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Derryberry v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 24, 2017

Daniel Derryberry, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Bridget S. Bade United States Magistrate Judge

         Plaintiff Daniel Derryberry seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying his 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 in part and remands for further proceedings.

         I. Procedural Background

         In October 2012, Plaintiff filed an application for a period of disability and disability insurance benefits. (Tr. 13.)[1] Plaintiff alleged a disability onset date of April 20, 2010. (Id.) After the Social Security Administration (SSA) denied Plaintiff's initial application and his request for reconsideration, he 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. 13-24.) 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 of Plaintiff's alleged impairments. The record also includes several medical opinions.

         A. Medical Treatment Evidence

         1. Verve Chiropractic Group On August 19, 2010, Plaintiff sought treatment for back pain at the Verve Chiropractic Group. (Tr. 300.) On examination, Plaintiff had a reduced range of motion with lumbar flexion and extension, and positive findings on the Dejerine's Triad, Minor's test, Escnterew's test, and on a straight-leg raising test. (Id.) Plaintiff could perform bilateral leg raise and heel and toe walk with pain. (Id.)

         On May 9 2011, at an appointment with Nurse Practitioner (NP) Janine Sutter, Plaintiff complained of knots and cramping in his upper shoulders, migraines, and gastrointestinal (GI) problems. (Tr. 397.) On examination, NP Sutter noted tightness in Plaintiff's scapular region with two or three pressure points along the parascapular area. (Tr. 398.) NP Sutter noted that Plaintiff had an upcoming appointment with a gastroenterologist. (Tr. 397.)

         On August 1, 2011, Plaintiff had an appointment with Helen Sava, M.D. (Tr. 394.) Plaintiff reported that prescribed medications had not improved his headaches. (Id.) Plaintiff reported that at home “cervical traction” improved his headaches. (Tr. 394.) He also reported that his irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD) symptoms had resolved. (Id.) Dr. Sava changed Plaintiff's headache medication to Ketorolac. (Id.)

         On October 31, 2011, Plaintiff had an appointment with Sean MacKenzie, D.C., at Verve. (Tr. 303.) Plaintiff complained of low back pain on the right side that was worse “after playing basketball this week” and with bending and lateral movement. (Id.) Plaintiff reported that his pain was “better with ice.” (Id.) Dr. MacKenzie examined Plaintiff and reported that he had a normal gait and station. (Id.) He diagnosed Plaintiff with lumbar sprain, degeneration of the lumbar disc, and muscle spasm, and prescribed chiropractic manipulative therapy, traction, manual therapy, and stretching. (Id.)

         During a February 7, 2012 appointment at Verve, Plaintiff reported that he had chronic low back pain and experienced three to four migraines headaches per week. (Tr. 380.) He stated that Imitrex did not relieve his migraines and Maxalt was not covered by his insurance. (Id.) Plaintiff was prescribed medication and referred to pain management for his pain complaints. (Tr. 381.) During a May 14, 2012 appointment at Verve, Plaintiff complained of chronic low back pain due to multiple disc bulges. (Tr. 386.) He stated that he could not afford further treatment for pain management. (Id.)

         On March 7, 2013, at another appointment at Verve, Plaintiff complained of migraine headaches and lower back pain. (Tr. 378.) Plaintiff reported less pressure with headaches, but the same intensity. (Id.) Plaintiff was prescribed medications and advised to follow-up with neurologist Dr. Yasir Shareef. (Tr. 379.)

         2. Banner Baywood Neurology

         While receiving treatment at Verve, on August 2, 2011, Plaintiff also saw Hamid Mortazavi M.D., for headaches. (Tr. 287.) Plaintiff reported that he had weekly headaches that lasted at least an hour and caused pressure and throbbing. (Id.) Plaintiff reported that his headaches were “improving.” (Id.) Plaintiff stated that exercise and stress aggravated his headaches. (Id.) Dr. Mortazavi opined that Plaintiff did not need prescription medication for headaches, but should avoid triggers for headaches. (Tr. 289.)

         3. Dr. Yasir Shareef

         On referral from Verve, on April 17, 2012, Plaintiff sought treatment from Dr. Yasir Shareef and reported migraines and back pain. (Tr. 331.) Plaintiff reported one to two headaches per day with nausea, phonophobia, and photophobia. (Id.) Dr. Shareef prescribed medication and ordered an MRI for Plaintiff's headaches. (Id.) An April 20, 2012 MRI of Plaintiff's brain showed “moderate mucosal thickening opacigying the petrous apex on the right ampatible with petrous apicitis and retention cysts.” (Tr. 342.) The MRI was otherwise “unremarkable.” (Id.)

         On May 15, 2012, and July 17, 2012, at appointments with Dr. Shareef, Plaintiff complained of leg pain, paresthesia, and headaches. (Tr. 334, 335.) Plaintiff reported “good pain relief with ice on his back.” (Tr. 334.) Plaintiff reported having about six to eight headaches per week. (Tr. 335.) Dr. Shareef noted normal findings on physical examination. (Tr. 334, 335.) Dr. Shareef prescribed Tizanidine and physical therapy, and ordered an EMG on Plaintiff's legs. (Id.) On September 4, 2012, Plaintiff saw Dr. Shareef for headaches and back pain. (Tr. 336.) Plaintiff reported that his pain had not improved. (Id.)

         4. 360° Physical Therapy

         On referral from Dr. Shareef, between July 18, 2012 and August 10, 2012, Plaintiff participated in physical therapy for lumbar pain at 360° Physical Therapy. (Tr. 316-26.) The initial assessment noted that Plaintiff had most recently hurt his back “wrestling a water heater.” (Tr. 316.) On examination, Physical Therapist (PT) Lianne Rogers observed that Plaintiff had poor trunk strength, decreased lumbar lordosis, and muscle spasms in his lumbar paraspinals. (Tr. 318.) PT Rogers noted “fair tolerance” to treatment “causing limited ability to progress through the exercises.” (Id.) Plaintiff's last treatment note from 360º Physical Therapy, on August 10, 2012, indicated that Plaintiff displayed fair tolerance to treatment and had made fair progress toward goals. (Id.) PT Rogers noted that Plaintiff's lower-leg extremity numbness was “abolished, ” but he continued to have poor trunk strength. (Id.)

         5. Desert Valley Gastroenterology

         Plaintiff also sought treatment from Dr. Steven Kaiser, a gastroenterologist, on May 11, 2011. (Tr. 238.) Plaintiff reported constipation, abdominal pain, and dysphagia to solids and liquids. (Id.) Dr. Kaiser diagnosed GERD and possible IBS. (Tr. 239.) Based on Plaintiff's complaints of abdominal pain, Dr. Kaiser ordered an upper and lower endoscopic examination. (Tr. 240.) An upper endoscopy with biopsy and colonoscopy with biopsy was performed on May 26, 2011, and showed internal hemorrhoids. (Tr. 242-43.) Dr. Kaiser recommended treatment for IBS and “anti-reflux precaution.” (Id.) On April 27, 2012, Plaintiff followed up with Dr. Kaiser regarding stomach pain. (Tr. 311.) Plaintiff reported pain, diarrhea, and abdominal discomfort with fullness. (Id.) Dr. Kaiser diagnosed abdominal pain and GERD. (Tr. 311-12.) Dr. Kaiser ordered another upper and lower endoscopic examination. (Tr. 314.)

         6. Desert Spine and Sports Medicine

         Plaintiff also received treatment for back pain at Desert Spine and Sports Medicine (DSSM). On February 2, 2011, Plaintiff had medial branch blocks at left L3, L4, and L5. (Tr. 598.) On February 23, 2011, Plaintiff again had medial branch blocks at left L3, L4, and L5. (Tr. 596.) On March 16, 2011, Plaintiff had radiofrequency ablations to the left L3 and L4 medial branch nerves and L5 dorsal ramus. (Tr. 594.)

         On May 4, 2011, Plaintiff had an appointment with Physician Assistant (PA) Courtney McDaniel at DSSM. (Tr. 591.) Plaintiff reported that his pain had improved “70-80%” since his March 16, 2011 radiofrequency ablations. (Id.) However, Plaintiff complained of low back pain and dull pain that radiated to his left gluteal area, and stated that he could not “endure sustained activity due to back pain.” (Id.) On physical examination, PA McDaniel observed that Plaintiff had an antalgic gait, poor balance with single-leg stance bilaterally, and a moderately limited range of motion, but was “nonpainful in flexion.” (Tr. 592.) Plaintiff had full motor strength, could heel and toe walk, and had a negative straight-leg raising test. (Id.) PA McDaniel diagnosed Petitioner with lumbar spondylosis and lumbar degenerative disc disease and recommended physical therapy. (Id.) She referred Plaintiff to Mesa Endurance Rehabilitation. (Id.)

         During a July 5, 2011 appointment with PA McDaniel, Plaintiff reported that he attended three physical therapy appointments before the termination of his workers' compensation coverage. (Tr. 600.) He reported that the pain in his left L3, L4, and L5 was “90% better” than his last visit. (Id.) Plaintiff reported that he had dull lumbar back pain that radiated to the left gluteal area. (Id.) Plaintiff stated that his pain was aggravated by lifting and excessive sitting, walking, and standing. (Id.) Lying down with his legs elevated or exercise improved Plaintiff's pain. (Id.) On examination, PA McDaniel noted that Plaintiff had full motor strength, a nonantalgic gait, and improved single-leg balance bilaterally. (Id.) Plaintiff had a “moderately limited but nonpainful” lumbar range of motion in flexion, but had “full and nonpainful” range of motion in “all other planes.” (Tr. 601.) PA McDaniel limited Plaintiff to lifting no more than twenty-five pounds and advised him to continue home exercises. (Id.) On May 4, 2012, Plaintiff had an MRI of his lumbar spine that showed spondylotic changes of the lower lumbar spine, spinal stenosis at ¶ 3-4 and L4-5, and foraminal narrowing at ¶ 5-S1. (Tr. 343.)

         7. Hospitalizations and Related Treatment

         On March 31, 2013, Plaintiff was admitted to the hospital for right arm swelling and pain. (Tr. 607.) Dr. Mariana Liu diagnosed extensive right upper-extremity deep venous thrombosis (DVT), pulmonary embolism, hypertension, chronic back pain, migraine headaches, acid reflux, and DVT prophylaxis. (Tr. 609.)

         On April 1, 2013, while still admitted to the hospital, Plaintiff experienced acute chest pain on the left side that radiated to his back, difficulty breathing, and dizziness. (Tr. 611.) Plaintiff had moderate pain with palpation to his sternum that was not relieved with treatment. (Id.) Plaintiff was transferred to Banner Heart Hospital for further evaluation. (Id.) Cardiologists at Banner Heart Hospital concluded that Plaintiff's chest pain was due to dyspnea and adjusted his medications. (Tr. 634.)

         On May 10, 2013, Plaintiff sought treatment from Dr. Charles Richardson for right upper extremity DVT and suspected Paget Schroetter syndrome. (Tr. 367.) Dr. Richardson noted that Plaintiff's migraines had improved with anticoagulation, but his insurance no longer covered “the Coumadin clinic at BBMC.” (Id.) On May 17, 2013, Plaintiff reported to Dr. Richardson that he experienced “fullness in his neck and head” after ten minutes of exercise. (Tr. 370.) Dr. Richardson noted that Plaintiff's migraines improved with anticoagulation and that Plaintiff was on Coumadin. (Tr. 370-71.) Dr. Richardson continued Plaintiff's medications and referred him to a cardiologist, Dr. Arman Talle, for evaluation of his chest pain. (Tr. 371.) On May 30, 2013, Plaintiff saw Dr. Talle and had a myocardial perfusion study (stress test), which showed a fixed defect involving the apical wall consistent with attenuation artifact. (Tr. 365.)

         On June 2, 2013, Plaintiff went to the emergency room complaining of constant, sharp chest pain that began when he was resting. (Tr. 637.) Testing showed a small left epical pneumothorax. (Tr. 646.) At a cardiology follow-up appointment on July 3, 2013, Dr. Talle noted that Plaintiff had an abnormal ECG and recommended a screening for structural heart disease based on his history of a pulmonary embolism, upper extremity DVT, recent pneumothorax, and hospitalization. (Tr. 366.)

         On August 6, 2013, Plaintiff had a follow-up appointment with Dr. Richardson. (Tr. 373.) Plaintiff reported that after leaving the hospital, his right upper extremity was swollen and painful. (Id.) Dr. Richardson diagnosed acute venous embolism and thrombosis of the deep veins of the upper extremity, spontaneous pneumothorax, and classic migraines. (Tr. 374.) He prescribed activity as ...

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