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Ingram v. Colvin

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

May 20, 2015

ALTON TIMOTHY INGRAM, Plaintiff,
v.
CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

DAVID J. NOVAK, Magistrate Judge.

Alton Timothy Ingram ("Plaintiff") is forty-five years old and previously worked as a security guard. On January 19, 2011, Plaintiff applied for Social Security Disability Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"), alleging disability from herniated discs, lower back pain and sciatic nerve damage with an alleged onset date of August 26, 2007. Plaintiff's claims were denied both initially and upon reconsideration. On April 19, 2012, Plaintiff (assisted by a non-attorney representative) appeared before an Administrative Law Judge ("ALJ") for an administrative hearing. On January 8, 2013, Plaintiff (assisted by a non-attorney representative) appeared before an ALJ for a supplemental hearing, during which Plaintiff amended his alleged onset date to June 26, 2009. The ALJ subsequently denied Plaintiff's claims in a written decision dated January 16, 2013. On May 27, 2014, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner of Social Security.

Plaintiff now appeals the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in assessing the opinions of Dr. Grady and Dr. Januzzi, in assessing Plaintiff's credibility, in determining that Plaintiff could return to his past employment and in determining that Plaintiff could perform work available in the national economy. (Pl.'s Mem. in of [sic] P. & A. in Supp. of Pl.'s Mot. for Summ. J. (ECF No. 14) at 17-23.) The parties have submitted cross-motions for summary judgment, which are now ripe for review. Having reviewed the parties' submissions and 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. 12) be DENIED, that Plaintiff's Motion for Remand (ECF No. 13) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 15) 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 history, function report, testimony and Vocational Expert ("VE") testimony are summarized below.

A. Education and Work History

Plaintiff was 41 years old when he applied for DIB and SSI. (R. at 189.) Plaintiff completed school through the tenth grade and obtained a G.E.D. (R. at 35.) Plaintiff previously worked as a security guard and built fireplaces. (R. at 36-38.) After the alleged onset of Plaintiff's disability, Plaintiff worked briefly at a recycling center. (R. at 36.)

B. Medical Records

1. University Medical Center

On October 8, 2007, Plaintiff saw Mary Gauthier, F.N.P. of the University Medical Center in Las Vegas, Nevada, complaining of acute lower back pain. (R. at 369.) Nurse Gauthier diagnosed Plaintiff with chronic sciatica that caused intermittent lower back pain and radiation in Plaintiff's right leg. (R. at 369.) Nurse Gauthier prescribed Lortab, Diclofenac and Flexeril, but Plaintiff stopped taking the medications, because he did not like the way that they made him feel. (R. at 369.) Plaintiff denied using tobacco, stated that he drank one to two beers a week and smoked marijuana every other day. (R. at 369.) Nurse Gauthier found that Plaintiff's back was normal and a previous spasm to the right of Plaintiff's spine was no longer present. (R. at 369.)

On November 20, 2007, Plaintiff saw Jennifer Avena, D.O. at the University Medical Center. (R. at 371.) Plaintiff reported that his lower back pain had resolved and that he had no lower back pain. (R. at 371.) Plaintiff had returned to employment and was working twenty hours a week at a sandwich shop. (R. at 371.) Plaintiff stated that he had flares of lower back pain twice a year. (R. at 371.) Dr. Avena recorded that Plaintiff maintained a normal gait and easily moved from his chair to the examination table. (R. at 371.)

On November 30, 2007, Plaintiff underwent a CT scan that revealed a moderate broad-based disk bulge at L5-S1 with moderate right neural foraminal narrowing and mild left neural foraminal narrowing. (R. at 375.) Based on the CT scan, Dr. Avena also diagnosed Plaintiff with a moderate broad-based disc bulge with moderate bilateral neural foraminal narrowing at L4-L5. (R. at 375.) Dr. Aveno diagnosed Plaintiff's pain as being neuropathic and gave Plaintiff a prescription for Lyrica. (R. at 375.)

On January 10, 2008, Plaintiff saw Amy Urban, M.D. in the University Medical Center's emergency room, complaining of cramps. (R. at 335.) Plaintiff reported increased right leg pain, but no tingling or numbness. (R. at 335). Dr. Urban observed that Plaintiff had no disturbance in his gait and that Plaintiff moved back and forth from the bed. (R. at 335.) Dr. Urban prescribed one Percocet, which Plaintiff stated had helped. (R. at 335.) Dr. Urban prescribed Lortab, Flexeril and ibuprofen, told Plaintiff to apply heat to his back and advised Plaintiff to follow-up with his primary care provider. (R. at 336.)

On February 20, 2008, Plaintiff saw Dr. Avena for a three-month check-up. (R. at 375.) Plaintiff continued to have pain in his legs, especially at night. (R. at 375.) Plaintiff described the pain as aching and cramping, and further stated that the pain was present when he first woke up, but that the pain resolved as Plaintiff "got going." (R. at 375.) Dr. Avena described Plaintiff as ambulatory and noted that Plaintiff experienced no difficulty getting on the examination table. (R. at 375.)

On February 6, 2009, Plaintiff returned to Dr. Avena, complaining of cramping in his lower legs in the evening and some lower back soreness and stiffness in the mornings. (R. at 349.) Dr. Avena opined that Plaintiff maintained normal gait and station, and that Plaintiff was not in acute distress. (R. at 349.) Dr. Avena prescribed ibuprofen, baclofen and Neurontin for Plaintiff's lower back pain. (R. at 349.) Dr. Avena also referred Plaintiff to physical therapy and pain management for further evaluation and treatment. (R. at 349.)

On April 1, 2009, Plaintiff saw John D. McCourt, M.D. in the emergency room of University Medical Center, complaining of pain in his back and neck with tingling in his fingers. (R. at 329.) Plaintiff reported that his pain was so severe that he could not wait for his follow-up with Dr. Avena, and Plaintiff required an ambulance to take him to the emergency room. (R. at 329.) Plaintiff also rated his pain a ten on a scale of one-to-ten. (R. at 329.) Dr. McCourt noted that Plaintiff appeared healthy, alert, oriented and in no acute distress. (R. at 329.) Dr. McCourt further observed that Plaintiff walked in and out without difficulty, and that Plaintiff locked an antalgic gait. (R. at 329.) Plaintiff maintained equal leg strength bilaterally. (R. at 330.)

Dr. McCourt had an x-ray taken of Plaintiff's spine that revealed that Plaintiff had normal C-spine and L-spine. (R. at 330.) While in the emergency room, Plaintiff took Toradol and Percocet, which helped to reduce pain. (R. at 330.) Dr. McCourt diagnosed Plaintiff with acute exacerbation of his chronic back pain. (R. at 330.) Dr. McCourt prescribed Lortab for pain, but cautioned Plaintiff to use it sparingly. (R. at 330.)

On April 10, 2009, Plaintiff saw Lori Winchell, F.N.P., complaining of severe back pain radiating down his right leg. (R. at 341.) Plaintiff stated that he was taking ibuprofen 800 and baclofen, that he only took Lortab once and that his pain had not improved. (R. at 341.) Plaintiff did not take his medication for two to three weeks before the onset of his symptoms. (R. at 342.) Plaintiff had not gone for pain management or physical therapy sessions. (R. at 341.) Plaintiff complained of increased fatigue, because his pain kept him awake, and indicated that his pain medication caused him severe constipation. (R. at 341.)

Nurse Winchell reported that Plaintiff had good range of motion in his upper extremities, as well as his head and neck, but that Plaintiff had limited range of motion in his right and left legs. (R. at 341.) Plaintiff could complete external rotation testing without significant pain, but straight leg testing caused pain in Plaintiff's legs bilaterally. (R. at 341.) Plaintiff complained that the pain in his right leg radiated from his gluteus down to his foot. (R. at 341-42.) Nurse Winchell reported that there was no atrophying or tremors in Plaintiff's lower extremities. (R. at 342.)

Nurse Winchell reported that Plaintiff was oriented to person, place and time, that Plaintiff responded to verbal and nonverbal cues appropriately and that Plaintiff was cooperative throughout the examination. (R. at 342.) Plaintiff had normal reflexes. (R. at 342.) Nurse Winchell prescribed Medrol, Dosepak and Robaxin in place of cyclobenzaprine. (R. at 342.)

On May 12, 2009, Plaintiff saw Almaz Araya, P.T. at the University Medical Center for physical therapy. (R. at 382.) Plaintiff complained of continuous back pain. (R. at 382.) Plaintiff stated that walking for more than an hour made his right leg cramp and that sitting for more than five minutes increased the pain in his back. (R. at 382.) Plaintiff rated his pain as being seven out of ten. (R. at 382.)

Plaintiff's hip flexion, knee flexion, knee extension and dorsiflexion were all 5/5 bilaterally. (R. at 382.) Plaintiff had decreased light-touch sensation in his right S2, and Plaintiff's reflexes decreased bilaterally in his SI. (R. at 382.) Plaintiff complained of moderate tenderness in his lumbar erector spinac. (R. at 382.) During Plaintiff's right straight leg raise test, Plaintiff complained of back pain around his fifty-degree hip flexion, and around seventy-degrees during his left leg test. (R. at 383.) IL, ST and SS ligament provocation also caused Plaintiff back pain. (R. at 383.) Plaintiff's Fabers test was positive bilaterally. (R. at 383.)

On May 27, 2009, Plaintiff returned to Dr. Avena for a new physical therapy referral. (R. at 384.) Dr. Avena reviewed x-rays taken after Plaintiff's previous appointment and noted no significant degenerative changes. (R. at 384.) Dr. Avena noted that Plaintiff was not in acute distress, was cooperative and pleasant, and ambulated without assistance. (R. at 384.) Dr. Avena assessed Plaintiff's lower back pain as being secondary to spinal stenosis. (R. at 384.)

2. CoxHealth North

On September 9, 2009, Plaintiff saw Dr. Cooper of the CoxHealth Emergency Services/Urgent Care Department in Springfield, Missouri, complaining of lower back pain. (R. at 410.) Plaintiff cited herniated discs as part of his medical history. (R. at 410.) Plaintiff's chart indicated that Plaintiff's pain was dull and that remaining still relieved Plaintiff's pain. (R. at 413.) Dr. Cooper prescribed Prednisone, methocarbamol and Vicodin as needed. (R. at 408.)

On June 25, 2010, Plaintiff saw James Schmitt, M.D. at the CoxHealth North Emergency Department. (R. at 404.) Plaintiff presented with facial swelling and a deformity to his right pinky finger that resulted from attempting to break up a fight. (R. at 404.) Plaintiff complained that movement aggravated his symptoms, that his symptoms were moderate at their worst, and that he had experienced no similar symptoms in the past. (R. at 404.) Dr. Schmitt's medical history noted that Plaintiff suffered from a herniated disc. (R. at 404.) Upon examination, Plaintiff's neck and back were negative for injury and pain. (R. at 404-05.) Plaintiff's musculoskeletal and extremity examination returned a positive result only for the finger deformity. (R. at 404-05.)

On July 8, 2010, Plaintiff saw Patrick Gilbreth, M.D. in the CoxHealth North Emergency Department, complaining of lower back and leg pain. (R. at 400.) Plaintiff told Dr. Gilbreth that the pain began over four years earlier and that the pain radiated down Plaintiff's right leg. (R. at 400.) Dr. Gilbreth noted that Plaintiff moved about easily, that Plaintiff moved all four limbs, that Plaintiff's strength was 5/5 in all extremities and that Plaintiff's gait was steady and deep. (R. at 400.) Plaintiff's back examination was negative for injury and pain. (R. at 400.) Plaintiff's musculoskeletal and extremities exam was negative for injury or deformity. (R. at 400.) Dr. Gilbreth listed Plaintiff's condition as stable and prescribed Flexeril, Percocet and Medrol. (R. at 401.)

3. Kitchen Clinic

In July and August 2010, Plaintiff reported to the Kitchen Clinic in Springfield, Missouri. (R. at 485.) Plaintiff complained of back pain and difficulty sitting for prolonged periods of time. (R. at 485.) Plaintiff appeared uncomfortable on the exam table and changed positions, but was able to toe and heel walk. (R. at 485.) Plaintiff further exhibited tenderness in his spine and hips. (R. at 485.)

On September 16, 2010, Plaintiff again went to the Kitchen Clinic, complaining of back pain. (R. at 484.) Plaintiff claimed that none of the medications prescribed to him helped his back pain and that he was not taking any medications. (R. at 484.) Plaintiff had no interest in surgery. (R. at 484.) The examining physician prescribed Gabapentin and referred Plaintiff for physical therapy. (R. at 484.)

On February 15, 2011, Plaintiff went to the Kitchen Clinic for his back pain. (R. at 482.) Plaintiff had his leg up on a chair, complained on multiple occasions of pain and used the arms of the chair to get out of the chair. (R. at 482.) On February 24, 2011, Plaintiff was referred again for physical therapy. (R. at 482.)

4. Ozarks Community Hospital

On February 23, 2011, Plaintiff saw Dorinda Faulkner, M.D. at Ozarks Community Hospital in Springfield, Missouri, complaining of an extremely sharp pinching pain at all times. (R. at 416.) Plaintiff stated that he experienced no relief from the pain and that using a heating pad worsened his symptoms. (R. at 416.) Plaintiff claimed that the pain radiated down his posterior right leg and foot. (R. at 416.) Plaintiff stated that his right leg buckled every other day and that he had nearly fallen. (R. at 416.) Putting a coat or pillow behind his back improved his symptoms, but his back and leg pain were so severe that he could not lift his forty-pound daughter or stand or sit for any amount of time. (R. at 416.)

Plaintiff stated that he could walk four blocks before having severe right leg pain. (R. at 417.) Plaintiff could stand for forty-five minutes before suffering back pain and sit for two hours before his back began hurting. (R. at 417.) Plaintiff stated that, on a normal day, he woke up around 5:45 a.m. with severe right leg cramps. (R. at 417.) Plaintiff took from forty-five minutes to an hour to get out of bed, depending on his level of back pain. (R. at 417.) Plaintiff reported that he would then get dressed and "inch [his] way out of the house" to go to a clinic and then to the library to work on Social Security paperwork. (R. at 417.) Plaintiff stated that he returned home, because his body hurt. (R. at 417.)

Upon examination, Dr. Faulkner noted that Plaintiff was cooperative, alert and oriented. (R. at 417.) Plaintiff appeared uncomfortable while sitting, moved very slowly and, eventually, laid still on his left side. (R. at 417.) Dr. Faulkner observed, however, that Plaintiff sat and moved comfortably in the waiting room before his appointment. (R. at 417.) During his evaluation, Plaintiff propped himself up on his elbows while lying on his stomach to work on crossword puzzles. (R. at 417.)

Plaintiff initially stated that his pain came from a small right paraspinal area. (R. at 418.) However, upon palpitation, Plaintiff changed the location of his pain to include his entire bilateral lumbar muscles. (R. at 418.) Plaintiff then included his lumbar spine to areas experiencing pain. (R. at 418.) Dr. Faulkner opined that Plaintiff was overly dramatic and writhed in pain when palpitated. (R. at 418.) Plaintiff complained of posterior upper leg pain with internal right hip rotation, but exhibited a normal range of motion in his left hip. (R. at 418.) Dr. Faulkner opined that Plaintiff had a questionably positive right straight leg raise evaluation, because, although Plaintiff stated that he was in pain, there was no physical suggestion that Plaintiff was in pain. (R. at 418.)

Plaintiff walked from the waiting room to the evaluation room with a "slow, apparently painful, gait." (R. at 418.) However, after his evaluation, Plaintiff walked briskly with a mild-to-moderate limp, favoring his right leg and appeared to have normal balance. (R. at 418.) Plaintiff could barely walk on his toes, limped, complained of right leg cramping and was only able to walk on his toes with "much drama and apparent difficulty." (R. at 418.) Plaintiff complained of posterior right leg pain while walking on his heels. (R. at 418.) Plaintiff could reach five inches below his inferior patellar poles during anterior waist flexion and Plaintiff demonstrated minimal effort. (R. at 418.) Despite complaining of pain, Plaintiff could perform a deep knee bend while holding onto the counter, stand up unassisted and move easily while bending over to tie his shoe. (R. at 419.)

Based on an x-ray taken, Dr. Faulkner diagnosed Plaintiff with mild lower degenerative disc and facet joint disease. (R. at 419, 423.) Based on Plaintiff's medical history, examination and other information, Dr. Faulkner concluded that Plaintiff was not "functionally disabled from working." (R. at 419.)

5. Crossover Health Center

On March 19, 2012, Plaintiff saw Daniel Jannuzzi, M.D. at Crossover Health Center in Richmond, Virginia. (R. at 499.) On March 26, 2012, Dr. Januzzi completed a disability determination, diagnosing Plaintiff with lower back pain and degenerative disc disease. (R. at 499.) Dr. Jannuzzi opined that Plaintiff's diagnosis rendered Plaintiff unable to work permanently and that Plaintiff should apply for disability. (R. at 499.)

6. Virginia Medical Exams

On July 9, 2012, Plaintiff saw Victoria Grady, M.D. of Virginia Medical Exams, Inc. in Herndon, Virginia, for a medical consultation. (R. at 502.) Plaintiff complained of back pain. (R. at 502.) Plaintiff told Dr. Grady that he "had to roll out" when he got up in the morning, that he sometimes needed help to get up, that his right leg buckled from time-to-time and that he had problems picking up the laundry basket. (R. at 502.) Plaintiff stated that he had "sharp pain[s] and cramps, " that his pain was in his lumbar and went down his leg to his right foot, that his pain was fifteen to twenty out of ten and that he could not do anything. (R. at 502.) Plaintiff said that "his doctor told him to stop taking the medicine he prescribed, " and that while Plaintiff's doctor prescribed injections in Plaintiff's back, Plaintiff had not had epidural spinal injections. (R. at 502.)

Plaintiff claimed to have sciatic nerve damage that had been ongoing on his right side since 2007. (R. at 503.) Plaintiff told Dr. Grady that his pain "ha[d] him bent over, " and that it hurt when he walked long distances, including during the fifty-foot walk to his mailbox. (R. at 503.) Plaintiff needed help at times putting on his socks and that he kept his shoelaces tied so that he could slip his feet into his shoes. (R. at 503.) Plaintiff claimed that he could not lift his five-year-old daughter, that he could not play with his ...


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