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Marshall v. Colvin

United States District Court, N.D. Indiana, Hammond Division Lafayette

March 25, 2014

NICOLE E. MARSHALL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.

OPINION AND ORDER

JON E. DeGUILIO, District Judge.

On December 18, 2012, Plaintiff Nicole Marshall filed her Complaint in this Court seeking review of the final decision of the Defendant Commissioner of Social Security ("Commissioner"). [DE 1.] The Commissioner filed an answer on March 28, 2013. [DE 12.] On June 24, 2013, Marshall filed her opening brief [DE 22], to which the Commissioner responded on December 2, 2013 [DE 34]. Marshall did not file a reply, and the time to do so has lapsed.[2] Accordingly, the matter is now ripe for ruling.

I. Procedural History

In December 2006, Marshall filed an application for disability insurance benefits. (Tr. 96-100.) Her application was denied on March 22, 2007, and again on reconsideration on August 10, 2007. (Tr. 53-54.) On October 7, 2009, a hearing was held via video conference before Administrative Law Judge Gregory M. Hamel. (Tr. 27-52.) On April 9, 2010, the ALJ issued a decision denying the claim for disability insurance benefits. (Tr. 8-26.) The Appeals Council denied the request for review (Tr. 1-5) and Marshall filed a complaint in the Northern District of Indiana seeking judicial review of the Commissioner's final decision.[3] The parties stipulated to a sentence four remand in order to allow an ALJ to conduct a more detailed analysis of the effect of Marshall's limitations in concentration, persistence, and pace upon her ability to perform work-related activities. The remand was granted by the Court. (Tr. 874-79.) After the remand, the Appeals Council remanded the case for further proceedings before an ALJ. (Tr. 873.)

In August 2010-just before Marshall had filed the earlier complaint in this Court-she filed an additional application for disability insurance benefits and an application for supplemental security income.[4] (Tr. 920-29.) The record does not include any initial decision on those applications, but Marshall attached to her opening brief documentation that the applications were denied on reconsideration on March 30, 2011. [DE 22-2.]

On May 31, 2012, a hearing on both the 2006 and 2010 applications was held before Administrative Law Judge Edward P. Studzinski.[5] (Tr. 778-819.) On August 20, 2012, the ALJ issued a decision denying both the claims for disability insurance benefits and supplemental security income. (Tr. 736-63.) The record does not reflect that Marshall requested review by the Appeals Council of the ALJ's 2012 decision. Accordingly, the decision-at least with respect to the 2006 application-became a final decision of the Commissioner on the sixty-first day following the ALJ's decision. 20 C.F.R. ยง 404.984(d).[6]

II. Facts

Marshall was born on August 23, 1975; therefore, she was thirty-six years old on the date the ALJ rendered his decision. (Tr. 754, 788.) She has the equivalency of a high school education and has past relevant work as a wire harness assembler. Marshall alleged a disability onset date of June 2, 1998. (Tr. 96, 920, 924.) With respect to her claim for disability insurance benefits, she met the insured requirements through March 31, 2004. (Tr. 105.)

A. Medical Evidence of Physical Impairments

Medical records of Marshall's physical impairments date to approximately 1997. On January 21, 1997, Marshall presented to the Arnett Clinic complaining of stomach pains and diarrhea. Dr. John Geneczko's impression indicated possible Irritable Bowel Syndrome ("IBS"). (Tr. 364-65.) Subsequent tests did not show any abnormalities, and the impression included a negative upper gastrointestinal series and normal small bowel examination. (Tr. 370.)

In May 1997, Marshall complained of knee pain. (Tr. 361-62.) An MRI of the right knee conducted on May 16, 1997, revealed contusions of the medial femoral condyle and medial tibial plateau, as well as normal meniscal and ligamentous structures. (Tr. 362.) On May 21, 1997, Marshall presented to Arnett Clinic complaining of swelling, pain, and popping of her left knee. (Tr. 361.) Dr. Jeffrey McIntosh assessed bilateral patellofemoral malalignment and recommended a plan that included bracing, aggressive rehabilitation, and a short course of anti-inflammatory medication. (Tr. 361.)

On April 2, 1998, Marshall presented to Arnett Clinic complaining that she had been experiencing left hip pain for the prior several months. (Tr. 208.) Dr. Daniel Daluga's notes indicate potential synovitis of the left hip with some trochanteric inflammation. (Tr. 208.) An MRI conducted on April 16, 1998, revealed avascular necrosis ("AVN") of the left hip, which had been unresponsive to anti-inflammatories. (Tr. 207.) Accordingly, Dr. Daluga prescribed Lortab and recommended that Marshall undergo a left hip decompression, which Marshall did on April 28, 1998. (Tr. 193, 207.) Notes from a May 7, 1998, follow-up appointment indicated that Marshall had excellent range of motion and that her wound was well-healed. (Tr. 205.) By July, Marshall's condition had worsened, and doctors noted collapse of the femoral head. (Tr. 202-03, 227.) Consequently, Marshall underwent a left total hip arthroplasty on August 4, 1998, and was thereafter discharged in fair condition. (Tr. 216-18.) Notes from appointments and physical therapy sessions in the months after surgery indicate that Marshall responded well to the procedure and physical therapy and that she was happy with her progress. (Tr. 199-200, 373-80.)

On January 5, 1999, Dr. Mark Griffith examined Marshall and noted myofascial pain syndrome of the lumbosacral region and thoracic back, secondary to mechanical factors associated with Marshall's antalgic limp. (Tr. 336.) Dr. Griffith recommended physical therapy; therefore, Marshall presented to Sagamore Rehabilitation Center on January 8, 1999. (Tr. 336, 390.)

Between January 1999 and March 1999, Marshall repeatedly complained of hip pain; however, tests indicated excellent range of motion in the hip and no dislocation or fracture. (Tr. 240-41, 329, 333, 356.) On April 9, 1999, Marshall presented to St. Elizabeth Hospital Medical Center complaining of left leg swelling, but a left lower extremity ultrasound ruled out the possibility of deep venous thrombosis ("DVT"). (Tr. 237.) Throughout the following year, Marshall continued to complain of hip and leg pain, and tests yielded normal results; the prosthesis was in a satisfactory position with no evidence of loosening or fracture. (Tr. 228-29, 242, 579-80.)

On May 4, 2000, Marshall presented to Arnett Clinic complaining of pain in her left hip and left ankle after attempting to run after her son. (Tr. 392-93.) An x-ray of the left heel revealed no abnormalities. (Tr. 392-93.) Dr. Daluga noted plantar fasciitis of the left foot and adductor strain and recommended stretching as well as weight loss. (Tr. 392.) On March 22, 2001, Marshall presented with an antalgic gait to Arnett Clinic complaining of problems with plantar fasciitis. (Tr. 400.) Dr. Daluga placed Marshall in a cast, and the record does not indicate any further complains regarding the plantar fasciitis for the remainder of that year.

Marshall gave birth to twins on February 7, 2002. (Tr. 256.) Both prior to and after giving birth, Marshall experienced gestational diabetes mellitus, and doctors recommended that she change her diet. (Tr. 256, 407, 409-10.) Later that year, Marshall presented to Lafayette Home Hospital complaining of a migraine headache and abdominal pain. (Tr. 281.) The notes of that visit comment that Marshall has "a history of recurrent headaches and this headache seems familiar." (Tr. 281.) On June 22, 2002, Dr. John Woods diagnosed Marshall with acute cephalgia and umbilical hernia and directed her to follow-up with Dr. Jerry Jefson, a surgeon at the hospital. (Tr. 282.) On July 1, 2002, Marshall underwent an exploratory laparotomy and hernia repair. (Tr. 268-71.) The Court could not locate any further complaints regarding the hernia in the record.

On March 7, 2003, Marshall presented to Arnett Clinic complaining of left hip pain after slipping on ice, but an x-ray did not reveal any abnormalities. (Tr. 448.) On August 12, 2003, Marshall presented to Arnett Clinic with several complaints, including pain in her chest, neck, back, and foot. (Tr. 432.) An EKG yielded normal results and an x-ray of the cervical spine did not show any acute osseous injury. (Tr. 291, 432.) Dr. Leslie Cooper attributed Marshall's neck pain to probable muscle spasms and offered to send Marshall to physical therapy; however, Marshall refused therapy. (Tr. 433.) In response to Marshall's complaint of foot pain, Dr. Cooper encouraged her to get shoes that fit her properly and continue prescribed medication. (Tr. 426.)

On October 1, 2003, Marshall saw Dr. Cooper for complaints of low back pain, and Dr. Cooper prescribed Lortab, encouraged Marshall to lose weight, and recommended physical therapy. (Tr. 415.) Views of the lumbar and cervical spines, taken on October 7, 2003, revealed an "[e]ssentially normal lumbar spine" and minimal degenerative change of the cervical spine. (Tr. 444.) One week later, an MRI of Marshall's lumbar spine was performed and yielded normal results. (Tr. 290.) Thereafter, on October 23, 2003, Marshall contacted Arnett Clinic requesting "something for pain" and the clinic ordered physical therapy. (Tr. 420.)

On July 15, 2004, Marshall presented to Lafayette Home Hospital's emergency room complaining of left knee pain, swelling, and numbness. (Tr. 725.) An x-ray of the knee yielded normal results and Dr. Anthony Steele diagnosed Marshall with left knee pain with effusion. (Tr. 727.) In May and June 2006, Marshall complained of hip pain. (Tr. 569, 717-18.) However, x-rays of Marshall's hip were unremarkable with no evidence of acute disease or avascular necrosis. (Tr. 570, 718.)

On August 21, 2006, Marshall presented to Indiana Spine Center complaining of pain that radiated into her right hip. (Tr. 488.) A radiograph of the lumbar spine was grossly normal with mild disc space collapse at L5-S1. (Tr. 489.) An MRI of the lumbar spine was conducted the following day and revealed that there was no disc herniation or spinal stenosis, but there was evidence of mild facet disease. (Tr. 721.) Additionally, an MRI of Marshall's hip revealed no abnormalities. (Tr. 487.) Marshall was encouraged to see a physiatrist for pain management, but she asserted that "she [did] not want to see any other physicians." (Tr. 487.)

Physical therapy notes indicate that Marshall was discharged from physical therapy on December 4, 2006, for failing to reschedule an appointment; she had been last seen on October 9, 2006. (Tr. 568.) Two days later, Marshall resumed physical therapy. (Tr. 565-66.) However, she was once again discharged from physical therapy on March 26, 2007, for failing to reschedule an appointment. (Tr. 564.)

On March 27, 2007, MRIs of the lumbar spine and pelvis were conducted. (Tr. 560-62.) The MRI of the lumbar spine revealed very mild degenerative spondylosis without evidence of significant disc bulge, herniation, stenosis, or neural foraminal narrowing. (Tr. 560.) The MRI of the pelvis revealed mild degenerative changes at the interior aspects of the sacroiliac joint. (Tr. 562.) On June 6, 2007, Marshall presented to Advanced Pain Management complaining of groin and back pain. (Tr. 1238.) Dr. Carolyn Kochert's impression included bilateral SI joint dysfunction and left knee internal derangement. (Tr. 1239.) The plan was to proceed with SI joint injections as well as knee injections, and Dr. Kochert directed Marshall to refrain from taking NSAIDS. (Tr. 1239.) Marshall underwent SI joint injections and a knee injection on June 19, 2007, and July 18, 2007. (Tr. 559, 1234.) One week later, Marshall underwent an L5-S1 epidural steroid injection. (Tr. 557-58.)

On September 5, 2007, Marshall presented to Advanced Pain Management complaining of pain in her neck, back, buttocks, and leg, and Dr. Kochert's impression included low back pain, lumbar radiculopathy, and an MRI with minimal abnormalities. (Tr. 1228-29.) Dr. Kochert directed Marshall to continue exercise, use of medication, chiropractic care, and weight loss and encouraged her to cease smoking and using alcohol. (Tr. 1229.) During a follow-up appointment on December 3, 2007, Marshall reported that medication helped her pain for about two hours, but that she felt she was getting used to Lortab and morphine. (Tr. 1218.)

On February 20, 2008, Marshall presented to the emergency room at Home Hospital complaining of a headache and back pain. (Tr. 674.) Dr. Robert Andras assessed migraine headache and chronic low back pain. (Tr. 675.) About two weeks later, Dr. Kochert evaluated Marshall for a complaint of pain that started in her shoulder and traveled down her spine and into her groin. (Tr. 1209.) Additionally, Marshall requested an increase in her medications because she felt that her medications, as prescribed, were not giving her enough relief. (Tr. 1209.) Dr. Kochert's impression included lumbar intervertebral disk disorder, low back pain, muscle spasticity, and questionable neurologic pathology. (Tr. 1210.) MRIs of the thoracic and lumbar spines, which were taken on March 13, 2008, yielded normal results. (Tr. 496.)

On April 30, 2008, Dr. Patrick Reibold wrote a letter to Dr. Kochert concerning Marshall's chronic pain. (Tr. 1261-62.) He asserted that Marshall's "gait was initially antalgic but improved as she walked around a little bit." (Tr. 1261.) Dr. Reibold's impression included chronic low back pain without evidence of significant disc disease, and he noted that Marshall might be suffering from fibromyalgia or chronic lumbar spasm. (Tr. 1262.) Dr. Reibold noted that he offered Marshall a physical therapy referral, but she stated that she had already tried physical therapy and that it did not help. (Tr. 1262.)

On September 22, 2008, Dr. Kochert assessed lumbar facet syndrome and sacral ankylosis. (Tr. 1197.) After noting that Marshall was reluctant to decrease pain medications, Dr. Kochert explained that Marshall needed to lose weight and quit smoking. (Tr. 1197.) On June 22, 2009, Marshall presented to St. Elizabeth Regional Health Home Hospital complaining of tailbone pain; however, an examination of the sacrum and coccyx yielded normal results. (Tr. 595.)

Marshall underwent a CT scan of her left knee on July 6, 2010, and the scan did not reveal any significant radiographic abnormality. (Tr. 971.) About four months later, Marshall was evaluated at the Lafayette Orthopaedic Clinic, and Dr. Robert Hagen noted that Marshall was significantly obese. (Tr. 1045.) Additionally, Marshall exhibited excellent range of motion of both hips, and her left hip replacement was "in excellent position" with no evidence of loosening. (Tr. 1045.) When Marshall presented to the clinic, she was concerned that she had AVN of the right hip; however, x-rays did not evidence AVN. (Tr. 1045.) An x-ray of her back was also "fairly normal." (Tr. 1045.) Dr. Hagen recommended that Marshall participate in a rehabilitation program to strengthen her back. (Tr. 1045.)

On July 14, 2010, Marshall had three toenails removed due to pain and abnormalities. (Tr. 1088.) Her recovery from their excision appears to have been satisfactory, although the records note some continuing pain. (Tr. 1089-90.)

Physical therapy was again recommended-along with pain management-when Marshall was evaluated on November 12, 2010. (Tr. 1048.) X-rays of the hip were normal, and Dr. Daluga assessed degenerative changes in Marshall's lower back. (Tr. 1048.) Scans taken during February 2011 yielded relatively normal results. Specifically, a CR of the sacrum and coccyx was unremarkable, revealing that the left hip prosthesis was intact and that there was no fracture. (Tr. 1105.) Next, an MRI of the lumbar spine revealed minimal degenerative disc disease at L4-5 without compromise of the canal or foramina. (Tr. 1191.) Last, a CT of the head did not show any acute intracranial process, and a U.S. VEN Duplex did not evidence DVT or any other abnormality. (Tr. 1108-09.)

Approximately one year later, thrombus was identified during a left lower extremity ultrasound. (Tr. 1265.) Marshall's DVT caused pain and swelling in her left lower extremity; however, such symptoms improved after Marshall underwent a thrombectomy and was treated with Lovenox. (Tr. 1265.) She was discharged from the hospital and directed to continue taking Lovenox. (Tr. 1265.) However, on February 22, 2012, Marshall presented to Arnett Hospital complaining of increased pain in her left lower extremity. (Tr. 1282.) Marshall informed a physician that she failed to take her Lovenox dose that morning, and after measuring Marshall's anti-xa levels, the physician asserted that it was "questionable whether she is taking Lovenox twice a day consistently." (Tr. 1284.) Marshall explained that she had only ever missed one dose, but the physician suspected non-compliance to an extent greater than Marshall claimed. (Tr. 1284.) "Due to compliance issues, " Dr. Wael Harb prescribed a different medication that only required one dose per day, and he also encouraged Marshall to reduce her tobacco use. (Tr. 1284.) In doing so, Dr. Harb stressed that smoking increases the risk of DVT. (Tr. 1284.) At a follow-up appointment on March 5, 2012, Marshall reported that she had been doing well with decreased pain and only occasional swelling of the left lower extremity. (Tr. 1288.)

On May 1, 2012, Marshall presented to Arnett Hospital complaining of pain and swelling in her left lower extremity; she was hit in the leg while "playing softball with her daughter." (Tr. 1253.) X-rays did not indicate fracture or acute disease process, and Dr. Anthony Steele diagnosed Marshall with a contusion of the lower extremity. (Tr. 1255-56, 1259-60.) Thereafter, Marshall was discharged in stable condition. (Tr. 1256.)

Other evidence of Marshall's physical impairments can be found in a Physical Residual Functional Capacity Assessment performed by Dr. J. V. Corcoran, which was conducted on January 10, 2011. (Tr. 1075-82.) Dr. Corcoran found Marshall's allegations to be credible. (Tr. 1080.) The doctor opined that Marshall could lift and/or carry twenty pounds occasionally and ten pounds frequently, as well as push or pull an unlimited amount, other than as shown for lift and/or carry. (Tr. 1076.) Dr. Corcoran also concluded and that Marshall could stand, walk, or sit about six hours of an eight-hour workday and occasionally climb, balance, stoop, kneel, crouch, and crawl. (Tr. 1076-77.) On March 29, 2011, Dr. D. Neal affirmed Dr. Corcoran's assessment. (Tr. 1194.)

B. Medical Evidence of Mental Impairments

Marshall's mental issues predate her claimed date of disability. As a teenager, she was treated at a psychiatric hospital, after which she was in foster care for several months. (Tr. 299.) At approximately fifteen or sixteen years old, she went to Wabash Valley Psychiatric Hospital as a troubled youth with runaway behaviors, then going to the Community North Hospital in Indianapolis. (Tr. 299.)

On January 25, 1999, Marshall presented to Arnett Clinic complaining of depression that stemmed from problems such as being fired from her job, suffering from hip pain, having conflicts with her parents, and experiencing financial difficulties. (Tr. 335.) She reported feelings of guilt and worthlessness, but did not feel suicidal. (Tr. 335.) Kellie Lohrman-Kozma (a nurse practitioner) assessed depression, prescribed a higher dosage of Zoloft, and encouraged Marshall to seek counseling. (Tr. 335.) Marshall failed to appear at her next appointment, but was able to follow-up with Lohrman-Kozma on March 16, 1999. (Tr. 331.) That day, Marshall reported that she refused to see a counselor because she did not want to be told what to do, could not afford a therapist, and did not want to talk to other people about her problems. (Tr. 331.) Lohrman-Kozma assessed depression, anxiety, chronic pain, and medical non-compliance. (Tr. 330.) She again directed Marshall to see a counselor at the Alpine Clinic and stressed the importance of medical compliance. (Tr. 330.)

On March 27, 1999, Marshall presented to St. Elizabeth Medical Center complaining of an anxiety attack. (Tr. 238.) She was prescribed Xanax and discharged in good condition. (Tr. 239.) Records do not indicate any appointments regarding depression and anxiety until April 27, 2001, when Marshall presented to Arnett Clinic as "an emotional wreck." (Tr. 399.) Notes indicate that Marshall reported seeing a counselor but that the ...


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