United States District Court, E.D. Virginia, Norfolk Division
instant suit, Marie Bernadette Murphy ("Plaintiff")
challenges the decision of the Commissioner of the Social
Security Administration ("Commissioner" or
"Defendant") to deny her application for Disability
Insurance Benefits. Plaintiff claims complete disability
under the Social Security Act starting on October 9, 2011.
This matter comes before the Court on Plaintiffs Objections
to Magistrate Judge Lawrence R. Leonard's Report and
Recommendation ("R&R") ("Plaintiffs
Objections"). For the reasons stated herein, the Court:
(1) ACCEPTS the R&R, ECF No. 17; (2) AFFIRMS the decision
of the Commissioner; (3) DENIES Plaintiffs Motion for Summary
Judgment, ECF No. 12; and (4) GRANTS Commissioner's
Motion for Summary Judgment, ECF No. 14.
party objects to the recitation of the procedural and factual
background of this case contained in the R&R,
see ECF No. 17 at 2-15, which sets forth, inter
alia, the following facts.
applied for Disability Insurance Benefits ("DIB")
on December 23, 2011. R. at 155-58." In this initial
application, Plaintiff alleged disability from October 9,
2011, due to chronic pain/myofascial pain, cervicalgia,
degenerative disc disease, panic attacks, anxiety, and
depression. Id. Plaintiffs date last insured
("DLI") is June 30, 2012. Id. at 15. To
qualify for DIB, she is required to show disability on or
before that date. 42 U.S.C. § 423(a); 20 C.F.R.
§§ 404.101(a), 404.131(a).
application for DIB was denied March 19, 2012, R. at 101-05,
and denied upon reconsideration on January 7, 2011,
Id. at 110-16. A hearing before the administrative
law judge ("ALJ"), Judge William T. Vest, was held
on December 10, 2013. 14 at 34-71. On February 6, 2014, the
ALJ issued a decision denying Plaintiffs DIB application.
Id. at 10-27. On June 25, 2015, the Appeals Counsel
denied Plaintiffs request for review, making the ALJ's
decision the final decision of the Commissioner. Id.
to 42 U.S.C. § 405(g), Plaintiff timely filed this
action seeking judicial review of the Commissioner's
final decision. ECF No. 1. Plaintiff filed a Motion for
Summary Judgment and a Memorandum in Support on December 30,
2015. ECF Nos. 12, 13. Commissioner filed a Cross-Motion for
Summary Judgment and Memorandum in Support on February 3,
2016. ECF Nos. 14, 15. On February 16, 2016, the Plaintiff
filed a reply brief in support of her Motion for Summary
Judgment and in opposition to the Commissioner's motion.
ECF No. 16. The matter was then referred to United States
Magistrate Judge Lawrence R. Leonard pursuant to: (1) 28
U.S.C. § 636(b)(1)(B)-(C); (2) Rule 72(b) of the Federal
Rules of Civil Procedure; (3) Rule 72 of the Local Rules for
the United States District Court for the " For the
purposes of this Opinion, "R." refers to the
certified administrative record filed under seal on October
30, 2015, which is ECF No. 6 on the docket. Eastern District
of Virginia; and (4) the April 2, 2002, Standing Order on
Assignment of Certain Matters to United States Magistrate
Judges. Judge Leonard issued his R&R with respect to the
parties' opposing motions on June 22, 2016. ECF No. 17.
The R&R recommends that this Court deny Plaintiffs Motion
for Summary Judgment, ECF No. 12; grant the
Commissioner's Motion for Summary Judgment, ECF No. 14;
affirm the final decision of the Commissioner; and dismiss
this matter with prejudice. Id. Plaintiff filed her
objections to the R&R on July 5, 2016. ECF No. 18.
Commissioner responded on July 22, 2016. ECF No. 19.
following recitation is a condensed version of those facts
presented in the R&R, which this Court incorporates
herein. See ECF No. 17 at 3-14. As of Plaintiff s DLI, June
30, 2012, Plaintiff was a forty-one-year-old female who had
graduated from high school and attended two years of college.
R. at 194. She previously worked as a school bus driver
(2005-2007) and a coordinator for Lake Tale Hospital
(1991-2005). 14 In her application, Plaintiff alleged a
disability onset date of October 9, 2011. 14 at 155. She
claims her health conditions became severe enough to prevent
her from working on October 1, 2011. Id. at 193.
However, Plaintiff stopped working more than four years
earlier on May 31, 2007. 14 Plaintiff testified at her
administrative law hearing that she stopped working in 2007
due to "severe pain in [her] lower back, " a
"nervous breakdown, " and family obligations,
including the care of her son. Id. at 40.
relevant medical treatment began with an MRI of her lumbar
spine on May 28, 2010, after she complained of lower back
pain with right sciatica. W. at 560-62. The scan revealed
disc protrusion and bulges at multiple levels, with the most
pronounced protrusion presenting at the L4-L5 vertebrae.
Id. at 561. However, there was no evidence of
significant stenosis. Id.
2010, Plaintiff sough treatment for ongoing pain in her left
foot after stepping on glass; depression with anxiety;
chronic pain in her left foot, back, both hips, and
shoulders; and elevated blood pressure. Id. at 602.
At that time, Plaintiff was diagnosed with depression with
anxiety and chronic pain. Id. On October 9, 2010,
Plaintiff underwent an MRI of her cervical spine, which
identified no disc herniation, stenosis, nor abnormal
enhancement of the spinal cord. Id. at 372.
5, 2011, Plaintiff presented to Mark Kerner, M.D. ("Dr.
Kerner"), at Virginia Orthopedic & Spine Specialists
("VOSS") with complaints of a snapping sensation in
her neck, leaving her with severe neck pain and radiating
left arm pain with a burning numbness in her left arm.
Id. at 557. Dr. Kerner noted that Plaintiff was in
"significant pain, " that she was "almost in
tears, " and that she had "antalgic"
(pain-avoidant) range of motion of her neck. Id.
After examining a CAT scan and a bone scan, Dr. Kerner
determined that both were benign. Id. at 558. Dr.
Kerner did not believe that there was any "true"
bony pathology in Plaintiffs neck. Id. Dr. Kerner
ordered a repeat MRI of Plaintiffs cervical spine due to
Plaintiffs "statements of progressive pain."
31, 2011, Dr. Kerner assessed the repeat MRI. Id. at
556. The scan demonstrated migratory edema within the
vertebral bodies but no evidence of infection or other
pathology. Id. Dr. Kerner concluded that there was
"nothing surgical" in Plaintiffs neck. Id.
Plaintiff returned on June 20, 2011, for Dr. Kerner to review
a CAT scan of Plaintiff s neck. Id. at 555. In a
progress note, Dr. Kerner recorded the following: "I
have not been able to objectify the source of this pain. Her
swallowing studies are normal. Her blood work is normal. The
CAT scan . . . demonstrated no soft tissue injury in the
neck. It does mention abnormalities in the chest[.]"
Id. He then concluded that there was "nothing
with regards to [Plaintiffs] cervical spine ... that explains
her symptomatology." Id.
September 2, 2011, Plaintiff visited Donald Holzer, M.D.
("Dr. Holzer"), at the Bon Secours Neuroscience
Center for Pain Management ("Center for Pain
Management") complaining that her Oxycodone prescription
was losing its efficacy. Id. at 415-20. Plaintiff
reported that she was experiencing the "worst pain ever,
" a 10/10 on the comparative pain scale. Id. at
417. Plaintiff also exhibited tenderness with a decreased
range of motion in her shoulders, elbows, wrists, and lumbar
spine. Id., at 416.
November 2011 and January 2012, Plaintiff continued to
receive treatment and medical testing from a number of
medical care providers, including Lisa Blount, F.N.P.-C, at
VOSS, Id. at 554, and Melissa McCrary, P.A.
("P.A. McCrary"), and Charlotte Kirkman, L.P.N, at
the Center for Pain Management, Id. at 388-401. On
January 30, 2012, Plaintiff returned to VOSS to follow up
with Theresa Jackson, M.D. ("Dr. Jackson").
Id. at 552-53. Dr. Jackson noted that Plaintiff
appeared to have no severe neural foraminal narrowing,
despite the very mild degenerative changes at the C3-4 and
C4-5 levels noted on the MRI. Id. at 552. Dr.
Jackson felt that Plaintiff had a significant myofascial
component to her pain and offered trigger point injections.
Id. Plaintiff declined the injections because she
needed to return home to take care of her children.
Id. Dr. Jackson ordered a home exercise program and
instructed her to follow up. Id. Plaintiff
ultimately underwent the recommended trigger point injections
on May 25, 2012. Id. at 816-17. Dr. Jackson
administered the injections and noted that Plaintiffs
cervical MRI continued to reveal only mild degenerative
changes. Id. at 816.
18, 2012, Plaintiff returned to Dr. Holzer at the Center for
Pain Management. Id. at 665. At this appointment,
Plaintiff continued to complain of severe constant pain on
the left side of the neck, left arm, left shoulder blade, low
lumbar, and right leg with extension to the bottom of the
left foot, both hands, and wrists. Id. Dr. Holzer
reported that, though Plaintiffs current pain medication
regimen reasonably controlled her pain, Plaintiff felt the
need for breakthrough medication. Id. at 665. Dr.
Holzer prescribed hydromorphone, another opiate, for
breakthrough pain. Id. At the conclusion of the
appointment, Dr. Holzer discussed with Plaintiff that,
despite extensive testing, a clear diagnosis was potentially
the July 18, 2012, appointment, Dr. Holzer ordered a repeat
MRI of Plaintiff s cervical and lumbar spines. Id.
at 666. The scan of her lumbar spine revealed overall mild
degenerative disc disease with a mild disc bulge at ¶
4-L5 and a mild disc protrusion at ¶ 5-S1. Id.
at 653, 662. Dr. Holzer also ordered a DXA bone densitometry
test, which proved unremarkable. Id. at 944-46.
31, 2012, Dr. Jackson completed a Medical Source Statement of
Ability to Do Work-Related Activities (Physical) regarding
Plaintiff. Id. at 585. On this evaluation form, Dr.
Jackson opined that Plaintiff could both lift and carry,
"occasionally, " up to fifty pounds, and
"frequently, " up to twenty pounds. Id. He
also opined that Plaintiff could sit, stand, and walk between
thirty minutes and one hour at a time without interruption in
an eight-hour workday. Id. at 586. Dr. Jackson
further concluded that Plaintiff could
"continuously" reach, handle, finger, and feel;
that she could "frequently" push and pull; and that
she could "occasionally" reach overhead,
Id. at 587; but that she could "never"
climb ladders or scaffolds, stoop, kneel, crouch, or crawl,
Id. at 588. Dr. Jackson also noted throughout the
evaluation form that Plaintiff had continued cervical spine
pain. Id. at 585, 587, 590.
October 2, 2012, Plaintiff returned to see Dr. Kerner at VOSS
for complaints of pain. 14 at 814. An MRI of her cervical
spine was "essentially normal[, with]... minor
degenerative chances, but subtle and normal for her age.
There is no focal stenosis or instability or any ostensibly
objective anatomic pathology of significance."
Id. Dr. Kerner indicated that Plaintiff has
"myofascial pain syndrome or fibromyalgia, " but
that there is no surgical solution for her pain as there is
no one anatomic pathology that surgery could address.
Id. at 815. Further, Dr. Kerner stated that
Plaintiffs depression is significant and affects her ability
to deal with pain, and that he did "not believe there is
any true anatomic pathology present that one could directly
relate to any of her complaints in any meaningful way."
Id. From July 2013 through November 2013, Plaintiff
continued to seek medical diagnoses and medications for pain
management. See Id. at 837, 832, 760, 1003, 1006. On
November 26, 2013, ...