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Grant v. Colvin

United States District Court, D. Nebraska

February 4, 2014

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


LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on the denial, initially and on reconsideration, of the Plaintiff's disability insurance benefits ("DIB") under the Social Security Act ("Act"), 42 U.S.C. §§ 401, et seq., and supplemental security income ("SSI") benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq.


Plaintiff applied for DIB on January 14, 2008. (Tr. 101, 275-82, 283-86.) Her applications were denied initially on March 12, 2008, and again on reconsideration on May 12, 2008, and she appealed the denial to an ALJ. (Tr. 101, 119, 142, 150, 155.) The ALJ issued an unfavorable decision on December 31, 2009. (Tr. 123-31.) On March 2, 2011, the Appeals Council reversed the ALJ's decision and remanded the case to a different ALJ for further consideration and a new decision. (Tr. 138-40.)

The ALJ held a second administrative hearing on May 18, 2011. (Tr. 80-100.) In the new decision, dated June 23, 2011, the ALJ found that Plaintiff was not disabled under the Act. (Tr. 37-48.) The ALJ found that Plaintiff had the severe impairments of cervical degenerative disc disease, fibromyalgia, affective mood disorder, and anxiety disorder. (Tr. 40.) The ALJ determined that Plaintiff nevertheless retained the residual functional capacity to perform a reduced range of sedentary work. (Tr. 41.) After consulting a vocational expert, the ALJ concluded that Plaintiff's impairments would not prevent her from performing work that exists in significant numbers in the national economy, including work as a weight tester, cutter/paster, or administrative support worker. (Tr. 47.) The Appeals Council denied Plaintiff's request for review of the new ALJ decision on December 12, 2012. (Tr. 1.) The Act provides for judicial review of a "final decision" of the Commissioner of the Social Security Administration. See id. §§ 405(g), 1383(c)(3). The new ALJ decision is therefore a "final decision" subject to judicial review under 42 U.S.C. § 405(g).


I. Documentary Evidence

Plaintiff holds a GED, and completed two years of college courses. (Tr. 84-85.) Before her alleged disability began, Plaintiff worked in several customer-service jobs, including gas-station clerk and waitress. (Tr. 322.) On June 23, 2011, the date of the ALJ's second decision, Plaintiff was forty-six years old. (Tr. 48, 101.)

Plaintiff was involved in a serious automobile accident on April 17, 2007. (Tr. 87.) Plaintiff testified she became disabled as a result of the accident. (Tr. 321). Plaintiff saw Dan Nguyen, M.D., on April 25, 2007, and reported neck and back pain following the car accident.[1] (Tr. 482.) During a follow-up appointment on May 2, 2007, Dr. Nguyen diagnosed a cervical strain and referred Plaintiff for physical therapy. (Tr. 818.) Plaintiff began attending regular physical therapy on May 9, 2007. (Tr. 527, 544, 824-33.) Plaintiff's first physical therapist, Jason Merz, noted that Plaintiff's current symptoms included neck pain, constant ache and burning in back. (Tr. 527.) Merz noted that Plaintiff reported that her pain was constant, worsened as the day progressed, and that activity of any kind increased her symptoms. (Tr. 527.)

Plaintiff saw Dr. Nguyen three more times in May 2007. (Tr. 478, 481, 483.) On May 29, 2007, Plaintiff complained of ongoing neck pain despite physical therapy, and Dr. Nguyen ordered an MRI of her cervical spine. (Tr. 478.) The MRI showed a diffuse disc bulge and moderate degenerative changes at the C4-C5 levels, a diffuse bulge at the C5-C6 level, and mild degenerative changes at the C2-C4 level. (Tr. 520.)

In June and July 2007, Plaintiff reported ongoing neck pain to Dr. Nguyen. (Tr. 476, 479.) She said that physical therapy was not helpful anymore. (Tr. 476.) Dr. Nguyen referred Plaintiff to Adeleke Badejo, M.D., a neurologist. (Tr. 476.) Dr. Badejo examined Plaintiff on August 22, 2007. (Tr. 502-04.) Plaintiff complained of pain in her right shoulder and arm. (Tr. 502.) However, Dr. Badejo found that she had normal cranial nerves, motor and sensory function, and reflexes. (Tr. 504.) After reviewing MRI results, Dr. Badejo felt that Plaintiff's C4-C5 disc herniation likely caused her symptoms and recommended surgery. (Tr. 504.) Dr. Badejo also referred Plaintiff to a psychiatrist at Dr. Nguyen's suggestion. (Tr. 504.) Plaintiff saw Dr. Nguyen again on August 24, 2007. (Tr. 477, 750.)

On September 12, 2007, Plaintiff saw Hugo Gonzalez, M.D., a psychiatrist, on referral from Dr. Badejo. (Tr. 488-89.) Plaintiff complained that she had been depressed for "most of [her] life." (Tr. 488.) Dr. Gonzalez observed that Plaintiff was pleasant and cooperative, with a restricted affect, appropriate thought content, fair-to-good insight and judgment, normal memory, and a normal fund of knowledge. (Tr. 489.) He diagnosed major depressive disorder, and assigned Plaintiff a Global Assessment of Functioning ("GAF") score of 65. (Tr. 489.) He also prescribed an antidepressant. (Tr. 489.)

On October 10, 2007, Plaintiff saw Clint Malcolm, APRN, who worked in Dr. Gonzalez's office. (Tr. 486.) Plaintiff reported that her mood was much better thanks to her antidepressant. (Tr. 486.) Mr. Malcolm observed that Plaintiff had intact recent and remote memory, "fine" attention and concentration, fair insight and judgment, and a logical thought process. (Tr. 486.) Plaintiff also saw Dr. Badejo that day. (Tr. 505.) Dr. Badejo's examination findings were normal. (Tr. 505.) Plaintiff agreed to go forward with discectomy and fusion procedures at the C4-C5 level. (Tr. 505.) Dr. Badejo performed the procedure on October 16, 2007. (Tr. 497.) Afterward, Plaintiff received prescriptions for opioid pain medication. (Tr. 496.)

During an appointment with Dr. Gonzalez on November 7, 2007, Plaintiff reported that her recent surgery improved her pain somewhat. (Tr. 485.) She said she was less depressed, and her anxiety was completely under control. (Tr. 485.) Plaintiff had a "close to neutral" mood, a somewhat restricted affect, fair insight and judgment, and a coherent thought process. (Tr. 485.) Dr. Gonzalez increased her GAF score to 70. (Tr. 485.) On the same day, Plaintiff visited Dr. Badejo and complained of mild discomfort in the neck. (Tr. 506.) Motor and sensory exams were normal, and Plaintiff had normal reflexes. (Tr. 506.) Dr. Badejo gave her instructions for neck exercises. (Tr. 506.) Updated cervical-spine x-rays showed that Plaintiff's bone graft was stable. (Tr. 769.)

Dr. Badejo saw Plaintiff for a follow-up appointment on November 29, 2007. (Tr. 507.) Plaintiff complained of discomfort in her shoulders, but she had normal range of motion in her cervical spine, and normal motor and sensory function. (Tr. 507.) Dr. Badejo recommended another round of physical therapy and prescribed a non-steroidal anti-inflammatory drug. (Tr. 507.) He also gave Plaintiff a transcutaneous-electricalnerve-stimulation ("TENS") unit for a home trial. (Tr. 813.) Plaintiff began her second course of physical therapy on December 6, 2007. (Tr. 529, 654, 819-22.) She completed physical therapy on January 14, 2008. (Tr. 654, 821.)

Dr. Gonzalez saw Plaintiff again on January 23, 2008. (Tr. 547.) Plaintiff reported that she recently had an unexpected miscarriage, and her mother passed away. (Tr. 547.) She said she was handling these losses fairly well. (Tr. 547.) Plaintiff was pleasant and cooperative, with a depressed mood, a bright affect, and fair insight and judgment. (Tr. 547.) Dr. Gonzalez once again assessed a GAF score of 70. (Tr. 547.) He also prescribed a new antidepressant. (Tr. 547.)

That same day, Plaintiff saw Dr. Badejo. (Tr. 591.) Dr. Badejo noted mild tenderness in Plaintiff's shoulders. (Tr. 591.) Motor, sensory, and reflex exams were normal, and Plaintiff had normal range of motion in her neck. (Tr. 591.) Dr. Badejo gave Plaintiff a two-week supply of Valium and advised her to apply heat, do neck exercises, and use her TENS unit. (Tr. 591.)

An x-ray of Plaintiff's spine taken on February 12, 2008, showed normal alignment, moderate spondylosis at the C5-C6 level, and mild change at the C6-C7 level. (Tr. 549.) During a February 13, 2008, appointment, Dr. Badejo noted that x-rays showed Plaintiff's bone graft remained in good position. (Tr. 593.) He encouraged Plaintiff to begin neck and back exercises. (Tr. 593.)

Plaintiff saw Dr. Nguyen on March 8, 2008. (Tr. 746.) On April 4, 2008, she complained to Dr. Badejo about tenderness in her shoulders. (Tr. 592.) Dr. Badejo found that Plaintiff had normal cervical spine range of motion. (Tr. 592.) Sensory, motor, and reflex examinations were normal. (Tr. 592.) He gave Plaintiff ...

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