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Cooper v. Colvin

United States District Court, W.D. Kentucky, Paducah

May 23, 2014

SHERRY ANN COOPER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

MEMORANDUM OPINION AND ORDER

LANNY L. KING, Magistrate Judge.

Sherry Cooper filed this action pursuant to 42 U.S.C. ยง 405(g), seeking judicial review of an administrative decision of the Commissioner of Social Security, who denied her application for disability benefits. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals.

Plaintiff seeks review of a second decision issued by administrative law judge (ALJ) Mary S. Lassy following remand by the Appeals Council of the ALJ's first decision.

Plaintiff alleges that the ALJ did not follow the Appeals Council's Order of Remand, that the ALJ's decision is not supported by substantial evidence, and that it is not in accord with applicable legal standards. A failure to follow the Appeals Council's remand order is not a cognizable claim upon judicial review. The ALJ's decision is supported by substantial evidence.

Therefore, the Court will DENY Plaintiff's motion for summary judgment (Docket No. 10), AFFIRM the Commissioner's final decision, and DISMISS Plaintiff's complaint.

Factual background and procedural history

Plaintiff is a younger individual, born in June, 1972. She had a car accident in approximately 2000, resulting in minor back pain, and then hurt her back at work while lifting boxes. Administrative Record (AR), p. 875. Plaintiff has since developed piriformis syndrome, which is a neuromuscular disorder that occurs when the piriformis muscle, a narrow muscle located in the buttocks, compresses or irritates the sciatic nerve. Carrelli v. Commissioner, 2010 WL 2993975, *1 (6th Cir.). Plaintiff last engaged in substantial gainful activity in September, 2007. AR, p. 25.

On March 20, 2009, Plaintiff's treating pain management physician, Monte Rommelman, completed the standard physical assessment form, finding, among other things, that Plaintiff can sit for less than about 6 hours and stand/walk for less than 2 hours in an 8-hour workday, which does not allow for any full-time work. AR, pp. 699-700. When asked what medical/clinical findings support these findings, Dr. Rommelman stated: "SI [sacroiliac] joint dysfunction and piriformis spasm with increase of pain with described activities. Pain limiting most activities but can be modulated with use of SI belt and alternating positions from sitting, standing, and walking." AR, p. 700.

At the hearing, Plaintiff described the stretches and yoga exercises recommended by the physical therapist. AR, p. 80.

In November, 2009, the ALJ issued a denial decision in which, among other things, the ALJ gave "little weight to Dr. Rommelman's opinion as it is unsupported by his own narratives and other evidence of record [and] [d]iagnostic studies revealed only minimal findings." AR, p. 127.

Plaintiff simultaneously appealed the ALJ's decision and filed a new application for disability benefits.

In June, 2010, in connection with the second application at the state agency level, Plaintiff was examined by Scott Farner, M.D. Among other things, Dr. Farner opined that Plaintiff's piriformis syndrome is a "potentially treatable condition that may improve with strengthening and weight loss [and Plaintiff can] perform [tasks] that involve sitting, standing and walking, but she may have difficulty with [tasks] that involve lifting, carrying and squatting." AR, p. 879.

On December 2, 2010, the Appeals Council remanded Plaintiff's first claim because the ALJ's stated rationale for giving little weight to Dr. Rommelman's opinion was insubstantial: "[I]t appears that Dr. Rommelman's opinion is supported by clinical evidence. Dr. Rommelman submitted an MRI showing that the claimant has left SI joint dysfunction, left piriformis syndrome, 4-5/5 motor in the bilateral lower extremities, and an antalgic gate on the right side [AR, p. 707]. [AR, p. 713] shows that the claimant has chronic sciatica and an antalgic gait on the right." AR, p. 137. The matter was remanded for "further evaluation" of Dr. Rommelman's opinion and to "[u]pdate the evidence on the claimant's medical condition to the extent required." AR, pp. 137-138.

The Commissioner consolidated and "joined" Plaintiff's two pending applications for disability benefits. AR, p. 394.

In February, 2012, the ALJ issued her decision disposing of both claims and finding that Plaintiff has not been under a disability at any time "through the date of this decision." AR, p. 40. The ALJ gave "great weight" to Dr. Farner's opinion. AR, p. 30.

While acknowledging the specific clinical findings identified by the Appeals Council, the ALJ found that "[t]he severe limitations assessed by Dr. Rommelman [which preclude an eight-hour workday] are unsupported by the ...


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