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Hagan v. Colvin

United States District Court, Sixth Circuit

July 3, 2013

WENDY K. HAGAN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

LANNY KING, Magistrate Judge.

This matter is before the Court upon Plaintiff's Complaint seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, to conduct all further proceedings in this case, including entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed. Docket Entry Number (DN) 9.

The fact and law summaries of the Plaintiff and the Defendant are at DN 12 and DN 13, respectively. Mary G. Burchett-Bower represents Plaintiff.

The final decision of the Commissioner, which is presently before this Court upon judicial review, was rendered on April 22, 2011, by Administrative Law Judge (ALJ) Lawrence Levey. Administrative Record (AR), pp. 88-99.

For the reasons below, the final decision of the Commissioner is AFFIRMED, and Plaintiff's complaint is DISMISSED.

Plaintiff's Medical-Vocational Profile

Plaintiff's principal contention upon judicial review is that the ALJ erred in discounting Dr. Shivakumar's disabling medical assessment and finding that she has a residual functional capacity (RFC) for a limited range of light work.

Plaintiff is a younger individual born on February 5, 1970 (AR, p. 97). She alleges disability due to physical and mental impairment. She does not challenge the ALJ's evaluation of her mental impairment but alleges disability due to residual effects of two cervical spine surgeries, including ongoing neck pain, trapezius muscle spasms, migraine headaches, and decreased strength and mobility in the upper and lower extremities.

Plaintiff filed for disability in March, 2009, before the first cervical spine surgery was performed in April, 2009 (AR, p. 88).

On April 14, 2009, John E. Harpring, M.D., who is associated with the Neurosurgical Institute of Kentucky, performed anterior fusion of C5-C7 (AR, p. 762). After surgery, Plaintiff experienced continuing symptoms, which Dr. Harpring attributed to pseudoarthrosis/non-union, which he, in turn, related to Plaintiff's failure to heed medical advice to quit smoking.

Pseudoarthrosis is a condition following spinal fusion surgery in which segments of vertebral bone do not merge over the disc space. The condition occurs more frequently in heavy smokers. Meyers v. Astrue, 681 F.Supp.2d 388 n.5 (W.D.N.Y.2010).

In June and October, 2009, the Commissioner's program physicians, Robert Brown and P. Saranga, provided physical residual functional capacity (RFC) assessments in connection with Plaintiff's disability claim. These physicians opined that Plaintiff's condition "should improve within 12 months after surgery" to the point that she would be able to perform a limited range of medium work (AR, pp. 528 and 607). There is no indication that these physicians were aware of Plaintiff's post-surgical pseudoarthrosis, which eventually necessitated a second, re-do surgery.

The ALJ "considered the opinions of [these] medical consultants [Drs. Brown and Saranga], but [found] that the evidence of record suggests greater limitations" (AR, p. 96). The ALJ found that Plaintiff can perform a limited range of light work (AR, p. 92).

On August 31, 2010, Dr. Harpring performed a re-do posterior fusion of C5-C7 (AR, p. 760). Although a post-surgical CT-scan indicated that the "surgically fused vertebrae appear well fused" (AR, p. 832), Plaintiff ...


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