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Faries v. Colvin

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

September 28, 2016

MARIA FARIES, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Maria Faries was not disabled, and, thus, not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., or supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. For the reasons set forth below, the decision of the Commissioner will be reversed and the case remanded for further development of the record.

         BACKGROUND

         Plaintiff, who was born on January 18, 1975, previously filed an application for disability insurance benefits on October 27, 2009. By decision dated August 10, 2011, an Administrative Law Judge (“ALJ”) awarded a closed period of disability from May 25, 2007 (her last day of work), through April 30, 2009, due to surgery on her back (L4-5 and L5-S1 diskogram on June 11, 2007, lumbar myelogram on June 19, 2007, and L4-5 and L5-S1 posterior lumbar interbody fusion on July 12, 2007), wrists (bilateral carpal tunnel release surgeries in January 2008, and reconstructive surgery for a broken left wrist in May and August 2008), and left shoulder (reduction internal fixation surgery on July 25, 2008). The ALJ found that beginning May 1, 2009, through the date of the decision, Plaintiff was able to perform substantial gainful activity. (Tr. 54-65.)

         Plaintiff filed her current applications for benefits on April 5, 2012, alleging a disability onset date of February 6, 2009, due to surgery on her back, wrists, and left shoulder.[1] After Plaintiff's applications were denied at the initial administrative level, she requested a hearing before an ALJ. Such a hearing was held on December 5, 2013, at which Plaintiff and a vocational expert (“VE”) testified. By decision dated March 13, 2014, the ALJ found that Plaintiff suffered from the severe impairment of degenerative disc disease of the lumbar spine with status post fusion, but that she had the residual functional capacity (“RFC”) to perform the full range of sedentary work, and in light of her vocational factors (age, education, and work experience) was not disabled under the Commissioner's Medical-Vocational Guidelines (“Guidelines”) found at 20 C.F.R. Pt. 404, Subpart P, Appendix 2.[2] Plaintiff's request for review by the Appeals Council of the Social Security Administration was denied on June 11, 2015. Plaintiff has thus exhausted all administrative remedies, and the ALJ's decision stands as the final agency action now under review.

         Plaintiff argues that the record does not support the finding that she can perform the full range of sedentary work, and more specifically, that the ALJ erred by failing to afford proper weight to the opinion of the consultative examiner, Chul Kim, M.D.

         Plaintiff's Function Report

         On her Function Report completed on June 1, 2012, in connection with her applications for disability benefits, Plaintiff stated that she did “pretty much nothing.” She did not go anywhere, preferring to be home by herself and watch TV. She represented that with the help of her husband, she would care for “kids on weekends when we have” them, as well as for her dogs. She usually ate “anything quick, usually frozen, ” and cooked meals only about twice a month, again with the help of her husband. She had difficulty sleeping and some difficulty bathing. With respect to housework, she would “throw clothes in the washer/dryer, ” and if she did do any cleaning, it would take a long time as she had to sit down frequently. She did not renew her driver license when it expired in 2009, because she experienced too much anxiety when she drove. She did not shop, had no hobbies, did not engage in any social activities, and was “grouchy” because of her pain. (Tr. 194-203.)

         Medical Record

         Plaintiff presented to a family clinic on October 3, 2011, with low back pain. An MRI performed on November 10, 2011, showed mild scoliosis and no recurrent disc herniations. Plaintiff returned to the clinic for left shoulder pain on November 17, 2011, at which time an x-ray of the left shoulder showed mild widening of the acromioclavicular joint space. (Tr. 234.) On December 22, 2011, and January 5, 2012, Plaintiff received cortisone injections on her left shoulder. (Tr. 234, 259.) On March 14, 2012, Plaintiff underwent a distal clavicle resection (“Mumford” procedure) of her left shoulder which she injured in a fall. (Tr. 253-54.)

         The record includes treatment notes dating from April 5, 2012, from a pain clinic where Plaintiff was seen for management of pain primarily associated with her lumbar condition (degenerative intervertebral disc disorders). On April 5, 2012, she received a facet joint injection for diagnostic and pain relief purposes, and on April 26, 2012, she reported a 50% reduction in her low back pain. She reported pain in another spinal area, however, and her prescription for Zanaflex (a muscle relaxer), which had run out the previous week, was renewed. On September 28, 2012, her 15-day prescriptions for Gabapentin (used to treat nerve pain) and Hydrocodon (a narcotic pain medication) were renewed for 30 days. These prescriptions continued to be renewed on Plaintiff's periodic visits to the pain clinic and were among Plaintiff's medications on the date of the evidentiary hearing. In addition, she received nine lumbar epidural steroid injections during this period for pain, which Plaintiff reported was mild to moderate but sometimes severe, aggravated by physical activity, and relieved by changing positions, rest, and medications. (Tr. 269-316.) For example, a lumbar epidural was administered on September 25, 2013, approximately two and a half months before the hearing. The physician's report stated that Plaintiff's pain failed to respond to three months of “conservative management” of patient education, physical therapy, and non-steroidal pain medication, and that test results were consistent with facet pain. (Tr. 314-16.) Medical notes during this time reported normal gait.

         Meanwhile, an MRI of Plaintiff's lumbar, cervical, and thoracic spines on July 15, 2013, showed a mild disc bulge at ¶ 3-L4, and L5-S1, with possible impingement of the left L3 nerve root; minimal desiccation in the cervical spine; and a normal thoracic spine. An MRI of Plaintiff's neck on the same day showed minimal disc desiccation in the cervical spine.

         Evidentiary Hearing of December 5, 2013 (Tr. 26-49)

         Plaintiff testified that she lived with her spouse and 14-year old daughter. Plaintiff completed ninth grade, and later received her GED. She worked as an auto welder for approximately 10 years until 2009, when she quit. Prior to that, Plaintiff worked as a packer in a meat packing facility and as a “set-up operator” at a tool company. Plaintiff testified that her back surgery was “not a success.” She testified that she could lift about 10 pounds, and could “sit longer than [she] could stand, ” which she could do for only about 15 or 20 minutes before it became too painful. She was taking pain medications but still experienced pain. She also reported that her legs gave out once or twice every two to three days, causing her to fall, but she did not report this to her doctor nor did she use a cane. Plaintiff testified that on a ...


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