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Calvert v. Commissioner of Social Security

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

April 6, 2018



          Joseph M. Hood WH Senior U.S. District Judge.

         This 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.[1] The matter having been fully briefed by the parties is now ripe for this Court's review.


         Plaintiff 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).


         Plaintiff, 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).

         At a 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).

         Plaintiff 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).

         The 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).

         In 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).

         In 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).

         Thereafter, 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 (Tr. 391).

         On 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).

         The 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). ...

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