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Brown v. Berryhill

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

July 24, 2018

OLA BROWN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Ola Brown (“Plaintiff” or “Brown”), 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”) and Disability Insurance Benefits (“DIB”) under Title II 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.

         I. PROCEDURAL HISTORY

         In October 2014, Brown filed an application for POD and DIB, alleging a disability onset date of April 1, 2014 and claiming she was disabled due to coronary artery disease, thoracic or lumbosacral neuritis or radiculitis, displacement of lumbar intervertebral disc, and spinal stenosis. (Transcript (“Tr.”) at 109, 442, 493.) The applications were denied initially and upon reconsideration, and Brown requested a hearing before an administrative law judge (“ALJ”). (Tr. 109, 400-403, 406-408, 409.)

         On August 12, 2016, an ALJ held a hearing, during which Brown (who was not represented by counsel) and an impartial vocational expert (“VE”) testified. (Tr. 340-374.) On March 14, 2017, the ALJ issued a written decision finding Brown was not disabled. (Tr. 109-120.) Brown subsequently retained counsel and submitted additional medical records in support of her application. (Tr. 2, 94.) The Appeals Council declined further review on August 18, 2017. (Tr. 1-6.)

         On September 12, 2017, Brown filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 15, 17.) Brown asserts the following assignments of error:

(1) The ALJ's determination that Ms. Brown's orthopedic disorders do not meet or equal a listed impairment is in error and not supported by substantial evidence.
(2) There is good cause for Plaintiff's failure to submit material new evidence, which proves that Plaintiff's orthopedic conditions meet or equal the Listings and erode the capacity for sedentary work, thereby requiring remand.

(Doc. No. 15.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Brown was born in March 1958 and was fifty-eight (58) years-old at the time of her administrative hearing, making her a “person of advanced age” under social security regulations. (Tr. 442.) See 20 C.F.R. §§ 404.1563(e) & 416.963(e). She has a college education and is able to communicate in English. (Tr. 351.) She has past relevant work as a data entry clerk, tax preparer, receptionist, clerk typist, and general office clerk. (Tr. 119.)

         B. Relevant Medical Evidence[2]

         The record reflects Brown complained of low back pain and severe left leg pain as early as October 2009. (Tr. 649-650.) At that time, orthopedist Susan Stephens, M.D., noted decreased range of motion and tenderness in Brown's left knee and lumbar spine, as well as positive straight leg raise on the left. (Id.) Brown denied altered gait or motor weakness and ambulated without an aid. (Id.) Motor and neurologic examinations were normal. (Id.) Dr. Stephens noted Brown had a history of coronary artery bypass surgery and right knee surgery for a patella fracture. (Id.) She diagnosed lumbar spondylosis with radiculopathy and left knee arthritis; and prescribed Naprosyn and Robaxin. (Id.)

         Several years later, in January 2012, Brown underwent an x-ray of her lumbar spine, which revealed lumbar disc facet disease and early osteoarthritis of the left hip. (Tr. 642.) On February 24, 2012, Brown underwent an MRI of her lumbar spine which showed the following: (1) minimal disk bulging and facet hypertrophy producing bilateral stenosis at L2-3; (2) facet hypertrophy producing mild bilateral stenosis at L3-4; (3) mild diffuse disk bulging, bilateral facet hypertrophy, and ligamentum flavum thickening producing mild bilateral foraminal stenosis at L4-5; and (4) a broad-based herniated disk, bilateral facet hypertrophy, and ligamentum flavum thickening producing severe bilateral foraminal stenosis at L5-S1, as well as left L5 and probable right L5 nerve root impingement. (Tr. 643-644.)

         On May 25, 2012, Brown reported she “recently has had lots of epidural blocks and facet injections without relief of her pain.” (Tr. 645.) Dr. Stephens noted imaging had revealed severe L5-S1 facet arthrosis, as well as disc herniation and resultant foraminal central stenosis. (Id.)

         In April 2013, Brown fractured her pelvis after a fall. (Tr. 694, 791.) Several months later, in September 2013, Brown reported she was “gradually regaining her level of activity and losing some of the weight she gained.” (Tr. 782.)

         On November 1, 2013, Brown began treatment with Shue Que Huang, M.D., at the Physical Medicine & Rehabilitation Clinic. (Tr. 773-777.) She complained of low back pain for the previous two years, which she described as intermittent and progressively worsening. (Tr. 773.) Brown also reported occasional bilateral leg pain and numbness below the knee, left worse than right. (Tr. 773-774.) She stated her pain was aggravated by walking and alleviated by nothing. (Id.) Brown indicated she could walk about five (5) blocks and was “able to ambulate without devices and perform activities of daily living at an independent level.” (Id.) She indicated she had undergone 8 epidural injections, which had been effective for a “couple months” but the “last few injections lasted a few weeks.” (Id.)

         On examination, Dr. Huang noted tenderness at the left upper buttock but no evidence of spasm or trigger points. (Tr. 776.) She also found normal range of motion, negative straight leg raise, negative Fabers test, normal (5/5) manual muscle strength in the bilateral upper extremities, intact sensation, intact coordination, and normal gait. (Id.) Reflexes were slightly reduced (at 1) in her biceps, triceps, brachioradialis, patella, and ankle. (Id.) Overall, Dr. Huang characterized Brown's exam as “benign with no neurological concerns.” (Id.) She assessed chronic low back pain with some spondylogenic features, and found Brown's bilateral lower extremity pain and numbness “appears to be more consistent with neuropathy.” (Id.) Dr. Huang recommended Brown start a home exercise program and use a TENS unit. (Id.) Brown declined medication and deferred further injections. (Id.)

         Brown returned to Dr. Huang on June 23, 2014 for follow-up regarding her neck, back and left leg pain, which she rated a 6 on a scale of 10. (Tr. 757-761.) She again reported she could walk about five blocks and was “able to ambulate without devices and perform activities of daily living at an independent level.” (Tr. 758-759.) Physical examination findings and diagnoses were the same as the previous visit. (Tr. 760.)

         On August 25, 2014, Brown presented to Dr. Huang with complaints of “pain in multiple sites, ” which she rated a 7 on a scale of 10. (Tr. 747-751.) She again reported she could walk about five blocks and was “able to ambulate without devices and perform activities of daily living at an independent level.” (Tr. 748-749.) However, Brown reported increased pain and indicated she had gained 15 pounds in the past six months. (Tr. 748, 751.) Dr. Huang ordered lumbar x-rays and a lumbar MRI given Brown's “persistent radicular pain, [] normal emg, [and] progressive [symptoms].” (Tr. 751.)

         Brown underwent a lumbar x-ray that same day. (Tr. 803.) This imaging revealed degenerative changes including (1) disc space narrowing at ¶ 4-L5 and L5-S1 with marginal osteophytes at several levels; (2) slight retrolisthesis of L4 with respect to L5; and (3) some widening of the facet joints bilaterally at ¶ 5-S1. (Id.)

         On September 29, 2014, Brown presented to Dr. Huang with complaints of increased pain, as follows:

Most pain is going down the left side and continues to be the case. She notes that her left leg gave out on her yesterday for the first time ever. Her low back pain continues to bother her and increasingly worse. She notes her worst pain in her left hip region and groin, which is a new pain for the past few weeks. She is not performing any exercises. She notes shooting pain down her left leg anteriorly. She also notes some neurogenic claudication symptoms mostly down her left leg on the top of her foot. On her right, she does not have shooting pain down the right lower extremity but has tingling on the bottom of her foot which is constant. She also complains of shooting pain in her left, pain in her knee as well. The worst is right hip (8/10), gets worse with movement, gets better with unknown. 2nd pain area is her left knee, worse with unknown. Her low back is her 3rd worst region and is more constant than before 5-10. Denies loss of bowel/control - reports bowel accident one occasion. One episode of weakness [left lower extremity]. She continues to smoke - 1ppd after discontinuing patches. She notes that tramadol was not helpful, neither did naproxen. She notes that she is feeling more and more depressed and only sleeping around 2-3 hours per night.

(Tr. 741.) Physical examination findings were largely normal, including normal gait. (Tr. 743-744.) Dr. Huang noted Brown's EMG was negative. (Id.) She indicated Brown's left hip pain was consistent with osteoarthritis and ordered a pelvic x-ray, which showed “severe arthritic changes involving the left hip.” (Tr. 744, 798-799.) Dr. Huang prescribed Gabapentin and physical therapy. (Tr. 744.)

         On October 5, 2014, Brown went to the emergency room (“ER”) after experiencing a syncopal event. (Tr. 735.) She reported she was getting up from her chair when her left leg “gave out on her, ” causing her to fall and pass out. (Tr. 735, 711, 729-730.) Brown presented to Ranier Dg, D.O., several days later for follow-up. (Tr. 728-734.) She complained of pain on her “whole left side, ” which she rated an 8 on a scale of 10. (Tr. 728.) Dr. Dg noted Brown's gait “can be normal” and indicated she “will occasionally use cane.” (Tr. 730.) Physical examination findings were normal, including normal sensation, normal muscle strength, normal pulses, normal gait, and no edema. (Tr. 733.) Dr. Dg advised Brown to continue her medications and “continue with using walking cane for ambulation.” (Tr. 734.)

         Brown began physical therapy with Nicole Lynn Grisak, P.T., on October 15, 2014. (Tr. 721-727.) She reported pain in her lower back, left leg, and left hip, and indicated she owned a walker and straight cane which she used intermittently. (Tr. 724.) Brown indicated there were 14 steps to enter her home “with railings” and indicated she used public transportation. (Id.) She reported increased difficulty and pain with donning/doffing shoes and socks, dressing, getting in and out of the shower, entering and exiting a car, vacuuming and washing dishes. (Id.) Brown estimated her standing tolerance as 10-15 minutes; her walking tolerance as 5-10 minutes; and her sitting tolerance as 30 minutes. (Id.)

         On examination, Ms. Grisak observed Brown ambulated independently and was in no apparent distress. (Tr. 725.) She had mildly to moderately limited range of motion in her trunk, reduced muscle strength, reduced reflexes and decreased sensation in her lower extremities, negative straight leg raise, tenderness to palpation in her lumbar spine (left greater than right), and positive Patricks/Faber. (Tr. 725-726.) Brown was able to move from a sitting to standing position independently but Ms. Grisak described her efforts as “labored.” (Tr. 726.) She was unable to tolerate lifting an item from the floor to her waist. (Id.) With regard to Brown's gait, Ms. Grisak noted Brown “ambulates independently with decreased step length bilaterally, decreased hip extension and antalgic gait.” (Id.) Brown reported climbing stairs independently at home “but with difficulty.” (Id.)

         Ms. Grisak assessed impaired gait, decreased bilateral lower extremity strength, decreased bilateral lower extremity flexibility, decreased standing/walking tolerance, and pain. (Tr. 726.) She recommended formal physical therapy once to twice per week for a total of eight visits, and indicated a fair to poor prognosis. (Tr. 726-727.)

         On October 24, 2014, Brown began treatment with neuroscientist Samuel Rosenberg, M.D. (Tr. 716-720.) She reported radiating lower back pain and indicated her “entire left leg is numb.” (Tr. 717.) Brown indicated she had fallen twice due to her left leg weakness and numbness. (Tr. 717-718.) On examination, Dr. Rosenberg noted decreased motor strength in Brown's left lower extremity, decreased sensation below her left knee, and absent reflexes in her ankle. (Tr. 720.) Brown's gait was normal and straight leg raise testing was negative bilaterally. (Id.) Dr. Rosenberg assessed moderate to severe osteoarthritis of the left hip and lumbar radiculopathy, and referred her for an orthopedic consultation for her hip. (Tr. 720.)

         Brown presented to cardiologist Tilak Pasala, M.D., on October 28, 2014, with complaints of chest pain and shortness of breath. (Tr. 710-715.) Physical examination findings were normal, as was an ECG taken that date. (Tr. 713-714.) Dr. Pasala assessed possible angina and ordered a stress echocardiogram, which was normal. (Tr. 714, 797.)

         On November 3, 2014, Brown began treatment with orthopedist Brendan Patterson, M.D. (Tr. 706-709.) On examination, Dr. Patterson found Brown walked with a “slight antalgic gait pattern favoring the left hip.” (Tr. 708.) She had full range of motion in her extremities, with a slight decreased in internal rotation of her left hip. (Id.) Dr. Patterson also noted decreased sensation in Brown's left foot but no sign of atrophy in the left calf or thigh. (Tr. 709.) Dr. Patterson assessed as follows: “Her symptom complex is partly due to the hip and partly due to the spine. The patient was counseled that hip arthroplasty would not provide any change in her left lower extremity neurologic symptoms nor would it deal with any of her low back pain.” (Id.)

         Brown returned to Dr. Huang on November 17, 2014. (Tr. 693-697.) Physical examination findings were benign, including normal gait. (Tr. 696-697.) Dr. Huang noted Brown had been cleared by internal medicine and would undergo a hip replacement. (Tr. 694.) The record reflects Brown underwent a left hip replacement on December 17, 2014. (Tr. 605-611, 893-895.) She was discharged in stable condition on December 20, 2014. (Tr. 619.)

         On March 6, 2015, Brown returned to Dr. Patterson for follow-up regarding her left hip. (Tr. 832-833.) She reported “no left hip pain” but indicated she had developed some tingling in her left foot. (Tr. 833.) Brown indicated she continued to use her cane for ambulation. (Id.) On examination, Dr. Patterson noted Brown walked with a slight antalgic gait pattern, favoring the left side. (Id.) He noted normal motor and sensation in Brown's left foot, and no tenderness to range of motion in her left hip. (Id.) Dr. Patterson recommended she continue her home exercise program. (Id.)

         Brown returned to Dr. Rosenberg on April 14, 2015. (Tr. 825-828.) She reported neck pain and left leg pain, numbness, and swelling. (Tr. 826.) On examination, Dr. Rosenberg noted careful gait, weakness in Brown's left hip flexors, absent sensation below the left knee, and negative straight leg raise. (Id.) He prescribed Neurontin and physical therapy. (Id.)

         On April 21, 2015, Brown presented for physical therapy with Alma Gojani Axhemi, P.T. (Tr. 819-824.) She reported she was independent with self-care and activities of daily living, although she had difficulty with cooking, cleaning, shopping, vacuuming and laundry. (Tr. 821.) Brown described her pain as constant but varying in intensity from a 6 to a 10 on a scale of 10. (Id.) She stated her pain worsened with prolonged sitting (30 minutes), prolonged standing (10-20 minutes), prolonged walking (“short distance only”), and ascending stairs and descending stairs. (Id.)

         On examination, Brown had reduced range of motion in her trunk and neck, reduced muscle strength, decreased sensation in her left leg, absent sensation in her left foot, and tenderness in her bilateral paraspinals and left hip. (Tr. 822-823.) With regard to Brown's gait, Ms. Axhemi found she was independent without an assistive device but had an antalgic gait with “decreased left stance time.” (Tr. 823.) Brown performed a 5 meter walk test, which she completed in 11 seconds using a standard cane. (Id.) Ms. Axhemi assessed “impaired gait pattern and speed, decreased [range of motion] in cervical spine and left hip, decreased strength in [left lower extremity], decreased flexibility in lower extremities [left greater than right], as well as impaired balance.” (Tr. 824.) She described Brown's prognosis as fair. (Id.)

         On July 15, 2015, Brown returned to Dr. Rosenberg for follow-up. (Tr. 966-967.) She reported she had undergone physical therapy for six weeks and “she is no better.” (Id.) On examination, Dr. Rosenberg noted antalgic gait, weakness of the left knee extensors, left sided foot drop, left foot numbness, and absent reflexes. (Id.) Dr. Rosenberg ordered an MRI of her lumbar spine, which Brown underwent that day. (Tr. 967, 971.) The MRI revealed the following: (1) minimal broad based disc bulge with bilateral moderate facet hypertrophy and ligamentum flavum hypertrophy causing moderate bilateral neural foraminal stenosis and loss of disc space height at ¶ 4-5; (2) large broad based disc bulge as well as severe facet hypertrophy and ligamentum flavum hypertrophy resulting in severe left neural foraminal stenosis and moderate right stenosis at ¶ 5-S1 with compression of the left S1 nerve roots. (Tr. 971-972, 975.)

         Brown returned to Dr. Rosenberg on August 4, 2015. (Tr. 974-978.) He assessed (1) lumbar radiculopathy at left L5, with severe foraminal stenosis at ¶ 5/S1 left; and (2) lumbar spondylosis at ¶ 4/5 and L5/S1. (Tr. 978.) He prescribed injections, which Brown underwent on August 10, 2015. (Tr. 978, 987-988, 1011.) Shortly thereafter, on August 13, 2015, Brown called Dr. Rosenberg complaining that she “is in more pain now that before the injection.” (Tr. 1020.) Brown stated she had developed new symptoms in her right lower extremity, including pain in her anterior right thigh and numbness and tingling in her right ankle and foot. (Id.)

         On August 18, 2015, Brown presented to Dr. Rosenberg with complaints of left swelling foot, decreased sensation in her entire left leg, very poor balance, and burning pain in her left hip. (Tr. 1022-1023.) On examination, Dr. Rosenberg noted the following: “[S]he has decrease in sensation at the middle finger left and decrease in strength at the left triceps and left hip flexors and left knee extensors and flexors. She ‘can hardly feel' her left anterior thigh. She cannot walk a straight line without falling.” (Tr. 1022.) Dr. Rosenberg ordered an MRI of Brown's cervical spine, which she underwent that date. (Tr. 1023, 1027.) This imaging revealed a mild disc bulge at ¶ 4-C6 causing mild effacement and mild cord flattening. (Tr. 1027.)

         On October 16, 2015, Brown presented to cardiologist Yan Dong, M.D. (Tr. 1041-1045.) She complained of chest tightness and shortness of breath, particularly with activity. (Tr. 1041.) Brown also described occasional lightheadedness and headaches. (Id.) Examination findings were normal and an EKG taken that date showed no significant changes. (Tr. 1043-1045.) Dr. Dong ordered further testing and encouraged Brown to quit smoking. (Tr. 1045.) Brown underwent a myocardial perfusion multi spect on that date, which showed a small infarct in the distal apical cap segments with minimal peri-infarct ischemia. (Tr. 1050.)

         On October 22, 2015, Brown returned to Dr. Rosenberg for follow up regarding her neck pain, back pain, and left leg pain and numbness. (Tr. 1055-1059.) Dr. Rosenberg ordered injections in both her lumbar and cervical spines, and increased her Neurontin. (Tr. 1059.) Brown thereafter underwent a lumbar injection at ¶ 5/S1 on November 18, 2015. (Tr. 1068-1072.)

         Brown returned to Dr. Rosenberg on December 10, 2015. (Tr. 1125-1126.) She complained of numbness in her left thigh, left leg pain and numbness, and back pain. (Id.) Dr. Rosenberg noted Brown walked with a cane, had mild diffuse weakness throughout her left leg, and had absent reflexes. (Id.) He ordered additional injections, prescribed Percocet, and increased her Neurotin. (Id.) Brown underwent a lumbar injection at ¶ 2/L3 on January 6, 2016. (Tr. 1133.)

         On January 20, 2016, Brown complained of back pain, neck stiffness and headaches, and poor balance. (Tr. 1170-1172.) On examination, Dr. Rosenberg found antalgic gait, tenderness at the lumbar facets, intact sensation, negative straight leg raise, and abnormal reflexes. (Id.) He ordered bilateral lumbar facet blocks, prescribed Cymbalta, and continued Brown on Percocet and Neurontin. (Id.)

         On March 14, 2016, Brown underwent an x-ray of her lumbar spine, which showed (1) grade 1 anterolisthesis of L5 on S1; (2) moderate to severe L4-5 and L5-S1 facet degenerative change; and (3) mild to moderate L4-5 and L5-S1 discogenic degenerative change. (Tr. 1385.)

         On April 8, 2016, Brown underwent back surgery (i.e., a bilateral laminectomy of L5 and L4 with lateral recess decompression and foraminotomies, L4-L5 and L5-S1). (Tr. 1392, 1394-1396.) She was discharged from the hospital in stable condition on April 11, 2016. (Tr. 1392.)

         On May 18, 2016, Brown presented to Nicholas Ahn, M.D., the surgeon who performed her back surgery. (Tr. 1404-1406.) Brown reported “doing great” post-surgery, indicating the “severe radicular pain has largely resolved.” (Tr. 1404.) She did complain of “a bit of burning” in her left thigh, however. (Id.) Dr. Ahn noted that Brown had promised to quit smoking but had failed to do so, and stated “this may be why she is having some delayed healing of her nerve.” (Id.) He further stated Brown “understands and understood from the start that surgery has a much lower success rate if she [continues] to smoke in terms of the nerve successfully healing.” (Id.)

         On examination, Dr. Ahn noted Brown had normal muscle strength and sensation but walked with a “slightly antalgic gait” and had significant medial joint line tenderness and positive McMurray sign about the right knee. (Id.) He stated that x-rays showed “good healing and that her lumbar spine is stable.”[3] (Id.) Dr. Ahn was concerned, however, that she might fall due to her right knee condition. (Id.) He prescribed physical therapy, counseled Brown once again to quit smoking, and referred her to a specialist for evaluation of her knee. (Id.)

         On that same date, Brown underwent an x-ray of her right knee. (Tr. 1384.) This imaging revealed moderate joint space narrowing of the medial and lateral compartments and severe osteophytosis, joint space narrowing, and sclerosis of the patellofemoral compartment. (Id.) It also showed a serpiginous lesion within the proximal tibia most likely representing a bone infarct. (Id.)

         In June 2016, Brown presented for another round of physical therapy. (Tr. 1420-1424.) In response to a Modified Oswestry Low Back Pain Questionnaire, Brown indicated that: (1) “pain medication provides me moderate relief from pain;” (2) “it is painful for me to take care of myself and I am slow and careful;” (3) “I can lift only very light weights;” (4) “pain prevents me from walking more than 1/4 mile;” (5) “pain prevents me from sitting more than ½ hour;” (6) “pain prevents me from standing more than 10 minutes;” (7) “even when I take pain medication, I sleep less than 4 hours;” (8) “pain has restricted my social life to my home;” (9) “pain prevents all travel except to doctor/therapy visits;” and (10) “pain prevents me from doing anything but light activities.” (Tr. 1419.)

         On June 24, 2016, Brown presented to Matthew Kraay, M.D., for evaluation of her right knee pain. (Tr. 1409-1410.) Her major concern was not pain but rather “intermittent giving way” in her leg. (Id.) Brown stated her leg feels like it is going to “give out” three or four times per day and indicated she had fallen several times. (Id.) On examination, Dr. Kraay noted a “slow minimally antalgic gait.” (Id.) He noted her knee was normally aligned with mild effusion and patellofemoral crepitation with range of motion. (Id.) Dr. Kraay found her right knee x-ray showed “severe patellofemoral arthritis” and “a large bone infarct in her proximal tibia.” (Id.) Nonetheless, Dr. Kraay was not certain that her giving way was related to her knee. (Id.) He recommended a cortisone injection, which Brown underwent that date. (Id.) Dr. Kraay also advised that she “should be using a cane or walker for safety” and should “try and delay joint replacement surgery for as long as possible.” (Id.)

         On July 11, 2016, Brown underwent an x-ray of her lumbar spine. (Tr. 1382.) This imaging revealed “redemonstration of grade 1 anterolisthesis of L5 on lumbarized S1 now measuring 1.2 cm versus 5 mm in the previous study.” (Id.) It also showed advanced and unchanged degenerative changes of the lower lumbar spine most prominent at ¶ 4-L5 and L5-S1 with disc space loss, endplate sclerosis, and osteophyte formation. (Id.)

         On that same date, Brown presented to Dr. Ahn, who noted as follows:

She states that she was initially doing well until about a month and a half ago. In fact, I saw her on 5/18/16 and she was markedly improved from where she was before. She was still smoking after surgery, and I emphasized to her as I did before the operation that she absolute[ly] positively have to quit. She promised to quit before the surgery and again promi[sed] when I saw her last on 5/18/16.
In any event, she is having recurrent symptoms that are now getting worse over the past 6 weeks. The pain runs down both lower extremity, is worse on the left than on the right. She still has not quit smoking. When I explained to her that this is going to be very important, she became very angry and I had to bring in my nurse, Lynette Bennett talked to her as well.
In addition, I looked at the x-rays from 6 weeks ago, i.e, her first postoperative visit on 5/18/16. This shows at the L5-S1 level was still stable and that the fusion appeared to be healing. On today's visit, there is a significant spondylolisthesis at the L5/S1 level. Therefore, there certainly is a reason why she is having recurrent radicular symptoms.
We talked about different treatment options. Revising the fusion would actually not be an option whatsoever until she quit smoking, and I have concerns that she is now challenging whether not smoking is really an issue. Especially if she does not quit, any surgery that I do is unlikely to work and she'll just get another nonunion which will become more of a problem.

         (Tr. 1411.) By the end of the visit, Dr. Ahn felt he had convinced Brown of the urgent need to quit smoking. (Id.) He was concerned, however, that “we may be beyond the point the fusion can actually consolidate.” (Id.) Dr. Ahn referred Brown to her primary care physician for assistance in smoking cessation, and to pain management “so we can at least provide some relief of her symptoms in the interim until we can get her to quit smoking and revision surgery may be an option.” (Tr. 1411-1412.) He also recommended lumbar epidural injections once per month for three months. (Id.)

         C. Relevant State Agency Reports

         On March 19, 2015, state agency physician Lynn Torello, M.D., reviewed Brown's medical records and completed a Physical Residual Functional Capacity (“RFC”) Assessment. (Tr. 393-394.) Dr. Torello found Brown could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for a total of 2 hours in an 8 hour workday; and sit for a total of about 6 hours in an 8 hour workday. (Id.) She further opined Brown had unlimited push/pull capacity and could frequently balance; occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; and never climb ladders, ropes, or scaffolds. (Id.) Lastly, Dr. Torello concluded Brown had no manipulative, visual, communicative, or environmental limitations. (Id.)

         On June 4, 2015, state agency physician Anton Freihofner, M.D., reviewed Brown's medical records and completed a Physical RFC Assessment. (Tr. 383-384.) Like Dr. Torello, Dr. Freihofner found Brown could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for a total of 2 hours in an 8 hour workday; and sit for a total of about 6 hours in an 8 hour workday. (Id.) Dr. Frehofner further concluded Brown had unlimited push/pull capacity and could occasionally climb ramps/stairs, balance, and stoop but never kneel, crouch, crawl, or climb ladders, ropes, or scaffolds. (Id.) He found Brown had no manipulative, visual, communicative, or environmental limitations. (Id.)

         On June 18, 2015, Brown underwent a psychological consultative examination with Joseph Konieczny, Ph.D. (Tr. 598-600.) Brown indicated she had come via public transportation and was somewhat irritable initially. (Tr. 598.) Brown reported recent feelings of depression and a history of depression “since her back problems.” (Id.) She acknowledged daily crying episodes, mood swings, irritability, diminished energy level, and some past thoughts of suicide. (Tr. 598-599.) On examination, Dr. Konieczny noted Brown's “movements were quite slow and labored” and indicated “she used a cane to assist with her walking.” (Tr. 599.) Brown's speech was normal and “her ability to concentrate and to attend to tasks showed no indications of impairment.” (Id.) Her insight “seemed fair” and “she showed no deficits in her overall level of judgment.” (Tr. 600.) Dr. Konieczny noted that Brown “participates in cooking, cleaning, laundry, and household tasks to the extent in which she perceives she is physically capable, ” noting “she performs her own shopping tasks and manages her own finances.” (Id.)

         Dr. Konieczny assessed “other specified depressive disorder, depressive episodes with insufficient symptoms.” (Id.) He found no obvious limitations in her abilities to understand, remember, and carry out instructions; or in the area of attention, concentration, and persistence in single and multi-step tasks. (Id.) Dr. Konieczny did find, however, that Brown “would show some diminished tolerance for frustration and diminished coping skills which would impact her ability to respond to severe supervision and interpersonal situations in the work setting.” (Id.) He also found diminished coping skills for responding to “severe pressure situations in the work setting.” (Id.)

         On July 17, 2015, state agency pscyhologist Aracelis Rivera, Psy.D., reviewed Brown's medical records and completed a Psychiatric Review Technique (“PRT”). (Tr. 381.) Dr. Rivera found Brown had mild limitations in her activities of daily living, maintaining social functioning, and maintaining concentration, ...


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