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Lehr v. Commissioner of Social Security

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

September 1, 2017

ANNE LEHR, Plaintiff,


          James R. Knepp II United States Magistrate Judge


         Plaintiff Anne Lehr (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the undersigned's exercise of jurisdiction. (Doc. 10). For the reasons stated below, the undersigned affirms the Commissioner's decision.

         Procedural Background

         Plaintiff filed for DIB in January 2013, alleging a disability onset date of March 1, 2009. (Tr. 129-35). Her claims were denied initially and upon reconsideration. (Tr. 93-95, 97-99). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 100). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on February 19, 2015. (Tr. 27-67). On March 24, 2015, the ALJ found Plaintiff not disabled in a written decision. (Tr. 13-20). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-3); 20 C.F.R. §§ 404.955, 404.981. Plaintiff filed the instant action on February 24, 2016. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Plaintiff was 52 years old at her alleged onset date of disability. (Tr. 69). She has a college degree (Tr. 155), and previously worked as a bakery clerk and animal shelter worker (Tr. 177).

         Plaintiff could sweep the floor, but not for “too long”. (Tr. 35). She could fold the laundry and put it away, but her husband had to carry it for her. (Tr. 36). She could not vacuum and could not grocery shop “because [she] can't carry anything really heavy or even mildly heavy.” Id. She could prepare her own meals and load her dishes into the dishwasher. (Tr. 36-37). Plaintiff was able to drive. Id.

         On a typical day at the time of the hearing, Plaintiff “tend[ed] to stay in bed as long as [she] [could] because the minute [she] get[s] up it starts and it just gets worse.” (Tr. 38). She then has coffee and makes herself a smoothie for breakfast, before checking both the postal mail and her email. Id. She sweeps the office and scoops the cat litter box, and then takes a shower. (Tr. 38-39). She watches television and reads during the day, and is “pretty much sitting.” (Tr. 39). Plaintiff testified that “even if [she's] just sitting, it hurts.” (Tr. 37).

         Plaintiff testified that prior to 2009, she was more active and exercised regularly. (Tr. 51-52). Plaintiff testified that between 2009 and September of 2011, her biggest problem preventing her from work was “[p]ain in [her] side joint area, both right and left, although the right side seemed to be worse”. (Tr. 47). The pain was “from the hip down” though it would “sometimes go up [her] back midway”. Id. Plaintiff also had knee pain. Id.

         Plaintiff testified that in 2010 she started to do yoga (at the suggestion of her chiropractor) to help with shoulder pain. (Tr. 48). She went to a few classes and then did yoga at home on her own. Id. Plaintiff testified that she “discontinued it since [she had] started to get this neck pain and that was like a month-and-a-half ago.” (Tr. 49). She stated the yoga “was helping, but after a while it was like [she] was doing it only just to calm [her] mind to try to release tension out of [her] body, but . . . it did not[ solve[] her problems and ma[k]e all the pain go away.” (Tr. 53). Plaintiff also testified that she had tried physical therapy and did what she was told, “but it was just making things worse.” (Tr. 49). Plaintiff used to have an elliptical machine at home, but she “got rid of it at least two years” prior because she could no longer use it due to it hurting her hips and SI joints. (Tr. 50-51).

         Plaintiff underwent some injections, which initially provided relief, but subsequent times did not. (Tr. 54).

         Plaintiff estimated that for the period of 2009 to 2011, she could stand or walk for about 30 minutes before having to sit down. (Tr. 54-55). She testified that she “never did more than five minutes at a time” on the elliptical, “when [she] was able to do it at all.” (Tr. 55). She estimated that during that time period, she could sit a little longer than she could at the time of the hearing but “would still always have to change positions because it would just start again to feel uncomfortable.” Id. Again, during that time period Plaintiff “would avoid lifting anything that felt too heavy and honestly, . . . because [she] had hernias in the past, [she] was always advised [not to] lift anything over ten pounds ever.” (Tr. 56). Her most comfortable position during that time period was on a recliner with some pillows for pain relief. (Tr. 57).

         Plaintiff testified she was seeing chiropractor Laura Vernallis at the River Chiropractic and Wellness Center and had seen her for several years. (Tr. 59). The chiropractic treatment helped with her pain “[i]n the beginning . . . but then over time” no longer helped. (Tr. 60). Plaintiff, however, continued to go because she “figure[d] it's probably better to go than not to go.” Id.

         Relevant Medical Evidence

         On January 7, 2009, Plaintiff began treatment with Dr. Laura Vernallis, a chiropractor. (Tr. 193-94). Plaintiff reported left shoulder, low back, and bilateral knee pain. (Tr. 194). Plaintiff also reported her back problems began ten years earlier due to a herniated disc. Id. She stated working exacerbated her pain, and it was “sharp and shooting when she sits, bends and or [sic] goes from sitting to standing.” Id. The pain was seven out of ten and “comes and goes on a daily basis.” Id. Dr. Vernallis noted a lumbar x-ray revealed “diffuse lumbar disc degeneration” and “pelvic unleveling with the right side being higher than the left.” Id. Dr. Vernallis diagnosed lumbar disc displacement, low back pain, sacroiliac pain, knee pain in joint, and pain in shoulder joint. Id. A few days later, Dr. Vernallis noted Plaintiff received “manipulation to SI” and “Cox flexion distraction of the complete lumbar region.” (Tr. 195). Her “[p]lan of [a]ction” was one visit per week for six weeks, followed by two visits per month for one month. Id.

         At her next appointment, Plaintiff reported improvement after her first adjustment. (Tr. 196). She also reported new “moderate intermittent aching low back pain” and “nominal shoulder pain”. Id. On examination, Dr. Vernallis found “SI . . . to be subluxated with mild fixation at the joint” and ”[m]otion palpation showed restriction of the joint on the right affecting SI.” Id. Plaintiff received the same treatments as during her previous visit, and Dr. Vernallis noted “[h]er condition [was] responding satisfactorily.” Id.

         A few days later, at her next appointment, Dr. Vernallis noted Plaintiff was “feeling better and [was] now able to perform and workout without having to stop due to pain in the lumbar spine.” (Tr. 197). She also reported “mild intermittent low back pain, which [was] slightly better since the last treatment.” Id. Plaintiff also reported improvement in her shoulder and knee pain. Id. Dr. Vernallis noted Plaintiff's “condition [was] improving as anticipated”. Id.

         At a February 2009 appointment, Plaintiff reported her low back was “feeling good” but also reported “new symptoms of mild frequent shooting mid back pain.” (Tr. 325). Again, Dr. Vernallis noted Plaintiff's “condition [was] improving as expected.” Id. A few days later, Dr. Vernallis noted Plaintiff reported continued improvement, but “a little more lowback[sic] and left SIJ pain following a workout a few days ago, but pain did not last and resolved on its own.” (Tr. 326). She also reported “mild occasional aching low back pain” which was “a little worse since her previous visit.” Id. Again, Dr. Vernallis stated Plaintiff's “condition [was] improving as anticipated.” Id.

         Ten days later, Plaintiff reported “spikes of lowback[sic] pain and left SIJ pain this past week”, but the “[p]ain resolved on its own”. (Tr. 327). Dr. Vernallis found reduced motion in Plaintiff's lumbar spine, but again Dr. Vernallis noted Plaintiff was improving. Id.

         At her next visit, Plaintiff had exacerbated symptoms of pain in the left sacroiliac joint that she reported developed after exercise. (Tr. 328). Plaintiff also had a new complaint of left knee pain, worsened by going up stairs. Id. Dr. Vernallis nevertheless noted Plaintiff's condition was improving. Id. Two weeks later, Dr. Vernallis noted Plaintiff “state[d] she feels good today.” (Tr. 329). She had “some mild pain in the right SIJ but it is intermittent and rated 1-2 out of 10 when she is active, walking, exercising, etc.” Id.

         Plaintiff continued to treat with Dr. Vernallis through the remainder of 2009. See Tr. 330-41. In March 2009, Plaintiff switched from weekly visits to biweekly visits (Tr. 329), and in late April, Dr. Vernallis switched her to monthly visits (Tr. 331). She at times reported exacerbations of pain. See Tr. 331-32, 335 (April, May, and July 2009 treatment notes reporting exacerbation of pain following increased activity); Tr. 337-38 (August and September 2009 visits reporting pain in the left and right sacroiliac joints). At other times, she reported improvement, see Tr. 330 (April 2009 treatment note stating: “Anne feels good today . . . “[s]he has been active and is happy with her progress.”); Tr. 334 (June 2009 treatment note stating: “[S]he is doing all her active ADLs and has had no problems.”); Tr. 336 (August 2009 treatment note stating Plaintiff's neck and low back “felt good”, and that she had “an occasional ‘twinge' but nothing painful”). In her notes from most of these visits, Dr. Vernallis noted Plaintiff was “progressing” or “improving”. See Tr. 330-38. In November and December 2009, her assessment was “[e]xacerbation.” (Tr. 339-40). In late December, Dr. Vernallis noted Plaintiff's “condition [was] responding slowly”. (Tr. 341). At that visit, Plaintiff had hip pain and Plaintiff was “discouraged about this pain that keeps her from doing the recreational activities that she enjoys so much.” Id.

         Plaintiff continued her treatment with Dr. Vernallis throughout 2010. (Tr. 342-58). In January 2010, Plaintiff was “[f]eeling better” with pain rated “an intermittent 2 out of 10 on the pain scale.” (Tr. 342). Later that month, she had achiness in her mid to low back “after cardio and kick boxing”, again “dull and achy and rated 2 out of 10.” (Tr. 343). Five days later, she was “feeling better” with “sometimes some stiffness there following exercise, but there ha[d] been no pain since the last visit.” (Tr. 344). She was still “feeling good” in February, with “no pain in the low back or either hip.” (Tr. 345). In March, her low back pain was exacerbated, and was “constant and rated 2 out of 10 on the pain scale”. (Tr. 346). She also had some shoulder and knee pain. Id. In April, Plaintiff was “feeling okay for the most part” with “just . . . some mild intermittent pain in the low back and in the left knee . . . and overall her pain is rated a one out of 10 on the pain scale.” (Tr. 347). Plaintiff reported an exacerbation of pain after working out in May 2010. (Tr. 348). The pain was “constant and rated a moderate achy 5-6 out of 10 on the pain scale.” Id. During this time period, Dr. Vernallis consistently reported Plaintiff was “progressing”, “improving” or “responding”. (Tr. 342-48).

         At her next visit in May, Plaintiff was “discouraged about her low back pain and SIJ pain” which was “increase[d] each time Anne trie[d] to participate in recreational activities which she enjoys.” (Tr. 349). Plaintiff reported her pain was “a constant dull ache rated 3-4 out of 10” and that the pain could “spike and become sharp and pinchy when she does certain movements like forward bending or twisting.” Id. Dr. Vernallis noted Plaintiff's “condition [was] responding slower than expected.” Id. Ten days later, Plaintiff returned, still discouraged, and reporting “nothing [was] helping.” (Tr. 350). Her pain as “constant and rated 4-5 out of 10 and any activity only makes her feel worse.” Id. Dr. Vernallis again noted Plaintiff's “condition [was] responding slowly.” Id.

         A little over a month later, Plaintiff reported she had improved since the previous visit. (Tr. 351). Her pain was no longer constant and “whe[n] present [was] only rated 1-2 out of 10 on the pain scale.” Id. She had “modified her workout routine” and was swimming as her primary exercise, which she was able to do “without any exacerbation of low back pain and or [sic] SIJ pain.” Id. Dr. Vernallis noted her condition was “improving as expected” and that she was “to contact our office only when further treatment is needed.” Id. The next month, July 2010, Plaintiff was “feeling good” and was “pain[]free”. (Tr. 352). She was “still swimming and not having any acute flare ups of pain.” Id. Dr. Vernallis again noted Plaintiff was improving and should contact her when she needed further treatment. Id. Again in August 2010, Dr. Vernallis noted Plaintiff's “low back [was] feeling good”. (Tr. 353). She had some neck pain, but it was “mild and intermittent and turning her head . . . just feel[s] tight, not painful.” Id. Dr. Vernallis noted Plaintiff was “responding as expected” and should follow up monthly. Id.

         In September 2010, Plaintiff went to Dr. Vernallis with an exacerbation of her low back and sacroiliac joint pain. (Tr. 354). She reported the pain began during house cleaning in which she “ha[]d to bend and lift”. Id. Her pain was “rated 2-3 out of 10 and [was] constant and achy.” Id. Plaintiff, however, “state[d] the discomfort [was] getting better on its own, she [was] stretching and that [was] helping to ease the discomfort.” Id. The following month, Plaintiff was “sore”, and “better after her last treatment, but not as good as she had been feeling”. (Tr. 355). Plaintiff reported she was “trying to exercise” and had “experienc[ed] some cracking in the low back” which was a new symptom. Id. Dr. Vernallis's notes indicate Plaintiff was “responding slower than expected.” Id. In November, Plaintiff reported she had “felt great after her last treatment” but got worse when she “endeavored to work out again.” (Tr. 356). Dr. Vernallis opined Plaintiff's condition was “improving satisfactorily.” Id. In December, Plaintiff was “feeling good”, and had done “her normal activities including cleaning and exercise and [was] happy with her progress right now.” (Tr. 357). Later that month, Plaintiff presented with an exacerbation of her low back pain “following a deep house cleaning.” (Tr. 358). Her pain was “constant . . . in the left and right SIJ that is achy and sharp with forward bending.” Id. She also had left shoulder pain. Id.

         Plaintiff also continued to treat with Dr. Vernallis in 2011. (Tr. 359-72). In January, Plaintiff had “some low back pain in the right SIJ” which was “intermittent and achy [and] rated 2-3 out of 10” and “more sore with activity as usual for her.” (Tr. 359). In January and February, Plaintiff had acupuncture treatment for left shoulder pain. (Tr. 360-61). In March, she had an exacerbation of her low back and sacroiliac joint pain after “perform[ing] a workout on the elliptical trainer.” (Tr. 362). In April, she was “feeling much better since her last treatment.” (Tr. 363). Her “SIJs [were] hurting but pain [was] intermittent and very mild compared to last visit.” Id. She also reported she was “exercising and the knee ha[d] not been an issue since [her] last visit.” Id. In May, she was “feeling good”, “[t]he mild achy feeling in the SIJs that was present last visit is gone”, and her “[k]nees fe[lt] good and so [did] the shoulders.” (Tr. 364). In June, Plaintiff presented to Dr. Vernallis “visibly upset” after “an extreme exacerbation of pain that [was] terrible and rated a constant sharp 8 out of 10”. (Tr. 365). The pain began following a workout two days prior and did not recede. Id. It was “mostly achy with some sharp and shooting pain upon certain motion.” Id. Dr. Vernallis assessed an exacerbation of pain and recommended Plaintiff “possibly maintain a new set of lumbar films or seek the care of her PCP for the extreme exacerbation of pain she is experiencing this month.” Id.

         On June 14, 2011, Plaintiff saw to Samir J. Shaia, D.O., to evaluate her lower back pain. (Tr. 321-22). Plaintiff reported her low back pain radiated to both legs with the left greater than the right and that it had slowly and progressively worsened over the past three to four weeks. (Tr. 321). Plaintiff reported leading an “active lifestyle in which she goes on the elliptical and does many exercises”. Id. Walking, sitting, and housecleaning exacerbated her pain. Id. She reported doing yoga. Id. On examination, Dr. Shaia found Plaintiff had an antalgic gait, but her tandem gait was normal. Id. Plaintiff's lumbar range of motion was restricted in flexion and extension, and she had a “[p]ainful arc of motion” in her low back. (Tr. 322). Lumbar spine x-rays showed “mild to moderate sclerosis of the sacroiliac joint left greater than right” and “degenerative disc space narrowing at ...

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