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Plummer v. Colvin

United States District Court, D. Arizona

December 16, 2014

Crystal Anne Plummer, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BRIDGET S. BADE, Magistrate Judge.

Plaintiff Crystal Anne Plummer, proceeding pro se, 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 May 18, 2010, Plaintiff applied for disability insurance benefits under Titles II and XVI of the Act, alleging disability beginning May 8, 2007. (Tr. 21.)[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. 21-28.) 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 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 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 June 2007, Plaintiff sought treatment from Ron Ferguson, M.D., for right shoulder pain that she had experienced for a year. (Tr. 263.) Plaintiff reported that she injured her neck, right arm, and right shoulder in 2006 while lifting a patient in her job as a caregiver. (Tr. 263, 282.) Dr. Ferguson noted that a May 2007 MRI of Plaintiff's right shoulder showed some rotator cuff changes ("[m]oderate grade partial substance tear" of a tendon in her right shoulder), but opined that "her pathology [was] not in her rotator cuff." (Tr. 263, 265.) Dr. Ferguson order an MRI of Plaintiff's neck, which showed "minimal degenerative" changes in the mid-cervical spine. (Tr. 262, 267.) Dr. Ferguson prescribed non-steroidal anti-inflammatory medication (Celebrex) and physical therapy. (Tr. 262, 267-68.) In September 2007, Plaintiff reported to Dr. Ferguson that medication and physical therapy did not help her symptoms. (Tr. 261.) On examination, Plaintiff had "mild tenderness" in her cervical spine and some "trapezial pain." ( Id. ) Dr. Ferguson referred Plaintiff to Mitchell Major, M.D., for a "facet injection." (Tr. 261, 256-60.)

During an October 8, 2007 appointment with Dr. Major, Plaintiff complained of constant neck and shoulder pain and increasing headaches. (Tr. 256.) On examination, Plaintiff had some tenderness in her neck and shoulders, but could move her shoulder and upper arm in all directions and had full range of motion in her upper extremities. (Tr. 257.) She exhibited normal reflexes, coordination, and muscle strength. ( Id. ) Plaintiff's lower extremities and back were "within normal limits, " and she had full strength, normal reflexes, and coordination. ( Id. ) Dr. Major assessed right occipital neuralgia headaches and administered occipital nerve injections to confirm the diagnosis.[2] (Tr. 256-60.) After the injection, Plaintiff "denied any pain in her head or neck." (Tr. 259.)

The record reflects a gap in treatment until after Plaintiff had a baby in June 2008. (Tr. 41, 288.) In July 2008, Plaintiff saw primary care physician William H. Lawson, M.D., complaining of headaches, which she reported experiencing for one year at a frequency of three to four times per month. (Tr. 293, 326.) A July 29, 2008 CT scan of Plaintiff's brain was "normal." (Tr. 293, 326.)

In August 2008, Plaintiff saw neurologist Sam Hochane, M.D., complaining of severe headaches three to four times a month and "some" pain in her right shoulder and cervical spine. (Tr. 333.) On examination, Plaintiff had full muscle strength in all extremities, normal muscle tone and bulk, normal reflexes, and a steady gait. (Tr. 334.) Dr. Hochane assessed possible migraine headaches and prescribed Maxalt. (Tr. 333.) He instructed Plaintiff to follow up in two months. (Tr. 333-34.) In her reply, Plaintiff states that she did not follow up with Dr. Hochane because he made her uncomfortable. (Doc. 19 at 9.)

In January 2009, Plaintiff saw Dr. Lawson and complained of headaches, shoulder pain, and back pain that radiated into her left leg. (Tr. 325.) She reported that her back pain interfered with her sleep. ( Id. ) Dr. Lawson prescribed muscle relaxants and narcotic pain medication and ordered an x-ray of Plaintiff's back. (Tr. 325.) In August 2009, Plaintiff returned to Dr. Lawson, complaining of continuing back and leg pain, but not headaches. (Tr. 303.) Plaintiff did not have an x-ray, as Dr. Lawson had ordered. ( Id. ) Dr. Lawson again ordered an x-ray of Plaintiff's lumbar spine. ( Id. ) An August 19, 2009 x-ray of Plaintiff's lumbar spine was "normal." (Tr. 303, 325.)

In September and October 2009, Plaintiff returned to Dr. Lawson for treatment of unrelated impairments (ear pain and an insect bite). (Tr. 324.) During the October 7, 2009 appointment, Plaintiff also reported radiating low back pain. (Tr. 324.) Dr. Lawson ordered an MRI of Plaintiff's lumbar spine back, which was "normal." (Tr. 304-05.) In December 2009, Plaintiff returned to Dr. Lawson's office for laboratory testing. (Tr. 323.)

In March 2010, Plaintiff saw Tariq Doorani, M.D., at Banner Baywood Neurology (Banner) and reported headaches, right-sided neck and shoulder pain, radiating neck pain, tingling in her hands, and difficulty sleeping. (Tr. 310-11.) Plaintiff reported that she was taking Vicodin, up to twice a day as needed. ( Id. ) On examination, Plaintiff had intact sensation in her arms and legs, symmetrical reflexes, normal muscle tone and strength in both her upper and lower extremities, and was able to "regular walk" and "tandem walk" without difficulty. (Tr. 311.) Plaintiff's neurological examination was "unremarkable." ( Id. ) Dr. Doorani prescribed nerve pain medication and ordered a nerve conduction study, which was normal. (Tr. 311, 364-69.)

In July 2010, Plaintiff saw Hamid Mortazavi, M.D., at Banner and reported continuing neck, shoulder, and back pain. (Tr. 309.) Plaintiff also reported that when she took Gabapentin, "the headache is gone." ( Id. ) On examination, Plaintiff had full strength in her upper and lower extremities, intact sensation bilaterally, and normal gait. (Tr. 309.) She also had pain in her neck with turning her head right or left, and had "mild pain" in her buttock area with "raised leg on right and left." ( Id. ) Dr. Mortazavi assessed osteoarthritis (cervical spondylosis) in Plaintiff's neck, increased her dose of Gabapentin, prescribed Zanaflex muscle relaxant at nighttime, and prescribed physical therapy for Plaintiff's neck pain. ( Id. )

In August 2010, Plaintiff returned to Dr. Lawson complaining of low back and shoulder pain. (Tr. 322.) She requested a TENS unit (transcutaneous electrical nerve stimulation) for her back pain. ( Id. ) Dr. Lawson noted that Plaintiff's neck and shoulders were tender on examination. ( Id. ) He renewed Plaintiff's pain medication and gave her a TENS unit. (Tr. 322, 414.) In late August and early September 2010, Plaintiff returned to Dr. Lawson and complained of pain in her back, left leg, and right shoulder. (Tr. 374.) He referred her to physical therapy. (Tr. 374.)

During an initial assessment for physical therapy, Plaintiff complained of back pain radiating into her left leg, neck pain radiating into her right shoulder, and tingling in her hands. (Tr. 384.) She said that she still had headaches, "but not like before." ( Id. ) The treatment note indicates that Plaintiff had decreased weight bearing on the left side, was unable to sit or stand for very long, and shifted her weight often. (Tr. 384.)

On referral from Dr. Lawson, in November 2010, Plaintiff saw Ian Brimhall, D.O., for evaluation of her neck, shoulder, and low back pain. (Tr. 359.) Plaintiff complained of right shoulder pain, tingling in her hands, radiating low back pain, difficulty sleeping, difficulty sitting or standing for long periods, and occasional numbness in her left leg or foot. (Tr. 359-60.) Although Plaintiff had a "long history of headaches, " she "denie[d] any recent headaches." (Tr. 360.) On examination, Plaintiff's right shoulder was "asymptomatic." (Tr. 359-60.) She had a normal stride and heel-to-toe stance, she could regular walk and tandem walk, she had good strength in her right shoulder, her "neck range of motion passively [was] full in both flexion, extension, rotation, and side bending [were] symmetric." (Tr. 360.) Plaintiff complained of some pain in her cervical spine and trapezius with forced flexion, she also had tenderness in her lower lumbar spine with palpation, and had "sciatica symptoms" on the left side (positive straight leg raising). (Tr. 360.) Dr. Brimhall ordered an MRI of Plaintiff's lumbar spine. ( Id. )

Plaintiff saw Dr. Brimhall on November 17, 2010 for a follow-up for her continuing complaints of lumbar pain. (Tr. 379.) Plaintiff's "exam was essentially unchanged" from her previous visit. ( Id. ) Dr. Brimhall reviewed the November 8, 2010 MRI and found that Plaintiff had mild disc degeneration at L3-L4 and L4-5, and a "cyst on the lateral nerve root in the left facet of L3-L4" that could cause radiculopathy. (Tr. 362-63, 379.) Dr. Brimhall recommended a surgical consultation based on Plaintiff's increased symptomology. (Tr. 379.)

On referral from Dr. Brimhall, in January 2011, Plaintiff saw Dr. Donald Hales and Physician Assistant (PA) John Taylor at Northern Arizona Orthopedics. (Tr. 396-401.) Plaintiff complained of "longstanding" right shoulder and arm pain, neck pain, back pain, and headaches. ( Id. ) Plaintiff reported that Neurontin gave her "significant relief" and had "decreased her headaches significantly." (Tr. 400, 401.) Plaintiff reported that she was reluctant to take prescribed pain medication or muscle relaxants because they made her drowsy and, as the mother of four children, she needed to be alert to care for them. (Tr. 397.)

On examination, Plaintiff had "no abnormal gait patterns, " an "appropriate... for age" range of motion in her neck on flexion, extension, and rotation, and normal strength in her head and neck. (Tr. 398.) Plaintiff had a limited range of motion in her spine and pelvis "secondary to pain complaints, " but was "able to rise from sit to stand and ambulate without difficulty" and had normal strength in her spine and pelvis. (Tr. 398-99.) Plaintiff had a full range of motion in her right elbow and wrist, a limited range of motion in her right shoulder "secondary to pain, " and normal strength in her right hand, wrist, and elbow. (Tr. 399.) Dr. Hales and PA Taylor were unable to accurately test right shoulder strength due to complaints of pain. ( Id. ) Plaintiff's left upper extremity had full range of motion and normal strength. ( Id. ) Plaintiff's right lower extremity had no evidence of atrophy, full range of motion, and full strength. ( Id. ) Plaintiff's left lower extremity had no evidence of atrophy, full range of motion, and full strength. (Tr. 399-400.) A neurological examination was normal (including normal sensation and reflexes). ( Id. at 400.) Plaintiff had tenderness on the right side of her lumbar spine, but no tenderness over the sciatic notch or the piriformis muscle. ( Id. ) Dr. Hales and PA Taylor found "no evidence of radicular symptoms in either lower extremity as well as [no] symptoms of sciatica or piriformis syndrome." (Tr. 401.) They assessed musculoskeletal back pain and recommended physical therapy and "other conservative treatment" including chiropractic care, massage, and a walking program to "keep [Plaintiff's] fitness level from decreasing anymore." (Tr. 401.)

Plaintiff returned to Dr. Brimhall in February 2011 complaining of pain down her arm, burning around her right shoulder, and constant pain in her neck that radiated to her head. (Tr. 405.) On examination, Plaintiff had tenderness along her "mid cervical spine central." ( Id. ) Her active range of motion in her neck was limited to fifty degrees of rotation. ( Id. ) She also had tenderness along the "left paraspinal musculature" and the right trapezius. ( Id. ) Plaintiff had reduced strength in her right shoulder, full range of motion in her wrist and elbow, and a somewhat limited range of motion of her right shoulder.

During a March 2011 appointment with Dr. Brimhall, Plaintiff complained of constant neck pain, headaches, and pain radiating down her leg. (Tr. 404-05.) She also indicated that Neurontin was not effectively controlling her headaches. (Tr. 404.) On examination, Plaintiff had some tenderness on her right trapezius and shoulder. She had good rotator cuff strength. ( Id. ) Dr. Brimhall ordered an updated MRI of Plaintiff's neck, which showed "relatively minimal" degenerative changes. (Tr. 404-05, 415-16.) Dr. Brimhall administered a corticosteroid injection in Plaintiff's right shoulder and scheduled a lumbar injection for Plaintiff's back. ( Id. )

In June 2011, Plaintiff returned to Dr. Brimhall and complained that her back symptoms had flared up following a recent hysterectomy. (Tr. 403.) She reported difficulty "getting around" and increased radicular symptoms down her left leg and numbness around the back of her buttock. (Tr. 403.) On examination, Plaintiff had "some" tenderness along her lower lumbar spine and a positive straight leg test on the left. ( Id. ) Her reflexes were symmetric and normal, her sensation and motor examination were normal, she had good strength with hip flexion, knee flexion, dorsiflexion, and plantarflexion of the ankles. ( Id. ) Dr. Brimhall recommended epidural steroid injections. ( Id. ) He found that Plaintiff's headaches were "currently controlled" with medication that Dr. Lawson was prescribing. ( Id. )

Between December 2010 and October 2011, Plaintiff continued to receive treatment from Dr. Lawson, primarily in the form of "med[ication] renewal." (Tr. 408-13.) Dr. Lawson's treatment notes contain few examination findings, but note that Plaintiff regularly reported shoulder and low back pain. (Tr. 408-13.) In March and April 2011, Dr. Lawson noted that Plaintiff reported headaches and that she had become "intolerant" to Gabapentin, which caused some dizziness. (Tr. 410-11, 413.)

On referral from Dr. Lawson, on October 29, 2011, Plaintiff saw Panna Shah, M.D. at Flagstaff Neurology.[3] (Tr. 424.) Plaintiff complained of pain in her right shoulder that was worse with lifting, pain in her neck, and pain in her leg. ( Id. ) She also reported "extremely bad" headaches that occurred "daily or two to four times a week without nausea, vomiting, photophobia, or sonophobia." ( Id. ) On examination, Dr. Shah observed that Plaintiff appeared "fine at times" and "at times tense[ed] up her shoulder and neck muscles." ( Id. ) Plaintiff's neck was supple, she had normal muscle tone, bulk, and strength, she had a normal sensory examination, her gait and tandem walk were normal, and her extremities were "without edema." (Tr. 425.) After examining Plaintiff and reviewing MRIs of her brain, neck, and back, Dr. Shah found "nothing to explain [Plaintiff's] pain." (Tr. 425.) Dr. Shah recommended an increased dose of nerve pain medication and prescribed Remeron for depression related to Plaintiff's headaches. (Tr. 423-25). Dr. Shah assessed Plaintiff with "chronic headaches, common migraines." (Tr. 425.)

B. Medical Opinion Evidence

1. Dr. Lawson

On October 23, 2011, Dr. Lawson completed a "Physical Capacities Evaluation." (Tr. 421-22.) He opined that, in an eight-hour day, Plaintiff could lift ten pounds occasionally and five pounds frequently, sit for four hours, stand for two hours, and walk for two hours. (Tr. 421.) He also opined that Plaintiff had "moderately severe" pain and fatigue that would likely result in being off task thirty to fifty percent of the time. (Tr. 421-22.) Dr. Lawson stated that these limitations had been present since February 2007. (Tr. 421-22.)

In June 2012, Dr. Lawson completed a second "Physical Capacities Evaluation." (Tr. 434-35.) Dr. Lawson opined that, in an eight-hour day, Plaintiff was limited to sitting, standing, and walking one hour each, and that she had "severe" pain that was likely to result in her being off task more than fifty percent of the time. (Tr. 435.) Dr. Lawson opined that these limitations had been present for seven years. He did not explain the change in his opinion since October 2011. ( Compare Tr. 421-22 with Tr. 434-35.)

2. Joseph Ring, D.O.

In September 2010, state agency physician Dr. Ring evaluated Plaintiff for her disability benefits claim. (Tr. 351.) Plaintiff complained of headaches and pain in her back, left leg, and right shoulder. ( Id. ) She reported that the headaches were "pretty intense" and made it "hard for her to do day-to-day chores." ( Id. ) Plaintiff said that her primary problem was that she could not do her past work as a caretaker (which involved lifting patients), "[b]ut as far as her day-to-day chores, she [did] not have any significant problem with them." ( Id. ) In particular, Plaintiff reported that she could cook, clean, go to the store, carry groceries, and "do anything that she really needs to do on a day-to-day basis." (Tr. 351.)

Dr. Ring observed that Plaintiff was able to sit reasonably comfortably (with some shifting), walk to the exam table, and get on and off the table comfortably. (Tr. 352.) Straight leg raising was positive and she had reduced range of motion in her neck. (Tr. 353.) She had normal range of motion in her back and shoulders, intact sensation and reflexes, normal muscle strength, bulk, and tone, and a normal gait. (Tr. 353.) Dr. Ring diagnosed cervical spondylosis, which he opined was likely the cause of her reported neck and shoulder pain. ( Id. ) He could not identify a "specific cause" for Plaintiff's reported low back pain, but "suspect[ed]" degenerative disc disease in her lumbar spine. ( Id. ) Dr. Ring opined that Plaintiff had abilities consistent with light work. (Tr. 352-56.)

In January 2011, Plaintiff returned to Dr. Ring for a second examination for her disability benefits claim. (Tr. 389.) Plaintiff reported significant right shoulder pain, but said that nerve pain medication helped her headaches. ( Id. ) Dr. Ring noted that Plaintiff's left leg pain had resolved and did not seem to be "much of an issue" and that Plaintiff had an improved range of motion in her neck. ( Id. ) He reaffirmed his prior diagnoses, but found some improvement in Plaintiff's condition. (Tr. 389.) He ...


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