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Oglesby v. Colvin

United States District Court, S.D. Florida

May 25, 2017

CAROLYN W. COLVIN[1], Commissioner of Social Security Administration, Defendant.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT [DES 20');">20, 21');">21]


         THIS CAUSE is before the Court upon Plaintiff, Tina Marie Oglesby's ("Plaintiff) Motion for Summary Judgment [DE 20');">20], and Defendant, Carolyn W. Colvin, Commissioner of Social Security Administration's ("Defendant") Motion for Summary Judgment [DE 21');">21]. The parties have consented to magistrate judge jurisdiction. [DE 16]. The issue before the Court is whether the record contains substantial evidence to support the denial of benefits to the Plaintiff and whether the correct legal standards have been applied. Lamb v. Bowen, 847 F.2d 698, 701 (11thCir. 1988).

         I. FACTS

         On July 3, 20');">2013, Plaintiff filed an application for supplemental security income, asserting a disability on-set date of January 1, 20');">2003. [R. 21');">21].[2] She later amended the on-set date to July 3, 20');">2013. [R. 38]. The claim was denied initially and upon reconsideration. [R. 21');">21]. Following a video hearing on April 21');">21, 20');">2014, the ALJ issued a decision on October 21');">21, 20');">2014, denying Plaintiffs request for benefits. [R. 18-30]. A request for review was filed with the Appeals Council and denied on March 9, 20');">2016. [R. 1-6].

         Plaintiff was born on December 20');">20, 1968, and was 44 years old on the date that the ALJ issued her decision. [R. 28]. Plaintiffs highest level of education is a GED with a CNA certification and attendance at a cosmetology school for one year. [R. 42].

         A. Hearing Testimony

         The ALJ held a video hearing on April 21');">21, 20');">2014. [R. 37]. Plaintiff testified that she lives in a house with her teenage daughter and that her older daughter comes twice a day to help out with daily tasks she cannot complete. [R. 40]. Plaintiffs older daughter has been helping her since Plaintiff had her neck fusion surgery approximately three years prior. [R. 40-41]. Plaintiff is divorced and is a CNA. [R. 42]. She also went to school for a year to learn how to do hair and nails. Id. Plaintiffs weight has been increasing because she is no longer as active as she used to be. Id.

         Plaintiff explained that she has not worked at all since July 20');">2013. [R. 42]. She most recently worked as an assistant manager at Wal-Mart for a few years up until 20');">2003. Id. Prior to her job at Wal-Mart, Plaintiff was a nail tech for approximately five years. [R. 43]. She also co-owned an auto detailing business on and off for eight years to make part-time income. Id. Plaintiff cleaned the inside of the cars and handled no paperwork. [R. 44]. She ultimately stopped working after she was involved in a bad car accident in 20');">2003. Id. Plaintiff received a total of $100, 000 as a settlement for the accident, but only ended up with $30, 000 in her pocket. Id.

         On an average day, Plaintiff gets up, does chores, goes to the grocery store, gets herself ready, spends some time with her teenage daughter, and prepares meals, but she has to lie back down every 15-20');">20 minutes due to her neck damage and nerve damage going down her legs and hands. [R. 45]. She lets her dogs out back because she cannot walk them anymore. Id. Plaintiff spends about 75% of the day from 9 a.m. to 5 p.m. lying down because her neck burns, and the burning sensation goes up to her ears and hits her head. [R. 46]. Plaintiff used to be very active with her daughters, but now her daughters have to do a lot of the housekeeping. [R. 46-47].

         Plaintiff testified that her 20');">2010 surgery made her totally disabled because the doctor, Dr. Heldo Gomez, broke two discs going down her spine. [R. 47, 50]. The ALJ noted that there were no surgical reports, doctor's notes, or other records regarding the 20');">2010 surgery in the record. [R. 48-49]. Plaintiffs attorney promised to obtain and submit the documents. Id. Plaintiff testified that Dr. Robert Simon had been her treating physician at the time of the surgery, and the ALJ stated that she needed Dr. Simon's records as well. [R. 50]. According to Plaintiff, Dr. Simon performed surgeries on her too.[3] Id.

         Plaintiff stated that she currently has pain in her neck that goes up to her ears and that she has nerve damage going down her legs and in her hands and arms. [R. 51]. Lying down and using ice packs, heating pads, and "those patches that you put on you" help reduce the pain. [R. 52]. Plaintiff takes Dilaudid, MS Cotin, Flexeril, and Soma for the pain. Id. The Soma makes her dizzy, so she has reduced the dosage. Id. Plaintiff has been on and off narcotic pain medications for eight years. Id. Plaintiff had shoulder surgery years ago, and her shoulder is still "messed up." [R. 53].

         Plaintiff explained that she can only wear certain styles of clothing and shoes due to her physical pain. [R. 53]. For example, she has trouble with buttons, zippers, and shoe laces. Id. Plaintiff also has trouble sleeping at night and generally only gets approximately three hours of sleep a night. Id. Plaintiff uses a travel pillow to keep her neck straight and reduce the burning pain by half. [R. 54]. She can only sit or stand for about 15-20');">20 minutes before nerve pain starts shooting down her legs, her neck begins burning, and she gets earaches and headaches. Id. Plaintiff can only walk for a couple of minutes because the back of her legs begin to hurt. [R. 55]. She can lift about 30 pounds. Id. Plaintiff used to participate in social activities and hobbies, such as traveling and swimming at the beach, but she cannot anymore. [R. 55-56]. She experiences pain if she drives for too long. [R. 56].

         Plaintiff testified that she has had problems with her hands for the last couple of years. [R. 59]. Her hands go numb and radiate pain that shoots down both her left and right arms. Id. Plaintiffs fingertips are always numb. Id. Plaintiff also has trouble with her balance for about 50% of each day. [R. 60].

         The ALJ questioned Plaintiff about why there was a gap in her treatment from Dr. Berman between 20');">2010 and 20');">2011. [R. 60]. Plaintiff explained that she had only been seeing Dr. Berman for pain management for about a year and a half, and that Dr. Hoffman had been her pain management doctor before that. [R. 61]. Dr. Berman was the only doctor she saw for the two years prior to the hearing. [R. 63]. Plaintiff did not continuously see Dr. Gomez because he just did surgeries and post-op visits. Id. Plaintiff stated that she does drive, but only to the market and only approximately twice a week. [R. 63]. Otherwise, her daughter or her daughter's father drives her around. Id. In 20');">2012, Plaintiff had an online business, which was more of a hobby, with her older daughter buying and reselling hand bags online. [R. 64].

         Steven Coon, the vocational expert, testified at the hearing. [R. 65]. The ALJ first posed a hypothetical in which an individual of the same age, education, and work experience as Plaintiff had the following limitations: work at the light level only; occasional stooping, kneeling, crawling, crouching and climbing; climbing ramps and stairs, but not ladders, ropes or scaffolds; avoiding hazards such as heights; and occasional overhead reaching. [R. 66]. The vocational expert explained that such an individual would be able to perform work as both a retail supervisor and a nail technician as both jobs are generally performed. Id. He stated that such an individual could also perform light, unskilled work as, for example, a production assembler, a cleaner, or a fast food worker. [R. 67]. The vocational expert testified that the general employer off-task tolerance for a typical workday would be about 20');">20%. Id. He also testified that two or greater absences per month would impact the ability to maintain work. [R. 68].

         The ALJ posed a second hypothetical in which an individual had the same limitations stated before but was also limited to frequent handling and frequent fingering (rather than constant handling or fingering). [R. 68]. The vocational expert testified that such an individual would still be able to perform the retail supervisor job, but would not be able to perform the nail technician job. Id. Such an individual would also be able to perform the cleaner and the assembler jobs, but not the fast food worker job. Id.

         Plaintiffs counsel asked the vocational expert whether, if the handling and fingering were reduced down to occasional, the individual would be able to perform any of the jobs. [R. 69]. The vocational expert stated that such an individual would not be able to perform the retail supervisor, nail technician job, assembler, cleaner, or fast food worker jobs. Id. Upon questioning by Plaintiffs counsel, the vocational expert also testified that an individual who needed a 15-minute break every hour would not be able to maintain work as it is generally performed in the national economy. Id.

         B. Medical Record Evidence

         In reaching her decision to deny Plaintiffs benefits, the ALJ reviewed the medical evidence of record, the relevant portion of which is summarized chronologically below.

         Plaintiff was involved in a motor vehicle accident in 20');">2003 in which she injured her cervical spine. [R. 261]. She was involved in a second motor vehicle accident on October 4, 20');">2006. [R. 262]. Plaintiff was involved in a third motor vehicle accident on December 7, 20');">2007. [R. 261]. She developed neck pain and lower back pain and was treated with physical therapy, chiropractic treatment, medications, and cervical and lumbar epidural injections. Id.

         On July 16, 20');">2009, Plaintiff had MRIs of the cervical spine and lumbar spine conducted. [R. 354]. MRIs of the cervical spine revealed extruded disc herniation at the C5-6 level, mild disc space narrowing with residual hydration in the disc, a posterior subligamentous extrusion/herniation of the disc seen centrally with the disc extending into the collar direction by approximately 6 mm from the disc space, patent neural foramina, and a bulging disc at C4-5. Id. The MRI of the lumbar spine revealed a bulging disc at L 5-S1 with mild disc dehydration at L 5-S1, mild neural impingement to the left existing nerve root, and a posterior bulge seen at L 5-S1 centrally with mild encroachment on the left exiting S1 nerve root. [R. 355].

         Plaintiff presented to Dr. Heldo Gomez, Jr., a neurological surgeon, on August 27, 20');">2009, complaining of cervical pain and back pain. [R. 353]. She reported a visual analogue scale score of 6-7/10 for cervical pain for that specific day and a score of 8-9 for her worst days. Id. Dr. Gomez noted that Plaintiff had a normal gait. [R. 354]. Upon an examination of Plaintiffs cervical spine, Dr. Gomez found that the cranial nerves were intact without deficit, the range of motion was full with discomfort, the axial loading was mildly positive with light compression less than one pound, the Spurling and Hoffmann signs were negative, the muscle strength testing was 5/5, sensation was equal and intact without deficit in the upper extremities, there was tenderness palpated in the right trapezius, scalene, and levator scapula, and the deep tendon reflexes were 2 at the biceps, triceps, and brachioradialis bilaterally. Id. Upon examination of Plaintiff s lumbar spine, Dr. Gomez found that the range of motion was full with discomfort at the extremes, straight leg raising was positive past 70 degrees eliciting pain in the erector spinae bilaterally, heel-toe was positive for eliciting pain, muscle strength testing was 5/5, sensation was equal and intact without deficit to the lower extremities, there was tenderness palpated across the erector spinae at L 4-5 and L5-S1, and there was tenderness at the beltline with very light touching and palpation. Id. Dr. Gomez noted that he would try to obtain some of Plaintiff s other medical records and would have Plaintiff return in two to three weeks. [R. 350].

         On November 2, 20');">2009, Plaintiff returned to Dr. Gomez for a follow-up. [R. 346]. She continued to complain of neck pain radiating into the upper extremities, particularly on the left side, and numbness in the left hand. [R. 346]. Dr. Gomez noted that Plaintiff was describing symptoms in the left C6 distribution and that Plaintiffs MRI showed evidence of disc displacement at C 4-5, C5-6. Id. He recommended that Plaintiff undergo an anterior C4-5, C5-6 decompression, fusion, and anterior instrumentation. Id.

         On January 26, 20');">2010, Plaintiff underwent surgery-an anterior C4-5, C5-6 decompression, fusion, and anterior instrumentation. [R. 343-45]. On February 16, 20');">2010, Plaintiff had a postoperative lateral cervical spine film completed. [R. 342]. It was determined that Plaintiffs anterior plate was intact from C4 through C6, that there had been no displacement of the plate from the anterior surface of the vertebral bodies, that the PEEK spacers were in good position at C 4-5, and that there had been a slight subsidence at C 5-6. Id.

         On February 16, 20');">2010, Plaintiff saw Dr. Thomas Rousch for a follow-up post-surgery. [R. 341]. She reported mild discomfort in the neck area. Id. Plaintiff also reported that she had been improving with stiffness in the cervical area and had no radicular symptoms, numbness, or tingling. Id. Dr. Rousch noted that the incision was healing, muscle strength and grip strengths were normal, and sensation was equal and intact in the upper extremities. Id.

         On March 17, 20');">2010, Plaintiff saw Dr. Gomez for a follow-up. [R. 338]. She complained of an ache-like sensation over the C7-T1 spinous process, a sensation of swelling overlying this region and just to the right of the midline, and occasional sensory dysesthesias in the left biceps, left antecubital region. Id. After a physical examination, Dr. Gomez noted that Plaintiffs scar was well healed, her range of motion of the cervical spine was slowly improving, her strength was 5/5 bilaterally, her gait was normal, and she had tenderness overlying the spinous process of C7-T1. Id.

         On May 25, 20');">2011, Plaintiff presented to Dr. Joshua Levy for pain management of her neck and low back pain. [R. 335]. Dr. Levy explained that, after Plaintiffs 20');">2007 car accident, she received chiropractic treatment, pain management procedures, and left knee and shoulder surgeries. Id. Dr. Levy noted that Plaintiff had no obvious pain with her gait, a steady stance, palpation, tenderness, and positive spasms of the cervical and lumbar spines, limited range of motion of the cervical and lumbar spines guarded by pain, a negative bilateral straight leg raise test, sensation paresthesias in both arms, full range of motion in her upper extremities, 5 strength test for her upper extremities, and normal range of motion and normal strength and tone to her lower extremities. [R. 336]. Dr. Levy diagnosed Plaintiff with cervicalgia, displacement of cervical intervertebral disc without myelopathy, lumbago, displacement of lumbar intervertebral disc without myelopathy, other internal derangement of the knee, and a rotator cuff tear. Id. He changed Plaintiffs medications. Id.

         On August 8, 20');">2011, Plaintiff had an MRI of the cervical spine performed. [R. 264]. The radiologist determined that there was evidence of previous anterior and interbody fusion at C4-C5 and C5-C6; the C3-C4 and C4-C5 disc space levels demonstrated previous anterior and interbody fusion; there was no herniated disc, spinal stenosis, or abnormal neural foramina at the C3-C4 or C4-C5 disc space levels; the T3-T4 disc space level demonstrated a central herniated disc protrusion measuring 2 mm x 2 mm in size that did not indent the cord; there was no spinal stenosis or abnormal foramina at the T3-T4 or T4-T5 disc space levels; and the T4-T5 disc space level demonstrated a bilobular herniated disc protrusion with right paracentral and left paracentral components measuring 2 mm x 3 mm in size that did not indent the cord. [R. 264-65].

         On September 8, 20');">2011, Plaintiff presented to Dr. Gomez. [R. 261]. Plaintiff complained of pain over the left clavicle and left pectoral region, as well as posterior neck pain. Id. Plaintiff also described symptoms of discomfort over the right supraclavicular region. Id. She stated that her Visual Analogue Scale pain had been a 5/10 six months ago, but that it was currently a 7/10. Id. Dr. Gomez noted that Plaintiff had been under the care of a pain management specialist, Dr. Hoffman. [R. 262].

         Dr. Gomez performed a physical examination on Plaintiff. [R. 262]. He noted palpable increased tone and tenderness in the paraspinal muscles in the posterior cervical region, increased tone and tenderness over the medial trapezius and supraclavicular region, tenderness over the left upper pectoral region and pectoral-deltoid groove, diminished range of motion with abduction on the left shoulder, and an inability to fully abduct her left shoulder. Id. Dr. Gomez also noted that Plaintiffs gait was normal, her scar was well-healed, her biceps, triceps, and interosseous strength was 5/5 bilaterally, and her motor testing was 5/5 in both lower extremities. Id. Dr. Gomez determined that Plaintiff had reached maximal medical improvement. Id. He explained that the most recent MRI showed a satisfactory fusion of C4 through C6, there was no residual spinal cord compression from C4 through C6, and the adjacent segments of C3-4 and C6-7 showed no evidence of adjacent-segment degeneration. [R. 263].

         On February 29, 20');">2012, Plaintiff had a lateral cervical spine x-ray performed. [R. 329]. She was determined to have no compression fracture deformities, no lytic or blastic bone lesions, mild anterior ...

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