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Palmer v. Colvin

United States District Court, W.D. Missouri, Western Division

January 3, 2017

NORA J. PALMER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          NANETTE K. LAUGHREY United States District Judge

         Plaintiff Nora J. Palmer appeals the Commissioner of Social Security's final decision denying her application for disability and disability insurance benefits under Title II of the Social Security Act. The decision is affirmed.

         I. Background

         Palmer was born in 1951. She alleges she became disabled on 11/28/2008, after working for the U.S. Postal Service for many years. Her date last insured was 12/31/2014. The Administrative Law Judge held a hearing on 6/10/2015 and denied her application on 9/22/2015. The Appeals Council denied her request for review on 1/13/2016.

         A. Medical history

         In February 2008, Palmer complained to her primary care physician, Diane Voss, M.D., of sudden onset of back pain and said she had gone to urgent care and to the chiropractor. Palmer declined Dr. Voss' offer of a weight restriction for work. In April 2008, examination showed normal back and musculoskeletal findings. In May 2008, Palmer reported some back pain after walking in a 5K race, but said her back was better overall. Dr. Voss ordered an MRI of Palmer's back in November 2008, which showed degenerative disc changes in the lumbar region and some annular tears, but no central spinal stenosis or disc protrusions. Palmer declined a pain clinic referral. An examination later that month showed her extremities were tender but her back was normal. In December 2008, Palmer was prescribed a TENS unit and physical therapy.

         Palmer had 12 physical therapy sessions from December 2008 to January 2009. When the course of therapy ended, she reported having made good progress, had normal range of motion and strength, and rated her pain at 0 out of 10. She had another course of physical therapy consisting often visits that ended in March 2009. She reported steady improvement and at discharge, her range of motion and strength were normal.

         In April 2009, Palmer reported back pain to Dr. Voss, but said exercises helped. Musculoskeletal findings were normal. Dr. Voss prescribed pain medication and a muscle relaxer. In July and October 2009, Palmer told Dr. Voss that she regularly did yoga and exercises and her back was better.

         Palmer complained of back pain to Dr. Voss in April 2010. In August 2010, after two months of physical therapy, Palmer reported that she was doing really well and could manage her back pain with exercise. Her range of motion and strength were normal. In October 2010, Palmer told Dr. Voss she had numbness and decreased grip strength in the right hand and arm, and low back pain. She also said she could not sit or stand longer than 15 minutes. Dr. Voss increased Palmer's Vicodin. A cervical spine x-ray showed lower cervical degenerative changes with bilateral bony foraminal impingement greater on the right.

         In January 2011, Palmer reported that she was taking zero to six doses of Vicodin per day, she was exercising regularly and doing yoga, and her right arm symptoms had resolved. Hand and wrist x-rays taken in May 2011 were unremarkable.

         Palmer went to Dr. Voss' office on May 18, 2011, but after noting Palmer could not walk, the doctor sent her to the emergency room to rule out a compression fracture. The emergency room physician noted "no acute distress" on physical exam. Tr. 391. Palmer had back tenderness and spasms, but a straight-leg raise test was negative, and she had full range of motion in the legs and normal sensation. She was administered pain medication and discharged with a diagnosis of back pain of questionable etiology and prescriptions for pain medication.

         After her emergency room visit, Palmer followed up twice with an orthopedic surgeon, Jeffrey T. MacMillan, M.D. On May 9, 2011, she reported debilitating waistline pain that first began "10 years ago but [began] in earnest about 10 days ago" and said medication did not help. Tr. 608. She described the pain as sharp and stabbing, but without radiation to the legs. She denied numbness. She said she "typically treated her pain with PT modalities and yoga which managed it until recently." Id. Except for generalized lumbar paraspinal tenderness and guarded motion, her physical exam was normal. Dr. MacMillan ordered an MRI, which showed minimal lateral lumbar curvature, degenerative disc disease at ¶ 2-3 and L3-4, and small to moderate disc bulges at ¶ 4-5 and mild narrowing. At a follow up visit on May 23, 2011, Palmer told Dr. MacMillan that her pain medications helped but did not provide adequate relief. The doctor recommended a trial of facet blocks with radiofrequency ablation, which Palmer declined.

         At a visit with Dr. Voss in August 2011, Palmer reported that she had not had a good experience with Dr. MacMillan. She complained of neck and arm pain. Dr. Voss assessed degenerative joint disease. At a November 2011 appointment, Palmer reported to Dr. Voss that she was doing her back and neck exercises, saw her grandchildren regularly, and visited a chiropractor for neck pain. Physical exam was normal. Dr. Voss assessed stable low back pain.

         At a February 2012 visit, Dr. Voss noted mild back tightness and tenderness, but that Palmer's musculoskeletal findings were essentially normal and stable, and assessed lumbar spinal stenosis. In May 2012, Palmer complained of difficulty sleeping, and back spasm with radiation. Dr. Voss' findings on exam were similar to her February 2012 findings, and she recommended that Palmer continue her medications, and to stretch and stay active. At an August 2012 visit, Palmer reported that her back pain had flared up after being with her grandchildren and doing a lot of driving and sitting. She said she was taking six hydrocodone tablets a day without relief and asked to resume OxyContin, which Dr. Voss prescribed. In December 2012, Palmer saw a nurse practitioner, Tammy Osborn. Palmer reported that her radiating low back pain had improved since her last appointment, that she exercised regularly and was active, and that she took hydrocodone daily and OxyContin as needed. Osborn noted paraspinal back spasm on physical exam, but that Palmer's musculoskeletal findings were essentially normal or stable and compatible with known history. She also noted long-term use of high-risk pain medication. Osborn's assessment included stable spinal stenosis and she recommended stretching, yoga, and staying active.

         Palmer next saw Dr. Voss in February 2013, with back spasm and antalgic gait. Dr. Voss noted normal or stable musculoskeletal findings and intact sensation, and prescribed physical therapy. From February through May 2013, Palmer made steady progress in physical therapy. She had decreased pain, which she could manage with pain medication, heat, and stretching. By the time of discharge from physical therapy, she no longer had muscle spasms and her range of motion had improved. At an April 2013 visit with Dr. Voss, Palmer said her pain level had improved and she tried to stay active. She described her pain as only moderately limiting but said she had to be careful with her grandchildren. Dr. Voss noted that Palmer's back pain was stable and encouraged her to continue stretching and yoga as tolerated. At a July 2013 visit, Dr. Voss noted Palmer had had a flare up of back pain but was better, and renewed Palmer's pain medications. At an October 4, 2013 visit, Dr. Voss noted back spasm, but that Palmer's back was better and stable, and renewed Palmer's pain medications. Palmer also complained of bilateral hand pain, but declined referrals to a pain clinic or for a surgery consult. Palmer saw Dr. Pampolina on October 21, 2013, in follow-up for an epigastric issue, and on exam, the doctor noted normal musculoskeletal findings, i.e., full range of motion without tenderness or swelling. On October 24, 2013, Palmer saw the nurse practitioner, Osborn, about pain and a rash on her chest. Osborn diagnosed shingles. She noted Palmer had an antalgic gait and a left-side limp.

         In December 2013, Palmer had a mental consultative examination with Jane W. Ruedi, Ph.D. Palmer told Dr. Ruedi that she retired from the postal service due to a back injury. She said physical therapy helped her control her symptoms and that she exercised and performed stretches. She also said she drove, managed her brother's Social Security Supplemental Security Income payments, did laundry, walked, went to the gym, attended weekly Bible study, had her grandchildren and friends over to visit, read, visited another woman once a week, took craft classes with a friend, and played cards once per month.

         Palmer saw Dr. Voss for a physical in January 2014. She reported that chronic back pain was a factor "at times" and that she tried to remain active. Tr. 560. Her pain level had improved since her last appointment and was moderately limiting, but medications helped and she did not want to pursue pain clinic treatment or surgery. She said she had to be careful with her grandchildren, but had hobbies, engaged socially, went to the gym two to three times weekly, and performed her activities of daily living without difficulty. Examination revealed mild back tenderness and tightness and antalgic movement, and essentially normal and stable musculoskeletal findings. Dr. Voss assessed controlled lumbar spinal stenosis and recommended a book regarding back pain.

         Palmer had physical therapy in March and April 2014 and was discharged with improved range of motion. The physical therapist noted deficits in all planes of motion. She also noted that she had instructed Palmer about modifying activities at home to aid in decreasing her pain level, but did not believe Palmer had followed the instructions.

         Lumbar images taken in April 2014 showed mild degenerative changes. Palmer subsequently told Dr. Voss that she found it difficult to be comfortable in view of the back pain, and that it was painful to sit, stand, and lift. She said physical therapy did not provide lasting benefit, and a TENS unit, which she used 30 minutes a day, did not help. She had tried a Lidoderm patch with mild improvement. Dr. Voss noted that Palmer's x-rays did not explain her pain. An MRI of the lumbar spine taken April 30, 2014 showed mild degenerative disc bulges at different levels, with slight worsening at ¶ 3-L4; a small right L4-L5 disc protrusion that remained stable; no significant foraminal or central canal stenosis; and no definitive nerve root compression.

         Palmer saw a pain specialist, Howard Aks, M.D., in June 2014 for low back pain that radiated to her legs. She reported having had previous treatment including physical therapy, chiropractic, nonsteroidal anti-inflammatory drugs and other pain medications, and bedrest, but said that all treatment other than bedrest was ineffective. Examination showed her spine was non-tender and stable. She had normal range of motion except for pain with lumbar extension. She had positive bilateral straight-leg raises, but stable joints and normal muscle strength, tone, and leg range of motion. Right leg strength had decreased dorsiflexion compared to the left, and ankle reflexes were 0 on the right and 1 on the left. Her neck was normal and symmetrical; posterior cervical muscles were nontender; and the cervical spine was stable with normal range of motion. Her arms were normal and she had stable joint stability and normal range of motion. Dr. Aks assessed lumbar radiculitis and recommended a lumbar epidural steroid injection, but Palmer wanted to think about it and later declined.

         At a visit in August 2014, Dr. Voss noted that Palmer had declined the epidural steroid injection, and that Palmer said stretches helped. Dr. Voss prescribed pain medications, and recommended a back brace, Lidoderm patches, and a back pain book. In November 2014, the doctor noted Palmer had not followed up on the recommendations.

         When Palmer saw Dr. Voss in February 2015, she reported that she had gotten the back brace and Lidoderm patch, and they were helpful. She also reported that she was able to cut down on her medications. Examination showed back spasm and tenderness, but Dr. Voss noted that Palmer's musculoskeletal findings were essentially normal or stable. At a March 2015 appointment with Dr. Pampolina for a rash, Palmer said she had gone on a cruise at the end of February. Examination showed she had full range of motion, no extremity clubbing or swelling, full motor strength in her arms and legs, and intact sensation.

         Palmer saw the nurse practitioner, Osborn, in May 2015, reporting arm numbness, tingling, and weakness, and that she was unable to open and hold things well. Palmer reported partial relief with massage and past improvement with wrist braces. Examination showed back spasm and tenderness, but essentially normal and stable musculoskeletal findings, and normal deep tendon reflexes. Palmer had paresthesia in her arms when raised above her head for less than a minute, but sensation was otherwise intact. Osborn assessed carpal tunnel syndrome and recommended that Palmer restart her wrist braces. Osborn also ordered a cervical spine x-ray and an EMG. The test results showed mild bilateral carpal tunnel syndrome.

         Palmer saw Dr. Voss in June 2015, reporting numbness and tingling in her hands. She said she had been to pain management for her back, but she was not interested in pursuing it again. She denied neuro-muscular symptoms, but complained of life-limiting pain. She told Dr. Voss that her co-pay for OxyContin had increased, so she only took it half of the time. Examination showed mild back tenderness and tightness, and antalgic movement, and pain medications were prescribed.

         B. Expert opinions

         Dr. Voss filled out a medical source statement in February 2009. Tr. 604-05. Palmer's diagnoses included degenerative joint disease, disc disease, and annular tear. Dr. Voss stated that Palmer's symptoms, "back pain with radiculopathy, " resulted from a "sickness" that first appeared on November 7, 2008 and were not work related. Tr. 604. The doctor described Palmer's treatment plan as physical therapy, continued visits with her primary care physician, and medication. Where asked on the form to list medications that had been prescribed, the doctor listed only ...

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