United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
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,
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.
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. (R. 16, 216,
218). In both claims, Plaintiff alleges disability that began
on February 13, 2013. (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).
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).
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).
Medical History Pre-Dating Alleged Onset Date of February 13,
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).
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).
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.).
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.
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
(R. 510, 512). After documenting that Plaintiff
“didn't go” to her aquatic therapy referral,
Dr. Varga discontinued Plaintiff's Mobic
prescription but refilled her Neurontin and Flexeril
prescriptions. (R. 512).
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).
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
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.).
Medical History Post-Dating Alleged Onset Date of February
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.).
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).
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).
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.”
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.
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).
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).
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
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.).
Disability Determination Explanation by Saima Noon, M.D.,
June 4, 2013
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.).
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
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).
Disability Determination Explanation by Fulvio Franyutti,
M.D., August 7, 2013
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).
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).
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.
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.).
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.
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).
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.