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Colon v. Colvin

United States District Court, N.D. Georgia, Atlanta Division

March 6, 2015

YOLANDA COLON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner Social Security Administration, Defendant.

FINAL OPINION AND ORDER

JANET F. KING, Magistrate Judge.

Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration which denied her applications for disability insurance benefits and supplemental security income. For the reasons set forth below, the court ORDERS that the Commissioner's decision be AFFIRMED.

I. Procedural History

Plaintiff Yolanda Colon filed applications for disability insurance benefits and supplemental security income in June 2010, alleging that she became disabled on July 14, 2008. [Record ("R.") at 28, 118-28]. After her applications were denied initially and on reconsideration, an administrative hearing was held on February 21, 2012. [R. at 28, 44-72]. The Administrative Law Judge ("ALJ") issued a decision denying Plaintiff's applications on March 9, 2012, and the Appeals Council denied Plaintiff's request for review on October 15, 2013. [R. at 1-6, 28-37]. Plaintiff filed her complaint in this court on December 17, 2013, seeking judicial review of the Commissioner's final decision. [Doc. 3].

II. Facts

The ALJ found that Plaintiff has HIV, cervical sprain/strain, and de Quervain's tenosynovitis bilaterally, impairments that are "severe" within the meaning of the Social Security regulations. [R. at 30]. However, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. at 34]. The ALJ found that, although Plaintiff is unable to perform any past relevant work, there are jobs that exist in significant numbers in the national economy that she can perform. [R. at 35-36]. As a result, the ALJ concluded that Plaintiff has not been under a disability from July 14, 2008, the alleged disability onset date, through the date of the ALJ's decision. [R. at 37].

The decision of the ALJ [R. at 28-37] states the relevant facts of this case as modified herein as follows:

At the hearing, the claimant presented with a bandage on her wrist, stating that she has worn this since 2008. She stated that she uses it when the weather is bad or if she uses the hand repeatedly. She also reported use of a soft cervical collar "most of the time" since 2007. These devices were recommended by treating orthopedists. The claimant stated that she last worked at UPS as a sorter and loader but injured her wrist after which she stopped working. She stated that she underwent surgery on the right wrist in July 2008 and has not attempted to find work since that time. The claimant alleged ongoing pain and limitations due to neck and wrist pain. She has been treated at an orthopedic facility but has not been able to afford treatment in the preceding 18 months. She was diagnosed with HIV but denied any limiting symptoms. Ms. Colon stated that she lives alone but has help with chores. She admitted that she is able to do some light housework but only feels well enough to do so "off and on" about once a week. Even then, she is only able to work about 15 minutes. She stated that she spends most of her day lying down and reading magazines. She stated that she tries to get up but feels as if she is going to pass out.

Records from R. Yang, M.D., reveal that the claimant was treated for a period of time for a variety of benign ailments. She was treated conservatively with acceptable resolution. (Exhibit 1F). Dr. Yang's records do not include any probative information relative to the allegedly disabling impairments.

During the same time period, Ms. Colon was evaluated for a second opinion at Peachtree Orthopedic presenting on January 25, 2007, for work-related injury to the cervical spine. She described neck pain involving the cervical paraspinal muscles and both trapezius muscles. She also described pain extending up to the occiput as well as right posterior scapular pain. The claimant related this pain to an injury that she sustained at work on December 10, 2006, at which time she was loading a truck and was performing repetitive lifting and bending. She was moving packages throughout this time and felt a pop in her neck and began experiencing pain in the right side of the neck. Following an initial evaluation which included orthopedic clinical and MRI considered to be normal, she underwent physical therapy. Following that, she was at maximum medical improvement and released to return to work without restriction.

The claimant complained that she had experienced chronic neck pain since that time and had also received chiropractic treatment over a period of three years. Of note, Ms. Colon volunteered that she had been involved in a remote motor vehicle accident in 1982 and had neck pain off and on since that time. Currently, she reported pain with lifting and prolonged sitting. She stated that she can use a support and have some relief of pain. Review of prior x-rays and an MRI garnered concurrence of opinion that the studies were normal. The claimant admitted that her current medications consisted only of over the counter Aleve. On examination, there was significant tenderness to palpation about the cervico-thoracic midline area and both trapezius muscles. She had unrestricted cervical flexion and extension and moderate restriction in right and left rotation. Spurling's maneuver was negative to the right and left with associated neck pain. Motor functions were graded 5/5 in shoulder abduction, elbow flexion and extension, wrist flexion and extension, and in hand intrinsic muscles and finger flexors bilaterally. Sensation was intact to light touch in both upper extremities. Deep tendon reflexes were 1 in both triceps tendons; 1-2 in both biceps tendons; 1-2 in both brachial radialis tendons; 2 Achilles reflexes bilaterally; and 2 patellar reflexes bilaterally. There was no ankle clonus on the right or left. Assessment was remote cervical strain/subjective pain without any specific objective findings. The examiner, Lee Kelly, M.D., stated that he agreed with Dr. Edwards with regards to the assigned date of return to work without restriction and the date of maximal medical improvement. He stated that the claimant did not have any basis for assignment of a permanent partial impairment rating with regards to alleged work-related injury of December 10, 2006, and that her treatment should involve an ongoing home exercise program. It was stated that the claimant did not require any other treatment.

In follow-up visit of February 2, 2007, the claimant was noted to be in no acute distress. She was alert and oriented times three. She ambulated with a normal gait. Examination of the cervical spine revealed full range of motion, diffuse tenderness, and a negative Spurlings test. Examination of the shoulder and elbow revealed full and painless motion. Examination of the wrist and hand revealed tenderness over the radial styloid. The claimant had a positive Finkelstein's test and was minimally tender at the anatomic snuffbox. It was not clear whether the tenderness was coming from the first dorsal compartment tendons or from the scaphoid. She had intact radial and ulnar pulses and intact sensation distally. Diagnostic x-ray of the wrist revealed no evidence of fracture or dislocation. Scaphoid view with the wrist in ulnar deviation was obtained that showed no evidence of acute fracture or chronic fracture of the scaphoid. Impression was right wrist de Quervain's tenosynovitis. Secondarily, a cortisone injection was administered, and she was placed in a thumb spica splint for treatment. (Exhibit 2F).

Thereafter, records from Medipractic Pain Management and ProHealth Integrated Medical reveal receipt of both trigger point injections and physiological therapies. Longitudinally, the claimant reported benefit from treatment; however, on January 14, 2008, she stated that she "feels a need to be off work awhile." Still, subjective allegations were primarily of limited cervical movement and muscle tightness garnering impression of myalgia, myoscitis and spasm. There was waxing/waning of symptoms. On March 24, she reported recurrent neck pain occurring while in church. On April 24, she reported feeling better following a course of steroids. And in June 2008, she reported feeling "much better." Concomitantly, objective findings were considered only mildly positive.

In January 2009, Constance Cowdan, NP, reported normal range of motion in the cervical spine globally with no pain; normal range of motion in the lumbar spine; 2 reflexes and normal straight leg raising and other diagnostic testing. Other than tenderness to the trapezius muscles, examination was overall normal. (Exhibits 3F and 4F). Diagnostically, a brain CT on January 28, 2010, revealed incidental arachnid cyst within the cerebellar cistern, but, otherwise, it was an unremarkable exam. A repeat study of December 7, 2010, revealed no interval changes. (Exhibit 9F). Due to ongoing complaints of neck pain, a cervical MRI on October 14, 2008, was performed, revealing tiny midline disc spur at C4/5 and C5/6, noncompressive. There was abnormal appearance of the upper posterior fossa in the region of the superior cerebellar cistern, though not fully visualized. (Exhibit 2F). Ms. Colon also underwent left wrist arthrogram on April 21, 2008, showing a possible tear of the scapholunate interosseous ligament and pinhole TFC perforation. Otherwise, the examination was normal. A right wrist arthrogram revealed a TFCC central perforation but was otherwise unremarkable. Specifically, the scapholunate interosseous ligament appeared intact.

As indicated in the claimant's hearing testimony, Ms. Colon also sought chiropractic treatment for cervical spine and shoulder pain beginning in July 2010. Following a series of chiropractic modalities, Matthew Shin, D.C., submitted a "To Whom it May Concern" letter dated December 20, 2010, in which he noted treatment for neck pain. He noted that Ms. Colon rated her neck pain as "moderate" with occasional occurrence (25-50% of the time) with aggravating factors of bending. Relieving factor was reported as "rest." He noted that the claimant's general movement was guarded; however, during the course of treatment, various testing was performed which proved negative. These included shoulder depression test, Jackson cervical compression test, and cervical distraction test. A cervical x-ray revealed mild cervical hypolordotic curve. Overall diagnostic impression was cervical segment dysfunction, cervical strain/sprain, and cervicalgia. Dr. Shin stated that the claimant had been treated with spinal manipulation, traction, therapeutic exercise, and other physiotherapy modalities which were used: to reduce nerve root irritation, pain reflexes, and biomechanical stability; to restore normal range of motion of the spine; and to decrease muscle spasm. (Exhibit 11F).

On November 5, 2010, the claimant was seen status post right wrist de Quervain's tenosynovitis release, bilateral TFCC tear. The claimant stated that she continued to have bilateral wrist pain with the left being worse than the right. The area of the de Quervain's release was not painful. She was complaining of diffuse pain at the volar aspect of her wrist. She complained of pain both on the ulnar and the radial aspect of her left wrist. When probed about the level of pain, she stated that the pain was not bad enough for her to want to proceed with surgery at this point. This offer was made because she reported her pain level as an eight to nine out of ten. She described the pain as being dull and achy. On physical examination, Ms. Colon was in no acute distress. Examination of her bilateral wrists revealed no radial styloid tenderness. She had full range of motion. She had a negative Finkelstein's test. She had vague tenderness at the ulnar carpal sulcus. Impression was bilateral de Quervain's tenosynovitis status post right de Quervain's release and bilateral TFCC tear with no indication for surgery. The claimant was discharged to follow-up on an as needed basis and TNS was recommended for pain management. She was considered to be at maximum medical improvement and was assigned two percent permanent partial impairment. Celebrex and Prilosec and physical/occupational therapy prescription were given. (Exhibits 10F and 14F).

Records of treatment/monitoring of HIV status from A. Lopez, M.D., reveal effective therapies/medication for the condition with no notable immunological issues. These records offer commentary relative to the claimant's ongoing orthopedic and worker's compensation/disability issues but include no probative information relative to that situation. Dr. Lopez declined to complete a disability report at the claimant's request, indicating that he was not able to comment on her orthopedic condition. The record regarding HIV is remarkable for a hospital admission on September 29, 2009, for treatment of bilateral multilobar pneumonia, most likely viral. Secondary diagnoses were HIV positive with bone marrow suppression due to viral infection; thrombocytopenia, again due to bone marrow suppression; leucopenia; and hypokalemia. During the course of treatment which included various antibiotics/antifungals, the claimant was continued on antiretroviral therapy and realized progressive improvement. At discharge, she was felt to be stable for discharge home on October 4, 2009, to follow with her infectious disease physician. Ms. Colon followed subsequently at the DeKalb health center. (Exhibits 5F, 6F, 7F).

On June 30, 2011, Richard Zabowski, M.D., [1] submitted a pain assessment and physical assessment in which he limited the claimant to lifting a maximum of five pounds occasionally and one pound frequently. He stated that she could: never climb; rarely push/pull with the left upper or lower extremities and occasionally with the right upper and lower extremities; bend, stoop, and perform fine manipulation; and occasionally reach with the upper extremities. Dr. Zabowski also stated that the claimant's pain was to such extent that she would be distracted from performing daily work or activities and cause distraction from tasks or total abandonment from tasks. (Exhibit 15F/2, 4).

Included in the record is a medical assessment submitted by Dr. Nancy Koughan dated April 11, 2011. The report indicates that the claimant was limited to lifting ten pounds occasionally and five pounds frequently, sitting four hours, and standing/walking one hour in an eight-hour workday. With respect to postural maneuvers and manipulative abilities the reporter gave conflicting opinions, i.e., stating that the claimant would have the ability to occasionally, rarely, and never perform gross manipulation and reach. A similarly confusing opinion was given in regard to all other nonexertional abilities. Dr. Koughan offered a ...


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