Guzman v. Colvin

          MEMORANDUM DECISION AND ORDER

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I.

         INTRODUCTION

         Plaintiff Maria L. Guzman ("Plaintiff") brings this action seeking to reverse the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying her application for disability benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated oelow, the decision of the Commissioner is AFFIRMED.

         II.

         PROCEDURAL HISTORY

         On May 4, 2012, Plaintiff filed an application for Disability Insurance Benefits ("DIB") (Administrative Record ("AR") 136) claiming that she became disabled on January 31, 2010. (AR 141). The Agency denied Plaintiff's application (AR 82-83) and she submitted a request for reconsideration on October 31, 2012. (AR 99). The Agency denied Plaintiff's reconsideration application on March 13, 2013. (AR 92) . On April 26, 2013, Plaintiff requested a hearing before an administrative law judge. (AR 107) . A hearing was held before Administrative Law Judge ("ALJ") Mark Greenberg on November 26, 2013. (AR 50). Plaintiff appeared with counsel and testified. (AR 50-75). Gloria Lasoff, an impartial vocational expert, also testified at the hearing. (AR 64-75) . On December 6, 2013, the ALJ issued his decision denying benefits. (AR 6-24) . On January 10, 2014, Plaintiff requested review before the Appeals Council. (AR 5). On February 23, 2105, the Appeals Council denied the request for review. (AR 1-4) . On April 30, 2015, Plaintiff filed the instant action. (Dkt. No.) 1).

         On November 5, 2015, Plaintiff filed a Memorandum in Support of Plaintiff's Complaint ("MSC"). (Dkt. No. 19). On February 4, 2016, Defendant filed a Memorandum in Support of Defendant's Answer ("MDA"). (Dkt. No. 24). On February 18, 2016, Plaintiff filed Reply in Support of Plaintiff's Complaint. (Dkt. No. 25).

         III.

         FACTUAL BACKGROUND

         Plaintiff was born on January 13, 1960. (AR 53). Plaintiff is single, the mother of three adult sons and has three grandchildren. (AR 61-62, 137) . Plaintiff is a high school graduate and was previously employed as a child care director at World's Gym from 1994 until 2001, and as a nanny from 2003^[1] until January 31, 2010. (AR 53, 161) . On May 5, 2004, Plaintiff signed a "Compromise and Release" agreement regarding a Workers' Compensation claim against the gym where she worked. (AR 126-35) . With regard to this agreement, Plaintiff alleged injuries to her "head, left shoulder and psych. [sic] ." (AR 126) . The gym disputed these allegations, noting that evidence of these injuries was lacking from Plaintiff's various medical evaluations. (AR 131). Nevertheless, the parties settled the dispute and Plaintiff received a lump sum payment. (AR 126).

         Plaintiff testified that she was laid off from her nanny position on January 31, 2010 because "the economy got bad." (AR 54). January 31, 2010 is also the date Plaintiff identifies as the onset date of her disability. (AR 53, 154) . Plaintiff testified that she "most likely" could have continued performing her nanny duties had she not been laid off, but that the progression of her symptoms would prevent her from presently performing those duties. (AR 54) . Plaintiff testified that she experiences pain, stiffness, tingling in her extremities and other physical symptoms. (AR 54-55) . On June 20, 2012, Plaintiff was involved in an auto accident that allegedly exacerbated her physical symptoms. (AR 59, 264).

         A. Plaintiffs Medical History

         1. Physical Condition

         On November 28, 2011, Plaintiff was evaluated via diagnostic imaging for pain in the cervical, lumbar and thoracic spine. (AR 253-55). Imaging of Plaintiff's cervical spine revealed "loss of the normal lordosis consistent with muscle spasm, " "2mm of spondylolisthesis of C4 on [illegible], " but that the "height of the vertebral bodies is maintained, " and "no significant degenerative changes" were seen. (AR 253) . Imaging of Plaintiff's lumbar spine revealed "[m]ild narrowing at L4/5, " normal spinal alignment, and "no other significant degenerative changes." (AR 254). Imaging of Plaintiff's thoracic spine revealed "[d]egenerative changes at the upper and mid-thoracic levels, " normal spinal alignment, and that the "height of the vertebral bodies is maintained." (AR 255).

         On December 28, 2011, Plaintiff's physician, Dr. Gita Tavassoli, examined Plaintiff. (AR 215-16). During this examination, Plaintiff rated the pain in her lower back "7" out of ten. (AR 215) . Dr. Tavassoli noted normal curvature of Plaintiff's spine and full range of motion in her neck and back. (AR 215). Dr. Tavassoli noted that the "[patient] wants to [illegible] lawyer work[er] compensation case." (AR 216) . On May 6, 2012, Dr. Tavassoli again examined Plaintiff. (AR 201-03) . During this examination, Plaintiff described her pain symptoms as "severe" with aggravating factors including "[l]ifting . . . and [t]wisting, " with relief provided by "[h]eat/[c]old and [r]est." (AR 201). Dr. Tavassoli noted "[n]ormal range of motion, muscle strength and stability in all extremities with no pain on inspection." (AR 202).

         Following Plaintiff's car accident on June 20, 2012, Plaintiff began a series of chiropractic procedures with Barry I. Nelson, a chiropractor, beginning on June 22, 2012 and ending on September 6, 2012. (AR 318-28). At the outset of these procedures, Plaintiff complained of "constant[, ] sharp[, ] severe" neck and lower back pain. (AR 323). Dr. Nelson noted "[p]atient states the . . . symptoms are directly attributable to the auto acc[ident] ." (AR 323) . When Plaintiff was asked if she noticed any "activity restrictions as a result of this injury, " she replied "[y]es" and described the restrictions as " [e] verything." (AR 328) . On August 17, 2012, Dr. Nelson completed a "Disability Slip, " which indicated that Plaintiff was under his professional care, and had been placed on disability from "6/20/12 to 9/20/12." (AR 264).

         On August 30, 2012, Dr. Tavassoli ordered that Plaintiff undergo a series of MRIs to evaluate her lower back pain and radiculopathy. (AR 271-74). The summary report indicated no loss of disc height or bulging of disc material at levels L2-L5, and that "vertebral heights are well maintained." (AR 271). Imaging of Plaintiff's lumbar spine revealed "4mm of rightward bulging of disc material at Ll-2" and "facet hypertrophy ... at L3-4 and L4-5 and to a lesser extent Ll-2." (AR 272). Imaging of Plaintiff's thoracic spine was "unremarkable." (AR 273) . Imaging of Plaintiff's cervical spine revealed "less than 2mm of concentric bulging of the T2-3 disc, " and "questionable minimal atrophy and encephalomalacia of the spinal cord posterior to C7 and Tl." (AR 274). On October 4, 2012, Dr. Tavassoli again examined Plaintiff. (AR 280-82). During this examination, Plaintiff described her pain level as "8" out of ten. (AR 280). Dr. Tavassoli noted the worsening of Plaintiff's pain and referred her to a spine clinic. (AR 281) . At a follow-up examination on October 30, 2012, Plaintiff described her pain as a "9" out of ten. (AR 290).

         On November 13, 2012, Dennis Cramer, who appears to be a doctor of osteopathic medicine (AR 339), examined Plaintiff. (AR 337-39) . Dr. Cramer noted Plaintiff's discomfort while walking and difficulty getting onto the examining table. (AR 338). However, muscle strength in Plaintiff's arms and legs were "5/5." (AR 337-38) . Dr. Cramer recommended a series of three epidural injections to combat Plaintiff's reported pain. (AR 339). Dr. Cramer's overall medical impression was "L4 to SI degenerative disc disease" and "[r]ight lower extremity radiculopathy." (AR 339).

         On March 3, 2013, Plaintiff began a series of three epidural steroid injections which concluded on April 14, 2013. (AR 413-15) . Plaintiff reported temporary pain relief due to these injections. (AR 413) . On May 3, 2013, Dr. Cramer examined Plaintiff as a follow-up to the injections. (AR 336) . During this examination, Dr. Cramer noted "minor degenerative changes, " with "no high-grade stenosis." (AR 336) . Plaintiff's physical exam revealed "5/5 strength" in her extremities, normal reflexes and normal gait. (AR 336) . Dr. Cramer explained to Plaintiff that "overall body pain" was "difficult to treat" and that her symptoms were consistent with fibromyalgia.^[2] (AR 336).

         On July 30, 2013, unknown persons evaluated Plaintiff at the "Center for Orthopaedic and Sport Excellence." (AR 341-53) . This evaluation yielded results that are difficult to decipher. (AR 349-53) . Plaintiff indicated that housework, prolonged sitting and "any activity" worsens her pain. (AR 345). Plaintiff noted that her back and neck pain was "worse" than it was thirteen months prior. (AR 345) . Notes from the evaluation reveal that Plaintiff continued to work for three years after the 2001 injury she sustained at World's Gym. (AR 346) . Notes also appear to indicate that pain from that injury was "resolved, " and that Plaintiff was "currently applying for TTD."^[3] (AR 34 6).

         On October 2, 2013, Plaintiff underwent diagnostic imaging of hei lumbar spine, thoracic spine and cervical spine. (AR 375-81) . Imagine of Plaintiff's lumbar spine revealed "exaggerated lumbar lordosis, ' "facet sclerosis and hypertrophy at L5-S1 bilaterally, " and well-maintained vertebral body heights and disc spaces. (AR 375). Imagine of Plaintiff's thoracic spine revealed "minimal spondylosis" anc "minimal superior thoracic spine levoscoliosis." (AR 376) . Imagine of Plaintiff's cervical spine revealed "mild degenerative facet sclerosis" and "hypertrophy from C3 through 7 bilaterally which appears progressive since 11/28/2011." (AR 380).

         2. Vocational Expert Testimony

         Vocational Expert ("VE") Gloria Lasoff testified regarding the existence of jobs in the national economy that Plaintiff could perforn given her physical limitations. (AR 64-74) . The VE testified that an individual with Plaintiff's age, education, experience and physical limitations would be able to perform light, unskilled work as a countei clerk. (AR 69-71) . The VE noted that someone can be "off task" ir such a job roughly five percent of the time and still maintair employment in that position. (AR 72) . The VE ...