United States District Court, E.D. Missouri
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
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).
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).
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.
reasons that follow, the ALJ did not err in his
EVIDENTIARY HEARING BEFORE 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).
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).
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.
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).
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).
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).
MEDICAL EVIDENCE AND OTHER EVIDENCE BEFORE THE ALJ
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.
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.
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.)
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).
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).
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).
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.
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 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 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).
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.
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).
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
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).