United States District Court, E.D. Virginia, Newport News Division
MAGISTRATE JUDGE'S REPORT AND
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE
Marisa Arnetta Mae Mann ("Mann") seeks judicial
review of the Acting Commissioner of the Social
Security's ("Commissioner") decision denying
her claim for Supplemental Security Income ("SSI")
under Title XVI of the Social Security Act. Mann claims the
Administrative Law Judge ("ALJ") erred by
improperly analyzing medical evidence to find Mann was not
disabled in an opinion issued April 12, 2017. In support of
her claim in this court, Mann has submitted additional
evidence that is not included in the administrative record.
This action was referred to the undersigned United States
Magistrate Judge pursuant to the provisions of 28 U.S.C.
§§ 636(b)(1)(B), and Rule 72(b) of the Federal
Rules of Civil Procedure. Because the ALJ did not err in
evaluating Mann's impairments and the additional evidence
does not justify remand under 42 U.S.C. § 405(g), the
undersigned RECOMMENDS that final decisions of the
Commissioner be affirmed by GRANTING the Commissioner's
Motion (ECF No. 13) and DENYING Mann's Motion (ECF No.
filed an application for SSI and Disability Insurance
Benefits ("DIB") on September 13, 2013, alleging a
disability onset date of November 6, 2010. (R. 14, 119). The
Social Security Administration ("SSA") denied
Mann's DIB claim because she had not earned sufficient
work credits to qualify, (R. 122, 128), and her SSI claim
because she was not "disabled or blind" under their
rules. (R. 126). Asserting that she was "unable to work,
" Mann requested reconsideration of her SSI claim but
did not seek further review of her DIB claim. (R. 131). The SSA
affirmed the initial decision upon reconsideration, (R. 135),
and Mann requested an administrative hearing, which occurred
on March 7, 2017. (R. 14).
determined that Mann was not disabled within the meaning of
the Social Security Act and denied her claim for benefits.
(R. 29). The Appeals Council declined to review the ALJ's
decision, making the ALJ's decision the final decision of
the Commissioner. (R. 1). Mann filed this action seeking
judicial review of the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g). This case is now before
the court in order to resolve the parties' cross-motions
for summary judgment.
was born in 1977, and was 33 years old at the alleged onset
date of November 6, 2010, and 36 years old on the date of her
application for benefits on September 13, 2013. (R. 87). She
earned a GED, and is close to earning an associate's
degree, but stopped taking courses due to trouble
understanding math and financial issues. (R. 22, 40-41). Mann
has not worked since 2006, and a prior ALJ found she had no
past relevant work experience in a decision dated November 5,
2010, which was not appealed. (R. 27).
Relevant Medical and Treatment History
complains of many medical conditions, but the record reflects
major complaints of pain in her back and legs, chronic
headaches, dizziness, and mental impairment, which she claims
prevents her from working, sitting, or standing for any
significant period. Pl.'s Mot. Summ. J. (ECF No. 3-1 at
1-2); (R. 21).
Back and Spinal Treatment
record shows Mann has complained of back pain from at least
February 9, 2010, which she treated with non-steroidal
anti-inflammatory drugs (NSAIDs), stretching, and yoga.
(See, e.g., R. 446). In October 2013, her
treating physician ordered a lumbar spine x-ray and referred
her to an orthopedist. (R. 413). The x-rays obtained five
views of the lumbar spine, which showed degenerative disc
disease at ¶ 5-S1 but "otherwise normal lumbar
spine series with no acute findings." (R. 495). The
orthopedist discussed surgery and epidural injections as
treatment options, and referred Mann for further evaluation.
received that evaluation from Dr. Cohen, an orthopedic
surgeon at VCU Medical Center, Richmond, Virginia, on
February 28, 2014. Dr. Cohen suggested three options: Ms.
Mann could continue to live with the pain, attempt steroid
injections, or undergo surgery as a "last resort."
(R. 725-26). Mann elected to have an MRI performed, and a
follow-up MRI on March 18, 2014, before making a decision.
(R. 725-28). The MRIs showed "mild degenerative changes
in the L4-5 disc, and . . . moderate degenerative changes in
the L5-S1 disc." (R. 728). Specifically, the doctor
noted disc herniation at both L4-5 and L5-S1 and moderate
spinal stenosis at ¶ 4-5. (Id.)
elected to have steroid injections, receiving one on April
16, 2014, and another on October 24, 2014. (R. 729, 731).
Despite the injections, Mann continued to experience back
pain, and Dr. Cohen discussed various surgical options on
June 20 and September 19, 2014, as a result of severe
degenerative changes, but Mann deferred any action. (R. 721,
723). Mann returned to Dr. Cohen on August 3, 2015, again
complaining of back pain. Although she complained of
persistent pain, Dr. Cohen noted she had 5/5 motor strength
in her extremities, no sensory deficits, a negative straight
leg raise test, and full range of motion in her hips without
symptomatology. Dr. Cohen restated the original three options
(do nothing, steroid injections, or surgery), and suggested
an additional MRI to determine if her condition was
worsening. (R. 719). Compared to the March 18, 2014, MRI, the
new MRI had "not significantly changed." (R. 735).
addition to these visits, Mann frequently sought treatment
for back pain at other locations during the same period.
While she had a restricted range of motion in her lumbar
spine due to pain, (see, e.g., R. 725), and
a painful straight leg raise, (see, e.g.,
R. 700), Mann regularly showed full strength, no sensory
deficit, symmetric reflexes, and ambulated with normal gait
and station. (See R. 412, 434, 616, 682, 700, 719, 721, 723,
725, 777). On June 4, 2014, Mann's primary care
physician, Dr. Robertson at the Lackey Free Clinic in
Yorktown, Virginia, declined to write a letter for Ms. Mann
stating she was unable to work because he did not believe her
back symptoms were disabling. (R. 634-35).
the years, Mann has treated her back pain with a variety of
medications. In September 2013, she reported needing to take
Naproxen twice a week, and her nurse practitioner prescribed
Cyclobenzaprine, a muscle relaxant, in addition to the
Naproxen. (R. 423, 425). On March 24, 2014, Mann reported she
took Naproxen once or twice a month for her back pain. (R.
638). On April 16, 2014, she received a steroidal injection
for her back pain. (R. 729). Mann reported that injection did
not help her pain. (R. 723). Mann received a second steroid
injection on October 24, 2014. (R. 651). She testified that
the second injection "hit a nerve" and "it
seemed like it worked for . . . an hour" before wearing
off. (R. 21, 43). On January 8, 2015, Mann reported that
Naproxen was controlling her back pain. (R. 682). Mann
reported taking Ibuprofen for lower back pain in May and
September 2016. (R. 312, 775). Ibuprofen was the only
medication for Mann's back pain on the most recent
medication list submitted at the hearing level. (R. 312).
Mann also testified she was only treating her back pain with
Ibuprofen at the time of her hearing. (R. 43).
Headache and Dizziness Treatment
October 2, 2012, Mann reported daily headaches that were
significant once or twice a year. (R. 436). She sought
treatment for a headache at Mary Immaculate Hospital's
emergency department on January 27, 2013. (R. 369). In
September 2013, Mann complained of daily headaches and
reported visiting the hospital due to headaches twice in the
last six months. (R. 423-25). On March 24, 2014, she reported
having headaches once or twice a month. (R. 638) Two days
later, Mann returned to the emergency department of Mary
Immaculate Hospital reporting dizziness, abdominal pain, and
a headache. (R. 758). Dr. Robertson noted that Mann's
headaches "seem to have resolved for the most part"
in June 2014. (R. 635).
January 2015, Mann reported "having headaches 1-2 times
per year since she was 17, " but that her headaches had
declined after she changed her diet and stopped eating meat.
(R. 681). A year later, Mann returned to Mary Immaculate
Hospital's emergency department a third time, complaining
of a headache. (R. 769-74). After taking a non-narcotic pain
medications, her headache improved and she was discharged.
first reports show she self-treated her headaches with
Vicodin she "[got] from a friend" between October
2, 2012, and January 14, 2013. (R. 433, 436). On January 27,
2013, Mann refused a prescription for Imitrex to treat her
headaches, fearing the side effects. (R. 423, 428-29). Mann
reported taking Aspirin for her headaches in March 24, 2014,
but her nurse practitioner suggested switching to Tylenol
because Mann was experiencing abdominal pain. (R. 638, 640).
When she sought treatment two days later, she was given
Torador and Tylenol. On Mann's last visit to
the emergency department, in January 2016, she requested
stronger medication than those initially recommended by her
treating physician's assistant but agreed to a
"non-narcotic [headache] cocktail, " instead. (R.
769, 772-73). Upon discharge, she was given a prescription
for Motrin. (R. 773). On the last medication list submitted
for her hearing, Mann reported taking Topamax once a day for
migraine prevention. (R. 312).
Mental Health Treatment
sought mental health treatment from Catholic Charities of
Hampton Roads between October 2008 and November 25, 2013. (R.
499, 515-516). In 2008, she was diagnosed with several
learning issues and Major Depressive Disorder. (R. 499). Mann
did not seek treatment for some diagnoses and received
minimal treatment for depression when she resumed therapy in
2013. (See R. 568-80). In October 2013, she denied
having depression, (see R. 411, 576; but see R. 573
(discussing her complaints of depressive symptoms)), and has
not sought further medical treatment. (R. 45).
therapist for Mann's initial session in September 2013
noted her appearance, speech, behavior/activity, thought, and
concentration as normal; her judgment was good, and her
insight was fair. (R. 569). Mann regularly arrived to
scheduled appointments on time with good hygiene, appropriate
dress, and a cooperative mood. (See, e.g.,
2008, Mann's Verbal IQ and full scale IQ were in the low
average range, her performance IQ was average, and her Global
Assessment of Function (GAF) score of 60 indicated moderate
functional difficulties. (R. 319-20). Her other GAF scores
were consistently in the 50s or 60s, including her scores of
55 in 2013. (R. 510, 569, 580).
Mann's limitations, she reported living with, and taking
care of, her daughter, handling her personal care, and
independently completing household chores. (R. 500).
Medical Source Opinions and Administrative Hearing
source opinions from Agency consultants at both the initial
and reconsideration level found that Mann had four medically
determinable impairments: (1) Disorders of Muscle, Ligament
and Fascia; (2) Affective Disorders; (3) Anxiety Disorders;
and (4) Learning Disorder. (R. 92, 108). Both reports found
that the first two impairments were "Severe, "
while the last two were "Non Severe."
(Id.). But both also "determined that
[Mann's] condition is not severe enough to keep [her]
from working." (Id.).
making this determination, the medical source opinions placed
particular weight on Mann's activities of daily living
(ADLs), precipitating and aggravating factors, and treatment
other than medication. (R. 94, 110). Based on that evidence,
the reports determined Mann's allegations were
"Partially Credible." (Id.). The initial
report found Mann's sustained exertional capability as
medium, (R. 99), but the reconsideration report reduced her
to light capability due to additional medical evidence. (R.
116). Specifically, the reconsideration report by Dr. Robert
Weisberg concluded that Mann was capable of light work with
some postural limitations. (R. 26, 111-15). Dr. Weisberg
found Mann could occasionally lift and carry twenty pounds,
sit or stand for six hours in an eight-hour workday, but was
limited in stooping, climbing, crawling, and pushing and
pulling due to her back pain. (R. 111-12).
hearing before the ALJ, Mann testified that she had not
worked since 2006 and was not seeking work because of her
"severe pain" and migraines. (R. 42). She alleged
the severity of the pain prevented her from grocery shopping,
and when she did attempt to shop, she needed "three or
four days" to recover. (Id.). To treat the
pain, she took 800-milligram Ibuprofen, which she
"double[d] up." (R. 43). She previously treated the
back pain with Vicodin, but her clinic no longer prescribed
that medication. (Id.). She also tried physical
therapy, but stopped when it exacerbated her back pain.
the course of her treatment, Mann received two steroid
injections for her back pain. (Id.). She testified
that the first steroid injection "didn't help at
all, " and the second "seemed like it worked for
... an hour ... but after that... it didn't relieve any
of the pain." (Id.). Mann testified that
surgery was her only other option, and that her physician
told her "at some point [she would] not be able to put
it off due to the progression of her degenerative disc
disease. (R. 44). Because of her back pain, she claimed to
have a limited ability to bend, rotate, walk, twist, or lift
more than six pounds. (R. 45). She claimed that limited her
ability to clean and shop for groceries, but admitted to
performing both of those tasks regularly. (R. 44-47).
also testified she occasionally experienced headaches severe
enough that she sought treatment at the emergency room, and
headaches that would prevent her from working once or twice a
month. (R. 44-45). Finally, Mann testified that her learning
disabilities were a factor in not completing her
associate's degree, (R. 48), that she felt depressed
because of how young she developed degenerative disc disease
and the social isolation her pain caused, (R. 51), and that
she had a limited ability to be around other people,
including family, because of decreased tolerance when she is
in pain. (R. 53).
mother, Betty Mann, also testified at the hearing. Mann's
mother testified that Mann came to visit a couple of times
each week, during which she would spend the majority of the
time propped up in a second bedroom. (R. 57-58). During those
visits, Mann would look like she was in pain and would
verbally express her pain. (R. 58). Mann's mother
supported Mann's testimony that her pain made her
irritable and affected her relationship with others. (R. 59).
She also ...