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Martin v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

March 31, 2017

CHRISTAL MARTIN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Christal Martin, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for social security disability insurance benefits and supplemental security income. This matter is before the Court for disposition based upon the parties' full consent (ECF Nos. 3, 4), and for consideration of Plaintiff's Statement of Errors (ECF No. 16), the Commissioner's Memorandum in Opposition (ECF No. 23), and the administrative record (ECF No. 11). For the reasons that follow, the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed her applications for benefits in July 2011, alleging that she has been disabled since January 13, 2009, [1] due to nerve damage, spinal surgery, nerve damage to left leg, back injury, depression, arthritis, and, obesity. (R. at 392-99, 400-06, 468.) Plaintiff's applications were denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Jon K. Johnson (“ALJ”) held three video hearings, the first on September 26, 2013, in which Plaintiff, represented by counsel, appeared and testified, along with Nancy Shapiro, a vocational expert. (R. at 81-112.) The second hearing was held on February 12, 2014, in which Plaintiff, medical experts, Judith Brendemuehl, M.D., Marshall Tessnear, Ph.D., and vocational expert, Nancy Shapiro testified. (R. at 59-80.) The third supplemental video hearing was held on June 18, 2014, in which medical experts, Mary E. Buban, Psy. D., and Judith Brendemuehl, M.D., testified, along with Casey B. Vass, an impartial vocational expert. (R. at 40-56.)

         On August 12, 2014, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 20-32.) On November 20, 2015, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-7.) Plaintiff then timely commenced the instant action.

         II. HEARING TESTIMONY

         A. Plaintiff's Testimony

         Plaintiff testified at the September 26, 2013, administrative hearing that she previously worked as a nursing assistant/patient escort for the Veterans Administration in Chillicothe, Ohio. (R. at 87.) She stated that she was fired because of absenteeism, although the VA was aware she was on medical leave. (R. at 89-90.) She testified that she received a letter that either she had to come back to full duty or she was fired. (R. at 90.) Plaintiff testified she was 5' 1" tall and weighed 206 pounds. (R. at 87.)

         Regarding her daily activities, Plaintiff said she that was not involved in any social or church activities. (R. at 88.) She takes over-the-counter medications and prescription Ibuprofen for pain. (Id.) Plaintiff testified that she does “some” housework as able. (Id.) Her family eats microwave meals. (R. at 89.) Plaintiff was using a cane at the hearing and she testified to using a back brace. (Id.) She has a drivers' license. (Id.) She smokes “probably a pack” of cigarettes a day. (Id.) On a typical day, Plaintiff testified that she watches television, walks through her house, sits on the porch, reads, and plays with her dog. (R. at 90-91.)

         Plaintiff originally injured her back at work on February 2, 2010. She returned to work first on light duty, then to regular duty. She was put on leave in April 2011 by Dr. Karr. (R. at 92.) Plaintiff underwent back surgery in March 2012, but reported that her symptoms were about the same following surgery. (R. at 91.) Her doctors have told her that she could not return to the type of work she had been previously engaged in. (R. at 93.) She loses control of her bladder two to three times per week. (Id.) Plaintiff rated her pain severity at a level of 7 on a 0-10 visual analog scale. (R. at 93-94.) She has one-to-two days per week when the pain is worse, and on those “bad” days, she is “lucky if [she] can get up and go to the bathroom.” (R. at 94.) Plaintiff also testified that she underwent carpal tunnel release surgery in April 2013, but that it did not alleviate symptoms of numbness and lack of grip. (R. at 95.)

         B. Medical Expert Testimony

         At the hearing held on February 12, 2014, Judith Brendemuehl, M.D., testified as the medical expert. (R. at 66-75.) After reviewing the record (R. at 67-70), Dr. Brendemuehl concluded that Plaintiff is able to stand and walk a total of two hours out of an eight-hour day, which would put her at the sedentary exertional level of activity. She further opined that Plaintiff would not be able to twist and bend repetitively, that she would need to have an opportunity to change position and stretch hourly, and that she could lift less than 25 pounds. (R. at 71-72.)

         Dr. Brendemuehl testified that the medical evidence primarily relates to Plaintiff's back pain and obesity. (R. at 70.) Dr. Brendemuehl stated that Plaintiff's physical examinations are inconsistent. By way of example, Dr. Brendemuehl pointed out that on July 23, 2013, Plaintiff's gait and balance were found to be normal yet her straight leg test was positive, which is not consistent with the bulk of the record evidence. (R. at 69.)

         When examined by Plaintiff's counsel, Dr. Brendemuehl explained that although Plaintiff's pre-operative report showed discogenic material was central, surgery does not entirely remove discs, just offending portions. She further testified that the record reflects Plaintiff improved after her first surgery. (R. at 73.) Plaintiff had a second surgery in which the surgeon removed what he thought was residual. (Id.) Dr. Brendemuehl also explained that pain is variable dependent on success of surgery as pain comes from whatever is being impinged. (Id.) She noted that the record does not contain magnetic resonance imaging (MRI) following Plaintiff's second surgery. Her treatment notes, however, reflect that Plaintiff continued to experience radicular symptoms, and her seated-leg raise test was positive, but her reflexes were normal. (R. at 74.) Dr. Brendemuehl further noted that an evaluation from Riverside Methodist Hospital showed that with light touch to her back, Plaintiff nearly fell out of the chair and fell to the ground if her incision was touched. Dr. Brendemuehl stated that these are extremely unusual findings and not expected in a normal back examination. (R. at 75.)

         Dr. Brendemuehl also testified at the June 18, 2014 hearing. She testified that, in light of the preoperative report for carpel tunnel release, Plaintiff could perform at the light exertional level with postural limitations. (R. at 46.) Dr. Brendemuehl also testified that she saw no written prescription for a cane or walker after surgery. (R. at 45-46.)

         C. Vocational Expert Testimony

         Nancy Shapiro testified as the vocational expert (“VE”) at the both the September 26, 2013 and February 12, 2014 hearings. (R. at 76-79, 103-04.) The VE testified that Plaintiff's past relevant work included a nursing assistant, which is a medium-to-heavy exertion, semi-skilled level position. (R. at 103.)

         The ALJ proposed a series of hypothetical questions regarding a hypothetical individual with Plaintiff's age, education, work experience. The VE testified that such an individual with the residual functional capacity (“RFC”) that the ALJ ultimately assessed could perform over 8, 400 sedentary jobs in the regional economy and 1, 198, 000 sedentary jobs in the national economy including the representative positions of surveillance system monitor, receptionist or an addresser. (R. at 76-77.)

         When examined by Plaintiff's counsel, the VE testified that if the hypothetical individual was limited to occasional handling, fingering and feeling with their dominate hand; had to sit every 30 minutes for 5 minutes duration; off task 15% of the time; or absent two or more days per month on a regular basis, she could not maintain employment. (R. at 77-78.)

         III. MEDICAL RECORDS[2]

         A. Matthew C. Werthammer, M.D.

         Plaintiff began treating with neurosurgeon Dr. Werthammer on June 10, 2010. Plaintiff complained of back and left-leg pain, which she alleged was worse with sitting and standing. Plaintiff also reported numbness and tingling in her foot and toes. (R. at 919.) On examination, Dr. Werthammer found Plaintiff's strength was 4 in her left-lower extremity, she had diminished sensation in her lateral and plantar aspect of the left foot, diminished left Achilles reflex, markedly positive straight-leg raise test on her left, and mildly antalgic gait. (Id.) After treatment options were presented, Plaintiff wished to proceed with surgery-specifically, a left-sided L/5-S/1 microdiskectomy for treatment of her leg pain. (R. at 920.)

         On June 22, 2010, Plaintiff underwent left-sided L5-S1 lumbar microdiscectomy and foraminotomy for a left L5-S1 herniated nucleus pulposus with radiculopathy. (R. at 649-50.)

         When seen for neurosurgical follow-up, Plaintiff reported that she fell on the 4th of July, “which really set her back as far as her symptoms are concerned.” (R. at 972.) In September and December 2010, Dr. Werthammer noted that Plaintiff had marked improvement postoperatively, as well as resolution of her preoperative symptoms. (R. at 915-18.) In December, Dr. Werthammer opined that Plaintiff could return to work with the restrictions of no lifting over 25 pounds, no repetitive bending/twisting, and no sitting for more than an hour without getting up and stretching. (R. at 961.)

         Dr. Werthammer evaluated Plaintiff on February 16, 2012. She reported constant back pain with intermittent pain in both legs, more so on the left than the right, as well as tingling in her left leg and foot. Examination revealed significant paraspinal muscle tenderness to palpation throughout her thoracolumbar spine, and diffuse pain with limited effort dependent four out of five strength in the lower extremities. Her gait was slow, and straight-leg raising produced back pain, but no leg pain. Plaintiff told Dr. Werthammer that she had recently seen Dr. Alberico. Dr. Werthammer believed another surgery would not be beneficial, but that a spinal cord stimulator would be a reasonable option. Dr. Werthammer “again encouraged nicotine cessation and significant weight loss.” (R. at 913-14.)

         B. Ohio Valley Physicians/Aaron Karr, D.O.

         Plaintiff began treating at the primary care office of Ohio Valley Physicians in May 2010. (R. at 1166-68.) On May 21, 2010, an MRI of Plaintiff's lumbar spine revealed a large left paracentral disk protrusion at ¶ 5-S1, severely narrowed neuroforamen, tear of annulus fibrosus, and mild broad base disc bulge at ¶ 4-5. (R. at 747.)

         Plaintiff first saw Dr. Karr on August 26, 2010, with complaints of burning in her legs and pain in back. She reported suffering a recent fall and having significant tenderness in her sacral area. Plaintiff described her pain as sharp, stabbing, and localized to her sacrum. Plaintiff rated her pain severity at a level of 6 on a 0-10 visual analog scale. (R. at 1151.) Dr. Karr's treatment notes through August 2011 showed positive examination findings of tenderness to palpitations, positive straight-leg raises, and muscle spasms. (R. at 984-1146.) Dr. Karr assessed disc degeneration, herniated lumbar disc, lumbar sprain, and sacroiliitis. (Id.) Plaintiff's treatment included Toradol and Nubbin injections. (Id.) She was prescribed a variety of medications, including Lortab, Zanaflex, Valium, Doxycycline Hyclate, Meloxicam, Morphine, Fentalyn patches, Percocet, Ultram, Baclofen, Celebrex, Medrol, Vicodin, and Soma. (Id.)

         An MRI of Plaintiff's lumbar spine performed in May 2011 showed degenerative changes at ¶ 4/L5, but no additional findings of disc herniation, stenosis, or other abnormalities. (R. at 659.)

         On March 23, 2013, Plaintiff was seen for a preoperative physical examination to obtain medical clearance for carpal tunnel release surgery. Her examination findings were normal. (R. at 1596-1601.) On July 23, 2013, when seen by Dr. Kincaid, Plaintiff's gait and balance were found to be normal, but her ...


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