United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
DAVID J. NOVAK, Magistrate Judge.
Sherrie Williams ("Plaintiff") is fifty years old and previously worked as a nursing assistant, cashier and deli worker. She filed this action in March 2013, seeking judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the final decision of Defendant Commissioner denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") stemming from impairments of diabetes, diabetic neuropathy, hypertension, arthralgias and obesity. The Commissioner's decision was based on a finding by an Administrative Law Judge ("ALJ") that Plaintiff was not disabled as defined by the Social Security Act (the "Act") and applicable regulations. This matter is before the Court for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on Plaintiffs Motion for Summary Judgment (ECF No. 14), Plaintiffs Motion to Remand (ECF No. 15) and Defendant's Motion for Summary Judgment (ECF No. 17).
Plaintiff challenges the ALJ's denial of benefits, arguing that the ALJ erred in evaluating Plaintiffs credibility and her Residual Functional Capacity ("RFC"). (Mem. of Point and Authorities in Supp. of Pl's Mot. for Summ. J. ("Pl's Mem.") (ECF No. 16) at 17, 22.) Plaintiff also argues that the ALJ improperly discounted the opinion of Plaintiffs treating family nurse practitioner. (Pl's Mem. at 26.) Defendant contends that substantial evidence supports the ALJ's determination of Plaintiff s credibility and RFC. (Def.'s Mem. at 16, 20.) Defendant further contends that the ALJ properly discounted the opinion of Plaintiff s treating family nurse practitioner. (Def.'s Mem. at 26.)
For the reasons discussed below, it is the Court's recommendation that Plaintiffs Motion for Summary Judgment (ECF No. 14) be DENIED, that Plaintiffs Motion to Remand (ECF No. 15) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 17) be GRANTED and that the final decision of the Commissioner be AFFIRMED.
Because Plaintiff challenges whether the ALJ erred in assigning Plaintiffs treating family nurse practitioner's opinion less than controlling weight and whether the ALJ properly determined Plaintiffs credibility and RFC, Plaintiffs educational and work history, medical history, hearing testimony, Vocational Expert testimony and non-treating state agency physician's opinions are summarized below.
A. Plaintiffs Education and Work History
Plaintiff graduated from high school and completed more than three years of college. (R. at 225, 330.) Plaintiff also worked as a certified nurse assistant, but she did not complete her certification. (R. at 225, 331.) Plaintiff has worked in the past as a cashier, a deli worker and a nursing assistant from 2003 until 2010. (R. at 235, 331, 337.) Plaintiff has not worked since January 25, 2010. (R. at 198.)
B. Plaintiffs Medical History
Plaintiff is 5'6" in height, and her weight has fluctuated between 279 pounds and 330 pounds from the alleged onset date through the ALJ's decision. (R. at 330, 424, 426, 437, 448, 452. 454, 475, 486, 488, 491, 501, 504, 534.)
On January 26, 2010, Dr. John Ayres II, M.D., of West End Orthopedic Clinic, completed a "Work Restriction Form" for Plaintiff. (R. at 472.) On this form, Dr. Ayres opined that Plaintiff was "unable to work" from January 25, 2010, to February 4, 2010. (R. at 472.) During various follow-up examinations, West End Orthopedic Clinic filled out additional work restriction forms indicating that Plaintiff would be unable to work on numerous occasions from January 25, 2010, through July 30, 2010. (R. at 447, 456, 461, 463, 465-66, 468-70, 472.)
On February 3, 2010, Plaintiff complained to Dr. Ayres of discomfort in her back that radiated into her right leg and of discomfort in her neck that radiated to her right arm. (R. at 471.) Plaintiffs x-rays indicated diffuse degenerative disease in her cervical spine. (R. at 471.) An MR1 of Plaintiff s lumbar spine from February 15, 2010, was negative. (R. at 421.) An MRI of Plaintiff s cervical spine indicated a left lateral disc protrusion at C5-C6 that slightly deformed the left anterolateral aspect of the spinal cord and narrowed the left invertebral foramen. (R. at 420.) The examining radiologist indicated that despite Plaintiffs symptoms, the MRIs did not show findings of a right cervical disc protrusion or significant invertebral foraminal narrowing on the right. (R. at 420.)
On February 19, 2010, Plaintiff returned to Dr. Ayres, who prescribed Voltaren and Lortab and referred Plaintiff to physical therapy. (R. at 467.) On March 26, 2010, Plaintiff informed Dr. Ayres that physical therapy helped with both her neck and back discomfort. (R. at 464.) Dr. Ayres continued Plaintiff in a physical therapy program and diagnosed her with cervical disc disease and lumbar disc disease. (R. at 464.) During a follow-up on April 14, 2010, Dr. Ayres indicated that Plaintiffs lower back discomfort was improving, but that the discomfort in her right thoracic spine was not. (R. at 462.) Dr. Ayres prescribed Tramadol to Plaintiff and continued her in a physical therapy program. (R. at 462.)
On May 12, 2010, Plaintiff returned to Dr. Ayres and complained of pain in her thoracic spine that radiated down her right arm. (R. at 460.) A cervical MRI showed disc disease, but Dr. Ayres indicated that this showing did not correspond correctly with Plaintiffs alleged radicular symptoms on her right side. (R. at 460.) Dr. Ayres, therefore, referred Plaintiff to another physician at West End Orthopedic Clinic, Dr. Joseph S. Kim, M.D., for further evaluation. (R. at 460.)
On May 25, 2010, Dr. Kim examined Plaintiff for complaints of radicular right arm pain. (R. at 454.) Plaintiffs gait was stable and a Spurling's test was negative. (R. at 454.) Specifically, Dr. Kim noted that the Spurling's test was able to recreate Plaintiffs periscapular pain but unable to recreate her radicular arm pain. (R. at 454.) Plaintiffs motor, sensory and reflex examinations were non-focal. (R. at 454.) Further, Dr. Kim indicated that symptoms in Plaintiffs right arm did not correlate with the left-sided diagnostic findings on her cervical MRI. (R. at 454-55.) Plaintiff did not have left-sided arm pain, although the MRI showed lateral disc herniation at C5-C6 on her left side. (R. at 454.) Dr. Kim prescribed Vicodin and recommended an epidural steroid injection at C6 on Plaintiffs right side. (R. at 455.)
On June 7, 2010, Plaintiff went to Charlotte Primary Care for a diabetes evaluation, and Joseph D. Davis, F.N.P. examined her. (R. at 426.) Before the alleged onset date of January 25, 2010, Plaintiff had received treatment from Mr. Davis and Charlotte Primary Care for various impairments, including hypertension, diabetes mellitus type II and obesity. (R. at 431.) During the course of these earlier treatments, Plaintiff had admitted to consuming a bag of potato chips and a two-liter bottle of soda daily. (R. at 431.) During her June 7, 2010 examination, Plaintiffs HbAlc was 9.9. (R. at 426.) At that time, Mr. Davis added Meformin XR to Plaintiffs diabetic medication regimen. (R. at 426.)
On June 21, 2010, Dr. Daniel Martin, M.D. of West End Orthopedic administered a right C-6 epidural steroid injection to Plaintiff. (R. at 450-51.) On July 8, 2010, Plaintiff informed Dr. Kim that this injection had given her no relief. (R. at 445.) At that time, Plaintiffs physical examination findings remained unchanged, and her motor, sensory and reflex exams were nonfocal. (R. at 445.) Dr. Kim suggested further physical therapy for treatment, but Plaintiff declined this treatment. (R. at 445.) Dr. Kim agreed to send Plaintiff to pain management and prescribed her Vicodin and Ultram. (R. at 445.)
On July 27, 2010, Plaintiff attended a follow-up treatment with Dr. Martin. (R. at 443.) Plaintiff complained of ongoing neck discomfort and interscapular right shoulder discomfort. (R. at 443.) Plaintiff denied having any sensory or motor defects in either of her arms. (R. at 443.) Plaintiffs gait, station, heel-and-toe weightbearing and upper extremity sensory examination were all intact. (R. at 443.) She had full cervical mobility for flexion and limited cervical mobility for extension, sidebend and rotation. (R. at 443.) Plaintiff had full shoulder mobility for abduction, adduction and both internal and external rotation. (R. at 443.) She did not show a decrease in muscle tone. (R. at 443.) Dr. Martin diagnosed Plaintiff with cervical spondylosis and cervical radiculitis with no current buttressing sensory or reflex deficits. (R. at 443.) Dr. Martin discussed the treatments available to Plaintiff, including cervical facet joint injections and cervical radiofrequency neurotomy. (R. at 443.) Further, on a work restriction form, Dr. Martin indicated that Plaintiff could return to "light work" the next day, July 28, 2010. (R. at 444.)
On August 2, 2010, Dr. Martin performed a right C5-C7 cervical medial branch nerve block on Plaintiff. (R. at 440.) On a work status form, Dr. Martin indicated that Plaintiff had cervical radiculitis, but that she could perform light work and occasionally lift/carry twenty pounds and frequently lift/carry ten pounds. (R. at 442.)
On August 12, 2010, Plaintiff returned to Dr. Martin for a follow-up visit. (R. at 436.) Dr. Martin noted that Plaintiff showed less than a fifty percent improvement from the cervical branch block injections. (R. at 436.) Plaintiff stated that she did not have any associated sensory or motor deficits in either her upper or lower extremities. (R. at 436.) Her physical findings remained generally unchanged. (R. at 436.)
On September 14, 2010, Plaintiff went to the MCV Spine Center, where Steven H. Deschner, M.D. examined her for weakness in her right hand and pain in her lower back, neck and right arm. (R. at 473-77.) Plaintiff rated her pain as a nine out often; however, Dr. Deschner reported that no overt signs indicated pain of that magnitude. (R. at 475.) Dr. Deschner noted that Plaintiff presented as cheerful and interactive during the examination. (R. at 475.) Upon palpitation, Plaintiffs back and neck showed no point tenderness. (R. at 475.) Plaintiffs sense of touch was intact in her neck, back and arms. (R. at 475.) Plaintiff had a limited range of movement in her neck, but a full range of motion in her shoulders, elbows, wrists and fingers. (R. at 475.) Plaintiffs pain did not increase upon movement. (R. at 475.) Plaintiffs muscle strength in her neck rated at a five out of five for flexion, extension and rotation. (R. at 475.) Plaintiff further demonstrated full strength for elevation, adduction, flexion, extension and rotation of her shoulders and for flexion/extension of her elbows, wrists and fingers. (R. at 475.) Plaintiff had reflexes rated at one out of four at her biceps, brachioradialis and triceps. (R. at 475.) Plaintiffs sensation and strength in her legs remained intact, and she demonstrated a strong and balanced gait. (R. at 475-76.) Plaintiff showed no weakness or numbness in her right arm. (R. at 476.) Due to possible neuropathic pain in Plaintiffs right arm, Dr. Deschner ordered an electromyogram/nerve conduction study ("EMG/NCS") and prescribed Plaintiff Gabapentin. (R. at 477.)
During a September 16, 2010 appointment, Mr. Davis reported that Plaintiff tolerated her diabetes medication well, but he noted that Plaintiff failed to regularly check her blood sugar levels. (R. at 488.) During this examination, Plaintiff s HbAlc was 10.0. (R. at 488.) Mr. Davis reported no edema and increased Plaintiffs Metformin dosage. (R. at 488-89.)
On September 23, 2010, Karen Steidle, M.D. noted that Plaintiffs EMG/NCS indicated moderate to severe sensorimotor median neuropathy at Plaintiffs right wrist without definite associated denervation. (R. at 487.) The EMG/NCS also indicated moderate sensorimotor median neuropathy at Plaintiffs left wrist without denervation. (R. at 487.) The EMG/NCS did not show definitive evidence of ulnar neuropathy at Plaintiffs elbow bilaterally or definitive evidence of right cervical radiculopathy. (R. at 487.)
On January 17, 2011, Plaintiff went to the emergency room, complaining of shortness of breath and chest pain. (R. at 519, 521.) Plaintiffs left chest was tender upon palpation. (R. at 522.) Plaintiffs physical examination findings were otherwise within normal limits, and Plaintiff demonstrated a normal range of motion in all four extremities. (R. at 522.) The emergency room attendants diagnosed Plaintiff with chest wall pain and discharged her in stable condition. (R. at 526-27.)
On June 10, 2011, Plaintiff returned to Charlotte Primary Care, complaining of right foot pain and swelling that had lasted for two days. (R. at 504.) Mr. Davis diagnosed Plaintiff with cellulitis of her right foot and gave her an antibiotic for treatment. (R. at 504.) On June 11, 2011, Plaintiff returned to Charlotte Primary Care, complaining of continued swelling in her right foot. (R. at 502.) On June 13, 2011, Plaintiff returned to Mr. Davis, complaining of cellulitis and increased swelling in her right ankle. (R. at 501.) Plaintiffs right ankle displayed erythema and was warm to touch. (R. at 501.) Mr. Davis also noted serious drainage from multiple puncture wounds. (R. at 501.) He diagnosed cellulitis and altered Plaintiffs antibiotic medication. (R. at 501.)
On June 17, 2011, Plaintiff went to an emergency room, because of continued swelling in her foot. (R. at 512.) Plaintiff indicated that the swelling began when she scratched her ankle earlier in the week, opening her skin. (R. at 512.) The emergency room attendants reported that Plaintiffs right lower extremity was swollen, and that it had a positive Homan's sign, multiple superficial excoriations, mild calor and mild erythema. (R. at 512.) Otherwise, Plaintiffs physical examination was within normal limits, and Plaintiff demonstrated full motor strength in her major muscle groups and intact sensation. (R. at 512.) The emergency room attendants diagnosed Plaintiff with cellulitis and prescribed Lortab and Bactrim. (R. at 513.)
On August 10, 2011, Mr. Davis wrote to Plaintiffs attorney and stated that Plaintiff had been a patient of Charlotte Primary Care for fifteen years. (R. at 533.) He reported that Plaintiff had developed insulin dependent type II diabetes before age thirty, and that Plaintiffs diabetesrelated peripheral neuropathy caused her significant chronic pain. (R. at 533.) Mr. Davis further reported that Plaintiff experienced significant chronic weight gain that resulted in chronic arthralgias, mostly in her back, hips and knees, with secondary edema of her legs. (R. at 533.) These conditions affected Plaintiffs ability to walk, exercise and perform activities of daily living. (R. at 533.) Mr. Davis opined that Plaintiff was unable to walk more than two hundred feet without rest, and that she could not squat, climb or lift anything significant because of her impairments. (R. at 533.) Mr. Davis further opined that the left-sided C5-C6 disc deformity caused the neuropathic problems in Plaintiffs upper extremities. (R. at 533.) These neuropathic problems caused Plaintiff significant disuse of her right arm, such that she was unable to grip or carry anything significant. (R. at 533.)
On August 29, 2011, Mr. Davis again wrote a letter to Plaintiffs attorney. (R. at 534.) Mr. Davis indicated that Plaintiffs diabetes was poorly controlled and that she took a large amount of insulin and oral medication. (R. at 534.) Plaintiffs history of high blood pressure, however, was well-controlled with four medications. (R. at 534.) Mr. Davis opined that Plaintiffs complaints of chronic pain possibly stemmed from peripheral ncurpathy, secondary to her diabetes. (R. at 534.) He further reported that Plaintiff ambulated with difficulty due to pain from her obesity and pain in her feet and back. (R. at 534.) Mr. Davis indicated that Plaintiffs ability to lift, carry, bend and climb was undocumented and untested. (R. at 534.) He ultimately advised that Plaintiff would need to seek continued medical attention and alter her lifestyle, through "dramatic weight loss and [an] appropriate exercise regimen, " to optimize her health. (R. at 534.)
C. Plaintiffs Testimony
On August 31, 2011, Plaintiff, represented by counsel, testified at a hearing before an ALJ. (R. at 220-38.) Plaintiff testified that she lived with her husband and her nine-year-old son. (R. at 228-29.) On a typical day, she sent her son to school, took her medications at breakfast, laid down or sat with pillows until her son got home. (R. at 230.) She usually laid down for two to three hours at a time. (R. at 229.) Her medications made her tired, and she took a one to two-hour break following every ...