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Shaver v. Colvin

United States District Court, E.D. Tennessee, Greeneville

February 19, 2015

ONDREA B. SHAVER
v.
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. ยง 636 for a report and recommendation. The plaintiff's applications for Supplemental Security Income and Disability Insurance Benefits under the Social Security Act were administratively denied following a hearing before an Administrative Law Judge ["ALJ"]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 14]. The defendant Commissioner has filed a Motion for Summary Judgment [Doc. 18].

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).

Plaintiff was 37 years old with a high school education at the time of the decision of the Administrative Law Judge ["ALJ"] denying her applications. There is no disagreement that she cannot return to her past relevant work.

On February 5, 2013, in Case no. 2:12-CV-73, a judgment was entered in this Court remanding the plaintiff's applications for benefits to the Commissioner for further determinations. The district judge ordered that the case be remanded to the Commissioner "for the Administrative Law Judge to address fully the opinion of Dr. Valley, for a consultative physical examination to determine the plaintiff's condition and restrictions on her work related activities, and for the plaintiff to submit any further evidence." See, Case No. 2:12-CV-73, Doc. 17. The present case is an appeal from Commissioner's denial of those applications incident to that remand.

Plaintiff's medical history is summarized in the Commissioner's brief as follows:

In June 2004, David Wiles, M.D., a surgeon with the East Tennessee Brain and Spine Center, P.C., operated on Plaintiff's back (Tr. 177). She had a history of chronic low back pain that had progressed despite conservative treatment (Tr. 177). A magnetic resonance imaging (MRI) scan of Plaintiff's lumbar spine showed mild degenerative disc changes at the L4-L5 and L5-S1 levels (Tr. 177, 185). There was no evidence of spinal canal or neuroforaminal stenosis or disc herniations (Tr. 185). Dr. Wiles performed a discography and fusion in the hopes of improving Plaintiff's severe pain (Tr. 177, 187).
At her two month follow-up, she reported that her pain was largely unchanged and that she had "not really noticed much improvement" (Tr. 195). Upon radiological review, the screws and cages were aligned and in place (Tr. 195). Dr. Wiles prescribed Neurontin and Soma for the muscle spasms in her back and Percocet for pain (Tr. 195). At her three month follow-up in September 2004, she responded that her back pain still bothered her "a little bit" but overall she was improving, and she rated her back pain as 40 to 50 percent better (Tr. 196). She worked at a computer and sat most of the day, and planned to return to work over the next four to six weeks (Tr. 196). At her four and a half month follow-up, she reported she was "doing pretty good" and had "just a little" back pain (Tr. 197). Dr. Wiles released her back to regular duty, noting that she did not have any strenuous work at her job and was an office worker (Tr. 197).
In December 2004, Plaintiff told Dr. Wiles that when she returned to work, her pain increased until it was equivalent to what it was prior to surgery (Tr. 198). Dr. Wiles stated that he thought her pain was secondary to going back to work and that he was very optimistic about her progress and her long-term prognosis (Tr. 198). He prescribed Percocet and Soma for pain relief (Tr. 198). In February 2005, Plaintiff complained of worsening pain on the left side of her back that radiated into her left leg, and that the pain was worse than the pain she had prior to surgery (Tr. 200). She had been unable to work or ambulate for several days (Tr. 200). She rated her pain as a 7 on a 10-point pain scale (Tr. 200). Dr. Wiles administered a steroid injection (Tr. 199), which provided 100 percent pain relief for 2 or 3 days before the pain gradually returned (Tr. 205). Dr. Wiles administered another injection the next week (Tr. 205).
Plaintiff returned eight months later in October 2005, and reported that her low back pain had been getting progressively worse over the last few months (Tr. 206). She was not taking any medication and rated her pain as a 7 on a 10-point pain scale (Tr. 206). Her gait was antalgic, with limping on the left side (Tr. 206). German Levin, M.D., an associate of Dr. Wiles, performed a left sacroiliac joint injection and a left greater trochanter bursa injection (Tr. 206). Several minutes after the injection, Plaintiff became tearful, stating that her severe pain significantly interfered with her activities of daily living, sleep, and personal relationships (Tr. 207). She stated that she was severely depressed (Tr. 207). Dr. Levin provided Plaintiff with samples of Lexapro (Tr. 207).
Two days after the injection, Plaintiff told Dr. Levin that the injection did not help her pain "whatsoever" (Tr. 209). Dr. Levin administered a caudal epidural steroid injection (Tr. 209). Two weeks later, at the end of October 2005, Plaintiff told Dr. Levin that the epidural steroid injection significantly improved her pain, and that 60 to 70 percent of her pain was gone (Tr. 210). She took Percocet on an as-needed basis (Tr. 210). Dr. Levin administered a second caudal epidural steroid injection (Tr. 210), which did not help her pain (Tr. 211). She took Percocet and Lexapro, and rated her pain as a 6 on a 10-point pain scale (Tr. 211). She was able to work and stated that her work required a lot of walking and sitting (Tr. 211). Dr. Levin stopped the Percocet, continued to Lexapro, and prescribed OxyContin (Tr. 211).
At her follow-up in January 2006, Plaintiff reported significant improvement in her pain and that it was 50 percent better (Tr. 212). She had stopped taking Lexapro and took Tylenol on an as-needed basis (Tr. 212). In February 2006, she reported that her low back pain was significantly worse with rainy weather and activity (Tr. 213). In March 2006, she told Dr. Levin that her pain continued to significantly improve and that she was noticing additional improvement since starting Lyrica (Tr. 214).
In January and June 2007, Plaintiff reported she was doing well with her current medications and that her pain was pretty well-controlled (Tr. 269-70). She stated in June 2007 that she continued to work full-time (Tr. 269).
In August 2007, Plaintiff complained to Dr. Levin of new onset of neck and left arm pain (Tr. 268). Dr. Levin ordered an MRI (Tr. 268), which showed some scattered, minimal degenerative changes (Tr. 242). Dr. Levin assessed this as mild disc/osteophyte complex at the C7-T1 level, otherwise fairly normal (Tr. 265). He treated Plaintiff with medication and injections (Tr. 262-68). In early November 2007, Plaintiff reported that she had complete resolution of her pain following a C5-6 transforaminal epidural steroid injection (Tr. 261). In January 2008, Plaintiff told Dr. Levin that the pain medication had helped her tremendously and that she had been able to get back to work and resume almost all of her normal activities (Tr. 258). Dr. Levin informed Plaintiff that he was relocating from the practice and that she would need to find another physician to prescribe her opioid pain medications (Tr. 258).
Plaintiff returned to Dr. Wiles four months later in May 2008, and complained of back pain and leg discomfort (Tr. 264). Dr. Wiles noted that she continued to work and was a single mother (Tr. 264). Upon physical examination, she had some tenderness in her low back and some pain with range of motion, but Dr. Wiles noted that her range of motion was not severely limited (Tr. 264). She had good strength in her lower extremities and her gait was nonantalgic (Tr. 264). Dr. Wiles referred Plaintiff to Marc Valley, M.D., a chronic pain specialist with his practice, for narcotic and chronic pain management (Tr. 264).
The next month, in June 2008, Dr. Valley assessed post-laminotomy syndrome of the lumbar spine, degenerative disk disease of the lumbar spine, and lumbar radiculopathy (Tr. 257). Upon physical examination, Plaintiff had significant muscle spasms in the lumbar spine, decreased range of motion in the lumbar spine, and positive straight leg raise (Tr. 257). He recommended the use of a transcutaneous electrical nerve stimulator (TENS) unit (Tr. 257).
When Plaintiff returned in September 2008, she reported that the TENS unit made her muscle spasms worse, and Dr. Valley decided to hold off on the spinal cord stimulator trial (Tr. 254). Her psychological evaluation had revealed major depression and he referred her for further psychiatric evaluation and treatment (Tr. 254). Her physical examination continued to show muscle spasms, decreased range of motion, and tenderness to palpation (Tr. 254).
Objective evidence from physical examinations in October and November showed that Plaintiff had a normal gait, negative straight leg raise test, normal 5/5 muscle strength, normal reflexes, and normal range of motion in her lumbar spine (Tr. 234-37). At these examinations, Plaintiff reported that her pain was a 7 on a 10-point pain scale (Tr. 236). In December 2008, Plaintiff reported that her pain was a 10 on a 10-point pain scale, meaning that her pain was the most excruciating pain imaginable (Tr. 232). Her gait was normal (Tr. 232). She had no tenderness to palpation, no pain, and normal sensation (Tr. 232). Her range of motion was normal (Tr. 232). Her physical examination was unchanged in January 2009, though Dr. Valley noted muscle spasms (Tr. 230). Plaintiff reported that her medications were doing great, but stated that she could not tolerate standing for 12 hour shifts in one spot (Tr. 229). Dr. Valley adjusted her work parameters due to her subjective complaint that she could not do ...

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