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Scales v. Colvin

United States District Court, District of Kansas

August 19, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff Rosalind Scales (“Plaintiff”) seeks review of a final decision by Defendant, the Commissioner of Social Security (“Commissioner”), denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. In her pleadings, Plaintiff alleges error with regard to the Commissioner’s decision that Plaintiff is able to perform light work. Upon review, the court finds that the Commissioner’s decision was supported by substantial evidence contained in the record. As such, the decision of the Commissioner is affirmed.

I. Factual and Procedural Background

Plaintiff’s medical issues seem to date back to December 2, 2006, when Plaintiff was involved in an automobile accident and subsequently began complaining of lower back pain. She first saw treating physician Dr. S.R. Reddy Katta, MD (“Dr. Katta”) on December 8, 2006. Dr. Katta noted that although Plaintiff did not have any significant pain with range of motion on her cervical spine, she did display painfully limited movements of her thoracolumbar spine and tenderness to palpation over her cervical paraspinal muscles. Dr. Katta recommended that Plaintiff remain out of work for two weeks. Plaintiff also underwent a very brief period of physical therapy.

The record shows that Plaintiff did not return to Dr. Katta until June 2008, when she presented with chronic lower back pain. Dr. Katta noted that Plaintiff had degenerative disc disease but no clinical evidence of lumbar radiculopathy. Dr. Katta also noted that Plaintiff was not taking any anti-inflammatory medication, as previously prescribed. Plaintiff was independent with her mobility but did display limited movement of her lumbar spine (without paraspinal muscle spasms) and localized tenderness upon palpation over her sacroiliac joint area. Dr. Katta recommended Plaintiff take her anti-inflammatory medications as prescribed and begin a regular walking or water aerobics regimen. Plaintiff returned to Dr. Katta two times over the next six months.

In January 2009, Plaintiff reported that she had returned to work as a certified nurse assistant (“CNA”) several days per week. An MRI conducted during that same time indicated that Plaintiff had degenerative changes in her lower lumbar spine and congenital changes of the transverse process of her L5 vertebrae. Plaintiff underwent a consultative examination with Dr. Ira H. Fishman, DO (“Dr. Fishman”), who noted that Plaintiff put forth poor effort and slapped the examiner’s hands several times during the examination. Dr. Fishman concluded that Plaintiff’s examination was subjectively limited by pain in her ability to tolerate work activities; however, because of Plaintiff’s uncooperativeness, Dr. Fishman was unable to gather sufficient objective physical findings to determine her specific limitations.

In February 2009, Plaintiff presented to the Providence Medical Center Emergency Room complaining of chronic back pain. She demonstrated bilateral tenderness and a moderately limited range of motion and was diagnosed with acute lumbar strain. Plaintiff returned to Dr. Katta in March 2009 still complaining of back pain but admitting that she was doing better and officially back to work. She did not present with any gait deviation but did display limited movement of her lumbar spine and tenderness to palpation over her sacroiliac joint area. Plaintiff returned to Dr. Katta in June 2009 with a very similar evaluation.

Plaintiff’s medical records then jump to June 2011, [1] when she underwent a lumbar and pelvis x-ray. The scan showed good alignment of Plaintiff’s lumbar vertebrae but marked degenerative changes at the L4 vertebra and in the intervertebral space between the L4 and L5 vertebrae. Plaintiff also suffered from slight slippage at the L5 vertebra and deterioration over the S1 vertebra. A month later, Plaintiff underwent an MRI of her lumbar spine. The test revealed degenerative disc and facet changes with short pedicles, severe spinal stenosis at the L3-L4 and L4-L5 vertebrae, and a lesion on her left sacrum, which was diagnosed as a possible sclerotic bone island or lesion. A September 2011 MRI on Plaintiff’s coccyx and sacrum showed marked degenerative changes without evidence of an acute fracture or subluxation.

Around this same time, Plaintiff sought treatment at the University of Kansas Hospital Comprehensive Spine Center. Staff noted that Plaintiff had a non-antalgic gait but did have a decreased range of motion of her lumbar spine with flexion, extension, and side-bending. Plaintiff was allegedly unable to bend at her waist due to the pain; however, staff noted that, prior to her examination, Plaintiff was able to bend completely over to take off her pants and put on an examination gown and did so without difficulty. Plaintiff was diagnosed with chronic low back pain, lumbar radiculitis in her right leg, muscle spasms, and core muscle weakness. A month later, in October 2011, Plaintiff presented to the Shawnee Mission Medical Center Emergency Room complaining of moderate back pain. Her back was non-tender and she had a normal range of motion. Plaintiff was diagnosed with back pain.

From September 2, 2008, through November 2010, Plaintiff also underwent several physical and mental evaluations at the request of Disability Determination Services. An April 2010 physical evaluation revealed that Plaintiff did not use an assistive device and had no difficulty getting on and off the examining table. However, she did display mild difficulty with heel and toe walking and hopping. Plaintiff refused to perform squatting and arising from a sitting position.

On May 13, 2010, Plaintiff underwent a Physical Residual Functional Capacity Assessment with state agency examiner Dr. R.L. Vopat, MD (“Dr. Vopat”). Dr. Vopat concluded that Plaintiff could: (1) occasionally lift and/or carry twenty pounds, (2) frequently lift and/or carry ten pounds, (3) stand and/or walk for a total of six hours during an eight-hour workday, (4) sit for a total of six hours during an eight-hour workday, and (5) engage in unlimited pushing and pulling. Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations.

On October 25, 2010, Plaintiff underwent a psychological evaluation with Dr. Karen M. Jordan, PhD (“Dr. Jordan”). Plaintiff indicated that she was currently unemployed and had been so for approximately a year after being laid off. She stated that she was able to bathe, attend to personal grooming matters, and prepare simple meals. Plaintiff indicated that, although she was unable to complete general housekeeping tasks, she could go grocery shopping with the help of her husband or daughter. Plaintiff reported that she could drive without restriction but typically spent her days at home lying in bed watching television. Dr. Jordan diagnosed Plaintiff with major depressive disorder (recurrent, moderate) without psychotic features. Dr. Jordan also concluded that Plaintiff could understand and follow directions, but that her short-term memory was below average. Dr. Jordan diagnosed Plaintiff’s ability to attend and concentrate as fair and noted that she displayed some behavior that could be potentially off-putting to others.

In November 2010, Plaintiff underwent a Psychiatric Review Technique with state examiner Dr. R.E. Schulman, PhD (“Dr. Schulman”). Dr. Schulman determined that Plaintiff suffered from major depressive disorder (recurrent, moderate). The examiner also concluded that Plaintiff had mild restriction of her activities of daily living, moderate restriction with regard to maintaining social functioning, concentration, persistence, and pace, and no episodes of decompensation. In a corresponding Mental Residual Functional Capacity Assessment, Dr. Schulman concluded that Plaintiff was moderately limited with regard to her ability to: (1) understand and remember detailed instructions, (2) carry out detailed instructions, (3) work in coordination with or proximity to others without being distracted by them, and (4) interact appropriately with the general public.

Plaintiff filed for DIB on January 19, 2010, alleging disability beginning September 13, 2009. Her claim was denied initially on May 13, 2010, and upon reconsideration on November 9, 2010. Plaintiff timely filed a request for an administrative hearing, which took place on December 19, 2011, before Administrative Law Judge Sharilyn Hopson (“ALJ Hopson”). Plaintiff, represented by counsel, appeared and testified. Also testifying were medical ...

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