United States District Court, M.D. Tennessee, Nashville Division
FLORENCE R. MCWHORTER, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
H. SHARP, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion for Judgment
on the Administrative Record (Docket Entry No. 12). The
motion has been fully briefed by the parties.
filed this action pursuant to 42 U.S.C. § 405(g) to
obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying Plaintiff's claim for disability insurance under
Title II, as provided by the Social Security Act (“the
Act”). Upon review of the administrative record as a
whole and consideration of the parties' filings, the
Court finds that the Commissioner's determination that
Plaintiff is not disabled under the Act is supported by
substantial evidence in the record as required by 42 U.S.C.
§ 405(g). Plaintiff's motion will be denied.
Florence R. Mcwhorter, filed a Title II application for
disability insurance on March 21, 2011, alleging disability
as of December 18, 2008. (Tr. 102-03). Plaintiff's claim
was denied at the initial level on July 12, 2011, and on
reconsideration on October 28, 2011. (Tr. 61-66, 70-72).
Plaintiff requested a hearing before an administrative law
judge (“ALJ”), which was held on March 11, 2013.
(Tr. 9, 25, 74-75). On April 11, 2013, the ALJ issued a
decision finding that Plaintiff was not disabled. (Tr. 6-20).
Plaintiff timely filed an appeal with the Appeals Council,
which issued a written notice of denial on June 26, 2014.
(Tr. 1-3). This civil action was thereafter timely filed, and
the Court has jurisdiction. 42 U.S.C. § 405(g).
issued an unfavorable decision on April 11, 2013. (AR p. 6).
Based upon the record, the ALJ made the following enumerated
1. The claimant meets the insured status requirements of the
Social Security Act through March 31, 2014.
2. The claimant has not engaged in substantial gainful
activity since December 18, 2008, the alleged onset date (20
CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: lumbar
fusion; fibromyalgia; and post-surgery on right wrist and
left thumb with pins (20 CFR 404.1520(c).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) that is limited to lifting and carrying
twenty pounds frequently and ten pounds
occasionally; standing and/or walking for six hours in
an eight-hour workday; sitting for six hours in an eight-hour
workday; performing occasional postural activities with no
use of ladders; occasionally handling with her light arm; and
occasionally thumb-gripping with her left hand. Additionally,
she needs a sit/stand option in thirty-minute intervals.
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on September 28, 1959 and was 49
years old, which is defined as a younger individual age
18-49, on the alleged disability onset date. The claimant
subsequently changed age category to closely approaching
advanced age (20 CFR 404.1563).
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills (See SSR
82-41and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569 and
11. The claimant has not been under a disability, as defined
in the Social Security Act, from December 18, 2008, through
the date of this decision (20 CFR 404.1520(g)).
(AR pp. 11-20).
REVIEW OF THE RECORD
following summary of the medical record is taken from the
The claimant has a history of degenerative changes of the
lumbar spine most severe at ¶ 4-5 and post-operative
changes related to a prior left hemilaminectomy at ¶
5-S1 with mild to moderate left foraminal stenosis as
demonstrated by an MRI performed on November 17, 2009. A
subsequent MRI revealed moderate central stenosis at ¶
3-4 due to disc bulging and facet hypertrophy. After
conservative treatment measures and epidural steroid
injections failed to relieve the claimant's symptoms, she
underwent a decompressive lumbar laminectomy and fusion at
¶ 4-5 and L5-S1 on December 18, 2008, the alleged onset
date. Exhibits 1F and 3F.
A follow-up treatment note dated January 15, 2009, from the
claimant's orthopedic surgeon, Edward Mackey, M.D.,
reflects that it was planned for the claimant to return to
work in two months on light duty. However, a couple of months
later it was noted that she was improving slowly and still
had lingering back discomfort with burning pain in her toes
although an X-ray showed that her fusion was well-aligned.
She was prescribed Celebrex and Lyrica and given refills of
Lortab, and on April 23, 2009, Dr. Mackey ordered therapy for
core strengthening with a transition to an independent gym
program. Despite the claimant's ongoing symptoms, Dr.
Mackey gave her light duty restrictions of lifting no more
than fifteen pounds, lifting no more than five pounds
frequently, and sitting and standing without limitations.
On May 20, 2009, the claimant complained of worsening
symptoms concerning for neuropathic pain, and she prescribed
an increased dosage of Lyrica. However, it was noted that she
still tried to return to her past work. The following month,
a lumbar MRI showed circumferential effacement of the
epidural fat around the thecal sac at ¶ 4-5 and L5-S1, a
well circumscribed fluid collection in the laminectomy defect
most indicative of a seroma, and mild enhancement of the disc
and endplates of the intervertebral body graft placement due
to either the claimant's recent surgery or early
inflammatory changes. Exhibit 3F.
On June 15, 2009, the claimant met with pain management
provider Jeffrey Hazlewood, M.D., on referral from Dr.
Mackey. She endorsed a "pressure, soreness type
pain" in her lower back that radiated to her right lower
extremity and caused numbness and tingling in her right toes.
However, she endorsed no more than mild to moderate pain with
medication with a pain rating of four to five on a ten-point
scale with ten being the worst. In addition to the
claimant's symptoms, Dr. Hazlewood also noted that she
had a history of left thumb surgery in 2002-2003 and two
right wrist surgeries in 2003-2004. Exhibit 2F.
On examination, Dr. Hazlewood observed that the claimant had
pain getting on the examination table. She had spasms
throughout her lumbar spine, diminished lumbar range of
motion, decreased pinprick sensation in the right posterior
calf, and slightly diminished motor strength in the right hip
flexor and right anterior tibialis with give away. Otherwise,
she had good range of motion throughout all extremities,
negative straight leg raises, normal motor strength in the
upper and lower extremities, normal reflexes, and normal
sensation in the right medial foot and bilateral upper and
left lower extremities. Based on his overall examination, Dr.
Hazlewood diagnosed the claimant with chronic low back pain
with a combination of mechanical and neuropathic pain, lumbar
spasms, and sacroiliac joint pain "probably referred
from the lumbar spine." She was continued on Lyrica,
Celebrex, and Lortab and additionally prescribed Lidoderm
patches. She was also advised to continue using a TENS unit
and scheduled for sacroiliac joint injections. Exhibit 2F.
The next day, June 16, 2009, the claimant met with Dr.
Mackey, who noted that she was doing well neurologically and
had good motor function. However, she had increased pain with
bilateral FABER test, and it was decided that she would
proceed with the sacroiliac joint injections, which was
performed by Dr. Hazlewood on July 7, 2009. Exhibits 2F and
At a follow-up visit to Dr. Mackey on July 28, 2009, it was
noted that the claimant had tried to return to work but had
been unable to do so. Nevertheless, it was determined that
she was twenty-five percent better. A couple of months later,
Dr. Mackey noted that the claimant had not been doing as well
as he would have liked and that that he could not medically
clear her to return to her past work. He instead decided to
send her for a functional capacity evaluation. Exhibit 3F.
The actual findings of that functional capacity evaluation
were not found in the provided records. However, based on the
results of the evaluation, Dr. Mackey assessed permanent
restrictions on October 21, 2009, of no lifting over five
pounds frequently, thirty pounds maximum, ten pounds from
floor to waist, ten pounds from waist to chest, and ten
pounds overhead. He further opined that she needed to
alternate between sitting and standing, sitting for
forty-five minutes per hour and standing for fifteen minutes
per hour. Such restrictions were not inconsistent with a
physical examination conducted by Dr. Hazlewood just a few
days prior on October 6, 2009, with findings of diminished
lumbar range of motion but only mild spasms, non-antalgic
gait, and good range of motion throughout the lower
extremities. Exhibits 2F and 3F.
The following month on November 9, 2009, Dr. Mackey
determined that the claimant had an overall impairment rating
of twenty-two percent based on her persistent back symptoms.
On follow-up visits to Dr. Hazlewood, the claimant endorsed
having no more than moderate pain with medication, and she
stated that medication allowed her to function and have a
better quality of life. Examinations continued to demonstrate
decreased lumbar range of motion, spasms, and tenderness.
However, they also showed negative straight leg raises,
non-antalgic gait, and good range of motion throughout the
lower extremities. Exhibit 16F.
Despite her ongoing symptoms, the claimant reported on April
21, 2010, that she had been looking for work while applying
for disability, and on May 13, 2010, she mentioned that she
had been walking thirty minutes one to two times a day for
exercise. In July 2010, she experienced a significant
flare-up in her low back pain, but on August 5, 2010, she
reported having "dramatic improvement" after being
prescribed Cymbalta. Exhibit 16F.
Several months later on October 21, 2010, Dr. Mackey noted
that the claimant was doing well symptomatically and
continuing with her exercise program. Exhibit 3F.
The claimant continued to endorse having moderate pain with
medication, but on April 8, 2011, and May 5, 2011, she
reported having a higher pain rating of six and seven,
respectively. However, her physical examinations remained the
same with findings of non-antalgic gait, negative straight
leg raises, and good range of motion throughout the lower
extremities. Exhibit 16F.
On May 31, 2011, the claimant underwent a medical
consultative examination conducted by Deborah Morton, M.D. On
examination, she had decreased lumbar, hip, left thumb, and
knee range of motion; mildly positive straight leg raises
bilaterally; diminished deep tendon reflexes in the lower
extremities; diminished strength in the upper extremities;
and absent Babinski reflexes. However, she had normal deep
tendon reflexes in the upper extremities; normal gait,
station, and gait maneuvers; normal strength in the lower
extremities; normal sensation; and normal range of motion in
her shoulders, elbows, wrists, and ankles. The claimant
complained of fibromyalgia but had no pain on palpation of
any trigger points. Exhibit 5F.
Based on her overall examination, Dr. Morton diagnosed the
claimant with lumbar spine fusion status post injury,
fibromyalgia, and left thumb decreased range of motion and
opined sedentary work limitations. Exhibit 5F.
Following the consultative examination, the claimant met with
an orthopedist on June 22, 2011, for evaluation of left
sternoclavicular joint pain. On examination, she had a large
prominence over her right sternoclavicular joint but full
range of motion with good muscle strength and tone, negative
drop arm, no crepitus, and no signs of instability.
Nevertheless, she was diagnosed with right sternoclavicular
joint prominence "most likely due to arthritis."
The evaluating orthopedist determined that it was nothing
more serious than that and recommended "just
watching" the area. Exhibit 7F.
Remaining medical records from Dr. Hazlewood dated June 24,
2011, to February l5, 2013, reflect that the claimant
endorsed increasing pain even with medication but that her
physical examinations remained rather unremarkable and
virtually unchanged from those conducted by Dr. Hazlewood
prior to the medical consultative examination. Specifically,
Dr. Hazlewood's examinations consistently noted decreased
lumbar range of motion but normal motor strength in the
bilateral lower extremities, negative straight leg raises,
non-antalgic gait, and good range of motion throughout ...