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Murphy v. Colvin

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

September 9, 2016

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


         In the 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.

         I. BACKGROUND

         Neither 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.[1]

         A. Procedural History

         Plaintiff 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).

         Plaintiffs 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. at 1-6.

         Pursuant 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.

         B. Factual Background

         The 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.

         Plaintiffs 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.

         In July 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.

         On May 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." Id.

         On May 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.

         On 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.

         Between 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.

         On July 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 impossible. Id.

         Following 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.

         On July 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.

         On 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, ...

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