United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Knepp II United States Magistrate Judge
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
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).
Background and Testimony
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).
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.
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).
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.
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).
underwent some injections, which initially provided relief,
but subsequent times did not. (Tr. 54).
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).
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.
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
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.
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”.
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
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.
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.
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.
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).
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
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
“painfree”. (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.
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 “had 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.
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.
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 ...