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Mayo v. Colvin

United States District Court, E.D. Virginia, Newport News Division

June 10, 2014

DAVID MAYO, Plaintiff,


COOK MORGAN, Jr., Senior District Judge.

This matter comes before the Court on Plaintiff David Mayo's ("Plaintiff' or "Mayo") Objections to the Report and Recommendation of the United States Magistrate Judge ("Magistrate Judge"). Doc. 14. For the reasons stated herein, the Court OVERRULES Plaintiff's objections and ADOPTS the Magistrate Judge's Report & Recommendation ("R&R"). Doc. 13.


Plaintiff does not object to the recitation of the procedural or factual background of this case contained in the R&R, which sets forth, inter alia, the following facts.

A. Procedural History

Plaintiff filed an application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") with the Social Security Administration ("SSA") on September 21, 2010, alleging a disability onset date of November 21, 2008. R&R 2, 6. The application alleged that Plaintiff suffered from chronic back and knee pain. Id . at 6. Plaintiff's application was denied initially, as well as upon reconsideration.[1] Id . at 2. Mayo then requested an administrative hearing, which was conducted on May 7, 2012. Id .; see also R. 28. At this hearing, an Administrative Law Judge ("ALJ") heard testimony from Mayo and Vocational Expert ("VE") Linda Augins. R. 28-52. During the hearing, Plaintiff amended his alleged onset date to July 1, 2010. R. 31. On May 15, 2012, the ALJ denied Plaintiffs DIB and SSI claims. R&R at 2. The ALJ's decision became the Commissioner's final decision on April 10, 2013, when the Appeals Council denied Plaintiffs request for review of this decision. Id.

On June 10, 2013, having exhausted his administrative remedies, Plaintiff filed the instant action, seeking judicial review of the Commissioner's final decision. Id . The parties filed cross motions for summary judgment, which were addressed by the R&R, filed on April 24, 2014. Doc. 13. Plaintiff filed his Objections to the R&R on May 9, 2014. Doc. 14. Defendant filed her Response on May 22, 2014. Doc. 15. This case is now before the Court for disposition of the R&R.

B. Factual Background

At the time of his application, Plaintiff was a forty-nine year old man with a high school education who previously worked as a maritime electrician and substance abuse counselor. R&R at 6, see also R. 47-48. Plaintiff's application for benefits alleges disabilities resulting from chronic back and knee pain.[2] R&R at 6.

i. Medical records

Plaintiff's problems with his knee and back began in 1991 after he fell down the stairs; however, no records concerning treatment for this injury were provided, and the only evidence concerning this injury was what Plaintiff reported to physicians seeking treatment for later complaints of pain. R. 273, 343, 363. There are also references to another major injury in 2001, but again no records were provided concerning this injury either. R. 365.

The first record shows treatment for back and leg pain in October 2002. R. 305-6. At that time, Plaintiff reported to seeing Dr. Robert Snyder for back pain since March 2002 and that he was receiving steroid shots. R. 312. After that, the next record shows a MRI was performed in June 2007, revealing a L4 disc desiccation and a left neuroforaminal focal disc protrusion encroaching the L4 nerve root, resulting in mild spinal canal stenosis. R&R at 8, see also R. 242. Another MRI was performed in August 2007, showing "[m]ild degenerative changes in the cervical spine without spinal stenosis or neural foraminal narrowing."[3] R. 271. It was reported that Mayo did not explain his symptoms very well and that he was filing for disability and wanted a note saying he could not work. R. 273. Plaintiff received an epidural steroid injection ("ESI") in September 2007, and Mayo reported reduced pain following the procedure. R. 269.

There are no records for 2008. In January 2009, he was admitted to the emergency room ("E.R.") of Riverside Regional ("Riverside") complaining of back pain and headache.[4] R&R at 8, see also R. 244-48. Plaintiff reported a pain level of 8 out of 10, and it was observed that Plaintiff had no scoliosis, but did have paraspinal tenderness. R. 247. It was also reported that Plaintiff arrived "ambulatory with steady gait... appears comfortable... is alert and oriented x 3 [and] appears in no acute distress[.]" Id . He reported chronic back pain which had gotten worse in the past few days. Id . Mayo was discharged with prescriptions for Valium and Medrol Dosepak. R. 246. However, Plaintiff did not fill his prescription for Medrol Dosepak. R. 250.

Plaintiff sought follow-up care in February. R. 250. Following-up again in May 2009, he reported his pain never went below 7 out of 10, and he was prescribed cyclobenzaprine, acetaminophen, and hydrocodone. R. 251-52. At this examination, he was observed to have the ability to "stand and ambulate with a normal gait without difficult." R. 267.

In June 2009, Plaintiffs physician informed him he was not a good candidate for back surgery, given "the relatively mild findings on his MRI, " which revealed "degenerative changes in the L4-5 disk with a small lateral disk protrusion on the left consistent with his symptoms."[5] R. 260. An ESI was performed at this time, and Plaintiff reported immediate relief, but which lasted only for a few days. R. 259-63. An additional ESI was performed in July 2009, but Plaintiff reported no pain relief at that time. R. 258-59.

In January 2010, Plaintiff reported again to the Riverside E.R., complaining of flu-like symptoms and back pain. R. 282. He reported a pain level of 9 out of 10. Id . However, it was observed that he had a "steady gait" and was not in acute distress. R. 285. He was also observed to be "well-groomed." Id . He was told ...

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