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Burgos-Rivera v. Commissioner of Social Security

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

March 28, 2018

EVA JUDITH BURGOS-RIVERA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES S. GWIN, JUDGE.

          REPORT & RECOMMENDATION

          Thomas M. Parker, United States Magistrate Judge.

         I. Introduction

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

         Because substantial evidence supported the ALJ's residual function capacity (“RFC”) determination and his conclusion that Burgos-Rivera's did not meet the requirements of Listing 12.05 and because the ALJ fully and fairly developed the record, I recommend that the final decision of the Commissioner be AFFIRMED.

         II. Procedural History

         Burgos-Rivera applied for DIB on May 30, 2013 (Tr. 126) alleging a disability onset date of May 14, 2013. (Tr.24) Burgos-Rivera alleged disability based on multiple sclerosis (“MS”) and arthritis in the spine. (Tr. 227) Burgos-Rivera's application was denied initially (Tr. 126, 137) and on reconsideration. (Tr. 146) Burgos-Rivera filed a written request for rehearing. (Tr. 153) Administrative Law Judge Paul R. Bronson (“ALJ”) heard the case on November 30, 2015. (Tr. 46-90) The ALJ denied Burgos-Rivera's claim on February 3, 2016. (Tr. 18) The Appeals Council denied further review on February 9, 2017, rendering the ALJ's February 3, 2016, decision the final decision of the Commissioner. (Tr. 1-3)

         Burgos-Rivera now raises three arguments: (1) the ALJ improperly evaluated Listing 12.05(C); (2) the ALJ's failed to support his RFC determination with substantial evidence; and (3) the ALJ erred by failing to fully and fairly develop the administrative record.

         III. Evidence

         Because Burgos-Rivera raises only limited issues, it is unnecessary to summarize the entire record.

         A. Personal, Educational and Vocational Evidence

         Burgos Rivera was 37 years old on her alleged onset date, and had turned 40 by the time of the hearing. (Tr. 37, 48) Burgos-Rivera graduated from high school in 1993. (Tr. 48) She was not in special education when she was in school. (Tr. 49) Brewer worked as a power press operator from January 2001 until May 2013. (Tr. 77, 79, 99)

         B. Medical Records Related to Burgos-Rivera's Impairments

         Burgos-Rivera's primary treating physicians were Preetha Muthusamy, M.D., [1] a neurologist, and Teah A. Tchelidze, M.D., her primary care physician. I will describe medical records for these and other physicians in chronological order.

         1. 2012 Records

         On March 5, 2012, Dr. Muthusamy saw Burgos-Rivera regarding her headaches and prescribed Toradol. (Tr. 281) Burgos-Rivera reported that lying down increased her headache pain. (Id.) On July 5, 2012, Burgos-Rivera reported to Dr. Muthusamy that she became sleepy after taking her medications. (Tr. 287)

         On October 22, 2012, Dr. Muthusamy conducted a follow-up neurological evaluation regarding Burgos-Rivera's relapsing limiting type of MS. (Tr. 282) Burgos-Rivera reported that she no longer had numbness in her right arm, but experienced intermittent tingling in both of her legs when she sat or rested for a long time or when she assumed a particular posture. (Id.) She denied having any new neurological symptoms. (Id.) She also reported pain radiating to the right occipital area of her right temple. (Tr. 283) Dr. Muthusamy found Burgos-Rivera's mental status, speech, cranial nerve testing II through XII, tone, sensory testing, cerebellar testing, and gait testing were all normal. (Id.) She had 5/5 strength in all four extremities and her deep tendon reflexes were 2-. (Id.) Dr. Muthusamy prescribed continued treatment with Rebif and Tylenol, and directed the patient to stay off of Lyrica. (Id.)

         2. 2013 Records

         On January 18, 2013, x-rays of Burgos-Rivera's thoracic and lumbosacral spine ordered by Dr. Tchelidze showed hypertrophic spurring at several levels. (Tr. 472)

         On March 15, 2013, Burgos-Rivera underwent a T6-T9 facet block procedure administered by Arpan Desai, M.D., to treat her facet syndrome. (Tr. 471) Burgos-Rivera had grossly normal anatomy. (Id.)

         On May 1, 2013, Burgos-Rivera told Dr. Muthusamy that the medication Rebif was not helping her and on May 5, 2013 she reported tiredness. (Tr. 280)

         On May 14, 2013, Burgos-Rivera had a follow-up neurological evaluation with Dr. Muthusamy. (Tr. 279, 312-13) She reported that she stopped taking Rebif because she was having flu-like symptoms and lacked energy to move around or to do her daily chores. (Tr. 312) She reported having 10/10 severity headaches in the right temporal area of her head that would last for five days. (Id.) She also reported having low back pain in her left hip and at nighttime on her left side that would cause numbness in her left leg. (Id.) Dr. Muthusamy found Burgos-Rivera's mental status, speech, cranial nerve testing II-XII, and sensory, cerebellar, and gait testing were all normal. (Tr. 313) She found increased tone in Burgos-Rivera's upper and lower right extremities, with 5/5 strength throughout and no evidence of pronator drift. (Id.) The straight leg raising test was positive on the left side with the left hip. (Id.) Dr. Muthusamy planned for Burgos-Rivera to have an MRI of her brain and cervical spine and an x-ray of her lower back and left hip and started her on Lyrica for her headaches and pain. (Id.)

         On May 16, 2013, an x-ray of Burgos-Rivera's lumbar spine found degenerative disc height loss at ¶ 4-5 and L5S1 and convex right thoracolumbar curve. (Tr. 292) The x-ray of her left hip was normal. (Id.)

         On May 17, 2013, Burgos-Rivera underwent an R T10-L1 facet block procedure administered by Dr. Desai to treat her facet syndrome. (Tr. 470) Burgos-Rivera had grossly normal anatomy. (Id.)

         On May 22, 2013, a MRI of Burgos-Rivera's cervical spine showed patchy cord signal intensity throughout her cervical spinal cord, particularly at the cervical medullary junction and laterally to the left at the C4 and T3 level. (Tr. 290-91) It also showed T2 hyper-intense lesions within the right lobe of the thyroid gland and white matter changes in the brain and cervical spinal cord without enhancement suggesting demyelination. (Tr. 291)

         On May 23, 2013, Dr. Tchelidze evaluated Burgos-Rivera for chest pain and found that her gait was normal and there were no focal neuro defects. (Tr. 465)

         On June 20, 2013, Burgos-Rivera complained to Dr. Tchelidze of numbness to her right leg and reported that her right leg had given way and caused her to fall and experience bruising and muscular sprain in her shoulder and lower back. (Tr. 459) She reported that she felt tired and was unable to go back to heavy manual labor work. (Id.) Dr. Tchelidze found Burgos-Rivera's gait, reflexes, and sensation were normal and there were no focal neuro defects. (Tr. 461) Dr. Tchelidze recommended that Burgos-Rivera take fall precautions and continue physical therapy and exercise. (Tr. 462)

         On October 21, 2013, Burgos-Rivera reported that her right upper and lower extremity pain and numbness paresthesia were getting worse. (Id.) She reported that she felt tired and took continuous thyroid supplementation. (Id.) Burgos-Rivera reported numbness and tingling, but no headache, confusion, dizziness, or fainting. (Tr. 456) Dr. Tchelidze found no focal neuro defects. (Tr. 458) Dr. Tchelidze diagnosed multiple sclerosis, hypothyroidism, abdominal pain, and cervicalgia. (Id.)

         On December 16, 2013, Dr. Tchelidze diagnosed Burgos-Rivera as suffering from multiple sclerosis, cervicalgia, demyelinating disorders, knee pain, hypertension, and hyperlipidemia. (Tr. 320)

         3. 2014 Records

         On February 20, 2014, Dr. Muthusamy saw Burgos-Rivera for a follow up regarding her multiple sclerosis. (Tr. 404) Burgos-Rivera complained of right side weakness, blurred vision, and slightly affected memory. (Id.) Burgos-Rivera displayed normal musculoskeletal range of motion, no edema or tenderness, a normal mental status, orientation, affect, speech, language, and normal muscle tone, 5/5 muscle strength in upper and lower extremities, and a normal gait . (Tr. 407) Dr. Muthusamy noted Burgos-Rivera had been stable with no new MS exacerbation. (Id.) Dr. Muthusamy prescribed continued Tecfidera and Topomax. (Id.)

         On April 25, 2014, Dr. Tchelidze saw Burgos-Rivera regarding her back pain. (Tr. 452) Dr. Tchelidze found Burgos-Rivera's gait was normal, her spine had a good range of motion, there was muscular tenderness at the thoracic spine and shoulder, and there were no focal neurological defects. (Id.) She prescribed Meloxicam for Burgos-Rivera's cervicalgia and back pain and renewed Tecfidera. (Tr. 454)

         On May 13, 2014, Burgos-Rivera told Dr. Tchelidze that her chronic back pain was getting worse and she felt no relief with Tylenol or anti-inflammatories. (Tr. 446) Dr. Tchelidze found that Burgos-Rivera's gait was normal, she had pain in her mid-thoracic spine and right paraspinal area, no limitation in movement, muscle strength was symmetrical in bilateral upper and lower extremities, and there were no focal neurological defects. (Tr. 449) Dr. Tchelidze prescribed Gabapentin for Burgos-Rivera's demyelinating disorder, multiple sclerosis, and thoracic back pain. (Id.)

         On May 20, 2014, Dr. Muthusamy saw Burgos-Rivera for a follow up regarding her multiple sclerosis. (Tr. 398) Burgos-Rivera reported intermittent numbness in both legs and fingertips and burning pain along her spine, mid back, and shoulder blades triggered by moving her right arm. (Id.) Dr. Muthusamy noted Burgos-Rivera had memory trouble and had forgotten appointments. (Tr. 399) She found Burgos-Rivera exhibited no edema or tenderness and had a normal range of motion, mental status, memory, affect, judgment, gait, muscle tone, and 5/5 strength in upper and lower extremities. (Tr. 401) Dr. Muthusamy prescribed continued Tecfidera and recommended an MRI of Burgos-Rivera's brain and cervical spine. (Id.) An MRI of Burgos-Rivera's thoracic spine showed a probable demyelinating lesion within the right aspect of the cord at the T3 level. (Tr. 469)

         On June 4, 2014, an MRI of Burgos-Rivera's brain showed isolated foci of hyperintensity within the supratentorial white matter, brainstem, and cerebellum that were compatible with the clinical diagnosis of multiple sclerosis. (Tr. 374) There was no evidence of new lesions. (Tr. 375) The MRI of Burgos-Rivera's cervical spine showed no new lesions and no significant change in the number, size, or configuration of the existing lesions. (Id.) There was no evidence of acute demyelination in the upper spinal cord. (Tr. 373)

         On September 3, 2014, Burgos-Rivera complained of diarrhea after returning from a trip to Puerto Rico for her mother's funeral. (Tr. 442) She reported that her multiple sclerosis symptoms improved with gabapentin. (Id.) An examination showed normal gait and no focal neurological defects. (Tr. 444-45)

         On October 27, 2014, Burgos-Rivera told Dr. Muthusamy that she had constant pain in her lumbar spine and right shoulder which increased with walking and almost every activity. (Tr. 391) She rated her pain a 10 out of 10 but denied any radiation of the pain into her legs. (Id.) She complained of tingling in her right foot and leg, numbness in her right face and leg, blurry vision, memory trouble, and urinary frequency or urgency. (Tr. 392) Dr. Muthusamy found Burgos-Rivera had a normal gait, musculoskeletal range of motion, mental status, muscle tone, memory, affect, and judgment, and muscle strength testing of 5/5. (Tr. 394) The straight leg raising test was bilaterally negative and Burgos-Rivera had cervical or thoracic paraspinal muscle spasms. (Id.)

         On October 29, 2014, Dr. Tchelidze saw Burgos-Rivera regarding her mild upper back pain. (Tr. 437) Dr. Tchelidze found Burgos-Rivera's gait was normal and there were no focal neuro defects. (Tr. 439-40) Dr. Tchelidze started Burgos-Rivera on Nortriptyline and referred her for pain management evaluation and treatment. (Tr. 440)

         On November 5, 2014, Burgos-Rivera reported that her back pain had significantly improved. (Tr. 433) Dr. Tchelidze found Burgos-Rivera had a normal gait and no focal neuro defects. (Tr. 434-35)

         On November 20, 2014, a MRI of Burgos-Rivera's lumbosacral spine showed relatively mild lumbar degenerative changes and moderate bilateral foraminal narrowing at the L4-L5 level. (Tr. 371)

         4. 2015 Records

         On January 29, 2015, Dr. Muthusamy saw Burgos-Rivera regarding her back pain. (Tr. 383-84) Burgos-Rivera reported constant pain, rated at 7-8/10, over her lumbar spine that rarely radiated into her right leg and increased with walking or washing dishes. (Tr. 384) She reported pain was associated with tingling in her right foot and leg, that physical therapy did not help, and that she stopped taking Neurontin because it made her sleepy. (Id.) Dr. Muthusamy found Burgos-Rivera had a normal musculoskeletal range of motion, gait, mental status, and increased muscle tone in her legs. (Tr. 387) Dr. Muthusamy assessed relatively mild lumber degenerative change and found that Burgos-Rivera's clinical examination was stable. (Id.)

         On March 26, 2015, Dr. Tchelidze saw Burgos-Rivera regarding her allergies and sinusitis. (Tr. 428) Burgos-Rivera reported that her pain was controlled and that she had no new neurological symptoms. (Id.) Dr. Tchelidze found that Burgos-Rivera had a normal gait and no focal neuro defects. (Tr. 431)

         On April 30, 2015, Dr. Muthusamy saw Burgos-Rivera regarding her multiple sclerosis. (Tr. 377) Burgos-Rivera reported headaches, blurry vision, and memory trouble, but denied numbness. (Id.) Dr. Muthusamy found a normal musculoskeletal normal range of motion, mental status, affect, and gait, no edema or tenderness, increased tone in muscles, and 5/5 muscle strength in upper and lower extremities. (Tr. 380)

         On May 12, 2015, a MRI of Burgos-Rivera's brain and cervical spine showed multiple intracranial white matter lesions compatible with multiple sclerosis. (Tr. 369) There were no new T2 lesions, no new enhancing lesions, and no significant cervical canal or foraminal stenosis. (Id.)

         On June 1, 2015, Dr. Tchelidze saw Burgos-Rivera regarding pain in her eyes and coccyx area. (Tr. 412) Dr. Tchelidze found Burgos-Rivera had a normal gait and no focal neuro defects. (Tr. 415) Dr. Tchelidze recommended Burgos-Rivera continue her current regimen. (Tr. 417)

         On June 18, 2015, Dr. Tchelidze saw Burgos-Rivera regarding her complaints of pain in her lower back after her hysterectomy, rectal pain, and lumbosacral pain that had not improved on Lyrica and nortriptyline. (Tr. 423) Dr. Tchelidze found Burgos-Rivera had a normal gait and no focal neuro defects. (Tr. 426)

         On July 16, 2015, Kenneth Choi, M.D. saw Burgos-Rivera regarding her back pain. (Tr. 475) Burgos-Rivera reported an 8/10 rated, constant, sharp pain that did not radiate. (Id.) She reported that work aggravated and aqua therapy alleviated the pain to some degree. (Id.) She reported that her sleep and activities of daily living were affected by her pain. (Id.) Dr. Choi found that Burgos-Rivera had a normal gait and normal heel-toe walking, right-sided paravertebral tenderness at the T8-T10 level, full range of motion, and no motor weakness. (Tr. 477) Burgos-Rivera received acupuncture treatment and an anesthetic injection and stated that her pain was 0/10 after the procedure. (Id.) Dr. Choi recommended continued exercise, stretching, and massage therapy. (Tr. 478)

         On July 21, 2015, Burgos-Rivera visited Dr. Tchelidze regarding complaints of diarrhea. (Tr. 418) Dr. Tchelidze found Burgos-Rivera had a normal gait and no focal neuro defects. (Tr. 421)

         On August 27, 2015, Dr. Muthusamy saw Burgos-Rivera for a follow up regarding her multiple sclerosis. (Tr. 358) Burgos-Rivera reported an episode of numbness on her entire right side that lasted two weeks, which she claimed resulted from an acupuncture treatment. (Id.) Burgos-Rivera denied weakness or falls. (Id.) Burgos-Rivera also reported blurred vision and memory trouble. (Id.) Dr. Muthusamy found Burgos-Rivera had a normal musculoskeletal range of motion, mental status, and increased muscle tone in her legs and 5/5 muscle strength in both her upper and lower extremities. (Tr. 361) Dr. Muthusamy's examination of Burgos-Rivera's gait showed Burgos-Rivera showed mild favoring of her right leg. (Id.)

         C. Opinion Evidence

         1. Michella Poion, PT, MPT - Physical Therapist

         On August 27, 2013, Michella Poion, PT, MPT assessed Burgos-Rivera's physical RFC. (Tr. 305) She opined that Burgos-Rivera could walk and/or stand for less than one hour and sit for thirty minutes in an eight-hour workday. (Id.) She opined Burgos-Rivera could lift or carry less than ten pounds frequently and occasionally, push or pull less than twenty pounds, bend without weight, reach “with L UE”, and see, hear, and speak. (Id.) She opined that Burgos-Rivera displayed limited tolerance to multiple functional tasks. (Id.) PT Poion educated Burgos-Rivera on the importance of a continued yoga and aquatic program for disease progression prevention. (Id.) She opined that it would be beneficial to limit Burgos-Rivera's repetitive motion with bilateral upper extremities to prevent further injury. (Id.)

         2. Dr. Eulogio Sioson - Consultative Examiner

         On September 26, 2013, Eulogio Sioson, MD, CIME, performed a disability evaluation regarding Burgos-Rivera's multiple sclerosis and abdominal pains. (Tr. 306) Dr. Sioson found that Burgos-Rivera did not experience memory or concentration problems or headaches. (Id.) Dr. Sioson found Burgos-Rivera walked normally with no assistive device and was able to get up and down from the examination table, but lost balance trying to do heel/toe walking and rose from half squat with back pains. (Tr. 307) He found no tenderness, heat, redness, swelling, subluxation or gross deformity in Burgos-Rivera's joints. (Id.) She was able to grasp and hold a 1.6 lb. dynamometer and manipulate with each hand. (Id.) She had minimal neck and lower back tenderness. (Id.) Her straight leg raising when sitting was negative, but she experienced thigh and back pains lying 20 and 30 degrees. (Id.) Burgos-Rivera had numbness in all her toes. (Id.) Burgos-Rivera had a reduced range of motion in her neck, shoulders, hips, knees, and lumbar spine. (Tr. 309-10)

         Dr. Sioson opined that Burgos-Rivera should be limited to light work. (Tr. 307)

         3. Abraham Mikalov, M.D. - State Agency Medical Consultant

         On October 2, 2013, state agency medical consultant Abraham Mikalov, M.D. assessed Burgos-Rivera's physical RFC. (Tr. 97-98) He opined that Burgos-Rivera could lift and/or carry twenty pounds occasionally and ten pounds frequently. (Tr. 97) He opined Burgos-Rivera could sit and stand and/or walk about six hours in an eight-hour workday. (Id.) He opined Burgos-Rivera had an unlimited ability to push and/or pull, other than the limitations on her ability to lift and/or carry. (Id.) He opined that Burgos-Rivera: had an unlimited capacity for stooping, kneeling, and crawling; could frequently climb ramps or stairs or crouch; and could balance occasionally. (Tr. 97-98) He opined that because Burgos-Rivera had some loss of balance related to her MS she should avoid all climbing on ladders, ropes, and scaffolding and avoid all exposure to hazards like machinery and heights. (Tr. 98)

         4. Richard C. Halas - Consultative Psychological Examiner

         On January 30, 2014, consulting clinical psychologist Richard C. Halas, M.A. performed a psychological evaluation of Burgos-Rivera's functioning levels. (Tr. 322-27) Burgos-Rivera reported that she was separated from her husband and was living with her 18-year-old son. (Tr. 322) Burgos-Rivera reported that she was born and educated in Puerto Rico, graduated from high school in 1993, and had been in the United States for sixteen years. (Id.) She had always been in regular classes, maintained average grades, and had never failed or been held back. (Id.) She reported that she did not use drugs, alcohol, or smoke cigarettes. (Tr. 323)

         Burgos-Rivera reported that she had significant back pain, headaches, and had been diagnosed with MS. (Tr. 323) She reported that she had previously taken Rebif for her MS, but was taking Tecfidera at the time of the evaluation. (Id.)

         Burgos-Rivera reported that she sometimes drives and used her driver's license as a form of photo identification. (Id.) Mr. Halas found Burgos-Rivera spoke clearly in Spanish and English, but spoke more Spanish than English. (Tr. 324) She was able to understand questions and respond appropriately in English. (Id.) Mr. Halas found Burgos-Rivera was tearful during the appointment and her psychomotor activity during the examination reflected retardation. (Id.) ...


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