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Horwitz v. Saul

United States District Court, E.D. Missouri

September 12, 2019

ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.



         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying the application of Kelly Horwitz (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II, 42 U.S.C. §§ 401, et seq. Plaintiff filed a brief in support of the Complaint (ECF 13) and Defendant filed a brief in support of the Answer (ECF 18).


         Plaintiff filed her application for DIB under Title II of the Social Security Act on November 10, 2014 (Tr. 159-160). Plaintiff claims she became disabled on May 7, 2014, because of fibromyalgia, chronic fatigue, cervical herniated disc, cervical stenosis and cervical radiculopathy. Plaintiff was initially denied relief on January 6, 2015, and on February 27, 2015, she filed a Request for Hearing before an Administrative Law Judge (“ALJ”) (Tr. 111-115, 118-119). After a hearing, by a decision dated January 4, 2017, the ALJ found Plaintiff was not disabled (Tr. 19-27). Plaintiff filed a Request for Review of Hearing Decision on March 3, 2017 (Tr. 156). On November 17, 2017, the Appeals Council denied Plaintiff's request for review (Tr. 1-4). As such, the ALJ's decision stands as the final decision of the Commissioner. Plaintiff appealed to the United States District Court for the Eastern District of Missouri on May 3, 2018 (ECF 1).

         In this action for judicial review, Plaintiff claims: 1) the ALJ erred in determining Plaintiff's RFC as it was not supported by any medical opinion; 2) the ALJ erred by not addressing lay evidence from Plaintiff's former supervisor; 3) the ALJ erred in evaluating Plaintiff's subjective claims of pain; and 4) the ALJ erred in accounting for Plaintiff's fatigue and fibromyalgia.

         For the reasons that follow, the ALJ did not err in his determination.


         The ALJ conducted a hearing with Plaintiff, Plaintiff's attorney, Plaintiff's husband, and a vocational expert, Dr. Darrell Taylor, on November 18, 2016 (Tr. 53). Plaintiff testified she was born in 1968, has some college education, and receives disability payments from the Department of Veterans Affairs (Tr. 62). Plaintiff's last employment ended in May 2014 (Tr. 63-64). From 2001 until May 2014, Plaintiff worked for the Jefferson County Health Department as a clerical supervisor and assistant branch manager (Tr. 63-64). Plaintiff's job required her to travel by car between two offices, and alternate between standing and sitting, doing each about half of the work day (Tr. 66-67).

         Plaintiff testified she is unable to work because she is exhausted, cannot determine how she is going to feel on any given day, and therefore is an unreliable employee (Tr. 68). Plaintiff's pain is “always at a five, ” but can, at times, be as severe as “between an eight and a nine” on a ten-point scale (Tr. 68-69). Plaintiff has experienced pain in her lower back starting around 2008 (Tr. 69). She attempted to manage this lower back pain with interventional pain relief in 2009, visits to physical therapists, and narcotics (Tr. 69). In addition to experiencing pain and exhaustion, Plaintiff testified it is hard for her to stay focused (Tr. 72-73). Plaintiff stated she suffers from memory problems and an inability to concentrate as a result of her medication (Tr. 73). Plaintiff claims her pain makes it difficult to sleep (Tr. 74). When she wakes in the morning, her body is numb and tingling all over which causes a disorienting feeling which lasts for about a half hour or longer (Tr. 74). She also states she suffers from daily headaches which require her to rest her head (Tr. 74-75).

         Plaintiff lives with her husband in a three-level duplex (Tr. 76). When she attempts to walk up the 17 stairs to the second floor, Plaintiff testified she gets winded, and has muscle spasms after about the fifth step, which requires her to stop (Tr. 76). Plaintiff avers she has extreme lower back pain when she attempts to bend over which makes it difficult for her to get back up (Tr. 77-78). She also testified she had carpal tunnel surgery on her left hand, and wears a brace on her right hand, but has not gotten surgery on her right hand because of the pain and difficulty she had following surgery on her left hand (Tr. 78). In 2015, Plaintiff took a high dose of steroids for her pain which improved her condition, but when she was placed on a lower dosage, they were ineffective (Tr. 87).

         Since 2008, Plaintiff testified she has difficulty completing household chores because of exhaustion and pain (Tr. 80). Plaintiff's son currently lives with her and her husband and helps with day-to-day cleaning, cooking, and grocery shopping (Tr. 80). In addition to outside activities, Plaintiff's hobbies include visiting Six Flags and target shooting (Tr. 83-84).

         Plaintiff's husband, Scott Horwitz, testified he did not believe Plaintiff could work any job on a full-time sustained basis (Tr. 89). Mr. Hortwitz stated before approximately 2009, Plaintiff was able to go to the zoo, take their dogs for walks, cook dinner, and go up and down the stairs without issue (Tr. 91). He also testified Plaintiff just “doesn't have the stamina” to do the things she used to do around the house, or for fun (Tr. 92-93).

         The vocational expert, Dr. Darrell Taylor, testified Plaintiff's past work includes work as a classification clerk, and public health registrar (Tr. 95). Dr. Taylor testified Plaintiff is not able to perform any of her past work; however, she was able to do sedentary, unskilled work including as a hand packer, worker assembler, and surveillance system monitor (Tr. 96-97).


         Plaintiff completed a Function Report summarizing her daily activities as follows: Plaintiff reported she was unable to sit or stand for extended periods. She claimed problems lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, and using her hands. She also stated she suffered from excessive fatigue which was exacerbated by her medications. She claimed her fatigue affected her ability to concentrate. She reported neck issues which affected her ability to hold her head up without rest due to headaches. She stated she had switched from showers to baths and had problems fixing her hair due to her arms. (Tr. 232-242).

         Plaintiff reported she cooks, does laundry, sweeps, mops, and dusts. She stated she shops for groceries weekly. Her hobbies are reading, watching television and listening to music. She reported she spends time with her family, goes to church, and has dinner with friends. She reported she was able to walk for two blocks before she needed to stop. She reported she takes her dogs outside numerous times per day. She stated she could follow written and spoken instructions.

         The medical evidence of record reflects the following: On April 18, 2013, an MRI of Plaintiff's cervical spine showed moderate to severe disc degeneration from C5 - C7, along with moderate sized central disc herniation with moderate central stenosis at ¶ 5 - 6 and moderate to severe left neuroforaminal stenosis with moderate central stenosis at ¶ 6 - 7 (Tr. 727). No. obvious fracture, deformity, or instability was noted (Tr. 727). Treatment records on April 25, 2013, indicate Plaintiff, after discussing the results of her MRI, wished to pursue a conservative treatment plan and a left C-7 selective nerve root block was ordered (Tr. 727). On June 16, 2013, Plaintiff saw Nurse Practitioner Connie Pickering, who noted Plaintiff's C-7 nerve root injections “helped 50% and [were] still giving her some relief.” (Tr. 729.)

         On November 25, 2013, Plaintiff saw her primary care physician (PCP) and was evaluated for fibromyalgia she had been diagnosed with in 2012 (Tr. 475, 733). Plaintiff described the intensity of her tender points (spine, shoulders, hips, knees, and elbows) as moderate (Tr. 733). Other treatment notes for various 2013 examinations by her PCP recorded tenderness in Plaintiff's left trapezius, decreased range of motion in her neck, intermittent, moderate upper back pain, and fatigue (Tr. 734-752).

         On June 2, 2014, Plaintiff had a consultation with a neurosurgeon for neck pain radiating to her shoulders (Tr. 430). The treatment notes reflect that: her cervical spine was not rigid and had a normal range of movement; her thoracic spine and lumbar spine were not tender or deformed; she had full strength and good coordination; and there was no need of immediate surgery (Tr. 430-31). On June 24, 2014, an MRI of Plaintiff's cervical spine revealed mild reversed curvature of the cervical spine centered at ¶ 4 - C5, degenerative disc disease at ¶ 5 - C6 and C6 - C7 (most severe at ¶ 5 - C6), multilevel disc osteophyte complex and facet joint osteoarthropathy resulting in narrowing of the spinal canal and neuroforamina (Tr. 403-04).

         On November 3, 2014, Plaintiff's PCP indicated Plaintiff had tenderness in her left trapezius, decreased range of motion in her neck, and bilateral posterior superior iliac spine pain (Tr. 780-82). On November 14, 2014, Plaintiff was seen for fibromyalgia and the record indicated she had no gait abnormality, no pain on palpation, no crepitus, her neck was supple, and her range of motion was normal (Tr. 477).

         On November 20, 2014, based upon an examination of Plaintiff, a neck (cervical spine) disability questionnaire was completed (Tr. 460-472; 821-832). The questionnaire indicated: Plaintiff had reduced right and left lateral flexion and rotation with pain on movement; she had 4/5 strength in her elbows; she did not have an abnormal gait; her sensory exam was normal; and she had moderate numbness and paresthesias in her upper extremities. Id. On the same date, a fibromyalgia disability benefits questionnaire was completed (Tr. 814-820). The questionnaire states Plaintiff indicated she had not obtained pain relief with medication and suffered from widespread musculoskeletal pain, stiffness and muscle weakness (Tr. 815-16). The questionnaire listed Plaintiff's positive trigger points.

         Plaintiff had a rheumatology consultation on March 20, 2015. The treatment notes indicate that while Plaintiff had multiple tender points consistent with fibromyalgia, she had no synovitis[2] on examination (Tr. 805). A follow-up appointment on September 25, 2015, recorded the same conditions in the treatment notes. (Tr. 811-12). Treatment notes by Plaintiff's PCP on February 3, 2015, June 2, 2015, and October 20, 2015, indicated: Plaintiff had chronic back pain without radiculopathy[3] and no changes in severity; her neck had decreased range of motion, and she had tenderness in her left trapezius (Tr. 878, 880, 881, 883, 884).

         On November 10, 2015, Plaintiff had an appointment with Dr. Anthony J. Margherita, M.D., at West County Spine and Sports Medicine. Treatment notes from this visit indicate Plaintiff had a favorable response (60 percent improvement) to a course of steroids with markedly decreased pain and stiffness in her thighs, hips, lower back and trunk (Tr. 579). A December 3, 2015 follow-up appointment noted Plaintiff had six physical therapy sessions with an improvement in range and strength, but persistent fibromyalgia symptoms (Tr. 577). This visit also reflected Plaintiff had normal range of motion in her neck and no trapezius or vertebral spine tenderness (Tr. 577). A January 7, 2016 follow-up for post oral steroid and physical therapy indicated Plaintiff had tenderness in her neck, but otherwise her neck was normal with normal range of motion (Tr. 575). Dr. Margherita ordered an MRI of Plaintiff's lumbar spine, which showed small disc protrusions at ¶ 11-12 and L3-4, mild left foraminal narrowing at ¶ 4-5, mild facet arthropathy in the lower lumbar spine, and no significant central canal stenosis (Tr. 600).

         On February 10, 2016, an EMG/nerve conduction study showed a neuropathic problem at or proximal to the intervertebral foramen at the S1 level, matching the clinical impression of a radiculopathy involving the right S1 nerve root (Tr. 596). The report also showed normal nerve conduction velocity studies in the distal lower limbs (Tr. 596). Plaintiff returned to Dr. Margherita on March 31, 2016, and treatment notes reflect she had a poor response to a back brace she wore for two weeks, her range of motion in her neck was limited in extension, her range of motion in her shoulder joint was normal, her motor strength was normal, and there was no vertebral spine or paraspinal tenderness (Tr. 959).

         Plaintiff was seen by her PCP on April 27, 2016. Treatment notes indicate Plaintiff had tenderness in multiple trigger points in her trapezius, deltoid, hips, knees and ankles (Tr. 875). The notes also stated Plaintiff had decreased range of motion in her neck (Tr. 875). On May 9, 2016, Plaintiff was treated by Dr. Ramis Gheith, M.D., at the Interventional Pain Institute. At this visit, Plaintiff reported worsening pain in her lower back (Tr. 875). At this visit, Dr. Geith noted Plaintiff had severe tenderness “over the lumbar vertebral regions and paraspinal muscles and facets L3-/L4 thru L5/S1worse with extension and lateral bending.” (Tr. 875.) Although Plaintiff had a reduced range of motion and atrophy of her lumbar paraspinal muscles, her straight leg raise testing was negative bilaterally. Id. Similar findings were recorded on a subsequent visit with Dr. Gheith on May 27, 2016 (Tr. 1008). The treatment notes from this visit indicate Plaintiff was being seen for a lumbar discography (Tr. 1009). The discography showed minimal diffuse disc bulging at ¶ 3-4, L4-5, L5-S1, and L2-3 (Tr. 964).

         Plaintiff had a follow-up appointment with Dr. Margherita on June 2, 2016 (Tr. 957-58). Plaintiff exhibited a normal gait pattern, no vertebral or paraspinal tenderness, and normal bilateral lower extremities (Tr. 957). On July 11, 2016, Plaintiff returned to Dr. Geith, who noted Plaintiff had severe tenderness to palpation over the lumbar vertebral regions and paraspinal muscles and facets at ¶ 3 - 4 through L5 - S1 (Tr. 1005). Plaintiff was positive for atrophy of the lumbar paraspinal muscles with noted weakness with poor posture and poor spinal alignment (Tr. 1005). Plaintiff ambulated without difficulty, her upper and lower extremities were noted to have normal strength and tone proximally and distally, and her straight leg raise was negative bilaterally (Tr. 1005). Plaintiff indicated she was considering spinal surgery in Arizona (Tr. 1006). On August 25, 2016, Plaintiff saw her PCP, who noted Plaintiff had lower back tenderness and decreased range of motion in her neck (Tr. 1019-20).

         IV. ...

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