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Kirkland v. Berryhill

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

July 11, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jonathan D. Greenberg, United States Magistrate Judge

         Plaintiff, Iris Kirkland (“Plaintiff” or “Kirkland”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.


         In May 2014, Kirkland filed an application for POD, DIB, and SSI alleging a disability onset date of February 20, 2014 and claiming she was disabled due to asthma, L4-5 disc problems, back arthritis, sciatica, and migraines. (Transcript (“Tr.”) at 9, 173-175, 179-185, 208.) The applications were denied initially and upon reconsideration, and Kirkland requested a hearing before an administrative law judge (“ALJ”). (Tr. 125.)

         On February 18, 2016, an ALJ held a hearing, during which Kirkland, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 24-68.) On May 25, 2016, the ALJ issued a written decision finding Plaintiff was not disabled. (Tr. 6-23.) The ALJ's decision became final on June 14, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On August 9, 2017, Kirkland filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13 & 14.) Kirkland asserts the following assignments of error:

(A) Were the ALJ's physical and/or mental residual functional capacity findings contrary to law and/or not based upon substantial evidence?
(B) Was the ALJ's Step 5 finding contrary to law and/or not based upon substantial evidence?

(Doc. No. 13 at 1.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Kirkland was born in April 1968 and was 47 years-old at the time of her administrative hearing, making her a “younger” person under social security regulations. (Tr. 71.) See 20 C.F.R. §§ 404.1563(c) & 416.963(c). She has a high school education and is able to communicate in English. (Tr. 76.) She has past relevant work as a stocker/laborer, production assembler, and machine operator/feeder. (Tr. 17.)

         B. Medical Evidence[2]

         1. Mental Impairments

         Kirkland was psychiatrically hospitalized from June 22 through June 29, 2015, after reporting severe depression and suicidal ideation. (Tr. 463.) At that time, she was under high levels of stress due to her financial and medical condition. (Tr. 469.) She denied manic symptoms or current psychological treatment. (Tr. 469, 470.) Psychiatrist Robert T. Rowney, M.D., diagnosed her with major depressive disorder and assigned her a Global Assessment of Functioning (“GAF”) score[3] of 40. (Tr. 468-469.) During her hospitalization, Kirkland participated in group therapy and began taking an antidepressant. (Tr. 475.) She improved with treatment and was discharged with a GAF score range of 60-51, indicating moderate symptoms. (Tr. 490, 494.)

         On July 8, 2015, Kirkland saw psychiatrist Louis Klein, M.D., for treatment. (Tr. 409.) She reported her new medications improved her depression and anxiety. (Id.) Dr. Klein diagnosed major depressive disorder and panic disorder with agoraphobia. (Tr. 411, 412.) He assigned a GAF score of 40. (Tr. 412.)

         Kirkland returned to Dr. Klein on August 17, 2015. (Tr. 447.) She indicated she was possibly moving in with her father and undergoing back surgery. (Id.) Dr. Klein noted Kirkland's affect was brighter. (Tr. 449.)

         On November 2, 2015, Kirkland informed Dr. Klein she did not move in with her father and was living with friends. (Tr. 452.) On December 7, 2015, she indicated her Thanksgiving was “enjoyable because she was alone and cooked for herself.” (Id.) She continued to reside with friends, but was working with a counselor on obtaining housing. (Id.)

         On February 8, 2016, Dr. Klein filled out a “Medical Source Statement of Ability To Do Work-Related Activities (Mental)” regarding Kirkland. (Tr. 830-832.) He found Kirkland had mild limitations in the following areas:

• Understanding, remembering, and carrying out simple instructions;
• Making judgments on simple work-related decisions; and
• Interacting appropriately with co-workers.

(Tr. 830-831.) Dr. Klein found moderate limitations in the following areas:

• Understanding, remembering, and carrying out complex instructions;
• Making judgments on complex work-related decisions;
• Interacting appropriately with the public and supervisors; and
• Responding appropriately to usual work situations and to changes in a routine work setting.

(Id.) When asked to identify the factors which supported these limitations, Dr. Klein noted they were “based on patient's description.” (Id.)

         2. Physical Impairments

         On March 21, 2014, Kirkland visited the emergency room for buttock pain radiating into her left thigh. (Tr. 255.) On examination, she had tenderness and pain in her lumbar spine. (Tr. 257.) The emergency room physicians administered a Toradol injection and prescribed Meloxicam and Tramadol. (Tr. 254.)

         Kirkland returned to the emergency room with similar symptoms on March 24, 2014. (Tr. 267.) She indicated her back pain was precipitated by fall a week prior. (Tr. 269.) She reported her back pain was radiating down her left leg and she was unable to ambulate due to the pain. (Id.) On examination, Kirkland had a normal range of motion, but exhibited tenderness. (Tr. 271.) March 26, 2014 x-rays revealed multilevel degenerative changes in the lower level of Kirkland's lumbar spine. (Tr. 281, 283.)

         On April 24, 2014, Kirkland visited pain management physician Garrett LaSalle, M.D., for her lower back pain. (Tr. 333.) She described radiating pain down her left leg, but denied any incontinence or significant lower extremity weakness. (Id.) She relayed she had undergone a trigger point injection in March 2014, but did not find it helpful. (Id.) On examination, Kirkland had a positive straight leg raise on the left and 5/5 strength in her lower extremity muscle groups. (Tr. 334.) Dr. LaSalle concluded Kirkland “appears to have some myofascial pain superimposed on a left lumbar radiculitis. (Id.) He prescribed Ibuprofen 800 mg and advised Kirkland he would not prescribe opioids due to her ongoing use of marijuana. (Tr. 334, 335.) Dr. LaSalle then administered a left L4 transforaminal epidural steroid injection on April 25, 2014. (Tr. 291.)

         Kirkland underwent a lumbar MRI on April 28, 2014, which revealed (1) a relatively large central and left-sided disc extrusion at ¶ 4-5; (2) mild to moderate impingement of the descending L5 nerve roots, with prominent impingement on the left side of the lateral recess; (3) a normal distal cord; and (4) foraminal narrowing, greatest on the right at the L5-S1 level. (Tr. 320-321.)

         Kirkland returned to Dr. LaSalle on June 2, 2014, reporting her epidural steroid injection did not provide significant relief. (Tr. 341.) On examination, Kirkland had 5/5 strength in her lower extremity muscle groups. (Tr. 342.) Dr. LaSalle ordered an EMG and referred her to physical therapy. (Id.) A June 5, 2014 EMG of Kirkland's left leg was normal. (Tr. 345.)

         On June 30, 2014, Kirkland began a course of physical therapy with Michelle Bogomoiny, P.T. (Tr. 391.) Kirkland reported lower back pain for the past several months, along with pain radiating down her left leg. (Id.) On examination, her gait was “timid, ” particularly when arising from the seated position. (Tr. 393.) Kirkland had an abnormal range of motion in her lumbar spine and 4/5 strength in her trunk, back, and abs. (Tr. 393, 394.) She had full strength in her limbs. (Tr. 394.)

         On July 3, 2014, Kirkland began a course occupational therapy with occupational therapist Christine Ontko, OTR/L. (Tr. 359.) She attended four sessions of occupational therapy and was discharged after developing a “good understanding of proper body mechanics.” (Tr. 360.)

         Kirkland returned to Dr. LaSalle for pain management on July 10, 2014. (Tr. 329.) She indicated an increase in pain after “walking a long distance to the clinic.” (Id.) Dr. LaSalle noted a “significant myofascial component of pain” in the paraspinal musculature of the lumbosacral spine. (Tr. 330.) He prescribed Kirkland a TENs unit and recommended she continue physical therapy. (Id.)

         Kirkland attended aquatic physical therapy in July and August 2014. (Tr. 347, 356, 371, 378.) By her sixth visit, Kirkland had developed improved postural awareness and tolerance for the pool exercises. (Tr. 357.) On July 28, 2014, she reported the intensity of her pain had decreased. (Tr. 369.) On August 4, 2014, Kirkland had excellent form during her physical therapy session and was able to properly execute each exercise. (Tr. 376.)

         Kirkland then underwent a left piriformis muscle injection. (Tr. 498.) On October 20, 2014, Kirkland visited Dr. LaSalle, reporting “near 100%” relief the injection. (Id.) On examination, Kirkland's sensation was intact, she had 5/5 strength in her lower extremities, and negative straight leg raises. (Tr. 499.) Dr. LaSalle concluded “the fact that she obtained almost 100% relief from the prior left piriformis muscle injection seems to indicate that the cause of her pain emanating from the piriformis muscle.” (Id.) Dr. LaSalle scheduled Kirkland for a second piriformis muscle injection. (Tr. 500.)

         Kirkland participated in her nineteenth physical therapy visit on November 3, 2014. (Tr. 504.) She had an antalgic gait at the beginning of the session, but her gait was normal upon completion of her exercises. (Tr. 504, 505.) She returned to Dr. LaSalle on November 5, 2014, again reporting “100% relief” for four months following her piriformis injection. (Tr. 509.) Dr. LaSalle administered another left piriformis muscle injection at that time. (Tr. 514.)

         On November 7, 2014, Kirkland returned to physical therapy, indicating she had “made no gains” in decreasing her pain levels from therapy. (Tr. 542.) However, Kirkland had improved postural alignment and awareness. (Id.)

         Kirkland visited the emergency room on November 20, 2014, reporting shortness of breath and sinus drainage. (Tr. 551.) She was wheezing upon examination, but was not in respiratory distress. (Tr. 554.) The emergency room physicians administered a nebulizer treatment and ordered a chest x-ray, which was negative. (Id.) Kirkland was discharged with a course of Prednisone. (Id.)

         On December 12, 2014, Kirkland visited primary care physician Lacey Neugebauer, D.O., for a routine physical examination. (Tr. 566.) She reported pain, a history of migraines, and asthma. (Tr. 566, 567.) Kirkland also indicated she was also having blurred vision for the past few months. (Tr. 567.) On examination, she had full strength in her upper and lower extremities. (Tr. 569.) Her reflexes and gait were normal. (Tr. 570.) Dr. Neugebauer prescribed Electriptan for Kirkland's migraines and an inhaler for her asthma. (Id.) Kirkland's vision appeared to be preserved on examination and Dr. Neugebauer referred her to an ophthalmologist. (Tr. 571.)

         Kirkland saw Dr. LaSalle on December 18, 2014, indicating she had been doing well for “several weeks, ” but that day, had felt a “pop” sensation and was unable to ambulate. (Tr. 581.) On examination, Kirkland had “exquisite pain on palpation over the spinous processes” of the lumbar spine and a positive straight leg raise and decreased sensation in her right leg. (Tr. 582.) Dr. LaSalle transferred her to the emergency room for further treatment. (Id.) In the emergency room, Kirkland had a normal lumbar range of motion, normal strength, and normal reflexes. (Tr. 593.) An x-ray indicated no acute pathology. (Tr. 596.) She was diagnosed with a lumbar strain/lumbar radiculitis. (Tr. 593.) Upon discharge, Kirkland stated “I feel good now, I don't hardly feel any pain no more.” (Tr. 590.)

         On April 21, 2015, Kirkland underwent a physical capacity evaluation with occupational therapist Lidiya Kanarsky, O.T. (Tr. 402-405.) Kirkland reported lower back and lower extremity pain. (Tr. 402.) On examination, Kirkland's cervical range of motion was within normal limits, her ability to bend forward and backward was decreased, and her straight leg raises were abnormal. (Tr. 404.) Her bilateral upper and lower extremity strength was 4/5 throughout. (Id.) She was able to tolerate 45 minutes of sitting during the evaluation, 20 minutes of which were uninterrupted. (Id.) She did not report an increase of symptoms with sitting. (Id.) She was able to walk 50 feet, stand for 7 minutes, and walk for 5 minutes. (Id.)

         Based upon this evaluation, Ms. Kanarsky concluded the following:

Mrs. Kirkland's performance on this Physical Capacity Evaluation was consistent with full time, light job task[s]. This client would be able to lift and/or carry 32 [pounds] occasionally, with frequent lifting and/or carrying up to 16 [pounds]. It would be recommended to this client to alternate any repetitive tasks with non repetitive and to use the proper body mechanics with any functional activities. The client may benefit from another course of Physical Therapy aquatics as a conservative approach to her pain relief.

(Tr. 405.)

         Kirkland returned to Dr. LaSalle on April 22, 2015. (Tr. 643.) She reported she had been using her community gym to perform her water therapy exercises. (Id.) On examination, she had positive straight leg raises bilaterally and 5/5 strength in her bilateral lower extremities. (Tr. 644.) Dr. LaSalle recommended a lumbar epidural steroid injection. (Id.)

         On May 12, 2015, Kirkland underwent an occupational therapy evaluation of her upper extremities with Ms. Kanarsky. (Tr. 653.) The range of motion and coordination in her upper extremities were normal. (Id.) Her bilateral upper extremity strength was decreased, measuring at 4/5 throughout. (Id.)

         On May 15, 2015, Kirkland began another course of physical therapy for her lower back with physical therapist Michelle Bogomoiny, PT. (Tr. 658.) Kirkland reported her legs had been giving out on her. (Id.) Ms. Bogomoiny noted Kirkland walked “briskly and cheerful” into occupational therapy just three days prior. (Id.) On examination, Ms. Bogomoiny noted “ALL movement is severely limited today, SEVERE PAIN, [especially] when first rising after a period of sitting.” (Tr. 660.) Kirkland subsequently underwent a lumbar epidural steroid injection on May 20, 2015. (Tr. 669.)

         Kirkland returned to physical therapy on May 26, 2015, with an improved tolerance for bending and squatting. (Tr. 698.) She attended a session of aquatic therapy on May 28, 2015. (Tr. 702.)

         On May 29, 2015, Kirkland visited Dr. Neugebauer for medication refills. (Tr. 706.) She reported only minimal relief from her headaches with her medications. (Tr. 709.)

         Kirkland saw Dr. LaSalle on June 18, 2015, reporting her recent injection only improved her condition for one day. (Tr. 726.) On examination, she had pain with palpation of the bilateral sacroiliac joints, but full strength in her lower extremities. (Id.) Dr. LaSalle referred her to a neuromuscular clinic for further evaluation. (Id.)

         As noted supra, Kirkland was hospitalized from June 22 through June 29, 2015 for severe depression. (Tr. 463.) During her hospitalization, she underwent several diagnostic tests for her back pain. A CT of her cervical spine revealed C5-6 discogenic disease and uncovertebral joint arthrosis with mild left lateral canal narrowing and foraminal narrowing bilaterally. (Tr. 457.) A CT of her lumbar spine indicated degenerative changes, along with a disc extrusion extending along the posterior aspect of the L5 vertebral body. (Tr. 459.) A MRI of the lumbar spine revealed (1) multilevel discogenic and facet hypotrophic degenerative changes; (2) a slight interval decrease in the disc of the disc extrusion at ΒΆ 4-5, with persistent impingement upon the left L5 and possibly left S1 nerve roots; (3) ...

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