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Sharon A. Proper v. Michael J. Astrue

November 7, 2011


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.



Sharon A. Proper ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying her claims for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff filed her application on March 31, 2008 alleging disability since October 22, 2007 due to back and leg impairments (AR 116-118; 131; 135).*fn1 Her application was denied, and following a hearing before an administrative law judge ("ALJ") held on November 2, 2009 (AR 22-59), the ALJ found that Plaintiff was not entitled to a period of disability or DIB under the Act (AR 9-18). Plaintiff‟s request for review by the Appeals Council was denied (AR 1-5), rendering the Commissioner‟s decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ‟s decision. Presently pending before the Court are the parties‟ cross-motions for summary judgment. For the reasons that follow, Plaintiff‟s motion will be denied and the Commissioner‟s motion will be granted.


Plaintiff was 36 years old on the date of the ALJ‟s decision and has a high school education earned through a G.E.D. (AR 16; 29). She has past relevant work experience as a cashier, laborer, light mechanic and parts driver (AR 136).

Historically, Plaintiff suffered a work-related back injury in June 2005 (AR 36; 135; 218). An MRI of her lumbosacral spine dated June 26, 2005 revealed evidence of a moderate central disc protrusion at the L5-S1 level with minimal nerve root impingement and a small disc protrusion at the L4-L5 level with minimal nerve root impingement without stenosis or neural foraminal narrowing (AR 201; 271). Plaintiff was treated with medications and physical therapy, but continued to suffer back pain (AR 349-363). In August 2006 she was restricted to light duty work by her physician (AR 351).

On October 11, 2006, an MRI revealed the same disc herniations as seen in the June 2005 MRI, but there was a significant increase in the herniation at the L5-SI level, with some impingement on both sides of the descending nerve roots (AR 296). Plaintiff was referred for a pain management evaluation on October 17, 2006 and she was assessed with lumbar radiculopathy and lumbar disc displacement (AR 201-202).

Plaintiff was also referred to a neurosurgeon for evaluation and on November 6, 2006, Matt El-Kadi, M.D., Ph.D. performed a left L5-S1 hemilaminectomy/microdiskectomy (AR 215). At her post-operative visit on November 16, 2006, Plaintiff reported a 90 percent improvement in her symptoms (AR 215). Dr. El-Kadi reported that her physical examination was unremarkable and he was "very pleased" with her progress (AR 215). Plaintiff was to undergo six weeks of physical therapy and then return to work without restrictions (AR 215).

Plaintiff was followed post-surgery by Bernard Proy, M.D., her primary care physician. On December 20, 2006 Dr. Proy concluded that Plaintiff could perform sedentary work (AR 330). On December 27, 2006, Mary Evelyn Pifer, RPA-C from Dr. Proy‟s office, opined that Plaintiff had no work restrictions (AR 331).

On January 2, 2007, Plaintiff reported to Dr. Proy that she had completed her physical therapy and was performing home exercises (AR 327). She complained of some back discomfort with occasional tingling in the left lower extremity and persistent numbness of her right lower extremity (AR 327). On physical examination, Dr. Proy found her back had improved range of motion and her gait was "okay" (AR 327). She was to return to a work-hardening program with limited restrictions (AR 327).

On March 2, 2007 Plaintiff reported to Dr. Proy that she experienced back discomfort while shoveling snow (AR 319). Dr. Proy noted that she was no longer employed and was thinking of switching to a non-physical office job (AR 319). On physical examination, Dr. Proy found Plaintiff had a "fair-to-full" range of motion and there was no neurological change (AR 319). Plaintiff had no complaints on March 21, 2007 and April 30, 2007 relative to her back and her physical examinations were unremarkable (AR 324; 326).

On October 30, 2007, Plaintiff complained of back pain and Dr. Proy found no evidence of numbness, weakness or paresthesias of her legs on physical examination (AR 321). He prescribed a muscle relaxant (AR 321). On November 13, 2007, Dr. Proy noted that her condition had improved and she was experiencing less back pain, but neurologically she had the "usual leg weakness" (AR 319). Dr. Proy increased her muscle relaxant dosage (AR 319).

On February 27, 2008, Plaintiff returned to Dr. Proy‟s office and complained of increased back pain and requested pain medication in order to manage her acute symptoms (AR 318). Jared Varner, PA-C, noted that Plaintiff had a "chronic history of back pain, comp related, for quite some time" (AR 318). On physical examination, Plaintiff walked normally without apparent discomfort but seemed "stiff" when raising to sit on the exam table (AR 318). She complained of tenderness to the left SI joint area on palpation with no significant tenderness to the right (AR 318). She exhibited reflexes in her lower extremities bilaterally, had negative straight leg raise bilaterally, and her light touch sensation was intact bilaterally (AR 318). Mr. Varner assessed her with "back pain, musculoskeletal flare" and prescribed Flexeril, ibuprofen and Tylenol for breakthrough pain (AR 318). On March 12, 2008, Plaintiff complained of back pain and left leg weakness with sciatia, and numbness down her right leg (AR 316). Dr. Proy referred her for back rehabilitation (AR 316).

On March 14, 2008, Plaintiff was evaluated by Sherrie Walker, D.O. for her complaints of back pain (AR 313). Plaintiff reported that following her back surgery in November 2006, she worked part time as a cashier from July 2007 until October 2007, but quit working because the job "aggravated her back" (AR 313). Plaintiff stated that she exercised regularly, performed stretching exercises at least twice a day and was an "avid" walker (AR 313). On physical examination, Dr. Walker noted Plaintiff was in no acute distress (AR 313). She found Plaintiff had "quite a bit of somatic changes" (AR 313). She had a positive left standing flexion test and a positive left seated flexion test (AR 313). Dr. Walker noted that Plaintiff had a prominent short right leg (AR 313). She diagnosed Plaintiff with somatic dysfunction of the cervical spine, thoracic spine, lumbar spine, pelvis, sacrum and lower extremity (AR 313). She also diagnosed Plaintiff with "NSAID" induced gastritis (AR 313). Dr. Walker performed osteopathic manipulation and Plaintiff reported immediate relief in her left leg symptoms (AR 313). Her medications were continued but Dr. Walker decreased her ibuprofen, and added Zantac for her complaints of heartburn (AR 313).

Plaintiff returned to Dr. Walker on April 2, 2008 and reported improvement in her back pain (AR 307). Although Plaintiff reported some leg weakness, she had only occasional back pain that was controlled (AR 307). She indicated she was performing stretching exercises that improved her muscle spasms (AR 307). She reported that her pain was moderately alleviated by massage therapy and totally alleviated by muscle relaxants (AR 307). Dr. Walker noted Plaintiff was in no apparent distress, was fully alert and oriented, appeared healthy and walked normally (AR 307). She found Plaintiff had negative standing flexion, which was an improvement from her last visit (AR 307). Plaintiff‟s sensation was intact to light touch and pinprick, her Achilles and patellar "DTR‟s" were brisk and symmetrical, and she exhibited good mobility of all extremities, but had bilateral plantar tenderness (AR 307). Plaintiff was assessed with backache unspecified and fibromatosis plantar fascia (AR 307). Dr. Walker performed manipulative therapy on her foot and recommended that she continue stretching exercises at home and utilize arch support inserts (AR 307). On April 30, 2008 Plaintiff reported a 70 percent improvement in her back pain and was observed walking with a normal gait (AR 301). Although Dr. Walker found some spasm of the right thoracic paraspinal muscles, Plaintiff‟s spine strength was "good," her sensation was intact, she exhibited good mobility in all extremities, and she had full (5/5) or almost full (4/5) leg strength (AR 301). Dr. Walker continued her medication regimen (AR 304).

On June 23, 2008, Dilip S. Kar, M.D., a state agency reviewing physician, reviewed the medical evidence of record and opined that Plaintiff could perform light work with postural limitations (AR 368-374). In support of this finding, Dr. Kar summarized the medical evidence, and noted that Plaintiff‟s daily activities mentioned throughout the record were not significantly limited in relationship to the symptoms alleged (AR 373). He further noted that Plaintiff‟s symptoms significantly improved following surgery, she was not currently attending physical therapy, did not require an assistive device to walk, and had not been prescribed narcotic pain medication (AR 373). Based on the evidence of record Dr. Kar found Plaintiff‟s statements relative to her symptoms partially credible (AR 374).

On July 23, 2008, Plaintiff presented with back pain that was "70 percent improved," but was aggravated by activity, driving, lifting, pulling, pushing, squatting, or standing more than one hour (AR 396). She further complained of right leg numbness and an "electrical hum" through her left leg (AR 396). On physical examination, Dr. Walker noted that Plaintiff walked with a normal gait (AR 396). She found some spasm of the right thoracic paraspinal muscles, but Plaintiff‟s spine strength was "good," her sensation was intact, she exhibited good mobility in all extremities, and she had full (5/5) or almost full (4/5) leg strength (AR 396). She noted that Plaintiff‟s mood was pleasant and her affect was normal (AR 396). She was diagnosed with intervertebral disc disorder with lumbar myelopathy; disc disorder "other" and unspecified lumbar region; and neuralgia neuritis and radiculitis unspecified (AR 397). Dr. Walker added Neurontin to her medication regimen (AR 397). Plaintiff continued to complain of back pain on July 31, 2008, but reported that she was able to get work done around the house with proper rest at night (AR 401). Dr. Walker found tenderness and muscle spasm, and performed manipulation therapy (AR 401). She decreased her Neurontin dosage (AR 402).

Plaintiff returned to Dr. Walker on August 25, 2008 and reported an 80 percent improvement in her back pain (AR 404). Plaintiff was pleasant and in no apparent distress, but was slow to stand from a seated position (AR 405). Dr. Walker noted that Plaintiff‟s symptoms had "improved with therapy to a steady level providing quality of life" (AR 404). Plaintiff claimed that her back pain was aggravated by activity but not by walking (AR 404). On physical examination, Dr. Walker found some ...

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