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Parker v. Berryhill

United States District Court, S.D. Florida

July 15, 2019

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         THIS CAUSE comes before this Court upon the above motions. Having reviewed the motions, the responsive pleadings, and the administrative record (DE 10), and having held a hearing thereon on June 18, 2019, this Court finds as follows:


         1. The Plaintiff applied for supplemental security income ("SSI") under Title XVI of the Social Security Act on November 18, 2014. The application was denied on the first two levels of administrative review. On August 24, 2017, following a hearing, an Administrative Law Judge ("ALJ") rendered a decision finding the Plaintiff not disabled under the terms of the Social Security Act. The Appeals Council denied the Request for Review on June 28, 2018, thereby leaving the ALJ's decision final and subject to judicial review.

         2. The Plaintiff is a high school graduate and has vocational training as a nail technician. She reports having worked as a nail technician, and is a licensed cosmetologist in New York, North Carolina, and Florida. (R.60.) The ALJ found that her earnings have not risen to the level of Substantial Gainful Activity ("SGA")1 since November 18, 2014, the date of her application for SSI.

         3. The medical record begins on January 29, 2012 when the Plaintiff sought treatment at St. Joseph's Physicians Hospital in New York. She returned to St. Joseph's on February 8th, complaining of insomnia, anxiety, depression, and pain in her upper gastrointestinal tract. (R.532.) She was diagnosed with symptomatic cholelithiasis and underwent a cholecystectomy (the removal of the gallbladder) on October 4th.

         4. On June 4, 2012, Plaintiff was involved in a car accident. While crossing an intersection, she was t-boned by a driver who had run a red light. She did not seek immediate medical care.

         5. It was not until a month later, on July 2, 2012, when Plaintiff visited Dr. Baird at the North Country Orthopedic Group on the referral of her attorney. She complained of neck pain radiating into her left upper arm with numbness, as well as tingling and pain in the left hip. (R.359.) An MRI of her cervical spine taken on July 10th showed cervical spondylosis at the C3-4 through C6-7 intervertebral discs without spinal cord compression. On July 19th, Dr. Baird reviewed her MRI results and determined that there was degenerative change in her cervical spine with mild spinal stenosis. There was no cord signal change nor acute disc herniation. Dr. Baird was "optimistic of slow improvement" in her symptoms. (R.358.) Plaintiff was prescribed Naprosyn and physiotherapy.

         6. She followed up with Dr. Baird on September 4, 2012. Her neck and hip were still hurting, and she also reported that her lower back had begun to hurt. (R.360.) She told Dr. Baird that she had started physical therapy and that it was relieving her neck pain. (There are no records of this physical therapy, however.) Dr. Baird recommended that she continue to participate in physical therapy for her neck, back, and hip, and have a physiatrist conduct electrodiagnostic studies of her left upper extremity.

         7. On October 11, 2012, Plaintiff returned to Dr. Baird. She had yet to have the electrodiagnostic tests done. She told Dr. Baird that she was moving to Florida in the immediate future. Dr. Baird suggested she have the electrodiagnostic studies done in Florida, so she could address her problems there. Later that month, Plaintiff sold all her possessions and drove from New York to Florida.

         8. On November 8, 2012, she sought treatment from Dr. Anuj Prasher at South Florida Orthopedics. (R.486.) X-rays were taken of her cervical and lumbar spines. The x-rays revealed spondylosis in her cervical spine and evidence of grade 1 spondyloisthesis at the L4-5 level in her lumbar spine. Dr. Prasher ordered MRI's for both her lumbar and cervical spines, which took place on November 12th. The lumbar spine MRI revealed L4-5 mild grade 1 degenerative anterolisthesis and moderate facet joint and ligamentum flavum hypertrophy, with mild to moderate left subarticular recess narrowing with mild displacement of the descending left L5 nerve root and mild bilateral neural foraminal narrowing. (R.354.) The cervical spine MRI revealed multilevel disc osteophytes from the C3-4 through C6-7 levels with facet joint arthropathy. (R.351.)

         9. Plaintiff followed up with Dr. Prasher on November 15th. She reported she had moderate pain that occurred intermittently, aggravated by range of motion, driving, sitting, standing, and daily activities. Upon physical examination, her upper body strength was normal and she was able to walk without difficulty. She was not in apparent distress. Dr. Prasher noted that whiplash was likely the cause of her neck pain. He prescribed her Ultram, and injected her with Bupivacaine, Lidocaine, and Depo-Medrol, which gave her immediate relief. (R.496.) She was referred to Mid-Florida Anesthesia Associates for pain management.

         10. Plaintiff presented to Mid-Florida on December 4, 2012. (R.443.) She was seen by Dr. Alvarez for an initial evaluation of her pain. She reported that she was continuing to work part-time. She also reported zero pain relief from physical therapy. (There are no records of this physical therapy, either.) Dr. Alvarez ordered a lumbar facet joint injection, by which to diagnose the source of her lower back pain.

         11. On December 11, 2012 Plaintiff received the first of two lumbar facet joint injections from Dr. Alvarez at Treasure Coast Center for Surgery. She reported reduced pain from a "7" to a "2" on a "0" to 10" scale. (R.442.) She received the second injection on January 8, 2013, which also reduced her pain. (R.438-9.)

         12. Because the Plaintiffs pain was relieved by the lumbar facet joint injections, the source of her back pain was determined to derive from the facet joints. On January 28, 2013, Plaintiff returned to Dr. Kuchera at Mid-Florida Anesthesia Associates. (R.432.) Dr. Kuchera explained the treatment options available to Plaintiff, and she and Dr. Kuchera agreed to proceed with a rhizotomy. A rhizotomy is a procedure that interrupts spinal nerve roots that travel through the facet joints. The intent of interrupting those nerves is to relieve pain arising from the facet joints.

         13. Plaintiff underwent the rhizotomy at Mid-Florida on February 6th. The procedure was successful and significantly reduced her pain. (R.430.) She did not seek additional treatment for four months.

         14. On June 28, 2013, Plaintiff returned to Mid-Florida Anesthesia Associates and was seen by Dr. Swartz. She reported to Dr. Swartz that her back pain had significantly improved following the February rhizotomy. Her neck pain persisted and was worsening, however. (R.424.) Dr. Swartz recommended that she receive facet joint injections in her cervical spine to diagnose the cause of her pain and proceed with appropriate treatment. Her lumbar and cervical spine were stable, and she had normal tone, bulk, and strength. (R.426.)

         15. In July, she received two cervical facet joint injections. Both injections were successful and significantly reduced her pain. (R.421, 423.)

         16. On August 5th she returned to Dr. Kuchera at Mid-Florida Anesthesia Associates. Dr. Kuchera noted that she was "doing great after the cervical facet" injections. (R.414.) She reported that her back pain had returned and was radiating into her left leg, however. She also reported that she was forced to stop working as a nail tech due to the combination of back and neck pain. (R.414.) Dr. Kuchera ordered epidural steroid injections into her lumbar spine. She received the steroid injections on August 18th, which reduced her pain.

         17. Because the July cervical facet joint injections had reduced the pain in her cervical spine, Plaintiff was scheduled for a cervical rhizotomy. She underwent that procedure on September 4, 2013. The procedure was successful and provided her with significant relief. (R411.)

         18. The Commissioner sent the Plaintiff to a consultative psychological evaluation conducted by Dr. Mihalovich on September 18th. When asked why she was applying for benefits, she identified intrusive thoughts. (R.333.) During the evaluation, she discussed her prior addiction to cocaine and her criminal record. She explained that she cannot take opioid medication for pain because of her addiction. She is divorced, has two adult children, lives alone, and spends her day caring for her home and looking for work. She has some friends and family and chooses not to date. She is heavily involved in AA and sometimes attends church. She is a licensed cosmetologist in New York, North Carolina, and Florida, and has been looking for work since moving to Florida. Dr. Mihalovich noted that she presented herself in an appropriate fashion, displayed normal motor skills, was alert and oriented, and thought logically. Dr. Mihalovich determined that she had dysthymia, anxiety, and cocaine dependence. Her cognitive abilities appeared to be intact, and her judgment and insight were appropriate for independent living. Dr. Mihalovich determined she was capable of managing her benefits.

         19. In October 2013 Plaintiff presented to Dr. Alvarez to receive a facet joint injection in her lumbar spine. The injection reduced her pain. On November 27, 2013 she underwent another lumbar rhizotomy, which again provided relief. (R.394.)

         20. On December 27th she returned to Dr. Kuchera for a follow-up on her lumbar rhizotomy. She reported that the pain in her low back was severe, but she was able to perform activities of daily living without assistance. (R.388.) Her range of motion was mildly decreased and functional, and her lower back exhibited mild tenderness. Her cervical and lumbar spines were stable, and she demonstrated normal tone, bulk and ...

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