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Parham v. Colvin

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

April 13, 2015

CHRISTOPHER D. PARHAM Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

DAVID J. NOVAK, Magistrate Judge.

Christopher D. Parham ("Plaintiff') is forty-nine years old and previously worked as a delivery distributor for a wine company. On February 10, 2011, Plaintiff protectively filed for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"), alleging disability from degenerative disc disease of the cervical spine with an original alleged onset date of October 1, 2010. An Administrative Law Judge ("ALJ") held a hearing on September 27, 2012, during which Plaintiff amended his alleged onset date to August 3, 2009. The ALJ denied Plaintiff's claims by written decision on October 17, 2012. The Appeals Council denied Plaintiff's request for review on February 21, 2014, rendering the ALJ's decision the final decision of the Commissioner.

Plaintiff seeks judicial review of the ALJ's decision in this Court pursuant to 42 U.S.C. § 405(g). Plaintiff challenges the ALJ's denial of benefits on the basis that the ALJ violated Plaintiff's Fifth Amendment due process rights and failed to fully inquire into all matters at issue during Plaintiff's hearing, that the ALJ erred in affording less than controlling weight to Plaintiff's treating physician's opinion and some weight to one of the state agency physicians, that the ALJ erred in assessing Plaintiff's credibility and that Plaintiff presented new evidence requiring remand. (Pl.'s Mem. in Supp. of Mot. for Summ. J. ("Pl.'s Mem.") (ECF No. 13) at 16-22.)

The matter comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(c)(1) on the parties' cross-motions for summary judgment.[1] For the reasons set forth below, the Court DENIES Plaintiff's Motion for Summary Judgment (ECF No. 12), GRANTS Defendant's Motion for Summary Judgment (ECF No. 16) and AFFIRMS the final decision of the Commissioner.

I. BACKGROUND

Because Plaintiff challenges the ALJ's decision, Plaintiff's education and work history, medical history, state agency physician opinions, Plaintiff's testimony and vocational expert testimony are summarized below.

A. Education and Work History

Plaintiff completed high school. (R. at 45, 205.) Plaintiff worked for thirteen years as a delivery driver for a wine distributor. (R. at 45-46, 197.) Plaintiff suffered an injury in 1999 and received worker's compensation benefits, but continued to work on light duty for the wine distributor. (R. at 47.) In March 2007, Plaintiff stopped working to undergo shoulder surgery as a result of his 1999 injury. (R. at 47.)

B. Medical History[2]

On March 25, 1999, Plaintiff visited John W. Ayres, M.D. at West End Orthopedic for pain and discomfort in his right arm. (R. at 597.) A physical examination of his right arm and shoulder revealed no abnormalities, and x-rays of Plaintiff's cervical spine were normal. (R. at 597.) On March 31, 1999, Plaintiff returned to Dr. Ayres and stated that his pain was associated with duties that he performed at work, including frequently lifting heavy objects and frequently lifting over his head. (R. at 599.) Dr. Ayres assessed that Plaintiff's symptoms were consistent with upper shoulder and cervical strain, as well as irritation and possible impingement of the scalenes and brachial plexus. (R. at 599.)

On August 9, 1999, Plaintiff visited Charles Bonner, M.D. at Physical Medicine Center. (R. at 473.) Dr. Bonner conducted a physical examination and opined that Plaintiff suffered from a chronic sprain and strain of the right shoulder with shoulder-hand syndrome. (R. at 473-74.) Dr. Bonner also indicated that Plaintiff's report suggested that he had degenerative disc disease. (R. at 474.) Dr. Bonner prescribed Zoloft, Naprelan and Flexeril, and referred Plaintiff for physical therapy. (R. at 474.)

On April 18, 2006, Plaintiff returned to Dr. Maragh and stated that his pain began on March 3, 1999, after he suffered a shoulder injury at work while lifting a case of wine. (R. at 565.) Plaintiff's injury was initially treated as a sprain. (R. at 565.) Plaintiff subsequently visited Dr. Ayres and Dr. Bonner for pain control, who referred Plaintiff to Dr. Young in 2004. (R. at 565.) Dr. Young requested and examined an MRI of Plaintiff's shoulder, which revealed a shoulder joint abnormality that required surgery. (R. at 565.) On physical examination, Plaintiff demonstrated limited motion in his right shoulder and mild atrophy in his joints. (R. at 566.) Plaintiff also felt pain with abduction of his right shoulder above ninety degrees that increased with external rotation. (R. at 566.) Dr. Maragh recommended that Plaintiff continue with his light duties at work and diagnosed Plaintiff with right thoracic outlet syndrome ("TOS"), [3] but noted that the progression was minimal because Plaintiff had been limited to light duties at work. (R. at 566.) On September 26, 2006, Dr. Maragh re-examined Plaintiff and observed that Plaintiff had limited motion in his neck and right shoulder due to pain. (R. at 572.) Dr. Maragh opined that Plaintiff suffered from TOS as a result from his injury at work. (R. at 572.) Dr. Maragh noted that Plaintiff needed to have his "pain cycle broken" and recommended that Plaintiff undergo a Kenalog injection into the painful area. (R. at 572.)

On March 20, 2007, Dr. Young operated on Plaintiff's right shoulder and conducted arthroscopic subacromial decompression, debridement of the glenohumeral joint and distal clavicle excision. (R. at 578-79.) On November 27, 2007, Plaintiff visited Dr. Maragh for a follow-up appointment. (R. at 582.) Dr. Maragh noted that Dr. Young opined that Plaintiff's shoulder had improved and that Plaintiff should consider returning to an appropriate job level. (R. at 582.) Upon physical examination, Dr. Maragh observed that Plaintiff experienced tenderness over the scapula muscles, pectoralis and chest. (R. at 582.) Plaintiff described pain that radiated into his shoulder, through his lateral arm and into his hand when he elevated his arm to ninety degrees. (R. at 582.) Dr. Maragh opined that Plaintiff continued to suffer from TOS and rib arthralgias. (R. at 582.)

On April 23, 2008, Plaintiff visited Peyman Nazmi, M.D. at the Richmond Spine Interventions and Pain Center. (R. at 552-54.) Dr. Nazmi observed that Plaintiff's physical examination showed pain upon flexion of the right shoulder and some tenderness over the cervical paraspinal muscles on the right side upon deep palpation. (R. at 553.) During the evaluation, Plaintiff complained of some radicular and neuropathic-type pain in his right pectoral area, but did not complain of any significant pain in his right shoulder and he retained full range of motion in his shoulder. (R. at 553.) On July 25, 2008, Dr. Nazmi performed trigger-point injections into Plaintiff's right cervical and thoracic paraspinal and trapezius region. (R. at 560.) On August 22, 2008, Plaintiff reported that his pain level decreased from 10/10 to 6/10 with medication. (R. at 561.) Dr. Nazmi recommended that Plaintiff return to work. (R. at 562.)

On September 22, 2008, Plaintiff visited Dr. Young and complained of right parascapular pain, neck and rib pain, and tingling in his fingers. (R. at 286.) Dr. Young observed that Plaintiff did not exhibit signs of acute distress, he retained intact sensation to touch in his upper extremities, showed positive Adson's reaction on the right side and had a mildly positive Tinel's reaction in his right elbow and wrist. (R. at 286-87.) Dr. Young also opined that Plaintiff's incisional sites were well-healed and Plaintiff demonstrated good external rotation abduction power. (R. at 287.) Although Plaintiff complained generally about pain in his parascapular musculature, Plaintiff did not describe any particular pain in his shoulder itself and had no complaints regarding his acromioclavicular or sternoclavicular joints. (R. at 287.)

On October 13, 2008, Plaintiff visited Gregory Lockhart, M.D. at Thoracic Surgery, PLC. (R. at 449.) Dr. Lockhart's physical examination of Plaintiff revealed that Plaintiff had spasms in his posterior cervical trunk and parascapular spasms on his right side. (R. at 449.) Dr. Lockhart opined that Plaintiff suffered from TOS, but noted that Plaintiff needed to undergo an MRI to determine if his cervical discs were compressed before Dr. Lockhart could determine what treatment would be appropriate. (R. at 449.)

On November 10, 2008, Michelle Kraut, M.D. at MRI of Richmond read Plaintiff's MRI. (R. at 288.) Dr. Kraut opined that Plaintiff had straightening of the cervical spine, likely the result of a muscle spasm, central canal stenosis and right neural foraminal narrowing at C4-05 and bilateral narrowing at C3-C4. (R. at 288.)

On June 26, 2009, Plaintiff underwent an electrodiagnostic consultation with Katherine L. Dec, M.D. at CJW Sports Medicine. (R. at 291-92.) Plaintiff's examination did not reveal any findings to suggest that he suffered from right cervical radiculopathy, right lower trunk brachial plexopathy, neurogenic TOS or carpal tunnel syndrome. (R. at 292.) Dr. Dec concluded that the electrodiagnostic examination did not explain Plaintiff's symptoms and that his results were normal. (R. at 292.)

On July 1, 2009, Rich J. Placide, M.D. at West End Orthopedic Clinic reviewed Plaintiff's MRI. (R. at 293.) Dr. Placide determined that Plaintiff showed degenerative changes in his cervical spine. (R. at 293.) Plaintiff's x-ray also showed that he had large transverse processes at C7. (R. at 293.)

On August 3, 2009, Plaintiff visited Michael J. DePalma, M.D. at the VCU Spine Center. (R. at 307-09.) Dr. DePalma conducted a physical examination and observed that Plaintiff's peripheral joint range of motion was normal in the head, neck, trunk and all four limbs, but Plaintiff exhibited myofascial discomfort in his upper limbs and a mildly limited cervical range of motion. (R. at 308.) Dr. DePalma also reviewed Plaintiff's 2008 MRI and opined that Plaintiff's right upper limb pain most likely resulted from C6-C7 extrusion. (R. at 308.) Dr. DePalma instructed Plaintiff to obtain an updated MRI examination. (R. at 308-09, 359.) On August 26, 2009, Plaintiff's MRI revealed cervical disc desiccation at C5-C6 and C6-C7, but showed no evidence of central canal or neural foraminal stenosis. (R. at 301.)

On April 21, 2010, Plaintiff reported that he used only over-the-counter medication for pain, including extra strength Tylenol and Advil. (R. at 311.) Dr. DePalma read Plaintiff's MRI and opined that Plaintiff suffered from cervical axial pain and bilateral upper limb pain. (R. at 312.) Dr. DePalma prescribed a Transcutaneous Electrical Nerve Stimulation ("TENS") unit, referred Plaintiff to physical therapy and recommended that Plaintiff receive a transforaminal epidural steroid injection. (R. at 312.) On August 20, 2010, Dr. DePalma again recommended that Plaintiff undergo a transforaminal epidural steroid injection in combination with his home exercise program and continued use of the TENS unit. (R. at 314.) Dr. DePalma noted that he encouraged Plaintiff to use the TENS unit on a more long-term basis, "to facilitate function and gainful employment." (R. at 314.)

On October 29, 2010, Plaintiff visited Thomas Saullo, M.D. at the VCU Spine Center. (R. at 339-41.) Dr. Saullo noted that Plaintiff underwent the transforaminal epidural steroid injection, but refused to continue with that course of treatment. (R. at 339-40.) Plaintiff exhibited normal range of motion in his joints, maintained a cervical range of motion within functional limits and his Spurling maneuver results and nerve root tension results were negative. (R. at 340.) Plaintiff stated that he did benefit from using his TENS unit. (R. at 341.) Dr. Saullo explained in detail that Plaintiff's best course of treatment would be to continue with the transforaminal epidural injections. (R. at 341.) After Plaintiff's first injection, he suffered rectal bleeding with his bowel movement and associated this as a negative side effect of the injection, but Dr. Saullo thoroughly explained that was highly unlikely to be a related symptom. (R. at 339-41.) Dr. Saullo and Plaintiff agreed to continue Plaintiff's pharmalogical pain management. (R. at 341.) On March 4, 2011, Dr. Saullo reevaluated Plaintiff and noted that Plaintiff did not want to pursue any further interventional medical procedures or cervical discography. (R. at 344.) Dr. Saullo referred Plaintiff to a list of pain management physicians in the area. (R. at 344.)

On May 16, 2011, Dr. Bonner reevaluated Plaintiff. (R. at 325-33.) Plaintiff stated that he walked every other day for exercise, but complained that all activity caused him more pain. (R. at 330, 332.) Plaintiff noted that the only pain medications that he took were Tylenol and Advil, and that the TENS unit helped his pain. (R. at 332.) On examination, Dr. Bonner observed that Plaintiff showed tenderness to palpation along the musculature and the trapezius at the right shoulder and arm and over the T2 costochondral junction. (R. at 333.) However, Plaintiff retained normal strength in his upper extremities, his sensation remained intact, no obvious atrophy appeared in his upper extremities and he had a normal range of cervical motion. (R. at 333.) Dr. Bonner prescribed Savella and Pennsaid for pain. (R. at 332-33.) Dr. Bonner recommended that Plaintiff get out of bed every day and go for a walk once or twice per day. (R. at 333.) Dr. Bonner also suggested that Plaintiff begin another type of exercise program in addition to walking each day. (R. at 333.)

On June 2, 2011, Plaintiff complained that he experienced negative side effects from his prescribed medications, including stomach aches, headaches, dizziness and increased blood pressure. (R. at 380.) On July 12, 2011, Plaintiff informed Dr. Bonner that he applied to several light duty jobs, but had not yet been hired. (R. at 382.) After Plaintiff described his subjective complaints, Dr. Bonner opined that Plaintiff could not work and did not have any options for rehabilitation. (R. at 382.) In August 2011, Plaintiff continued to complain of pain with all activity, but did note that the TENS unit and heat helped the pain temporarily. (R. at 430.) Plaintiff's examinations revealed that he had intact sensation, full range of motion in his extremities and demonstrated only a slightly limited grip strength and slightly reduced cervical rotation. (R. at 430.) The nurse practitioner noted that Plaintiff had trouble resolving worker's compensation issues to cover his medication during this time and that he had retained a lawyer to resolve these issues. (R. at 431.)

On October 6, 2011, Dr. Bonner observed that Plaintiff retained a full range of motion in his bilateral upper and lower extremities, intact sensation in all extremities, symmetrical reflexes and a bilateral grip strength of 4/5. (R. at 400.) Dr. Bonner ordered that Plaintiff undergo a cervical MRI and continue to use the TENS unit and further prescribed him Flexeril and Advil. (R. at 400.) Plaintiff's MRI revealed mild disc and facet degenerative change, mild broad based disc protrusion at C6-C7 and mild central canal stenosis with mild to moderate left neural foraminal stenosis. (R. at 392.) On November 1, 2011, Dr. Bonner reviewed Plaintiff's MRI and indicated that he suffered from disc desiccation and mild canal stenosis, but had no nerve or cord compression. (R. at 401.) Dr. Bonner opined that Plaintiff did not need surgical intervention. (R. at 401.) Dr. Bonner prescribed Tylenol 3 with Codeine for pain and a soft cervical collar for Plaintiff to wear at night. (R. at 401.)

On November 29, 2011, Dr. DePalma observed that Plaintiff had intact peripheral pulses throughout, intact peripheral joint range of motion, negative cervical root tension signs, negative upper motor neuron signs and 5/5 muscle strength. (R. at 394.) Dr. DePalma discussed treatment options with Plaintiff and recommended diagnostic medial branch blocks and medial branch radiofrequency neurotomy with discography. (R. at 394.)

On November 30, 2011, Plaintiff returned to Dr. Bonner and indicated that he did not experience constant pain. (R. at 404.) Plaintiff further noted that the soft cervical collar helped significantly and that heat and his medications also provided him relief. (R. at 404.) Dr. Bonner prescribed Lorzone instead of Skelaxin, continued Tylenol 3 with Codeine and the use of the cervical collar. (R. at 404.) Dr. Bonner and Plaintiff thoroughly discussed pursuing facet injections, nerve ablation and discography treatments. (R. at 404.) Dr. Bonner encouraged Plaintiff to consider these treatments and believed that facet injections could minimize his pain. (R. at 404.) Dr. Bonner noted that Plaintiff stated that he was "anxious about the pain associated with these procedures." (R. at 404.)

On December 28, 2011, Plaintiff described his pain as 10/10, even with his medications. (R. at 405.) Dr. Bonner observed that Plaintiff appeared calm and cooperative with appropriate affect. (R. at 405.) Dr. Bonner's examinations showed that Plaintiff had a full range of motion in his bilateral upper and lower extremities, exhibited intact sensation and symmetrical reflexes and showed a mild increased tone in his bilateral trapezius and cervical paraspinals. (R. at 405.) Dr. Bonner continued Plaintiff's Tylenol 3 with Codeine and Lorzone prescriptions. (R. at 405.)

On January 25, 2012, Plaintiff revisited Dr. Young for examination. (R. at 395-97.) Dr. Young's examination showed that Plaintiff suffered only mild head motion limitation and retained normal motor strength and intact sensation. (R. at 396.) Dr. Young also reviewed Plaintiff's October 2011 cervical spine MRI and determined that the scan showed a mild disc protrusion that was more severe on the left than the right. (R. at 396.) Dr. Young noted that the disc protrusion was only mild or minimal and that no large rupture compressing the spinal cord existed, and there was no evidence of foraminal encroachment. (R. at 396.) Dr. Young found it noteworthy that Dr. DePalma recommended that Plaintiff pursue a discography, which had not been completed. (R. at 396.) Plaintiff declined any more injections because he found that they were "very painful, " but Dr. Young observed that Plaintiff only received one "real injection in the cervical spine." (R. at 396.) Dr. Young did not recommend surgery. (R. at 397.)

On February 29, 2012, Courtney Ash, Dr. Bonner's nurse practitioner, observed that Plaintiff retained full range of motion in his bilateral upper and lower extremities, exhibited intact sensation and strength in his bilateral extremities, and showed increased tone in his bilateral trapezius and cervical paraspinals, but remained guarded to bilateral cervical rotation and had tenderness with palpation of the C5 through C7 facet joints bilaterally. (R. at 411.) Plaintiff stopped taking Savella due to complaints of side effects. (R. at 412.) Ms. Ash discussed prescribing Cymbalta, but Plaintiff alleged that he had bad reactions to similar medications. (R. at 412.) Ms. Ash further suggested that Plaintiff attend massage and manual therapy and see psychologist for chronic pain counseling, but Plaintiff stated that he could not attend due to transportation issues. (R. at 412.)

On March 28, 2012, Ms. Ash observed reduced range of motion in Plaintiff's shoulders, but an increased tone along Plaintiff's bilateral trapezius ridge and posterior paracervical muscles. (R. at 418.) Plaintiff also indicated that Lidoderm patches, heat, the soft cervical collar and medications provided relief from pain. (R. at 418.) Ms. Ash encouraged Plaintiff to walk and continue to use the TENS unit. (R. at 418.) On June 22, 2012, Ms. Ash and Plaintiff discussed vocational counseling, but Plaintiff explained that he had previously attended but no jobs were available for him. (R. at 422.) Plaintiff described being frustrated with not being able to drive or return to lifting-type work. (R. at 422.) Ms. Ash again recommended massage therapy, but Plaintiff stated that he continued to have transportation issues. (R. at 422.) Ms. Ash further discussed facet injections, but Plaintiff expressed hesitancy and declined to pursue the procedure for fear of pain. (R. at 422.)

In May, June and August 2012, Plaintiff visited Joseph G. Lerla, M.D. at Charles City Medical Group, Inc. (R. at 690-92.) Dr. Lerla observed that Plaintiff had normal ambulation, motor strength and tone. (R. at 689, 691, 693.) Dr. Leda opined that x-rays of Plaintiff's hands, lumbar spine and bilateral knees were normal. (R. at 691, 706-08.)

On July 23, 2012, Plaintiff visited Dr. Bonner and complained that his pain level that day reached 9/10, but Dr. Bonner observed that Plaintiff appeared calm and cooperative with appropriate affect. (R. at 424.) Dr. Bonner's examination revealed that Plaintiff had full range of motion in his upper and lower extremities, intact sensation, symmetrical reflexes and increased tone in his bilateral trapezius and cervical paraspinals. (R. at 424.) Dr. Bonner prescribed Fioricet, Duexis, Lidoderm and Valium. (R. at 424-26.)

On September 24, 2012, Dr. Bonner completed a medical source statement regarding Plaintiff's condition. (R. at 713-17.) Dr. Bonner noted that he treated Plaintiff for chronic pain and myofascial pain syndrome. (R. at 713.) Dr. Bonner opined that Plaintiff had been disabled since August 3, 2009, and was restricted from using his hands, arms and fingers for more than thirty minutes continuously, reaching for a maximum of five times per day for ten to fifteen minutes, looking up or down several times per day, bending or stooping more than occasionally and lifting from the floor more than a few times. (R. at 713-15.) Dr. Bonner further noted that Plaintiff could sit for two hours or less and stand or walk for three hours or less in an eight-hour work day. (R. at 716.) Dr. Bonner noted that Plaintiff could read for more than five to ten minutes per day, could view a screen for more than fifteen to thirty minutes and could handle stress for more than five to ten minutes. (R. at 714.) Dr. Bonner opined that during a typical day, Plaintiff's pain and discomfort were not severe enough to interfere with his attention and concentration necessary to perform even simple work-related tasks for seventy percent or more of his waking hours. (R. at 716.) Additionally, Plaintiff could perform work that required fine manipulation with his fingers for more than two percent of an eight-hour work day. (R. at 717.)

C. State Agency Physicians

On May 3, 2011, Nancy Powell, M.D. conducted a medical examination of Plaintiff and reviewed his relevant medical history. (R. at 318-21.) Dr. Powell observed that Plaintiff walked from the waiting room to the examination room without difficulty and could change from supine to sitting position, take off his shoes and put them back on without difficulty. (R. at 320.) During the examination, Plaintiff walked with a normal gait, could execute finger-to-nose and heel-to-knee exercises, exhibited normal range of motion in his cervical spine, shoulders, elbows, wrists, hands, thoracolumbar, hips, knees and ankles. (R. at 320.) Dr. Powell noted that Plaintiff had no edema, spasm or crepitus. (R. at 321.) Plaintiff demonstrated a motor strength of 5/5 in all of his extremities. (R. at 321.) Although Plaintiff had 1/4 reflexes in each of his extremities, his sensory examination remained within normal limits. (R. at 321.) Dr. Powell opined that Plaintiff could stand or walk for six hours and sit without restrictions, could lift or carry fifty pounds occasionally and twenty-five pounds frequently with possible occasional climbing limitations due to neck and back pain, but had no manipulative or environmental limitations. (R. at 321.)

On May 10, 2011, Wyatt S. Beazley III, M.D. conducted a medical examination of Plaintiff and opined that Plaintiff could lift or carry fifty pounds occasionally and twenty-five pounds frequently, and could sit and stand or walk for more than six hours during an eight-hour workday. (R. at 85.) Dr. Beazley further noted that Plaintiff could climb ladders, ropes or scaffolds occasionally, but had no restrictions for climbing ramps or stairs, balancing, stooping, kneeling, crouching or crawling. (R. at 85.) He assessed no manipulative, visual, communicative or environmental limitations. (R. at 86.)

On August 4, 2011, Josephine Cader, M.D. examined Plaintiff and opined that he did not have a severe impairment or combination of impairments that would significantly limit his physical or mental ability to do basic work activities. (R. at 102.) Dr. Cader determined that Plaintiff continued to ambulate with a normal gait and station and maintained 5/5 grip strength and strength in his extremities. (R. at 102.) Dr. Cader noted that Plaintiff exhibited some limitations in completing certain work activities, but these limitations did not preclude Plaintiff from performing his past relevant work. (R. at 104.)

D. Plaintiff's Testimony

On September 27, 2012, Plaintiff (represented by counsel) testified before the All. (R. at 42-71.) Plaintiff testified that he was forty-seven years old and had completed the twelfth grade. (R. at 44-45.) Plaintiff admitted that he did not pursue treatment for his shoulder condition since his amended alleged onset date of August 3, 2009. (R. at 49.) Further, Plaintiff had not seen a neurologist for his headaches since 1999, despite being referred for an appointment by his treating physician. (R. at 54.) Instead, Plaintiff relied only on pain medication, including Tylenol 3 with Codeine, Ibuprofen 800, muscle relaxers and ...


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