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Gunn v. Colvin

United States District Court, E.D. Missouri, Northern Division

February 24, 2015

LOISE L. GUNN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

SHIRLEY PADMORE MENSAH, Magistrate Judge.

Plaintiff Loise L. Gunn brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision denying her application for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and application for Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). Because the final decision is not supported by substantial evidence on the record as a whole, this case will be reversed and remanded for further proceedings.

I. PROCEDURAL HISTORY

On May 31, 2011, the Social Security Administration denied plaintiff's March 2011 applications for DIB and SSI, in which she claimed she became disabled on February 2, 2011, because of neck pain, a heart condition, and bulging discs in her back. (Tr. 78-79, 83-88, 154-68, 195.) At plaintiff's request, a hearing was held before an administrative law judge (ALJ) on September 21, 2012, at which plaintiff and a vocational expert testified. (Tr. 28-62.) On November 5, 2012, the ALJ issued a decision denying plaintiff's claims for benefits, finding plaintiff able to perform her past relevant work as well as other work as it exists in significant numbers in the national economy. (Tr. 7-23.) On December 31, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-5.) The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

II. FACTUAL BACKGROUND

At the time of the hearing before the ALJ, plaintiff was forty-seven years of age, married and living in a trailer with her husband. (Tr. 33-34.) Plaintiff testified that she does not read very well but can read simple things. (Tr. 35-36.) Indeed, the record shows that Plaintiff graduated from high school but attended special education classes throughout her education. When Plaintiff was eighteen years old, she underwent diagnostic testing which showed her to be a slow learner with significant deficits, with specific problems noted in short-term auditory memory, short-term auditory sequential memory, auditory synthesis, auditory discrimination, symbol manipulation, conceptual flexibility, and numerical facility and reasoning. At the time of this diagnostic testing, among other limitations, plaintiff's reading skills were at the third grade level and her spelling at the fourth grade level. Her measured intellectual performance was within the low average range, with plaintiff's verbal IQ measured to be 80, performance IQ measured to be 97, and full scale IQ measured to be 86. (Tr. 265-309.)

Plaintiff's Work History Report shows that plaintiff worked in a nursing home as a housekeeper from 1993 to 2004. In 2004, plaintiff worked as a lineman in a pig factory; and in 2005 and 2006, she worked as a lineman in a uniform company. From August 2006 to February 27, 2011, plaintiff worked as a dietary aide. (Tr. 203.) Plaintiff testified that she stopped working in February 2011 because of back pain. (Tr. 36.)

A. Plaintiff's Back Pain

Plaintiff testified that she first experienced back pain in February 2011 and that the pain currently limits her ability to move, lift, walk, sit, and stand. (Tr. 36-37, 43.) Plaintiff testified that her back pain interferes with sleep in that she must get up in the middle of the night to sit in a chair. She gets about four or five hours of sleep at night. (Tr. 48.) Plaintiff testified that she has received steroid injections but has not participated in physical therapy because she cannot afford it. (Tr. 39.) Plaintiff's medical records reflect that on February 11, 2011, she went to the emergency room complaining of sharp back pain radiating to both legs. Plaintiff reported that she injured her back two weeks prior and that the current pain came on at work while she was pushing a food cart. Physical examination showed muscle spasm, tenderness, and decreased range of motion. Otherwise, physical examination was normal in all respects. Plaintiff was given Toradol and was discharged to home that same date in improved condition. She was prescribed Vicodin and Flexeril. (Tr. 348-53.)

About two weeks later, plaintiff followed up with Dr. Jeffrey Parker, an orthopaedic specialist at the Columbia Orthopaedic Group who had previously treated plaintiff for issues related to her neck. (Tr. 331 & 420). Plaintiff reported that she was not "having any major neck issues" but was there for a "new problem with pain in her back and left leg." Id. Examination showed plaintiff to be in no acute distress. She walked with a normal gait and was able to heel and toe walk without difficulty. However, plaintiff had painful motion about the lumbar spine, and tenderness was noted over the lumbar paraspinals. A CT scan revealed central disc bulges including one that was "fairly heavily calcified." Id. Dr. Parker instructed plaintiff to remain off of work until the following week and ordered an epidural steroid injection. Id. (Tr. 331.)

B. Plaintiff's Neck Pain/Stiffness

At the hearing before the ALJ, plaintiff testified that she has constant pain in her neck and has difficulty turning her neck. (Tr. 45-46.) Plaintiff testified that she turns her body to look in different directions. (Tr. 52.) Plaintiff testified that her neck condition affects her ability to reach above her head because she cannot look up. (Tr. 48.) Plaintiff also cannot look down and holds things out in front of her to see them. Plaintiff has had steroid injections and takes Vicodin, which helps ease the pain. (Tr. 39, 52.)

Plaintiff's medical records reflect that beginning in October 2010, she was treated for severe neck stiffness that had gradually worsened over the past year. (Tr. 330.) An x-ray was taken that showed suspected diffuse idiopathic skeletal hyperostosis or DISH. The x-ray revealed very large spondylolytic spurs involving the first, second, third, fourth, fifth, sixth and seventh cervical vertebrae. In addition, the fourth, fifth, sixth and seventh cervical vertebrae were ankylosed which, in the opinion of the reviewing doctor, "should cause marked limitation in range of motion." (Tr. 354.)

Plaintiff visited Dr. Jeffrey Parker at the Columbia Orthopaedic Group on October 29, 2010 for follow up treatment. Plaintiff reported having some pain with the condition, but not a lot. Plaintiff had no numbness or weakness and no complaints regarding her extremities. Physical examination showed plaintiff's neck to have extremely poor rotation, noted to be about twenty percent of normal. Flexion and extension was slightly better. Dr. Parker noted the recent x-ray which showed extensive bony osteophytes across the front of plaintiff's neck at essentially every disc level was consistent with DISH. Dr. Parker diagnosed plaintiff with probable DISH involving the cervical spine and ordered an MRI. (Tr. 416-17.)

Plaintiff underwent an MRI on November 19, 2010, which showed prominent disc bulge with cephalad extrusion of contents, resulting in some mild canal and bilateral neural foraminal stenosis at the C3-4 level. Shallow bulging was also noted at C4-5 and, to a lesser extent, C7-T1. (Tr. 414.) Plaintiff complained to Dr. Parker that her neck continued to be sore and very stiff. Upon review of the MRI, Dr. Parker diagnosed probable cervical spondylosis secondary to DISH. Noting there to be no evidence of nerve root or spinal cord compression, Dr. Parker recommended an epidural injection and advised plaintiff to participate in physical therapy for cervical strengthening and range of motion. Dr. Parker noted ...


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