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Johnson v. Colvin

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

January 30, 2015

ANGEL L. JOHNSON, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner of Social Security, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION[1]

PATRICIA T. MORRIS, Magistrate Judge.

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence supports the Commissioner's determination that Plaintiff is not disabled. Accordingly, IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment be DENIED and that Defendant's Motion for Summary Judgment be GRANTED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of Reference, this case was referred to this magistrate judge for the purpose of reviewing the Commissioner's decision denying Plaintiff's claims for Supplemental Security Income ("SSI") under Title XVI, 42 U.S.C. § 1381 et seq., and for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act 42 U.S.C. § 401-34. The matter is currently before the Court on cross-motions for summary judgment. (Docs. 15, 18.)

Plaintiff Angel Johnson was thirty-eight years old when she applied for benefits on March 30, 2011. (Transcript, Doc. 11 at 183, 190.) She alleges her disability began on August 19, 2009. ( Id. ) Plaintiff's work history includes jobs as a cashier, cook, waitress, bartender, stock clerk, and machine operator. (Tr. at 23, 203, 246.) At the initial administrative stage, the Commissioner considered back disorders and denied her claims.[2] (Tr. at 92-93.) Plaintiff asked for a hearing in front of an Administrative Law Judge ("ALJ"), who would consider the application de novo. (Tr. at 135-44.)

ALJ Thomas L. English convened the hearing on May 16, 2012. (Tr. at 30-51.) In his decision dated July 18, 2012, the ALJ found that Plaintiff was not disabled. (Tr. at 13-24.) The ALJ's decision became the Commissioner's final decision, see Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on October 24, 2013, when the Appeals Council denied Plaintiff's request for review. (Tr. at 1-4.) On November 20, 2013, Plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision. (Doc. 1.)

B. Standard of Review

The Social Security system has a two-tiered structure in which the administrative agency handles claims and the judiciary merely reviews the factual determinations to ensure they are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The administrative process provides multiple opportunities for reviewing the state agency's initial determination. The Plaintiff can first appeal the decision to the Social Security Agency, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137, 142 (1987). Once this administrative process is complete, an unsuccessful claimant may file an action in federal district court. Sullivan v. Zebley, 493 U.S. 521, 524-28 (1990), superseded by statute on other grounds, Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986) (en banc).

This Court has original jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner's final administrative decision. The statute limits the scope of judicial review, requiring the Court to "affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.'" Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). See also Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). The court's review of the decision for substantial evidence does not permit it to "try the case de novo, resolve conflicts in evidence, or decide questions of credibility.'" Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). See also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

"It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). See also Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the "ALJ's credibility determinations about the claimant are to be given great weight, particularly since the ALJ is charged with observing the claimant's demeanor and credibility'" (quoting Walters, 127 F.3d at 531 ("Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among medical reports, claimant's testimony, and other evidence."))); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) ("[A]n ALJ is not required to accept a claimant's subjective complaints and may... consider the credibility of a claimant when making a determination of disability."). "However, the ALJ is not free to make credibility determinations based solely on an intangible or intuitive notion about an individual's credibility.'" Rogers, 486 F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186, at *4).

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner's decision merely because it disagrees or because "there exists in the record substantial evidence to support a different conclusion.'" McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). See also Mullen, 800 F.2d at 545. The court can only review the record before the ALJ. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Substantial evidence is "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). See also Jones, 336 F.3d at 475. "[T]he... standard is met if a reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Longworth, 402 F.3d at 595 (quoting Warner, 375 F.3d at 390). "The substantial evidence standard presupposes that there is a "zone of choice"' within which the Commissioner may proceed without interference from the courts." Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted) (quoting Mullen, 800 F.2d at 545).

A court's review of the Commissioner's factual findings for substantial evidence must consider the evidence in the record as a whole, including that evidence which might subtract from its weight. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). "Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council." Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the reviewing court discuss every piece of evidence in the administrative record. Van Der Maas v. Comm'r of Soc. Sec., 198 F.Appx. 521, 526 (6th Cir. 2006); Kornecky v. Comm'r of Soc. Sec., 167 F.Appx. 496, 508 (6th Cir. 2006) ("[A]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.'" (quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999))).

C. Governing Law

"The burden lies with the claimant to prove that she is disabled.'" Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010) (quoting Foster, 279 F.3d at 353). Accord Boyes v. Sec'y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994)). There are several benefits programs under the Act, including the DIB program of Title II, 42 U.S.C. §§ 401-34, and the Supplemental Security Income ("SSI") program of Title XVI, 42 U.S.C. §§ 1381-85. Title II benefits are available to qualifying wage earners who become disabled prior to the expiration of their insured status; Title XVI benefits are available to poverty-stricken adults and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). While the two programs have different eligibility requirements, "DIB and SSI are available only for those who have a disability.'" Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). "Disability" means inability

to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

The Commissioner's regulations provide that disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination of impairments that "significantly limits... physical or mental ability to do basic work activities, " benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education or work experience.
Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that plaintiff can perform, in view of his or her age, education, and work experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston, 245 F.3d at 534. "If the Commissioner makes a dispositive finding at any point in the five-step process, the review terminates." Colvin, 475 F.3d at 730.

"Through step four, the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work." Jones, 336 F.3d at 474. See also Cruse, 502 F.3d at 540. The burden transfers to the Commissioner if the analysis reaches the fifth step without a finding that the claimant is not disabled. Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show that "other jobs in significant numbers exist in the national economy that [the claimant] could perform given her RFC [residual functional capacity] and considering relevant vocational factors." Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since the application date and met the insured status requirements through December 31, 2012. (Tr. at 15.) At step two, the ALJ concluded that new evidence showed Plaintiff had the following severe impairments: "degenerative disc disease, lumbar spine, status-post surgery; and chronic obstructive pulmonary disease/asthma." (Tr. at 15-19.) At step three, the ALJ found that Plaintiff's combination of impairments did not meet or equal one of the listings in the regulations. (Tr. at 20.) The ALJ then found that Plaintiff had the residual functional capacity ("RFC") to perform light work, as defined in the regulations, 20 C.F.R. §§ 404.1567(b), 416.967(b), with additional limitations. (Tr. at 21-23.) At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Tr. at 23.) At step five, the ALJ found that a significant number of jobs existed suitable to Plaintiff's limitations. (Tr. 23-24.)

E. Administrative Record

1. Medical Records

Plaintiff complained of lower back pain and left leg paresthesias in early 2006. (Tr. at 350.) She later dated the pain's onset as 1997. (Tr. at 525.) X-rays of her lumbar spine taken February 2007 showed normal alignment, L5-S1 disc herniation, mild L3-L4 stenosis, and mild spinal narrowing at L4-L5; but no nerve root compression or spondylolysis was seen. ( Id. ) Imaging tests from May 2007 found minimal "wedge compression" of T12 and L1 and minimal degenerative spurring at L4. (Tr. at 349.) There was no evidence of "intervertebral disc space narrowing" or spondylolysis. ( Id. ) An MRI later that month displayed "a degenerative disc at the L5-S1 level with what appear[ed] to be disc material compromising the existing L5 nerve root as well as abutting the transversing S1 nerve root." (Tr. at 351, 425.)

In August 2007, Dr. Miguel Lis-Planells performed surgery on Plaintiff's back. (Tr. at 352, 517-20.) Her intake form listed a host of attempted treatments, from injections to surgery. (Tr. at 525.) Medications gave some relief, she said. (Tr. at 525-26.) She needed "[a] little" rest during the day because of the pain, it caused weakness but not numbness, and it was aggravated by sitting, standing, bending, and lying down, but not walking. (Tr. at 526.) She did not exercise, and her emotional health was "ok, " she wrote. (Tr. at 530.)The pre- and post-operation diagnoses were lumbar disk herniation, degeneration, and radiculopathy. (Tr. at 325.) The surgery consisted of various procedures, all at the L5-S1 disc level: "right transforaminal diskectomy and decompression" of nerve roots; posterior antibody fusion; application of prosthetic device; posterior lateral fusion; and implementation of pedicle screws. (Tr. at 352-53.) In his operation notes, Dr. Lis-Planells explained that conservative treatments had failed to relieve Plaintiff's "intractable" back pain, which radiated down to her right foot. (Tr. at 353, 356.) "She did very well postoperatively[, ] without incident or complication, " wearing a lumbar brace when out of bed. (Tr. at 357.) She was discharged two days later with instructions to continue wearing the brace, stop smoking cigarettes, and avoid lifting, pulling, bending, twisting, or sitting for over one to two hours. ( Id. )

Plaintiff returned to Dr. Lis-Planells on September 12, 2007, for a follow-up examination. (Tr. at 502.) She reported her overall status was "okay." ( Id. ) Her arms and legs had normal strength, her sensation remained intact, and sensory testing was normal. (Tr. at 502-03.) Her Romberg test was negative. (Tr. at 503.) With a cane, her gait was normal, and she performed heel, toe and tandem walking without difficulties. ( Id. ) X-rays showed the devices implemented during the surgery were "in good anatomical position." (Tr. at 503, 515.) Dr. Lis-Planells concluded she was "recovering well...." (Tr. at 503) Her next examination, in October, was similar. (Tr. at 498.) Her pain was decreasing, her strength was normal, and x-rays revealed that the surgical implementations were adequately placed. (Tr. at 498-99, 514.)

The pain was "slowly getting better, " Plaintiff stated when she checked in with Dr. Lis-Planells in November. (Tr. at 494.) During the examination, her cervical spine's range of motion showed improvement, but overall spinal motion remained limited. ( Id. ) Straight-leg raising tests, measuring sciatic nerve pain, were negative. (Id.) See Cathy Speed, ABC of Rheumatology: Low Back Pain, 328 Brit. Med. J. 1119, 1120 (2004). The rest of the examination results had not changed. (Tr. at 495.) X-rays showed that the fusion was "in progress" at L5-S1; however, a magnetic resonance imaging ("MRI") test revealed "a focal herniated disc at C7-T1 with no significant cord compression" or stenosis. (Tr. at 416, 495, 512-13.) The results also showed mild degenerative changes in her cervical spine. (Tr. at 416, 513.) Dr. Lis-Planells thought Plaintiff was recovering "well, " and planned to slowly reduce her use of the brace and discontinue physical therapy. (Tr. at 496.) He did not believe that surgery was yet necessary to repair the C7-T1 herniation "since there is no clinical evidence of cervical radiculopathy or myelopathy." ( Id. )

Plaintiff began consulting with Dr. Michael Sheth in February 2008. (Tr. at 319-22, 370-72.) Their first appointment included a thorough examination to see whether Plaintiff needed epidural injections. ( Id. ) According to Plaintiff, the 2007 surgery eased, but did not eliminate, the pain in her right leg, especially around the knee; and her back pain now seemed worse. (Tr. at 319.) The pain generally registered at level five out of ten on an ascending scale; during the appointment it was at level seven. ( Id. ) Sleep was difficult, as the pain limited her to only six to nine hours of sleep per night. ( Id. ) Nearly any physical activity, including sitting, standing, and lying down, exacerbated the pain, while medications, such as Vicodin and Flexeril, provided only "a little relief" and physical therapy too proved ineffective. (Tr. at 319-20.) She had not worked since her surgery. (Tr. at 321.)

Dr. Sheth examined Plaintiff's musculoskeletal condition in depth. (Tr. at 321.) Her strength was consistently normal "in all muscle groups"; her gait was normal, she could "briefly" walk on her heels and toes; her cervical spine had a "good range of motion" and was not tender; her thoracic spine was not tender; her "mid to lower dorsal" and lumbar spine was tender; and her lumbar range of motion was decreased. ( Id. ) Bending forward and backward produced pain. ( Id. ) Seated straight-leg raises were negative, but supine straight-leg raises to forty-five degrees also were painful, ( id. ), which is generally considered a "positive" rather than "negative" result. See Speed, supra, at 1120. He diagnosed chronic low and thoracic back pain, along with chronic right thigh pain and asthma. (Tr. at 321.) They planned to employ a host of treatment procedures. ( Id. )

By February 2008 Plaintiff reported to Dr. Lis-Planells that the pain had not "significantly improved, although there [was] no lower extremity radicular pain." (Tr. at 491.) Her mid-back and neck began to hurt as well, and physical therapy after the surgery was unsuccessful. ( Id. ) Her lumbar spine was tender, but not spasming, and the doctor noted there were no "trigger points" and the straight-leg raising test remained negative. ( Id. ) Her strength and gait were normal and she walked on her toes, heels, and in tandem without difficulty. (Tr. at 492.) X-rays showed "solid fusion at L5-S1, "( id. ), and only "mild disc[-]space narrowing, " anterolisthesis, and levoscoliosis. (Tr. at 318.) Dr. Lis-Planells wanted to review new MRIs before charting a treatment course, and told Plaintiff to return when the MRIs were ready. (Tr. at 492.) In April, he wrote a brief note stating the MRI showed "no evidence of recurrent disc herniation...." (Tr. at 390, 399, 489, 511.) He believed she might continue to improve without surgery, and he referred her back to physical therapy. (Tr. at 489.) Unmentioned in the note, but written in the radiologist's report, was the possibility that scar tissue had formed "just below" a nerve root after the surgery. (Tr. at 399, 511.)

On March 10, Plaintiff told Dr. Sheth that she felt "relatively well, " rating her pain at seven out of ten on an ascending scale. (Tr. at 479.) "She is functioning relatively well and does not have many issues" aside from her back pain, Dr. Sheth reported. ( Id. ) Injections seemed to only aggravate the pain. ( Id. ) Dr. Sheth reproduced the pain by touching her back, and hyperextension of her back also produced pain. ( Id. ) The diagnoses were post-laminectomy syndrome, lumbar radiculopathy, right lumbar facet arthropathy, and right sacroiliac joint dysfunction. (Tr. at 479, 483, 486.) Dr. Sheth set out a series of procedures for treatment, (Tr. at 479); he performed them the next month, including, among others, injection, drainage, and lysis of epidural adhesions.[3] (Tr. at 483-88.)

Later in April, Dr. Sheth added thoracic spine pain to the diagnoses, though a thoracic MRI was "essentially negative, " and planned to continue the injections. (Tr. at 296, 298, 313, 361, 363, 474, 481.) The MRI did find mild degeneration in her upper lumbosacral spine. (Tr. at 313.) However, there was no evidence of "recurrent disc herniation" or that the hardware implanted during the surgery had malfunctioned. (Tr. at 489.)They tried the same procedures again in May. (Tr. at 293-95, 358-59, 476-78, 293-95.) Dr. Sheth administered more injections later that month after Plaintiff explained her condition varied between "good" and "bad" days, with her pain level generally at five out of ten on an ascending scale. (Tr. at 472.)

In April, Plaintiff told Dr. Lis-Planells that her back continued to hurt, though her leg pain had improved. (Tr. at 373, 545.) Straight-leg raise tests were negative, and no spasming occurred in the lumbar spine. ( Id. ) Her strength was normal and she walked without difficulty. (Tr. at 374, 546.) He determined that Plaintiff had not "reached maximum medical improvement, " so further surgery was unnecessary. (Tr. at 375.)

Plaintiff also saw a physician's assistant at her primary physician's office in May. (Tr. at 310-11, 346-47.) Asthma ran in her family, and she used albuterol four to five times per day. (Tr. at 310, 347.) A spirometry test from October 2007 had been normal. (Tr. at 17, 291.) However, she recently began wheezing, developed a chronic cough, and lost her breath during exercise. ( Id. ) Nonetheless, she smoked one to one-and-a-half packs of cigarettes per day, and had never started using Chantix despite receiving a prescription in January 2008. (Tr. at 310, 315-16.) Her neck was supple and normal on examination. (Tr. at 315.) She returned later that month, again received instructions to stop smoking; she admitted the Chantix prescription remained unfilled. (Tr. at 300, 337.) The examination results were normal, though no specific findings were made about her back. (Tr. at 300-01, 336-37.) She complained that her face tingled occasionally, her left eye drooped, and she experienced severe headaches; but no other concerns were flagged. ( Id. ) A subsequent MRI of her brain, investigating the face tingling and related issues, failed to uncover any abnormalities. (Tr. at 334, 413, 463.) Similarly, diagnostic testing of her chest did not suggest any abnormalities. (Tr. at 344.)

In July 2008, a computed tomography ("CT") scan of Plaintiff's lumbar spine displayed appropriate fusion from the 2007 surgery "with no apparent abnormality." (Tr. at 404, 510.) There appeared only minimal spondylosis at Plaintiff's L5-S1 facet joints; otherwise the scans showed no evidence of herniated discs, stenosis, or concerns with the nerve roots. ( Id. ) MRI results in August found mild degenerative changes at C6-C7 and, at C7-T1, "a tiny... disc protrusion" that did not impinge nerve roots. (Tr. at 384.)

Plaintiff visited Dr. Grace Boxer in July, discussing results from recent blood count studies showing mildly elevated white cell level. (Tr. at 332, 461.) Her only complaints were fatigue and back pain. ( Id. ) Dr. Boxer thought that smoking and chronic bronchitis were the root causes of the blood count issue. ( Id. ) She should stop smoking, Dr. Boxer recommended, and perhaps try Chantix again. ( Id. )

In August, her chronic cough persisted, diagnosed as chronic obstructive pulmonary disease ("COPD"). (Tr. at 451-52, 457-58.) She also had developed anxiety. (Tr. at 451-52.) Chest x-rays were normal. (Tr. at 453.) Plaintiff continued to complain of an unshakable cough, and also back pain, in late October. (Tr. at 449-50.) She finally started taking Chantix, but had not stopped smoking. (Tr. at 459.) Results from an MRI of Plaintiff's lumbosacral spine in late November showed the surgical fusion at L5-S1 remained unchanged from a February study. (Tr. at 378, 442.) The radiologist concluded, "There is no evidence of disk herniation, central spinal stenosis, or compromise to the neural elements." ( Id. ) An MRI of her cervical spine also appeared similar to previous results: the degenerative disk disease persisted, "predominantly at C6-7"; a broad-based, yet "[v]ery small, " disk bulge was noted at C7-T1; but the radiologist did not detect any evidence that the issues compromised her nerve roots. (Tr. at 379, 382-83, 443.) Finally, the thoracic MRI was normal, as it was in April. (Tr. at 335, 365, 381, 445.)

Dr. Lis-Planells examined Plaintiff that month. (Tr. at 541.) Her "burning" neck pain was her main concern and the examination showed cervical and lumbar trigger points, but no spasm. ( Id. ) Her straight-leg raise test was negative, but her bending was "[l]imited." ( Id. ) Strength and coordination remained intact, her gait was normal, and she walked on her heels, toes, and in tandem without difficulty. (Tr. at 542.) He noted that the pain treatments did not give successful long-term relief, but he recommended that she continue with them. (Tr. at 543.)

In September, Plaintiff informed Dr. Lis-Planells that her back pain was "slowly improving" and that her neck pain continued. (Tr. at 539.) He reviewed diagnostic studies and was satisfied that the surgical implementations from the 2007 procedure remained "in good anatomical position" and fusion was adequate. ( Id. ) The cervical MRI showed "only mild degenerative changes" at two disc levels and no cord compression or significant herniation. ( Id. ) He thought she was "recovering well" from the procedure. ( Id. )

In January 2009, she complained of persistent coughing and wheezing, though a respiratory examination did not reveal any retractions, rales, or rattling sounds. (Tr. at 439.) Sill coughing in May, Plaintiff went to the emergency room, describing congestion, a moderately sore through, " fatigue, and shortness of breath. (Tr. at 466.) The examiner noted wheezing and rattling noises in her breathing. ( Id. ) Chest x-rays confirmed the issues, finding "increased bronchial markings consistent with [Plaintiff's] history of both asthma and smoking." (Tr. at 467, 470-71.) She was stable at discharge and instructed to see her primary physician. ( Id. )

The problems continued throughout the month, when she arrived at Dr. Jennings's office "very" short of breath, with diffuse wheezing. (Tr. at 434.) Later that month, her cough and wheezing had "somewhat improved" and a physical examination found she breathed clearly except for wheezing. (Tr. at 432.) The respiratory problems, however, remained persistent and uncontrolled. (Tr. at 433.) X-rays that month, ordered after she developed a persistent cough, came back negative. (Tr. at 306, 430, 470.)

X-rays of her lumbar spine in March showed that the hardware from the 2007 surgery had stayed in place, her disc alignment was satisfactory, and there was "no evidence of lumbar instability." (Tr. at 509.) Only mild narrowing and spurring at one disc level appeared in the MRI. ( Id. ) An April MRI of her cervical spine, investigating her neck pain, did not show any "appreciable changes" from the last study. (Tr. at 507-08.) A "[v]ery small" disc protrusion at C7-T1 appeared on the MRI, but was not "associated" with stenosis or nerve root impingement. ( Id. )

In March, Plaintiff told Dr. Lis-Planells that she had been in a car accident four months ago, increasing her back pain. (Tr. at 536.) Trigger points and spasms were present on examination, and Plaintiff's right straight-leg raising test was positive. ( Id. ) Her muscle strength was normal, but her gait was antalgic. (Tr. at 536-37.) He planned epidural steroid injections, hoping they would give temporary relief. (Tr. at 537.) The injections in April provided "significant, " but short-lived relief, lasting only about two weeks. (Tr. at 521, 533.) On examination, Plaintiff's arm and leg strength were normal, as were her finger movements and gait. (Tr. at 533-34.) Plaintiff walked on her heels, toes, and in tandem without difficulty. ( Id. ) Dr. Lis-Planells noted that the recent MRI and x-rays showed the herniated cervical disc, "with no significant pressure on the spinal cord, " and that the lumbosacral spine at L5-S1 did not appear unstable. (Tr. at 534.)

Dr. Ravi R. Polasani examined Plaintiff's asthma and bronchial issues on June 8, 2009. (Tr. at 570-71.) Since age fourteen, Plaintiff had asthma and was hospitalized many times for related issues. ( Id. ) She used an inhaler three to four times per day and had persistent congestion, sinus problems, and allergy symptoms. (Tr. at 570.) His relevant diagnoses were allergic rhinoconjunctivitis and COPD; he recommended numerous medications. (Tr. at 571.)

Her doctors completed many diagnostic studies around this time. X-rays in June 2009 found only mild degenerative changes at two disc levels. (Tr. at 506.) In August, an MRI and CT scan of her lumbar spine showed "[s]table post[-]operative changes of L5-S1 posterior spinal fusion, without evidence of disk herniation, [or] central spinal canal or neural foraminal stenosis." (Tr. at 579, 646-47.) Dr. Lis-Planells noted that month that Plaintiff's recent epidural injections had not provided any relief. (Tr. at 641.) He noted that Plaintiff sat "comfortably" and could get "on and off the examining table without difficulty." ( Id. ) Moreover, her lumbar spine range of motion was "adequate, " her strength was normal, her stance was normal, she walked without difficulty, and her straight-leg raise test was negative." (Tr. at 641-42.) The MRI's showed that Plaintiff's spinal canal at L5-S1 was adequately decompressed and the surgically-implanted hardware was "in good anatomical position." (Tr. at 642.) He did not think more surgery was necessary but considered her a candidate for a spinal cord stimulator. ( Id. )

Plaintiff saw Dr. Cecile Dadivas in July 2009. (Tr. at 733.) She was smoking one pack of cigarettes per day, Plaintiff estimated. ( Id. ) She occasionally walked for exercise. ( Id. ) The examination showed that her neck was supple, her breathing sounded normal, her musculoskeletal system was normal, and she did not have anxiety or depression. (Tr. at 734.) Dr. Dadivas "strongly advised" Plaintiff to quit smoking. ( Id. ) They met again in November, with almost identical examination results; Plaintiff's lumbar spine was tender on palpation. (Tr. at 730-31.)

In September 2009, Plaintiff began seeing Dr. Robert Albertson, a pulmonary consultant. (Tr. at 750.) The asthma, present since childhood, had never caused her to miss many days of school or resulted in an overnight hospitalization. ( Id. ) She estimated that she could walk one mile "[o]n a good day... if she took her time." ( Id. ) Her smoking had decreased to half a pack per day. ( Id. ) Dr. Albertson heard wheezes and "[a] few crackles" during the examination. (Tr. at 751.) Her muscle strength, gait, and station were normal. ( Id. ) She saw him again in October. (Tr. at 624.) She complained of shortness of breath and chronic coughing, and estimated she smoked one to one-and-a-half packs of cigarettes per day. ( Id. ) He ...


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