United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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).
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.
History of Treatment.
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.
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.
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.
the course of the treatment reflected in her records, her
pain was effectively managed by a combination of medication,
steroid injections, and radiofrequency
ablation. 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
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
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).
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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).
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.
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' ...