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Pope v. Colvin

United States District Court, W.D. Virginia, Big Stone Gap Division

March 8, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          PAMELA MEADE SARGENT, Magistrate Judge.

          I. Background and Standard of Review

         Plaintiff, Deanna Denise Pope, ("Pope"), filed this action challenging the final decision of the Commissioner of Social Security, ("Commissioner"), determining that she was not eligible for disability insurance benefits, ("DIB"), under the Social Security Act, as amended, ("Act"), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). As directed by the order of referral, the undersigned now submits the following report and recommended disposition.

         The court's review in this case is limited to determining if the factual findings of the Commissioner are supported by substantial evidence and were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). "If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is "substantial evidence.'"" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

         The record shows that Pope protectively filed an application for DIB on November 7, 2011, alleging disability as of May 4, 2010, due to muscle spasm; mononeuropathy in both hands; cervical radiculopathy; neck pain; cervical herniated nucleus pulposus, ("HNP"), without myelopathy; cervical and lumbar degenerative disc disease; lumbar HNP; low back pain; cervical stenosis; headaches; bilateral arm weakness; arm pain; shoulder pain; depression; and difficulty sleeping. (Record, ("R."), at 160-63, 172, 176, 207, 230.) The claim was denied initially and on reconsideration. (R. at 75-79, 83, 85-87, 89-91.) Pope then requested a hearing before an administrative law judge, ("ALJ"), (R. at 92-93.) A hearing was held by video conferencing on July 24, 2013, at which Pope was represented by counsel. (R. at 29-51.)

         By decision dated August 20, 2013, the ALJ denied Pope's claim. (R. at 12-21.) The ALJ found that Pope met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2015.[1] (R. at 14.) The ALJ also found that Pope had not engaged in substantial gainful activity since May 4, 2010, the alleged onset date. (R. at 14.) The ALJ found that the medical evidence established that Pope suffered from a combination of severe impairments, namely neck pain; status-post cervical fusion; back pain; muscle spasms; mild carpal tunnel syndrome; and poor concentration secondary to pain, but he found that Pope did not have an impairment or combination of impairments listed at or medically equal to one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 14-17.) The ALJ also found that Pope had the residual functional capacity to perform light work[2] that required no more than occasional stooping, climbing of ramps and stairs and reaching, no climbing of ladders, ropes or scaffolds, no crawling, no more than frequent balancing, kneeling and crouching, which did not require concentrated exposure to vibration and hazards, and which was limited to the performance of one- to two-step instructions. (R. at 17-20.) Thus, the ALJ found that Pope was unable to perform any past relevant work. (R. at 20.) Based on Pope's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that there were other jobs available that Pope could perform, such as an usher, a tanning salon attendant and a school bus monitor. (R. at 20-21.) Therefore, the ALJ found that Pope was not under a disability as defined under the Act and was not eligible for benefits. (R. at 21.) See 20 C.F.R. § 404.1520(g) (2015).

         After the ALJ issued his decision, Pope pursued her administrative appeals, (R. at 8), but the Appeals Council denied her request for review of the ALJ's decision. (R. at 1-5.) Pope then filed this action seeking review of the ALJ's unfavorable decision, which now stands as the Commissioner's final decision. See 20 C.F.R. § 404.981 (2015). The case is before this court on Pope's motion for summary judgment filed June 15, 2015, and on the Commissioner's motion for summary judgment filed July 17, 2015. Neither party has requested oral argument.

          II. Facts

         Pope was born in 1966, (R. at 160), which classified her as a "younger person" at the time of the ALJ's decision. See 20 C.F.R. § 404.1563(c) (2015). She has a high school education with a couple of semesters of college instruction. (R. at 177, 32-33.) She has past relevant work experience as a detention/correction officer, a housekeeper/nanny and a secretary. (R. at 178.)

         Pope testified that she last worked on May 4, 2010, as a detention officer, a job which she held for six years. (R. at 33.) She stated that she had other past work experience as a secretary in two different prison facilities and as a nanny and housekeeper. (R. at 33-34.) Pope stated that she was in a motor vehicle accident in August 2009, ultimately resulting in cervical fusion surgery in June 2010, but she continued to have neck problems as a result of this accident. (R. at 34-35.) Pope stated that she experienced pain throughout the day, including muscle spasms and pain radiating into her shoulders. (R. at 39-40.) She also testified that she had weakness, numbness and decreased strength in her upper extremities and a limited range of motion in her neck. (R. at 41-42.) Pope testified that lifting, bending and holding her neck up were difficult for her and that such activities, in addition to reaching and walking, sitting or standing for extended periods, worsened her pain and that holding her arms up caused numbness. (R. at 36, 41.)

         Pope testified that she took pain medications and muscle relaxers at night because they made her sleepy. (R. at 36-37.) She testified that she also had undergone physical therapy, had used a transcutaneous electrical nerve stimulation, ("TENS"), unit, had tried various other medications and had received injections in her neck in an effort to relieve her symptoms. (R. at 40.) However, she stated that she had not had an injection since June 2012 due to a spinal meningitis scare. (R. at 40.) Pope stated that use of a heating pad, massages, frequent rest periods and lying down throughout the day helped relieve her pain. (R. at 41-42.)

         In addition to her neck problems, Pope stated that she experienced daily headaches, sometimes requiring her to lie down. (R. at 42.) She also testified that she had mild carpal tunnel syndrome in both wrists, causing arm weakness, numbness and tingling, swelling of the tops of her hands and muscle spasms in her hands. (R. at 42-43.) She stated that, if she lifted more than a couple of pounds, her hands hurt, as well as her neck, and that she had dropped a couple of casseroles. (R. at 43.)

         Pope testified that her daily activities included making breakfast, which could be as simple as cereal or something homemade like biscuits, doing light laundry, watching television, making lunch, sitting outside in the sun to get some Vitamin D, occasionally walking to a neighbor's house, preparing supper, washing her husband's work uniform for the next day and helping her young grandchildren, of whom she and her husband had custody, get ready for bed. (R. at 37-38, 47.) She stated that, if she was going to be cooking the next day, she would start preparing things. (R. at 38.) Pope testified that she sometimes attended church services. (R. at 39.) She stated that she and her husband cleaned their house, but he did most of the heavy cleaning. (R. at 45.) She stated that her husband also did most of the driving. (R. at 46.) Pope testified that she used to ride a jet ski, ski and play ball, but she was afraid to do those things for fear of reinjuring herself, resulting in even less mobility. (R. at 46.)

         Vocational expert, Mark Hileman, also testified at Pope's hearing. (R. at 47-50.) Hileman classified Pope's work as a detention/corrections officer as medium[3] and semi-skilled, as a secretary as sedentary[4] and skilled and as a housekeeper/nanny as medium and semi-skilled, but, as performed by Pope, at the light exertional level. (R. at 48-49.) When Hileman was asked to consider a hypothetical individual of Pope's age, education and work experience, who would be limited to light work that did not require the climbing of ladders, ropes or scaffolds or crawling, that required no more than occasional climbing of ramps and stairs, stooping and reaching, that did not require concentrated exposure to vibrations and hazards and that required the performance of no more than one- to two-step job instructions, he testified that such an individual could not perform Pope's past relevant work, but could perform jobs existing in significant numbers in the national economy, including those of an usher, a tanning salon attendant and a school bus monitor. (R. at 49-50.) Hileman next was asked to consider a hypothetical individual who could lift and carry items weighing no more than three pounds, who could stand and/or walk less than two hours and sit less than two hours in an eight-hour workday, who could occasionally stoop and crouch, but never twist, and who must avoid all exposure to extreme cold, wetness, humidity, noise, fumes, odors, dust, gases, poor ventilation and hazards. (R. at 50.) Hileman testified that such an individual could not perform any work. (R. at 50.)

         In rendering his decision, the ALJ reviewed medical records from Internal Medicine Associates of Southwest Virginia; Norton Community Hospital; Highlands Pathology; Holston Valley Hospital; Wellmont Holston Valley Medical Center; Blue Ridge Neuroscience Center, P.C.; Mountain View Regional Medical Center; Medical Associates of Southwest Virginia; Wise Medical Group; Associated Neurologists of Kingsport; Internal Medical Associates of Norton; Pain Medicine Associates; Kingsport Day Surgery; Dr. Souhail Shamiyeh, M.D.; Norton Diagnostic Imaging; Appalachian After Hours Care; Cutting Edge Dermatology; Dr. Richard Surrusco, M.D., a state agency physician; Dr. Andrew Bockner, M.D., a state agency physician; Dr. John Sadler, M.D., a state agency physician; and Surgical Associates of Kingsport.

         The record shows that Pope presented to the emergency department at Norton Community Hospital, ("Norton Community"), on September 27, 2009, with complaints of back and neck pain after being involved in a motor vehicle accident on August 31, 2009, for which she had received no treatment. (R. at 292, 296.) Pope also reported pain shooting into the right leg, as well as pain in the left flank area. (R. at 296.) She received a Toradol injection, and Dr. Christopher Smith, D.O., ordered x-rays of the cervical, lumbar and thoracic spine. (R. at 293, 300-01.) Lumbar spine x-rays showed mild degenerative changes, thoracic spine x-rays showed no evidence of compression deformity or spondylolisthesis, but minimal thoracic spur formation, and cervical spine x-rays showed reversal of the normal lordotic curvature. (R. at 280-82, 466-67, 469.) Dr. Smith diagnosed Pope with a strain of the cervical, thoracic and lumbosacral spine, he prescribed Flexeril and naproxen, and he advised her to follow up with her primary care physician within two to three days. (R. at 295, 301-02.)

         Pope saw April Stidham, F.N.P., [5] a family nurse practitioner for Dr. Souhail Shamiyeh, M.D. at Medical Associates of Southwest Virginia, on October 1, 2009, with complaints associated with the August 2009 motor vehicle accident. (R. at 564.) She had decreased range of motion of the neck and tenderness to the cervical spine and trapezius muscle. (R. at 564.) Stidham diagnosed possible sciatica and prescribed Naprosyn. (R. at 564.)

         Pope was seen at Mountain View Regional Medical Center Outpatient Rehabilitation Services for an initial physical therapy evaluation for her back, neck and shoulders on October 14, 2009. (R. at 475.) She received physical therapy services through November 2009. (R. at 475-91.) Over this time, Pope was treated with moist heat, ultrasound, electrical stimulation and therapeutic exercises. She experienced some therapy-related soreness, but by November 2009, she had improved left cervical spine rotation, decreased pain and improved flexibility. (R. at 478, 490-91.)

         On October 23, 2009, Stidham noted that physical therapy had improved Pope's condition, as she had a full range of motion of the neck without cervical spine tenderness. (R. at 563.) On February 3, 2010, Dr. Shamiyeh referred Pope to a neurosurgeon. (R. at 562.) She returned to Dr. Shamiyeh on March 1, 2010, with complaints of neck stiffness. (R. at 561.) He diagnosed low back pain and neck pain. (R. at 561.) On March 18, 2010, Pope continued to have a decreased range of motion of the neck without cervical or lumbar spine tenderness, and Stidham diagnosed neck and low back pain and scheduled an MRI of both areas. (R. at 560.)

         An MRI of the lumbar spine, dated April 1, 2010, showed degenerative disc disease without focal disc herniation or significant central canal stenosis. (R. at 279, 289, 462.) An MRI of the cervical spine, taken the same day, showed right lateral focal disc herniation at the C5-C6 level, effacing the subarachnoid space and distorting the right anterolateral cervical cord, as well as mild degenerative disc disease. (R. at 278, 287, 464.) On April 15, 2010, Pope exhibited right-sided neck tenderness and cervical spine tenderness on palpation, Stidham diagnosed a cervical spine disc herniation and referred her to Dr. Austin. (R. at 559.)

         On May 4, 2010, Pope saw Dr. Rebekah C. Austin, M.D., a neurosurgeon at Blue Ridge Neuroscience Center, P.C., for an initial consultation regarding cervical pain. (R. at 425-28.) Pope reported neck pain, stiffness, decreased range of motion, low back pain, right lower extremity pain and generalized upper extremity weakness. (R. at 425.) She reported continually worsening symptoms, but some range of motion improvement after a course of physical therapy. (R. at 425.) Pope appeared to be in no acute distress. (R. at 426.) She had no edema of the lower extremities, mild paraspinous muscle contractions and tenderness of the lumbar and cervical spine. (R. at 426-27.) Range of motion of the head and neck was limited on left rotation to 65 degrees and on right rotation to 55 degrees. (R. at 427.) Range of motion of the spine, ribs and pelvis was limited on flexion to 70 degrees, but there was no limitation of motion of any of the extremities. (R. at 427.) There was an increase in muscle tone of the trapezius musculature and paraspinal musculature. (R. at 427.) The right upper bicep had 4 strength, but strength was full, tone was normal, and no atrophy was noted in the head, neck, left upper extremity or bilateral lower extremities. (R. at 427.) Neurological examination was normal. (R. at 427.) Dr. Austin diagnosed Pope with a cervical HNP without myelopathy; cervical stenosis; neck pain; cervical degenerative disc disease; lumbar HNP, broad-based at the L4-L5 and L5-S1 levels; lumbar radiculopathy at the right L5 level; and low back pain. (R. at 427.) She ordered cervical and lumbar myelograms and post-myelographic CT scans. (R. at 428.)

         The cervical myelogram, performed on May 12, 2010, showed a broad-based right-sided disc extrusion at the C5-C6 level with moderate right anterior cord compression and right C6 nerve root compression. (R. at 453.) There also was a small central protrusion at the C6-C7 level with no cord or nerve root compression. (R. at 453.) Cervical x-rays showed no spinal instability with flexion and extension. (R. at 454.) A post-myelographic CT scan showed a disc bulge, slightly larger to the left, at the L4-L5 level with mild left L5 nerve root compression, as well as a left foraminal spur at the L5-S1 level, abutting the left L5 nerve root with questionable nerve root compression. (R. at 455.) A lumbar myelogram from the same day showed minor anterior extradural defects at the L4-L5 and L5-S1 levels and minimal lateral recess narrowing bilaterally at the L4-L5 level. (R. at 459, 625.) X-rays of the lumbar spine showed no instability with flexion and extension. (R. at 460.)

         On May 18, 2010, Pope reported neck spasms, low back pain and right lower extremity pain, as well as headaches, but she did not appear to be in any acute distress. (R. at 421.) Her gait was antalgic on the right. (R. at 422.) Her physical examination remained unchanged, as did Dr. Austin's diagnoses of Pope. (R. at 422-23.) Dr. Austin recommended proceeding with cervical surgery, to which Pope agreed. (R. at 423.)

         When Pope saw Dr. David Pryputniewicz, M.D., [6] at Blue Ridge Neuroscience Center, P.C., on June 1, 2010, she reported neck pain and spasms, low back pain and right lower extremity pain, as well as headaches. (R. at 417.) Pope was in no acute distress. (R. at 417.) Her physical examination and diagnoses again remained the same, and she confirmed her desire to proceed with surgery. (R. at 417-19.) On June 2, 2010, Pope underwent a cervical spinal fusion with diskectomy and arthrodesis to correct the C5-C6 level HNP by Dr. Pryputniewicz. (R. at 326, 329-32, 382-88.)

         At a post-operative visit with Dr. Pryputniewicz on June 8, 2010, Pope reported muscle spasms and neck pain, as well as headaches and sleep disturbance due to ongoing symptoms. (R. at 413-15.) Pope's gait was nonantalgic, but she had moderate cervical paraspinous muscle contractions, increased muscle tone in the trapezius, as well as paraspinal musculature, and 5- strength in the right bicep and tricep. (R. at 414.) There was no asymmetry, crepitation, tenderness, masses, deformities or effusions noted. (R. at 414.) An examination of the head and neck revealed rigid cervical collar intact, and strength was full, tone was normal, and no atrophy was noted in the left upper extremity. (R. at 414.) Dr. Pryputniewicz diagnosed a cervical HNP without myelopathy at the C5-C6 level on the right, post-op; cervical stenosis at the C5-C6 level, post-op; neck pain, stable; cervical degenerative disease at the C5-C6 level; a broad-based lumbar HNP at the L4-L5 and L5-S1 levels; lumbar radiculopathy at the L5 level on the right; and low back pain. (R. at 414-15.) He prescribed Valium for muscle spasms. (R. at 415.) Cervical x-rays from that date showed expected immediate post-operative findings. (R. at 446-47.)

         When Pope returned to Dr. Pryputniewicz on July 13, 2010, she reported increased neck pain and stiffness after striking her head on a camper earlier that month. (R. at 410-12.) She also complained of continued generalized weakness of the upper extremities, but improved radiating pain in the upper extremities. (R. at 410.) She denied any specific muscle group weakness or gait abnormalities. (R. at 410.) Pope's gait remained nonantalgic, but she had moderate cervical paraspinous muscle contractions, increased muscle tone in the trapezius and paraspinal musculature and 5- strength globally in the upper extremities with giveaway weakness secondary to pain. (R. at 411.) However, strength was 5, tone was normal, and no atrophy was noted in the lower extremities. (R. at 411.) Dr. Pryputniewicz noted that cervical x-rays revealed bone graft and plating in good position at the C5-C6 level with excellent progression of the fusion. (R. at 411, 445, 622.) Pope's diagnoses remained unchanged, Dr. Pryputniewicz prescribed oxycodone-acetaminophen for pain and Valium for spasm, and she was scheduled for a six- to eight-week course of physical therapy. (R. at 411-12.)

         Pope returned to Dr. Shamiyeh on August 16, 2010, at which time she had a decreased range of motion of the neck. (R. at 557.) She was diagnosed with low back pain. (R. at 557.) Pope began a course of physical therapy on July 21, 2010, continuing through November 12, 2010. (R. at 497-546.) On July 21, 2010, at her initial physical therapy evaluation, she was very reluctant to move and feared reinjuring her neck. (R. at 545.) Brandi Lawson, MPT, Master of Physical Therapy, assessed Pope as having decreased cervical range of motion, decreased shoulder flexibility, decreased upper extremity strength, difficulty sleeping and fear of movement. (R. at 546.) Over her course of treatment, Pope received moist heat, ultrasound, soft tissue massage, therapeutic exercises and electrical stimulation therapy. In August 2010, Pope exhibited increased cervical range of motion, slight improvement in rotation range of motion, increased strength in both upper extremities and decreased muscle tension in her neck and bilateral trapezius areas. (R. at 504-10.) In September 2010, Pope reported soreness from the cervical exercises, increased muscle tension at the left upper thoracic area and a fear that she might have "pulled something" during home exercises. (R. at 523-25.) ...

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