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Bair v. Commissioner of Social Security

July 23, 2010

PAMELA C. BAIR, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge

Magistrate Judge Susan Paradise Baxter United States Magistrate Judge

REPORT AND RECOMMENDATION

Judge Sean J. McLaughlin

I. Recommendation

Plaintiff, Pamela C. Bair, brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final determination of the Commissioner of Social Security ("Commissioner") which denied her application for disability insurance benefits ("DIB') under title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433. Plaintiff filed a motion for remand based on new evidence on October 2, 2009. (Doc. No. 12). Plaintiff also filed a motion for summary judgment (Doc. No. 16) and brief in support (Doc. No. 17) on November 2, 2009. The Commissioner filed a cross-motion for summary judgment (Doc. No. 18), and brief in support (Doc. No. 19) on December 1, 2009. For the following reasons, it is respectfully recommended that Plaintiff's motion for summary judgment be granted insomuch as it requests a remand for further proceedings not inconsistent with this opinion. It is further recommended that Plaintiff's motion for remand be denied as moot and the Commissioner's motion for summary judgment be denied.

II. Report

Plaintiff protectively filed for DIB on February 21, 2006 alleging disability due to herniated discs in her neck and stenosis with an alleged onset date of November 5, 2004. (R. 99, 102). Her claim was denied at the state agency level on August 3, 2005. (R. 41). Plaintiff filed a request for a hearing before an administrative law judge ("ALJ"). (R. 53). A hearing was held before ALJ William Vest on June 5, 2008. (R. 374-407). Plaintiff, who was represented by counsel, appeared at the hearing and testified on her own behalf. (R. 378-398). An impartial vocational expert also testified. (R. 398-407). The ALJ issued a decision on July 11, 2008, finding that Plaintiff was not disabled within the meaning of the Act. (R. 12-27). The Appeals Council subsequently denied Plaintiff's request for review, thereby making the decision of the Commissioner final in this case. (R. 4-6). Plaintiff now seeks review of that decision by this Court.

A. Facts

Plaintiff was forty-nine years old at the time of the hearing, and therefore was defined as a "younger individual," age 18-49, pursuant to 20 C.F.R. §§ 404.1563. (R. 99). Plaintiff obtained a GED and her prior work includeds employment as inspector at a plastic parts factory, a housekeeper, a janitorial supervisor, and a day care center worker. (R. 25, 103-104).

Plaintiff underwent a cervical MRI on November 2, 2004, which showed disc herniations centrally at C4-5, C5-6, and C6-7. (R. 184). The spinal cord was effaced at C4-5 centrally and to a milder extent at C5-6. Id. Plaintiff was referred to Dr. John Flamini, a neurologist, by her family practitioner, Dr. Jeffrey Start. (R. 196). Plaintiff reported neck pain, and numbness, paresthesia, and dysesthesia in the first few digits of her right hand. (R. 180).

Dr. Flamini performed nerve conduction studies in Plaintiff's right arm, which revealed mild Tinel's sign and mild Phalen's sign. Id. Dr. Flamini concluded that the tests revealed no evidence of radiculopathy and very mild medial neuropathy of the right wrist as evidence of mild carpal tunnel syndrome. Id. He prescribed a two week treatment of anti-inflammatory medications and follow-up with an orthopedist if necessary. Id.

On December 30, 2004, Plaintiff was evaluated by Diane Adiutori, CRNP, and Dr. Richard Mendel, a neurologist. (R. 177). Ms. Adiutori performed a physical examination noting normal strength and grips with positive Phalen's sign on the right. (R. 179). Plaintiff was assessed with disc herniations at C4-5, C5-6, and C6-7 with no nerve root impingement. (R. 177). Plaintiff was prescribed a six week course of physical therapy and prescribed Flexeril, a muscle relaxant. Id. Plaintiff underwent twelve physical therapy treatments in January and February 2005, but experienced no relief from her symptoms. (R. 174, 177-178). Plaintiff returned to Dr. Mendel on February 22, 2005. (R. 176). Dr. Mendel opined that the medical literature did not support surgery for neck pain and recommended an increase of her Motrin and an evaluation by Dr. Thomas for cervical joint facet injections. Id.

Plaintiff was evaluated by Dr. James Kang, a neurological surgeon, on March 14, 2005 at the request of Dr. Start. (R. 21, 321). Plaintiff reported numbness and tingling in her right hand and neck pain. (R. 321). On examination, Dr. Kang noted a normal gait, "very limited" range of cervical motion, dull pinprick on the right C6 dermatome, and slight hyperflexia but negative Babinski sign, Hoffman sign, and clonus sign. (R. 322). Review of Plaintiff's MRI revealed the same findings as noted by her previous physicians. Id. Dr. Kang assessed classic multi-level stenosis caused mostly by a radicular syndrome. He recommended an anterior corpectomy with an allograft fibular strut fusion. Id. Plaintiff's cervical corpectomy at C5 and C6, allo-graft fibular strut fusion at C3 through C7, and posterior cervical fusion at C3 through C7 was performed on April 21, 2005. (R. 246-248). Dr. Kang's post-operative diagnosis was multilevel cervical stenosis, C3 through C7 with spinal cord compression and cervical radiculopathy. (R. 246).

X-rays of Plaintiff's cervical spine in May 2005 showed an uncomplicated fusion and posterior stabilization. (R. 251). Plaintiff returned to Dr. Kang on May 20, 2005 for follow-up. Overall, Dr. Kang noted that she was doing "quite well" with relief of arm pain, but she was having difficulty sleeping. (R. 312). Dr. Kang placed Plaintiff on Elavil for her nervousness and sleep and continued her Vicodin with the instruction to slowly taper the medication. Id. She was also given a cervical collar. Id. Plaintiff was seen again on July 1, 2005 at which time she reported mechanical neck pain and tiredness. (R. 309). He noted that she was experiencing a "little" withdrawal from the narcotics and had some delayed recovery due to her continued smoking. X-rays showed a "beautifully healing" cervical fusion. Id. Physical therapy was ordered. Id. Plaintiff attended physical therapy from July through November of 2005. (R. 273-289).

On August 3, 2005, Plaintiff records were reviewed by a state agency medical evaluator, Tamela Coscoran. (R. 271-277). Ms. Coscoran opined that Plaintiff was capable of occasionally lifting twenty pounds and frequently lifting ten pounds; standing or walking for six hours out of a eight hour work day; sitting for about six hours out of an eight hour work day; was unlimited in her ability to push and pull; and was occasionally able to climb, balance, stoop, kneel, crouch, and crawl. (R. 272-273).

On October 3, 2005, Plaintiff returned to Dr. Kang with complaints of mechanical neck pain. (R. 308). Dr. Kang noted that Plaintiff had not quit smoking and was working full time. On examination, Plaintiff's cervical range of motion was mechanically stiff, but her neurological status was still normal. Id. Dr. Kang opined that the pain was related to Plaintiff's fusion still trying to complete itself and he again warned her of the effects of smoking on fusion healing. Id. Plaintiff returned to Dr. Kang on March 20, 2006. (R. 307). Plaintiff reported an increase in the her neck pain. On examination, her cervical range of motion was mechanically stiff, but her neurological status was normal. Id. Dr. Kang ordered a new MRI to rule out a further disc herniation and prescribed Flexeril and a soft neck collar "to rest her neck at the end of the day." Id.

Plaintiff's records were reviewed on June 1, 2006 by Sonia Clover, a state agency medical evaluator. (R. 323-329). Ms. Clover opined that Plaintiff was capable of occasionally lifting twenty pounds and frequently lifting ten pounds; standing or walking for six hours out of a eight hour work day; sitting for about six hours out of an eight hour work day; and was unlimited in her ability to push and pull. Id. On the same date, Dr. Manella Link, a psychiatrist completed a psychiatric review technique after a review of Plaintiff's records. (R. 330). He opined that Plaintiff was experiencing depressive symptoms secondary to her pain. (R. 333).

Dr. Link suggested that Plaintiff had mild limitations in her activities of daily living and in concentration, persistence, and pace and no difficulties in social functioning. (R. 340).

On July 20, 2006, Plaintiff was evaluated by Dr. Rodney Bingham, a pain management specialist, at the request of Dr. Start. (R. 352-353). Plaintiff reported that her extremity numbness resolved post-surgery but that she was experiencing cervicothoracic bilateral pain that worsened throughout the day. (R. 352). She noted that the pain was constant, sharp, aching, and throbbing. Id. Plaintiff's physical examination was normal except for a limited cervical range of motion in the left and right and limited cervical flexion and extension.

(R. 353). Plaintiff was diagnosed with cervical post-laminectomy syndrome and cervical radiculitis. Id. Dr. Bingham noted that Plaintiff's pain seemed to be mainly "somatic in etiology." Id. He recommended that analgesic management was the most appropriate option with the use of an electrical ...


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