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Sorrell v. Colvin

United States District Court, E.D. Kentucky, Northern Division, Ashland

June 25, 2015

CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.


EDWARD B. ATKINS, Magistrate Judge.


Plaintiff, Pamela Kaye Sorrell, brings this action under 42 U.S.C. § 405(g) to challenge the Defendant Commissioner's final decision denying her application for Disability Insurance Benefits. [R. 2]. Upon consent of the parties, this matter has been referred to the undersigned to conduct all proceedings and order the entry of final judgment in accordance with 28 U.S.C. § 636© and Fed.R.Civ.P. 73. [R. 13]. Now ripe for decision on the parties' cross-motions for summary judgment, and for the reasons set forth herein, the Plaintiff's Motion for Summary Judgment [R. 14] shall be denied, the Defendant's Motion for Summary Judgment [R. 15] shall be granted, and Judgment will be entered affirming the Commissioner's final decision.


The Plaintiff filed an application on July 27, 2011 for a period of disability and disability and disability insurance benefits beginning July 2, 2011. Tr. 108-11. The application was denied initially and on reconsideration. Tr. 43-61. Plaintiff was heard before the Administrative Law Judge ("ALJ") [Tr. 21-42], following which her claim was denied [Tr. 8-20], and the Appeals Council denied review of the decision [Tr. 1-8]. Accordingly, the case is ripe for review.

At the time she claimed to become disabled, Plaintiff was fifty-eight years old. Tr. 108. She has a high-school education and past relevant work as a community action case aide and a grocery bagger. Tr. 31, 148. She said she quit work in July 2011 because she could not perform the physical demands of the job. Tr. 31-32. She listed her disabling impairments as: "carpal tunnel, fibromyalgia, osteoarthritis, vision, and plantar fasciitis." Tr. 138.

The record shows that Plaintiff saw various doctors, including her primary care provider James Frederick, M.D., off and on since 1997 for plantar faciitis on her right foot, possible stress fracture on her left toe, fibromyalgia, sinusitis, carpal tunnel syndrome, osteoarthritis, and degenerative disc disease. R. 14-1 at 3-4; Tr. 195-201, 203-05, 236-62, 268-71. On July 12, 2011, soon after her alleged disability date, Plaintiff saw Howard Feinberg, D. O., for neurological consultation regarding her problems with sleeping, muscle pain, and hand pain, including morning stiffness and numbness. Tr. 202. He noted trigger point tenderness consistent with fibromyalgia; no pain with cervical and lumbar range of motion; no vertebral point tenderness; mild wrist tenderness; and an equivocal Tinel sign bilaterally. Tr. 202. Dr. Feinberg's diagnoses included osteoarthritis, degenerative disc disease, fibromyalgia, carpal tunnel syndrome, and low normal bone density. Tr. 202. He prescribed Motrin in place of Aleve, Flexeril in place of Elavil, continuation of wrist splints, and a bilateral upper extremity nerve study. Tr. 202. The nerve conduction study showed some abnormal median sensor and motor nerves, but also showed some normal nerves. Tr. 206-15.

Plaintiff had no further treatment until April 2012 when she saw Dr. Frederick for a headache. Dr. Frederick referred her to a neurologist. Tr. 227-28.

In September 2011, Plaintiff saw Thien Ngo, M.D., for a consultative examination relating to her disability application. Tr. 220-223. Dr. Ngo's examination revealed no muscle asymmetry, atrophy, or involuntary movements; no structural deformity, effusion, or tenderness or swelling of any joint except diffuse tender points on the front and back of the chest and some tender points in her feet with full range of motion; limited range of motion of her cervical spine; positive Phalen's and Tinel's signs in both hands; a normal gait and ability to rise from sitting without assistance, stand on her tiptoes and heels, tandem walk without problems, and bend and squat without difficulty; full (5/5) grip strength with her hands with adequate fine motor movements, dexterity and ability to grasp objects bilaterally; 20/30 visual acuity in both eyes with correction; good tone and strength in all muscle groups; and normal reflexes. Tr. 221-22. His diagnosis included neck pain due to degenerative disc disease versus cervical radiculopathy; bilateral hand numbness likely due to carpal tunnel syndrome; bilateral foot pain likely due to plantar faciitis; and a history of fibromyalgia with fatigue and multiple tender points. Tr. 222. Based on the examination and objective evidence, Dr. Ngo opined that Plaintiff should be able to sit, walk, and stand for a full workday with frequent and adequate breaks and to lift/carry objects with limitations secondary to pain. Tr. 222

State agency physician Marvin Bittinger, M.D., reviewed Plaintiff's medical records in November 2011 and concluded she could perform a range of medium work, including her past relevant work. Tr. 46-51. Dr. Bittinger opined that she could lift and carry fifty pounds occasionally, twenty-five pounds frequently; sit and stand/walk six hours in an eight-hour work day; frequently perform all postural activities but only occasionally climb ladders, ropes and scaffolds; and there were no manipulative, visual, communicative or environmental limitations. Tr. 48-50.

On December 7, 2011, state agency physician Diosdado Irlandez, M.D., also reviewed Plaintiff's medical records. Tr. 57-59. He opined that Plaintiff could occasionally lift/carry fifty pounds, frequently lift/carry twenty-five pounds; could stand/walk/sit six hours in an eight-hour work day; pushing/pulling was unlimited other than for lift/carry; frequently climb ramps/stairs, balance, stoop, kneel, crouch and crawl and occasionally climb ladders/ropes/scaffolds. Tr. 58-59. There are no manipulative, visual, communicative or environmental limitations. Tr. 59-60. Dr. Irlandez concluded that Plaintiff "has some limitations in the performance of certain work activities; however, these limitations would not prevent the individual from performing past relevant work as a/an cashier." Tr. 60.

In November 2012, Plaintiff returned to Dr. Frederick "to have disability form filled out." Tr. 276. She complained of joint pain, but Dr. Frederick found "no motor weakness, no motor sensory deficit... and no clubbing, cyanosis, edema" in extremities. Tr. 276-77. His assessment was "pain in joints, multiple sites." Tr. 276. Nonetheless, his medical statement said that Plaintiff can work only one hour per day with breaks; can stand/walk and sit less than two hours in an eight hour day; cannot frequently or occasionally lift any weight; never balance or climb ladders and only occasionally bend, stoop or climb stairs. Tr. 272.

Plaintiff testified at her January 23, 2013 hearing that she is 5' 5" and weighs 207 pounds; in July 2011, she weighed around 180 pounds. Tr. 29. She testified that she cannot stand on her feet for more than a half hour; she has to use both hands to lift a book; she has pain across the back of her shoulders and cannot lift anything; her arms are in constant pain and would not let her rest most of the night after she worked; after waking up, it takes her about an hour to function and she has to walk very carefully on her feet; she does house cleaning in ten to fifteen minute blocks and then rests; she cannot sit or stand without pain; her hands and arms are too sore to hold a book while reading; she has severe pain three or four times a month. Tr. 29-36, 40. On a scale of one to ten, she rates her pain constantly at a seven and the severe pain at a ten. Tr. 37. She claimed that she has to use both hands to pick up things because her grip will not hold and she drops things. Tr. 38.

The ALJ found that Plaintiff's carpal tunnel syndrome and visual disturbance were "severe" impairments. Tr. 13. Based on the entire record, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform medium work, with the limitations that she can stand, walk or sit for six hours in an eight hour day; she can frequently climb ramps/stairs, ...

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