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Conover v. Colvin

United States District Court, D. New Jersey, Camden Vicinage

December 12, 2014

DEBORAH S. CONOVER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

ROBERT B. KUGLER, District Judge.

This matter comes before the Court upon the appeal of Deborah S. Conover ("Plaintiff") for the review of the decision by the Administrative Law Judge ("ALJ") denying her claim for a period of disability and Disability Insurance Benefits ("DIB"), pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g). For the reasons set forth below, the decision of the Commissioner is affirmed.

I. BACKGROUND

A. Procedural History

On January 4, 2010, Plaintiff protectively filed an application for a period of disability and DIB under Title II of the Act, alleging disability beginning September 19, 2009. (Tr. at 128-34.) Plaintiff's application was denied initially and on reconsideration. (Id. at 72-73, 76-80, 81-84.) On February 22, 2011, Plaintiff requested a hearing before an ALJ. (Id. at 85.) Plaintiff appeared before ALJ Daniel Shellhamer on February 22, 2012. (Id. at 39-71.) On March 22, 2012, the ALJ found that Plaintiff was not disabled within the meaning of sections 216(i) and 223(d) of the Act between Plaintiff's alleged disability onset date of September 19, 2009, and the date of the ALJ's decision. (Id. at 18-38.) Plaintiff's request for review by the Appeals Council was filed on May 21, 2012. (Id. at 13-14.) On September 18, 2013, the Appeals Council denied Plaintiff's request for review. (Id. at 1-5.) Thus, the ALJ's decision on March 22, 2012, became the final decision of the Commissioner. Plaintiff filed this action pursuant to 42 U.S.C. § 405(g), seeking district court review of the ALJ's decision.

B. Plaintiff's Medical History

1. Medical Record

In 2007, Plaintiff was in a motor vehicle accident. (Tr. at 58.) Plaintiff's medical record indicates that, after the accident, Plaintiff suffered from lumbar degenerative disc disease and radiculopathy, cervical degenerative disc disease and radiculopathy, carpal tunnel syndrome, migraine headaches, depression, and bipolar disorder. (Id. at 215-59, 270-17, 319-22, 371-85, 424-32, 450-51, 453-58, 528-69, 631-33.)

i. Lumbar Degenerative Disc Disease and Radiculopathy

On March 13, 2006, Plaintiff's most recent imaging studies, conducted January 30, 2006, revealed mild spinal stenosis at the L3-4 vertebral level. (Id. at 258.) Mild Grade 1 spondylolisthesis and mild annular disc bulging were also noted at the L5-S1 level. (Id.) Imaging of Plaintiff's lumbar spine was performed again on October 27, 2007, and revealed S-shaped thoracolumbar scoliosis, which was convex to the right at T8-9. (Id. at 450.) Additionally, mild spondylosis and discogenic disease were noted at the mid-thoracic level. (Id.) On December 20, 2007, an MRI of Plaintiff's lumbar spine was performed and revealed disc desiccation and minimal facet arthrosis at L1-2, a mild disc bulge and minimal facet arthrosis at L2-3, a disc bulge with slight accentuation toward the left resulting in moderate narrowing of the left lateral recess and the left neural foramen, mild right neural foramen narrowing, facet arthrosis and lagmentum flavum hypertrophy resulting in moderate canal stenosis at L3-4, a mild disc bulge and minimal facet arthrosis without significant central canal stenosis or neural foraminal narrowing at L4-5, and a minimal disc bulge without central canal stenosis or neural foraminal narrowing at L5-S1. (Id. at 459-60.)

On March 6, 2008, Plaintiff presented to her chiropractor, Dr. Barry Rizzo, who noted Plaintiff's lumbar spine was unremarkable with regard to examination. (Id. at 587.) On December 17, 2008, Plaintiff had pain bilaterally in her lumbar spine area and had a negative straight leg-raising test. (Id. at 231.) Plaintiff was diagnosed with lumbar discogenic disease, lumbar spinal stenosis, and sacroiliac pain on the left. (Id.) Alice Jones, N.P., prescribed Plaintiff Hydrocodone. (Id.)

On January 19, 2009, Plaintiff complained of pain in her lumbar spine and paraspinal muscles. (Id. at 219.) Plaintiff's straight leg-raising test was negative and she ambulated without assistive device. (Id.) Plaintiff was given Hydrocodone. (Id.) On June 11, 2009, Plaintiff saw Ms. Jones who noted Plaintiff was stable with no new concerns. (Id. at 206.) Plaintiff told Ms. Jones she was looking for employment. (Id.) On September 10, 2009, Plaintiff reported that her pain was a 5 out of 10 and that she had found a new job. (Id. at 211.) On October 9, 2009, Plaintiff was stable with no new concerns. (Id. at 213.) She had tenderness in the bilateral lumbar area. Plaintiff indicated her pain was a 5 out of 10. (Id.) On November 12, 2009, an electromyogram ("EMG") revealed chronic L5 radiculopathy. (Id. at 316.)

On February 1, 2010, Plaintiff measured her pain as a 5 out of 10. (Id. at 201.) Plaintiff was taking Percocet for pain. (Id.) Diana Hewlett, APN-C, noted pain and tenderness in Plaintiff's bilateral lumbar spine with a bilateral positive straight leg-raising test. (Id.) On February 4, 2010, Dr. Carabelli noted attempts to wean Plaintiff off her medication resulting in difficulty with daily activities. (Id. at 270.) On September 6, 2010, Plaintiff was treated at AtlantiCare Regional Medical Center ("AtlantiCare") after falling down. (Id. at 409.) Plaintiff reported back pain, but ambulated without assistance. (Id.) On September 20, 2010, Dr. Carabelli determined Plaintiff was in moderate distress and was diffusely tender in her spine with mild to moderate spasms. (Id. at 426.) Plaintiff's range of motion was within functionally normal limits. (Id.)

On January 24, 2011, Plaintiff told Dr. Carabelli her pain was a 7 to 8 out of 10. (Id. at 429.) Dr. Carabelli recommended an exercise program and non-pharmalogical methods of pain control. (Id.) Dr. Carabelli noted Plaintiff was diffusely tender in her lumbar spine, had a positive straight leg-raising test, and a reduced range of motion. (Id.) Plaintiff agreed to wean down on her medications to determine the need for medications. (Id.)

ii. Cervical Degenerative Disc Disease and Radiculopathy

On December 20, 2007, an MRI of Plaintiff's cervical spine was performed and revealed disc desiccation without disc herniation, central canal stenosis, or neural foraminal narrowing at C2-3 and C3-4, disc desiccation without disc herniation or central canal stenosis, but with uncovertabral hypertrophy resulting in mid left neural foraminal narrowing at C4-5, a disc bulge without significant central canal stenosis or neural foraminal narrowing at C5-6, and disc desiccation without disc herniation, central canal stenosis or neural foraminal narrowing at C6-7 and C7-T1. (Id. at 460.)

On March 6, 2008, Plaintiff saw Dr. Rizzo who examined Plaintiff. (Id. at 587.) Plaintiff reported severe neck pain radiating to the right arm and hand. (Id.) Plaintiff's middle finger, fourth finger, and fifth finger had become numb with electric sensations. (Id.) Prior to this visit, Plaintiff had been doing well, was no longer taking pain medication aside from anti-inflammatories, and had begun physical therapy. (Id.) Plaintiff believed that doing too much in physical therapy caused her pain. (Id.) Plaintiff exhibited a reduced range of motion. (Id.) Neurological examination revealed hypoesthesia in the right C7 distribution and to a lesser degree in the C8 distribution. (Id.) Plaintiff had a marked positive cervical compression on the right and positive cervical distraction test. (Id.) Dr. Rizzo noted a positive Spurling's test and the electric sensations Plaintiff experienced were worse going into the right arm with this test. (Id.) Dr. Rizzo determined that Plaintiff's C6 disc bulge may have worsened and he stopped physical therapy until Plaintiff could undergo an MRI. (Id.)

On March 18, 2008, an MRI of Plaintiff's cervical spine revealed a right paracentral mild to moderate sized herniated disc at the C5-C6 level associated with asymmetrical neuroforaminal encroachment. (Id. at 513-18.) On May 1, 2008, Dr. Henry Sardar reviewed Plaintiff's March 2008 MRI. (Id. at 244.) Plaintiff's motor strength in the upper extremities was a 4/5 on the right and a 4 on the left. (Id.) Plaintiff's functional range of motion and motor coordination were normal. (Id.) Plaintiff was diagnosed with cervical discogenic disease and myofascial pain syndrome and was prescribed Oxycodone. (Id.) On June 2, 2008, Dr. Rizzo determined Plaintiff was no longer a candidate for chiropractic care and discharged her. (Id. at 611.) Dr. Rizzo recommended that Plaintiff see a neurosurgeon. (Id.) On June 30, 2008, Dr. Rizzo encouraged Plaintiff to undergo surgery, as it was her only option given the progressive nature of her neurologic findings. (Id. at 615.)

On September 10, 2008, Dr. Andrew Glass performed a C5-6 cervical discectomy and instrumented arthrodesis. (Id. at 231.) Plaintiff experienced one hundred percent pain relief following surgery. (Id.) A March 13, 2009, MRI revealed post-operative changes, but no other abnormalities. (Id. at 629.)

On June 11, 2009, Plaintiff saw Ms. Jones who noted Plaintiff was stable with no new concerns. (Id. at 206.) Plaintiff told Ms. Jones she was looking for employment. (Id.) On September 10, 2009, Plaintiff reported that her pain was a 5 out of 10 and that she had found a new job. (Id. at 211.) On October 28, 2009, Plaintiff reported increasing cervicalgia with right dorsal upper extremity radicular pain to Dr. Glass. Tr. 264. Dr. Glass observed Plaintiff's cervical range of motion was moderately restricted. (Id.) She had full strength in her upper extremities. (Id.) On November 7, 2009, Dr. Glass reviewed a cervical MRI from November 4, 2009, which revealed post-surgical changes with instrumented arthrodesis at C5-6 and mild disc bulging at C4-5 and C6-7. (Id. at 263.) The MRI also showed minimal degenerative changes of the uncovertebral joints with minimal left sided foraminal stenosis at C3-4, degenerative changes of the facet joints with mild bilateral neural foraminal stenosis and minimal canal stenosis at C4-5. (Id. at 633.)

On December 10, 2009, an EMG revealed Plaintiff suffered chronic, bilateral C6 radiculopathy. (Id. at 314-15.) On December 17, 2009, Dr. Carabelli noted that Plaintiff required a small amount of Oxycodone and Hydrocodone to control her pain. (Id. at 270.)

On January 18, 2010, Plaintiff was treated at AtlantiCare for cervical radiculopathy and pain. Plaintiff had moderate tenderness at C1-C7. (Id. at 375-80.) Plaintiff complained of numbness and paresthesia of the left hand, right arm, and left arm. (Id.) Plaintiff had moderate pain with cervical range of motion, her strength was reduced at 3/5 in the left arm, and her pain was rated a 6 out of 10. (Id.) Plaintiff was prescribed Percocet. (Id.) On February 1, 2010, Plaintiff's pain was a 5 out of 10. (Id. at 201.) Plaintiff was seen again at AtlantiCare on April 19, 2010, and June 21, 2010, for neck and arm pain. (Id. at 387-07.) Plaintiff was prescribed Motrin and Percocet. (Id.) On September 20, 2010, Dr. Carabelli determined Plaintiff was in moderate distress and experienced decreased sensation in her first through fourth left fingers. (Id. at 426.)

iii. Carpal Tunnel Syndrome

On December 10, 2009, an EMG revealed Plaintiff suffered from mild bilateral carpal tunnel syndrome. (Id. at 314-15.) The EMG revealed Plaintiff's carpal tunnel was worse on the right side. (Id.) Doctor Carabelli's treatment notes spanning from May 15, 2008, through February 4, 2010, also list bilateral carpal tunnel syndrome as a diagnosis. (Id. at 269-16.) On December 17, 2009, Dr. Carabelli noted that Plaintiff required a small amount of Oxycodone and Hydrocodone to control her pain. (Id. at 270.)

iv. Migraines

On May 10, 2007, and July 2, 2007, Plaintiff presented before Diana Hewlett, N.P., and Elizabeth Eble, APN-C, respectively, with migraine headaches. (Id. at 246-47.) On July 2, 2007, Plaintiff was given samples of Maxalt for her migraines. (Id. at 247.) On November 16, 2007, and December 14, 2007, Plaintiff saw Ms. Kendra Davis, APN-C, for headache pain. (Id. at 253-54.) Plaintiff presented with migraine headaches again on July 30, 2007. (Id. at 248.) Plaintiff was told that if she was taking more than four Maxalt per month, she needed preventative medicine. (Id.) Plaintiff was not open to preventative medicine for her migraines. (Id.) On August 24, 2007, Plaintiff was given two tablets of Maxalt and four sample tablets of 2.5 mg Frova for her migraines. (Id. at 249.) On September 21, 2007, Plaintiff stated that her migraine headaches were not as bad, but she was given Maxalt tablets and Frova samples. (Id. at 250.) Plaintiff presented with headache pain on October 15, 2007, November 16, 2007, and December 14, 2007, but no further medication was prescribed. (Id. at 252-54.)

On January 29, 2008, Plaintiff reported to Dr. Alan Carr that she experienced headaches in the back of her head. (Id. at 510.) She further stated the headaches worsened when her neck pain increased. (Id.) On July 23, 2008, Plaintiff presented to Ms. Jones with migraine headaches. (Id. at 228.) Ms. Jones gave Plaintiff two tablets of Zomig. (Id.) On December 17, 2008, Plaintiff's migraine headaches were labeled as "stable." (Id. at 231.) From January 19, 2009, through March 16, 2009, Plaintiff's migraine headaches were listed as "stable." (Id. at 198-219.)

v. Depression and Bipolar Disorder

On April 1, 2008, Dr. Robert Pasahow evaluated Plaintiff through a psychological examination. (Id. at 547-66.) On May 1, 2008, Dr. Henry Sardar observed Plaintiff had a flat, affect, depressed mood, and mild anxiety. (Id. at 244.) She was prescribed Prozac and Wellbutrin. (Id.) On July 1, 2008, Dr. Pasahow noted that Plaintiff's symptoms included flashbacks and insomnia even when Plaintiff took sedating medication at night. (Id. at 545.) Dr. Pasahow also noted that Plaintiff was experiencing clinical depression characterized by dysphoric mood, sense of hopelessness, pervasive sense of failure, loss of ability to enjoy pleasurable events, frequent crying spells, frequent agitation, severe social withdrawal, irritability, severe lack of energy, and suicidal ideation. (Id.) Plaintiff experienced general anxiety. (Id. at 546.) Finally, Dr. Pasahow found that Plaintiff suffered neuropsychological symptoms including, headaches, decreased reading comprehension, short-term memory deficits, difficulties with verbal comprehension, dysarthria, dysnomia, periodic difficulty verbalizing thoughts, decreased capacity to organize and sequence information, decreased concentration, and attention difficulties. (Id.) As a result, Dr. Pasahow diagnosed Plaintiff with major depressive disorder and post-traumatic stress disorder, and ruled outpost concussion syndrome. (Id. at 546, 567.) At the time, Plaintiff was taking Clonodine for anxiety and Prozac and Wellbutrin for depression. (Id. at 546.)

On July 23, 2008, Ms. Jones noted that Plaintiff's mood and affect were within normal limits. (Id. at 228.) Throughout 2009 and up to February 1, 2010, Plaintiff's mood and affect were appropriate when she presented to Pain Specialists, P.A.. (Id. at 198-219.)

On May 25, 2010, Plaintiff underwent a consultative exam with Dr. P. Lawrence Seifer. (Id. at 319-22.) Plaintiff reported experienced two anxiety attacks per day since 1998. (Id. at 319.) Plaintiff claimed to be depressed since that time and wanted to sleep because she had low energy. (Id.) Further, Plaintiff had racing thoughts and could not finish projects that she started. (Id.) Dr. Carabelli had prescribed Klonopin and Cymbalta. (Id.) Dr. Seifer diagnosed Plaintiff with panic disorder without agoraphobia, bipolar disorder, and depression. (Id. at 321.) He assigned Plaintiff a Global Assessment Functioning ("GAF") score of 55.[1] (Id.)

2. Hearing Testimony

On February 22, 2012, Plaintiff testified before the ALJ at the Administrative Hearing. (Id. at 41-70.) Plaintiff testified that she was involved in a motor vehicle accident in 2007. (Id. at 58.) After the accident, Plaintiff's treatment consisted of physical therapy, chiropractic care, pain medication, and epidurals in her neck and back. (Id.) When this conservative treatment failed in regards to Plaintiff's neck, Plaintiff testified she underwent surgery in 2008. (Id. at 59.) After this surgery, Plaintiff's neck "felt better." (Id.) However, she testified that after she went back to work, pain radiated down her neck and arms and her hands started going numb again. (Id.) Plaintiff testified that the numbness had been there since the accident and had gotten worse over time. (Id. at 60.) The pain and the numbness came on when she was doing housework, lifting or folding her arms, and sleeping. (Id.) Plaintiff would wake up and not be able to feel her fingers. (Id.) The pain and numbness were also worse when it was cold. (Id.) Plaintiff testified that the numbness in her fingers was worse on the left side and impacts her ability to hold and grasp things and to do household chores. (Id. at 61.) Plaintiff said she could not pick up a gallon of milk with her hand; rather she had to cradle it. (Id. at 66.)

Further, Plaintiff testified that her lower back pain gives her trouble standing, sitting, and walking for long periods of time. She stated that she could stand for fifteen-to-twenty minutes, walk ten-to-fifteen minutes, and that she could only drive for twenty minutes before having to stop to stretch. (Id. at 46-47, 64-65.) When Plaintiff stood for too long, she got pain on her left side, her legs tingled, her toes went numb, and she felt wobbly. (Id. at 47.) Plaintiff also testified that on several occasions she fell, resulting in stiches and further injury. (Id. at 48.) For Plaintiff's back and neck pain, she took Vicodin daily and Percocet for "breatkthrough pain." (Id. at 63.) She also took Flexeril for muscle spasms in her left leg. (Id.)

In regards to her migraines, Plaintiff testified that she had one to two migraines a week. (Id. at 62.) Her migraines would last normally ten hours if she took the appropriate medication, but could last one or two days. (Id.) When Plaintiff had a migraine, her arms would tingle and go numb. (Id.) Plaintiff testified she took Fioricet for her migraine pain. (Id. at 63.)

Finally, Plaintiff testified about her psychiatric impairments. (Id. at 66-69.) After the accident, Plaintiff treated with Dr. Pasahow. (Id. at 66.) Plaintiff stopped that treatment when her insurance "maxed out." (Id.) Plaintiff testified that she suffered from anxiety and depression. (Id. at 63.) Plaintiff took Prozac to treat her depression and Clonazepam for anxiety, both prescribed by Dr. Carabelli. (Id.) Plaintiff had difficulty focusing and concentrating. (Id. at 72.) Plaintiff struggled with her short-term memory. (Id. at 69.) Plaintiff testified that she is short tempered, "flies off the handle, " and is socially withdrawn. (Id. at 68-69.) Even though Plaintiff's medication makes her tired, Plaintiff testified she only gets four hours of sleep on a "good night." (Id.) On certain nights, she got no sleep because her mind was "racing." (Id.)

C. Plaintiff's Work History

Plaintiff testified that she graduated from high school and attended several years of college. (Id. at 48.) She does not have a degree, but was studying physical therapy and psychology. (Id.) During 2005 and 2006, Plaintiff worked as a life skills specialist. (Id. at 51.) Plaintiff worked with clients who were mentally handicapped or mentally ill. (Id.) She began this job by working as a residential counselor in a residential home and would help clients with cooking, hygiene, and medication. (Id.) Eventually, Plaintiff began working full-time in the field, going to clients' homes and helping them with doctors' appointments, finding jobs, taking medication, and guiding them on hygiene, cooking, and shopping. (Id. at 52.) Plaintiff testified that she started having back problems and leg problems that interfered with her job performance. (Id. at 54.) Plaintiff could not drive long distances or stand for an extended period ...


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