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Smith v. Colvin

United States District Court, Eastern District of Missouri, Southeastern Division

November 17, 2014

LISA A. SMITH, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Defendant.



This action is before the court for judicial review of the final decision of defendant Commissioner of Social Security denying the application of plaintiff Lisa Smith for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. § 401, et seq. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge under 28 U.S.C. § 636(c). For the reasons set forth below, the court affirms the decision of the Administrative Law Judge (ALJ).


Plaintiff was born September 24, 1970. She completed high school in 1989. Plaintiff has an uninterrupted work history from 1995 through 2007 as an assembly line worker, a binary printer, a retail cashier, and a secretary. (Tr. 163.) Plaintiff currently lives with her husband and two children; her husband is the only individual employed in the household. (Tr. 550.) On October 7, 2010, plaintiff filed her application under the Act for disability insurance benefits alleging a disability onset date of April 13, 2007. (Tr. 11, 101, 133.) Plaintiff alleges the following severe impairments: back and spine conditions, numbness in the right leg and arm, anxiety, a thyroid condition, and high cholesterol. (Tr. 162.)

Plaintiff’s application was denied initially, and thereafter she requested a hearing before an ALJ. (Tr. 8, 39.) On January 29, 2013, following a hearing, the ALJ denied plaintiff’s application. (Tr. 8-25.) On January 31, 2014, the Appeals Council denied plaintiff’s request for review. Therefore, the decision of the ALJ is the final decision of the Commissioner. (Tr. 1-5.)


A. Physical Health

On September 28, 2006, plaintiff saw M. Jeffery McNabb, D.O., her primary care physician for reported back pain. Dr. McNabb noted that plaintiff experienced relief from her back pain from chiropractic treatment. However, Dr. McNabb stated that, if chiropractic procedures fail to relieve her pain, plaintiff would need an MRI and possibly an injection. (Tr. 303.) Between November 2008 and February 2010 plaintiff visited Perryville Chiropractic twelve times for her back pain. (Tr. 203-219.)

On July 12, 2010, Dr. McNabb noted that plaintiff had been non-compliant with medications. Dr. McNabb “once again encouraged [plaintiff] to discontinue smoking.” (Tr. 260.) On August 24, 2010, plaintiff visited Dr. McNabb regarding complaints of low back pain, and he scheduled an MRI for September, 9 2010. (Tr. 252.) The September 9, 2010, MRI revealed degenerative disc disease and mild narrowing of space at L3-4 and grade 2 anterolisthesis (a condition in which the upper vertebral body slips forward onto the vertebra below) at L4 on L5. This was due to bilateral defects with mild spinal stenosis and severe bilateral neural foraminal stenosis (narrowing of the cervical disc space) with L4 and L5 nerve encroachment. (Tr. 225.)

On October 6, 2010, Dr. Steele administered an epidural steroid injection in plaintiff’s lumbar spine in order to ease her lower back and right leg pain. (Tr. 236). However, twelve days later plaintiff reported to Dr. McNabb that the epidural injection had not alleviated the pain in her right leg, and that the pain was increasing. Based on this information Dr. McNabb referred plaintiff to Robert J. Bernardi, M.D., for neurosurgical evaluation. (Tr. 240.)

On November 2, 2010, plaintiff had her initial meeting with neurosurgeon Bernardi. Plaintiff reported pain in her lower back, right buttock, and right leg. This pain required her to change positions frequently. (Tr. 337.) X-rays showed degenerative disc disease (a general condition which causes back pain) and isthmic spondylolisthesis (a condition in which one vertebra slips unto the one below[1]). Dr. Bernardi advised plaintiff about fusion surgery and stated that the recovery from the procedure would take many months, and that she needed to commit to allowing the fusion to heal. To that end, he told her it was imperative that she stop smoking prior to surgery, because smoking is a known risk factor for developing a nonunion. (Tr. 339.) Dr. Bernardi reported that plaintiff smoked a pack of cigarettes a day. (Tr. 337.)

A November 5, 2010, cervical MRI revealed plaintiff’s developmentally narrow central spinal canal, right C5-6 medial foraminal disc herniation with encroachment, moderate C3-5 central spinal canal stenosis due to disc protrusions, and mild C2-3 congenital central spinal canal stenosis. (Tr. 228.) Dr. McNabb referred plaintiff to Jeffrey S. Steele, M.D. (Tr. 234.)

On November 23, 2010, plaintiff was examined by Shahrdad Khodamoradi, M.D., who advised that she was a good candidate for lumbar decompression and fusion surgery. (Tr. 361.) The same day plaintiff also met with Dr. Bernardi; she reported no change in her lower back or right leg pain. Dr. Bernardi noted that plaintiff had cut down to from one and a half or two packs per day to three cigarettes per day. Dr. Bernardi stated that plaintiff “understands that it is imperative for her to stop [smoking] completely before her surgery date.” (Tr. 353.)

On December 13, 2010 Dr. Bernardi performed spinal fusion surgery on plaintiff. The procedure was completed without complications. (Tr. 375-77.) Plaintiff was discharged from the hospital on December 16, 2010, with instructions not to lift any objects greater than ten to fifteen pounds or perform any activities which involve repetitive bending or twisting. Plaintiff was further instructed that she may walk or use a stationary bicycle, but she should not engage in formal exercise or a physical therapy program. (Tr. 370.)

Plaintiff had nine post operation visits with Dr. Bernardi to assess the results of her spinal surgery. (Tr. 412-25.) The initial reports generally stated plaintiff was “doing very well” following surgery. (Tr. 412, 414, 415.) By March 9, 2011, plaintiff was cleared to lift up to thirty pounds. (Tr. 414.) Dr. Bernardi continued to urge plaintiff to quit smoking cigarettes, believing continued smoking “is her single greatest risk factor for developing a pseudoarthrosis [a failed union].” (Tr. 417); (see also Tr. 412, 418, 420, 422, 423.) On October 4, 2011, Dr. Bernardi noted that her bone union was delayed. Dr. Bernardi stated that “if she finds her residual symptoms sufficiently intolerable, then revision surgery might be an option for her. However, Ms. Smith understands quite clearly that the first hurdle she needs to cross regards her tobacco use.” (Tr. 424-25.) On June 6, 2012, Dr. Bernardi attributed plaintiff’s reported back pain to a delayed union and failed fusion. (Tr. 418, 423.)

On October 16, 2011, plaintiff reported to Darryl Green, M.D. At the meeting plaintiff reported having diarrhea for the past ten to twelve months, with the course progressively worsening. “She estimates the stool frequency at three to four times a day.” (Tr. 456.) Plaintiff requested a referral for a colonoscopy, and was referred to Dr. Michael Steele. (Tr. 458.)

On October 28, 2011, plaintiff began treatment with Dr. Steele. Plaintiff reported abdominal pain which improved with her bowel movements. Dr. Steele stated that, “[m]uch of her diarrhea may be due to depression and anxiety with irritable bowel and she may benefit from an anxiolytic [anti-anxiety medication] and low grade antidepressant.” (Tr. 526.)

Dr. Steele performed a colonoscopy on plaintiff November 14, 2011, and reported she had “a spastic, mildly redundant colon with severe left sided diverticulosis and hemorrhoids [painful, swollen veins in the lower portion of the rectum].” (Tr. 532.) Several polyps were removed during this procedure. (Id.)

On November 29, 2011, plaintiff continued to report abdominal pain with diarrhea. Dr. Steele diagnosed plaintiff with gastritis (inflammation of the lining of the stomach), duodenitis (inflammation of the small intestine), irritable bowel syndrome and diarrhea. (Tr. 512.) Dr. Steele surgically removed plaintiff’s gallbladder on December 8, 2011. (Tr. 514.) Dr. Steel reported “thickened gallbladder wall consistent with chronic cholecystitis [inflammation of the gallbladder]. No current sludge. There was some scarring in Calot’s triangle.” (Tr. 515). During a post operation report plaintiff reported no abdominal pain, and Dr. Steele noted good bowel sounds. (Tr. 517.) On ...

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