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Sanders v. Berryhill

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

March 8, 2018

MELISSA SANDERS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER AND OPINION [1]

          ALAN J. BAVEKMAN UNTIED STATES MAGISTRATE JUDGE.

         Plaintiff Melissa Sanders (“Plaintiff”) brought this action pursuant to section 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 (“the Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) under the Social Security Act.[2] For the reasons below, the undersigned REVERSES the final decision of the Commissioner AND REMANDS the case to the Commissioner for further proceedings consistent with this opinion.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for DIB on February 28, 2011, alleging disability commencing on September 16, 2010. [Record (hereinafter “R”) 391]. Plaintiff's applications were denied initially and on reconsideration. [See R177-79]. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). [R213-14]. An evidentiary hearing was held on January 10, 2013. [R53-109]. The ALJ issued a decision on March 12, 2013, denying Plaintiff's application on the ground that she had not been under a “disability” from the alleged onset date through the date of the decision. [R180-96]. Plaintiff sought review by the Appeals Council, and on May 29, 2014, the Appeals Council remanded for further consideration. [R197-99]. The ALJ started a second hearing on November 4, 2014, but rescheduled the matter in order to receive all of the medical evidence. [R110-20]. A third evidentiary hearing was held on March 17, 2015. [R121-76]. On June 9, 2015, the ALJ issued a decision denying Plaintiff's application on the ground that she had not been under a “disability” from the alleged onset date through the date of the decision. [R25-52]. Plaintiff again sought review by the Appeals Council, and the Appeals Council denied Plaintiff's request for review on October 27, 2016, making the ALJ's decision the final decision of the Commissioner. [R1-8].

         Plaintiff then filed her action in this Court on November 14, 2016, seeking review of the Commissioner's decision. [Doc. 1]. The answer and transcript were filed on March 15, 2017. [See Docs. 5, 6]. On April 20, 2017, Plaintiff filed a brief in support of her petition for review of the Commissioner's decision, [Doc. 11]; on May 22, 2017, the Commissioner filed a response in support of the decision, [Doc. 12]; and on June 2, 2017, Plaintiff filed a reply brief in support of her petition for review, [Doc. 13]. The matter is now before the Court upon the administrative record, the parties' pleadings, and the parties' briefs, [3] and it is accordingly ripe for review pursuant to 42 U.S.C. § 405(g).

         II. PLAINTIFF'S CONTENTIONS

         As set forth in Plaintiff's brief, the issues to be decided are:

1. Whether the ALJ reversibly erred by failing to properly explain why he did not fully credit the opinion of Keith Osborn, M.D., Plaintiff's treating orthopedic surgeon, as to her physical limitations.
2. Whether the ALJ reversibly erred by failing to consider all of the relevant evidence of record in discounting the credibility of Plaintiff's allegations of pain and limitation.

[Doc. 11 at 10-28].[4]

         III. STATEMENT OF FACTS[5]

         A. Background

         Plaintiff can read and write in English, has a twelfth-grade education, and has worked as a process server. [R461-63]. Born on April 13, 1972, she was thirty-eight years old on the alleged onset date and application date and was forty-one years old on December 31, 2013, the date she was last insured. [R178, 391]. Plaintiff alleges disability due to back pain, neck problems, nerve damage in the neck and shoulders, depression, radiculopathy, [6] panic attacks, and headaches. [R61, 126, 462].

         B. Lay Testimony

         Plaintiff stated that she spent her days at the house, getting “up and down” to change ice packs and to alleviate pain in her neck, back, and hips. [R139-40]. She stated that she was only able to sleep two or three hours per night. [R139]. She testified that her neck, back, and hip pain made it difficult to sit or stand for any period of time or to lift any weight. [R139-40, 144, 147-48]. She also reported tingling in her left arm that had begun when she had a spinal surgery in 2007 and had become worse since she had a second spinal surgery in 2012. [R151-52]. She stated that she experiences four headaches per week, each of them lasting two to six hours. [R153-54].

         In terms of treatment, Plaintiff reported that she only attended a few physical therapy treatments, explaining that they caused her to be in more pain. [R144-45]. She had slowed the rate of receiving trigger-point shots from her pain specialist. [R145-46]. At the time, her medications included hydrocodone[7] for pain and Ambien[8] for sleep. [R149-50]. She reported that the intensity of her neck pain was usually around nine or ten on a ten-point scale but that using ice packs reduced her pain to five or four. [R157]. Plaintiff also stated that she had a TENS[9] unit but only sometimes used it because it would increase her pain. [R161].

         As to daily activities, Plaintiff stated that she liked to watch CSI on television and to watch crime movies. [R155]. Plaintiff testified that she was able to drive her H2 Hummer four times per month, up to forty-five minutes at a time. [R128, 137, 174]. She had no problems with self-care except washing her hair. [R133-34]. Around the house, she could clean the floors with a light-weight dust mop and light-weight vacuum, load the dishwasher, wash laundry, and walk to the mailbox. [R134-35]. Plaintiff's sister helps her with the cleaning and dries the laundry, and Plaintiff's daughter does almost all of the grocery shopping. [R78-79, 134-35].

         C. Administrative Records

         Plaintiff stated in a function report that she lived in a house with her daughter and spent her days keeping ice on her neck and rotating from sitting, to lying down, to walking in order to avoid pain. [R477]. She reported that she was no longer able to jog, work out, or work because of her pain, that it hurt to wear a bra, and that she no longer styled her hair because she could not hold her arms up. [R478]. She stated that she was only able to use the microwave oven and that her daughter does the cooking and helps with the laundry and housework. [R478-79]. She reported that she could pay bills, count change, and handle a savings account. [R480].

         D. Medical Records

         Plaintiff fell and injured her neck while she was working as a policewoman. [R613]. After conservative measures failed, on September 18, 2007, Dr. Osborn performed a partial vertebrectomy, C5-6 with spinal cord and foraminal decompression, and an anterior cervical discectomy at ¶ 6-7, with removal of large free fragments from the canal and foramen. [R613-14].

         At a follow-up visit with Dr. Osborn taking place on October 17, 2007, Plaintiff reported that she was off narcotic pain medications and “doing a lot better.” [R674]. Her x-rays showed good position of her hardware and bone grafts at ¶ 5-6 and C6-7. [R674]. Dr. Osborn noted that Plaintiff still had a “burning dysesthestic pain”[10] in her left arm that appeared to relate to chronic compression of her left C7 root, fairly dense numbness in the left index finger, and less dense numbness in the middle and ring fingers of the left hand. [R674]. He also observed that Plaintiff's strength had improved but was not back to normal. [R674]. Dr. Osborn started Plaintiff on Lyrica, [11]Celebrex, [12] and trazodone[13] for sleep difficulty and left-arm pain; started her on tizanidine[14] for muscle spasm in her left trapezius[15]; and stated that she would “remain out of work for now.” [R674].

         At another follow-up visit taking place on November 15, 2007, Plaintiff reported that she had to stop taking her medications because of swelling and that she was unable to sleep at night. [R675]. Her main complaint was pain in the left scapular and trapezius region and still fairly dense numbness in the left index finger and to lesser degree in the middle and ring fingers. [R675]. Dr. Osborn noted that Plaintiff was improving slowly, recommended that Plaintiff use the Lyrica and Celebrex, recommended that she continue rehabilitation services, and opined that Plaintiff was capable of part-time sedentary work. [R675]. He also noted that Plaintiff had contacted her chief and that he did not want her to return to work until she was released to full duty. [R675].

         On January 16, 2008, Plaintiff returned to Dr. Osborn. [R520-21]. She had been fired from her job. [R520]. She complained of pain in her neck, left shoulder, and arm, and dysesthestic pains in the left arm and hand. [R520]. She reported that sitting for long periods caused her numbness and tingling to get worse, that she felt some burning in her left thumb and index finger, that her arms felt like they had no circulation, and that wearing a bra seemed to significantly worsen her symptoms. [R520]. Upon examination, Dr. Osborn observed that Plaintiff had pain at the extremes of range of motion of her neck, there was still subluxation[16] and muscle spasm in the trapezius area, Plaintiff still had diminished coordination of the left arm, reflexes were diminished in the left biceps and triceps, there was decreased sensation in the left hand, and motor strength was still mildly diminished in the left arm compared to the right. [R520]. Dr. Osborn opined that Plaintiff appeared to be healed from an orthopaedic standpoint but that she “clearly ha[d] sustained some nerve injury from the pressure of the disk herniation against her spinal cord and exiting nerve roots” and it could “take some months or years to reach a point of maximum improvement and may or may not result in full recovery.” [R520]. Dr. Osborn further opined, “I think she has significant impairment in her ability to work at this point, and this could be permanent. It is unfortunate[] that she has been fired from her job. She remains capable of only sedentary work and will benefit from pain management possibly with an epidural steroid injection.” [R521].

         On August 18, 2008, Plaintiff visited Anthony C. Carantzas, M.D., at Douglasville Resurgens Orthopaedics for follow-up of shoulder impingement on the right. [R777]. It was noted that she had an injection a couple of weeks earlier and that she had noticed significant improvement. [R777]. Dr. Carantzas stated that Plaintiff could work with limited use of the right arm, limited overhead work, and no heavy lifting. [R777].

         Plaintiff visited psychologist David B. Adams, Ph.D., on June 3, 2009. [R690]. Dr. Adams noted that Plaintiff arrived in considerable bilateral neck and shoulder pain, with numbness of the first two fingers of her left hand, and was irritable and periodically tearful. [R690]. It was also noted that Plaintiff spent a lot of time with her daughter in a piece of rental property because she was too irritable to interact with her husband and that Plaintiff's family expressed frustration that she was sullen and withdrawn. [R690]. Plaintiff had symptoms of depression, anxiety, sleep disorder, irritability/impatience, and obsessive thoughts. [R690]. Dr. Adams diagnosed pain disorder associated with both psychological factors and Plaintiff's general medical condition and also diagnosed major depressive disorder with mild symptoms. [R690].

         Physical therapist Alex Ghaffari completed an assessment of Plaintiff on December 14, 2009. [R882-86]. Mr. Ghaffari observed that Plaintiff demonstrated significantly decreased left-upper-extremity strength, decreased cervical-spine flexibility, forward head posture, and increased cervico-thoracic para-spinal muscle tightness. [R882]. She had partial functional range of motion in the left shoulder and was unable to perform fine and gross grasping tasks, both at the table level and the shoulder level, utilizing the left arm. [R882]. Mr. Ghaffari concluded that Plaintiff (1) could perform fine and gross motor skills with her left arm only occasionally; (2) had difficulty sitting for about thirty to forty-five minutes but tolerated the pain; (3) had reduced range of motion in the left shoulder; (4) had limited active range of motion and joint mobility in the neck and upper thoracic area; (5) had to move constantly with her head in slight extension with decreased cervical lordosis[17] and rounded shoulders; (6) had decreased coordination, endurance, and strength in the left shoulder, neck, and thoracic spine; and (7) had high intensity pain in the neck and upper back with flexion/extension, and rotation. [R884-86]. Mr. Ghaffari opined that Plaintiff could do sedentary to light work but that she “would not be able to perform her job duty on a full time or sustained basis at . . . present.” [R882]. The stated plan was physical therapy twice weekly for twelve weeks, a TENS unit for pain management at home, joint mobilization and manual therapy, cervical traction, acupuncture and dry needling for pain and muscle guarding, strength- and re-conditioning, and a home exercise program. [R886].

         At a visit with Dr. Osborn taking place on December 16, 2009, Plaintiff continued to complain of neck and left-arm pain with weakness and atrophy in the left arm. [R1384]. An examination showed tenderness in the neck, reduced neck motion, exquisite tenderness to the left of the midline, diminished reflexes in the left biceps and triceps, some atrophy in her arm, and decreased sensation in the C6-7 distribution, but also a normal gait and station and no neck subluxations. [R1384]. X-rays of the cervical spine showed solid fusion at ¶ 5-6 and C6-7 with degenerative changes developing at ¶ 4-5 with anterior osteophytes[18] and uncovertebral joint hypertrophy.[19] [R1384]. Dr. Osborn noted that the results represented junctional deterioration but found that there were no symptoms to suggest that it was the primary source of Plaintiff's pain and instead diagnosed cervical radiculopathy and recommended a trial of acupuncture. [R713, 1384-85]. He also noted that Plaintiff was capable of sedentary work, defined as lifting a maximum of ten pounds, occasionally lifting and/or carrying articles such as dockets, ledgers, and small tools, and doing a “certain amount” of walking and standing. [R713].

         An MRI of Plaintiff's cervical spine taken on December 4, 2010, revealed (1) interspace narrowing with spondylotic ridging[20] and a broad-based disc bulge at ¶ 4-5 causing moderate central canal and moderate bilateral foraminal stenosis[21]; and (2) interspace narrowing with spondylotic ridging and a broad based disc bulge together causing mild central canal stenosis and mild-to-moderate bilateral foraminal stenosis at ¶ 3-4. [R1347-48].

         John G. Porter, M.D., a pain specialist, examined Plaintiff on February 22, 2011. [R1341]. Upon examination, Dr. Porter observed that Plaintiff's affect was depressed; upper-extremity reflexes could not be obtained at the triceps, biceps, or brachioradialis points bilaterally; strength was diminished on the left in grip strength, biceps, triceps, and deltoid testing; there was mild atrophy of the left forearm and upper arm; sensation was diminished in the index finger and third finger and to some degree in the thumb; there were trigger points in the trapezius on the left; range of motion was normal in flexion and in right turn; left turn was limited to forty-five degrees; and hyperextension caused Plaintiff to have numbness across her neck and upper back. [R1341]. Dr. Porter noted that he was concerned about a structural abnormality that might require surgical repair, opined that Plaintiff's pain was primarily neuropathic, and noted that ibuprofen had been ineffective and caused stomach upset. [R1341].

         On August 23, 2011, Carl Sherrer, M.D., reviewed the record and opined that Plaintiff had the ability to lift and/or carry twenty pounds occasionally and ten pounds frequently; could stand and/or walk for about six hours in an eight-hour workday; could sit for about six hours in an eight-hour workday; could occasionally climb or crawl; could frequently balance, stoop, kneel, or crouch; could reach in all directions occasionally with both arms; and had a limited ability to feel, due to numbness in the index and third fingers of her left hand. [R1233-40].

         Plaintiff returned to Dr. Porter on September 2, 2011. [R1246-48]. She reported that she was taking medications as prescribed and that Xanax[22] and hydrocodone were helping, but that she still had neck pain, tingling all the way to the fingers of her left hand, intermittent numbness and left-arm weakness, and now had pain in her right arm as well as her left. [R1246]. Dr. Porter noted that Dr. Osborn was considering a second fusion surgery above Plaintiff's prior fusion. [R1246]. He prescribed ibuprofen, topiramate, [23] nortriptyline, [24] fluoxetine, [25] and meloxicam.[26] [R1246]. He stated that he doubted that repeated injection therapy or physical therapy would make a substantive difference in Plaintiff's condition and stated that he would refill Plaintiff's medication as he “really ha[d] nothing else to offer her beyond this.” [R1247].

         Plaintiff reported to Dr. Osborn on September 12, 2011, for follow up. [R1289]. She complained of continued pain in her neck that went into both arms, more on the left than the right, and of numbness in her left arm. [R1289]. It was noted that Plaintiff was prescribed Ambien, Lortab, [27] and Xanax through Dr. Porter and that she had received “a lot of relief” from massage therapy, more than from rehabilitation, and had received some relief from acupuncture. [R1289]. It was noted that a review of systems was negative for neurological or musculoskeletal complaints. [R1289]. She had some tenderness and reduced motion in the neck, but she had normal gait, no clear motor or reflex deficits, no overt myelopathy, and normal lower extremities. [R1289]. The impression given was known C4-5 spondylosis with neural compression. [R1289]. Dr. Osborn stated that although he believed Plaintiff would need additional surgery, he would for now continue with conservative measures of massage therapy, a trial of acupuncture, supportive counseling through Dr. Adams, and medication management through Dr. Porter. [R1289].

         On December 7, 2011, Plaintiff sought help on an emergency basis from Dr. Porter for severe right-neck pain that had persisted for three days and was radiating to her upper back, shoulder blade, and left arm, with a burning, numbing sensation in her left biceps, index, and third fingers on the left. [R1432]. Her strength was decreased on the left as was her sensation in a C6 distribution, and her cervical range of motion was diminished in turning, flexion, and extension. [R1433]. Dr. Porter instituted muscle relaxant therapy with tizanidine, refilled alprazolam, and continued meloxicam and zolpidem. [R1433]. Dr. Porter also wrote that the best he could do was provide palliative management with trigger-point injections and muscle-relaxant therapy and hope that Dr. Osborn had a surgical remedy. [R1432-33].

         Plaintiff returned to Dr. Osborn for follow up on December 12, 2011. [R1497-98]. She complained of increasing pain in her neck that radiated into her right arm and would go into the shoulder and down into her hand sometimes. [R1498]. Dr. Osborn noted that Plaintiff would like to continue to try to avoid surgery and would work with Dr. Porter but that if her symptoms worsened, surgery would be indicated. [R1498]. Plaintiff was also prescribed a soft cervical collar to help control her pain. [R1498]. Dr. Osborn noted that Plaintiff was only capable of part-time sedentary work. [R1497].

         On December 22, 2011, Plaintiff returned to Dr. Adams for the first time in two and one-half years. [R1445]. It was noted that Plaintiff was divorced; was angry, sullen, and frustrated; was in a contentious and ongoing battle with her ex-husband; had financial limitations; and was fearful of an additional surgery, which she had been postponing. [R1445]. She was observed to exhibit symptoms of depression, anxiety, sleep disorder, problems with concentration, irritability and/or impatience, intrusive thoughts, and obsessive thoughts. [R1445]. It was noted that Plaintiff recurrently discontinued needed psychological care each time her depression abated due to the care and that she shunned dependency. [R1445]. Dr. Adams again diagnosed pain disorder associated with both psychological factors and general medical condition and also diagnosed major depressive disorder (single episode, moderate). [R1445].

         Plaintiff again returned to Dr. Adams on January 11, 2012. [R1446]. She reported that her neck pain had worsened and that she had researched the recommended surgical procedure and did not wish to pursue it. [R1446]. She was observed to exhibit symptoms of depression, anxiety, sleep disorder, irritability and/or impatience, obsessive thoughts, compulsive behaviors, and problems with concentration and recent memory. [R1446]. Dr. Adams again diagnosed pain disorder associated with both psychological factors and general medical condition and major depressive disorder (single episode, moderate). [R1446].

         Plaintiff returned to Dr. Porter on February 7, 2012, with complaints of left-back and neck pain with radiating left-arm pain. [R1441]. Plaintiff reported that physical therapy was not really helping her, that massage therapy was helpful for a day or so, and that a TENS unit seemed to help with her pain. [R1441]. On examination, reflexes could not be obtained on the left at the triceps, biceps, or crachioradialis points; strength was slightly diminished on the left in biceps and grip testing; sensation was slightly decreased in the left C6 distribution; range of motion was decreased in turning and extension; and examination of the back revealed left trapezius and rhomboid trigger points. [R1442]. Dr. Porter noted Plaintiff was stable and compliant with medication usage; refilled her medications; discontinued physical therapy because it was not helping; injected trigger points in the left trapezius and rhomboid muscle; and suggested that a facet rhizotomy[28] might be indicated, pending results of diagnostic facet joint injections, [29] and could help her move forward without requiring additional surgical intervention. [R1442-43].

         Plaintiff presented to a physician's assistant at Dr. Osborn's practice on February 9, 2012, complaining of headaches; persistent neck and upper-back pain; left-arm pain, numbness, and weakness; and some mid-back pain. [R1493-95]. She reported that despite taking Ambien, Mobic, Lortab, Xanax, and Topamax, the pain was nine on a ten-point scale. [R1493]. On examination, Plaintiff had tenderness to palpation in the neck and shoulders and restricted flexion, extension, rotation, and lateral bending with pain, but she also had normal gait and alignment, full strength, normal coordination and balance, intact reflexes, normal sensation, and full bilateral shoulder motion without pain. [R1493-94]. It was noted that Dr. Porter was scheduled to perform facet injections[30] with a possible ablation procedure[31]; Dr. Osborn recommended additional fusion surgery of the cervical spine; Plaintiff wanted to wait on the surgery until the summer when her daughter was out of school; and Plaintiff would continue with her medicines per Dr. Porter. [R1494]. Plaintiff's work status was “unchanged.” [R1494].

         An MRI taken on September 24, 2012, revealed multilevel degenerative disc disease most pronounced at ¶ 4-5, with right greater than left neural foraminal narrowing at ¶ 3-4 and left-sided neural foraminal narrowing at ¶ 4-5. [R1573-74].

         At an appointment taking place on October 10, 2012, Dr. Osborn noted that Plaintiff's progressive arm numbness and weakness and her neck pain related to cord compression with herniated disks at ¶ 3-4 and C4-5 and opined that Plaintiff should have another cervical fusion. [R1572]. Plaintiff agreed. [R1572]. The same day, Dr. Osborn also opined Plaintiff could do sedentary work with restrictions, pending approval for surgery. [R1663].

         Plaintiff complained to Dr. Porter on November 13, 2012, of increased neck and back pain. [R1592]. She described a deep and aching pain in her neck, upper back, and left arm, which was worsened with coughing, activity, and bowel movements. [R1592]. She also reported that her arm felt weak and tingly. [R1592]. It was noted that Plaintiff was only using medication “on occasion” because she did not like medication in general, that she was using her TENS unit occasionally, and that she was using cold packs. [R1592]. Dr. Porter stated that he had “nothing to offer the patient today except reassurance” and that he did not think additional trigger-point injections were warranted or would help her. [R1593]. He recommended that Plaintiff continue her TENS unit therapy and cold packs until she could have her surgery. [R1593].

         On November 30, 2012, Dr. Osborn performed a C3-4, C4-5 discectomy, spinal cord decompression, and fusion. [R1699, 1725].

         Plaintiff returned for a follow-up visit to Dr. Osborn on February 6, 2013, with complaints of persistent neck and upper-back pain and some left-upper-arm pain. [R1698]. She noted hypersensitivity, burning pain in the neck and upper-back area, continued headaches, recurrent numbness and weakness in both arms, and pain averaging eight on a ten-point scale. [R1698]. Upon examination, it was noted that Plaintiff's range of motion of the cervical spine was restricted with pain; sensation and reflexes of upper extremities were unchanged from pre-op; and Plaintiff had diffuse tenderness and sensitivity over the neck and upper back. [R1698]. She was also observed to have full strength in her upper extremities, and her surgical hardware was intact. [R1698]. She was started on ...


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