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Hovater v. Colvin

United States District Court, Sixth Circuit

August 26, 2013

JILL A. HOVATER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


NANCY A. VECCHIARELLI, Magistrate Judge.

Plaintiff, Jill A. Hovater ("Plaintiff"), challenges the final decision of Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), [1] denying her applications for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 423, 1381(a) and for Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under the Act, 42 U.S.C. §§ 416(i), 423. 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 REMANDED for proceedings consistent with this Opinion and Order.


On March 2, 2009, Plaintiff filed her applications for SSI, POD and DIB, alleging a disability onset of June 3, 2009, which she later amended to March 1, 2009. (Transcript ("Tr.") 23.) The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an administrative law judge ("ALJ"). ( Id. ) On April 27, 2011, an ALJ held Plaintiff's hearing. ( Id. ) Plaintiff participated in the hearing, was represented by counsel, and testified. ( Id. ) A vocational expert ("VE") also participated and testified. ( Id. ) On May 26, 2011, the ALJ found Plaintiff not disabled. (Tr. 23-33.) On October 16, 2012, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1.)

On December 19, 2012, Plaintiff filed her complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 19, 20, 21.) Plaintiff argues that - for various reasons - substantial evidence does not support the ALJ's determination of her residual functional capacity ("RFC").


A. Personal and Vocational Evidence

Plaintiff was born on September 23, 1976. (Tr. 31.) She had a general equivalency diploma ("GED") and was able to communicate in English. ( Id. ) She had no past relevant work. ( Id. )

B. Relevant Medical Evidence[2]

1. Treatment Notes

In an October 14, 2003 letter to Dr. Patel, neurologist Harold Mars, M.D., noted Plaintiff's report that she had been involved in two motor vehicle accidents, one in 1997 and a second in June 2003. (Tr. 325.) After the first accident, Plaintiff developed L5-S1 disc problems, as well as episodic residual pain in her lower back that occasionally radiated into her lower extremities. ( Id. ) After the second accident, Plaintiff developed pain in her posterior cervical area, radiating into her arms with numbness and tingling. ( Id. ) Plaintiff reported daily headaches and diminished memory and concentration. (Tr. 324-25.) Dr. Mars's exam revealed tightness and tenderness in Plaintiff's cervical and interscapular areas. (Tr. 325.) Dr. Mars diagnosed Plaintiff with cervical and thoracic myofascitis, musculoskeletal headaches, and post-concussive syndrome. ( Id. ) Because Plaintiff was four months pregnant at the time, Dr. Mats delayed any further diagnostic procedures. ( Id. ) On November 21, 2003, Plaintiff complained to Dr. Mars of pain in her neck that was alleviated by "cracking." (Tr. 324.)

An April 2004 nerve conduction velocity study of Plaintiff's cervical spine was consistent with early cervical radiculopathy. (Tr. 590.) A May 5, 2004 MRI of Plaintiff's cervical spine revealed minimal reversal of the normal lordotic curvature of the cervical spine, as well as focal disc herniations extending from C4-5 through C6-7. (Tr. 320.) However, the MRI revealed no impingement on the cervical cord. ( Id. )

In a June 3, 2004 letter, Dr. Mars noted Plaintiff's complaints of memory problems and headaches continuing after the automobile accident. (Tr. 323.) According to Dr. Mars, Plaintiff underwent traction, but was unable to tolerate more than 20 pounds. ( Id. ) In a June 22, 2004, letter, Dr. Mars opined that Plaintiff was "still tight in the cervical paraspinous area, " but noted that Plaintiff was engaging in minimal treatment because she was breast feeding. (Tr. 322.) He indicated that he had instructed Plaintiff to return to him when she was no longer nursing. ( Id. )

In October 2004 and January 2005, George Muenster, D.O, noted Plaintiff's complaint of pain and spasms in her neck and upper back. (Tr. 341, 347.) He prescribed a lidoderm patch. (Tr. 341.) A May 2005 x-ray of Plaintiff's lumbar spine revealed unilateral spondylosis at L5 without any associated spondylolisthesis. (Tr. 585.) In July 2005, Plaintiff reported to Dr. Muenster that her left shoulder was hurting, and that she was having trouble lifting her baby. (Tr. 344.) He diagnosed Plaintiff with cervical and shoulder strain, and prescribed Neurontin and Vicodin. ( Id. ) Plaintiff continued to complain of neck and shoulder pain, as well as lower back pain, in August 2005. (Tr. 343 (August 22, 2005), 342 (August 30, 2005.) Dr. Muenster continued Plaintiff on Neurontin and Vicodin, and prescribed Flexeril. (Tr. 343, 342.) His August 30, 2005 examination revealed tenderness and muscle spasm over Plaintiff's paraspinal muscles. (Tr. 342.) On September 20, 2005, Plaintiff continued to report low back pain. (Tr. 339.) Dr. Muenster's examination revealed mild muscle tenderness over the cervical paraspinal region. ( Id. ) He prescribed Vicodin and Ultram. ( Id. )

In September 2005, Plaintiff's range of motion in the cervical spine was restricted at 60 degrees in right and left lateral rotation, with normal flexion, extension, and right and left lateral rotation, with pain at the extreme range of motion. ( Id. ) She continued to complain of recurring neck and back pain. ( Id. ) Dr. Patel opined that Plaintiff's prognosis was "guarded, " giving the injuries to her cervical spine as well as her disc herniations at C4-5 through C6-7. (Tr. 332.)

On September 7, 2005, Plaintiff complained to Dr. Muenster of back pain radiating into her legs, as well as muscle spasms in her neck. (Tr. 338.) Examination revealed tenderness over her paraspinal muscles. ( Id. ) Dr. Muenster diagnosed Plaintiff with chronic back pain and cervical strain, and prescribed Vicodin. ( Id. ) On that same day, Plaintiff presented to the emergency department at Lake Hospital, complaining of lower back and neck pain. (Tr. 429.) A physician diagnosed Plaintiff with acute myofascial strain, low back pain and acute sciatica. ( Id. ) Plaintiff received Vicodin before being discharged. (Tr. 430.)

On October 18, 2005, pain management physician Emad A. Mikhail, M.D., examined Plaintiff, noting her complaints of pain in her neck, right shoulder and lower back. (Tr. 366.) She described headaches and muscle spasms, and rated her pain at 10 out of 10 without medication and six to seven out of 10 with Vicodin. ( Id. ) Dr. Mikhail recommended that Plaintiff undergo cervical facet joint injection blocks. (Tr. 366-67.) When Plaintiff requested Vicodin, Dr. Mikhail explained that the injection blocks were the appropriate treatment. (Tr. 367.) Plaintiff became "irate" and ended the examination, threatening to contact her attorney. ( Id. ) After "hyperventilating in the hallway and displaying a lot of tearful activity, " Plaintiff became abusive with staff members at the pain management center and was eventually escorted out of the building by security. ( Id. ) Accordingly, Dr. Mikhail did not conduct a physical examination of Plaintiff. ( Id. )

Later on October 18, 2005, Plaintiff reported to the emergency department at Euclid Hospital, complaining of back pain. (Tr. 360.) She informed the emergency department staff that she had been to the pain management clinic at the hospital that day and "could not get any cooperation from them regarding treatment for her pain." ( Id. ) Physicians prescribed Vicodin and Ultram, and discharged Plaintiff. (Tr. 361.)

On November 1, 2005, pain management physician Dean C. Pahr, D.O., examined Plainitff, noting her complaints of pain in her neck and hip. (Tr. 392.) He was able to reproduce pain in Plaintiff's neck by palpitating and flattening the lordotic curve of her cervical spine. ( Id. ) Dr. Pahr diagnosed Plaintiff with cervical radiculitis and lumbar spondylosis, and prescribed methadone and relafen. (Tr. 393.) In November and December 2005, Plaintiff underwent facet injections at L3-L4, L4-L5, and L5-S1. (Tr. 582, 584.)

On January 3, 2006, Plaintiff reported to Dr. Pahr that she continued to have pain between her shoulder blades and in her neck, but felt that the methadone was decreasing the pain. (Tr. 389.) Dr. Pahr diagnosed Plaintiff with fibromyalgia, cervical radiculitis and lumbar spondylosis without myelopathy. ( Id. ) He continued Plaintiff on methadone. ( Id. ) He instructed her to obtain an x-ray of her neck to check for any misalignment. ( Id. ) A January 9, 2006 x-ray of Plaintiff's cervical spine revealed "mild reversal of the lordotic curvature which may be due to muscle spasm, " but was "essentially negative." (Tr. 574.) On February 2, 2006, Plaintiff reported to Dr. Pahr that she was doing "reasonably well." (Tr. 388.) He diagnosed her with fibromyalgia and cervicalgia, and continued her methadone. ( Id. )

Dr. Pahr continued Plaintiff on methadone through March and April 2006. (Tr. 387 (March 29, 2005), 386 (April 14, 2006)). In April 2006, he noted that Plaintiff was "doing much better now that she is on her maintenance pain medication." (Tr. 386.) He added Flexeril after Plaintiff complained of spasms. ( Id. ) In May 2006, Plaintiff complained of "some" pain, and Dr. Pahr continued her methadone. (Tr. 385.) He noted that Plaintiff's pain was "managed quite well with her medications at this time." ( Id. ) In August 2006, Plaintiff reported that she was "doing well, " and rated her pain at six to seven out of 10. (Tr. 384.) She complained of pain across the posterior aspect of her neck, radiating into her lower back. ( Id. ) Dr. Pahr diagnosed her with cervical spondylosis without myelopathy. ( Id. ) He continued her methadone. ( Id. ) In September 2006, Dr. Pahr opined that Plaintiff was "not... employable at this point." (Tr. 449.) He noted that she was attempting to make arrangements to attend college courses, and did not complain of any new pain. ( Id. ) Plaintiff continued to report pain in her neck, shoulders and legs. ( Id. )

On October 20, 2006, Plaintiff underwent a functional assessment at the request of Dr. Pahr, performed by occupational therapist Maria Hodge. (Tr. 575-81.) Ms. Hodge noted that the results of the assessment were "conditionally valid, " meaning that the "results represent the levels [Plaintiff] perceives as [her] capability, even though [Plaintiff] can physically do more." (Tr. 575.) During the assessment, Plaintiff demonstrated the ability to: occasionally lift six pounds above her shoulders bilaterally; occasionally lift 8.2 pounds from a desk to a chair bilaterally; occasionally push and pull 6.7 pounds; frequently maintain static position in her neck; and occasionally flex and rotate her head and shoulders. (Tr. 581.) On October 31, 2006, Dr. Pahr noted that he was encouraging Plaintiff to "get as much activity as she can, including climbing a flight of stairs to use her bathroom and do her laundry." (Tr. 448.)

During examinations in 2007, Dr. Pahr noted that Plaintiff had weaned herself off of her various medications, including methadone and antidepressants. (Tr. 446 (October 2007), 445 (December 2007).) Dr. Pahr described Plaintiff as "doing very well" with no changes in her physical examination. (Tr. 445, 446.)

In February 2008, Dr. Pahr noted Plaintiff's report that she had no new pains, and that she was working at Marc's. (Tr. 444.) Plaintiff was taking Percocet for pain and Zomig to control migraines. ( Id. ) In April 2008, Plaintiff reported an instance of difficulty raising her head off of the bed, followed by neck pain. (Tr. 443.) Dr. Pahr opined that Plaintiff was experiencing muscle spasms, noting that there were no neurological deficits. ( Id. ) In July 2008, Dr. Pahr reported that Plaintiff was "doing very well, " and that her condition was "very stable." (Tr. 442.) In October 2008, Plaintiff complained of pain across her back, but reported no new pains. (Tr. 441.)

In January 2009, Plaintiff reported that the Percocet gave her relief, but lasted for only four hours. (Tr. 440.) Facet injections gave her temporary relief, but only for a few weeks. ( Id. ) Dr. Pahr recommended that she obtain a lumbar MRI. ( id. ) A February 2009 MRI of Plaintiff's lumbar spine revealed a small disc protrusion at T10-T11, and degenerative arthritis in the facet joints at L5-S1. (Tr. 552.)

In April 2009, Dr. Pahr noted that Plaintiff was doing "reasonably well." (Tr. 439.) His review of her most recent MRI revealed "really no significant change in the last 4-1/2 years." ( Id. ) In July 2009, Dr. Pahr observed that Plaintiff was "doing very well, " despite having been laid off from her job. (Tr. 438.) She reported that she continued to experience pain, but Dr. Pahr characterized it as "under good control." ( Id. ) Plaintiff was compliant with her medication regimen and was looking for employment. ( Id. )

In October 2009, Plaintiff reported to Dr. Pahr that she was working part time as a school lunch lady. (Tr. 544.) She continued to have pain, stress and spasms in her neck, which resulted in migraine headaches. ( Id. ) Dr. Pahr noted "very significant spasm" in Plaintiff's paraspinal muscles on the right side of her neck. ( Id. ) He diagnosed her with myalgia, cervicalgia, and lumbar spodylosis without myelopathy. ( Id. ) Plaintiff underwent a trigger point injection on the right side of her neck. ( Id. ) He instructed Plaintiff to continue her Percocet, and to perform exercises designed to stretch and strengthen the muscles that support her cervical spine. ( Id. ) He prescribed Relpax for her migraine headaches. ( Id. )

On April 25, 2011, Dr. Pahr completed a pain questionnaire, in which he opined that Plaintiff's myalgia and migraine headaches were capable of producing pain. (Tr. 703.) He summarized her subjective complaints as "chronic pain syndrome." ( Id. ) In response to a question regarding whether the "intensity and persistence of the pain" affected Plaintiff's ability to do basic work-related activities, Dr. Pahr wrote, "yes, daily pain, " and ...

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