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Valentin v. Berryhill

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

October 10, 2017

SARA ENID VALENTIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.

         Plaintiff Sara Valentin appeals the Commissioner of Social Security's final decision denying her application for disability insurance benefits under Title II and Title XI of the Social Security Act. For the following reasons, the Court reverses and remands the decision of the ALJ.

         I. Background

         Valentin was born in 1977, and alleges she became disabled following a fall while working at a nursing home in October 2009. Valentin alleges the onset date of her disability was six months later, 4/13/2010, when her injuries forced her to cease working completely. The Administrative Law Judge held a hearing on 3/25/2015 and denied Valentin's applications for disability insurance benefits and supplemental security income benefits on 6/9/2015. In this appeal, Valentin argues that the ALJ's RFC is unsupported by the substantial evidence of the record as a whole, contending the ALJ erred in failing to consider two third-party statements. Valentin also argues the ALJ committed reversible error in her evaluation of two expert opinions. Finally, Valentin argues the Commissioner failed to sustain her burden at Step Five of the sequential analysis, by relying on the Vocational Expert's testimony even though she only provided three jobs that are all incompatible with Valentin's RFC.

         A. Medical History

         On 10/27/2009, Valentin visited Gary N. Thomsen, M.D., complaining of back pain. Tr. 337. Valentin told Dr. Thomsen that she had injured her back the previous day at work. She was a Certified Nursing Assistant, and had slipped on a puddle of water while bathing a resident. Valentin told Dr. Thomsen that her pain was exacerbated by activity, walking, movement, manipulation, or straining, and rated her pain a ten out of ten. Tr. 337. Dr. Thomsen noted she was anxious and in mild distress. Tr. 338. He examined Valentin, and noted that she felt worse pain lowering her legs, had decreased lumbar ROM in all planes, and pain at ¶ 4-S1 laterally and into her hips. Tr. 338. X-rays were negative for acute osseous abnormality. Dr. Thomsen prescribed Flexeril and Tylenol, and restricted Valentin from lifting more than five pounds, prolonged standing or walking, and pushing or pulling more than ten pounds. She was restricted to limited use of her back and hips. Tr. 339.

         Three days later, Valentin returned to see Dr. Thomsen because her symptoms were worsening. She had been scheduled for physical therapy, but did not comply due to severe pain. Tr. 340. She reported pain in the thoracic and lumbar region of her lower back. Tr. 340. Thomsen diagnosed a lumbar strain and spine pain, and prescribed Ibuprofen and Vicodin. Tr. 341. He placed the same physical restrictions on Valentin, and once again scheduled her for physical therapy. Tr. 341.

         Valentin returned to see Dr. Thomsen on 11/4/2009, because her symptoms continued to get worse and the medication and physical therapy were not helping. Tr. 343. She reported pain in her lower back and left leg, which she rated a six out of ten. Tr. 343. She also experienced associated stiffness and numbness. Tr. 343. An MRI of the thoracic spine revealed mild disc desiccation throughout her thoracic spine, a small disc bulge at ¶ 6-T7 which effaced the anterior aspect of the thecal space, and minimal spurring of the vertebral endplates within the mid to inferior aspect of the thoracic spine. Tr. 345. An MRI of the lumbar spine showed small central disc protrusion at ¶ 4-L5 which did not appear to abut the anterior aspect of the thecal sac or either nerve root. It also showed broad-based left lateral disc protrusion at ¶ 5-S1 which minimally encroached upon the left neural foramen and appeared to abut the left L5 nerve root along its inferior margin, mild facet arthrosis at ¶ 4-L5 and L5-S1, hemangioma within the vertebral body of L3, and disc desiccation throughout the thoracolumbar spine, most pronounced at ¶ 4-L5 and L5-S1. Tr. 347. Dr. Thomsen prescribed Vicodin, Ibuprofen, and Flexeril. Tr. 343.

         The next day, Valentin returned to see Dr. Thomsen. Once again, she complained of severe back pain, stating that it radiated down her left leg and created some numbness and tingling in the left knee and foot. Tr. 349. Thomsen reviewed the MRIs from the previous day and diagnosed thoracolumbar disc disease, L5-S1 herniated disc on the left, and constipation. Tr. 349. Valentin was instructed to remain off work, and Epidural steroid injections were recommended. Tr. 349.

         On 11/30/2009, Valentin was referred to Adrian P. Jackson, M.D., for surgical evaluation. Tr. 356. Valentin used a single prong cane to walk, reported the same lower back and left leg pain as before, but now also complained of neck and left arm pain. Tr. 356. Dr. Jackson acknowledged that this was not unusual, however, for time to pass with gradual development of symptoms. Tr. 356. Dr. Jackson noted it was a difficult exam due to intense pain, but he reported minimal objective findings. Tr. 356. The exam revealed diminished light touch sensation in the left L4 and S1 dermatones, in her left second and fifth digits, diminished cervical and lumbar range of motion, positive Hoffman's reflexes bilaterally, and negative straight leg tests. Tr. 356. Dr. Jackson opined that a structural abnormality in Valentin's lumbar spine, which existed before her injury, might have been aggravated. Tr. 357. He recommended more physical therapy, epidural steroid injections, and a cervical MRI. Tr. 357. That MRI revealed very mild degenerative change with a mild loss of lordosis, but was essentially a normal scan. Tr. 361.

         Valentin visited Joseph Galate, M.D., on 2/7/2010, at the request of her insurance company. Once again, Valentin described her slip and fall at work, and the resulting pain across her lower back, scapular area, and neck, with radiation down her left arm. Tr. 387. Her pain was constant and she had difficulty lifting anything heavy, standing, and walking. Tr. 387. Valentin also reported that she had some temporary paralysis, for which she was evaluated in the emergency room, but stated that she received medication and had had no further problems. Tr. 387. Valentin reported her pain as anywhere between six and ten out of ten, depending on whether it was a good day or a bad one, and stated she was able to sit for twenty-five minutes, stand for five minutes, and walk for up to two hours. Tr. 387-88.

         Dr. Galate's exam revealed a limp in favor of her left leg, slow movement, and moaning during the interview. Her cervical ROM with flexion to forty degrees, extension to sixty degrees, and lateral bending to eighty degrees. The exam revealed negative Spurling's and axial load, flattening of normal lordotic curvature, lumbar ROM with flexion to sixty degrees, extension to twenty degrees, lateral bending to twenty degrees, and breakaway weakness with lower extremity testing. Tr. 389. Dr. Galate opined the slip and fall aggravated Valentin's lower back. He assessed irritation and tenderness over the left SI joint and short abductors on the left hand side. Tr. 391. Daypro, Soma, and Ultram were prescribed, and Dr. Galate recommended physical therapy for core stabilization. Tr. 391.

         Valentin returned to see Dr. Galate on 3/10/2010, 4/1/2010, 4/22/2010, 5/11/2010, and 5/25/2010. Tr. 367, 371, 376, 379, 383. Each visit she complained of lower back pain, as well as pain in her neck and legs. Her pain often fluctuated, and she rated it anywhere between zero and nine out of ten. She stated she was unable to perform her duties at home, and that she had to quit working. Tr. 376. On each visit, Dr. Galate's exam showed a normal gait, spasms over the deep paraspinal muscles, spasms in the multifidi bilaterally, normal ROM, normal sensation and muscle strength, and negative sitting straight leg raise. Lumbar disc bulge, lumbar degenerative disc disease, and degenerative lumbar spondylolisthesis were also diagnosed each time. Dr. Galate recommended more physical therapy, and scheduled a lumbar steroid injections for 3/16/2010 and 4/27/2010. Tr. 373.

         On 8/11/2010, Truett L. Swaim, M.D., conducted an examination of Valentin. Tr. 1250. Valentin reported constant pain extending from her lumbosacral area down her left leg with weakness and numbness of the left leg. She stated that her pain increased while lifting, twisting, bending, stooping, prolonged standing, prolonged sitting, and prolonged walking. Valentin told Dr. Swaim that her pain was usually anywhere between an eight and ten out of ten. She was in constant discomfort, which caused associated headaches and weakness. Valentin stated her neck discomfort increased when she held it in one position, and whenever she lifted.

         Valentin told Dr. Swaim that she had difficulty and pain with household chores, running, lifting, kneeling, pushing, or pulling. She scored a 37 on the Oswestry Function test. Dr. Swaim observed that before her slip and fall, Valentin had no history of any pre-existing occupational injury, previous neck or back conditions, or chronic headaches. Tr. 1254. Her current medications included Vicodin, Ultram, Soma, Excedrin, Tylenol, and Nexium. Tr. 1255.

         Examination of the neck revealed tenderness in the paraspinous musculature, negative Spurling sign bilaterally, intact sensation and strength in both arms, and cervical ROM of flexion 52 degrees, extension 46 degrees, right lateral bending 40 degrees, left lateral bending 38 degrees, and bilateral rotation 60 degrees. Tr. 1255. Examination of Valentin's back revealed tenderness in the upper thoracic, lumbar paraspinous region, and both SI joints, negative Lasegue sign, negative bilateral straight leg raising, muscle spasm, guarding, and decreased bilateral patellar reflexes. Tr. 1256. Lumbar ROM of flexion was 38 degrees, extension 8 degrees, right lateral bending 18 degrees, left lateral bending 14 degrees. Resisted strength testing in the legs revealed weakness of the left foot plantar flexion, though sensation was intact in both legs. Valentin could partially squat with difficulty, toe raise, and navigate steps with difficulty and use of handrail. Tr. 1256. Dr. Swaim diagnosed chronic lumbar pain with left leg radiculopathy due to disc protrusions in the lumbar region, and chronic cervicothoracic strain with associated headaches and radicular symptoms in the left arm. Tr. 1257.

         Fernando Egea, M.D., examined Valentin on 11/1/2010. Valentin described her injury for him, and explained how it resulted in lower back pain that radiated to her buttocks and both lower extremities, with numbness and tingling in her foot. Tr. 420. Dr. Egea's exam found Valentin had a normal cervical ROM, no cervical tenderness, tenderness in the spinous processes of the lumbosacral spine, pain with palpation in the bilateral SI joints, tender supraspinous and interspinous ligaments, painful and spastic paraspinal muscles. Valentin's lumbar ROM was limited, positive left straight leg raising, normal gait, and normal sensory testing. Tr. 417-418.

         A November 2010 EMG was abnormal and revealed lumbar radiculopathy involving the left S1 root. Tr. 416. On 1/17/2011, an MRI of the lumbar spine revealed minimal left posterolateral L5-S1 disc protrusion, which was less prominent than when previously seen in November 2009. Tr. 485.

         On 1/11/2011, Valentin visited Kent Bogner, D.O., complaining of the same chronic lower back pain. Tr. 455. Dr. Bogner's exam revealed diffuse lumbosacral pain with radiation into the left buttock and back of the left leg. Tr. 455. He diagnosed lumbago low back pain, sciatica, and obesity. A Medrol Dosepak was prescribed. Tr. 456. Valentin returned to see Dr. Bogner on 1/20/2011, and he diagnosed chronic pain syndrome in addition to lumbago low back pain and sciatica, and Soma was prescribed. Tr. 453-454.

         On 6/21/2011, Valentin visited Dr. Bogner again, this time complaining of anxiety and depression. Tr. 443. She was diagnosed with depressive disorder not otherwise specified, and generalized anxiety disorder. She was prescribed Celexa and Klonopin, and switched from Ultram to Tylenol. The next day, Valentin was admitted to the hospital and examined by Vijay Parthiban, M.D. She reported a sudden onset of pain in her back, again radiating down her lower extremity. Tr. 428. Tenderness was noted over the dorsum of the left leg, mid-thoracic spine, and mid-lumbar spine. Straight leg raise was normal, and Valentin reported pain only when her legs lowered. Dr. Parthiban diagnosed back pain, chronic low back pain, congenital non-fusion of L5, and mild posterior L4-L5 disc bulging. Tr. 429. A CT scan of Valentin's head was normal. Tr. 431. A CT of her lumbar spine showed mild posterior L4-L5 disc bulging, degenerative changes L4-L5 and L5-S1 apophyseal joints, left L5 spondylolysis and congenital non-fusion L5 spinous process. Tr. 432. An MRI of the thoracic and lumbosacral spine showed small central posterior T6-T7 disc protrusion, mild left posterolateral L5-S1 disc protrusion extending to the left neural foramen. Tr. 433. MRI also revealed minimal posterior L4-L5 disc bulging, left L5 spondylolysis with hypertrophic bone formation, and deformity left L5 lamina related to congenital non-fusion of spinous process. Tr. 434. A CT of Valentin's cervical spine was normal. Tr. 435.

         In July 2011, Valentin visited Thomas Laughlin, M.D., several times, and received three separate lumbar epidural steroid injections. On one occasion, Valentin also reported to the emergency room complaining of dizziness, headache, nausea, and weakness. Tr. 734. She was given IV fluid, and a CT scan of her head was normal. Tr. 733, 575. On 7/8/2011, Valentin visited Julie Broyle Wilwand, LPC, for counseling. She discussed her back injury with Ms. Wilwand, as well as the lingering pain. Valentin told Ms. Wilwand “this was the first time in her life she [had] been so sad.” Tr. 512. Ms. Wilwand noted Valentin's current psychiatric symptoms included generalized anxiety, difficulty concentrating, cries easily, lethargy, tiredness, and loss of interest. Tr. 513. Her current medications were listed as Paxil, Klonopin, Percocet, Tylenol, Flexeril, birth control, and Vitamin D. Tr. 514.

         On 9/6/2011, Valentin again presented to the emergency room complaining of severe low back pain and numbness. Tr. 771. She was prescribed Ultram, Flexeril, and Motrin. Tr. 772-73. On 11/29/2011, Valentin returned to see Dr. Bogner, and reported she had strained her back while cleaning her house over the weekend. Tr. 620. Diffuse pain was noted in the lumbosacral region, and vicodin and Soma were prescribed. Tr. 621.

         In February 2012, Valentin visited Dr. Bogner on two separate occasions, each time complaining of vomiting and dizziness. Tr. 617, 619. Valentin also reported tinnitus and hearing loss in her right ear. Tr. 617. However, an MRI of the brain was normal.

         On 4/10/2012, Valentin visited Jerry Lampe, P.T., and Kristy Kurtz, CCC/A. Valentin reported a single episode of severe vertigo, however since that time loud sounds would provoke more vertigo, and caused nausea and vomiting. Tr. 1227. Dix-Hallpike procedures were performed four times, but did not provoke subjective dizziness or nystagumus. Valentin reported that she sensed sand moving within her right ear when she reclined. Tympanometry testing revealed no significant fluid in the middle ear. However, her reported symptoms were noted to be consistent with VOR dysfunction. Tr. 1227.

         In May 2012, Valentin visited Steven C. Kosa, M.D. During the exam, Valentin reported ongoing lower back pain that radiated down her left leg, as well as leg weakness and numbness. Tr. 585. She also reported dizziness, vertigo, and headaches. Valentin stated her headaches would last between five and twelve hours, and she rated the pain anywhere from an eight to a ten out of ten. She also reported nausea, vomiting, photophobia, and right ear pain, as well as neck pain, which radiated into her left arm, and tinnitus in her right ear. Tr. 585. A mental status exam showed Valentin was alert and fully oriented, and she could provide a detailed and accurate history. Tr. 586. Her memory, recent and remote, was intact, and she was attentive with normal concentration. Her language was normal without dysarthria. Tr. 586. Valentin's physical exam revealed antalgic gait favoring her left leg, weakness with hip flexion in the left leg, mild to moderate with left hip flexion, knee flexion, and foot dorsiflexion, markedly reduced reflexes in the right patella and moderately reduced on ...


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