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Cowart v. Commissioner of Social Security

March 30, 2010


The opinion of the court was delivered by: Hon. R. Steven Whalen U.S. Magistrate Judge

HON. PATRICK J. DUGGAN U.S. District Judge


Plaintiff Kimberly Cowart brings this action under 42 U.S.C. §405(g) challenging a final decision of Defendant Commissioner denying her application for Supplemental Security Income ("SSI") under the Social Security Act. The parties have filed cross-motions for summary judgment. For the reasons discussed below, Plaintiff's Motion for Summary Judgment will be GRANTED, and Defendant's Motion for Summary Judgment will be DENIED.*fn1


On November 30, 2005, Plaintiff filed an application for SSI, alleging disability as of July 12, 2003 (Tr. 65-67). After the initial denial of her claim, Plaintiff filed a request for an administrative hearing, held on June 4, 2008 in Oak Park, Michigan before Administrative Law Judge ("ALJ") Roger Thomas (Tr. 382). Plaintiff, represented by attorney William Crawforth, testified, as did Ann Tremblay, a Vocational Expert ("VE") (Tr. 387-409, 410-415). On July 11, 2008, ALJ Thomas, denying the claim, found Plaintiff not disabled (Tr. 22). On October 24, 2008, the Appeals Council denied review (Tr. 6-8). Plaintiff filed for judicial review on November 21, 2008.


Plaintiff, born September 15, 1969, was age 38 when the ALJ issued his decision (Tr. 22, 65). She completed high school, attended cosmetology school, and worked previously as a dental assistant (Tr.73, 80). Plaintiff's application for benefits claims disability as a result of back, leg, neck, and shoulder injuries sustained in a 2003 car accident, and anxiety (Tr. 72).

A. Plaintiff's Testimony

Plaintiff testified that in addition to the 2003 accident, she had been in a vehicle collision the month before the hearing (Tr. 387-388). She denied fractures or surgeries as a result of the recent accident, but noted that she continued to take already prescribed pain medication (Tr. 389). Plaintiff, right-handed, reported that she stood 5'8" and weighed 130 pounds (Tr. 391). She stated that she currently lived with her mother (Tr. 391). Plaintiff estimated that prior to the May, 2008 accident, she drove at least once a week (Tr. 391). She testified that after graduating from high school, she received nail technician training, noting that at the time of her training, she was working in a hair salon (Tr. 392). She indicated that she also possessed at least rudimentary computer skills (Tr. 392).

Plaintiff reported smoking a pack of cigarettes every day (Tr. 393). She testified that she took Vicodin regularly for back pain but denied the use of marijuana or street drugs (Tr. 393). Plaintiff alleged that she was unable to walk for more than two blocks due to leg weakness, adding that her mother helped her with some of her personal needs (Tr. 393-394). She reported that she was able to feed herself, but sometimes required help putting on shoes and socks (Tr. 394-395). She denied performing laundry chores or lifting even one gallon of milk (Tr. 395). Plaintiff reported that Vicodin relieved her pain, but alleged that back discomfort caused sleep disturbances (Tr. 396, 398).

In addition to back and leg pain, Plaintiff alleged "numbness and tingling" radiating from her neck into her left arm (Tr. 398). She indicated that a January, 2004 laminectomy did not relieve her back problems (Tr. 399). Plaintiff testified that she rejected treating source recommendations to undergo additional surgery to remove scar tissue (Tr. 400). She alleged continual back pain of varying degrees (Tr. 401). Plaintiff indicated that Motrin was ineffective (Tr. 401). In addition to her back injury, Plaintiff noted that "a partial tear" of the left shoulder had been deemed "[not] severe enough" for surgery (Tr. 401). She reported that left shoulder pain caused difficulty reaching overhead despite the fact that she performed home exercises (Tr 402).

Plaintiff also alleged continual neck pain, noting that turning sideways increased her discomfort (Tr. 402). She reported that she had been prescribed a cane, but did not use it due to left arm problems (Tr. 403). Plaintiff also indicated that epidural injections were not helpful, adding that her last injection had been more than one year before the hearing (Tr. 405). Plaintiff denied working since November, 2005 (Tr. 405).

In response to questioning by her attorney, Plaintiff reported that she currently received Demerol injections on a monthly basis (Tr. 406). She alleged constant discomfort while sitting, estimating that she could only sit for one hour or "a little bit longer" and stand for 20 minutes depending on how she felt (Tr. 406-407). She characterized a "good" day (allegedly occurring only once a week) as one in which she was able to perform light household chores and that on a "bad" day, she was unable to get out of bed, adding that the majority of days were "bad" (Tr. 407). She testified that her most comfortable position was reclining with her legs elevated (Tr. 408). She reiterated that she obtained relief from Vicodin, but that the drug made her "foggy" (Tr. 408). In addition to Vicodin, Plaintiff reported that she took Flexeril and Soma (Tr. 409). She opined that her need to recline frequently precluded even sedentary work with a sit/stand option (Tr. 409).

B. Medical Evidence

1. Treating Sources

A December, 2003 MRI showed "a large herniated disc with a probable extruded fragment" at L5-S1 (Tr. 122). January, 2004 operative reports indicate that Plaintiff underwent a laminotomy for a ruptured disk at L5-S1 (Tr. 116). An MRI taken the following month showed "a very small focal and central disc herniation... without encroachment" (Tr. 118). In June, 2004, an MRI showed "no convincing evidence of recurrent disc herniation" (Tr. 119). In June, 2004, Plaintiff reported that she continued to experience back pain "radiating down the left leg" with left toe numbness (Tr. 125). Neurologist Steven R. Cohen, M.D., noting that Plaintiff had stopped working as a dental assistant, observed that she was increasingly depressed (Tr. 125). He opined that Plaintiff had "a persistent [r]adiculopathy because of severe compression of the nerve root, opining that recovery "could take as long as an additional year" (Tr. 126). He also speculated that scar tissue existed in the area of the herniation (Tr. 126). An MRI taken later the same month showed "a small amount of left ventral epidural granulation tissue/fibrosis" (Tr. 127). The following month, Dr. Cohen urged Plaintiff to begin physical therapy, noting that an "epidural steroid injection... did not help" (Tr. 124).

In August, 2004, neurologist Boris J. Leheta, M.D. noted Plaintiff's reports of left leg spasms (Tr. 128). Dr. Leheta re-prescribed Flexeril, Klonopin, Vicodin, and Neurontin, recommending physical therapy (Tr. 131). He denied Plaintiff's request for a home aide, opining that "her condition [was] not severe enough by any means" (Tr. 131). November, 2004 physical therapy notes indicate that while Plaintiff "progressed well... she did not show up for therapy to seek secondary measures" (Tr. 132). She was discharged for non-attendance (Tr. 132-133). The following month, an MRI showed "enhancing tissue in the left canal at L5-S-1 in keeping with post-surgical fibrosis," but no evidence of herniation (Tr. 162, 327). Neurologist Narayan P. Verma, M.D. told Plaintiff "that she might have to live with her neurological deficit" (Tr. 156). She was advised "not to lift anything heavy, push, [or] crawl" (Tr. 156). Additional imaging studies performed the same month show results "consistent with a radiculopathy involving the S1 root on the left" (Tr. 220).

Medical records created by Shores Primary Care between April, 2004 and November, 2005 show that Plaintiff complained of continuing back pain and leg numbness (Tr. 190-229). In July, 2005, Plaintiff sought pain control treatment, reporting continued pain, numbness, and spasms despite epidural injections, physical therapy, and the use of a back brace (Tr. 169). William Kole, M.D. recommended epidural steroid injections "with fluoroscopic guidance" as well as "trigger point injections of the left trapezius muscle" (Tr. 171). Dr. Kole advised her to continue to take Vicodin twice daily (Tr. 171). In October, 2005, Jay Kaner, D.O., noting Plaintiff's history of migraines as well as back problems, remarked that epidural injections had been unhelpful (Tr. 185). Plaintiff exhibited problems "walking, bending, and stooping" (Tr. 185). Nerve conduction studies yielded normal results (Tr. 186). Dr. Kaner noted that an electrophysiologic exam "suggest[ed] an S1 radiculopathy on the left," speculating that "[t]here may be a disc fragment still at S1 on the left" (Tr. 186).

In December, 2005, orthopedist Jeffrey Zacharias, M.D. evaluated Plaintiff, noting slight range of motion limitations, but the absence of muscle atrophy (Tr. 306-307). Also in December, 2005, Plaintiff obtained chiropractic treatment for headaches as well as neck, shoulder, back and leg pain (Tr. 233). Treatment notes from February, 2005 to ...

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