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Dennis v. Berryhill

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

June 20, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Ivella Dennis seeks judicial review of the Commissioner of Social Security's denial of her claim for disability insurance benefits ("DIB"). Specifically, Dennis claims that the Administrative Law Judge ("ALJ") improperly relied on vocational expert testimony, failed to assess a reduction in work available at the light exertional level, and improperly assessed the credibility both of Dennis' treating physician and of Dennis herself. 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 (C), and Rule 72(b) of the Federal Rules of Civil Procedure.

         After reviewing the parties' briefs and the administrative record of the Commissioner's findings, this Report concludes that the ALJ complied with the law and regulations governing disability benefits under the Social Security Act. Accordingly, for the reasons stated in detail below, this report recommends that the court AFFIRM the final decision of the Commissioner by GRANTING the Commissioner's Motion for Summary Judgment (ECF No. 17) and DENYING Dennis' Motion for Summary Judgment (ECF No. 15).


         On January 14, 2014, Dennis filed an application for DIB. R. at 15. She alleged that she was disabled as of March 27, 2013, due to bulging cervical and lumbar discs, hypertension, insomnia, depression, anxiety, fibromyalgia, and asthma. R. at 284. The state agency denied her application initially and again upon reconsideration. R. at 85-108. Dennis then requested an administrative hearing, which was conducted September 27, 2016. R. at 35-79.

         The ALJ denied Dennis's claims for DIB, finding she was not disabled during the period alleged. R. at 15-26. The Appeals Council denied Plaintiffs request for review. R. at 1-5. Dennis then filed the Complaint in the present action seeking review of the administrative proceedings. Compl. (ECF No. 1).


         Dennis was born on February 10, 1966, and was 50 at the time of the ALJ's decision. R. at 24, 26. She completed high school and some college, and has worked as a licensed practical nurse ("LPN"). See R. at 285. Her medical history and the testimony before the ALJ are summarized here as relevant to her claims.

         a. History of Treatment.

         Dennis alleged she became disabled on March 25, 2013, from a back injury incurred while pushing a dialysis machine at her job as an LPN. R. at 370. As of October that year, she was under the care of a pain management specialist and undergoing physical therapy. Id. She underwent an MRI examination which revealed left for aminal disc protrusion. R. at 412. Her treatment records reflect ongoing treatment for pain in her neck and back throughout the next year. She had bariatric surgery in early 2014 that resulted in significant weight loss. R. at 1613, 1616.

         Dennis' medical records covering the two and a half years between her alleged onset of disability and the hearing generally reflect diagnostic evidence of mild to moderate changes in her back and neck and resulting pain that was effectively managed by physical therapy, medication and injection therapy.

         For instance, her initial MRI, conducted on April 1, 2013, showed a "bulging disc protrusion and/or uncoathrosis at ¶ 5-C6 resulting in moderate left neuroforaminal narrowing." R. at 451. An additional MRI the next month showed "mild bilateral faceopathy and dorsal ligamentum prominence" in L4-L5 and "[m]oderate bilateral faceopathy" and a normal disc in L5-S1. R. at 388. In a December 2014 MRI, she had only mild bulging and arthropathy. R. at 1622-24.

         Over the course of the treatment reflected in her records, her pain was effectively managed by a combination of medication, steroid injections, and radiofrequency ablation.[1] See, e.g., R. at 900-01 (steroid injection decreased pain symptoms as of May 2013); 918-20 ("0/10" pain after course of medication and physical therapy as of June 2013); 928 (capable of completing rowing exercises without pain or compensation in July 2013); 441 (40% pain reduction from percutaneous lumbar facet medial branch radiofrequency ablation in February 2013); 1785-89 (pain reported as "minimal" in October 2014 following significant weight loss from bariatric surgery); 1763-67 ("feeling great" in February 2015 after lumbar facet ablation with pain reported as 3/10 with medication).

         Dennis was also consistently found to have generally good strength in her extremities. E.g. R. at 577 (upper extremities in April 2013); 403 (5/5 in all muscle groups except 4/5 in wrist extensors in July 2013); 629-30 (full strength in July 2013); 425 (4/5 strength in wrist extensors); 1828 (full strength in legs and arms in April 2014).

         The medical records most relevant to Dennis' present claims are those from treatment with her primary care physician, Dr. Elaine M. Colby, who practiced with the 59th Medical Wing at Lackland Air Force Base in Texas. Dennis faults the ALJ for not according more weight to the opinions Dr. Colby expressed on a series of disability evaluation forms she completed in 2013. Pl.'s Br. at 10-24 (ECF No. 16).

         On May 10, 2013, Dr. Colby filled out a Medical Request Form, to be submitted to an insurance company in connection with Dennis' disability claim. R. at 390. On that form, Dr. Colby diagnosed Dennis with cervical radiculopathy, resulting in severe neck pain, which radiated down her arms and created numbness and tingling, Id. Dr. Colby wrote that Dennis could not lift, push, or pull because of her pain. Id. Dr. Colby said the pain would keep her out of work until at least June 2013 if accommodations were made for her pain when she turned her neck and flexed her neck and at least until July 2013 if no accommodations were made. On July 2, 2013, on a similar form, Dr. Colby reiterated her previous opinions but revised her estimate regarding when Dennis could return to work: she expressed doubt as to whether Dennis could return to work because her job in the healthcare industry required frequent lifting, pushing, and pulling. R. at 389. In October 2013, Dr. Colby wrote a letter to an unknown addressee opining, that

Currently [Dennis] is unable to walk, stand, or sit more than 10 minutes at a time before needing to change position or rest. She is unable to do fine manipulation of her hands for more than 5 minutes before needing to rest. She is unable to bend, squat, stoop for more than 5 minutes. She is also unable to lift, push, pull or carry more than 5 [pounds] due to pain and paresthesias in her neck and left arm resulting from cervical radiculopathy.

R. at 391.

         These three documents contain the opinions Dennis claims the ALJ did not give due weight to when developing his finding regarding her RFC. Pl.'s Br. at 10-24 (ECF No. 16). However, Dr. Colby also produced many treatment records, the contents of which the ALJ cited in evaluating the conclusions Dr. Colby articulated in the disability forms and medical source statement. Moreover, Dennis' back pain was primarily treated by specialists, including pain management specialists Dr. Yuril Borshch and Physician Assistant Derek Rigby at Precision Spine and Pain Management. The court will review those records in more detail here because the ALJ relied on these records in discounting Dr. Colby's opinions about Dennis' functional limitations.

         On April 22, 2013, Dr. Colby examined Dennis and noted a slightly decreased range of motion in her cervical spine, no spinous process tenderness, mild tenderness to pressure in the paraspinous muscles and trapezius, and full strength in her upper extremities. R. at 577. Dennis reported to Dr. Colby it was "somewhat difficult" to take care of things at home. Id.

         On May 10, 2013, Dr. Colby examined Dennis again. Dennis reported to her that her pain had "improved" after taking pain medication. R. at 570. Dennis complained of being unable to work as a nurse because she could not push a heavy dialysis machine or lift patients. Id. She also complained of not being able to drive because of pain when she attempted to turn her head. Id. Dr. Colby does not record any physical examination on this visit that corroborated Dennis' complaints. R. at 569-71. Dr. Colby recorded Dennis was able to do moderate exercise for 30 minutes most days of the week. R. at 571.

         On July 3, 2013, Dennis saw PA Rigby. R. at 402. PA Rigby conducted a physical examination. Id. He found little of note in her cervical spine except tenderness over her paraspinous soft tissue on the left side and limited cervical flexion due to pain. In her lumbar spine, she was limited by pain in flexion, extension, and rotation. R. at 403. She did, however, have full muscle strength in her lumbar spine and no difficulty walking. Id. He prescribed a cervical epidural steroid injection and a lumbar facet medial branch block. Id.

         On July 8, 2013, Dr. Colby saw Dennis again. Dennis reported another onset of pain within the last three to four days, attributing it to a physical therapy session on July 5, 2013. R. at 550-51. She reported her pain was 8/10. R. at 551. Dennis reported that she had chronic pain in her lower back that had worsened "over the last few months." Id. Dennis reported pain on her left side that worsened with movement but improved with medication. Id. Dr. Colby examined Dennis on this occasion and noted reduced range of motion in her cervical spine, no spinous process tenderness, and mild tenderness to pressure in the paraspinous muscles and trapezius. Id. Dennis reported she was no longer doing moderate exercise for 30 minutes most days of the week. Id. PA Rigby saw Dennis again on July 31, 2013, after she received a cervical epidural steroid injection. R. at 407. Dennis reported significant a "40-50%" decrease in pain and a "25%" increase in her ability to perform activities of daily living. Id. On August 8, 2013, Dr. Borshch administered Dennis a diagnostic lumbar facet nerve block, which reduced her pain 70%. R. at 414, 417.

         In two appointments on 4 and 17 October 2013, Dr. Colby made notes regarding Dennis' pain at that time. She noted Dennis complained of only being able to walk for 5-10 minutes. R. at 512. Dennis also said she could only do limited household tasks due to pain. Id. Dennis said she felt unable to return to work as a dialysis nurse because the pain kept her from being able to lift patients and the dialysis machine. Id. Again, Dr. Colby's notes reflect no physical examination that corroborated Dennis' complaints. See R. at 510-20.

         On 22 October 2013, during a follow-up appointment to an emergency room visit for pain, Dennis complained of severe, sudden-onset neck pain on her left side. R. at 489. Dr. Colby's examination revealed limited cervical spine flexion and lateral rotation due to pain. R. at 491. Two days later, Dennis reported her pain had diminished after taking pain medication. R. at 488. On 24 October, 2013, Dennis reported her pain was 5/10. R. at 484.

         On October 30, 2013, Dennis received another cervical epidural steroid injection from Dr. Borshch. R. at 426. Nearly three weeks later, she reported 50% improvement in her pain score with 10% improvement in her ability to conduct daily activities. R. at 429. On December 27, 2013, Dennis received lumbar facet radiofrequency ablation. R. at 439. This resulted in a 40% reduction in pain and a 10% improvement in her ability to conduct daily activities. R. at 441.

         On January 3, 2014, Dr. Colby recorded Dennis' report that her pain had improved to the point where she could lift ten pounds, walk for 20-30 minutes, and "do more chores around the house." R. at 470-71. Again, Dr. Colby recorded no physical examination results corroborating Dennis' reported functional limitations. See id.

         On February 11, 2014, Dennis was examined by Dr. Borshch and PA Rigby together. R. at 441-43. She had non-radiating neck pain, walked normally, and had a normal range of motion except for some limitations in her cervical spine. R. at 441-42. Throughout the spring of 2014, Dennis reported multiple times that her injection therapy and physical therapy were relieving her pain. See, e.g.. R. at 1598 (Mar. 11, 2014), 1601 (Mar. 26, 2014), 1604 (Apr. 28, 2014), 1613 (May 29, 2014).

         On April 24, 2014, Dr. Colby saw Dennis for complaints of dizziness and excessive sweating. R. at 1825-28. Dennis reported 0/10 pain. R. at 1826. She reported having no generalized pain. R. at 1827. Dr. Colby performed a physical examination of her and recorded that Dennis had no mobility limitations. Id. She also reported normal strength in all extremities.

         On May 4, 2014, Dr. Colby saw Dennis to follow up on her back and neck pain. R. at 1817. Dennis complained of "on and off pain and reported she felt 7/10 pain on that day. R. at 1818. Dennis also reported doing moderate exercise for 30 minutes most days of the week. R. at 1820. Dr. Colby conducted a physical examination. The only recorded results of that examination related to Dennis' ...

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