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Jenson v. Colvin

United States District Court, D. Arizona

May 9, 2014

Colleen Jenson, Plaintiff,
Carolyn W. Colvin, Defendant.


BRIDGET S. BADE, Magistrate Judge.

Colleen Denise Jenson (Plaintiff) seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1.[1] For the following reasons, the Court affirms the Commissioner's decision.

I. Procedural Background

On June 21, 2010, Plaintiff applied for disability insurance benefits under Title II of the Act. 42 U.S.C. § 401-34. (Tr. 156-62.)[2] Plaintiff alleged that she had been disabled since November 30, 2008. ( Id. ) After the Social Security Administration (SSA) denied Plaintiff's initial application and her request for reconsideration, she requested a hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 28-38.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Medical Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff's health. The record also includes opinions from State Agency Physicians who examined Plaintiff or reviewed the records related to her health, but who did not provide treatment.

A. Medical Treatment

Due to her longstanding back and neck pain (Tr. 302 (reporting having back and neck problems for about thirty years), Plaintiff saw a physician assistant at Arizona Pain Treatment Center and received several epidural steroid injections in March and April 2008. (Tr. 284-302.) Plaintiff reported that the injections provided some relief (Tr. 297, 288-89, 286-87, 284-85), and that over-the-counter medications helped make her symptoms tolerable. (Tr. 302 (pain improved by "heat, activity, sitting, standing, walking, OTC [over-the-counter] medications"); Tr. 284, 286-88 (pain improved by rest and OTC medications).)

1. Tom Masters, D.O.

On January 7, 2009, Plaintiff saw Dr. Tom Masters, D.O., for her back pain and "possible fibromyalgia." (Tr. 305-08.) Dr. Masters noted tenderness in facet areas T11-T-12, tenderness in facet areas L4 and L5, and noted decreased range of motion on extension. (Tr. 305.) He recommended lumbar facet injections and stretching. (Tr. 306.) On April 3, 2009, Dr. Masters noted moderate tenderness at L2 through S1 and at the sacroiliac notches. (Tr. 307.) He assessed chronic law back pain and fibromyalgia. ( Id. ) During that visit, Dr. Masters administered lumbar facet injections at L4, L5, and S1 levels. ( Id. ) He noted moderate tenderness and some decreased range of motion. (Tr. 305-08.)

2. Trent Smith, M.D.

On September 4, 2009, Plaintiff saw Dr. Trent Smith, M.D. (Tr. 345.) Plaintiff complained of fatigue, headaches, neck pain and stiffness, joint pain, back pain, and "soft tissue stiffness." ( Id. ) Plaintiff reported that she had had pain "throughout most of her life." ( Id. ) Plaintiff reported occasionally using Aleve "with benefit." ( Id. ) Dr. Smith assessed osteoarthritis of the hand and fibromyalgia trigger point tenderness (18/18). (Tr. 347.) He prescribed Gabapentin for Plaintiff's fibromyalgia and recommended a follow-up visit in one month. (Tr. 348.)

During a follow-up appointment in late September 2009, Plaintiff complained of fibromyalgia and again reported that she had had pain "throughout most of her life." ( Id. ) Dr. Smith found tenderness at eighteen of eighteen fibromyalgia trigger points and assessed fibromyalgia, fatigue, and oseteoarthritis of the hand. (Tr. 344.) Because Plaintiff reported being intolerant to most prescription medication, including Gabapentin, Dr. Smith discussed "complementary therapy options like manipulation and the helen foundation (homeopathic cortisol) doses." (Tr. 344.) He recommended a follow-up visit in one year. ( Id. )

3. Angela Sturdivant, M.D.

On December 17, 2009, Plaintiff saw Dr. Angela Sturdivant, M.D., at Southwest Family Practice for a "wellness exam." (Tr. 432-33.) Dr. Sturdivant noted that Plaintiff had fibromyalgia. (Tr. 433.) Dr. Sturdivant next saw Plaintiff on March 9, 2010. (Tr. 428.) Plaintiff's chief complaints were neck pain, back pain, and acid reflux. (Tr. 428.) She reported having had neck and back pain "for years." ( Id. ) Plaintiff reported pain with standing. (Tr. 429.) On examination, Dr. Sturdivant noted back pain, tender L5 and cervical area, "normal tone and mass, " and "deferred" examination on Plaintiff's eyes, "HENT, " "lymphatic, " "GI, " "neuro" and "psych." (Tr. 429-30.) She referred Plaintiff to West Valley Pain Management. (Tr. 431.)

Dr. Sturdivant next saw Plaintiff on June 3, 2010. (Tr. 424.) Plaintiff's chief complaints were "medication consult/lump behind knee/thyroid/toe itching." ( Id. ) Plaintiff was "concerned about Prilosec with bone loss. It helps her heart burn." ( Id. ) Plaintiff reported increased fatigue. (Tr. 425.) She also reported receiving physical therapy for fibromyalgia and indicated that "massage therapy, physical therapy, and stretching had minimally improved her symptoms." ( Id. ) Dr. Sturdivant deferred examination on "eyes, " "HENT, " "lymphatic, " "GI, " "GU, " "Neuro, " and "Psych." (Tr. 425-26.) She assessed "menopausal disorder unspecified, " "popliteal synovial cyst, " "fatigue and/or malaise, " fibromyalgia, and "toe anomaly." (Tr. 426.) She recommended an x-ray of Plaintiff's toe, "increased stretches, " and "soy, evening primrose and black cohash." ( Id. )

During an August 2010 visit with Dr. Sturdivant, Plaintiff complained of increased fibromyalgia pain over the previous three weeks, and reported that she was taking Aleve. (Tr. 472.) Plaintiff reported back pain and fatigue. (Tr. 473.) On examination, Dr. Sturdivant noted that Plaintiff was "alert and cooperative without acute distress." ( Id. ) Dr. Sturdivant assessed fibromyalgia. ( Id. )

Dr. Sturdivant saw Plaintiff on November 10, 2010 to complete "disability forms." (Tr. 465.) Plaintiff reported "chronic pain, right UE [upper extremities] worse pain and numbness." ( Id. ) Dr. Sturdivant completed two progress notes on November 10, 2010. In the first note, Dr. Sturdivant states that she completed the disability forms "by interviewing patient." (Tr. 466.) The second progress note reflects that, on examination, Dr. Sturdivant found "no joint pain, stiffness, swelling or redness, " "no muscle weakness or cramping, " "no gait disturbance, dizziness, or syncope, " and "no fatigue, " "no joint/muscle tenderness, " and full range of motion of all joints. (Tr. 469-70.) Dr. Sturdivant continued seeing Plaintiff in 2011. She renewed a prescription for therapeutic massage for Plaintiff's fibromyalgia. (Tr. 556-63 (February 2011), Tr. 545-55 (March 2011), Tr. 541-43 (April 2011).)

4. September 2009 MRIs and 2011 CT Scan

In September 2009, Plaintiff was referred for a cervical spine MRI. (Tr. 499.) The "[f]indings" from the MRI indicated degenerative disk disease and "bony hypertrophic changes" at C3-C4 and C6-C7. (Tr. 500.) The findings also included "mild bony narrowing" of the right and left neuroforamina at C3-C4 and C4-C5, mild to moderate bony narrowing of the left and right neuroforamina at C5-C6, and moderate bony narrowing of both neuroforamina at C6-C7. ( Id. )

In September 2009, Plaintiff was also referred for a lumbar spine MRI. (Tr. 501.) The MRI "impressions" noted degenerative disk disease, appearing most advanced at L5-S1. (Tr. 502.) The MRI also revealed lumbar minimal broad-based disk bulge at L2-L3, mild canal stenosis at L4-L5, broad-based disk bulge at L5-S1 and facet arthrosis with mild bony narrowing of both neuroforamina. ( Id. )

A CT scan of Plaintiff's neck on March 4, 2011 revealed, "[m]oderately severe hypertrophic disc desiccation at the C5-6 and C6-7 levels with reversal of the normal lordotic curvature compatible with muscle spasm." (Tr. 518.) The CT scan also revealed "[p]osterolateral osteophyte formation at each of these levels contributing to moderate to moderately severe bilateral neural foraminal narrowing, and disc protrusions at the C5-6 and C6-7 levels." (Tr. 518.)

5. Navtej Tung, M.D. and James Hawkins, M.D.

Plaintiff saw Dr. Navtej Tung, M.D., at West Valley Pain Management on June 30, 2010 for chronic back and neck pain, which she reported having since the 1970's. (Tr. 439.) She reported neck and back pain, neck and back stiffness, and decreased range of motion. ( Id. ) She described her symptoms as "unchanged." ( Id. ) Plaintiff stated that her pain improved with over-the-counter medication and with ice and massage. ( Id. )

On October 22, 2010, Plaintiff saw Dr. James Hawkins, M.D., at Arizona Spine Care complaining of back, neck, and hip pain. (Tr. 459.) Plaintiff reported that she "had a history of fibromyalgia since her twenties." ( Id. ) Plaintiff reported that she had had epidural injections two years earlier that provided relief. ( Id. ) Dr. Hawkins found that Plaintiff's range of motion was sixty percent of normal, that she had normal motor strength, normal sensation, and some spine tenderness. (Tr. 459-60.) Dr. Hawkins also reviewed the reports from Plaintiff's September 18, 2009 MRIs of her cervical and lumbar spine. (Tr. 462.) Dr. Hawkins diagnosed lumbago and tendinitis of the hip and referred Plaintiff for x-rays and to Valley Pain Specialists for an epidural injection. ( Id. ) X-rays of Plaintiff's hips in October 2010 showed mild osteoarthritis. (Tr. 457.) An x-ray of Plaintiff's lumbar spine showed decreased disc height at L5-S1 and mild degenerative disc disease and facet disease most pronounced at L5-S1. (Tr. 458.)

6. Allan Rowley, M.D. and Ellen Olson, M.D.

On July 8, 2011, Plaintiff saw Dr. Allan Rowley, M.D., at the Spine Institute of Arizona. (Tr. 578.) Plaintiff reported low and mid-back pain, neck pain, right leg pain, and bilateral arm pain. ( Id. ) Plaintiff reported having fibromyalgia "since she was a teenager." (Tr. 579.) Plaintiff reported that epidural steroid injections "three to four years ago" provided "four to five months of good relief of her pain." ( Id. ) She also reported that her pain was constant and "worsened over time." ( Id. ) Plaintiff stated that her pain was "exacerbated by walking, sitting, standing, lying down, kneeling, typing, bending, twisting, lifting, carrying, pushing, pulling and working overhead." ( Id. ) Plaintiff further stated that her pain was reduced with "frequent changes in position, stretching, massage, and or cold packs." ( Id. ) Dr. Rowley diagnosed fibromyalgia and multi-level spinal disc degeneration. (Tr. 578-82.) He recommended a home exercise program and additional epidural steroid injections. ( Id. )

On September 19, 2011, on referral from Dr. Hawkins, Plaintiff saw Dr. Ellen Olson, M.D., at Valley Pain Consultants regarding her back, hip, and neck pain. (Tr. 573.) Plaintiff reported that she had experienced pain for thirty years that was aggravated by "activity, prolonged sitting [and] prolonged standing, " and was alleviated by "heat [and] lying down." ( Id. ) Dr. Olson noted that Plaintiff had chronic pain and fibromyalgia. (Tr. 575.) Dr. Olson recommended epidural steroid injections and referred Plaintiff for a bilateral EMG. ( Id. )

B. Medical Opinion Evidence

1. State Agency Physicians' Opinions

In August 2010, as part of the initial disability determination, David G. Jarmon, Ph.D., conducted a psychiatric evaluation of Plaintiff. (Tr. 443.) He opined that Plaintiff did not have a "significant psychological disturbance." (Tr. 446.) In October 2010, Vivienne J. Kattapong, M.D., a state agency physician, reviewed the medical record and opined there was insufficient evidence to assess Plaintiff's physical limitations. (Tr. 84.) She explained that "to help evaluate [Plaintiff's] disability claim, [the Agency] had scheduled a consultative exam at [the Agency's] expense. (Tr. 87.) Plaintiff "stated that she would not attend [that] appointment and that [she] wanted a decision based on the medical evidence in [the] file." ( Id. ) Dr. Kattapong determined that the record, without a consultative examination, contained insufficient evidence to determine the severity of Plaintiff's physical conditions, and she recommended that Plaintiff's claim for disability benefits be denied. ( Id. )

Plaintiff requested reconsideration and submitted additional medical records in support of her claim. (Tr. 90-91.) Plaintiff again wanted to rely only on the medical record for the disability determination and refused a consultative examination. (Tr. 94, 95.) As part of the reconsideration process, in January 2011, state agency physician Ernest Griffith, M.D., completed an assessment form concluding that Plaintiff could perform light work with some postural and environmental limitations. (Tr. 97-99.) Dr. Griffith opined that Plaintiff could stand or walk for about six hours in an eight-hour workday, sit for more than six hours in an eight-hour workday, occasionally lift twenty pounds and frequently ten pounds, frequently climb ramps or stairs, frequently balance and kneel, occasionally climb ladders, ropes, or scaffolds, crouch, stoop, or crawl, and frequently reach overhead. (Tr. 97-99.) He also opined that Plaintiff should avoid concentrated exposure to hazards. (Tr. 99.)

2. Dr. Sturdivant's Opinions

In November 2010 treating physician Dr. Sturdivant completed a Fibromyalgia Residual Functional Capacity (RFC) Questionnaire and a Pain RFC Questionnaire. (Tr. 475-477, 478-79.) Dr. Sturdivant found that Plaintiff's pain and fatigue and other symptoms prevented her from sustaining work activity on a regular and continuing basis. (Tr. 477.) Dr. Sturdivant completed a Fatigue RFC Questionnaire in September 2011. (Tr. 497.) She opined that Plaintiff's moderately severe fatigue "seriously affected her ability to function, " and would frequently interfere with her "concentration, persistence, or pace." (Tr. 497.) She also noted that Plaintiff needed to nap once or twice a day and opined that Plaintiff could not sustain work on a regular and continuing basis. (Tr. 497.)

III. Administrative Hearing Testimony

Plaintiff was fifty-five years old at the time of the administrative hearing in October 2011, and had a high school education. (Tr. 56-57.) Her past relevant work included hostess and clerical worker. (Tr. 50-51.) Plaintiff testified that she stopped working as a hostess in 2008 because she was laid off. (Tr. 60.) She also testified that around the time she was laid off, she was "having a lot of trouble standing" at work, and that" her "sciatic pain was bothering [her] and ...

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