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Propst v. Colvin

United States District Court, Fourth Circuit

November 24, 2013

ANGELA S. PROPST, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

B. Waugh Crigler U.S. Magistrate Judge

This challenge to a final decision of the Commissioner which denied plaintiff’s May 12, 2009 protectively-filed applications for a period of disability and disability insurance benefits and supplemental security income under the Social Security Act (“Act”), as amended, 42 U.S.C. §§ 416, 423, and 1381, et seq., is before this court under authority of 28 U.S.C. § 636(b)(1)(B) to render to the presiding District Judge a report setting forth appropriate findings, conclusions, and recommendations for the disposition of the case. The questions presented are whether the Commissioner’s final decision is supported by substantial evidence, or whether there is good cause to remand for further proceedings. 42 U.S.C. § 405(g). For the reasons that follow, the undersigned will RECOMMEND that an Order enter GRANTING, in part, the plaintiff’s motion for summary judgment, DENYING the Commissioner’s motion for summary judgment, and, for good cause shown, REMANDING this case to the Commissioner for further consideration.

In a decision dated February 15, 2011, an Administrative Law Judge (“Law Judge”) found that plaintiff had worked since her alleged disability onset date, December 17, 2003.[2] (R. 22.) While finding that plaintiff had worked from 2005-2008, and had $20, 091.09 in earnings in 2008, the Law Judge appears to have given plaintiff the maximum benefit of the doubt and found that she had not engaged in substantial gainful activity[3] since her onset date and continued through the sequential evaluation.[4] (R. 22-23.)

The Law Judge determined plaintiff’s degenerative disc disease and affective disorder were severe impairments either singly or in combination.[5] (R. 23.) However, he concluded that plaintiff’s migraines were non-severe, finding that they were fairly well controlled with Botox injections and had not resulted in significant functional limitations. Id. He also concluded that, through the date of the hearing, plaintiff did not suffer an impairment or combination of impairments which met or equaled a listed impairment. (R. 23-24.) Further, the Law Judge found that plaintiff possessed the residual functional capacity (“RFC”) to perform a range of light work with limitations: specifically, that plaintiff could not climb ladders, ropes, or scaffolds; could only perform handle short and simple instructions; and could tolerate interaction with coworkers and supervisors as needed for task completion and minimal contact with the public. (R. 24-32.)

The Law Judge relied on portions of the testimony of Gerald K. Wells, Ph.D., CRC, a vocational expert (“VE”), which were in response to questions premised on the Law Judge’s RFC finding. (R. 32-33, 49-55.) Based on this testimony, the Law Judge determined that plaintiff was unable to perform her past relevant work but that there were other jobs that existed in significant numbers in the local and national economy which plaintiff could perform: specifically, an appointment clerk, file clerk, and office helper. (R. 32-33.) Accordingly, the Law Judge found that plaintiff was not disabled. (R. 33-34.)

Plaintiff appealed the Law Judge’s February 15, 2011 decision to the Appeals Council. (R. 1-16.) Plaintiff filed extensive additional evidence with the Appeals Council (R. 1254-1543.), but in its August 15, 2012 notice, the Council found no basis to review the Law Judge’s decision, denied review, and adopted the Law Judge’s decision as the final decision of the Commissioner. (R. 1-2.) This action ensued, briefs were filed, and oral argument was held by telephone before the underDated: March 8, 2013.

The Commissioner is charged with evaluating the medical evidence and assessing symptoms, signs, and medical findings to determine the functional capacity of the claimant. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Shively v. Heckler, 739 F.2d 987 (4th Cir. 1984). The regulations grant some latitude to the Commissioner in resolving conflicts or inconsistencies in the evidence, which the court is to review for clear error or lack of substantial evidentiary support. Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996). In all, if the Commissioner’s resolution of the conflicts in the evidence is supported by substantial evidence, the court is to affirm the Commissioner’s final decision. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Substantial evidence is defined as evidence, “which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than preponderance.” Id. at 642. When the Appeals Council considers additional evidence offered for the first time on administrative appeal and denies review, courts must consider the record as a whole, including the new evidence, in determining whether the Commissioner’s final decision is supported by substantial evidence. Meyers v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011); Wilkins v. Secretary, 953 F.2d 93, 96 (4th Cir. 1991).

In her brief in support of her motion for summary judgment and in oral argument for the undersigned, plaintiff argues that the Law Judge erred by: (1) not considering plaintiff’s arm injury a severe impairment; and (2) “ignoring” the plaintiff’s supporting medical opinion evidence of record; (3) finding that plaintiff was capable of performing light work. (Dkt. No. 15, at 11-19.) The undersigned will address these challenges below.

Plaintiff alleges that she became disabled after falling on ice in December 2003, injuring her elbow, shoulder, back and neck.[6] Plaintiff underwent an open reduction internal fixation procedure on her right elbow shortly after the accident, and a physical examination and x-rays in January 2004 showed that she was healing well, with mild sensory deficits but greatly reduced flexion. (R. 502.) Plaintiff continued to improve with the help of physical therapy and was cleared to return to work by February 2004 and again in March 2004 with a twenty pound lifting restriction. (R. 503-504.) However, plaintiff complained of significant pain and her elbow range of motion began to plateau and even decline as her elbow stiffened following surgery. (R. 504-505.) Moreover, her insurance company declined to pay for a soft tissue stretching splint which her doctor considered an important part of her treatment. Id. Reports from March through May 2004 document that plaintiff improved in range of motion by only ten degrees over six weeks, had difficulty performing activities of daily living, and was not allowed by her employer to work with restrictions. (R. 504-507.) However, in August and September 2004, following hardware removal in June, plaintiff’s flexion improved dramatically, though with limitations at the extremes of the range, continued pain, and imaging evidence of osteopenia. (R. 500, 509-512.)

Plaintiff also complained of chronic right shoulder pain, and an MRI of her shoulder in February 2005 revealed tendinosis with a possible partial tendon tear. (R. 466.) A physical examination showed “exquisite” sensitivity along her ulnar nerve and some limitations in her elbow range of motion, which the treating physician found to be evidence of ulnar nerve dysfunction. (R. 500-501.) From April through June, plaintiff improved with therapy and continued to show good strength and range of motion in her shoulder. (R. 494-498.) However, she experienced tingling and numbness in her arm, spasms in her neck and back, displayed some positive signs of nerve impingement, and an EMG nerve conduction study showed that plaintiff had significant compressive neuropathy of the ulnar nerve in her elbow. Id. An injection in June provided only 20% pain relief in her shoulder, and while her treatment provider was hopeful that therapy would alleviate most of her pain and limitations, he believed that she would benefit from elbow surgery. Id. Plaintiff underwent a right ulnar nerve anterior submuscular transposition in July 2005, which alleviated the numbness and tingling in her arm, and physical therapy helped her return to near normal range of motion. (R. 490-493.) However, she continued to have pain, especially in her neck and head, and she asked for a referral to a neurologist or neurosurgeon. (R. 490-493.)

In November 2005, Raymond V. Harron, D.O. found that plaintiff suffered spasms and decreased range of motion in her cervical spine. (R. 382-382.) An MRI revealed nerve root and spinal cord compression resulting from a large disc herniation at the C5-C6 level. Id. Her condition was further aggravated when she fell down a flight of stairs in December 2005. (R. 672.) Plaintiff was observed to experience a lot of pain in her upper extremity, and tenderness with limitations on motion in her right elbow from a contusion and a possible non-displaced radial head fracture, and was limited in lifting beyond five to ten pounds. (R. 488, 672.) Plaintiff’s treatment providers were hopeful that she would see a substantial improvement in her right upper extremity pain following surgery on her cervical spine.

In February 2006, plaintiff underwent an anterior cervical discectomy performed by Dr. Harron on her right C5-C6 disk herniation to decompress her spinal cord and a lateral nerve root. (R. 551-555.) The fusion was a success, with only mild loss of disc height and disc bulging remaining, along with mild stenosis and hypertrophy, and no sign of nerve root or spinal cord compression. (R. 384-385, 464, 539, 541.) However, plaintiff continued to have pain in her shoulder, elbow, and radiating down her arm (R. 545-546.), with imaging evidence of a tendon tear, tendinopathy, and mild degenerative changes in her elbow with an olecranon and coronoid osteophyte and continued concern of a possible hairline radial head facture. (R. 483, 535.) Plaintiff’s strength, gain, and reflexes continued to remain generally normal, and a normal EMG in August 2006 led her treatment providers to include she had a right shoulder impingement with joint arthritis and rotator cuff tendinitis. (R. 545, 641-642, 645, 659, 660.) Right shoulder arthroscopy, subacromial decompression, and distal clavicle excision were performed sometime around September 2006, and plaintiff was said to be doing well with less pain after surgery, which was well controlled by pain medication, and “excellent” radiographs. (R. 543-544.)

Examinations and imaging from October through December 2006 revealed that plaintiff had fairly normal range of motion in her cervical spine, shoulder, and elbow; normal strength, normal sensation, normal reflexes, and no soft tissue abnormalities. (R. 386-387, 482, 533.) However, she continued to complain of pain, tingling, and numbness going down her arm, and there was evidence of some degenerative changes in plaintiff’s cervical spine with possible osteolysis or retraction of a screw and osteonecrosis. (R. 482, 533, 536.)

In December 2006, plaintiff’s cervical spine hardware had to be removed due to infection, and plaintiff was placed on long term antibiotics. (R. 373-377.) In February 2007, plaintiff complained of pain radiating from the left side of her neck down her shoulder and arm, but, other than some spasm in her cervical spinal musculature, plaintiff’s physical examination findings were normal. (R. 390.) An EMG and a nerve conduction study were normal, while a CT scan of her cervical spine showed some spondylotic changes, but no nerve root or spinal cord compression. (R. 393, 450-453.) In May 2007, plaintiff complained of elbow pain and numbness and tingling in all of her fingers, and x-ray imaging again revealed a small olecranon and coronoid spur, though no significant joint space narrowing or symptoms of impingement. (R. 481.) However, plaintiff also indicated that her neck and shoulder pain had improved, and her physical examination findings were essentially normal. Id. A July 2007 CT scan revealed a possible abscess in the soft tissue of plaintiff’s neck, but it was otherwise negative (R. ...


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