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Montgomery v. Colvin

United States District Court, N.D. West Virginia, Martinsburg

March 3, 2017

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




         On April 14, 2016, Plaintiff Sandra Montgomery (“Plaintiff”), through counsel Scott B. Elkind, Esq., filed a Complaint in this Court to obtain judicial review of the final decision of Defendant Carolyn W. Colvin, [1] Commissioner of Social Security (“Commissioner” or “Defendant”), pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) (2015). (Compl., ECF No. 1). On June 16, 2016, the Commissioner, through counsel Helen Campbell Altmeyer, Assistant United States Attorney, filed an Answer and the Administrative Record of the proceedings. (Answer, ECF No. 6; Admin. R., ECF No. 7). On July 18, 2016, and August 16, 2016, Plaintiff and the Commissioner filed their respective Motions for Summary Judgment and supporting briefs. (Pl.'s Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 10; Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 13). The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR Civ P 9.02(a). For the reasons set forth below, the undersigned finds that substantial evidence supports the Commissioner's decision and recommends that the Commissioner's decision be affirmed.


         On or about April 15, 2013, Plaintiff protectively filed a Title II claim for disability and disability insurance benefits (“DIB”) and a Title XVI claim for supplemental security income (“SSI”) benefits.[2] (R. 16, 216, 218). In both claims, Plaintiff alleges disability that began on February 13, 2013.[3] (R. 16, 218, 224). Because Plaintiff's earnings record shows that she acquired sufficient quarters of coverage to remain insured through September 30, 2014, Plaintiff must establish disability on or before this date. (R. 17). Plaintiff's claim was initially denied on June 5, 2013, and denied again upon reconsideration on August 9, 2013. (R. 133, 145). After these denials, Plaintiff filed a written request for a hearing. (R. 16, 151).

         On October 14, 2014, a video hearing was held before United States Administrative Law Judge (“ALJ”) Jeffrey J. Schueler in Roanoke, Virginia. (R. 16, 30, 176). Mark Hileman, an impartial vocational expert, appeared and testified in Roanoke. (R. 16, 30, 200, 203). Plaintiff, represented by Stephen F. Shea, Esq., appeared and testified in Martinsburg, West Virginia. (R. 16, 30). On November 26, 2014, the ALJ issued an unfavorable decision to Plaintiff, finding that she was not disabled within the meaning of the Social Security Act. (R. 13). On February 11, 2016, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (R. 1).


         A. Personal History

         Plaintiff was born on June 7, 1971, and was forty-one years old at the time she filed her claims for DIB and SSI benefits. (See R. 85). She is 5 feet tall and weighs approximately 110 pounds. (R. 278). She lives in a house with her boyfriend. (R. 257, 287, 310). She completed school through the twelfth grade but has not received any specialized, trade or vocational training. (R. 279). Her prior work experience includes working as a food prep and sandwich maker, general warehouse laborer, deli clerk and activities aide for a nursing home. (R. 51). She alleges that she is unable to work due to the follow ailments: (1) a bulging disc and pinched nerve; (2) spinal stenosis; (3) carpal tunnel syndrome; (4) degenerative joint disease and (5) cardiac regurgitation. (R. 278, 299).

         B. Medical History

         1. Medical History Pre-Dating Alleged Onset Date of February 13, 2013

         On July 12, 2010, Plaintiff presented to the Shenandoah Community Health Center, where she received primary care. (R. 532). During this visit, Plaintiff complained of, inter alia, neck pain. (Id.). She explained that she suffers from congenital spinal stenosis and had undergone neck surgery in August of 2009 in an attempt to treat the pain. (Id.). After an examination, Plaintiff was diagnosed with degenerative disc disease of the cervical spine and prescribed hydrocodone, Mobic and Flexeril for her pain. (R. 534-35).

         On August 9, 2010, Plaintiff returned to the Shenandoah Community Health Center, complaining of back pain. (R. 529). She stated that, like her neck pain, her back pain is caused by her spinal stenosis. (Id.). After an examination, Plaintiff's pain medications were changed to Flexeril and sulindac. (R. 531).

         On September 12, 2011, Plaintiff presented to the Panhandle Neurology Center, Inc., complaining of a sleep disorder. (R. 498). Plaintiff was evaluated by Karoly Varga, M.D. (Id.). Plaintiff stated that, since her childhood, she has kicked, talked, thrashed and tossed and turned in her sleep. (Id.). She also stated that she “[h]as been known to sleep walk.” (Id.). Dr. Varga diagnosed Plaintiff with periodic limb movement disorder and somnambulism. (R. 500). To treat these sleep disorders, Dr. Varga prescribed Klonopin. (Id.).

         On September 30, 2011, Plaintiff returned to Dr. Varga's office for a follow-up appointment. (R. 501). During this appointment, Dr. Varga documented that Plaintiff was experiencing a “good response” to Klonopin but that she was requesting a refill ten days early. (Id.). Dr. Varga further documented that Plaintiff would take an extra dose of Klonopin to fall asleep, even though Klonopin is not a sleeping pill. (Id.). Dr. Varga refilled Plaintiff's Klonopin prescription although he instructed Plaintiff that, if she continued to request early refills, then he would discharge her from his services. (R. 503).

         Plaintiff continued to seek follow-up care from Dr. Varga over the following months. On December 8, 2011, Plaintiff informed Dr. Varga that “[e]verything [was] good.” (R. 504). On January 13, 2012, Plaintiff informed Dr. Varga that the Pain Management Center in Winchester, Virginia, where she received treatment for chronic pain, was opening a satellite office near her home and requested that Dr. Varga take over her pain treatment until the opening of the office. (R. 507, 509). Dr. Varga stated that he would consider doing so and prescribed Neurontin, Mobic and Flexeril for Plaintiff's pain. (R. 509). Dr. Varga also referred Plaintiff for aquatic therapy. (Id.). On February 10, 2012, Dr. Varga noted that Plaintiff had been receiving epidural steroid injections in her lower back from Dr. Gallagher at Fast Track Pain Management. (R. 510). Dr. Varga further noted:

Asked specifically about if she has been to Urgent Care, ER or [a primary care physician] for pain meds since she stopped seeing Dr[.] Gallagher: ‘I think maybe I went to the ER once.' . . . Reviewed Boar of Pharm: shows suspicious behavior. Pt didn't recall but one visit to ER for pain meds (has multiple visits and [prescriptions]). Will not [prescribe] narcotics.

(R. 510, 512). After documenting that Plaintiff “didn't go” to her aquatic therapy referral, Dr. Varga discontinued Plaintiff's Mobic prescription[4] but refilled her Neurontin and Flexeril prescriptions. (R. 512).

         On March 19, 2012, Plaintiff presented to the emergency room at Berkeley Medical Center, complaining of chronic back pain. (R. 361). Plaintiff stated that she “d[idn't] have” a primary care physician because she “lost her medical card.” (Id.). After an examination, Plaintiff was diagnosed with acute exacerbation of chronic low back pain. (R. 363, 369). She was provided prescriptions of Flexeril and Naprosyn and instructed to soak in warm water as needed for her pain. (R. 363-64).

         Plaintiff presented to the emergency room at Winchester Medical Center periodically over the following months. On April 12, 2012, Plaintiff complained of a two- week-long headache that resulted from hitting her head on a table. (R. 402-03). After a CT scan of her head revealed no abnormalities, Plaintiff was diagnosed with an acute headache and prescribed Motrin and Tylenol #3. (R. 404-05, 410-11). On November 17, 2012, Plaintiff reported that she was prescribed tramadol for back pain but that the tramadol was “not working” and had caused a rash on her arms and back. (R. 394-95, 398). Therefore, Plaintiff was provided Benadryl and prednisone for the rash and Norco for her back pain. (R. 397). On December 24, 2012, Plaintiff complained of pain and a “tingling” sensation in her back. (R. 384-85). After being diagnosed with acute low back pain with radiculopathy, Plaintiff was prescribed, inter alia, Norco for her pain. (R. 386). Plaintiff was also scheduled for an MRI of her lumbosacral spine, which revealed:

1. At ¶ 4-L5, there is mild to moderate spinal stenosis resulting from a posterior disc bulge and ligamentum flavum and facet hypertrophy and moderate biforaminal narrowing, right worse than on the left.
2. At ¶ 3-4 and L5-S1, there is mild posterior disc bulging and bilateral facet hypertrophy.
3. Additional degenerative changes as described above.
4. When compared to the prior MRI scan of the lumbosacral spine from February 1, 2009, there is no definite interval change.

(R. 382-83).

         On February 20, 2013, Plaintiff presented to the emergency room at Berkeley Medical Center, complaining of severe left flank pain. (R. 350-51). After an examination, a CT scan of Plaintiff's abdomen/pelvis was ordered, the results of which were normal. (R. 250-51). Therefore, Plaintiff was diagnosed with back/flank pain and prescribed Norco for her pain. (R. 356). Plaintiff was also instructed to apply ice/heat as needed to her back/flank and to follow-up with a primary care provider. (Id.).

         2. Medical History Post-Dating Alleged Onset Date of February 13, 2013

         On March 4, 2013, Plaintiff presented to the Shenandoah Community Health Center to re-establish care. (R. 413). During this visit, Plaintiff complained of worsening chronic back pain and requested a referral for pain management. (Id.). During an examination, a cardiac murmur was discovered. (R. 415). Therefore, an echocardiogram was ordered, which revealed, inter alia, mild aortic regurgitation. (R. 359). At the end of the examination, Plaintiff was diagnosed with spinal stenosis, degenerative disc disease of the cervical spine and an aortic valve disorder. (R. 416). Plaintiff was noted to be a smoker and was encouraged to quit smoking. (Id.). Plaintiff was prescribed Flexeril and Sulindac for her pain and referred to pain management. (Id.).

         On April 2, 2013, Plaintiff presented to the emergency room at Winchester Medical Center, complaining of neck pain and left arm numbness. (R. 372-33, 376). After an examination, Plaintiff was diagnosed with acute neck pain with radiculopathy. (R. 372). Plaintiff was prescribed Flexeril for her pain and scheduled for an MRI of her cervical spine, which revealed “[n]o acute abnormality with stable chronic changes.” (R. 375, 378, 380).

         On May 9, 2013, Plaintiff presented to the Center for Orthopedic Excellence, complaining of bilateral wrist and arm numbness and tingling. (R. 473). Plaintiff stated that the numbness and tingling began in 2008 but was “getting worse.” (Id.). Plaintiff also stated that her left arm symptoms were more severe than her right arm symptoms. (Id.). Thomas E. Knutson, Jr., D.O., evaluated Plaintiff on this occasion. (Id.). Dr. Knutson diagnosed Plaintiff with paresthesias of the upper extremities and ordered nerve conduction tests. (Id.). When Plaintiff subsequently underwent the nerve conduct tests, the tests revealed “bilateral median neuropathies at the wrists[, ] . . . ulnar neuropathies across the elbows . . . [and] chronic bilateral multilevel C radiculopathies.” (R. 427).

         In May of 2013, Plaintiff presented to an emergency room at an unspecified hospital, complaining of right hip pain. (R. 421). Plaintiff was diagnosed with right hip arthritis and referred to Nyagon G. Duany, M.D., an orthopedic specialist. (Id.). On May 16, 2013, Plaintiff presented for her referral appointment. (Id.). After an examination, Dr. Duany confirmed the diagnosis of right hip arthritis and prescribed naproxen and a Medrol Dosepak. (Id.). Dr. Duany also referred Plaintiff to physical therapy. (Id.). Finally, Dr. Duany noted that Plaintiff was “not interested in surgery” and that, therefore, she was only being treated “conservatively.” (Id.).

         On May 20, 2013, Plaintiff presented to Dr. Varga's office to re-establish care. (R. 424). Plaintiff stated that she had stopped seeking treatment because she lost her medical card. (Id.). Plaintiff further stated that her Klonopin prescription, which Dr. Varga had previously ordered, “had controlled [her] symptoms well” and that she wanted another prescription, which Dr. Varga provided. (R. 424, 426).

         On June 13, 2013, Plaintiff returned to Dr. Knutson's office for a follow-up appointment. (R. 461). During this appointment, Dr. Knutson diagnosed Plaintiff with carpal tunnel and cubital tunnel syndromes and scheduled her for surgery. (Id.). On July 2, 2013, Plaintiff presented to the Tri-State Surgical Center, where Dr. Knutson performed a carpal tunnel release of Plaintiff's left wrist and an ulnar nerve decompression of her left elbow. (R. 430, 432, 477). Afterward, Dr. Knutson documented that Plaintiff had “tolerated the procedure well without complications.” (R. 478). When Plaintiff presented to Dr. Knutson's office for a follow-up appointment after the surgery, Dr. Knutson recorded that Plaintiff was doing well overall and that her paresthesias were gradually improving. (R. 471).

         Plaintiff presented to Dr. Varga's office several times in the late months of 2013. On August 1, 2013, Dr. Varga prescribed Flexeril and refilled Plaintiff's prescription of Klonopin. (R. 490, 492). On August 27, 2013, Dr. Varga noted that Plaintiff's somnambulism was “doing better” and that Plaintiff was sleeping restfully at night. (R. 487). Dr. Varga further noted that Plaintiff's spinal stenosis is her “major problem.” (Id.). In addition to Plaintiff's Flexeril and Klonopin prescriptions, Dr. Varga started Plaintiff on a trial of naproxen and referred her for aquatic therapy. (R. 489). After Plaintiff presented for her aquatic therapy initial evaluation, she was ordered to participate in therapy twice a week for four weeks. (R. 485-86). On December 2, 2013, Dr. Varga documented that Plaintiff was “happy with [her] current treatment plan.” (R. 566).

         On January 18, 2014, Plaintiff presented to the Berkeley Medical Center for a CT scan of her lumbar spine. (R. 569). The results of the CT scan showed: “[(1)] moderate disk bulge at ¶ 4-L5, causing mild spinal stenosis[; (2)] . . . mild bilateral neural foraminal narrowing . . . [and (3)] a mild disk bulge at [the] ¶ 5-S1 level without any [resulting] spinal stenosis or neural foraminal narrowing.” (Id.).

         Plaintiff continued to seek treatment from Dr. Varga in 2014. On February 25, 2014, Dr. Varga documented that aquatic therapy “didn't help” Plaintiff. (R. 572). Dr. Varga further documented that Plaintiff's left hand was still going numb and that her arm was sore, which was waking her up at night “a lot.” (R. 570). On May 27, 2014, Dr. Varga recorded that Plaintiff requested to try tramadol again and that he had prescribed the medication. (R. 537, 575). On August 27, 2014, Dr. Varga documented that Plaintiff was continuing to have problems with restless legs at night and that Klonopin only helped at times. (R. 576). Dr. Varga further documented that Plaintiff was experiencing more problems with her left arm and that she was unable to hold a phone. (Id.). Dr. Varga continued Plaintiff's prescriptions of Klonopin, Flexeril and tramadol because “[they] seem[ed] to hold her most of the time.” (R. 578). However, Dr. Varga hesitated to prescribe Norco, as requested by Plaintiff, pending a urine drug screen and a patient-physician narcotic contract. (Id.).

         3. Medical Reports/Opinions

         a. Disability Determination Explanation by Saima Noon, M.D., June 4, 2013

         On June 4, 2013, Saima Noon, M.D., a state agency medical consultant, prepared the Disability Determination Explanation at the Initial Level (the “Initial Explanation”). (R. 85-94). In the Initial Explanation, Dr. Noon concluded that Plaintiff suffers from the following severe impairments: peripheral neuropathy and disorders of the back, discogenic and degenerative. (R. 89). Additionally, Dr. Noon concluded that Plaintiff suffers from a non-severe impairment: aortic valve disease. (Id.).

         In the Initial Explanation, Dr. Noon completed a physical residual functional capacity (“RFC”) assessment of Plaintiff. (R. 90-92). During this assessment, Dr. Noon found that, while Plaintiff possesses no visual or communicative limitations, Plaintiff possesses exertional, postural, manipulative and environmental limitations. (Id.). Regarding Plaintiff's exertional limitations, Dr. Noon found that Plaintiff is able to: (1) occasionally lift and/or carry twenty pounds; (2) frequently lift and/or carry ten pounds; (3) stand and/or walk for approximately six hours in an eight-hour workday; (4) sit for approximately six hours in an eight-hour workday and (5) push and/or pull with no limitations. (R. 90). Regarding Plaintiff's postural limitations, Dr. Noon found that, while Plaintiff may occasionally climb ramps or stairs, balance, stoop, kneel, crouch and crawl, she should never climb ladders, ropes or scaffolds. (Id.).

         Regarding Plaintiff's manipulative limitations, Dr. Noon determined that, while Plaintiff is able to reach in any direction, handle items and feel sensations without limitation, she is limited in her fingering ability. (R. 91). Finally, regarding Plaintiff's environmental limitations, Dr. Noon found that, while Plaintiff need not avoid humidity, noise or “[f]umes, odors, dusts, gases, poor ventilation, etc., ” she should avoid concentrated exposure to extreme cold, extreme heat, wetness, vibration and hazards such as machinery and heights. (Id.). After completing the RFC assessment, Dr. Noon determined that, subject to the above limitations, Plaintiff is able to perform light exertional work. (R. 93).

         b. Disability Determination Explanation by Fulvio Franyutti, M.D., August 7, 2013

         On August 7, 2013, Fulvio Franyutti, M.D., a state agency medical consultant, prepared the Disability Determination Explanation at the Reconsideration level (the “Reconsideration Explanation”). (R. 107-18). In the Reconsideration Explanation, Dr. Franyutti reviewed Dr. Noon's findings from the Initial Explanation. (See id.). While Dr. Franyutti affirmed most of Dr. Noon's findings, Dr. Franyutti offered one point of dissension. (See id.). Specifically, Dr. Franyutti opined that, in addition to the severe impairments diagnosed by Dr. Noon, Plaintiff suffers from severe dysfunction of the major joints. (R. 112).

         C. Testimonial Evidence

         During the administrative hearing on October 14, 2014, Plaintiff testified regarding her work history. Plaintiff has worked for a grocery store and as an activities assistant director for a nursing home. (R. 35). She has also worked multiple temporary jobs, including for various warehouses, FedEx Corporation and a phone book company. (R. 36). Most recently, she has worked as a sandwich preparer. (R. 37). While she worked as a sandwich preparer for “about a year and a few months, ” she stopped working in April of 2013 because she experienced difficulty standing for long periods of time, climbing, bending and squatting. (R. 37-38).

         Plaintiff testified that she suffers from multiple physical ailments that preclude her from working because they result in standing, lifting, kneeling and bending limitations. (See R. 49). These ailments include a neck impairment, bilateral arm impairment and back impairment. (R. 38, 43). Regarding Plaintiff's neck impairment, Plaintiff underwent neck surgery in August of 2009. (R. 38). Afterwards, she returned to work. (Id.). However, she continued to experience difficulty turning her neck and a “popping” when she turned her neck a certain way. (Id.). She now experiences stiffness in her neck “every few days” that lasts for “[a] couple days.” (R. 39). The stiffness is worse upon exertion. (Id.). When the stiffness occurs, Plaintiff lays down “as flat as [she] can.” (Id.). Every three to four days, she experiences sharp neck pain. (R. 40).

         Regarding her bilateral arm impairment, Plaintiff experiences numbness in her arms “almost every day.” (Id.). The numbness prevents her from lifting items heavier than eight to ten pounds and from carrying or holding on to items for long periods of time. (R. 41-42). Due to these limitations, she occasionally drops items and requires ten to fifteen minutes of rest after using her arms for ten to fifteen minutes. (Id.). In July of 2013, Plaintiff underwent surgery on her left arm, which temporarily stopped her symptoms. (R. 41). However, almost a year after the surgery, her symptoms returned. (Id.).

         Regarding Plaintiff's back impairment, Plaintiff “[can] . . . feel the disks . . . bulging out.” (R. 43). She also experiences a cold, numb feeling across her lower back intermittently throughout the day and sharp pains radiating into her feet every other day. (Id.). Due to this impairment, she cannot bend over, stand for longer than one to one-and-a-half hours or walk for longer than a half-hour. (R. 43-45). While surgery is not recommended at this time, Plaintiff has tried physical therapy for her impairment. (R. 44-45).

         Finally, Plaintiff testified regarding her routine activities. Every day, Plaintiff awakens and spends one hour trying “to get [her]self . . . moving.” (R. 48). Once she gets moving, she performs housework for fifteen-to twenty-minute intervals, resting for ten to fifteen minutes between intervals. (R. 47-48). Her household chores include washing dishes and washing laundry. (R. 48). Every few days, she visits with friends. (R. 48-49).

         D. Vocational Evidence

         1. Vocational Testimony

         Mark Hileman, an impartial vocational expert, also testified during the administrative hearing. (R. 50-57). Initially, Mr. Hileman testified regarding the characteristics of Plaintiff's past relevant work. (R. 51). Regarding Plaintiff's most recent job as a deli clerk, Mr. Hileman characterized the position as a light-exertional, semi- skilled position. (Id.). Mr. Hileman characterized Plaintiff's previous jobs as an activities aide for a nursing home, general warehouse laborer/worker and food prep and sandwich maker as medium and semiskilled, medium and unskilled and medium and unskilled, respectively. (Id. ...

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