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Martin v. Colvin

United States District Court, D. Arizona

July 31, 2014

Heather Martin, Plaintiff,
Carolyn W. Colvin, Defendant.


BRIDGET S. BADE, Magistrate Judge.

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

I. Procedural Background

On September 29, 2010, Plaintiff applied for disability insurance benefits under Title II. (Tr. 139-40.)[1] She alleged disability beginning on July 16, 2010. (Tr. 139.) The Social Security Administration (SSA) denied Plaintiff's claims initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ). (Tr. 121.) After conducting a hearing, the ALJ issued a decision finding that Plaintiff was not disabled under the Act. (Tr. 12-23.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-8); 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 under 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.[2] The record also includes an opinion from a State Agency Physician who examined Plaintiff, but who did not provide treatment, and a lay witness statement.

A. Treatment Records

Due to injuries Plaintiff sustained in a car accident, Plaintiff had surgery to fuse two vertebrae levels of her cervical spine (C1-C2). (Tr. 306.) In August 2006, Plaintiff saw neurologist George Wang, M.D., with complaints of continuing neck pain that radiated into her arms. (Tr. 293, 306.) On examination, Plaintiff had full strength in her upper and lower extremities, except for decreased muscle strength in her left bicep. (Tr. 307.) Dr. Wang also noted that Plaintiff had "mildly decreased sensation on the left upper extremity." ( Id. ) She had normal coordination, normal gait, and intact hearing. ( Id. ) The results of her neurological tests were consistent with mild cervical radiculopathy at vertebrae levels C5 and C6, but were otherwise normal. (Tr. 293-94, 307.) Plaintiff reported decreased neck pain with Neurontin, but said she still had dizziness and drowsiness. (Tr. 303.)

On December 15, 2006, Plaintiff saw pain management specialist Nand K. Bhardwaja, M.D., and had several facet injections and an epidural steroid injection (ESI) in her cervical spine. (Tr. 252-63.) Her pain did not significantly improve after the treatment. (Tr. 259.) Dr. Bhardwaja recommended that Plaintiff see a physical therapist, but Plaintiff refused, stating that physical therapy had not helped in the past. (Tr. 259.) He advised Plaintiff to try Tai Chi and yoga to help with stress, her posture, and her range of motion. ( Id. ) He also told Plaintiff that she would "benefit from" biofeedback therapy and recommended that she continue treatment with Dr. Wang. ( Id. )

From mid-2007 through mid-2010, Plaintiff saw her family practitioner several times for various complaints and medication refills. (Tr. 342-64.) On July 16, 2010, Plaintiff saw Dr. Wang "to follow-up" on her complaints of radiating neck pain. (Tr. 289.) She reported a progressive worsening of neck pain and mobility issues. (Tr. 291.) She also complained of migraines, "motion sickness, " and dizziness. ( Id. ) Dr. Wang diagnosed Plaintiff with cervical radiculopathy, migraine with aura, vertigo/dizziness, back pain with paresthesia, and he ordered diagnostic testing. (Tr. 291.)

An electroencephalography (EEG) to assess Plaintiff's "dizzy spells" was normal. (Tr. 264.) Nerve conduction studies (an electromyogram or EMG) showed cervical radiculopathy at the C5 and C6 vertebrae levels of Plaintiff's spine, but were otherwise normal. (Tr. 265-67.) Nerve studies also showed a sensory polyneuropathy affecting Plaintiff's right leg. (Tr. 270.) An MRI of Plaintiff's brain related to her migraines was normal. (Tr. 276.) An MRI of Plaintiff's cervical spine showed some widening of the joint space suggesting subluxation (partial dislocation). (Tr. 278.) An MRI of her lumbar spine showed "mild disc bulge" at the L4-L5 vertebrae level with "mild foraminal narrowing with disc material approaching the undersurface of both exiting L4 nerve roots with bilateral neural foramen." (Tr. 277.)

To test for peripheral vestibular dysfunction in relation to Plaintiff's dizziness, vertigo, and motion sickness, Dr. Wang ordered a videonystagmography (VNG) study that was conducted on August 13, 2010. (Tr. 275, 291.) The VNG study was abnormal, which the audiologist indicated was "likely due to peripheral vestibular dysfunction." ( Id. ) However, the audiologist stated that the test was "inconclusive due to incomplete calorics" and she recommended that Plaintiff return to complete additional testing and follow up with Dr. Wang. (Tr. 275.) Dr. Wang subsequently diagnosed Plaintiff with "peripheral vertigo." (Tr. 284.) He recommended that she continue home exercises for her neck pain and pursue physical therapy for "vestibular exercise." (Tr. 284, 287.)

Plaintiff saw Dr. Wang again on August 20, 2010. (Tr. 286.) His treatment notes state that Plaintiff had numbness and tingling in her upper extremities, and chronic headaches with nausea, photophobia, and phonophobia. ( Id. ) During a September 3, 2010 appointment with Dr. Wang, Plaintiff complained of dizziness and vertigo that caused nausea. (Tr. 282-84.) She had a gait imbalance and a positive Rhomberg's test. ( Id. )

On September 9, 2010, Plaintiff began physical therapy for vestibular rehabilitation to address her vertigo, motion sickness, nausea, and dizziness. (Tr. 381.) Dr. Wang prescribed twelve sessions in six weeks. (Tr. 381, 396-97.) Plaintiff returned to physical therapy two weeks later. (Tr. 394 (9/23/10), Tr. 395 (Plaintiff cancelled a 9/20/10 appointment).) She reported that she had not been diligent with her exercises because she had shingles. (Tr. 394.) She missed her next scheduled appointment. (Tr. 393 (9/27/10)), and cancelled the following appointment. (Tr. 392 (10/1/10).) When Plaintiff returned on October 4, 2010, she reported increased dizziness and nausea with activities of daily living. (Tr. 391.) Plaintiff's therapist advised her to do her home exercise program and sleep on her left side for several nights. ( Id. ). A few days later, Plaintiff reported that she was "a little better, " but that she still had to "focus on slow [movements].'" (Tr. 390 (10/6/10).)

Plaintiff cancelled an October 13, 2010 appointment, and next attended physical therapy on October 18, 2010. (Tr. 388-89.) Plaintiff reported that she was only doing her eye and head movement exercises on days when she felt well enough to try them. (Tr. 388.) Plaintiff's therapist observed that Plaintiff still became dizzy or nauseated with exercise, but noted that she recovered more quickly than at her previous therapy sessions. ( Id. ) Plaintiff did not go to physical therapy after October 18, 2010.

Plaintiff saw Dr. Wang for a follow-up on November 23, 2010, and she reported that vestibular rehabilitation had made her symptoms worse. (Tr. 443-45.) However, Dr. Wang advised Plaintiff to try physical therapy again. (Tr. 443-44.) Plaintiff also reported that oxycodone helped her neck pain and headaches. (Tr. 445.) Dr. Wang prescribed medication and advised Plaintiff to continue with exercise and massage therapy at home. (Tr. 445-46.)

In January 2011, Plaintiff went to Infinite Wellness several times for chiropractic care for her neck and back pain. (Tr. 419-22.) Plaintiff reported increased pain with walking, standing, driving, recreation, and sleeping. (Tr. 419.) Her chiropractor repeatedly noted that Plaintiff's pain was showing improvement. (Tr. 421-22.)

B. Examining Physician

On December 7, 2010, Jeffrey Levison, M.D., reviewed Plaintiff's treatment records and examined her in relation to her application for disability benefits. (Tr. 401-09.) Dr. Levison noted Plaintiff's "allegations" of depression, anxiety, post-traumatic stress disorder (PTSD), headaches, radiculopathy, peripheral neuropathy, peripheral vestibular disorder (dizziness and nausea), and chronic back and neck pain. (Tr. 405.)

On examination, Plaintiff had a full range of motion in her joints and her spine. (Tr. 405.) She had no tenderness in her spine. ( Id. ) She had full muscle strength in her arms and legs, a normal gait, and full grip strength. ( Id. ). Dr. Levison noted that, with distraction, Plaintiff "moved her neck freely, " "but on direct observation she [was] more methodical about the range of motion, which is complete." ( Id. ) Dr. Levison concluded that the "examination [was] completely normal from head to toe." (Tr. 405.) He stated, however, that he would consider Plaintiff's allegations when assessing her functional abilities. ( Id. ) Dr. Levison opined that, in an eight-hour workday, Plaintiff could lift fifty pounds occasionally and twenty pounds frequently. (Tr. 406.) He also opined that Plaintiff had no limitations on walking, standing, or sitting. (Tr. 407.)

C. Lay Witness Statement

In October 2010, Plaintiff's sister Lacey Brimmer completed a third-party function report. (Tr. 195-202.) She indicated that Plaintiff's daily activities were limited by pain, dizziness, and nausea. (Tr. 196, 200.) She said that Plaintiff could not do housework due to arm pain and that she washed Plaintiff's hair for her and made her meals. (Tr. 196-97.) She reported that driving a car made Plaintiff ...

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