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Shelor v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

September 24, 2014

CONNIE L. SHELOR, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

OPINION AND ORDER

TOMMY E. MILLER, Magistrate Judge.

Plaintiff Connie L. Shelor brought this action under 42 U.S.C. §§ 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits pursuant to section 205(g) of the Social Security Act. This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal Rules of Civil Procedure following consent of the parties. ECF Nos. 13 and 14. For the reasons set forth below, Plaintiff's Motion for Summary Judgment (ECF No. 9) is DENIED, Defendant's Motion for Summary Judgment (ECF No. 11) is GRANTED, and the decision of the Commissioner is AFFIRMED.

I. PROCEDURAL BACKGROUND

Ms. Shelor protectively applied for DIB on April 8, 2010, alleging disability since December 30, 2006, caused by anxiety, depression, panic attacks, fibromyalgia, arthritis, asthma, migraine headaches, vertigo, bulging disc in her neck, obsessive compulsive disorder, attention deficit disorder, memory problems, and nerve damage in her left leg and foot. R. 130-36, 168.[1] Ms. Shelor's applications were denied initially and on reconsideration. R. 91-107. Ms. Shelor requested a hearing by an Administrative Law Judge (ALJ), which occurred on December 2, 2011. R. 58-87. Ms. Shelor was represented by counsel, and testified before the ALJ along with a vocational expert. R. 58.

On January 10, 2012, the ALJ found that Ms. Shelor was not disabled within the meaning of the Social Security Act from December 30, 2006, the alleged onset date, through the date last insured, December 31, 2011. R. 31. The Appeals Council denied Ms. Shelor's request for administrative review of the ALJ's decision. R. 2-7. Therefore, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981 (2012).

Ms. Shelor timely filed this action for judicial review pursuant to 42 U.S.C. § 405(g). On November 5, 2013, Ms. Shelor moved for summary judgment asserting the ALJ improperly assessed Ms. Shelor's shoulder impairment and improperly considered the opinions of the state agency non-examining physicians. ECF No. 9. Defendant filed a cross-motion for summary judgment on December 6, 2013, contending the ALJ appropriately considered the evidence and the resulting opinion is supported by substantial evidence in the record. ECF No. 11. As neither counsel in this case has indicated special circumstances requiring oral argument, the case is deemed submitted for a decision based on the memoranda.

II. FACTUAL BACKGROUND

Born in 1961, Ms. Shelor was forty-five years old on her alleged onset date of December 30, 2006. R. 130. Ms. Shelor received a GED, and has past relevant work experience as a deli and bakery clerk; cook, manager, and cashier of a billiards parlor; and, ticket collector at a parking garage. R. 62.

A. Medical Background

Prior to Ms. Shelor's alleged onset date, from March 2006 through October 2006, she was treated at Churchland Psychiatric Associates for anxiety and depression. R. 277-290. At her appointment on October 12, 2006, Ms. Shelor reported her anxiety and mood symptoms were well controlled, her emotions were better controlled, her neck pain had lessened, and her headaches were less frequent. R. 277. Her therapist noted her symptoms were resolving and she was tolerating medications well. R. 277. Ms. Shelor was encouraged to continue medications and re-engage in therapy. R. 277.

Ms. Shelor was treated at the Spine Center of Hampton Roads in April 2006 for pain in her lower back, right buttock, shoulders and between her shoulder blades. R. 294. On examination, Ms. Shelor had a good range of motion in her upper and lower extremities, with normal affect, normal gait, and no pain behaviors. R. 295.

X-rays of Ms. Shelor's thoracic spine on April 3, 2006, revealed osteophytes, but preserved disc spaces, intact pedicles, and no paraspinal stripe widening. R. 272. The results were summarized as a degenerative change with no acute bony abnormality. R. 272. On April 6, 2006, x-rays of Ms. Shelor's cervical spine revealed a narrowing of the disc space at C6-7, anterior and posterior osteophytes with some encroachment upon the neural foramina bilaterally, and no evidence of fracture, dislocation, or soft tissue swelling. R. 274. The same day, x-rays of Ms. Shelor's lumbar spine revealed appropriately positioned metal cages at the L4-5 and L5-S1 disc spaces, considerable facet arthritis involving the lower lumbar spine and possible spinal stenosis at L5-S1. R. 273.

A cervical MRI, performed on April 19, 2006, revealed prominent right central disc/spur at C3-4 with potential neural impingement and right foraminal stenosis, and disc and osteophyte complex at C6-7, causing right greater than left foraminal stenosis. R. 270-71. A lumbar MRI performed the same day revealed normal alignment, and a mild spinal stenosis at L3-4. R. 266-67.

After reviewing the MRIs, on April 26, 2006, Anuradha K. Datyner, M.D., Ph.D., with the Spine Center of Hampton Roads, assessed degenerative changes at multiple levels in Ms. Shelor's spine, depression, anxiety, and chronic pain. R. 293. Dr. Datyner found Ms. Shelor's depression and anxiety were affecting her pain, and noted Ms. Shelor was seeing a psychologist and psychiatrist for her depression. R. 293. Dr. Datyner outlined treatment options as physical therapy, medications, and spinal injections, and did not recommend surgical intervention. R. 293.

During an examination with Dr. Datyner on October 24, 2006, Ms. Shelor indicated she was feeling better and wished to return to work as a Kroger deli-bakery manager. R. 292. A physical examination showed Ms. Shelor was neurologically intact. R. 292. Dr. Datyner prescribed Celebrex for back pain, and indicated she would see Ms. Shelor back as needed. R. 292.

Ms. Shelor's alleged onset date is December 30, 2006; however, the next treatment notes in the record are from January 2009. In January and April 2009, Ms. Shelor was seen at Portsmouth Orthopaedic Associates for right shoulder pain dating back to an injury in 2007, when a box fell on her arm while she was working at Kroger. R. 302, 326. Ms. Shelor exhibited joint tenderness and pain on abduction and flexion greater than 90 degrees. R. 302. She was diagnosed with right shoulder bursitis and acromioclavicular joint arthritis. R. 302, 326. An MRI revealed no evidence of any kind of tear, and although she had some AC joint arthritis, the AC joint was not particularly tender. R. 302. She was given a steroid injection in her right shoulder, which did not alleviate her pain. R. 302, 326.

From March through October 2009, Ms. Shelor was treated by Margaret Stiles, M.D., at Churchland Family Practice, for right shoulder pain, migraines, asthma, Vitamin D deficiency, fibromyalgia, and anxiety. R. 304-313. Ms. Shelor reported that her asthma symptoms were "ok" when she was on Advair. R. 312. Having previously tried Zoloft, Prozac, and Celexa, Ms. Shelor was prescribed Xanax. R. 308-309. She was also given some sample medications to treat her migraines. R. 309. In September 2009, she reported that her fibromyalgia was better on her current medications, and her anxiety had improved on Wellbutrin. R. 305. In October 2009, Ms. Shelor was seen for a cough, which she believed may be bronchitis. R. 304. She was tearful and tremulous, discussing her husband recently losing his job. R. 304. She was prescribed Medrol, a Z-pack, and Robitussin. R. 304.

Ms. Shelor's daughter, Raelena Pavey, completed a function report on May 3, 2010, discussing Ms. Shelor's daily activities and abilities. R. 187-94. Ms. Pavey indicated Ms. Shelor's daily activities included dressing and grooming herself, making her meals, taking care of pets, watching television, reading mail, washing dishes, resting, and talking on the phone. R. 187. She stated Ms. Shelor occasionally ran errands and read. R. 187. She indicated Ms. Shelor had difficulty sleeping, and needed help with shoes, socks, necklace clasps, styling hair, shaving legs, and getting up from the toilet. R. 188. Ms. Shelor could drive, shop for groceries, pay bills, count change, sweep the floor, load the dishwasher, make the bed, clean sinks and countertops, and plant plants in the Spring. R. 189-90. Ms. Pavey indicated Ms. Shelor's pain, vertigo, migraines, and arthritis made almost all physical tasks difficult. R. 192. Ms. Shelor had difficulty comprehending and following instructions, did not get along well with authority figures, had anxiety attacks and claustrophobia. R. 193. Ms. Shelor's sister, Nancy McNeely completed a function report on December 21, 2010, making essentially the same observations about Ms. Shelor's daily activities and abilities. R. 218-28.

On June 26, 2010, Hani Souri, M.D., conducted a consultative examination of Ms. Shelor. R. 336-40. The examination revealed clear lungs, a symmetric, steady gait, good hand-eye coordination, and five out of five muscle strength in all areas tested. R. 338-39. Ms. Shelor was alert, had good eye contact, fluent speech, appropriate mood, clear thought processes, normal memory, good concentration, and she was oriented to time, place, person and situation. R. 339. Ms. Shelor's sensory examination was normal, straight leg testing was negative, reflexes were symmetric, and range of motion was normal in all areas except her shoulder. R. 340. She stated she could not perform the full range of motion in her shoulder due to arthritis. R. 340. Ms. Shelor had no joint swelling, erythema, effusion, tenderness or deformity. R. 340. She could lift, carry and handle light objects, was able to rise from a sitting position without assistance, and had no difficulty getting on or off the exam table. R. 340. She could dress and undress, tandem walk, and hop on either foot bilaterally, but was unable to squat due to pain. R. 340. Dr. Souri noted Ms. Shelor did not give good effort during the examination. R. 340. Dr. Souri concluded Ms. Shelor could sit for two hours, stand for two hours, and walk for two hours at a time in an eight-hour workday before requiring a break; she could carry twenty pounds frequently and thirty pounds occasionally; and, had no manipulative limitations on reaching, handling, feeling, grasping, or fingering. R. 340. Dr. Souri found Ms. Shelor could only occasionally bend, stoop, or crouch. R. 340.

On July 3, 2010, Jeffrey S. Goodman, Ph.D., performed a consultative psychological examination of Ms. Shelor. R. 342-49. She arrived on time, having driven herself, was neat, clean and intelligible, but tense and anxious during the examination. R. 346. Dr. Souri noted that Ms. Shelor "display[ed] fairly significant symptoms of both anxiety and depression." R. 346. Dr. Goodman assigned Ms. Shelor a GAF of 49, and concluded that until she was able to address her issues in "more encompassing psychological treatment, " she "will probably not be successful in returning to competitive employment." R. 348. Lastly, Dr. Goodman stated Ms. Shelor's psychiatric problems would negatively impact any work effort as she was inconsistent in completing even simple tasks due to distraction, would have difficulty attending work regularly due to anxiety, depression and her physical complaints, would have difficulty accepting instruction, and her ability to interact with others and deal with stress in a competitive work setting were compromised. R. 349.

On July 16, 2010, state agency physician Karen Sarpolis, M.D., reviewed Ms. Shelor's record and filled out portions of a physical RFC assessment. R. 351-57. Dr. Sarpolis left the majority of the seven-page form blank, but did find that Ms. Shelor suffered from shoulder arthritis and should never climb ladder, ropes or scaffolds. R. 352, 354. Dr. Sarpolis also found Ms. Shelor's statements regarding her limitations were "partially credible." R. 356.

In June, July and October 2010, Ms. Shelor was treated at Churchland Family Practice for asthma, depression, anxiety, vitamin D deficiency, and fibromyalgia. R. 382-84. She reported having been off of many of her medications due to no ...


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