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Gower v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

January 13, 2015

CAROL GOWER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION [15]; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT [14]; AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT [13]

ARTHUR J. TARNOW, Senior District Judge.

Plaintiff seeks judicial review of an Administrative Law Judge (ALJ) decision denying her application for disability benefits. Plaintiff filed a Motion for Summary Judgment [13] on March 3, 2014. Defendant filed a Motion for Summary Judgment [14] on April 22, 2014. On October 30, 2014, the Magistrate Judge issued a Report and Recommendation [15] recommending that the Court grant Defendant's motion and deny Plaintiff's. Plaintiff filed Objections to the Report and Recommendation [16] on November 9, 2014. Defendant filed a Response to Plaintiff's Objections [17] on November 11, 2014.

For the reasons stated below, the Court ADOPTS the Report and Recommendation [15]. Defendant's Motion for Summary Judgment [14] is GRANTED. Plaintiff's Motion for Summary Judgment [13] is DENIED.

FACTUAL BACKGROUND

Plaintiff applied for disability benefits on September 6, 2011, alleging that she became disabled and unable to work on August 18, 2011. The Magistrate Judge summarized the administrative record of Plaintiff's disability application as follows

The medical record is meager, spanning less than one-hundred pages filled with duplicates and barely legible handwritten scrawl. (Tr. at 207-85.) Plaintiff was examined at St. John Hospital by Dr. Laura Fox Smith on September 28, 2010, complaining of left shoulder and arm pain, and also back spasms. (Tr. at 224.) The notes state, without explanation, that she could not lift her arm and Vicodin failed to relieve the pain. ( Id. ) The objective review found heart murmurs and her arm hurt and had limited range of motion. ( Id. )
Plaintiff went to the emergency room on October 1, 2010, unable to lift her left arm due to shoulder pain. (Tr. at 208.) She rated the pain at level ten out of ten on a visual analog ("VA") scale, and said it had persisted for four days. (Tr. at 210, 212.) She reported a previous, undated back surgery to the examiner. (Tr. at 213.) X-rays showed "moderate degenerative changes" in the lower cervical spine, along with narrowing disc spaces at C5-C6 and C6-C7. ( Id. ) Cervical spine magnetic resonance imaging ("MRI") was conducted on October 6, 2010. (Tr. at 227, 281.) Dr. Roger Gonda, reviewing the MRI, concluded Plaintiff had degenerative disc disease at multiple levels. ( Id. ) Specifically, there was "mild diffuse disc bulging" at C2-C3; "mild disc bulging" at C3-C4; disc herniation causing moderate flattening and deformity, "severe neural foraminal compromise, " and "dorsal displacement of the ventral nerve root sleeve" at C4-C5; disc herniation and spur, and also "bilateral neural foraminal compromise" at C5-C6; and disc herniation and spur, moderate flattening and deformity, and "marked bilateral neural foraminal compromise" at C6-C7. (Tr. at 226, 280.

Plaintiff saw Dr. Daniel P. Elskens on November 3, 2010, to discuss her cervical spine and shoulder pain. (Tr. at 244.) The pain developed spontaneously two months ago in her lower neck and left shoulder, which were tight and ached, weakening her left arm and reducing her range of motion. ( Id. ) The area also spasmed. ( Id. ) Walking and lifting exacerbated the pain; lying down alleviated it. ( Id. ) The physical assessment found that her head and neck had mild range of motion restriction, normal stability, and normal strength and tone. (Tr. at 245.) Her gait, station, reflexes and posture were normal, and the Romberg test was negative. ( Id. ) An MRI showed moderate kyphotic deformity, degenerative disc disease at C4 through C7, and some compression. ( Id. ) He assessed cervical spondylosis without myelopathy and recommended surgery. ( Id.

On November 11, 2010, examination notes state her mobility decreased, her cardiovascular, respiratory, and gastrointestinal systems received an unexplained negative mark, and her skeletal system was abnormal on examination. (Tr. at 223.) The sheet provides no explanation of its findings. Chest x-rays taken the next day revealed no abnormalities. (Tr. at 242, 279.

At the end of November, Plaintiff underwent an "anterior cervical discectomy, fusion, [and] plating" at the C4 through C7 levels. (Tr. at 238, 240.) Dr. Elskens, the operating surgeon, wrote that her symptoms were "consistent with cervical spondylosis, " and an MRI showed kyphosis. ( Id. ) The surgery proceeded without incident. (Tr. at 240-41.) Dr. Elskens examined her one month later, finding that the symptoms diminished: "patient denies neck pain. The patient denies radicular pain.... The patient is very satisfied with [the symptoms'] postop course. There is weakness in the left shoulder, [and] the left arm, which is improved." (Tr. at 238.) The physical examination of her head, neck and shoulder girdle showed "[n]o tenderness, crepitation or deformity to palpation. Head and neck in neutral position. Full, painless range of motion of the neck. Normal stability. Normal stregth and tone." Id. ) Likewise, her gait, station, and posture were normal, and the Romberg test was negative. ( Id. ) Imaging studies of the operation site displayed proper fusion at all cervical levels. (Tr. at 238, 243.)

Though difficult to decipher, a report from November 12, 2010 shows mixed results. (Tr. at 276.) The examiner circled the "minus" sign, rather than the "plus" symbol, to represent various areas, including Plaintiff's cardiovascular system, respiratory system, and gastrointestinal system; however, her musculoskeletal system was healthy, receiving a "plus." ( Id. ) However, below that section, the examiner marked that her skeletal system was abnormal. ( Id. ) The only other pertinent information gleaned from the sheet is that Plaintiff used tobacco. ( Id.

Plaintiff saw Dr. Lal Banerji, a consultative examiner for the state agency, on November 15, 2011. (Tr. at 252.) Her diabetes began in 2002, but the only current symptoms were nocturia and occasional cramps, resolved "within a few seconds" by standing up. ( Id. ) Her cardiovascular system appeared normal, no chest pains or palpitations; but she asserted she had hypertension. ( Id. ) In 1990, Plaintiff developed lower back pain after "a work-related injury, " and she had a laminectomy and discectomy in 1997. ( Id. ) Later, "[h]er condition improved to about 50 percent." ( Id. ) She worked throughout this period and quit only recently, in August 2011, due to her neck surgery. ( Id. ) The back problems persisted, she maintained, and she also had pain and swelling in her ankles. ( Id. ) She estimated she could "walk two to three blocks at street level, stand for thirty minutes, ... climb one flight of stairs[, ]... sit for two to three hours[, ] and lie on the bed for several hours" tossing and turning. ( Id. ) Occasional dizzy spells occurred, she claimed, but she "never had a fall." ( Id. )

She then explained the issues with her cervical spine, noting her emergency room visit, surgery, and physical therapy. ( Id. ) "The weakness in her left arm improved, " she said ( Id. ) Curiously, the notes state that she did not have neck pain before the surgery, but now did ( Id. Nonetheless, the pain was mild and did not limit her movement. ( Id. ) Her right shoulder pain improved after the surgery, and any lingering pain did not radiate down her arm or limit movement. ( Id. ) She could make a fist and her grip was "good" in both hands: she could button, "tie and untie shoelaces, open doors, write legibly, [and] push and pull." (Tr. at 253.) She knew she could lift twenty-two pounds from the ground and carry it twenty feet "with bearable pain" because "[h]er grandchild weighs that much...." ( Id. ) Her neck and back stiffened periodically. ( Id. ) She used various medication, but "stopped using [a] cervical collar...." ( Id. ) She also "suffer[ed] from mental stress, " but had never seen a psychiatrist and her memory was "good." ( Id. )

Dr. Banerji determined that Plaintiff's neck was supple, she could stand without support, her spine was not tender, her lumbar spine hurt when she moved but was not restricted, her straight leg raises were ninety degrees on both sides without pain, and she had normal cervical and lumbar lordosis. (Tr. at 253-54.) He noted that hip and knee movements were somewhat restricted, but painless. (Tr. at 254, 255.) She walked well, could walk on her toes or heels or in tandem with difficulty, and never complained of pain throughout these tests. ( Id. ) She could squat and rise with lower back pain, and she could stand up from a supine position, get on and off the examination table without help, dress, and undress, and her reflexes were normal. ( Id. ) He concluded her fingers had normal dexterity. ( Id. ) Further, despite subjective complaints, "there [was] no significant physical finding or functional limitations noted during [the] examination" except the pain upon squatting and difficulty with specialized walks. ( Id. ) She could work full time if she avoided climbing ladders and scaffolding, prolonged standing, frequent bending, lifting heavy weights, and squatting. ( Id. )

Plaintiff completed a report on September 25, 2011 describing her daily activities, capacities, and impairments. (Tr. at 170.) Her husband filled out a similar report a few days earlier, mirroring Plaintiff's conclusions. (Tr. at 155.) Plaintiff said she passed the typical day doing light house work, playing computer games, crocheting, and watching television. (Tr. at 170.) Personal care was not a problem, except reaching her head proved difficult if her neck or arm hurt. (Tr. At 171.) Cooking everday, she sometimes made large meals with help, (Tr. at 172), although her husband implied that her pain prevented finishing complete meals. (Tr. at 157.) Around the house, she wrote, "I do cleaning, " which she revised in the margin to read, "I do light cleaning." (Tr. At 172.) Included in light cleaning was vacuuming every other day for a half hour to forty-five minutes and doing laundry, "sometimes all day, " once per week. ( Id. ) Her husband estimated that she put in three hours of cleaning every other day. (Tr. at 157.) She also planted flowers. (Tr. At 157.) But she did all of this only when she felt able, "if I start to hurt I stop then [sic] go back to it." ( Id. ) Her husband and sister took over many chores. (Tr. at 162.

She could drive and leave her house without help; she shopped for food and clothing in stores and online. (Tr. at 173.) Managing financial affairs did not present problems, and she asserted being capable of paying bills, counting change, handling her savings account, and using a checkbook. ( Id. ) Friends visited occasionally, and she chatted with them on the phone everyday. (Tr. at 174.) Her pain circumscribed her social activities, but dinners, theater, and visits were possible, she said, "as long as we don't sit to[o] long...." (Tr. at 175.) She asserted limitations in nearly every physical category, except the use of her hands, but only found one mental difficulty, completing tasks. (Tr. at 175.) Nonetheless, she finished projects she started and could maintain her attention unless she was "in pain." ( Id.

She also completed a "Pain Questionnaire." (Tr. at 185.) Her neck began hurting in September 2010, her back in 1997. ( Id. ) The pain extended to her arm and sometimes gave her headaches. ( Id. Asked how often the pain occurred, she stated, it "all depends on what I [am] doing, " but once started it could last for days. ( Id. ) Her medicines provided ...


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