United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court for review of an adverse ruling by
the Social Security Administration. The parties have
consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
April 27, 2015, plaintiff Rhonda Sue V. filed an application
for a period of disability and disability insurance benefits,
Title II, 42 U.S.C. §§ 401 et seq., and
protectively filed an application for supplemental security
income, Title XVI, 42 U.S.C. §§ 1381 et
seq., with an alleged onset date of September 9, 2013.
(Tr. 170-71, 172-78). After plaintiff's applications were
denied on initial consideration (Tr. 92-96, 97-101), she
requested a hearing from an Administrative Law Judge (ALJ).
(Tr. 104-05, 106-08).
and counsel appeared for a hearing on April 20, 2017. (Tr.
28-62). Plaintiff testified concerning her disability, daily
activities, functional limitations, and past work. The ALJ
also received testimony from vocational expert Deborah A.
Determan, M.S. The ALJ issued a decision denying
plaintiff's applications on November 22, 2017. (Tr.
13-22). The Appeals Council denied plaintiff's request
for review on June 28, 2018. (Tr. 1-6). Accordingly, the
ALJ's decision stands as the Commissioner's final
Evidence Before the ALJ
Disability and Function Reports and Hearing
was born in December 1964 and was 48 years old on the alleged
onset date. (Tr. 191). She earned a Bachelor's degree in
criminal justice, in May 2014, after her alleged onset date.
(Tr. 33, 216). She lived in a mobile home with her teenaged
daughter and her boyfriend, who traveled for work three weeks
of every month from January through September. (Tr. 33-34,
39). She alleges that she became unable to work as the result
of a fall on September 9, 2013, in which she injured her neck
and back. (Tr. 32, 46). She previously worked as an
administrative clerk in county government, a chemical abuse
technician in a residential treatment center for adolescent
boys, a substitute teacher, a cashier at a dollar store, and
as a research assistant while in graduate school. (Tr. 34-39,
204). From 2006 to 2008, she managed a sports bar she owned
with her then-husband. (Tr. 37, 56).
listed her impairments as bulging/herniated discs of the
cervical and lumbar spine, cervical spondylolisthesis,
cervical and lumbar foraminal stenosis, cervical and lumbar
degenerative disc disease, and lumbar facet
degeneration/hypertrophy. (Tr. 215). In her February 2014
Function Report (Tr. 226-39), plaintiff described her daily
activities as making meals for her daughter and boyfriend,
reading, watching television, and using the computer. She
also fed the family dog and fish. She listed her hobbies as
painting, doing arts and crafts, camping, and babysitting for
her grandchildren, although she was not able to do these
activities very often and needed assistance with some of
them. She was no longer able to run, do yoga, dance, garden,
and work due to ruptured discs in her neck and back. Her
sleep was disrupted by pain and she sometimes slept only four
or five hours a night. She had difficulty with dressing and
caring for her hair due to an inability to lift her right arm
above her head, and needed help to get out of the tub. She
did laundry, cooked, dusted, cleaned the bathrooms, and
watered outdoor plants and swept the porch. She had a
driver's license but, because of neck pain, could drive
for only 15 minutes. She could walk five blocks before
needing to rest for 10 minutes. She stated in the Function
Report that she went grocery shopping once a week, spending
1.5 to 2 hours. At the April 2017 hearing, however, plaintiff
testified that she no longer went to the grocery store. (Tr.
42). She was able to manage financial accounts. She
restricted her social activities because she could not sit or
stand for more than limited periods before needing to rest.
She had no difficulty paying attention, completing tasks, or
following instructions. She got along well with others,
including authority figures. She normally did well at
handling stress, but was presently experiencing stress and
anxiety. She had no difficulty responding to changes in
routine. She used an arm brace prescribed by her doctor.
Plaintiff had difficulty with lifting, squatting, bending,
standing, reaching, walking, sitting, kneeling, climbing
stairs, using her hands, and completing tasks. Plaintiff
listed her medications as the muscle relaxer baclofen,
Naproxen, Prozac, and Trazodone for sleep. (Tr. 218). In
March 2017, she reported that she was taking a muscle relaxer
and Naproxen for pain, vitamin D for osteoporosis, Effexor
for depression, Klonopin for anxiety, and amitriptyline for
sleep. She was also taking medications to treat irritable
bowel syndrome (IBS), a hiatal hernia, allergies, and
menopause. (Tr. 281-82).
testified at the April 2017 hearing that she was injured in
2013 when she fell from her back door onto concrete from a
height of four feet. She testified that she sustained
herniated discs in her neck and low back. (Tr. 46-47). She
initially tried conservative treatment, including steroid
shots, physical therapy, and chiropractic care. She had neck
surgery in February 2016 and lumbar surgery in January 2017.
(Tr. 47). Her symptoms improved, but she still had what she
described as whiplash in her neck and pain in her back when
she bent over or reached too high. (Tr. 47, 52). As is
discussed more fully below, she testified that she was able
to stand for about 15 minutes before she had low back pain
and some swelling in her legs. She then needed to lie down
with a heating pad for about 10 to 15 minutes. She also
testified, however, that this did not occur every day.
testified that, as a result of the antibiotics she took after
her neck surgery, she had two bouts of Clostridium difficile
(C. diff) and now suffered from IBS, which caused diarrhea
and pain. (Tr. 42-43). She testified that she had
been treated on an emergency basis for nausea and dehydration
three or four times. (Tr. 50, 52-53, 683-84). She identified
the IBS as her biggest barrier to work because she had
frequent bowel movements and was not always able to make it
to the restroom in time. (Tr. 42-43, 52). She took a
medication which helped and her doctor had recently increased
the dosage. A recent scope disclosed inflammation,
precancerous polyps and a hiatal hernia. She was scheduled
for a second procedure in about six months. (Tr. 43-44, 51).
In addition, plaintiff stated that she had bursitis in her
right shoulder that impeded her ability to lift her arm above
her head. (Tr. 45). She also had surgery to address carpal
tunnel syndrome and a ganglion cyst that prevented her from
bending her thumb. These conditions improved following the
surgery. (Tr. 51-52). Finally, she testified that she had
depression and anxiety and sometimes wanted to sleep all day.
expert Deborah Determan was asked to testify about the
employment opportunities for a hypothetical person of
plaintiff's age, education, and work experience who was
able to perform light work, who could never climb ladders,
ropes, or scaffolds, could occasionally climb ramps and
stairs, stoop, kneel, crouch, and crawl. In addition, the
individual could occasionally reach overhead with her right
arm, and frequently handle, finger and feel. The person
needed to avoid concentrated exposure to vibration and
pulmonary irritants, and all exposure to moving machinery and
unprotected heights. (Tr. 57). According to Ms. Determan,
such an individual would be able to perform plaintiff's
past work as an administrative clerk, resident aide, and bar
manager. In addition, the individual could work as an
information clerk, a routing clerk, a furniture rental clerk.
If restricted to sedentary work, the individual could still
perform plaintiff's past work as an administrative clerk,
in addition to work as a document preparer, telephone quote
clerk, or callout operator. (Tr. 58-59). All work would be
precluded if the individual had two or more unexcused
absences per month, was off-task more than 15 percent of the
time, needed more than two bathroom breaks in addition to the
customary three breaks per day, or who needed to lie down for
25 minutes twice during the work day. (Tr. 59-61).
September 9, 2013, plaintiff walked out the door of her
mobile home, not knowing that a workman had moved the steps
away. She fell four feet to the concrete below, landing on
her buttocks and striking her head. (Tr. 336). The following
day, she went to the emergency department at Mercy Hospital
Jefferson. (Tr. 309-12). X-rays of the left knee, right
shoulder, right wrist, sacrum, and coccyx disclosed no
fractures or subluxations. (Tr. 313-17). MRIs completed on
September 23, 2103, disclosed minimal degenerative changes in
the right shoulder, minimal disc protrusion at ¶ 4/C5
without spinal stenosis, disc protrusions at ¶ 5/C6
causing borderline spinal stenosis, and significant
degenerative changes at ¶ 3-L4 with moderate stenosis.
(Tr. 318, 320-21, 323-24). In October 2013, she told
chiropractor Nancy K. Nitsch, D.C., that she had pain in her
low back and neck, between her shoulders, and in her arm. She
had a total of ten chiropractic treatments between October 11
and November 6, 2013, without lasting relief. (Tr. 293-94).
Brett A. Taylor, M.D., offered a “spine opinion”
in June 2014. (Tr. 336-39). Plaintiff reported that she
experienced pain, weakness, and numbness throughout her right
arm, that was worsened by raising her arm. She had difficulty
with fine motor skills, such as writing and picking up small
objects with her right hand. She also had neck pain that was
worsened by moving her neck. In addition, she had pain in her
back and right leg, without weakness or numbness. Her
symptoms were aggravated by sitting and walking. She had been
taking Master's level courses but had to stop due to
pain. (Tr. 337). She was prescribed Baclofen and Trazadone.
Following an examination, Dr. Taylor opined that plaintiff
had “a complex constellation of symptoms” with
“evidence of both lumbar and cervical
instability” and “signs and symptoms consistent
with stenosis/radiculopathy.” (Tr. 338). He recommended
a two-month trial of epidural or nerve root injections and
physical therapy, possibly followed by surgery if
plaintiff's condition did not improve. Plaintiff received
nerve blocks and epidural steroid injection in August and
September 2014, without lasting relief. (Tr. 357-80).
the lumbar and cervical spine completed in October 2014
showed severe foraminal encroachment at ¶ 5-C6 and
moderate stenosis at ¶ 3-L4. (Tr. 410, 414). In February
2015, Stefan Prada, M.D., of the Laser Spine Institute
diagnosed plaintiff with herniated discs and spinal stenosis
in both the lumbar and cervical regions. (Tr. 387-88). Dr.
Prada recommended decompression surgery at ¶ 5-6 and
L3-4. (Tr. 389).
also sought treatment for gastrointestinal complaints. In
November 2015, she was evaluated by gastroenterologist
Youssef Assioun, M.D. (Tr. 569-75). She complained of
abdominal pain, with nausea and vomiting, constipation
alternating with diarrhea, heartburn, and dyspepsia. She also
reported that she experienced depression and anxiety. A
colonoscopy and endoscopy showed a hiatal hernia,
diverticulosis, and small intestinal metaplasia, but were
otherwise “unremarkable.” (Tr. 558-60, 561-63,
563-66, 578-582). Dr. Assioun prescribed Prilosec and
Metamucil, and at follow-up in December 2015, plaintiff
reported improvement in her symptoms. (Tr. 578). Dr. Assioun
diagnosed plaintiff with possible GERD and IBS with diarrhea.
January 21, 2016, plaintiff underwent right carpal tunnel and
right trigger thumb releases, which relieved her symptoms.
(Tr. 609-10, 458). On February 10, 2016, neurosurgeon
Fangxiang Chen, M.D., performed an anterior cervical
discectomy and fusion (ACDF) to address plaintiff's
progressive neck pain due to worsening degenerative disc
disease and associated decrease in sensation. (Tr. 458-59).
At follow-up in May 2016, plaintiff reported that she still
experienced some burning and neck pain, which she rated at
level 2 on a 10-point scale. According to Dr. Chen,
plaintiff's symptoms were almost completely resolved and
she was happy with her surgical outcomes.
days after her ACDF surgery, plaintiff required hospital
admission for abdominal pain, nausea, vomiting and diarrhea.
(Tr. 475-84). She was treated for C. diff infection and
improved rapidly. (Tr. 483). In April 2016, plaintiff was
readmitted for a second C. diff. infection without evidence
of megacolon. (Tr. 487-529, 498). In June 2016, Dr.
Assioun noted that plaintiff's infection cleared
following treatment with antibiotics. (Tr. 543-47). She was
taking Imodium and the antispasmodic Bentyl and reported that
she had no diarrhea and her pain had improved. In addition,
she denied experiencing anxiety and depression. (Tr. 543-44).
A sigmoidoscopy revealed diffuse mild inflammation. (Tr. 549,
September 2016, plaintiff returned to see Dr. Chen for
treatment of lumbar-spine symptoms, including severe low back
pain that radiated to her toes. (Tr. 656-57). When
conservative treatment failed to resolve her symptoms, Dr.
Chen recommended that she undergo a transforaminal lumbar
interbody fusion at ¶ 3-4. (Tr. 660-61, 658-59). The
surgery was completed in January 11, 2017. (Tr. 639). At her
post-surgical follow up on February 21, 2017, plaintiff
reported that her back pain was much improved, rating at 3 on
a 10-point scale and only intermittent. (Tr. 662-63). She was
again happy with her postoperative course.
March 17, 2017, plaintiff returned to see Dr. Assioun with
complaints of chronic diarrhea. (Tr. 693-99). Dr. Assioun
noted that plaintiff had not been seen since April 2016 and
had cancelled three follow-up appointments. She reported that
she took Imodium about two or three times a week to slow down
her diarrhea. Her abdominal cramps were partially relieved by
Bentyl. Her heartburn was “pretty well”
controlled by Prilosec. Dr. Assioun started plaintiff on
Vibrezi. An endoscopy in April 2017 showed a normal
esophagus, inflammation in the greater curvature of the
stomach but an otherwise normal stomach, and normal duodenum.
September 11, 2015, Barry Burchett, M.D., completed a
consultative examination of plaintiff. (Tr. 446-51). Dr.
Burchett reviewed the history of plaintiff's injuries and
her course of treatment to date. Plaintiff reported that she
had intermittent neck pain that radiated into her shoulder
and was aggravated by turning her head and by lifting weights
heavier than a gallon of milk. She reported that neck surgery
had been recommended but she could not afford it. She had
intermittent low back pain, aggravated by lifting, coughing,
or driving more than 15 minutes. She also had epigastric
symptoms consistent with GERD. On examination, Dr. Burchett
noted that plaintiff ambulated with a normal gait and did not
have to use a handheld assistive device. She was stable, and
comfortable in supine and sitting positions. She had no
tenderness, redness, warmth or swelling in the shoulders,
elbows, wrists or hands. She could fully extend her hands,
make fists, oppose all fingers, write, and pick up a coin
with both hands. She had normal range of motion of the finger
joints of both hands, including the right thumb which
displayed trigger-finger. Despite wearing a cervical collar
to the examination, plaintiff had no tenderness of the
cervical spine or paravertebral muscle spasm. Examination of
her dorsolumbar spine was similarly unremarkable. She was
able to stand on one leg at a time and straight leg raising