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Scott v. Colvin

United States District Court, Sixth Circuit

August 28, 2013

Jeanne Marie Scott, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.

Memorandum of Opinion and Order

PATRICIA A. GAUGHAN, District Judge.


This matter is before the Court upon the Report & Recommendation of Magistrate Judge Kenneth S. McHargh (Doc. 13), recommending that the decision of the Commissioner be affirmed. This is a social security case. For the reasons that follow, the R&R is REJECTED. The decision of the Commissioner is REVERSED and this matter is REMANDED to defendant for further proceedings.


The following medical facts regarding plaintiff's degenerative disc disease appear in the R&R. It does not appear that the facts are in dispute:

Plaintiff sought treatment from Dr. Goodwin on March 23, 2007, complaining of lower back pain. Treatment notes indicated a history of slipped discs, and that Plaintiff reported using heat wraps and taking over-the-counter pain medication. She complained of morning stiffness with tingling and numbness in her legs and buttocks, and reported bending a lot each day. Dr. Goodwin prescribed over-the-counter Tylenol for the pain, and ordered a lumbroscaral spine X-ray. The X-ray (dated March 26, 2007) results were unremarkable, demonstrating normal height of the vertebral bodies and disc interspaces, with no significant pathology in [] the osseous structures, disc spaces, joints, or vertebral soft tissues.
The record also shows Dr. Goodwin ordered another X-ray, performed September 11, 2008, for mid-back pain, which showed multilevel thoracic spondylosis, with mild multilevel degenerative disc disease, but no acute bony abnormalities. At this time Plaintiff also complained of right shoulder pain, with tenderness in the paraspinal midthoracic region on her right side, and Dr. Goodwin noted 5/5 strength in her upper extremities with decreased motion in her neck. Treatment notes show Plaintiff went to urgent care the previous week due to shoulder pain, and was prescribed Naproxen. On September 23, 2008, treatment notes show Plaintiff's pain was "less severe, " that Naproxen and Tramadol helped to relieve her pain, and that she had improved range of motion in her neck, but continued to experience weakness and falling asleep' of her right arm. Dr. Goodwin referred Plaintiff to physical therapy to treat her thoracic pain and degenerative disc disease. By January 9, 2009, Dr. Goodwin's treatment notes report Plaintiff finished physical therapy and that her thoracic pain was improved; however, Plaintiff now complained of low back pain, and was diagnosed with lumbar strain.
Plaintiff began physical therapy on referral from Dr. Goodwin on September 30, 2008, to treat her back pain. Her initial evaluation showed Plaintiff reported participating in activities including laundry, cleaning, cooking, working on her computer, and taking care of her granddaughter, but that she was restricted from pushing, pulling, or lifting heavy objects. Plaintiff reported her pain range between 4/10, on her best days, and 10/10 on her worst. Therapy notes on October 2, 2008, show continued presence of pain, but at a lesser severity, and by October 6, 2008, Plaintiff felt better.' On October 13 and 16, 2008, therapy notes show no real pain, ' but with numbness and tingling. A final report was issued on November 13, 2008, stating that Plaintiff completed only seven physical therapy sessions, and had shown progressive improvement, but was discharged at that point for non-attendance.

The Administrative Law Judge ("ALJ") found at step two of the five-step sequential analysis that plaintiff does not suffer from a severe impairment. Accordingly, the inquiry ended and defendant concluded that plaintiff is not disabled.


Federal Rule of Civil Procedure 72, which governs the matter herein inasmuch as timely objections have been made to the Report and Recommendation, provides in part:

(b) Dispositive Motions and Prisoner Petitions.
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

As stated in the Advisory Committee Notes, "The term de novo' signifies the magistrate's findings are not protected by the clearly erroneous doctrine, but does not indicate that a second evidentiary hearing is required." ...

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