diabetes and cervical somatic dysfunction (AR 309). An MRI of the cervical spine showed chronic degenerative disc disease with moderate central spinal canal and moderate bilateral neural foramina stenosis at C6-C7 and the right posterolateral bulging disc osteophyte complex at C5-C6 causing moderate right spinal ...