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Washington v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

September 14, 2016

COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of SSA, Defendant.


          Susan Collins, United States Magistrate Judge.

         Plaintiff Dinah C. Washington appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application under the Social Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).[1] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Washington applied for DIB and SSI in August 2012, alleging disability as of February 12, 2012.[2] (DE 11 Administrative Record (“AR”) 228-35). The Commissioner denied Washington's application initially and upon reconsideration. (AR 160-85). After a timely request, a hearing was held on October 7, 2013, before Administrative Law Judge William D. Pierson (“the ALJ”), at which Washington, who was represented by counsel; her husband; and a vocational expert, Marie Kieffer (the “VE”), testified. (AR 38-86). On January 17, 2014, the ALJ rendered an unfavorable decision to Washington, concluding that she was not disabled because despite the limitations caused by her impairments, she could perform her past work as a hairdresser and a production assembler, as well as a significant number of other light jobs in the economy. (AR 24-33). The Appeals Council denied Washington's request for review (AR 1-16), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

         Washington filed a complaint with this Court on July 24, 2015, seeking relief from the Commissioner's final decision. (DE 1). Washington advances just one argument in her appeal-that the ALJ improperly rejected the permanent restrictions assigned by her treating physician, Alex Meyers, M.D. (DE 19 at 8-10).


         At the time of the ALJ's decision, Washington was 52 years old (AR 124); had a high school education (AR 44, 257); and possessed past work experience as a warehouse worker, machine operator, and hairdresser (AR 298). She alleges disability due to left shoulder impingement syndrome/tendinopathy, left clavicular degenerative joint disease, fibromyalgia, cervical degenerative joint disease, post left CS injection at carpal canal, post left shoulder arthroscopy, post left shoulder distal clavicle excision, and renal dysfunction. (DE 19 at 2).

         A. Washington's Testimony at the Hearing

         At the hearing, Washington, who is left handed, testified that she stopped working due to problems with her left shoulder. (AR 53). Although her shoulder has improved over time, she still experiences aching in her shoulder, as well as intermittent numbness in her left arm. (AR 54-55). She can reach overhead with her left arm, but it is difficult to do so and causes her discomfort. (AR 55). Washington takes Cymbalta for her shoulder, which “calms it down, ” and also has prescription pain medication; however, she takes the pain medication sparingly (just three times in two weeks) and instead takes Tylenol. (AR 60).

         Washington uses her left arm to clean her house, but she does so in spurts. (AR 56, 75-76). She used to be able to clean her house in one day; now it takes her several days. (AR 56). She uses her left arm to sweep, cook, and wash dishes; however, she uses her right arm to lift heavier items. (AR 57, 70). Stirring and gripping with her left hand causes her pain, so she makes simple meals. (AR 58). She can perform her own self care. (AR 70). She has difficulty holding her grandchildren longer than 30 minutes. (AR 59). She drives up to three times a week to go shopping and to doctor appointments, but her husband drives if they go out of town. (AR 43-44).

         Washington also complained of pain in her low back and in her feet. (AR 60-61). She stated that her foot pain has improved since getting different shoes; when her foot pain does flare up, she can “walk it out” in about six minutes. (AR 61-62). She does not take pain medication for her feet. (AR 65). She had been walking up to three miles a day in an effort to lose weight, but her physician cut her back to 30 minutes on flat surfaces only. (AR 62-64). She props her feet up five hours a day. (AR 75). Washington takes pain medication for her back sparingly; about four times a month, she lies on a hard surface with a heating pad on her back and her feet up on a stool. (AR 64).

         Washington also complained of fibromyalgia symptoms, stating that Cymbalta helps with those as well. (AR 64-65). On a scale of one to 10, Washington rated her fibromyalgia pain as a “four” when taking Cymbalta and an “eight” when without Cymbalta. (AR 66). She complained of “memory fog, ” fatigue, difficulty sleeping, and pain when touched. (AR 65-67, 69). She takes medication to aid her sleep, which helps, but it also causes her some daytime drowsiness. (AR 67-68). She lies on the couch watching television for eight or nine hours a day. (AR 67). Washington also complained of neck pain, which causes a “tired feeling” and sometimes a burning sensation. (AR 69). In the past, she received injections for her neck, which were helpful. (AR 69).

         Washington estimated that she could walk up to 20 minutes and stand for 10 minutes before her back, left knee, and left foot start aching and swelling. (AR 70-71). She can lift five pounds with her left arm and 10 pounds with both arms. (AR 71, 73). She complained of difficulty gripping items and writing with her left hand. (AR 73-74). She uses pillows behind her back when she sits in a chair, and she puts her feet up. (AR 72). Sitting at a computer screen bothers her neck. (AR 72). She reported medication side effects of dizziness, drowsiness, rapid heart rate, poor eyesight, and headaches.[4] (AR 68, 73).

         B. Summary of the Relevant Medical Evidence

         In July 2011, Washington saw Sarah Thomas, M.D., twice for complaints of pain in her low back, knees, and “all over.” (AR 400). Injections in her left knee and elbow were administered at her first visit, and she was referred to physical therapy and prescribed non-steroidal anti-inflammatory drugs (“NSAIDs”). (AR 404). Dr. Thomas put her off work for two weeks. (AR 404). At her second visit, Thomas stated that she had not taken the NSAIDs as prescribed at her previous visit. (AR 400). She felt that she could not return to work and was considering applying for disability. (AR 400). On exam, her muscle strength and tone were normal, but she had tenderness in her elbows and in her lower spine. (AR 401).

         In September 2011, Washington returned to Dr. Thomas complaining of pain in her feet and pain in her left shoulder which radiated down her left arm to her index finger. (AR 397). On exam, Washington exhibited full range of motion of her shoulder, but abduction and external rotation were painful; impingement was noted with abduction and flexion. (AR 398). She was assessed with lateral epicondylitis of the left elbow, low back pain, cervicalgia, and rotator cuff tendonitis. (AR 399). She was given an injection in her left shoulder and instructed to avoid lifting more than five pounds with her left arm for two weeks. (AR 399).

         In January 2012, Washington saw Alex Meyers, M.D., a hand surgeon, for a three-year history of left arm pain. (AR 336). He noted that she had undergone five injections in her shoulder, several series of physical therapy, and an MRI. (AR 336). On exam, Washington had some tenderness to palpation over the greater tuberosity and pain with resisted external rotation. (AR 336). Her strength was 4, limited only by pain. (AR 336). She had moderate tenderness over the acromio-clavicular joint, and cross body abduction was painful. (AR 336). A dorsomedial nerve compression test, Phalen's and reverse Phalen's tests, and a Tinel's test were all positive. (AR 336). An MRI showed supraspinatus anterior tendinopathy and edema that indicated at least a partial thickness tear, if not a full thickness tear. (AR 336). Associated acromioclavicular arthropathy and subacromial bursitis were present. (AR 336). Dr. Meyers's impression was left shoulder pain consistent with rotator cuff tendinopathy and peripheral compressive neuropathy with reported EMG positive carpal tunnel syndrome. (AR 336). Because non-operative treatment had failed and the symptoms were affecting Washington's sleep and daily living activities, Dr. Meyers recommended Washington undergo an arthroscopic rotator cuff repair, as well as a left carpal tunnel release. (AR 336). However, he wanted to review her MRI and EMG reports before proceeding. (AR 337).

         On February 2, 2012, Dr. Meyers performed a left shoulder arthroscopy and left shoulder distal clavicle excision on Washington. (AR 362). Because an EMG report was normal, Dr. Meyers opted to administer a cortisone injection into her left carpal tunnel, rather than perform a surgical release. (AR 362). Several days after surgery, Washington was doing well, demonstrating passive forward flexion to 120 degrees and 40 degrees external rotation. (AR 338). Dr. Meyers encouraged her to participate in physical therapy. (AR 338).

         Later that month, Washington was seen by Dr. Thomas for followup. (AR 394). She was receiving physical therapy three times a week for her left shoulder. (AR 394). She complained of low back pain and “hurting all over, ” that she had pain upon touch, and that she had difficulty sleeping due to pain; Mobic helped reduce her pain. (AR 394). She demonstrated restricted range of motion in her left shoulder, and fibromyalgia trigger points were positive in all 18 regions. (AR 396). Dr. Thomas's impression was fibromyalgia, low back pain, left rotator cuff tendonitis and subacromial bursitis, and left carpal tunnel syndrome. (AR 396).

         In March 2012, Washington saw Eugene MacDonald, M.D., a podiatrist, for heel pain when weight bearing. (AR 378). He indicated that Washington could return to work on May 2, 2012, but must avoid prolonged standing and any squatting, bending, stooping, or using ladders. (AR 382).

         Also in March 2012, Washington returned to Dr. Thomas for followup on her plantar fasciitis. (AR 391-93). She had been prescribed an orthotic and medication, but had stopped taking at least one medication on her own; she was still participating in physical therapy. (AR 391). She also complained of tightness in her back and shoulder muscles, and she continued to have pain and restriction of movement in her left shoulder. (AR 391). She complained of two-day “flares” in her pain, where she hurts all over and stays in bed. (AR 391). Upon exam, 13 of 18 fibromyalgia trigger points were positive. (AR 392). Dr. Thomas adjusted her medications and recommended that she perform stretches and apply heat. (AR 393).

         During a March 26, 2012, appointment, Dr. Meyers noted that Washington was seven weeks post surgery, that she was progressing in therapy, and that her pain was improving. (AR 339). She demonstrated active flexion to 130 degrees, active abduction to 120 degrees, external rotation to 70 degrees, and internal rotation to the lumbar spine; she demonstrated good cuff strength. (AR 339). Dr. Meyers instructed Washington to continue therapy, stating ...

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