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Savarise v. Colvin

United States District Court, D. Arizona

November 13, 2014

Sandra R. Savarise, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

ORDER

BRIDGET S. BADE, Magistrate Judge.

Plaintiff Sandra R. Savarise 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. For the following reasons, the Court affirms the Commissioner's decision.

I. Procedural Background

On July, 23, 2010, Plaintiff applied for disability insurance benefits under Title II of the Act, based on disability beginning November 9, 2007. (Tr. 164-170.)[1] 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. 24-33.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-7); 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 Records and Opinion Evidence

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

A. Treatment Records

In January 2006, Vincent J. Russo, M.D., examined Plaintiff for chronic right shoulder symptoms that stemmed from a 2004 fall. (Tr. 585.) Dr. Russo noted that Plaintiff had a limited range of motion. (Tr. 585.) He manipulated Plaintiff's shoulder and diagnosed a possible frozen shoulder. (Tr. 585-87.) During an April 2006 appointment, Dr. Russo noted that Plaintiff had continuing chronic impingement symptoms in her right shoulder and weakness of the rotator cuff. (Tr. 581.) Dr. Russo performed a right shoulder arthroscopy with debridement of the subacromial space. (Tr. 581-83.) In May 2006, Dr. Russo noted that Plaintiff's chronic symptoms, including pain and a restricted range of motion, continued despite surgery. (Tr. 576.) He performed another shoulder manipulation at that time. (Tr. 578.)

In November 2006, Alan C. Roga, M.D., examined Plaintiff for low back pain. (Tr. 571.) Plaintiff reported that she had fallen and "land[ed] on her buttocks" when she was lifting a heavy table. (Tr. 571.) Plaintiff reported pain into her low back and she had a contusion on her right knee. Plaintiff denied "pain or difficulty with ambulation." ( Id. ) An X-ray revealed a compression fracture of L1 of indeterminate age. (Tr. 574.)

On December 6, 2006, Christopher Yeung, M.D., an orthopedic surgeon, evaluated Plaintiff for pain related to her November 2006 fall. (Tr. 602.) Plaintiff reported that she did not have any radicular symptoms and denied "numbness, tingling, or weakness." ( Id. ) Plaintiff reported increased pain with prolonged sitting, standing, and walking. ( Id. ) She also reported that lying down, ice, and medication alleviated her pain. ( Id. ) Dr. Yeung observed that Plaintiff appeared to be in moderate discomfort, had a very stiff range of motion, and some tightness with a seated straight leg raise on the right. (Tr. 603.) He diagnosed a compression fracture at L1 and low back pain. ( Id. ) Dr. Yeung ordered an MRI of Plaintiff's lumbar spine and sacrum and prescribed Flexeril. (Tr. 604.) On December 8, 2006, an MRI showed a recent compression fracture of L1 with mild loss of height and mild degenerative disk change and disk bulges at L4-5 and L5-S1. (Tr. 607.)

On December 18, 2006, Dr. Yeung noted that Plaintiff had increased pain and pinpoint tenderness in her right lumbar spine. (Tr. 601.) Plaintiff again denied radicular symptoms. ( Id. ) Dr. Yeung opined that "an injection" would not help because Plaintiff's pain did not appear to emanate from her lumbar spine. ( Id. ) Dr. Yeung recommended "time and physical therapy." ( Id. ) He also gave Plaintiff a Lidoderm patch and prescribed Percocet. ( Id. ) In January 2007, Plaintiff returned to Dr. Yeung and reported increased pain on the left side of her back. (Tr. 600.) She again denied radiating pain. ( Id. )

In March 2007, Plaintiff continued to report "significant" left-side back pain. (Tr. 599.) Dr. Yeung noted that Plaintiff's employer had excused her from work for thirty days because her pain was interfering with her ability to do her job. ( Id. ) Dr. Yeung completed disability paperwork on her behalf. ( Id. ) Plaintiff denied radiating pain and stated that Percocet helped. (Tr. 599.) Dr. Yeung referred Plaintiff to Mark J. Rubin, M.D., for a possible "quadratus lumborum injection." ( Id. )

On March 19, 2007, Plaintiff sought treatment from Dr. Rubin at the Arizona Center for Pain for left side low back pain. (Tr. 295-99.) Plaintiff described her pain as constant, cramping, dull, aching, and throbbing. ( Id. ) Plaintiff reported that her pain limited her ability to work, perform household chores, participate in recreation, and sleep. (Tr. 295-96.) She also reported experiencing headaches, decreased appetite and energy level, fatigue, and reduced lateral motion. ( Id. ) Plaintiff denied difficulty with balance, gait abnormalities, or muscle weakness. (Tr. 296.) Dr. Rubin diagnosed closed fracture of lumbar vertebra, unspecified myalgia/myositis, and degeneration of the lumbar or lumbosacral intervertebral spine. (Tr. 298-99.) Dr. Rubin administered a trigger-point injection in the left side of Plaintiff's lumbar spine for pain relief. (Tr. 300.)

Plaintiff saw Dr. Rubin again on March 26, 2007. (Tr. 293.) She reported "some pain relief" from the injection and a slightly improved activity level. ( Id. ) Dr. Rubin noted that Plaintiff's range of motion had improved and that she had mildly reduced extension and flexion. (Tr. 294.) Dr. Rubin administered another trigger-point injection. (Tr. 292-93.) On April 2, 2007, Dr. Rubin gave Plaintiff a note releasing her to regular work duties without restriction effective April 11, 2007. (Tr. 289-90.) He noted that Plaintiff had a normal range of motion, no tenderness, and normal stability. (Tr. 290.)

On April 30, 2007, Plaintiff returned to Dr. Rubin complaining of left lumbar paravertebral and left gluteal region pain. (Tr. 286-88.) Dr. Rubin noted that Plaintiff's range of motion was reduced and that she had a hematoma formation on her left hip and thigh. ( Id. ) Dr. Rubin administered two trigger-point injections. (Tr. 287.) In August 2007, Dr. Rubin noted that Plaintiff continued to experience severe left lumbar paravertebral pain. (Tr. 282-84.) She was taking Tylenol and felt sedated and fatigued. ( Id. ) Plaintiff had several more trigger-point injections in August, September, and November 2007. (Tr. 276-77, 281.)

On February 5, 2008, Plaintiff began treatment with Jonathan Komar, M.D. (Tr. 609.) A lumbar spine X-ray that was taken that day showed a moderate, probably old, compression fracture at L1. (Tr. 657-59.) The x-ray also showed "mild" osteoarthritis of the lumbar spine. ( Id. ) On February 8, 2008, an MRI of Plaintiff's lumbar spine showed a compression fracture at L1 and mild degenerative disc disesase. (Tr. 660-61.) An x-ray of Plaintiff's left foot showed mild osteoarthritis, especially at the first metatarsophalangeal (MTP) joint. (Tr. 657-59.) On February 15, 2008, Dr. Komar administered a steroid injection in the MTP joint on Plaintiff's left foot. (Tr. 662.) Dr. Komar diagnosed Plaintiff with first MTP joint degenerative joint disease in her left foot. (Tr. 662-63.)

On March 5, 2008, Dr. Komar administered an epidural injection at L5-S. (Tr. 662-63.) He diagnosed lumbar degenerative disk disease, lumbar spondylosis, and low back pain. ( Id. ) On March 25, 2008, Plaintiff reported to Dr. Komar that the epidural provided some immediate pain relief, but the pain - mainly in the left side of her low back - gradually increased over the following days until it returned to its pre-injection level. (Tr. 610.) Plaintiff reported that her back pain was worse when lying flat on her back, standing, and walking. ( Id. ) Dr. Komar noted lumbosacral tenderness on palpation, and that flexion and extension elicited lumbosacral pain. ( Id. ) Dr. Komar noted no weakness in Plaintiff's lower extremities and that she had a normal stance and gait. (Tr. 611.) He scheduled another epidural injection for Plaintiff's low back pain. ( Id. )

In May 2008, Dr. Komar noted that Plaintiff's back pain had not improved since her third epidural injection, which was completed three weeks prior, and he noted that her back pain was worse with sitting and standing. (Tr. 614.) Plaintiff's low back and lumbosacral spine were tender on palpation. (Tr. 614-15.) Plaintiff had no weakness in her lower extremities and had a normal gait. (Tr. 615.)

In June 2008, Plaintiff had a left L3 medial branch nerve radiofrequency ablation (RFA). Two weeks later, Plaintiff reported that she was unsure if there was any improvement in her pain. (Tr. 618, 671.) In September and October 2008, Dr. Komar noted a positive Gillet test on the left side of Plaintiff's low back and a positive pelvic rock test at the left sacroiliac joint. (Tr. 626, 630.) On October 22, 2008, Plaintiff had a left sacroiliac joint injection. (Tr. 674.)

On January 8, 2009, Plaintiff saw Dr. Turkeltaub for breast reduction surgery. (Tr. 308.) Dr. Turkeltaub noted that Plaintiff had severe back problems. ( Id. ) He noted that Plaintiff had received multiple nerve blocks and epidural injections over the previous two years. ( Id. ) Plaintiff had breast reduction surgery on February 2, 2009. (Tr. 313.) Dr. Turkeltaub advised Plaintiff to avoid heavy lifting and vigorous activity for approximately three weeks after the procedure. (Tr. 308.)

Plaintiff returned to Dr. Komar on April 15, 2009. (Tr. 340.) She stated that she was unable to perform the exercises that Dr. Komar had prescribed because Dr. Turkeltaub had advised her to rest. ( Id. ) Plaintiff reported experiencing a lot of pain at night, including "electrical" pain across her chest and breasts. ( Id. )

Dr. Komar referred Plaintiff to Kerry Zang, M.D., and on July 7, 2009, Plaintiff saw Dr. Zang for an evaluation of her first toe. (Tr. 318-21.) Dr. Zang recommended surgery. ( Id. ) On October 2, 2009, Shahram Askari, D.P.M., performed an osteotomy and bunionectomy with a toe joint replacement. (Tr. 332-33.) Plaintiff's foot was placed in a boot and she was advised to stay off her feet as much as possible. ( Id. ) During a November 2009 follow-up appointment, Plaintiff reported that her foot swelled and became sore with movement. (Tr. 330.) Dr. Askari advised Plaintiff to continue range of motion exercises and to avoid high impact activities. ( Id. )

In March 2010, physician assistant Ashely Stowers (PA Stowers) at Dr. Komar's office performed a diagnostic ultrasound of Plaintiff's left shoulder, which showed moderate arthritic changes in the "AC joint" with joint effusion/impingement seen with movement, a subacrominial bursa with mild inflammation, and an apparent moderate partial tear at the distal insertion. (Tr. 400.) Plaintiff reported that her left shoulder pain was exacerbated by lying on her left shoulder and was alleviated by avoiding using her shoulder. (Tr. 404.) On March 19, 2010, PA Stowers administered an injection in Plaintiff's left shoulder. (Tr. 402.) In April 2010, Plaintiff reported that her shoulder was "much better" and that she was "very satisfied with the injection." (Tr. 410.) In May 2010, Plaintiff reported that her left arm was better, her shoulder pain did not wake her up at night anymore, but she still had trouble raising her arm and putting on a bra. (Tr. 411.)

During a September 1, 2010 follow-up appointment with PA Stowers, Plaintiff reported that her left shoulder was better but her back pain was worse. (Tr. 423-28.) She reported that the pain was mostly in her left low back and that her low back got tight at night. ( Id. ) Plaintiff had a positive Gillet test on the left side and a positive pelvic rock test. ( Id. ) PA Stowers noted that Plaintiff would likely benefit from a psychological evaluation to help cope with the trauma of witnessing a murder.[2] ( Id. )

Plaintiff continued follow-up care with PA Stowers and Dr. Komar in October and December 2010. (Tr. 470-72, 476-79, 484-86.) Treatment notes reflect that Plaintiff continued to have positive empty can tests on the left side (related to her shoulder pain) and positive Gillet and pelvic rock tests related to her low back pain. ( Id. ) On December 13, 2010, Dr. Komar noted that Plaintiff continued to have left shoulder pain and scheduled a medial branch nerve block, which was performed two days later. (Tr. 476, 482-83.) On December 17, 2010, Plaintiff reported to PA Stowers that after the injection she rated her shoulder pain as a zero, but it gradually increased to seven out of ten less than six hours after injection. (Tr. 484.)

On January 12, 2011, Dr. Komar performed an L3-L4 medial branch nerve and left L5 primary dorsal ramus RFA. (Tr. 490.) At a January 26, 2011 follow-up appointment, Plaintiff stated that the RFA improved her left shoulder pain by fifty percent. (Tr. 503.) She rated her pain as four out of ten and she reported fatigue. ( Id. ) In July 2011, Plaintiff reported to PA Stowers that she had no shoulder pain at the location of the RFA, but that she had pain above and below that area. (Tr. 523.) Plaintiff reported that her back pain was "pretty good" in the morning, but as the day progressed her back pain increased and was worse with sitting. ( Id. ) Plaintiff reported that her left foot pain increased depending on the walking surface and her right hand continued to be tight and had increased pain. ( Id. ) A straight leg raising was positive on the left side. ( Id. )

B. Medical and Lay Opinion Evidence

1. Neil McPhee, M.D.

On October 5, 2010, Dr. McPhee evaluated Plaintiff for her application for disability benefits. (Tr. 443-45.) As part of his evaluation, Dr. McPhee ordered a lumbar spine x-ray. (Tr. 444.) The x-ray reflected superior endplate compression at L1, age uncertain, and minor degenerative changes in the lower thoracic and lumbar spine. (Tr. 441.) On examination, Dr. McPhee noted that Plaintiff could walk, she could tandem walk "slowly and carefully, " she could not walk on her toes or the heels on her left side, and she squatted "minimally." (Tr. 444.) He noted that Plaintiff was able to get onto the examination table, that her four extremities had a full range of motion, she had normal strength, and intact sensation. ( Id. ) Her deep tendon reflexes were normal and symmetric, and straight leg raise was negative for pain bilaterally. ( Id. )

Dr. McPhee opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently. (Tr. 444.) He also opined that Plaintiff could stand or walk six to eight hours in an eight-hour day, and sit six to eight hours, but that she would be do best if she could "alternate positions based on her comfort." ( Id. ) Dr. McPhee further found that Plaintiff could frequently climb ramps and stairs, but could not climb ladders, ropes, or scaffolds. (Tr. 444-45.) He also found that Plaintiff could occasionally stoop, kneel, crouch, and crawl, and that she was not limited with upper extremities reaching, handling, fingering, or feeling. (Tr. 445.)

2. Carol McLean, Ph.D.

On October 13, 2010, Dr. McLean evaluated Plaintiff for her application for disability benefits. (Tr. 447-50.) Dr. McLean diagnosed Plaintiff with major depressive episode, generalized anxiety with panic attacks, and opined that her main work-related impairment appeared to be physical. ( Id. ) Dr. McLean opined that Plaintiff functioned well cognitively and emotionally and that she did not have any mental functional restrictions that would last twelve months or longer. (Tr. 450-51.)

3. PA Stowers

On January 10, 2011, PA Stowers completed a Physical Capacities Evaluation. (Tr. 458.) She opined that Plaintiff would need to change positions occasionally, and that she could sit for three hours at a time, stand for one hour at a time, and walk for thirty minutes at a time. (Tr. 458.) She also opined that during an eight-hour workday, Plaintiff could sit for a total of five hours, stand for a total of two hours, and walk for a total of one hour. ( Id. ) She opined that Plaintiff should not squat or crawl, could occasionally bend, climb, and reach, and had moderate limitations involving heights. (Tr. 459.) She also found that Plaintiff could frequently lift up to ten pounds and occasionally lift up to twenty-five pounds. (Tr. 458.) She further found that Plaintiff had mild limitations with concentration and would miss about two days of work per month. (Tr. 459.) The assessment covered the time period from February 2008 through December 17, 2010. ( Id. )

On August 23, 2011, PA Stowers completed another Physical Capacities Evaluation. (Tr. 521-22.) She opined that Plaintiff would need to change positions occasionally, that she could sit for three hours at a time, stand for forty-five minutes at a time, and walk for forty-five minutes at a time. (Tr. 420.) She also opined that during an eight-hour workday, Plaintiff could sit for a total of five hours, stand for a total of two hours, and walk for a total of one hour. ( Id. ) She opined that Plaintiff should not squat or crawl, could occasionally bend, climb, and reach, and had moderate limitations involving heights. (Tr. 522.) She also found that Plaintiff could frequently lift up to ten pounds and occasionally lift up to twenty-five pounds. (Tr. 521.) She further found that Plaintiff had mild limitations with concentration and would miss about two days of work per month. (Tr. 522.) The assessment covered the time period from February 2008 through August 23, 2011. ( Id. )

On March 28, 2012, PA Stowers completed an Residual Functional Capacity (RFC) Questionnaire. (Tr. 564.) She opined that Plaintiff could sit for one hour at a time and for a total of three hours, stand for thirty minutes at a time and for a total of one hour, and walk for thirty minutes at a time for a total of one hour. (Tr. 564.) She also opined that Plaintiff could frequently lift ten pounds and occasionally lift twenty pounds, could frequently reach, occasionally bend and squat, but could not climb or crawl. (Tr. ...


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