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Kinnex v. Commissioner of Social Security Administration

United States District Court, D. Arizona

April 3, 2017

Debra M. Kinnex, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          David K. Duncan United States Magistrate Judge.

         Debra Kinnex appeals from the Commissioner of Social Security's decision to adopt the Administrative Law Judge's (ALJ) ruling denying her claim for Social Security Disability Insurance benefits and Supplemental Security Income Disability benefits. On appeal, Kinnex argues that she is entitled to benefits because the ALJ incorrectly discounted her treating physician's opinion, incorrectly discounted her testimony, and misapplied the Vocational Expert's testimony. (Doc. 18) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and, with the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). As described below, the Court remands this matter for further proceedings.

         BACKGROUND

         Born in 1957, Kinnex filed applications for Social Security Disability Insurance and Supplemental Security Income benefits alleging a disability onset date of July 12, 2012. (Tr. 213-15, 216-25) She alleged disability from osteoporosis, lumbar compression fractures, and degenerative disc disease of the lumbar and thoracic spine. (Tr. 21, 211-25, 258-59) She has an 11th grade education and her past work experience was as a bartender, stock clerk, stock control supervisor, waitress, driver, and office clerk. (Tr. 41, 63-65)

         Medical Evidence [1]

         On June 29, 2012, [2] Kinnex established care with Benjamin H. Venger, M.D., at TriState Pain Institute, to manage her spinal pain, identify the pain generator, and maintain her pain medication. (Tr. at 430) On physical examination of her lumbosacral spine, Dr. Venger noted trigger points at the upper outer quadrant of the buttocks, bilateral paraspinal muscle tenderness, mild spasm, mild pain with extension or axial loading, and minimal bilateral discomfort with lateral bending. (Tr. 433) He noted that her range of motion was normal for her age, her paraspinal muscle strength and tone were within normal limits, and her straight leg raise test was bilaterally negative. (Tr. 433-34) Finally, he noted that Kinnex had a slightly broad-based gait and that she was able to walk without the assistance of an orthosis, could stand without difficulty, and had an upright posture. (Tr. 434)

         Subsequently, Kinnex used an over-the-counter lumbar brace without any relief. (Tr. 443) Accordingly, Dr. Venger fitted her for a specialty lumbar brace and ordered a magnetic resonance imaging (MRI) scan. (Tr. 447) For the L2 vertebra, MRI imaging showed mild compression deformity of the vertebral body with approximately 30% to 40% loss of vertebral height, some patchy bone marrow edema, and a slight degree of posterior retropulsion. For the L3 vertebra, MRI imaging showed a mild concave deformity and some patchy bone marrow edema. Finally, for the L4 vertebra, the MRI showed a moderate compression fracture with approximately 60% loss of vertebral height, diffuse patchy bone marrow edema, and small subligamentous disk protrusion over the L4-L5 area. (Tr. 450-52)

         Subsequently, Dr. Venger performed a vertebroplasty on Kinnex's back at the L2, L3, and L4 vertebrae. (Tr. 462-65) In her first follow-up visit, she stated that her pain was “slowly improving following her procedure” and that she could “ambulat[e] well without any significant pain.” (Tr. 467) She also stated that pain medications covered 41-50% of her current discomfort and that her pain level average was 7 out of 10. (Tr. 466). At her second follow-up visit on August 3, 2012, she reported that her pain had improved on the inside of her back but she was experiencing more pain on the outside of her back, that she was careful when standing and walking, and that she could “handle the pain” because of the pain medication. (Tr. 473) She acknowledged a 70-80% pain reduction from her medication and claimed that her pain level was about 8 out of 10. (Tr. at 472)

         On August 16, 2012, Kinnex stated that her pain medication covered about 31-40% of her pain, that her daily pain average was 7 out of 10, and reported new pain in her upper lumbar region. (Tr. 482, 484) In response to her report of new myofacial thoracic pain, Dr. Venger performed trigger point injections on her mid- and lower thoracic iliocostalis muscles and ordered updated x-rays. (Tr. 478) The thoracic spine x-ray showed a Schmorl node involving the superior endplate of a lower thoracic vertebral body, no significant wedge compression deformities, very mild degenerative changes, no large osteophytes, and some mild scattered intervertebral disc narrowing. (Tr. 392) The lumbar spine x-ray showed mild compression deformities at ¶ 2 and L3, a moderate compression deformity at ¶ 4, an approximate vertebral height loss of 50% of L4, no evidence of retropulsion, generalized osteopenia, and mild degenerative changes of facet joints. (Tr. 393)

         On August 20, 2012, Kinnex told a health care provider at Riverview Wellness that she thought her vertebroplasty had alleviated her back pain. (Tr. 619)

         On September 20, 2012, Kinnex stated that her pain medication covered about 41-50% of her pain and that her daily pain averaged 8 out of 10. (Tr. 494) She reported excruciating pain in her lumbar and sacral spine but relief from the earlier procedures in her thoracic spine. (Tr. 495, 498)

         On October 18, 2012, Kinnex stated that her medications had given her 60-70% relief but that her pain is worse. (Tr. 505) She complained of abdominal and lumbar pain and so Dr. Venger performed another set of trigger point injections. (Tr. 502)

         On November 21, 2012, Kinnex complained of more back pain but was not sure if her pain was from her back or her kidneys. (Tr. 511) She indicated that her pain medication covered about 61-70% of her pain with an average level of pain at 7 out of 10. (Tr. 510) On December 28, 2012, Kinnex reported that her pain medication covered about 61-70% of her pain and that the pain averaged 5 out of 10. (Tr. 516) On January 24, 2013 and February 22, 2013, she stated that her pain medication covered about 91-100% of her pain and that the pain averaged 6 out of 10. (Tr. 530, 536)

         On January 31, 2013, [3] Dr. Venger completed a Residual Functional Capacity Questionnaire. (Tr. 318-19) He stated that Kinnex could sit for 20 minutes at a time for a total of two hours in an eight hour work day and that she would take four or five unscheduled 10-15 minute work breaks per day. (Tr. 318) He stated that she could frequently lift less than 10 pounds and occasionally lift 10 pounds, she would be absent more than four times a month from work, and that she was not a malingerer. (Tr. 319)

         The record is not clear that Dr. Venger treated Kinnex between March and May 2013. Documentation of monthly visits resumes in June 2013 and her treatment appears to be only medication management. (Tr. 543) In July 2013, she reported to Dr. Venger that her pain medication covers 71-80% of her pain and that her pain level was “so bad that even with the medication she [wa]s up 4-5 times a night. She [wa]s not able to sit, stand, or lay down for any length of time.” (Tr. 544-45) In August, September, October, November, December 2013 and January, February, March, April, May, June, July, August 2014, Kinnex reported to Dr. Venger that medication covered 61-70% of her pain but she variously reported that her pain levels had either remained the same (August, September October, November, and December 2013; January, May, and August 2014), were slightly worse (April 2014), or worse (February, March, June, and July 2014). (Tr. 544-45, 555-56, 561-62, 568-69, 573-74, 579-80, 585-86, 591-92, 597-98, 627-28, 635-36, 641-42)

         In April 2014, Kinnex told Dr. Venger that, due to financial considerations, she was only interested in medication management. (Tr. 565) In May 2014, Dr. Venger completed another Residual Functional Capacity Questionnaire that was essentially identical to the previous Questionnaire he completed. (Tr. 624-25) In July 2014, he performed a medial branch nerve block and she subsequently reported that the procedure had relieved approximately half of her pain. (Tr. 628, 633).

         Kinnex ...


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