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Sheila S. Phillips v. Michael J. Astrue

November 14, 2011


The opinion of the court was delivered by: Magistrate Judge Vecchiarelli


Plaintiff, Sheila S. Phillips ("Plaintiff"), challenges the final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("the Commissioner"), denying Plaintiff's applications for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("the Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.


On July 25, 2007, Plaintiff filed application for a POD and DIB, and on July 26, 2007, Plaintiff filed an application for SSI. (Tr. 13.) In both applications, Plaintiff alleged a disability onset date of June 25, 2003. (Tr. 13.) Both applications were denied initially and upon reconsideration, so Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 13.) On January 21, 2010, an ALJ held Plaintiff's hearing by video conference. (Tr. 13.) Plaintiff appeared, was represented by an attorney, and testified. (Tr. 13.) A vocational expert ("VE") also appeared and testified. (Tr. 13.) On March 8, 2010, the ALJ found Plaintiff not disabled.*fn1 (Tr. 27.) On October 10, 2011, the Appeals Council declined to review the ALJ's decision, so the ALJ's decision became the Commissioner's final decision. (Tr. 1.) On November 20, 2011, Plaintiff timely filed her complaint to challenge the Commissioner's final decision. (Doc. No. 1.)

On March 17, 2011, Plaintiff filed her Brief on the Merits. (Doc. No. 13.) On May 18, 2011, the Commissioner filed his Brief on the Merits. (Doc. No. 15.) On May 19, 2011, Plaintiff filed a Reply Brief. (Doc. No. 16.)

Plaintiff asserts two assignments of error: (1) the ALJ improperly rejected Plaintiff's treating physician's opinion; and (2) the Commissioner failed to meet his burden to show that Plaintiff could perform a significant number of jobs in the national economy.


A. Personal and Vocational Evidence

Plaintiff was 38 years old on her alleged disability onset date (Tr. 25) and 44 years old on the date of her hearing before the ALJ (Tr. 33). She has a limited education and is able to communicate in English. (Tr. 25.) She has past relevant work experience as a receptionist, housekeeper, production assembler, and small products assembler. (Tr. 25.)

B. Medical Evidence

On June 7, 2002, Plaintiff presented to Robinson Memorial Hospital's Emergency Room with a chief complaint of neck pain and stiffness. (Tr. 241.) Dr. Paul Jesionek, M.D., attended to Plaintiff and indicated that Plaintiff reported the following. (Tr. 241.) Plaintiff had suffered almost constant discomfort and pain in her neck and the right occipital scalp region for the past several weeks. (Tr. 241.) The symptoms waxed and waned in severity, but there was no paresthesia or weakness. (Tr. 241.) Plaintiff did not have any history of prior back problems and no other joint or extremity pain. (Tr. 241.) An x-ray of Plaintiff cervical spine revealed no acute bony abnormalities but only some degenerative changes and loss of lordotic curve. (Tr. 241.) Plaintiff was diagnosed with "persistent muskuloskeletal neck pain," was given Motrin and Valium at the Emergency Room, was discharged with a prescription for Skelaxin, and was advised to take Ibuprofen as well. (Tr. 241-42.)

On December 4, 2002, Plaintiff presented to the Emergency Room with a chief complaint of neck pain and stiffness. (Tr. 239.) Dr. Michael Pryce, M.D., initially attended to Plaintiff and indicated that Plaintiff reported the following. (Tr. 239.) Plaintiff had ongoing neck pain with stiffness and spasms, as well as occipital headaches, for the past six months. (Tr. 239.) She underwent chiropractic treatment to no avail. (Tr. 239.) She had no history of injury or trauma, paresthesias, or weakness in her extremities. (Tr. 239.)

Dr. Alexander Jakubowycz, M.D., examined Plaintiff and reported that, when he entered the room where Plaintiff waited, Plaintiff was sitting and speaking with her boyfriend and, when he approached Plaintiff to introduce himself, Plaintiff "put[] her head into a left lateral position and [held] it there." (Tr. 239.) Dr. Jakubowycz further reported that, as he spoke with Plaintiff, Plaintiff was able to "mov[e] her neck quite freely" and "[did] not seem to be having any limitation at all." (Tr. 239.) Dr. Jakubowycz diagnosed Plaintiff with torticollis*fn2 and recommended prescription therapy. (Tr. 240.)

On May 18, 2004, Plaintiff presented to the Emergency Room with a chief complaint of "head discomfort" and a lump on her scalp. (Tr. 235.) Dr. Dennis Haver, M.D., attended to Plaintiff and noted upon physical examination that Plaintiff "chronically holds her head turned to the side but she seems to be able to move it fairly well." (Tr. 235.) Dr. Haver further noted that Plaintiff "can put her chin down to her chest." (Tr. 235.) Dr. Haver diagnosed Plaintiff with "acute head discomfort," a scalp lesion, and hypertension and recommended that Plaintiff undergo prescription therapy. (Tr. 236.) Dr. Haver reported that Plaintiff did not desire further testing and intended to follow up with her treating physician. (Tr. 236.) Plaintiff was released in stable condition. (Tr. 236.)

On March 23, 2005, Plaintiff began presenting to Dr. Lawrence M. Saltis, M.D., for treatment of her neck. (Tr. 246.) Dr. Saltis noted that Plaintiff suffered idiopathic*fn3 torsion dystonia*fn4 of the neck, hypertension, hyperlipidemia, an anxiety disorder, depression, and thyroid disease with hypothyroidism. (Tr. 246.) Dr. Saltis further noted that Plaintiff had torticollis for approximately three years, and that "Dr. McPherson" gave Plaintiff two "Botox shots" that did not provide Plaintiff relief. (Tr. 285.)

On June 8, 2005, Plaintiff underwent an MRI of her cervical spine. (Tr. 307.) Dr. Virginia C. Porter, M.D., interpreted the results and concluded that, although there were small posterior disc bulges at C4-5, 5-6, and 6-7 with straightening of the normal cervical lordotic curve, there was no evidence of central canal stenosis or significant neural foraminal narrowing. (Tr. 307.)

On June 16, 2005, Plaintiff underwent Botox injection treatment for her neck. (Tr. 280.) On June 30, 2005, Dr. Saltis reported that Plaintiff's torsion dystonia of the neck was "markedly improved" after the recent Botox injection. (Tr. 277.) Dr. Saltis continued, however, that Plaintiff still had limited range of motion with extension, flexion, and lateral movement. (Tr. 277.)

On July 1, 2005, Plaintiff presented to Dr. Roger Weiss, D.O., for a nerve conduction study. (Tr. 308.) Dr. Weiss indicated that Plaintiff reported tingling and pain in her left arm and hand and "some neck pain" that Botox injections had recently improved. (Tr. 308.) Dr. Weiss reported that the nerve conduction study was normal, and that although Plaintiff had a cervical dystonia, neck pain, and headaches, Plaintiff was clinically improving. (Tr. 308.)

On August 30, 2005, Dr. Saltis indicated that Plaintiff reported her neck spasms and headaches were returning, and that her neck became worse throughout the day. (Tr. 274.) On October 13, 2005, Dr. Saltis indicated that Plaintiff rated her neck pain at 8 out of 10 in severity. (Tr. 271.) On October 24, 2011, Plaintiff underwent further Botox injection treatment. (Tr. 270.) On December 29, 2005, Dr. Saltis indicated that Plaintiff reported the second Botox injection treatment provided little benefit. (Tr. 267.) Still, Dr. Saltis treated Plaintiff with Botox injections throughout the next year. (Tr. 262-63, 254.)

On August 3, 2006, Dr. Saltis indicated that Plaintiff reported the Botox injections reduced her pain from a rating of 10 out of 10 in severity to 5 out of 10 in severity, although her head still tilted to the left. (Tr. 255.) On February 1, 2007, Dr. Saltis indicated that Plaintiff reported the Botox treatments were "a significant help." (Tr. 250.) On June 13, 2007, Dr. Saltis reported that Plaintiff had no new problems and that Plaintiff's response to the last Botox injection was "good." (Tr. 249.)

On November 14, 2007, state agency consultative physician Dr. Eli Perencevich, D.O., performed a physical RFC assessment of Plaintiff and determined the following. (Tr. 342-49.) Plaintiff could lift and carry 10 pounds occasionally and less than 10 pounds frequently. (Tr. 343.) She could sit, stand, and walk for about 6 hours in an 8- hour workday with normal breaks. (Tr. 343.) Her abilities to push and pull were not limited except to the extent that she was limited in her abilities to lift and carry. (Tr. 343.) She could occasionally climb ramps and stairs, stoop, kneel, and crouch; and she could never climb ladders, ropes, and scaffolds, balance, or crawl. (Tr. 344.) She was limited in her ability to reach in all directions, as she could not reach overhead with both arms. (Tr. 345.) She had no visual or communicative limitations. (Tr. 345-46.) She should avoid concentrated exposure to hazards such as moving machinery and heights. (Tr. 346.) Dr. Perencevich noted that his physical RFC assessment was adopted from a prior ALJ's determination dated January 20, 2006, because Plaintiff's medical records did not show a significant change in Plaintiff's condition. (Tr. 343.) Dr. Perencevich also noted that Plaintiff's "symptoms outweigh what would be expected given the medical evidence." (Tr. 347.)

On May 12, 2008, Plaintiff's primary care physician, Dr. Okap Kwon, M.D., performed a physical RFC assessment of Plaintiff and indicated the following. (Tr. 361-62.) Plaintiff's cervical dystonia limited Plaintiff's ability to lift such that she could lift no more than 10 pounds. (Tr. 361.) She could walk for only 1 hour total in an 8-hour workday because she had trouble breathing. (Tr. 361.) She could sit for only 1 hour total in an 8-hour day, and for one-half of an hour at a time without interruption, because she had muscle spasms and back aches that her Botox injection treatments did not alleviate. (Tr. 361.) She could never climb, balance, stoop, crouch, kneel, or crawl because she could not maintain her balance. (Tr. 362.) But she was not limited in her abilities to reach, handle, feel, push, pull, see, hear, and speak. (Tr. 362.) Her ability to tolerate work environments with heights, and vibrations was not affected, but her ability to tolerate work environments with moving machinery, temperature extremes, chemicals, dust, noise, fumes, and humidity was affected. (Tr. 362.)

From 2008 through 2009, Plaintiff presented to Dr. Steven A. Gunzler, M.D., at the Botulinum Toxin Clinic for treatment of her cervical torticollis and neck pain. (Tr. 363-70, 386-87, 430-33.) On April 29, 2008, Dr. Gunzler indicated that Plaintiff reported that her past Botox injection took three weeks to take effect but helped the posture of her head and improved her headache pain; however, tenderness in her left neck and shoulder persisted, her headaches did not resolve, and the treatment wore off one month prior. (Tr. 363.) Dr. Gunzler noted that Plaintiff "ha[d] not tried any specific headache prophylaxis, such as nortriptyline or topiramate," but "[i]nstead . . . chronically treated these headaches with various pain medications insluding NSAIDs, Tylenol, and Vocodin." (Tr. 363.) On physical examination of Plaintiff's neck, Dr. Gunzler reported that "there remains a rightward shift, leftward tilt of approximately 20-30 degrees, and left shoulder clevation." (Tr. 363.) Dr. Gunzler continued that "[t]here is a minimal and questionable leftward turn." (Tr. 363.) Dr. Gunzler's impression was that Plaintiff's headaches were "a tension-type versus migranious headache that seems related to the dystonia." (Tr. 364.) Dr. Gunzler further noted that Plaintiff was interested in continuing to obtain Botox injection treatment for her headaches and that she would consider headache prophylaxis if the Botox injections did not improve her condition. (Tr. 364.)

On September 9, 2008, Dr. Gunzler indicated that Plaintiff reported the following. (Tr. 365-66.) Plaintiff's last Botox injection took two weeks to take effect and then provided relief from her symptoms for approximately 3 and one-half months-Plaintiff's neck had straightened and her neck pain was almost eliminated. (Tr. 365.) Her symptoms were now intermittent; her neck pain was on the left side of her neck and along the trapezious. (Tr. 365.) Tylenol eliminated her headaches. (Tr. 365.) Upon physical examination, Dr. Gunzler reported that Plaintiff's left shoulder was elevated, and Plaintiff's head was tilted leftward with a possible leftward turn and rightward shift of her neck. (Tr. 366.) Dr. Gunzler noted that Plaintiff's gait was unaffected. (Tr. ...

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