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Groves v. Colvin

United States District Court, Northern District of Indiana, South Bend Division

September 2, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


JON E. DEGUILIO, Judge United States District Court.

This matter is before the Court on Plaintiff Latonia Groves’ Complaint [DE 1] filed February 11, 2013, seeking to reverse the decision of the Commissioner of Social Security (“Commissioner”) or remand for additional proceedings. Groves filed her opening brief [DE 18] on August 27, 2013. The Commissioner submitted a response [DE 26] on January 24, 2014.[2]Groves filed a reply [DE 27] on February 7, 2014, and the matter is now ripe for ruling.

I. Procedural History

Groves filed for disability insurance benefits with the SSA on August 12, 2010. (R. 134– 35). She was initially denied benefits on December 3, 2010. (R. 66). She was denied benefits upon reconsideration on February 8, 2011. (R. 67). Groves requested a hearing before an administrative law judge (“ALJ”) on February 17, 2011. (R. 83–84). Her request was granted. (100–04). The hearing took place in person before ALJ William Sampson in Valparaiso, Indiana, on December 8, 2011. (R. 35–37). The ALJ issued an unfavorable decision on January 20, 2012. (R. 22–30). Groves’ request for Appeals Council review was denied on October 22, 2012, rendering the ALJ’s decision the final action of the Commissioner. (R. 6–10). Groves filed her Complaint with this Court, and the Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

II. Factual Background

A. Overview

Groves was born Latonia Green on August 1, 1974. (R. 134). She was thirty-seven years old the day ALJ Sampson issued his unfavorable decision. Groves stands about five feet, five inches tall, and her weight has fluctuated between 200 and 261 pounds since January 2009. (R. 301–04, 204, 550–51).[3] Groves is married and has one child who was twelve years old at the time of her hearing. (R. 44). She worked full-time from 1995 to 2010, first as an injection press operator until August 2002, and then as a dental assistant. (R. 156). As a dental assistant she worked primarily with children, specifically holding children during dental procedures, and she hurt her back while holding a child in July of 2009. (R. 282–83). Groves continued to work intermittently until March 29, 2010, but has not worked since. (R. 155).

B. Medical History

On July 8, 2009, Groves saw Arnold del Pilar, M.D., an osteopathic physician, with complaints of pain in her neck and left arm with tingling in her fingers; she weighed 214 pounds. (R. 292–93). The same day, Timothy Olthoff, M.D., took x-rays of her neck and found an unremarkable appearance of the cervical spine. (R. 348). On September 9, 2009, Groves saw Tamera Andrews, FNP, with the same symptoms; her arm pain was rated a five out of ten, and an eight out of ten at its worst. (R. 290). She received a splint for her left wrist and reported the splint helped but she wanted to see a specialist. (R. 288).

Groves saw Randolph Ferlic, M.D., an orthopedic surgeon, on December 3, 2009. (R. 203). Her hand numbness was mild to moderate, and it interfered with some of her daily activities. (R. 203). She had sleep problems, unintentional weight gain, swollen ankles and legs, nausea, joint pain and stiffness, and she weighed 200 pounds. (R. 203–04). Dr. Ferlic prescribed Ultram (Tramadol). (R. 205). On December 7, 2009, Groves asked Dr. Ferlic for a note clearing her for a return to work as of November 30, 2009. (R. 201). On December 11, 2009, Ian Markley, M.D., performed an electromyography (“EMG”) study. Dr. Ferlic discussed the results of the EMG with Groves on December 15, and his impression was mild left side carpal tunnel syndrome, associated with a left arm strain in an otherwise healthy dental assistant. (R. 200). Dr. Ferlic prescribed occupational therapy (“OT”), and considered a CT injection. (R. 200).

On December 17, 2009, Groves began OT and attended four sessions from December 17, 2009 through January 14, 2010. (R. 208, 219). On December 22, 2010, Groves reported feeling much better, with a little pain remaining, but less pain while walking. (R. 221). She was discharged from OT “per physician” on February 2, 2010 (R. 208), and Dr. Ferlic noted that the OT benefits were only transient. (R. 198). Groves continued to have complaints of worsening left arm and hand pain, and Dr. Ferlic noted her symptoms were “not classic” for carpal tunnel syndrome. (R. 207-08). He referred Groves to James Sieradzki, M.D., an orthopedic shoulder surgeon, for a specialist’s opinion. (R. 198). On February 11, 2010, Groves was still in a lot of pain, and had to take two days off from work. (R. 195).

On February 19, 2010, Groves saw Dr. Sieradzki and reported mild lateral neck pain on the left side only, left shoulder pain, and numbness in her fingers. (R. 192-5). Dr. Sieradzki reported a positive Hawkin’s and Neer’s test with pain resulting from each, which indicated the need to rule out a left rotator cuff impingement. Dr. Sieradzki gave her a cortisone injection in her left shoulder, and recommended an OT program for her left shoulder. Groves saw Dr. Sieradzki again on March 19, 2010, and reported having shoulder pain which moved into her neck. (R. 188-89). The cortisone injection helped somewhat, but she also took ibuprofen for pain. Two views of her cervical spine revealed mild degenerative changes at C5–C6.

Groves drove herself to the emergency room on March 28, 2010, with lower back pain which rated a ten out of ten and was worse with movement. (R. 226). She weighed 210 pounds, had increased discomfort moving her neck, and a straight leg raise test resulted in pain in her lower back. (R. 226). David Halperin, M.D., diagnosed her as having an acute lumbar strain and told her to not work until she saw Dr. del Pilar. (R. 226).

Groves saw Dr. del Pilar on March 31, 2010; she stated her back pain resulted from a work injury on July 1, 2009. (R. 282). She rated her pain at a ten out of ten, but she appeared to be in no acute distress. (R. 282). Groves weighed 219 pounds, her Spurling’s test (to evaluate cervical root impingement), Phalen’s test (to assess carpal tunnel syndrome), and Tinel’s test (also to test for carpal tunnel syndrome) were all positive. (R. 282–83). Her back pain made it hard to walk, sit, or bend, and caused her legs to go numb. Dr. del Pilar ordered cervical and lumbar MRI exams that Mary Dynes, M.D., performed the same day. (R. 283, 344–46). Dr. Dynes reported mild degenerative disc disease at L4-L5 and an extruded disc herniation causing focal compression of the right ventral thecal sac along the medial margin of the right L4 nerve root. (R. 344). There was mild facet arthropathy at L4-L5. (R. 344). As to the cervical spine, Dr.

Dynes’ impression was that Groves had multi-level cervical spondylosis with a mild disc bulge at C5–C6, and a moderate disc bulge at C6–C7 with associated mild to moderate canal stenosis. (R. 345–46). On April 1, 2010, Dr. del Pilar diagnosed cervical and lumbar radiculopathy and gave Groves an epidural at L4. (R. 281). On April 8 and 15, 2010, Groves received epidurals at L5 (R. 276–79). Groves saw Dr. del Pilar on April 22, 2010, and received an epidural, this one at C5– C6 and C6–C7. (R. 274–75). Groves received another epidural steroid injection at L5–S1 on May 18, 2010. (R. 339).

Groves was referred to Kirnjot Singh, M.D., an orthopedic spine surgeon, after the epidurals and OT failed to relieve her pain. (R. 272). Dr. Singh recommended cervical discectomy and fusion for her neck problems, and for her low back he recommended OT, a back brace, a TENS unit, and continued non-surgical therapy, but left open the possibility of future lumbar spine surgery. (R. 273).

Dr. Singh performed an anterior cervical discectomy and fusion on May 21, 2010. (R. 231).[4] After the procedure, Groves ambulated without problems, her left arm strength returned to normal, she had no pain in her left arm, and she was discharged in good condition on May 22, 2010. (R. 231). Dr. Singh prescribed Vicodin for pain, one or two every four to six hours. (R. 231, 439). Michael Grantham, M.D., performed a follow-up x-ray on June 7, 2010; his impression was stable post-operative changes. (R. 266). On June 8, 2010, Groves saw Dr. Singh, and reported her arm symptoms were completely gone with some soreness in her shoulder. (R. 446). However, Groves continued to experience lower back pain with pain into her left leg. (R. 445). Physical therapy was recommended for her back. (R. 443-44).

On July 6, 2010, David D’Andrea, M.D., performed an x-ray on Groves’ cervical spine, and found a stable appearance of anterior fusion of C6 and C7. (R. 263). Groves had an x-ray of her lumbar spine performed by Thomas Seiffert, M.D., on July 21, 2010. (R. 260). Dr. Seiffert compared these x-rays to her March 28 x-rays and his impression was mild intervertebral disc space narrowing at the L4–L5 disc space. (R. 260).

Groves saw Dr. Singh on July 21, 2010, for a follow-up visit. (R. 453). He stated that she was “doing outstanding” and that both her neck and her left arm were feeling great, but that she still had pain in her lower back and left leg. (R. 453). Groves reported taking three Vicodin per day, but wanted treatment for her lower back so she could return to a normal life. (R. 453). Groves saw Dr. Singh again on July 28, 2010, with severe back pain and pain which radiated down her left leg to her foot. (R. 454). She described her left arm as “perfect.” (R. 454). Dr. Singh discussed two surgical options with Groves; an endoscopic discectomy, and a laminectomy with fusion. (R. 454).

Dr. D’Andrea x-rayed Groves’ neck on August 9, 2010, and compared the images to the ones taken on July 6. (R. 256). Dr. D’Andrea still found a stable appearance of the anterior fusion of C6 and C7. (R. 256). The same day, Eldon Olson, M.D., took an x-ray of Groves’ lumbar spine and reported the disc spaces were well maintained, with no misalignment with flexion or extension. (R. 256–57).

On August 10, 2010, Groves underwent a lumbar discography and a CT scan of her lumbar spine. (R. 456–59). Joseph Glazier, M.D., performed the discography, and his impression was positive discogram with high confidence at L5–S1 and medium confidence at L4–L5, but a seemingly normal disc at L3–L4. (R. 456–47). Gregory Hord, M.D., performed the CT scan following the discogram, and found a loss of disc height at L4–L5 with a central disc extrusion associated with an annular tear, but no significant disc bulge or herniation at L5–S1 and no annular tear or spinal stenosis. (R. 458).

Groves was discharged from the care of physical therapist Blair Johnson on August 16, 2010. The discharge notice indicated Groves kept all nine of her physical therapy appointments for her back pain. (R. 532). Johnson reported Groves had “improved” with pain reduction, and with her ability to sit, stand, and walk for an hour, but her hip abduction goal remained “unmet.” (R. 532). The notes indicated almost every session made Groves’ back and left leg pain worse, and that pool exercises occasionally caused an increase in pain. (R. 532).

On August 25, 2010, Dr. Singh stated that Groves’ neck and arm pain was resolved, with some stiffness in her neck, and that Groves elected to proceed with an anterior-posterior fusion surgery in her lumbar spine. (R. 463). Groves saw Dr. del Pilar for pre-operative clearance on August 30, 2010, at which time Groves reported a pain score of seven out of ten, and Dr. del Pilar noted Groves appeared to be in obvious severe pain. (R. 352). The physical exam revealed significant tenderness over her lumbar spine; decreased range of motion with flexion, extension, bending, and twisting; and a positive straight leg raise test on the left. (R. 353).

On September 13, 2010, Drs. Singh and Glenn Carlos performed an anterior exposure for spinal fusion surgery, and a bilateral laminotomy and foraminotomy at L4–L5 and L5–S1; a posterior spine fusion from L4 to S1; a segmental lumbar instrumentation from L4 to S1; a posterior iliac bone graft through a separate fascial incision; and an allograft bone fusion. (R. 356–59, 366–72). After surgery, Groves spent three days in the hospital and before she was discharged she could walk more than fifty feet and her pain was well-controlled with oral pain medications. (R. 354).

On October 9, 2010, Groves saw Crystal Strong, M.D., a state agency examining physician, for a disability evaluation. (R. 394–97). Dr. Strong’s notes are detailed separately below. See infra, subsection D.

On October 26, Brett Stevens, M.D., performed an x-ray of Groves’ lumbar spine. (R. 589–90). Dr. Stevens’ impression was a slight curvature of the lumbar spine, with no acute abnormalities identified, and post-operative changes of a lower lumbar fusion. (R. 589). Douglas Kuehn, M.D., performed another x-ray on November 23, 2010, and noted no changes since the October 26 x-ray. (R. 588).

On December 21, 2010, Drs. Hord and Olthoff performed a CT scan of Groves’ lumbar spine. (R. 649). They found intact fusion hardware and disc spaces, a mild disc bulge at L3–L4 with mild neural foraminal narrowing, and no significant central canal stenosis. (R. 649).

Groves saw Dr. Singh on January 5, 2011, with complaints of left leg numbness, but otherwise she was recovering well from surgery. (R. 548). Dr. Singh directed Groves to begin physical therapy (“PT”). (R. 548). On January 6, 2011, Groves underwent an initial PT evaluation with physical therapist Shanti Shrestha (R. 528–29). The evaluation noted that Groves had a pain score of seven out of ten. (R. 628-29). Her pain increased with lying on her left side, and standing, walking or sitting for more than ten minutes. The pain in her lower back and left buttock and thigh was constant, but pain medications and heat therapy helped the pain. She had occasional burning and throbbing in her left calf, constant numbness and tingling in her left foot, and she used a cane to walk when the pain was severe. She had not worked since March of 2010, but wanted to return to work eventually.

Groves had decreased weight bearing on her left leg and decreased left hip extension. (R. 628-29). Her active range of motion was within functional limits for both legs, but she had tightness in her left hamstring and calf. Groves had decreased strength in both legs and experienced back pain with resistance tests, but no increase in lower back pain during the straight leg raise test. Her maximum tolerable load, with increased pain, was seventy pounds. She had diminished sensation to light touch in her left leg.

By March 10, 2011, Shrestha recorded a thirty-day progress note for Groves indicating that Groves had improved toward all of her goals except for being able to sleep without being awoken by pain. Groves no longer used her cane constantly, her pain levels sometimes were as low as two out of ten but could still be a ten out of ten, she still felt weak going from sitting to standing, and she was able to walk for fifteen minutes, but her pain increased after ten minutes. (R. 519-29). Shrestha’s assessment was that Groves was slowly progressing toward her goals, and planned on seeing Groves 2–3 more times before discharging her from PT. (R. 520). Groves attended another PT session on March 16, 2011, and the notes indicate she was doing “OK” since her last treatment. (R. 519).

On March 28, 2011, Groves was admitted to the ER with slurred speech and left-sided weakness. (R. 581–87). Her grip strength appeared to be equal on both hands and she had definite weakness in her left leg, but a normal gait. An MRI of her brain by Katrina Vanderveen, M.D., showed normal appearances of all structures, but two small areas of abnormal signal intensity, which was normally consistent with migraine headaches, vasculitis, or demyelinating processes. (R. 575).[5]

Groves saw Dr. Singh for a follow-up visit on May 25, 2011, at which time she reported continued back pain and left leg pain. (R. 535). Groves was taking Vicodin twice a day, and occasionally taking weight loss pills. Dr. Singh noted that Groves was “pretty much baseline, ” and that he “saw no reason to do further imaging.” On June 21, 2011, Dr. Stephens performed an x-ray on her cervical spine. (R. 573). His impression was that the fusion appeared satisfactory. (R. 573). On June 22, 2011, Groves saw Dr. Singh and while she had no complaints of pain in her neck or her arm, she still had pain in her lower back that radiated down her left leg. (R. 615). Dr. Singh ordered an EMG study to assess the nerves in her legs.

Russell Midkiff, M.D., conducted the EMG study on August 4, 2011. (R. 621–22). Dr. Midkiff noted that motor testing was limited by Groves’ pain and that a straight leg test with the left leg provoked “marked low back pain radiating into the left lower extremity.” (R. 621). Despite the fact that there was no apparent muscle atrophy in the left leg, there was marked tenderness in the left lower back and sacroiliac region, and diffuse tenderness in the left leg, especially the posterior thigh. (R. 621). Dr. Midkiff’s impression of the EMG was an essentially normal EMG in the selection of left leg muscles, with no electrodiagnostic evidence for active radiculopathy or other neuromuscular abnormality in the left leg. (R. 622).

When Groves saw Dr. Singh on August 17, 2011, she had continued complaints of pain in her back and down her left leg. (R. 617). Groves reported that she was taking two or three Vicodin per day. Dr. Singh’s physical examination of Groves was normal, and he opined that at one year post lumbar surgery and a year and a half post cervical surgery all of the objective evidence pointed towards completely healed fusions of her neck and spine, and that he and his associates could “find no objective source of her pain.” Dr. Singh decided to discharge Groves from his care, and gave her referrals to four chronic pain management physicians, including Dr. Landrum. Dr. Singh also noted, “[a]t this point, I cannot help to think of possible secondary gain issues considering her extensive time off from work.” (R. 617).

On September 1, 2011, Groves saw Dr. del Pilar for pain, numbness, and weakness in her left leg, and to discuss weight management; Groves weighed 250 pounds. (R. 559). She reported that her pain rated a nine out of ten. Dr. del Pilar performed a venous Doppler ultrasound on both of Groves’ legs and found no evidence of deep vein thrombosis in either leg above or below the calf level.[6] (R. 561). Groves returned to Dr. del Pilar for a follow-up on September 6, 2011, at which time she weighed 261 pounds and walked with a cane. (R. 551).

On September 21, 2011, Groves saw Orlando Landrum, M.D., chronic pain management specialist, for a consultation with a chief complaint of lower back pain. (R. 632-33). Dr. Landrum recorded Groves’ description as lower back pain with left radicular symptoms, with sharp pain in the lower back, left hip, thigh, knee, ankle, and foot. Groves reported relief with heat, massage, or lying in a supine position, and aggravation with standing, walking, or sitting. Groves ...

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