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Muhammad v. Colvin

United States District Court, D. Arizona

January 27, 2017

Kathleen Cathy Muhammad, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

          ORDER

          Bridget S. Bade United States Magistrate Judge.

         Plaintiff Kathleen Cathy Muhammad seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying her application for 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 Rule 16.1 of the Local Rules of Civil Procedure. As discussed below, the Court reverses the Commissioner's decision and remands for further proceedings.

         I. Procedural Background

         In February 2012, Plaintiff filed applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Act. (Tr. 12.)[1]Plaintiff alleged a disability onset date of February 10, 2012. (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). (Id.) After conducting a hearing, the ALJ issued a decision finding Plaintiff 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. 1-6.) See also 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. Administrative Record

         The record before the Court establishes the following history of diagnoses and treatment related to Plaintiff's alleged impairments. The record also includes several medical opinions.

         A. Medical Treatment Evidence

         1. First Medical Plus

         In July 2011, Plaintiff began treatment at First Medical Plus (FMP) for injuries she sustained in a car accident earlier that month. (Tr. 331.) Dr. Lucinda R. Michel, D.O., provided most of Plaintiff's treatment before the disability onset date. She diagnosed headaches, neck and back pain and strain, and upper and lower radiculopathy. (Tr. 321-30.) In February 2012, Plaintiff complained of worsening headaches, spinal symptoms, and pain or parasthesias in her upper extremities. (Tr. 320.) Dr. Michel gave Plaintiff a Toradol injection and prescribed medication. (Tr. 302, 545, 1238.)

         In May 2012, Nurse Practitioner (NP) Laura Coe assumed Plaintiff's care at FMP. (Tr. 304.) Plaintiff complained of headaches, neck and back pain, pain in her upper and lower extremities, and right shoulder pain. (Tr. 304.) On examination, NP Coe assessed Plaintiff with parasthesias, hand weakness, cervical, thoracic and lumbar pain, arm and hand pain, shoulder pain, and sleep disturbances. (Id.) At that time, Plaintiff was pregnant and declined medications. (Id.) NP Coe continued to treat Plaintiff during the relevant period and frequently recorded similar observations of Plaintiff's condition. (Tr. 303, Jun. 21, 2012; Tr. 458, July 2012 (“not pregnant, ” medications continued, with the addition of Vicodin); Tr. 455-56, Aug. 10, 2012; Tr. 453-54, Aug. 24, 2012; Tr. 451- 52, Sept. 21, 2012; Tr. 449-50, Oct. 4. 2012; Tr. 496-97, Dec. 14, 2012; Tr. 855-56, Feb. 19, 2013; Tr. 851-52, Apr. 5, 2013; Tr. 845-46, June 14, 2013; Tr. 833-34, Sept. 27, 2013; Tr. 825-26, Oct. 25, 2013; Tr. 822-23, Dec. 30, 2013; Tr. 820-21, Feb. 28, 2014; Tr. 817-18, Apr. 25, 2014; Tr. 812-13, May 30, 2014; Tr. 809-10, June 16, 2014.) However, other treatment notes include limited findings and do not mention Plaintiff's back or shoulder pain. (Tr. 853-54, Mar. 5, 2013 (no pedal edema in lower extremities, elevated blood pressure); Tr. 849-50, Apr. 19, 2013 (no edema in lower extremities, hypertension (HTN)); Tr. 847-48, May 10, 2013 (HTN); Tr. 843-44, June 28, 2013 (no edema in lower extremities, HTN); Tr. 841-42, July 19, 2013 (pain in big toe, no edema, HTN); Tr. 839-40, Aug. 1, 2013 (no edema, big toe pain, HTN); Tr. 829-30, Oct. 4, 2013 (pelvic density x-ray showed increased density over sacrum, hip pain).)

         2. Sonoran Pain Management

         In 2011, Dr. Michel referred Plaintiff to Dr. Minesh Zaveri, D.O., at Sonoran Pain Management. (Tr. 236-38.) On examination, Dr. Zaveri noted that Plaintiff walked with a painful gait and had tenderness throughout her cervical and lumbar spine. (Id.) Plaintiff had full strength in her upper and lower extremities and a normal range of motion in her lumbar spine. (Tr. 237.) Dr. Zaveri diagnosed cervical and lumbar degenerative disc disease and spondylosis. (Id.) Dr. Zaveri gave Plaintiff lumbar epidural steroid injections on December 20, 2011 (Tr. 232), and lumbar medial branch nerve blocks on April 10 and 24, 2012. (Tr. 220, 218.) During a May 9, 2012 appointment, Plaintiff reported that the injections provided pain relief for twelve hours. (Tr. 366.) On examination, Plaintiff had a positive straight leg raise test, full strength in her upper and lower extremities, tenderness in her cervical, thoracic and lumbar spine, and a painful gait. (Tr. 367-68.)

         3. Dr. Bogdan Anghel

         On referral from Dr. Michel, Plaintiff sought treatment from Dr. Bogdan Anghel at Pain Management and Rehabilitation Medicine Center for shoulder pain in October 2012. (Tr. 785.) Dr. Anghel reviewed an MRI that showed evidence of a rotator cuff tear. (Id.) Plaintiff reported that she had received physical therapy and pain management for her shoulder pain and that the treatment was unsuccessful. (Id.) On examination, Plaintiff's shoulder was positive for pain. (Id.) Neer and Hawkins range-of-motion tests were positive for a rotator cuff tear on the right side. (Id.) Plaintiff had spine tenderness and a positive Spurling test. (Id.) Plaintiff had weakness on abduction and external rotation of her right arm. (Id.) Dr. Anghel diagnosed right shoulder rotator cuff tendinopathy. (Id.) He administered a steroid injection and referred Plaintiff to Dr. Jeffrey S. Levine, M.D. (Tr. 785-86.)

         On January 17, 2013, Plaintiff returned to Dr. Anghel for low back and hip pain. (Tr. 779-80.) Plaintiff reported that lumbar epidural steroid injections in May 2012 had provided some relief, but the pain had returned. (Id.) On examination, Plaintiff had a normal gait, weakness, decreased sensation in her lateral thighs, calves and feet, and a restricted range of motion. (Id.) Dr. Anghel diagnosed lumbar spondylosis with facet pain, mechanical back pain, and lumbosacral radiculitis. (Tr. 780.)

         On January 28, 2013, Dr. Anghel gave Plaintiff lumbar injections of Kenalog and Marcaine. (Tr. 777.) In February 2013, Plaintiff reported that she was “improving.” (Tr. 733.) Dr. Anghel noted that the injections resolved Plaintiff's low back pain, but not her neck pain. (Id.) On examination, Plaintiff had right shoulder pain and a decreased range of motion in her cervical spine. (Id.) In February 2013, Dr. Anghel administered Kenalog and Marcaine injections in the cervical spine. (Tr. 772.)

         In May 2013, Dr. Anghel examined Plaintiff for recurrent pain in the right cervical and lumbar spine. (Tr. 769.) He found that Plaintiff had an antalgic gait, tenderness and pain in her head and neck, and a limited range of motion in her neck and back. (Tr. 769.) Plaintiff had no pain on palpation of her hips or extremities, had full range of motion in her upper and lower extremities, and had full muscle strength in her hips and upper and lower extremities. (Tr. 770.) Dr. Anghel concluded that prior pain control treatments were ineffective. (Tr. 770.) Later that month, Dr. Anghel administered Kenalog and Marcaine injections for cervical and lumbar spondylosis. (Tr. 767, 765.) During a May 21, 2013 appointment, Dr. Anghel noted that the spinal injections did not provide Plaintiff significant pain relief. (Tr. 763.) He opined that Plaintiff's pain was likely generated in the musculature and, therefore, recommended trigger point injections on a bi-weekly basis. (Id.) On examination, Plaintiff had a limited range of motion in her cervical and lumbar spine, tenderness on palpation of the cervical and lumbar paraspinals, and pain in the lumbar and cervical paraspinals. (Id.) She had normal muscle strength and reflexes. (Id.)

         4. Jeffery S. Levine, M.D.

         As noted above, while Plaintiff was receiving treatment from Dr. Anghel, he referred Plaintiff to Dr. Levine for right shoulder pain. (Tr. 758.) Dr. Levine examined Plaintiff on November 2, 2012. (Tr. 758-60.) Plaintiff reported that she had neck, right shoulder, and low back pain. (Id.) She also reported that a recent corticosteroid injection to her right shoulder improved her pain, but she remained symptomatic. (Tr. 758.) On examination, Plaintiff had a full range of motion in her cervical spine, a “full range of motion of passive motion” in the right shoulder, and positive impingement signs in the right shoulder. (Tr. 759.) Dr. Levine diagnosed cervical strain and “symptomatic right partial tear of rotator cuff with the possibility of concomitant labral pathology.” (Id.) Dr. Levine noted that Plaintiff was pregnant at the time, therefore, he did not prescribe injections and recommended against the use of anti-inflammatories and narcotics. (Id.)

         During a December 12, 2012 appointment with Dr. Levine, Plaintiff reported significant pain in her right shoulder. (Tr. 757.) She reported that a cortisone injection resulted in a “substantial decrease in her symptoms, ” but the pain had returned. (Id.) Plaintiff also reported neck pain. (Id.) On examination, Plaintiff had a full range of motion of the neck, a “relatively full range of motion of the right shoulder, ” and positive impingement signs. (Id.) Dr. Levine diagnosed symptomatic partial tear of the rotator cuff and possible labral pathology of the right shoulder. (Id.) Dr. Levine recommended and administered a corticosteroid injection to Plaintiff's right shoulder. (Tr. 757.)

         During a January 2013 appointment, Plaintiff reported persistent pain in her right shoulder. (Tr. 753.) On examination, Plaintiff had a drooping right shoulder, positive impingement signs, and positive labral loading signs. (Id.) Dr. Levine noted that MRI results showed “evidence of labral pathology which is chronic in nature involving both a complete tear and degeneration, ” along with “evidence of rotator cuff tendinopathic changes.” (Id.) Dr. Levine diagnosed “[s]capular dyskinesia of the right shoulder with evidence of labral pathology.” (Tr. 753.) Dr. Levine advised Plaintiff that she had two treatment options: (1) a corticosteroid injection to the shoulder and a strengthening program; or (2) surgical reconstruction of the labrum. (Id.) Plaintiff elected the injection and strengthening program. (Id.) Dr. Levine informed Plaintiff that if she did not improve, surgery would be the only other means of treatment. (Id.) Plaintiff told Dr. Levine that she would “consider surgery.” (Id.) Dr. Levine administered a right shoulder steroid injection and noted that after the procedure, Plaintiff's “pain was completely abolished and her drooping shoulder was no longer present.” (Id.)

         During an April 18, 2013 appointment with Dr. Levine, Plaintiff reported that she had seen Dr. Anghel and had a spinal block. (Tr. 752.) Plaintiff stated she did not experience pain relief, but “her radicular pain seem[ed] to be somewhat improved.” (Id.) Plaintiff reported ongoing right shoulder pain. (Id.) On examination Plaintiff had a limited range of motion in her neck, drooping of the right shoulder, and pain with impingement. (Id.) Dr. Levine noted that Plaintiff had evidence of referred pain from discogenic cervical disease into the right scapular region. (Id.) He also noted evidence of a right labral tear and a partial rotator cuff tear. (Tr. 752.) However, because Plaintiff experienced pain relief after a trigger point injection, Dr. Levine opined, “surgery is still not indicated with respect to the shoulder itself.” (Id.)

         During an April 29, 2013 appointment, Plaintiff reported her shoulder pain had dramatically improved as a result of trigger point injections to her neck. (Tr. 750.) On examination, Plaintiff had a full range of motion in her neck, a full range of motion in her right shoulder, no gross motor weakness in her right shoulder, positive impingement signs, and negative labral loading. (Tr. 750.) Dr. Levine recommended trigger point injections in the cervical spine. He stated that if Plaintiff continued to respond, then he would not recommend additional treatment. (Id.) However, Dr. Levine noted that he would recommend a more aggressive treatment plan for Plaintiff's shoulder if she did not respond. (Id.)

         During Plaintiff's last recorded visit with Dr. Levine on May 20, 2013, she reported that her shoulder and arm pain had markedly improved. (Tr. 749.) However, she continued to have pain when lying on her right shoulder and reported symptoms that suggested ongoing C6 radiculopathy. (Id.) She reported pain in her right arm with repetitive overhead use, but it was “quite moderate.” (Id.) Plaintiff had instability symptoms in the right shoulder. (Id.) On examination Plaintiff had a full range of motion in her neck and in both shoulders. (Id.) She had no motor weakness. (Id.) Dr. Levine found evidence of a minor tendinopathy of the right shoulder with partial tears of the rotator cuff, and “evidence of resolving cervical radiculopathy post block.” (Id.) He advised Plaintiff that if her pain “markedly worsen[ed] she [was] a candidate for a diagnostic arthroscopy and either repair or debridement of the cuff.” (Id.) Dr. Levine released Plaintiff to follow-up on an as needed basis. (Id.)

         B. Medical Opinions

         1. Jerry Thomas, M.D.

         As part of the initial disability determination, state agency reviewer Dr. Jerry Thomas, M.D., completed a physical capacities assessment form. (Tr. 269-76.) Dr. Thomas's assessment was based on the mistaken belief that Plaintiff was last insured for disability insurance benefits through December 31, 2005. (Tr. 269.); see Lester v. Chater, 81 F.3d 821, 825 (9th Cir. 1996) (stating that a claimant seeking disability insurance benefits must establish that she was disabled prior to the date last insured). Plaintiff's date late insured was September 30, 2016. (Tr. 14, 129.) Dr. Thomas assessed physical capacities consistent with light work. (Tr. 270.) Specifically, he determined that Plaintiff could occasionally lift and carry twenty pounds, frequently lift and carry ten pounds, stand or walk about six hours in an eight-hour workday, and sit for about six hours in an eight-hour work day. (Tr. 270.) He found no limitations in Plaintiff's abilities to push and pull, “other than as shown for lift and/or carry, ” and no limitations in her manipulative abilities. (Tr. 271-72.) He also found no limitations in Plaintiff's abilities to climb, balance, stoop, kneel, crouch, and crawl. (Tr. 271.) Dr. Thomas cited medical records from January to April 2012 to support his findings. (Tr. 276.)

         2. Bill F. Payne, M.D.

         In December 2012, Dr. Bill Payne, M.D., completed a case analysis as part of the reconsideration determination. (Tr. 486.) Dr. Payne mistakenly believed that Plaintiff's date last insured was December 31, 2005. (Tr. 486.) Based on that belief, he concluded there was no available medical evidence of record covering the period on or before that date. (Id.) Therefore, he ...


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