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Sharp v. Colvin

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

March 3, 2015

AMY SHARP, Plaintiff,
v.
CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

DAVID J. NOVAK, Magistrate Judge.

Amy Sharp ("Plaintiff) is forty-three years old and previously worked as an office assistant, payroll clerk and insert operator. On March 19, 2010, Plaintiff protectively filed for disability insurance benefits ("DIB"), claiming disability from fibromyalgia, chronic fatigue, chronic lower back pain and irritable bowel syndrome, with an alleged onset date of September 12, 2008. Plaintiff later amended her alleged onset date to July 29, 2010. The claims were denied both initially and upon reconsideration. On September 24, 2012, Plaintiff (represented by counsel) appeared before an Administrative Law Judge ("ALJ"), who denied Plaintiff's claims in a written decision issued on November 5, 2012. On March 12, 2014, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner.

Plaintiff now appeals the Commissioner's decision in this Court pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in assessing Plaintiff's credibility and in assessing Dr. Gibellato's opinion. Defendant responds that the ALJ did not err and that substantial evidence supports the ALJ's decision. The parties have submitted cross-motions for summary judgment, which are now ripe for review.

Having reviewed the entire record in this case, the Court is now prepared to issue a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For the reasons that follow, the Court recommends that Plaintiff's Motion for Summary Judgment (ECF No. 8) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 10) be GRANTED and that the final decision of the Commissioner be AFFIRMED.

I. BACKGROUND

Because Plaintiff challenges the ALJ's decision, Plaintiff's education and work history, medical records, state agency physicians' opinions, Plaintiff's function reports, and Plaintiff's testimony are summarized below.

A. Education and Work History

Plaintiff completed one year of college. (R. at 206.) Plaintiff last worked in the payroll department of a construction company in 2008. (R. at 45-46.) Plaintiff also previously worked as an office assistant, payroll clerk and insert operator. (R. at 46, 225.)

B. Medical Records

In September 2006, Plaintiff began seeing Charles Gibellato, M.D. at Sheltering Arms. (R. at 355-57, 361.) Plaintiff told Dr. Gibellato that she had been previously diagnosed with fibromyalgia. (R. at 355.) Plaintiff experienced no acute distress, but had diffuse tenderness to palpation. (R. at 356.) She had full strength in her extremities bilaterally with no focal motor weakness, as well as full range of motion in herjoints. (R. at 356.) Dr. Gibellato recommended prescription pain medication and physical therapy. (R. at356.)

An October 2006 x-ray of Plaintiff's spine yielded normal results. (R. at 371.) Additionally, a hip x-ray produced similarly normal results. (R. at 371-72.) Plaintiff returned in February 2007, reporting that she was doing better. (R. at 354.) In April 2007, Plaintiff reported that medications managed her pain. (R. at 353.)

On October 15, 2007, Plaintiff returned to Dr. Gibellato, complaining of hip and back pain. (R. at 348.) Plaintiff reported that heat and ice helped her condition, and that medication and treatment further afforded her between 90% and 100% relief. (R. at 348, 350.) On December 12, 2007, Plaintiff reported that injections, ice and heat helped her condition. (R. at 345.)

In May 2008, Dr. Gibellato discussed the relationship between stress, mood, insomnia and chronic pain with Plaintiff. (R. at 339.) Plaintiff returned to Dr. Gibellato in June 2008, reporting that she had started a new job with increased pay. (R. at 335.) She further reported that medications improved her condition, but stress made her condition worse. (R. at335.) Treatment and medication afforded Plaintiff 60% relief. (R. at 337.)

In December 2008, Plaintiff had an improved gait, and she reported that her pain level was only a three out often. (R. at 329.) Medication, injections and heat all improved Plaintiff's condition. (R. at 329.) Treatment and medications improved Plaintiff's condition by approximately 80%. (R. at 331.)

In April 2009, Plaintiff reported that her pain registered as a four out often. (R. at 323.) In July 2009, Plaintiff further noted that she had 90% relief from her pain treatments and medications. (R. at 322.) In October 2009, Plaintiff reported that she experienced some relief from pain treatment and medications, as well as from her physical therapy sessions. (R. at 314-16.)

In January 2010, although Plaintiff complained of pain, she reported feeling better. (R. at 311.) Plaintiff also wanted to explore physical therapy. (R. at 311.) Treatment and medication had afforded Plaintiff 90% relief. (R. at 313.) In May 2010, Plaintiff underwent an MRI of her lumbar spine that produced unremarkable results and revealed only mild degenerative changes. (R. at 364-65.) In July 2010, Plaintiff continued to complain about chronic pain, but she also reported that medication helped and that she felt better. (R. at 302.) Dr. Gibellato's notes reflected that Plaintiff reported that medication and pain treatment gave Plaintiff between 80% and 90% relief. (R. at 304.)

On October 19, 2010, Plaintiff reported that medications helped with her condition. (R. at 298.) Dr. Gibellato's notes further recorded that medication and pain treatment afforded Plaintiff about 70% to 80% relief. (R. at 300.) On October 26, 2011, Dr. Gibellato gave Plaintiff a steroid injection and facet joint injections. (R. at 400.) Plaintiff tolerated the injections well and experienced no complications. (R. at 400.)

In January 2011, Plaintiff again saw Dr. Gibellato, complaining of pain in her shoulders and lower extremities. (R. at 394.) Plaintiff received another injection for pain, and she reported that treatment and pain medication gave her 80% relief. (R. at 395-96.) On February 9, 2011, Dr. Gibellato gave Plaintiff injections for her pain without complication. (R. at 398.) On March 30, 2011, Plaintiff reported that her lower back pain had improved. (R. at 391.) Dr. Gibellato reported that injections afforded Plaintiff relief. (R. at 392.) Dr. Gibellato's notes further reflect that Plaintiff experienced 80% relief from her treatment and pain medications. (R. at 393.)

On July 27, 2011, Plaintiff complained to Dr. Gibellato of lower back pain. (R. at 455.) Plaintiff requested lower back injections and stated that she was seeing a podiatrist for foot problems. (R. at 455.) Dr. Gibellato's impression was that Plaintiff should see a psychologist for her depression and that she should discontinue sodas to combat her obesity. (R. at 456.) Dr. Gibellato's notes indicated that medication and treatment had afforded her between 70% and 80% relief. (R. at 457.)

On September 19, 2011, Jennifer E. Wartella, Ph.D. saw Plaintiff for a psychological evaluation with the goals of reducing Plaintiff's anxiety and reaction to stress, as well as educating Plaintiffregarding the mind-body connection. (R. at428-31.) Dr. Wartella noted that Plaintiff appeared mildly depressed, anxious, tired, cooperative and pleasant. (R. at 428.) Dr. Wartella further recorded that Plaintiff tended to catastrophize her pain. (R. at428.) Plaintiff reported that she drank three to four sodas daily and tried to walk with her dogs each day. (R. at 430.) Plaintiff arrived at the appointment that day on time, walked without assistance to the examination room and was alert and oriented. (R. at 430.) Plaintiff maintained logical and linear thoughts during the appointment. (R. at 430.)

On October 26, 2011, Plaintiff returned to Dr. Gibellato, complaining of chronic pain. (R. at 452.) Plaintiff stated that she had several bad experiences recently and that she was seeing a foot specialist for her plantar fascists. (R. at 452.) Dr. Gibellato's notes indicated that injections improved Plaintiff's pain, but activity and stress made her pain worse. (R. at 452.) Dr. Gibellato advised Plaintiff on dietary changes to combat her obesity and on discontinuing soda to improve her esophagit is and constipation. (R. at 453.) Treatment and pain gave Plaintiff 50% relief, but more than that amount on some occasions. (R. at 454.)

On January 27, 2012, Plaintiff saw Dr. Gibellato regarding her chronic pain. (R. at 447.) Plaintiff was upset about losing a tooth and complained about her lousy psychiatrist. (R. at 447.) Dr. Gibellato's notes reflected that Plaintiff reported that treatment and medication afforded her 80% relief. (R. at 449.) Dr. Gibellato further ordered Plaintiff to physical therapy once per week in Hanover for evaluation and treatment for range of motion, modalities and stabilization. (R. at 450.)

In February 2012, she attended a physical therapy session, complaining of pain. (R. at 438.) The physical therapist believed that Plaintiff had good potential for rehabilitation and noted that Plaintiff's plan for care included exercise, heat and ice. (R. at 440.) Plaintiff later reported that she experienced a decrease in pain and improvement in function. (R. at 435.) Plaintiff's physical therapist reported that Plaintiff had progressed well. (R. at 435.)

On May 8, 2012, Plaintiff's returned to Dr. Gibellato, complaining of chronic pain. (R. at 444.) Plaintiff requested more injections and stated that they helped. (R. at 444.) Additionally, Plaintiff had stopped seeing her psychiatrist. (R. at 444.) Dr. Gibellato discussed with Plaintiff a weight loss program to combat her obesity and addressed the role of diet and exercise. (R. at 445.) Dr. Gibellato recorded that Plaintiff reported that treatment and medication provided her between 70% and 80% relief. (R. at 446.) On May 25, 2012, Dr. Gibellato referred Plaintiff to Spotsylvania Physical Therapy for treatment. (R. at 443.) He required evaluation and weekly treatment, specifically regarding Plaintiff's range of motion, modalities and stabilization. (R. at 443.)

On June 12, 2012, Plaintiff's representative, Ross Billman, interviewed Dr. Gibellato. (R. at 472-490.) Dr. Gibellato stated that Plaintiff used treatments such asmedications, trigger point injections, physical therapy and home exercise programs. (R. at 473.) Dr. Gibellato opined that Plaintiff's anxiety contributed to her overall pain and made it difficult for her to get better. (R. at 474.) Dr. Gibellato further indicated that any job that Plaintiff performed would need to have a controlled climate, allow Plaintiff flexibility of movement and lack constant expectations. (R. at 483-84.)

On August 23, 2012, upon referral from Dr. Gibellato, Plaintiff underwent physical therapy with Lynn Hewette, P.T. at Sheltering Arms SMC Spine & Sport Center. (R. at 468-71.) Plaintiff reported that she could tolerate sitting for approximately one hour, being up and about for two hours, walking for ten minutes and lifting about eight to ten pounds on good days. (R. at 468.) Plaintiff further reported being up and about most of the day. (R. at 468.) Although Plaintiff walked without an assistive device, she limped with her right leg. (R. at 469.) Ms. Hewette assessed that Plaintiff completed the physical ...


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