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Civitarese v. Commissioner of Social Security Administration

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

December 21, 2017



          Kathleen B. Burke, United States Magistrate Judge.

         Plaintiff 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.

         For the reasons stated below, the decision of the Commissioner is AFFIRMED.

         I. Procedural History

         Civitarese 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.

         II. Evidence

         A. Personal and Vocational Evidence

         Civitarese 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, 42.

         B. Relevant Medical Evidence[1]

         On 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.

         On 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.

         On 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.

         On 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.

         The 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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.

         On 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.

         On 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.”[2] Tr. 430.

         On 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.

         On 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.

         On 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.

         On 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.

         On October 21, 2013, she reported to Dr. Gigliotti that she had more neck pain. Tr. 482.

         On 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.

         On May 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.

         On July 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.

         On 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.

         On 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.

         On October 11, 2014, Civitarese had an MRI of her cervical spine. Tr. 556. The interpreting ...

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