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Clagg v. Commissioner of Social Security

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

December 12, 2017

DIANE M. CLAGG, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES S. GWIN, JUDGE

          REPORT & RECOMMENDATION

          Thomas M. Parker, United States Magistrate Judge

         I. Introduction

         Plaintiff Dianne M. Clagg seeks judicial review of the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits under Title II of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         Because substantial evidence supports the ALJ's decision and Clagg has failed to identify any error of law in the ALJ's evaluation of her claim, I recommend that the final decision of the Commissioner be AFFIRMED.

         II. Procedural History

         Dianne M. Clagg protectively applied for supplemental security income and disability insurance benefits on March 31, 2014. (Tr. 164) She alleged a disability onset date of November 1, 2013. (Tr. 164) Clagg's application was denied initially on June 9, 2014 (Tr. 118-120) and after reconsideration on October 3, 2014. (Tr. 122-124) On December 12, 2014, Clagg requested an administrative hearing. (Tr. 82) Administrative Law Judge (“ALJ”) Susan G. Giuffre heard the matter on April 27, 2016. (Tr. 41-74) The ALJ found that Clagg was not disabled in a June 17, 2016 decision. (Tr. 16-40) The Appeals Council denied review on December 7, 2016, rendering the ALJ's conclusion the final decision of the Commissioner. (Tr. 1-6) On January 31, 2017, Clagg filed this action challenging the Commissioner's final decision. ECF Doc. 1.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Clagg was born on March 31, 2014 and was 52 years old on the alleged disability onset date. (Tr. 164) She lived with her husband and ten year old daughter. (Tr. 49) She had worked for a long time as a claims examiner for Medical Mutual. (Tr. 46-47)

         B. Medical Evidence

         Primary care physician, Jason Komitau, M.D., began treating Clagg in March 2010. (Tr. 432) In January 2013, Clagg told Dr. Komitau that she was having a nervous breakdown because she could not handle her left knee pain anymore. She was told that she needed a knee replacement, but the surgeon would not replace her knee until she lost weight. She was taking Celebrex and Percocet, but the Percocet was not working anymore. Clagg appeared depressed but her affect was otherwise appropriate; she maintained good eye contact and answered questions appropriately. Dr. Komitau diagnosed anxiety disorder, depression, hypertension and chronic knee pain and prescribed a trial of Cymbalta and referred Clagg to an orthopedic surgeon. (Tr. 336-337)

         Clagg also treated with pain management specialist Sanjay Kumar, D.O. from at least December 2012 through March 2016. (Tr. 374, 515-525) At a visit on January 2013, Clagg cried because she was tired of the pain. (Tr. 373) In April 2013, Clagg complained that her knee pain was worsening. (Tr. 370) In June 2013, Clagg complained that her back pain had flared up. (Tr. 369)

         In August 2013, Clagg complained that her arthritis in her knees and lower back was getting worse and she was having neck pain and trouble sleeping. (Tr. 324) Examination showed normal gait, full range of motion in knees, elbows and hands, full range of motion in neck but “some” discomfort. (Tr. 325) X-rays showed grade I spondylolisthesis in the cervical spine and bone-on-bone contact at the left knee and near bone-on-bone contact at the right knee. (Tr. 328)

         Clagg consulted with orthopedic surgeon Alfred Serna, M.D. in September 2013 for evaluation of her left knee. (Tr. 303) X-rays showed severe osteoarthritis of medial compartment on the left, moderate to severe on the right. There was also subluxation of the patella on the left side. (Tr. 303) Dr. Serna indicated Clagg was not a candidate for total knee replacement because of her age, obesity and poor blood flow in her legs. Instead, Clagg received Synvisc 1 injections in both knees in November 2013. (Tr. 300, 303)

         Clagg saw Dr. Komitau on October 1, 2013 who diagnosed chronic pain, generalized osteoarthritis of multiple sites and morbid obesity. Dr. Komitau discussed the importance of weaning off narcotics and started Clagg on a trial of Lyrica. He also referred her to physical therapy. (Tr. 319)

         Clagg presented for physical therapy on October 17, 2013. She complained of pain in her lower back, neck and both knees that had worsened over the past year. Clagg's knee appeared normal but was tender to palpation with minimal pressure. Her gait was described as “symmetrical stance time with and without cane; decreased stride/decreased cadence.” (Tr. 315-316)

         X-rays taken on October 28, 2013 showed mild arthritic changes of Clagg's thoracic spine. (Tr. 376) They also showed anterolisthesis up to grade I-II at multiple levels and severe disc loss space. Lumbar X-rays also revealed new or worsening anterolisthesis at ¶ 4-L5 when compared to prior studies from April 2012. (Tr. 375)

         Clagg met with Dr. Komitau on November 19, 2013. He noted a depressed mood with flat affect but indicated she had good eye contact and answered questions appropriately. Dr. Komitau restarted Cymbalta. (Tr. 346)

         In a November 21, 2013 office visit with Dr. Kumar, Clagg reported that her pain varied. She stated that she needed Celebrex and that Percocet helped. Her right knee felt better after injections from Dr. Serna, but her left knee was still bothering her. Pain was affecting her qualify of life. (Tr. 364) Examination findings from 2013 showed decreased range of motion of the lumbar spine; significant arthritic deformities; crepitus and decreased range of motion in both knees; swelling in the legs; and antalgic gait. (Tr. 363, 364, 366, 374) Clagg was using a cane for ambulation. (Tr. 367) Radiofrequency ablation of the lumbar spine in June and July 2013 seemed to help Clagg's low back pain initially, but in September 2013, she stated that it had not helped that much. Dr. Kumar prescribed a back brace. (Tr. 366)

         In February 2014, Clagg told Dr. Kumar's office that she had been sewing a lot lately, which caused pain in her arms and woke her up at night. (Tr. 361) In June 2014, she complained of worsening pain in her neck and her lower back had been bothering her as well. (Tr. 407) In October 2014, Clagg also began to complain of right shoulder pain. (Tr. 446) In November 2014, Clagg continued to complain of pain. Her back brace and medication were helping. She was starting to have difficulty with hand pain and found it difficult to open jars or hold milk. (tr. 448) Physical examination included findings of Tinel's and Phalen's signs in both wrists; tenderness in lumbar muscle with positive facet joint maneuvers; limited range of motion of the right shoulder, neck, lumbar spine and both knees; limited heel and toe walking. (Tr. 361, 405, 407, 444, 451. Dr. Kumar managed Clagg's medications. Facet joint blocks in the cervical spine in June and July 2014 helped her neck pain, but not the pain going down her arm. (Tr. 405) Radiofrequency ablation in July and August 2014 provided 40-50% pain relief. (Tr. 444)

         X-rays taken in June and July 2014 showed anterolisthesis. A cervical spine MRI in August 2014 revealed disc herniation at ¶ 4-C5 and C5-C6. (Tr. 440-441) An EMG and nerve conduction study of the upper extremities in August 2014 returned normal results with the exception of sensory fiber demyelination, mild on the left and moderate on the right. (Tr. 413)

         Clagg received chiropractic treatment from Geoffrey Poyle, D.C. from April 2014 to June 2014. (Tr. 391-399) Clagg reported worsening low back pain radiating to her left buttock and calf. (Tr. 391) Examinations showed moderate tenderness in the cervical, thoracic and lumbar spine and restricted range of motion of the lumbar spine and right hip. Kemp's and Yeoman's tests were positive bilaterally. (Tr. 391-392) In September 2014, Dr. Poyle noted that Clagg showed some improvement but that her prognosis was poor. (Tr. 398-399) On September 3, 2014, Dr. Poyle completed a short questionnaire indicating that Clagg had been compliant with therapy but that it had only provided mild, transient improvement. (Tr. 430)

         On September 15, 2014, Clagg met with Caryn DeLisio, CNP, for a pain management follow-up. During this appointment, Clagg complained of unbearable pain in her left arm. However, she had not yet gotten her wrist splints for carpal tunnel. (Tr. 444) Clagg reported that the Percocet helped to some degree; it helped her care for her daughter and do some activities of daily living. (Tr. 444) Clagg had a strong grasp and a mildly positive Tinel sign bilaterally. (Tr. 444) She ambulated with a slow gait and had some decreased range of motion in the low back, but had negative straight leg raise and normal coordination. (Tr. 444)

         Clagg's neck, back and knee pain and numbness and pain in her arms and hands continued in 2015. In January 2015, Clagg reported to Dr. Kumar that her pain was about 3/10 and it worsened with activity and walking. (Tr. 453) The position that provided the most relief was lying on her side. (Tr. 453) Clagg still had anxiety in June 2015 and Zoloft was increased. (Tr. 605, 607)

         In March 2015, Clagg saw Dr. Komitau for anxiety and depression. She reported that she was very stressed at home, “Husband cheating on me, drinking heavily. In pain all the time. Worried about her daughter.” Clagg's mood was depressed with a flat affect; she was crying and angry, but she made good eye contact and answered questions appropriately. (Tr. 588) Dr. Komitau prescribed Zoloft and Xanax. (Tr. 588)

         On May 18, 2015, Clagg reported to Ms. DeLisio that facet joint injections to her cervical spine had not offered any relief. (Tr. 465) On June 10, 2015, Clagg reported continuing joint pain despite treatment for pain management. (Tr. 614) X-rays taken on June 10, 2015 showed no degenerative arthritis or other articular disease in Clagg's wrists, shoulders and elbows, but mild degenerative arthritis at the A.C. joints. (Tr. 621)

         In July 2015, Clagg reported to Ms. DeLisio that she was having a bad month and the numbness in her hands was getting worse. She no longer had her carpal tunnel splints and wanted another prescription for those. (Tr. 471) X-rays taken on July 16, 2015 showed diffuse arthritis and multilevel spondylolisthesis of Clagg's lumbar spine. (Tr. 439)

         Dr. Komitau referred Clagg to rheumatologist, Cassandra Calabrese, D.O., a fellow at the Cleveland Clinic Foundation. Plaintiff met with Dr. Calabrese on August 13, 2015. (Tr. 654) Clagg reported lower back and neck pain and osteoarthritis of the knees. Examination showed significant spinal point tenderness around L1 as well as paraspinal in the lower back. She had limited lumbar and cervical spine range of motion due to pain. Dr. Calabrese noted that Clagg's pain was disproportionate to the extent of her osteoarthritis and that “she may have a secondary chronic widespread pain syndrome.” (Tr. 657) Dr. Calabrese also noted that Clagg's weight was a “big contributor to her joint pain, specifically in the knees and low back.” (Id.) Clagg was not interested in bariatric surgery. (Id.) Dr. Matthew Bunyard, the Cleveland Clinic physician who reviewed Dr. Calabrese's assessment, noted: “Although she has some degenerative changes, her pain seems out of proportion. Would consider other etiologies of pain including [fibromyalgia syndrome].” (Tr. 658)

         Clagg received a cervical epidural steroid injection in August 2015. (Tr. 473-475) In September and October 2015, Dr. Kumar performed a set of five injections into both knees. (Tr. 482, 484, 486, 489, 491) In November he provided a third set of facet joint blocks in Clagg's cervical spine, which helped about 50%. (Tr. 502)

         On December 9, 2015, Clagg reported sleep disturbance. (Tr. 504) Examination at this appointment revealed similar findings with the addition of spasms of the cervical and lumbar back. (Tr. 505) Dr. Kumar noted that Clagg's options were limited. He encouraged her to resume exercise in the pool. (Tr. 505)

         Clagg continued to have cervical and lumbar spasms in January and February 2016. She also had decreased range of motion of the cervical and lumbar spine and both knees, and swelling in both knees. (Tr. 512, 517-518) Clagg received a left knee injection on January 13, 2016. (Tr. 509)

         In March 2016, Clagg reported pain in her neck, back, both knees and right hip. (Tr. 520) She rated the pain as 6/10 with medication. (Tr. 522) Clagg was very depressed and reported that she had more bad days than good. She continued to report sleep disturbance. (Tr. 522) Ms. DeLisio noted antalgic gait; decreased range of motion of the cervical spine, low back, and both knees; tenderness to palpation of the lumbar facets with positive provocative maneuvers; both knees had arthritic deformity, crepitus, and mild swelling; and tender points with palpation in the upper extremities and upper body consistent with fibromyalgia. Clagg wore a back brace and right wrist splint and used a cane. (Tr. 523) Dr. Kumar continued Percocet but was hesitant to add any new medications due to her emotional state. He referred her to a pain psychologist/psychiatrist. (Tr. 524)

         Clagg met with rheumatologist, Dr. Calabrese, again in March 2016. Dr. Calabrese noted significant spinal point tenderness around her lower cervical spine. Clagg had limited lumbar spine and cervical spine range of motion due to pain. She also had painful abduction of right shoulder. (Tr. 680) Clagg was tearful during this visit. Dr. Calabrese prescribed Neurontin and Cymbalta. She also discussed with Clagg the importance of losing weight and referred her to pool therapy and to a spine specialist. (Tr. 681) Dr. Calabrese had ordered x-rays of the knees, lumbar and cervical spine during Clagg's August 2015 visit. Clagg did not get them done, telling Calabrese that she'd had them taken through the order of her pain management doctor. Dr. Calabrese noted other recommendations that Clagg had not followed. (Tr. 677-678)

         Clagg presented to physical therapy for chronic neck pain on March 14, 2016. At an appointment on March 23, 2016, she reported pain on both sides of her neck that would travel down both arms at times. She could not sleep well and was losing strength in her arms. Clagg stated that she was planning to see a pain psychologist for her depression. (Tr. 533) Examination showed tenderness at the cervical facet joints and paraspinals, and limited cervical range of motion. Clagg walked with a cane. (Tr. 534)

         C. Opinion Evidence

         1. Reviewing Physician, William Bolz - May 2014

         William Bolz, M.D., reviewed Clagg's records for the state agency on May 13, 2014 and opined that she could occasionally lift or carry 20 pounds and could frequently lift or carry 10 pounds. (Tr. 100) He felt that Clagg could stand/walk four hours and sit six hours in an eight-hour workday. (Tr. 100) Dr. Bolz also opined that Clagg could frequently climb ramps or stairs, could occasionally climb ladders, ropes or scaffolds, and could occasionally balance, stoop, kneel, crouch and crawl. (Tr. 100-101)

         2. Reviewing Psychologist - Todd Finnerty - June 2014

         Todd Finnerty, Psy.D. reviewed Clagg's records for the state agency on June 9, 2014 and opined that plaintiff's mental impairments were not severe and that she had no restrictions in activities of daily living, ...


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