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Quail v. Commissioner of Social Security

United States District Court, Sixth Circuit

May 2, 2013

KRISTEN J. QUAIL, Plaintiff,


JAMES R. KNEPP, II, Magistrate Judge.


Plaintiff Kristen J. Quail seeks judicial review of Defendant Commissioner of Social Security's decision to deny Disability Insurance Benefits (DIB). The district court has jurisdiction under 42 U.S.C. ยง 405(g). This case was referred to the undersigned for the filing of a Report and Recommendation pursuant to Local Rule 72.2. (Non-document entry dated April 17, 2012). For the reasons given below, the Court recommends that the Commissioner's decision denying benefits be affirmed..


On December 2, 2008, Plaintiff filed an application for DIB stating she was disabled due to bipolar disorder and neurological muscle seizures, and she alleged a disability onset date of October 12, 2007. (Tr. 164, 184). Her claim was denied initially (Tr. 125) and on reconsideration (Tr. 130). Plaintiff then requested a hearing before an administrative law judge (ALJ). (Tr. 133). Born June 21, 1959, Plaintiff was 52 years old when the hearing was held on April 28, 2011. (Tr. 27, 164). Plaintiff (represented by counsel) and a vocational expert (VE) testified at the hearing, after which the ALJ found Plaintiff not disabled. (Tr. 21, 27-120).

Reports to the Agency

Plaintiff explained she suffered from unpredictable muscle spasms, which limited her ability to move and drive and sometimes caused her to vomit. (Tr. 185). She said she suffered symptoms such as disconnected thoughts, fatigue, stiffness, depression, pain, confusion, and sleep problems. (Tr. 217, 224). Plaintiff reported taking a number of medications, did not report side effects, and believed they helped her conditions. (Tr. 190-91, 217, 223). She said her condition prevented her from sitting, standing, or laying down for long periods. (Tr. 201). She also reported stress and mental problems from bipolar disorder. (Tr. 201). Plaintiff explained she slept more than fifteen hours per day due to severe depression, did not bathe regularly, and drove infrequently. (Tr. 207, 211, 218). However, Plaintiff also said she could drive and went out alone, further reporting she shopped in stores and online. (Tr. 219).

Plaintiff reported living in a house with family. (Tr. 216). She said she only sometimes cooked and generally did not prepare complete meals due to difficulty staying on her feet. (Tr. 218). Plaintiff said she and a housekeeper worked on household chores together, she shared other duties with her husband, and they hired a lawn service for yard work. (Tr. 219). Her reported hobbies included watching television, feeding and watching birds, and some cooking. (Tr. 220). She explained she generally did these things every day, but only did basic cooking and sometimes forgot to fill the bird feeders. (Tr. 220). Plaintiff said she no longer socialized with many of her friends. (Tr. 220). She also said she used a cane and had a handicap sticker for her car, which she stated a doctor had prescribed. (Tr. 222).

Plaintiff said her typical day consisted of waking up multiple times per night due to racing thoughts and taking Xanax to go back to sleep. (Tr. 226). She said she watched television, read, walked on her patio, and tried to do household chores. (Tr. 226). At one point, Plaintiff's mother-inlaw lived with Plaintiff and her husband, and Plaintiff helped care for her mother-in-law by giving her medications and making food for her. (Tr. 226). Plaintiff reported she and her husband both fed their cat. (Tr. 226). She explained her conditions prevented her from working full time, driving like she used to, cooking complex meals, gardening, and being on her feet. (Tr. 226).

Vocational History

Plaintiff graduated from high school and completed one year of college. (Tr. 191). She worked from 1993 to 2007 in sales jobs, making a good salary. (Tr. 185, 194). Prior to her sales positions, Plaintiff worked as a collections rep and a part-time stand-up comic. (Tr. 194).

Medical Evidence Prior to Alleged Onset Date

Plaintiff saw her primary care physician Dr. Jack Rutkowski on February 20, 2007 and complained of severe lower back pain, shoulder pain, and neck pain after falling the previous day. (Tr. 386). An x-ray of her lumbar spine showed degenerative endplate changes and osteophyte formation, but vertebral bodies were in good alignment, there was no visible spondylolysis or spondylolisthesis, and no acute fracture. (Tr. 386, 447). Dr. Rutkowski diagnosed a lumbar-sacral sprain or strain and recommended "[c]onservative management". (Tr. 386). Plaintiff returned to Dr. Rutkowski continuing to complain of neck and lower back pain in March 2007, exhibiting tenderness, pain with movement, and symptoms of depression, for which Dr. Rutkowski prescribed NSAIDs, muscle relaxers, and Zoloft. (Tr. 384-85). Plaintiff saw Dr. Rutkowski with similar complaints prior to and shortly after her alleged onset date. (Tr. 395-99; see Tr. 164).

Treatment for Physical Impairments

Between November 6, 2007 and April 8, 2008, Plaintiff saw Dr. Rutkowski numerous times, generally complaining of neck pain radiating into her right shoulder and arm, tingling, numbness, back pain radiating down her legs, and headaches. (Tr. 389-94). Her cervical spine muscles were tense, with pain on flexion and extension, she had decreased sensation in her right upper extremity and decreased grip strength in her right hand on one occasion, and she had lumbar-sacral tenderness and decreased range of motion. (Tr. 389-94). Dr. Rutkowski diagnosed cervical radiculopathy, lumbar-sacral radiculopathy and pain, insomnia, depression, and anxiety, and he prescribed NSAIDs, Lyrica, Vicodin, Skelaxin, Ambien, and Cymbalta. (Tr. 389-94).

On May 28, 2008, neurologist Dr. Judah R. Lindenberg evaluated Plaintiff and noted her reported muscle seizures and "TIAs" "sounded vaguely neurologic". (Tr. 312). Plaintiff was alert, attentive, and cooperative, with normal language and immediate recall. (Tr. 313). Her motor exam, cranial nerve exam, sensory exam, coordination, reflexes, and gait were steady. (Tr. 313). Dr. Lindenberg noted diffuse severe pain, possible superimposed muscles spasms, possible myofascial pain syndrome, and "[n]on-epileptic seizures'". (Tr. 313). He recommended an EMG, continued Plaintiff's muscle relaxants, and spent a significant amount of time discussing stress management with Plaintiff, as he said stress was "a clear symptom trigger." (Tr. 313). Dr. Lindenberg's notes also indicated Plaintiff's symptoms were much better on increased Xanax. (Tr. 314). On July 31, 2008, an EMG was normal. (Tr. 316).

Plaintiff returned to Dr. Rutkowski a number of times between May 30, 2008 and August 20, 2008, again complaining of lower back pain, neck stiffness, spasms, and anxiety. (Tr. 387-88, 623-24). Dr. Rutkowski's physical findings, diagnoses, and treatment plan remained the same as on prior occasions. (Tr. 387-88, 623-24).

Plaintiff went to the ER on August 28, 2008 complaining of abdominal pain, vomiting, and back pain. (Tr. 319-20). Her physical examination was normal, but x-rays of Plaintiff's lumbosacral spine showed mild degenerative changes. (Tr. 319, 327). A CT scan of her abdomen and pelvis showed an umbilical hernia. (Tr. 228-29). On September 18, 2008, Plaintiff saw Dr. Rutkowski and complained of continuing muscle spasms, but her physical examination was normal. (Tr. 622).

Plaintiff saw neurologist Dr. Kerry H. Levin at the Cleveland Clinic Neurologic Institute on October 2, 2008 and described her history of muscle cramps worsening over the years. (Tr. 371). Plaintiff also reported several attacks so severe she required emergency treatment, muscle relaxants, and pain medication. (Tr. 371). She said her attacks typically occurred at night after mild to moderate physical activities throughout the day, further explaining the episodes occurred up to four times a week. (Tr. 371). Dr. Levin noted Plaintiff had no history of joint pain, no myalgias, and no depression or anxiety symptoms. (Tr. 371-72). Plaintiff was in no apparent distress, had a full range of motion in her neck without tenderness, good back flexion and extension with no pain, and normal extremities. (Tr. 373). She said she was depressed and exhibited a labile mood, but showed no psychomotor retardation or blunted affect. (Tr. 373). Plaintiff also reported problems walking, washing, dressing herself, and performing usual activities, extreme pain, and moderate anxiety or depression. (Tr. 375).

Plaintiff was oriented, and her remote and recent memory, attention span, concentration, language, and fund of knowledge were normal. (Tr. 373). Her physical examination was normal except for rare, impersistent right-left sensory differences. (Tr. 373). Dr. Levin noted the "segmental nature" of Plaintiff's symptoms was somewhat atypical. (Tr. 374). She ruled out a number of diagnoses as improbable, further noting Plaintiff showed no evidence of a neuromuscular disease and all lab studies were normal. (Tr. 374). Dr. Levin determined cramps might be the only unifying diagnosis and advised Plaintiff on general lifestyle modifications to help with the cramps, such as avoiding caffeine and stretching prior to bedtime. (Tr. 374).

Plaintiff saw Dr. Rutkowski on October 21, 2008 and complained of pain in her neck, right shoulder, and right leg, along with problems with depression and bipolar disorder. (Tr. 621).

On November 13, 2008, Plaintiff saw Dr. Levin, said she believed stretching exercises had helped her, and reported she was working on decreasing her caffeine intake. (Tr. 367). Plaintiff's physical and neurological examinations were normal. (Tr. 367). Dr. Levin said Plaintiff's muscle spasm symptoms had improved. (Tr. 367). Plaintiff asked Dr. Levin "about the potential for obtaining social security disability related to her spasms", but Dr. Levin told Plaintiff "[h]er symptoms [we]re intermittent enough that it [wa]s unlikely that disability status would be awarded". (Tr. 367). She stated it was possible, though, that disability could be awarded based on her psychiatric illness, which Dr. Levin described as "at least as disabling as her muscle spasms if not more." (Tr. 367).

Plaintiff saw Dr. Rutkowski on November 13, 2008 and December 10, 2008 for routine check-ups and medication refills, and physical examinations revealed normal findings. (Tr. 619-20).

On March 19, 2009, Plaintiff followed up with Dr. Levin, concerned that a change in medications caused a change in her symptoms. (Tr. 472, 590-93). Plaintiff said her muscle spasms were less frequent, shorter, and less intense. (Tr. 472). She explained she could do more than she used to be able to do, reporting her muscle spasms were less severe after she decreased her caffeine intake, started drinking more water, and started stretching. (Tr. 472). She also indicated Neurontin may have helped. (Tr. 472). She was concerned because of muscle twitching and tremors in her hands, which she said started when her medications were changed. (Tr. 472). Physical examination revealed Plaintiff had a full neck range of motion without tenderness; good flexion and extension in her back, with no pain to palpation or percussion; normal recent and remote memory, attention span, concentration, language, and fund of knowledge; and a mildly labile mood. (Tr. 473). Her motor exam, reflexes, sensation, and gait were normal. (Tr. 473-74). Treatment notes revealed Plaintiff's bipolar disorder appeared to respond well to treatment and stated Plaintiff's muscle spasms appeared to have improved overall through treatment that mainly included lifestyle modifications. (Tr. 474). Dr. Levin noted the tremors could be caused by Seroquel or Cymbalta, but stated the benefits of those medications outweighed the side effects. (Tr. 474). To treat the muscle spasms, Dr. Levin recommended tonic water, more stretching, and physical therapy. (Tr. 474).

Plaintiff saw podiatrist Dr. Donahue on April 28, 2009 complaining of longstanding pain in her heels. (Tr. 564). She said she was no longer working because she could not control her emotions. (Tr. 564). Plaintiff told Dr. Donahue that Dr. Levin told her a missing enzyme caused her muscle spasms. (Tr. 564). She said Seroquel had helped stopped her leg cramps and spasms, reporting she was pleased with her progress and liked to garden. (Tr. 564).

When Plaintiff went to physical therapy on May 12, 2009, she complained of lower extremity pain. (Tr. 549, 552). She also stated she a birth defect had resulted in her missing some enzymes, which caused spasms. (Tr. 552). She had some diminished hip and ankle strength and ambulated independently, but had a limp and used the hand rail as needed. (Tr. 553). Plaintiff also had some heel and calf tenderness, but neurological findings were normal. (Tr. 553). Plaintiff was diagnosed with muscle spasms, pain, and gait problems, and the therapist noted functional limitations. (Tr. 550). Plaintiff's potential was listed as "good". (Tr. 550).

Plaintiff returned to Dr. Donahue on May 12, 2009 and stated she had improved. (Tr. 560). Plaintiff attended physical therapy on May 22, 2009 and May 26, 2009, reporting recent spasms. (Tr. 548-49). On May 26, 2009, she saw Dr. Donahue and complained of pain but stated it was "much improved". (Tr. 558-59). Plaintiff went to physical therapy on May 28, 2009 stating her pain was better overall. (Tr. 548). Plaintiff had difficulty performing some exercises that day. (Tr. 548). When Plaintiff went to physical therapy on June 3, 2009, she reported her spasms had occurred more frequently due to increased exercise, but she tolerated her exercises well. (Tr. 547).

On June 10, 2009, Plaintiff went to the Elyria Regional Medical Center complaining of left foot pain and x-rays revealed some multifocal degenerative changes with bone spurring. (Tr. 541, 543). Plaintiff attended physical therapy several times in June 2009. At these visits, she was progressing toward independence with land and aquatic home exercises, was doing "ok", and had no new complaints. (Tr. 546-47, 551). The therapist doubted whether Plaintiff was complying with her home exercise program, but she had very good tolerance for her exercises during the session. (Tr. 551). On July 2, 2009, Plaintiff failed to show up for her appointment with Dr. Donahue. (Tr. 558). Plaintiff also did not attend her final physical therapy appointment. (Tr. 551).

Plaintiff saw Dr. Rutkowski for monthly follow-up appointments and medication refills between February 18, 2009 and September 3, 2009, and had normal physical examinations at these appointments, though she did occasionally complain of leg pain and heel pain. (Tr. 578-84, 644).

On October 14, 2009, Plaintiff wrote to neurologist Dr. Levin explaining she had recently had a severe spasm and pulled many muscles during the spasm. (Tr. 231). She explained her recovery took days and she could not work because she could not handle attendance policies due to the number of bad days she had. (Tr. 231).

Plaintiff continued seeing Dr. Rutkowski regularly between October 15, 2009 and December 18, 2010, generally for medication refills and follow-up appointments. At these appointments, she complained of right handed numbness, swelling, and tingling; radiating lower back pain with tingling in her legs; muscle cramps and convulsions; and upper extremity and knee pain (Tr. 637-43, 645, 666). Plaintiff's physical examinations were normal, and Dr. Rutkowski refilled and adjusted her prescriptions and diagnosed, variously, restless leg syndrome, carpal tunnel syndrome, and lumbar radiculopathy (Tr. 637-43, 645, 666).

Plaintiff returned to podiatrist Dr. Donahue on February 28, 2011 asking for advice on how to manage her foot condition long term. (Tr. 649). She also brought Social Security paperwork asking Dr. Donahue to document her foot condition so she could "use this to try to get Social Security Disability." (Tr. 649). Plaintiff told Dr. Donahue she helped her husband with his business because she could not hold a job due to her muscle spasms. (Tr. 649). Dr. Donahue diagnosed degenerative joint disease of her left mid-foot and retrocalcaneal left heel spurs. (Tr. 649). He recommended a number of treatments that Plaintiff elected not to use. (Tr. 650). Additionally, he told Plaintiff he did not find enough evidence to support a disability claim, stating many of his patients had worse degenerative arthritis than Plaintiff had, yet they "continue[d] to work and function and contribute to their economic well[-]being." (Tr. 650).

On March 15, 2011 and April 13, 2011, Plaintiff saw Dr. Rutkowski for medication refills and her physical examinations were normal. (Tr. 660, 665).

Treatment for Mental Impairments

On October 23, 2008, Plaintiff was psychiatrically evaluated at the Marymount Hospital Behavioral Health Center. (Tr. 332). She reported extreme mood swings, racing thoughts, hopelessness, and feeling overwhelmed. (Tr. 343). Plaintiff was extremely upset and labile, began crying, and was admitted to the hospital because she expressed suicidal ideation. (Tr. 332). While hospitalized, Plaintiff told psychiatrist Dr. Jung El-Mallawany she had suffered from muscle seizures since childhood, but they had been getting worse. (Tr. 332). She reported life stressors, but said she had never been suicidal and felt she had been misunderstood. (Tr. 332). Notes indicated Plaintiff and her husband ran a welding fabrication business. (Tr. 333). She said her marriage was good and she got along very well with her older sister. (Tr. 333). Plaintiff was eager to explain she was not suicidal, and she was reasonable in her conversation. (Tr. 333). Her mood was somewhat despondent and her affect somewhat anxious. (Tr. 333). She was preoccupied with her rare muscle disorder, and felt helpless and hopeless about it. (Tr. 333).

Plaintiff was diagnosed with a mood disorder, not otherwise specified, secondary to a medical condition. (Tr. 333). She reported Cymbalta was helping her. (Tr. 334). Plaintiff also attended occupational therapy while in the hospital, and the therapist noted she was cooperative, but had a flat or sad affect and was frustrated, overwhelmed, irritable, and discouraged. (Tr. 347). Plaintiff could sustain a conversation, but had attention problems and was impaired in judgment, problem solving, and coping skills. (Tr. 347-48). Notes indicated Plaintiff was independent in personal care and home living, except she needed help with medication management and safety procedures. (Tr. 348). During treatment, Plaintiff reported she had formerly been involved in Alcoholics Anonymous and currently smoked cigarettes, but she did not report any other prior drug use. (Tr. 338, 340). She also stated she had previously seen a therapist for mental diagnoses. (Tr. 340). Plaintiff said ...

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