United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
Kathleen B. Burke, United States Magistrate Judge.
Rachel Civitarese (“Civitarese”) seeks judicial
review of the final decision of Defendant Commissioner of
Social Security (“Commissioner”) denying her
application for Disability Insurance Benefits
(“DIB”). Doc. 1. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the
undersigned Magistrate Judge pursuant to the consent of the
parties. Doc. 12.
reasons stated below, the decision of the Commissioner is
protectively filed an application for DIB on June 6, 2012,
alleging a disability onset date of February 10, 2012. Tr.
14, 77. She alleged disability based on the following: major
depression, anxiety and degenerative disc disease. Tr. 198.
After denials by the state agency initially (Tr. 89) and on
reconsideration (Tr. 90), Civitarese requested an
administrative hearing. Tr. 125. A hearing was held before
Administrative Law Judge (“ALJ”) Traci M. Hixon
on March 13, 2015. Tr. 29-76. In her August 21, 2015,
decision (Tr. 14-23), the ALJ determined that there are jobs
that exist in significant numbers in the national economy
that Civitarese can perform, i.e. she is not disabled. Tr.
21. Civitarese requested review of the ALJ's decision by
the Appeals Council (Tr. 9) and, on November 14, 2016, the
Appeals Council denied review, making the ALJ's decision
the final decision of the Commissioner. Tr. 3-5.
Personal and Vocational Evidence
was born in 1980 and was 32 years old on the date her
application was filed. Tr. 158. She has a GED and last worked
in February 2012 as a teller supervisor at a bank. Tr. 34,
Relevant Medical Evidence
August 2, 2011, Civitarese saw her general practitioner,
Philip Gigliotti, M.D., complaining of severe low back pain
that radiated into her left upper leg and thigh after riding
on a motorcycle. Tr. 352, 368. She had no numbness or
weakness and she also reported that she “still”
had pain in her upper back. Tr. 368. Dr. Gigliotti diagnosed
her with lumbar radiculopathy with left leg weakness and
ordered an MRI. Tr. 368.
January 25, 2012, an MRI of Civitarese's lumbar spine
showed a small right central disc herniation at C5-S1 with
“[n]o foramen compromise or thecal sac stenosis”
but an “impression on the dural sac.” Tr. 392. An
MRI of her cervical spine taken the next day showed a
“large broad-based disc herniation at the C5-C6 levels
... that displaces subarachnoid fluid and causes impression
on the ventral margin of the spinal cord.” Tr. 393.
February 15, 2012, Civitarese saw Ajit A. Krishnaney, M.D.,
at the Cleveland Clinic spinal surgery department for a
follow-up visit. Tr. 240. Civitarese reported that, a week
after her prior visit on February 3, 2012, she woke up with
very severe exacerbation of her neck pain that radiated into
her right middle, ring, and little fingers. Tr. 240. The pain
was so severe she could not sleep or work. Tr. 240. She was
taking Vicodin and did not experience relief from her
dexamethasone pack or Neurontin and was interested in
pursuing epidural steroid injections or surgery. Tr. 240.
February 17, 2012, Civitarese saw Fady Nageeb, M.D., who gave
her an epidural cervical steroid injection. Tr. 237. She
listed her pain as ranging from a 2-10/10 and that day as a
9. Tr. 237. She had been prescribed Vicodin, Oxycodone,
Percocet, Gabapentin, and dexamethasone. Tr. 239. Dr. Nageeb
recommended further injections as needed if Civitarese
experienced relief from that day's injections. Tr. 239.
next day, Civitarese presented to Cleveland Clinic's
Fairview Hospital due to vomiting, neck pain, headache, and
leg pain. Tr. 248. Her pain was 10/10 and she reported having
had an injection the day before. Tr. 248. She underwent
another cervical spine MRI to rule out an epidural hematoma
or fluid collection. Tr. 251. The MRI showed no hematoma or
fluid collection and a disc osteophyte (bone spur) prominent
on the right that mildly indented the right side of the
spinal cord at C5-6, causing moderate stenosis. Tr. 252. She
also had a reversal of the lordosis at C5-6. Tr. 251. There
was no cord compression. Tr. 252. Civitarese requested she be
transferred to the Cleveland Clinic Main Campus and she was
transferred there on February 20. Tr. 249.
February 21, 2012, Dr. Krishnaney performed an anterior
cervical discectomy and fusion and placement of anterior
plate on Civitarese at C5-6. Tr. 297-298, 291.
April 13, 2012, Civitarese saw Dr. Krishnaney for follow-up
visit. Tr. 279. Civitarese stated that she “ha[d] been
doing pretty well since the surgery.” Tr. 279. Dr.
Krishnaney's impression was that she was improving and
had a left rotator cuff strain. Tr. 279. He ordered a
cervical x-ray to ensure Civitarese's surgical hardware
was in place and recommended physical therapy for her neck
and left shoulder. Tr. 279. A cervical x-ray showed intact
surgical hardware. Tr. 274.
April 16, 2012, Civitarese started physical therapy and saw
Amanda Albernathy, PT, DPT. Tr. 272. Civitarese reported that
she was on short-term disability and was to return to work on
April 24. Tr. 272. Her status was “improving.”
Tr. 272. Her pain was in the left side of her neck and
shoulder, was shooting, aching and constant, at that time
5/10 and ranging from 2/10 to 8/10. Tr. 272. Her pain got
worse as the day progressed. Tr. 272. She had trouble
dressing, grooming, lifting her 2-year-old, sleeping on her
left side, and she was unable to coach basketball. Tr. 272.
Lifting, reaching and turning her head made her pain worse.
Tr. 272. Upon exam she had “major” loss of motion
in her cervical spine upon retraction, protraction and
rotation, and a loss of 21 degrees upon flexion, 25 degrees
upon extension, and, with side bending, 20 degrees (right)
and 19 degrees (left). Tr. 274. Abernathy assessed Civitarese
with a “severely limited cervical range of motion and
decreased strength throughout bilateral [upper
extremities].” Tr. 276. She had “decreased
knowledge regarding her condition and how to manage
it.” Tr. 276.
April 23, 2012, Civitarese reported to Abernathy that her
positioning at night with a towel roll was helping and that
she can already notice a difference. Tr. 268. She was not
waking up as much at night. Tr. 268. She was doing well with
her stretches but still felt that she wasn't moving her
neck better. Tr. 268. Her pain had improved to 3/10 and she
felt looser and more normal. Tr. 368. Abernathy added
shoulder exercises to her home exercise program. Tr. 268.
25, 2012, Civitarese returned to Dr. Krishnaney. Tr. 264. She
stated that she continued to have pain in her left upper arm
and the middle of her back when she turned her head to the
left. Tr. 264. Recently, she noticed that her head started
shaking when she turned her head to the left. Tr. 264. Dr.
Krishnaney recommended a cervical MRI to rule out adjacent
level disc herniation and referred her to be assessed for
rotator cuff syndrome. Tr. 264. On June 4, Civitarese saw Dr.
Gigliotti and stated that she had had her surgical follow up
but wanted a second opinion. Tr. 374. She reported no
radiation, no weakness, and complained of right flank pain.
Tr. 374. She was taking Vicodin regularly and was on Butrans
pain patches. Tr. 374. Dr. Gigliotti doubled her Butrans and
refilled her Vicodin. Tr. 374.
August 2, 2012, Michael Farber, M.D., wrote a letter to
Philip Gigliotti, M.D., summarizing a discussion in which Dr.
Gigliotti confirmed mechanical neck pain, little improvement
of radiculopathy and discomfort despite surgery, and
reiterated that they “agreed that subjective complaints
appear to be out of proportion to the degree of objective
data” and “that there may be a psychological
component that is contributing to subjective
complaints.” Tr. 420-421. They further “agreed
that until [additional] MRI results are completed, claimant
should likely be restricted from heavy duty lifting as
defined by DOL.” Tr. 420-421.
September 7, 2012, Dr. Gigliotti wrote a letter saying that
Civitarese has cervical disc disease which may have been made
worse by lifting more than ten pounds. Tr. 422. On October 3,
2012, Dr. Gigliotti wrote a letter certifying that Civitarese
suffered a neck injury “which caused severe neck
pain” and that daily heavy lifting of coin boxes could
have made her neck injury worse.” Tr. 430.
September 21, 2012, Civatarese began treatment at Advanced
Comprehensive Pain Management and saw Sherif Salama, M.D. Tr.
313-318. Civitarese complained of neck pain radiating to her
bilateral shoulders and arms. Tr. 313. She was still having a
lot of pain after her fusion surgery. Tr. 313. She reported
having been injured at work from lifting a lot of shipments
and her employer was fighting her workers' compensation
claim. Tr. 313. She reported having injections in her neck in
August but that these did not help her pain at all; nor did
physical therapy. Tr. 313. Her pain was dull, shooting and
stabbing and was worse in the morning. Tr. 313. Her pain was
8/10 and the worst it had been the past few weeks was 10/10.
Tr. 313. Driving and movement made her pain worse and pain
caused her to have problems sleeping. Tr. 313. Upon exam, she
had a normal range of motion in her neck and head, moderate
tenderness bilaterally upon palpation along the cervical
facets from C4 to C7, and a decreased flexion of the cervical
spine, with both rotations to the left and right limited 10
degrees due to pain. Tr. 315 -316. She had bilateral
tenderness in her trapezius muscles, normal range of motion
in her left shoulder with no joint or muscle tenderness, and
4/5 left shoulder strength and abduction. Tr. 316. She had a
normal range of motion in her wrists, hands and fingers and
normal grip strength. Tr. 316. Her thoracic and lumber spine
exam were both normal as were examination of both lower
extremities. Tr. 316. Dr. Salama diagnosed Brachial
neuritis/radiculitis, NOS; cervical radiculitis; radicular
syndrome of upper limbs; post-laminectomy syndrome; and
cervical spondylosis with myelopathy. Tr. 317. He prescribed
Lyrica and Vicodin. Tr. 318.
October 19, 2012, Dr. Salama administered median branch nerve
blocks to the C4-C5, C5- C6, and C6-C7 levels of
Civitarese's cervical spine. Tr. 319-320.
November 7, Civitarese returned to Dr. Salama reporting that
the injections made her pain worse and that she was in bed
for a few days afterwards with a severe headache. Tr. 309.
She complained of neck pain that was moving to her left side
more and tingling in her bilateral arms. Tr. 309. Her pain
was made worse with movement and relieved by medications. Tr.
309. She reported 0% improvement after her surgery and her
pain was 7/10. Tr. 309. Dr. Salama commented that Civitarese
was “a lot better” after her last injection
because she had no right-sided neck pain. Tr. 312. He listed
her diagnoses (Brachial neuritis/radiculitis, NOS; cervical
radiculitis; radicular syndrome of upper limbs;
post-laminectomy syndrome; and cervical spondylosis with
myelopathy) as improved. Tr. 312. He educated Civitarese on
neck strain exercises. Tr. 312.
December 5, 2012, Civitarese reported to Dr. Gigliotti that
because her insurance lapsed she was unable to see Dr.
Salama. Tr. 381. She reported that she had more pain and Dr.
Gigliotti refilled her medication because she could not get
medication from Dr. Salama as she had been. Tr. 381, 312.
October 21, 2013, she reported to Dr. Gigliotti that she had
more neck pain. Tr. 482.
February 19, 2014, Civitarese saw Dr. Gigliotti complaining
of more pain in her neck and lower back. Tr. 486-488. She had
been trying to take Oxycodone but with minimal improvement.
Tr. 486. Upon exam, she had a normal gait and a normal motor
exam in both arms and legs. Tr. 488.
16, 2014, Civitarese returned to Dr. Gigliotti stating that
she had fallen backwards several days prior and had developed
more neck pain. Tr. 501. Her pain occasionally radiated into
her eye. Tr. 501.
15, 2014, Civitarese reported to Dr. Gigliotti that her neck
pain was better but that she was getting more low back pain.
Tr. 507. She was taking Oxycodone fairly regularly. Tr. 507.
On July 21, Civitarese complained to Dr. Gigliotti that she
got headaches when she took her Oxycodone. Tr. 510. She did
not experience this with Vicodin. Tr. 510. She reported
having been diagnosed with migraines a few years prior. Tr.
510. Upon exam, she had no tenderness in her spine, 5/5 motor
strength, normal sensation, and normal gait. Tr. 512.
September 12, 2014, Civitarese returned to Dr. Gigliotti and
reported continued severe pain in her neck and lower back
that radiated into her left arm and left leg, respectively.
Tr. 524. She had obtained insurance and planned on seeing
consultants. Tr. 524.
October 8, 2014, Civitarese returned to Dr. Gigliotti stating
that, for the past two days, she had had more neck pain and
had been unable to sleep or move. Tr. 532. Her neck hurt when
she moved her arms. Tr. 532. She had an appointment with
neurologist Dr. Rheiw in two weeks. Tr. 532. Dr. Gigliotti
increased her oxycodone from 10 mg every six hours to 15 mg
every six hours. Tr. 535.
October 11, 2014, Civitarese had an MRI of her cervical
spine. Tr. 556. The interpreting ...