United States District Court, E.D. Kentucky, Northern Division, Covington
JENNIFER A. CALVERT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION & ORDER
M. Hood WH Senior U.S. District Judge.
matter is before the Court on the parties' cross-Motions
for Summary Judgment (DE 10, 12) on Plaintiff's appeal of
the Commissioner's denial of an application for
disability insurance benefits. The matter having been fully
briefed by the parties is now ripe for this Court's
protectively filed an application for disability insurance
benefits (DIB) in July 2013, alleging disability beginning
June 19, 2012 (Tr. 58, 137). Her application was denied
initially and on reconsideration (Tr. 83-89), and she pursued
and exhausted her administrative remedies before the
Commissioner (Tr. 1-3, 6-57). This case is ripe for review
pursuant to 42 U.S.C. § 405(g).
who was age 38 at the time of her alleged disability onset
date and within days of turning forty three years old at the
administrative hearing, has a high school education and past
relevant work as a human resources assistant, dispatcher, and
receptionist (Tr. 36, 47-48, 161). She alleged disability due
to several impairments, including degenerative disc disease
(Tr. 151). She had a prior history of lower back surgery,
including an L3-L5 decompression and fusion for multiple disc
herniation (Tr. 221). In 2012, she experienced sharp,
stabbing, constant pain running from her low back into the
posterolatereal aspect of her left leg and into her left foot
as well as paresthesis in her left great toe and thigh and
spasms in her left hip and thigh, fatigue, difficulty
sleeping, bowel problems, sexual problems, muscle pain,
muscle cramps or spasms, low back pain, trouble walking,
weakness or numbness, tingling, and depression, as well as
reporting that her hip had given out and she had fallen,
experiencing issues getting up from a sitting or lying
position, and challenges climbing or descending stairs, with
symptoms worse when she sat (Tr. 258-59). With the return of
symptoms that were not adequately responding to more
conservative treatment, she underwent an additional lower
back procedure for a herniated disc on June 19, 2012-her
alleged disability onset date (Tr. 231-32, 253, 255).
follow up appointment with her surgeon, Ryan Cassidy, M.D.,
approximately six weeks after her surgery, Plaintiff reported
that she had experienced a “complete resolution of her
symptoms shortly after surgery, ” but was now beginning
to feel increased pain in her lower extremities, although not
as bad as prior to surgery (Tr. 231). Dr. Cassidy examined
her and observed tenderness to palpation over her left
trochanter, downgoing Babinksi bilaterally, and the absence
of Hoffman signs and clonus bilaterally (Tr. 244-46). She had
normal objective findings on examination, lower back x-rays
showed no hardware complications, and the doctor stated that
the return of some symptoms at six-to-eight weeks post-op was
not uncommon, and likely due to ongoing scar tissue (Tr. 238,
247-48). He prescribed a muscle relaxant and an
anti-inflammatory and encouraged Plaintiff to increase her
activities as tolerated (Tr. 248). She was seen again in
October 2012 for a three-month follow up, at which time
objective clinical findings were again unremarkable other
than lower back tenderness (Tr. 244-45). Plaintiff reported
some hip and leg pain, but declined to schedule a follow up
appointment because she was doing well, felt like she
continued to improve, and just wanted to be seen on an
as-needed basis (Tr. 245).
did not see Dr. Cassidy again until July 2013 (Tr. 282-83).
At that visit, she reported that she had been doing well
until the prior month, when she began experiencing some lower
extremity pain and numbness (Tr. 282-83). On examination, her
lower back was non-tender to palpation, she had no
neurological deficits, and a straight leg raise test-a method
of detecting an underlying herniated disk or compressed nerve
root-was negative (Tr. 282-83). Lower back x-rays showed no
hardware complications (Tr. 275, 282-83). Plaintiff, who had
been treating symptoms with Aleve, was prescribed new
medications and referred to physical therapy for a
core-strengthening program (Tr. 282-83).
following month, a consulting physician, David Gilbert, M.D.,
examined Plaintiff as part of the administrative proceedings
(Tr. 266-71). Plaintiff reported significant everyday pain,
only helped by rest and frequent change of position, and the
use of a cane or walker when her back pain was worse (Tr.
266-67). Dr. Gilbert observed that Plaintiff used her upper
extremities for leverage when she went from a sitting to
standing position and found that Plaintiff had some
tenderness to palpation, but otherwise had a normal gait,
full strength in her extremities, and no neurological
deficits (Tr. 267-68). He opined that Plaintiff was unable to
walk more than 50 to 100 feet on a flat surface without
discomfort, but could sit for 30 minutes at a time, although
she would need to frequently shift positions (Tr. 268-69).
October 2013, Plaintiff had a follow up appointment with Dr.
Cassidy (Tr. 279-80). She reported that she was still having
some pain in her back, hips, and legs, but was doing better
than before surgery (Tr. 279). Physical examination findings
were again unremarkable, and Dr. Cassidy did not think she
would benefit from any further surgery; he thought her
symptoms would continue to improve with time (Tr. 279).
January 2014, state agency physician Rebecca Luking, D.O.,
reviewed the record and opined that Plaintiff had abilities
consistent with a range of light work (Tr. 74-76).
in August 2014, Plaintiff reported to her primary care
physician, Becky McGilligan, M.D., that another doctor, Dr.
Justin Kreuer, had performed a nerve block for back pain, but
it did not help (Tr. 309). Dr. McGilligan made an orthopedic
spine referral (Tr. 311), and Plaintiff saw Michael
Rohmiller, M.D., the following month (Tr. 384-85). On
examination, Dr. Rohmiller found that she had downgoing toes
with Babinksi, no ankle clonus bilaterally, no muscle
atrophy, 5/5 strength in the right hip, flexor, quadriceps,
and anterior tibialis, and 4/5 strength on the left (Tr.
385). She had some lower back tenderness and a positive
straight leg raise test on the left, negative on the right
(Tr. 385). Dr. Rohmiller ordered a lower back CT scan, and
Plaintiff had a follow up appointment that same month (Tr.
383, 386). The CT scan showed no evidence of hardware
failure, and Dr. Rohmiller also reviewed and agreed with an
April 2014 MRI report, which noted a small central disc bulge
at one level and a small foraminal protrusion at another
level (Tr. 383, 385). He found that Plaintiff was
“doing well” on Flexeril (a muscle relaxant) and
Ultram (tramadol, a pain reliever), and encouraged her to
avoid further surgery (Tr. 383). Plaintiff saw Dr. Rohmiller
again in late October 2014, stating that she was not getting
much relief from her medications (Tr. 391). The doctor
recommended trying facet blockers and radiofrequency ablation
October 31, 2014, Dr. McGilligan completed a medical source
statement in which she opined that, due to Plaintiff's
degenerative disc disease, Plaintiff could only stand for 15
minutes at a time, sit for 15 minutes at a time, could not
even lift five pounds occasionally, and could never bend,
stoop, balance, or climb ladders or stairs (Tr. 388-89). Dr.
McGilligan further opined that Plaintiff would need to take
unscheduled breaks every 15 minutes and would miss more than
four days a month of work on average (Tr. 388-89).
record contains three additional treatment records from Dr.
McGilligan after that date. Plaintiff saw her twice in
January 2015 for issues unrelated to her back pain, although
her Flexeril prescription was refilled at the latter visit
(Tr. 400-09). Then, in a June 2015 treatment note-the last in
the record- Dr. McGilligan indicated that Plaintiff's
pain was “controlled” with tramadol (Tr. 395).
Dr. McGilligan further stated that Plaintiff was “fully
functional” in all activities of daily living while on
the medication and experienced “minimal” side
effects (Tr. 395). ...