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Tammy Buckner v. Michael J. Astrue

November 5, 2012


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



Tammy Buckner ("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") and supplemental security income ("SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. and § 1381 et seq. Plaintiff filed her applications on October 21, 2008 alleging disability since July 15, 2007 due to a neck and shoulder injury (AR 163-171; 179).*fn1

Her applications were denied (AR 57-58), and following a hearing held on December 15, 2012 (AR 31-56), the administrative law judge ("ALJ") issued his decision denying benefits to Plaintiff on February 24, 2011 (AR 15-27). Plaintiff's request for review by the Appeals Council was subsequently 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, the Plaintiff's motion will be denied and the Commissioner's motion will be granted.


Plaintiff was 47 years old on the date of the ALJ's decision (AR 163). She completed school through the eighth grade and reportedly had past work experience as a general laborer and a housekeeper (AR 35; 181).

On July 9, 2007, Plaintiff presented to the emergency room and complained of left shoulder pain since she fell of her bicycle on July 2, 2007 (AR 229-231). X-rays of her left shoulder were negative, revealing no evidence of fracture, dislocation or significant arthritic changes, and the soft tissues were unremarkable (AR 234). She was diagnosed with an acute left shoulder injury, prescribed Motrin and Flexeril, and was discharged in good condition (AR 230).

Plaintiff was seen by Anthony Snow, M.D. on July 22, 2008 and complained of left shoulder pain (AR 251). Her physical examination revealed tenderness in the left shoulder, left trapezius area, and posterior cervical area (AR 251). Dr. Snow diagnosed her with shoulder pain and neck pain, ordered diagnostic studies, and referred her to physical therapy (AR 251). Plaintiff's cervical spine x-ray dated August 15, 2008 showed some spondylosis, with minimal bilateral C5-6 foraminal encroachment secondary to uncovertebral joint disease (AR 260).

Plaintiff returned to Dr. Snow on September 18, 2008 and complained of shoulder and back pain (AR 250). On physical examination, Dr. Snow found multiple trigger points and referred her to trigger point massage therapy (AR 250). She was diagnosed with shoulder pain and prescribed a Medrol dose pack (AR 250).

Plaintiff attended five physical therapy sessions from September 4, 2008 through October 3, 2008 (AR 254-259). Plaintiff was discharged from physical therapy on October 3, 2008, and the discharge notes revealed that Plaintiff initially reported a decrease in her symptoms, but denied any lasting improvement (AR 254). Plaintiff continually "asked for [an] MRI" and a change in her pain medications (AR 254).

Plaintiff returned to Dr. Snow on November 6, 2008 and continued to complain of left shoulder pain (AR 310). On physical examination, Dr. Snow found some tenderness and decreased range of motion secondary to discomfort (AR 310). He diagnosed Plaintiff with shoulder pain and prescribed amitriptyline and Neurontin (AR 310).

On November 14, 2008, Plaintiff completed a Function Report on a form supplied by the Commissioner (AR 198-207). Plaintiff reported that she was able to care for her dog, was independent in her personal care, was able to prepare meals and perform household chores such as cleaning and laundry, and shop for groceries (AR 199-201). Plaintiff further reported she watched television, went outside every day, and visited with friends and family on a regular basis (AR 201-202). Plaintiff indicated she was able to follow written instructions, get along with authority figures, and handle changes in routine (AR 203-204).

On February 3, 2009, Plaintiff underwent a consultative examination performed by Paul Shields, D.O., pursuant to the request of the Commissioner (AR 261-266). Plaintiff complained of neck and left upper arm pain (AR 261). She relayed a lengthy history of crack cocaine abuse but reported she had been "clean" for seven months (AR 261). Plaintiff believed some of her pain was related to her drug abuse and recent sobriety (AR 261). Plaintiff reported that she worked steadily for 18 years until 2007, and had worked for one month in 2008 at a Microtel (AR 261). Dr. Shields noted that Plaintiff was pleasant and cooperative, but she was tearful and her affect was "flat" (AR 261). On physical examination, Dr. Shields found tenderness in her upper back, neck and shoulder (AR 262). He further found that her fine and dexterous movements were normal (AR 262). Plaintiff exhibited a full range of motion except in the shoulder and cervical regions (AR 265-266). Dr. Shields reported on psychiatric examination that Plaintiff was fully oriented, her mood was depressed and her affect was flat, her memory was intact, and her insight and judgment were fair (AR 262). Dr. Shields diagnosed Plaintiff with neck and arm pain, cocaine abuse in remission, and constipation (AR 262).

Dr. Shields completed a Medical Source Statement of Plaintiff's ability to perform work-related physical activities (AR 263). Dr. Shields concluded that Plaintiff could frequently lift and carry 10 pounds and occasionally lift and carry 20 pounds; sit, stand and walk for four hours each in an 8-hour day with a sit/stand option; occasionally perform postural activities; and was limited in reaching with her left arm (AR 263-264).

On February 4, 2009, Manella Link, Ph.D., a state agency reviewing psychologist, reviewed the medical evidence of record and concluded that Plaintiff did not have a severe mental impairment (AR 267). Dr. Link found that Plaintiff had only mild restrictions in her activities of daily living, no difficulties in social functioning, no difficulties in maintaining concentration, persistence and pace, and there were no repeated episodes of decompensation (AR 277). Dr. Link observed that Plaintiff had no prior mental treatment (AR 279). He further observed that at her consultative examination, Dr. Shields found she was fully oriented, her memory was intact and her insight and judgment were fair (AR 279).

Plaintiff returned to Dr. Snow on February 16, 2009 and complained of back and left arm pain (AR 307). Plaintiff denied a history of trauma, falls or injuries (AR 307). Dr. Snow reported that Plaintiff was very pleasant, cooperative and in no acute distress (AR 307). On physical examination, Dr. Snow found she had a decreased range of motion in her left arm and shoulder area, and there was tenderness in the lumbosacral spinal area into her hips (AR 307). Dr. Snow diagnosed Plaintiff with shoulder and back pain, increased her amitriptyline dosage and referred her for cervical and lumbar spine x-rays (AR 307).

On May 5, 2009, Plaintiff sought mental health treatment at Safe Harbor Behavioral Health (AR 330-334). Plaintiff complained of depression and disturbances in her sleep, appetite, energy level, and concentration difficulties (AR 330). She also reported fleeting suicidal ideations but denied any plan or intent (AR 330). Plaintiff indicated that she previously self-medicated with alcohol and drugs, and continued to smoke marijuana a "few times a week" to help her sleep and deal with her pain (AR 330). On mental status examination, Plaintiff was fully oriented, cooperative, maintained good eye contact and displayed good hygiene (AR 332). Her speech was spontaneous, her affect was appropriate, her memory was intact, and her insight and judgment were "good" (AR 332). Her thought processes were organized and relevant, although Plaintiff reported hearing voices (AR 332). Plaintiff was diagnosed with major depressive disorder, recurrent episode, and combination of opioid type drug use with other drugs (AR 333). She was assessed with a Global Assessment of Functioning ("GAF") score of 50,*fn2 scheduled for a psychiatric evaluation, and referred to therapy (AR 333).

Plaintiff returned to Safe Harbor on August 24, 2009 and underwent a psychiatric evaluation performed by L. Eberly, D.O. (AR 326-328). Plaintiff complained of depression, low energy, decreased concentration, poor sleep, feelings of worthlessness, and auditory and visual hallucinations (AR 326). Plaintiff reported a history of crack cocaine dependency lasting 26 years, but claimed she had been clean for one year (AR 326). She admitted however, that she continued to use marijuana daily (AR 326). On mental status examination, Dr. Eberly reported that Plaintiff was alert, fully oriented, friendly, attentive, cooperative, not agitated and had good eye contact (AR 327). Her speech was normal, coherent, and spontaneous with adequate content (AR 327). Her thought processes were coherent and organized without any suicidal ideations, her intellect was average, and her cognition and memory were intact (AR 327). Her mood was reported as "very depressed" and her affect was "depressed" (AR 327). Plaintiff was prescribed Celexa and Seroquel, and was advised that her symptoms could be the result of her substance abuse (AR 327). Dr. Eberly requested that she discontinue her marijuana usage so she could be evaluated during a period of sobriety (AR 327). It was further recommended that Plaintiff continue with therapy, which Plaintiff reportedly found "extremely beneficial" (AR 328). Dr. Eberly diagnosed Plaintiff with a drug-induced mood disorder, with the need to rule out a diagnosis of major depressive disorder with psychotic features, and cannabis dependence, unspecified use, and assigned her a GAF score of 49 (AR 328).

On October 27, 2009, Plaintiff returned to Dr. Snow and complained of increased neck pain (AR 303). Dr. Snow found tenderness in the left side of her neck (AR 303). He prescribed Nalfon and Robaxin, ...

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