United States District Court, W.D. Missouri, Western Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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 ...