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Schneider v. Saul

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

July 16, 2019

BEVERLY SCHNEIDER, Plaintiff,
v.
ANDREW M. SAUL[1], COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          PATRICIA A. GAUGHAN, JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Beverly Schneider (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). ECF Dkt. #1. In her brief on the merits, filed on December 3, 2018, Plaintiff asserts that the administrative law judge (“ALJ”) failed to give good reasons for not adopting the opinion of her treating physician, Dr. Nair, and failed to provide a residual functional capacity (“RFC”) that was supported by substantial evidence. ECF Dkt. #12. On March 15, 2019, Defendant filed a brief on the merits. ECF Dkt. #15.

         For the following reasons, the undersigned recommends that the Court AFFIRM the ALJ's decision and DISMISS Plaintiff's complaint in its entirety WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL HISTORY

         On January 29, 2015, Plaintiff protectively filed an application for DIB alleging disability beginning November 20, 2012 due to degenerative disc disease, arthritis in back and knees, pinched nerves, bulging discs, sciatica, and problems associated with L4 and L5 vertebrae. ECF Dkt. #10 at 107-08, 244, 251, 308.[2] Plaintiff's application was denied initially and upon reconsideration. Id. at 133-38, 141-52. Following the denial of her application, Plaintiff requested an administrative hearing, and on November 9, 2016, ALJ Cheryl Rini conducted the hearing and accepted the testimony of Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Id. at 29, 153. At this hearing, ALJ Rini suggested for Plaintiff to amended her alleged onset date to January 14, 2016, or her 50th birthday. Id. at 58, 283. Plaintiff subsequently amended her alleged onset date to January 14, 2016. Id. at 283-85. ALJ Rini did not render a decision because she left the Cleveland office, and, therefore, a second hearing was held on September 8, 2017 before a different ALJ, Judge Joseph Hajjar. Id. at 60; see ECF Dkt. #12 at 2. Plaintiff testified at this hearing, with counsel present, and a different VE also testified. Id. at 60-61. On November 14, 2017, the ALJ issued a decision denying Plaintiff's application for DIB and SSI. Id. at 10-23. Plaintiff requested a review of the hearing decision, and on November 14, 2016, the Appeals Council denied review. Id. at 1-4, 241-43.

         On July 16, 2018, Plaintiff filed the instant suit seeking review of the ALJ's decision. ECF Dkt. #1. On October 1, 2018, Defendant filed an answer. ECF Dkt. #9. Plaintiff filed a brief on the merits on December 3, 2018. ECF Dkt. #12. On March 15, 2019, Defendant filed a merits brief. ECF Dkt. #15.

         II. MEDICAL AND TESTIMONIAL EVIDENCE

         A. Medical Evidence

         Plaintiff's amended disability onset date is January 14, 2016. Tr. at 283. Her extensive medical history dates back to an MRI from June 2004 of her spine, showing severe L5 degenerative disc disease with bilateral L5 foraminal stenosis. Id. at 522-24.

         Plaintiff's physician-patient relationship with Dr. Priti Nair, M.D., began on January 3, 2011 when Plaintiff was referred with regard to lower back pain. Id. at 466. Plaintiff reported being treated primarily with narcotics and that her pain in the low back traveled down the posterolateral buttocks/thigh region to the calf bilaterally. Id. Throughout 2011 to 2016, Plaintiff continued consulting with Dr. Nair, reporting lower back pain and pain radiating into her lower extremities to which Dr. Nair treated with chronic narcotic pain medication. Id. at 355, 360, 365, 370, 375, 380, 385, 390, 395, 400, 405, 409, 414, 419, 424, 428, 431, 436, 438, 440-41, 443, 446, 448-58, 460-65, 480, 485, 491, 496, 501, 504, 509, 514, 526, 529, 532.

         On May 27, 2011, Plaintiff reported increased pain and rated it a 9 on a scale of 1 to 10 in the low back region. Id. at 460. Dr. Nair adjusted her medication, which Plaintiff reported in a July 26, 2011 follow up visit that the new dosage reduced her pain levels to a 2 on a scale of 1 to 10. Id. at 458, 460. Dr. Nair also reported that she was concerned that Plaintiff may have a substance abuse problem. Id. at 458, 460. On August 23, 2011, Plaintiff reported increased and intermittent sharp pain in her right lower extremity starting from the back down the posterior buttock and thigh region to the mid calf. Id. at 457. In October and November of 2011, she presented for follow-up visits, reporting pain scores of 4 and 3, respectively. Id. at 454-55.

         Her pain score in January 2012 was 3, and during this visit, Dr. Nair concluded that Plaintiff had mechanical low back pain with occasional lower extremity pain, appearing to be sacroiliac in region, after reviewing recent x-rays and electrodiagnostic testing results. Id. at 453. During a follow up visit in February 2012, Dr. Nair reported that Plaintiff reported no lower extremity pain since she started taking Neurontin. Id. at 452. In March 2012, Dr. Nair reported that Plaintiff was doing well and her back pain was rated a 3 on a scale of 1 to 10. Id. at 451. Plaintiff reported a pain score of 4 during an April 2012 follow-up visit, and she had not had any recent physical therapy due to transportation issues. Id. at 450. During a June 2012 follow-up, Dr. Nair reported that Plaintiff went to a chiropractic office, but she recommended for Plaintiff to instead start physical therapy. Id. at 449. By September 2012, Plaintiff reported worsening pain in her back and lower extremities, with a pain score of 4. Id. at 446.

         On December 6, 2012, Plaintiff presented for another follow-up with Dr. Nair, in which she reported that she stopped working because it was causing exacerbation of her symptoms of low back pain. Id. at 443. Plaintiff also reported that she was feeling better since she stopped working, but her pain score was a 7. Id.

         On January 24, 2013, Plaintiff presented for another follow-up for her low back pain, reporting a pain score of 7 and the pain starts in her back and travels down the posterior buttock and thighs bilaterally, worse with coughing and sneezing. Id. at 441. In February 2013, Dr. Nair performed an electrodiagnostic test due to increased numbness and pain in the right lower extremity and because Plaintiff's insurance did not authorize an MRI of her lumbar spine. Id. at 440. Her EMG study was essentially normal, there was no radiculopathy noted in an L5 distribution, and there was no peripheral neuropathy noted either. Id. Therefore, Dr. Nair elected to treat Plaintiff conservatively rather than send her for epidural blocks, and adjusted her medication to an increased dose of Neurontin and started her on Elavil. Id. In March 2013, Plaintiff reported substantial improvement due to her new medication regimen, including sleeping better at night and reduced radiocular pain during the daytime. Id. at 438.

         During a March 2014 visit, Dr. Nair noted that Plaintiff obtained a low back brace for her chronic low back pain. Id. at 404. On June 23, 2014, Dr. Nair reported that she discussed with Plaintiff the option of starting physical therapy including aquatics to help her low back and bilateral knee pain and to assist with weight loss. Id. at 390. However, Dr. Nair noted during an October 2014 visit that Plaintiff had not yet started aquatic physical therapy. Id. at 375. In December 2014, Plaintiff reported increased stiffness in her lower back with a pain score of 3 for which Dr. Nair prescribed Naprosyn. Id. at 365, 369.

         During a February 2015 visit, Plaintiff presented with increased pain in her midthoracic region and upper lumbar region involving the paraspinals. Id. at 360. Dr. Nair administered trigger point injections for myofascial pain. Id. at 364. Dr. Nair also noted that Plaintiff had applied for disability benefits. Id. at 360. In March 2015, Plaintiff's pain levels returned to baseline levels due to the trigger point injections from the prior visit, and Dr. Nair discontinued the Naprosyn. Id. at 355. In May 2015, Plaintiff, in addition to her regular complaints of low back pain, she also reported mid-back pain in the periscapular region bilaterally. Id. at 485. In July 2015, Plaintiff reported a new problem with pain in the lateral aspect of the left hip and buttock region that is worse when she lays on the left side. Id. at 480. She stated that the pain had been ongoing and intermittent but the symptoms had recently become more prominent, with pain traveling down the lateral aspect of the leg from the hip to the knee. Id. During that visit, she received a hip injection for the osteoarthritis and bursitis of the left hip and sacroiliac sprain/sprain injury. Id. at 483-84. In August 2015, Plaintiff reported during a follow-up visit that the hip injection from her last visit alleviated all of her symptoms of lateral hip pain and that her back pain was stable on current medications. Id. at 514. Dr. Nair also increased Plaintiff's dose of Topamax. Id. at 509, 514. During an October 2015 visit, Patient reported that she was doing well on her current dose of medication and had substantial improvement in her ...


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