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Park v. Commissioner of Social Security

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

June 22, 2018

BOBBY JO SPOOR PARK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          THOMAS M. PARKER, MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff, Bobbie Jo Spoor Park, [1] seeks judicial review, pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3), of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Disability and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). The parties have consented to my jurisdiction. ECF Doc. 16.

         Because the Commissioner's failure to address the work ability reports of Spoor Park's treating physician, Dr. Mahna, was non-harmless legal error, the final decision of the Commissioner must be VACATED and the matter must be REMANDED. However, the Commissioner's determination that Spoor Park's depression was not a severe medical impairment in the Step Two analysis was supported by substantial evidence, providing no basis for remand.

         II. Procedural History

         An administrate law judge denied Plaintiff, Bobbie Jo Spoor Park's application for disability insurance benefits (“DIB”) for the period from September 20, 2004 through the date last insured, December 31, 2009, under Title II of the Social Security Act. (Tr. 21) The ALJ found that Spoor Park was not disabled because she could perform a significant number of jobs in the economy despite her impairments. (Id.) Spoor Park's DIB claim was denied initially on October 7, 2013 (Tr. 126) and upon reconsideration on December 12, 2013. (Tr. 130) On June 15, 2015, Spoor Park appeared and testified at an administrative hearing. (Tr. 77-89) On February 23, 2016, Spoor Park appeared and testified at a supplemental hearing. (Tr. 28-76).

         The Appeals Council denied Spoor Park's request for review on June 20, 2017, leaving the ALJ's decision as the final decision of the Social Security Commissioner. 20 C.F.R. § 416.1481; Tr. 1-4. Spoor Park now raises two arguments: (1) appropriate weight was not given to the treating source physician's opinions; and (2) the ALJ erred by failing to include depression as a severe medically determinable impairment. See ECF Doc. 14, Page ID# 1099, 1102.

         III. Evidence

         A. Relevant Personal, Educational, and Vocational Evidence

         Spoor Park was 42 years old on the date of the hearing. (Tr. 38) She has a high school education, and completed additional training for a nail license and vocational school to become a licensed practical nurse (“LPN”). (Tr. 39, 48) Her past work experience included work as a nail technician and as an LPN. (Id.)

         B. Medical Evidence Regarding Spoor Park's Physical Condition from the Relevant Period

         On May 25, 2005 Spoor Park reported low back pain that, at times, radiated down her left buttock and calf. (Tr. 284) She reported that “[a]ll positions” were uncomfortable. (Id.) On examination, A. L. Itani, M.D. found Spoor Park was obese. (Id.) Her low back was nontender, but she was tender over the left sciatic notch. (Id.) Her back movements were limited. (Id.) There was no atrophy, fasciculation, or gross motor deficit in any muscle group. (Id.) Her knee jerks were positive and her left ankle jerk was diminished compared to the right at the 1. (Id.) Her straight leg raising was full. (Id.) The sensory examination was within normal limits and her posterior column function was intact. (Id.) Dr. Itani ordered a high resolution MRI scan and lumbar spine x-rays. (Id.) Dr. Itani performed decompressive surgery in August 2005. (Tr. 459)

         On April 20, 2007, Spoor Park established care with Satish Mahna, M.D. (Tr. 458-60) Spoor Park complained of low back pain that radiated into her left lower extremity and down to the knee or foot. (Tr. 459) She reported that her left leg would swell up and feel weak, and she would have numbness in her left foot. (Id.) She gained weight due to inactivity and had headaches. (Id.) Spoor Park's only medication was ibuprofen. (Id.) On examination, Dr. Mahna found Spoor Park's gait was normal and she was not in distress. (Id.) He found tenderness and mild spasm upon palpation in her lumbar paravertebral muscles. (Tr. 460) Dr. Mahna found Spoor Park's lumbar spine range of motion was restricted in all planes, with complaints of pain. (Id.) He found weakness of the bilateral lower extremities and hypesthesia in the left lower extremity. (Id.) Dr. Mahna diagnosed Spoor Park with lumbar sprain and disc herniation L5-S1. (Id.) He advised her to continue her present form of treatment, which was ibuprofen. (Id.)

         Spoor Park saw Dr. Mahna several times from August to December 2007. (Tr. 422, 425, 437, 442, 444, 446, 448, 565) Spoor Park reported several symptoms to Dr. Mahna, including low back pain with radiation into the left lower extremity and tingling, numbness, and weakness of the lower left extremity. (Tr. 422, 425, 437, 442, 444, 446, 448, 449, 565) Spoor Park reported that lifting, bending, and standing for a long time exacerbated her symptoms. (Tr. 422, 425, 437, 442, 444, 448, 565) Spoor Park rated her low back pain at level 6-7 (Tr. 422, 425, 437, 442) on a scale of 1 to 10. She also reported having headaches and “stress.” (Tr. 425, 448, 565) Dr. Mahna found that Spoor Park walked unassisted with a nonantalgic gate and appeared to be in no acute distress. (Tr. 422, 425, 442, 444, 446, 448, 565) On examination, Dr. Mahna found lumbar paravertebral muscle tenderness with mild spasm at ¶ 5-S1, restricted range of motion in the lumbar spine with complaints of pain, and hypesthesia in the left L4-5-S1 dermatomes. (Tr. 423, 426, 438, 443-45, 449, 566) Spoor Park took Ibuprofen and sometimes took Lyrica to treat her symptoms (Tr. 422, 437, 442, 444, 446, 448, 565), and Dr. Mahna instructed her to continue that treatment or to take the ibuprofen by mouth after meals. (Tr. 423, 426, 438, 443, 449, 566) Dr. Mahna also recommended Spoor Park consider pain management, vocational rehab, a repeat high resolution MRI, and lumbar spine x-rays. (Tr. 447, 449, 566)

         On February 19, 2008, Spoor Park went to the pain clinic of Dean C. Pahr, D.O. for evaluation of the chronic pain in her back and left leg. (Tr. 412) She reported she was taking ibuprofen. (Tr. 412) On examination, Spoor Park was alert, oriented, pleasant, and in no acute distress. (Id.) She reported pain in the sitting position on the left side of her back with the extension of her leg. (Id.) She had desensitized muscles across the lumbar sacral junction. (Id.) Dr. Pahr examined MRIs from before and after Spoor Park's microdiscectomy and noted some degenerative changes across her back and some significant fibrosis on the left side of her epidural space. (Tr. 412) Dr. Pahr found that Spoor Park had a displaced lumbar disc. (Id.) He recommended she continue with her ibuprofen and try Lyrica. (Id.) Spoor Park stated she did not want stronger medications. (Id.) She said she was willing to try left-sided transforaminal epidural injections at ¶ 4-L5 and L5-S1. (Tr. 412-13)

         Spoor Park met with Dr. Mahna from January through July 2008. (Tr. 345, 350, 352, 382, 404-11, 415, 418) She reported various symptoms, including: low back pain at level 6/10, 6-7/10, or 7-8/10 with radiation into the left lower extremity; tingling, numbness, and weakness of the left lower extremity; headaches; and “stress.” (Tr. 345, 350, 352, 382, 404, 406, 408, 410, 415, 418) She reported that lifting, bending, standing for a long time, and weather changes all exacerbated her symptoms. (Tr. 345, 382, 404, 406, 408, 410, 415, 418) She was able to walk unassisted, with a nonantalgic gait, and appeared to be in no acute distress. (Tr. 345, 350, 352, 382, 404, 406, 408, 410, 415, 418) On examination, Dr. Mahna found lumbar paravertebral muscle tenderness with mild spasm at ¶ 5-S1, no focal trigger points, restricted range of motion in the lumbar spine with complaints of pain, and hypesthesia in the left L4-5-S1 dermatomes. (Tr. 346, 351, 353, 383, 405-11, 415, 419) She reported taking Naproxen or Ibuprofen, sometimes adding Lyrica (Tr. 345, 350, 352, 382, 404, 406, 408, 410, 415, 418), and Dr. Mahna recommended she continue that treatment. (Tr. 346, 351, 353, 383, 405, 407, 409, 411, 416, 419)

         Spoor Park met with Dr. Mahna from August 2008 to January 2009. (Tr. 527-37, 539-45) She reported many of the same symptoms, including: low back pain at level 6-7/10, 7/10, or 7-8/10 with radiation into the left lower extremity; intermittent spasms in the back and left lower extremity, especially during the night; tingling, numbness, and weakness of the left lower extremity, and being “real achy.” (Tr. 527, 529, 532, 534, 536, 539, 541, 543-45) She also reported that “there are days she can hardly get out of bed and feels like crying.” (Tr. 536) She reported lifting, bending, standing for a long time, and weather changes exacerbated her symptoms. (Tr. 527, 529, 532, 534, 536, 539, 541, 543, 545) She was able to walk unassisted, with a nonantalgic gait and appeared to be in no acute distress. (Tr. 527, 529, 532, 534, 536, 539, 541, 543-45) On examination, Dr. Mahna found lumbar paravertebral muscle tenderness with mild spasm at ¶ 5-S1, no focal trigger points, and restricted range of motion in the lumbar spine with complaints of pain. (Tr. 528, 530, 533, 535, 537, 540, 542) She reported taking Naproxen or Ibuprofen (Tr. 527, 529, 532, 534, 539, 541, 543-45), and Dr. Mahna recommended she continue that treatment. (Tr. 528, 530, 533, 535, 537, 540, 542)

         Spoor Park met with Dr. Mahna in February and April 2009. (Tr. 502-16) She reported that her pain and numbness had increased after physical therapist Jonathan Strychasz's functional capacity evaluation. (Tr. 502) She reported that her back pain had worsened because she “slightly tripped” while going down the stairs due to the numbness in her left leg. (Id.) She said she “almost went to the emergency room” but was “popping pills” instead. (Id.) She reported symptoms, including: low back pain at level 7-10/10 or 9-10/10 with radiation into the left lower extremity; intermittent spasms in the back and left lower extremity; and tingling, numbness, and weakness of the left lower extremity. (Tr. 502-04, 506, 509) She reported lifting, bending, standing, and sitting “a certain way” exacerbated her symptoms. (Tr. 502, 504, 506) Spoor Park also reported that she went to the emergency room at Geneva Memorial Hospital, had an emergency MRI, and was advised to see a neurosurgeon as soon as possible. (Tr. 508) She was able to walk unassisted, with a nonantalgic gait and appeared to be in no acute distress. (Tr. 502, 504, 506) On examination, Dr. Mahna found lumbar paravertebral muscle tenderness with mild spasm, no focal trigger points, and restricted range of motion. (Tr. 503, 505, 507, 510) She reported taking Naproxen or Ibuprofen, Percocet, Vicodin, Skelaxin, and Prednisone (Tr. 502, 504, 506, and 509). Dr. Mahna prescribed Naprosyn and Ultram-ER and recommended she submit paperwork for authorization for a MRI scan. (Tr. 503) Later, he advised her to continue her present medications and go to the emergency room if she developed further deterioration or weakness. (Tr. 503, 510)

         On May 2, 2009, Spoor Park saw Dr. Itani after a MRI revealed a herniated disc at ¶ 5-S1 going into the foramen on the left side. (Tr. 497) On examination, her low back was tender to persuasion, her back movements were limited, and there was weakness in the left hip extensors and foot drop on the left side. (Id.) The other muscle groups were within normal limits and there was no atrophy or fasciculation. (Id.) Straight leg raising was 30 degrees on the left and full on the right. (Id.) There was diminished response to a pin throughout the left lower extremity compared to the right. (Id.) Dr. Itani recommended urgent microdiscectomy. (Id.)

         Spoor Park met with Dr. Mahna three times in May 2009. (Tr. 338-41, 343-44) She reported symptoms, including: low back pain at level 6/10 or 7-8/10 with radiation into the left lower extremity; intermittent spasms in the back and left lower extremity, especially during the night; and tingling, numbness, and weakness of the left lower extremity. (Tr. 338, 340, 343) On May 1, 2000, she reported that the pain was worse in her left leg and foot than in her back. (Tr. 343) She reported lifting, bending, standing, and “sitting a certain way” exacerbated her symptoms. (Tr. 338, 343) She was able to walk unassisted, with a nonantalgic gait and appeared to be in mild distress due to pain. (Tr. 338, 340, 343) On examination, Dr. Mahna found lumbar paravertebral muscle tenderness with mild spasm at ¶ 5-S1, no focal trigger points, restricted range of motion in the lumbar spine with complaints of pain. (Tr. 339, 341, 344) She reported taking Naproxen, Skelaxin, Vicodin, and Ultram-ER (Tr. 338, 340, 343), and Dr. Mahna recommended she continue that treatment. (Tr. 339, 344)

         On June 15, 2009, Dr. Itani performed a microdiscectomy to repair Spoor Park's herniated disk at ¶ 5-S1 on the left. (Tr. 337) Spoor Park's condition was satisfactory at the end of the surgery. (Id.)

         On July 24, 2009, Spoor Park reported that she had numbness over her ankle and lateral aspect of her left foot. (Tr. 321) She complained of pain in the left side of her lower back, with radiation down to the left calf, weakness in her left leg and foot, and hypesthesia of the left L4-5-S1 dermatomes. (Id.) She ambulated unassisted with a nonantalgic gait. (Id.) She reported taking Ultram-ER, Naprosyn, and Flexeril. (Id.) Dr. Mahna found paravertebral tenderness with mild spasm, no focal trigger points, and restricted range of motion. (Tr. 322) He encouraged Spoor Park to continue physical therapy and taking Naprosyn. (Id.)

         From July 2009 to October 2009, Spoor Park underwent physical therapy. (Tr. 296-309) She reported pain in her left buttock, down her left leg, and into her foot. (Tr. 296, 298, 302, 304) She also reported that she had trouble sleeping and would take ibuprofen at night. (Tr. 297) At times she reported no increase in pain between the physical therapy sessions. (Tr. 299, 301) The physical therapist noted that Spoor Park still had weakness in her left leg. (Tr. 296) He also found her left ankle was getting tighter and she was losing range of motion. (Tr. 298) At the end of her therapy, Spoor Park had full range of motion in her right knee extension and negative 15 degrees in her left knee. (Tr. 304) Her muscle strength increased from 2 to 3-/5 in her dorsiflexion, but otherwise generally remained the same. (Id.) The physical therapist recommended vocational rehabilitation to access return to work. (Tr. 305)

         Plaintiff saw Dr. Mahna several times in August and September 2009. (Tr. 317-20) She reported “burning aching” low back pain rated at level 5/10 or 6/10, with intermittent radiation into the left lower extremity, weakness of the left leg and foot, and worsening symptoms with sitting and standing too long. (Tr. 317, 319) She stated she wondered about starting antidepressant medications. (Id.) Spoor Park was able to ambulate unassisted with a nonantalgic gait. (Tr. 317, 319) She reported taking Ultram-ER, Naprosyn, and Flexeril. (Tr. 317, 319) Dr. Mahna advised her to continue her treatment and consult a psychiatrist regarding her depression issue. (Tr. 318)

         Spoor Park met with Dr. Mahna in October, November, and December 2009. (Tr. 294, 310-14) She reported symptoms, including: aching and burning low back pain at level 5-6/10 or 7/10 with radiation into the left lower extremity; constant numbness of varying degrees of the left foot, weakness of the left leg and foot, and worsening symptoms with sitting and standing for long. (Tr. 294, 310, 312, 314) She was able to walk unassisted, with a nonantalgic gait and appeared to be in mild distress. (Tr. 294, 310, 312, 314) On examination, Dr. Mahna found lumbar paravertebral muscle tenderness with mild spasm, no focal trigger points, and restricted range of motion. (Tr. 294, 310, 312, 314) She reported taking Ultram-ER, Naproxen, and Flexeril (Tr. 294, 310, 312, 314), and Dr. Mahna recommended she continue that treatment. (Tr. 295, 311, 313, 315)

         C. Medical Evidence Regarding Spoor Park's Physical Condition after the Relevant Period

         On October 15, 2010, Spoor Park reported to Dr. Mahna that it was hard for her to get out of the bed in the morning. (Tr. 782) She complained of ongoing aching, burning, low back pain, rated at 7/10 with radiations into the left calf and at times the top of the left foot, constant aching with intermittent throbbing right groin pain; constant numbness of the left foot; intermittent “shocking numbness” in the lower right extremity, weakness in the left leg and foot, and worsening symptoms with sitting and standing for too long. (Tr. 782) She also reported that when ascending stairs her right leg felt weak and he right groin would hurt. (Id.) She ambulated unassisted with a nonantalgic gait and appeared to be in mild distress due to pain. (Id.) An x-ray of Spoor Park's pelvis and bilateral hips on October 4, 2010 reportedly was negative and showed preserved bilateral hip joint spaces, no focal bony lesion, and no fracture or subluxation. (Tr. 783) Dr. Mahna prescribed Percocet and recommended Spoor Park consider a pain consultation. (Id.)

         D. Medical Evidence Regarding Mental Impairments

         The record contained no evidence of psychological treatments prior to October 2007. In October 2007, Spoor Park began counselling at Weinstein and Associates, Inc. (Tr. 430-35, 439, 477-78, 538) She reported difficulty sleeping (Tr. 430-35, 477), anxiety (Tr. 430-31, 433, 439), low tolerance for stress (Tr. 430), irritability (Tr. 430-31), and low energy. (Tr. 477) She presented symptoms of depression, flat affect, difficulty concentrating, and/or impaired memory. (Tr. 431-35, 477) At times she would exhibit pain behaviors throughout her counselling session. (Tr. 432, 435) She reported missing the social part of her job, yet not feeling like being around anyone. (Tr. 477) She rejected pharmacological treatment due to concerns of their interaction with her pain medication and concern that using different medications would impair her ability to care for her infant daughter. (Tr. 431)

         E. Opinion Evidence

         1. Ira J. Ungar MS, M.D., FACEP, CIME - Certified Independent Medical Evaluator

         a. July 14, 2005 Opinion

         Ira J. Ungar, M.D., evaluated Spoor Park twice. On July 14, 2005, Spoor Park reported that she had no improvement in her lower back pain despite multiple courses of physical therapy. (Tr. 278) An MRI revealed several small disc herniations with potential neural impingement, but no specific nerve roots were impinged. (Id.) Dr. Ungar found that the multiple physical examinations in Spoor Park's file reveled significantly varied findings. (Id.) He noted that electrodiagnostic studies revealed a mild subacute L5 radiculopathy and epidural injections generated no improvement in symptomatology. (Id.) Although Spoor Park's complaints were at “moderately severe levels, ” objective evaluation “noted full range of motion performed vigorously, but dramatic breakaway weakness of the left lower extremity at the knee and ankle in both flexion and extension.” (Id.) Dr. Ungar stated, “If this truly represented her physical capabilities, Ms. Spoor would have been unable to stand or walk.” (Id.) Dr. Ungar further note that despite Spoor Park's reports of moderately severe levels of pain, she “freely laughed throughout the evaluation.” (Id.) Dr. Ungar noted Spoor Park had undergone all reasonable conservative treatment, including physical therapy and epidural steroid injections, without improvement in her subjective complaints and recommended that a spinal surgeon evaluate Spoor Park's two disc herniations. (Id.) Dr. Ungar's objective evaluation did not support that Spoor Park's conditions existed or were related to the occupational incident in Spoor Park's claim. (Tr. 279) Dr. Ungar recommended Spoor Park undergo a surgical evaluation and then surgery, if it was recommended. (Id.) He opined that if Spoor Park did not want to accept surgical decompression, no further diagnostic or therapeutic intervention would be appropriate because Spoor Park would be considered at maximum medical improvement. (Id.)

         b. May 16, 2007 Opinion

         On May 16, 2007, Dr. Ungar evaluated Spoor Park a second time. (Tr. 470-76) Spoor Park again complained of low back pain radiating to her left leg and numbness and tingling in her left foot and back of her leg. (Tr. 471) She rated her discomfort as a 6 out of 10, which is moderately severe to excruciating, even though she only used ibuprofen to control her symptoms. (Id.)

         On examination, Dr. Ungar found Spoor Park's physical exam activities were performed with “dramatically exaggerated pain behaviors.” (Tr. 473) Spoor Park's spine was normal other than vague discomfort upon palpation of the paralumbar musculature. (Id.) He noted that Spoor Park was able to casually move about the examining room without discomfort, but she performed limited heel rise, toe rise, and deep knee bend with continual complaints. (Id.) Dr. Ungar observed “exaggerated complaints of discomfort at extremes of range of motion.” (Id.) During the exam, Spoor Park had limited sacral flexion range of motion, but while sitting on the examining chair and table she revealed a flexion angle approaching 90 degrees. (Id.) Neurological testing revealed her muscles to be completely normal and symmetrical bilaterally. (Id.) There was no evidence of leg atrophy. (Tr. 473) Dr. Ungar noted “[s]ubstantial exaggerated pain behavior was demonstrated and many of Waddell signs for somatic amplification are positive suggesting significant symptom magnification.” (Id.) He noted that simply squeezing the fatty tissue of the buttock on the left elicited yelps of discomfort even to light pressure. (Id.) Palpation across the entire lumbar region also elicited discomfort. (Id.) Dr. Ungar noted that straight leg raising was performed to 90 degrees in the sitting position but only 45 degrees bilaterally in the lying position due to complaints of low back pain. (Tr. 474) Dr. Ungar noted that Spoor Park was exhibiting “dramatic breakaway weakness” to even fingertip pressure in both lower extremities so severe that if it “truly represented her physical capabilities, Ms. Spoor [Park] would be unable to stand or walk.” (Id.) Dr. Ungar noted that Spoor Park significantly limited her range of motion at the formal evaluation, but was able to “bend over on two occasions from the seated position and pick up toys from the floor with a sacral flexion angle exceeding 90 degrees.” (Id.) Dr. Ungar observed Spoor Park “transporting her eight month old in a stroller to her motor vehicle, lifting the child from the stroller, and placing it in the car seat.” (Id.) Spoor Park was also “able to laugh freely throughout the evaluation, despite complaining of pain at moderately severe levels.” (Id.)

         Dr. Ungar noted that after Spoor Park's lumbar disc herniation was decompressed in August 2005, the surgeon indicated improvement of symptoms and the postoperative MRI did not indicate any further neurologic impingement. (Id.) But Spoor Park continued to report pain up to excruciating levels, even though she was able to become pregnant, carry the child throughout year 2006, and deliver a healthy child. (Id.) Spoor Park continued to complain of lower back pain, was referred to a pain specialist, and considered a spinal cord stimulator, even though she was only using ibuprofen to control her symptoms. (Id.) He found the physical evaluation was most notable for “symptom magnification and misrepresentation.” (Tr. 475) He found that Spoor Park's observed abilities were far greater than those she demonstrated at the objective physical evaluation. (Id.) Dr. Ungar stated, “What is quite clear is that issues of secondary gain appear to be the most significant factor involved with persistence of subjective complaints.” (Id.) Dr. Ungar found that Spoor Park had essentially resolved the vast majority of her lower back issues based on the operative decompression of her disc herniation. (Id.)

         Dr. Ungar opined that further treatment would only support ongoing disability and illness behavior and would not promote wellness. (Id.) He opined that because there was “no objective evidence of ongoing weakness as noted by normal gait and ability to manage an eight-month-old child” Spoor Park was capable of returning to work at her previous level of employment without restrictions, if she would so choose. (Tr. 475-76)

         c. May 7, 2008 Opinion

         Dr. Ungar reviewed Spoor Park's file and evaluated her on May 7, 2008. (Tr. 347-49, 374-381) During the evaluation, Spoor Park complained of low back pain radiating into her left leg and numbness and tingling of her left foot and traveling down the back of her leg. (Tr. 348, 375) She indicated the severity of her discomfort was six to ten on a scale of ten, which is moderately severe to excruciating. (Id.) He noted that Spoor Park used only ibuprofen, and occasionally Percocet, to control her symptoms. (Id.) Spoor Park indicated that she had experienced excruciating pain twenty out of prior thirty days, but she reported she only used Percocet two or three days in the preceding month. (Id.) She rated her pain at seven out of ten on the day of the examination, but Dr. Ungar noted she smiled and laughed freely throughout the evaluation. (Id.)

         Dr. Ungar stated the physical examination was “grossly abnormal and non-physiologic.” (Tr. 349, 377, 379) On examination, there was no evidence of atrophy, spasm, dissymmetry, or loss of lordosis in the lumbosacral spine and no evidence of atrophy in the upper or lower leg. (Tr. 377-78) There was “vague discomfort” upon palpation of the paralumbar musculature and straight leg raise in the lying position. (Tr. 377) Spoor Park was able to casually move about the examining room without discomfort. (Id.) Spoor Park performed limited heel rise, toe rise, and deep knee bend with “continual complaints.” (Id.) The lumbosacral range of motion was less than normal, yet, while sitting on both the examining chair and table, Spoor Park revealed a sacral flexion angle approaching 90 degrees “in direct contradistinction to the range of motion seen at formal physical exam.” (Tr. 377-38) “There were exaggerated complaints of discomfort at extremes of range of motion.” (Tr. 378) Neurologic testing of Spoor Park's muscles revealed results that were completely normal and symmetric bilaterally. (Tr. 378)

         Dr. Ungar observed “[d]ramatic breakaway weakness of the entire left lower extremity . . . suggesting (impossibly) near complete paralysis of the extensor muscles of the ankle.” (Tr. 349, 379) He opined that “the overwhelming evidence of physical examination is that symptom magnification and misrepresentation was at dramatic levels and completely inconsistent with objective observation.” (Tr. 349, 377-78) He found that the Spoor Parks demonstrations during the objective evaluation were “grossly inconsistent and not representative of her true condition.” (Tr. 349)

         Dr. Ungar reiterated many of the opinions that he had stated in his previous opinion issued on May 16, 2007. (Tr. 378-81) He again opined that Spoor Park's complaints were “far more likely related to ‘[i]ssues of secondary gain' rather than the occupational incident of th[e] claim.” (Tr. 379) He opined that, if she desired, Spoor Park could return to work at her previous level of employment without restrictions. (Tr. 380-81) He opined Spoor Park had reached maximum medical improvement. (Tr. 380)

         2. Donald Jay Weinstein, Ph.D. - Psychologist Examiner

         On December 20, 2005, Spoor Park reported that she was under stress due to money issues, staying at home all the time, and being in pain. (Tr. 291) Spoor Park reported pain down her left leg that went into her feet sometimes, but mostly the left foot. (Id.) She reported that sometimes she yelled and was “real emotional, ” grouchy, and withdrawn. (Id.) She reported her leg was weaker than it was before. (Tr. 292)

         Spoor Park had never spoken to a mental health professional prior to the interview. (Id.) She reported that on a good day she would go to physical therapy, go home, and try to do housework, although she said she was usually limited due to pain. (Id.) She stated she would try to go to the grocery store, but could not carry what she used to. (Id.) She stated she could not carry more than five or ten pounds. (Id.) She reported that on bad days she would not leave home, shower, or get out of her pajamas and would be alone and do nothing. (Tr. 292-93) She reported she did not try to attend her daughters' sporting events. (Tr. 292) She ...


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