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Spear v. Berryhill

United States District Court, S.D. Iowa, Central Division

January 25, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          Helen C. Adams Chief U.S. Magistrate Judge

         Plaintiff Michelle Spear seeks review of the Social Security Commissioner's decision denying her application for disability benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401-434. This Court reviews the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). The case is before the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Court considers the matter fully submitted on the briefs.


         In 2013, [2] Ms. Spear filed an application for disability benefits alleging an onset date of August 16, 2013. (Tr. at 175). The Social Security Administration initially denied Ms. Spear's claim on December 31, 2013, (id. at 85-98) and again upon reconsideration on March 6, 2014. (Id. at 99-113). Ms. Spear requested a hearing (id. at 123-24), which was granted (id. at 125-133). Administrative Law Judge (“ALJ”) Eric S. Basse held a video hearing on May 22, 2015. (Id. at 41-84). Ms. Spear appeared with attorney Shannon Schuehle; vocational expert Carma Mitchell also attended and testified. On September 25, 2015, the ALJ issued an unfavorable decision, finding Ms. Spear was not disabled. (Id. at 17-40). Ms. Spear requested a review of the ALJ's decision. (Id. at 15-16). The Appeals Council denied the request for review and the ALJ's decision became a final decision on August 26, 2016. (Id. at 1-6). Ms. Spear timely filed the Complaint [1] in this case on September 20, 2016.

         A. Educational and Vocational Factors

         Ms. Spear was 42 years old when she filed for benefits. (Tr. at 175). She had past work as a 911 dispatcher for the Warren County Sheriff's department, an emergency dispatcher for Mercy Helicopter and Ambulance, and as a public transportation dispatcher. (Id. at 196). Ms. Spear also had worked as a medical assistant. (Id. at 75-78). Her highest level of education was an associate of applied sciences degree which she completed in approximately 2014. (Id. at 45).

         B. Medical Evidence

         Ms. Spear's medical issues began after she was involved in a motor vehicle rollover accident on November 13, 2011. Ms. Spear was the driver and was not restrained. She was partially ejected, but able to extricate herself from the vehicle. (Tr. at 688). Ms. Spear sustained a C7 fracture; rib fractures; L2 and L5 fractures; left upper extremity, left hip and pelvic floor injuries; and a scalp laceration with scalp hematoma, but no other obvious head injuries. (Id. at 711). A CT and MRI of her head were negative. Ms. Spear underwent cervical discectomy, decompression and fixation and fusion procedures, using a cervical plate and screws and bone graft. (Id. at 713).

         She was discharged to an acute rehabilitation facility and, after a course of therapy, discharged to her home on November 25, 2011, in stable condition. (Id. at 661-64).

         On December 6, 2011, Ms. Spear was seen at Mercy Trauma Services Clinic with complaints of left hip/left lateral thigh muscle pain as well as some headache and transient dizziness. (Tr. at 658). An x-ray of her pelvis and left hip showed no acute osseous abnormality. (Id. at 659).

         On January 26, 2012, Ms. Spear had a follow-up visit at Iowa Orthopedics. She noted she continued to have left upper and lower extremity pain and pelvic floor pain. (Tr. at 470). She saw Dr. Pothoven in Urology for her pelvic pain, who referred her for pelvic floor therapy along with the other physical therapy she was performing post-operatively. She complained of burning and tenderness in her neck, left hip, and pelvis. (Id.) At that time Ms. Spear weighed 304 pounds. (Id. at 471). On physical examination the physician's assistant noted weak hip muscles and mildly reduced range of motion. (Id.) Her gait was antalgic on the left side and she demonstrated tenderness in the groin. Ms. Spear's bilateral lower extremity strength was normal, as was her lower extremity neurovascular. (Id. at 472). The plan was to continue physical therapy for her neck and left hip and pelvic pain, pool exercises were encouraged, and Ms. Spear was to follow up in three to four weeks. (Id.)

         Ms. Spear started physical therapy for her continued pelvic pain at Mercy West Physical Therapy on March 29, 2012. (Tr. at 449). The treatment plan included twice-a-week visits for eight weeks, to include “range of motion exercises, manual therapy, therapeutic exercise, a personalized home exercise program, patient education, body mechanics, posture, strengthening, self-care and home management, behavioral modification, biofeedback, neuromuscular re-education and dynamic activities.” (Id. at 451). She continued with physical therapy for her hip throughout the spring and summer of 2012 (with some absences (id. at 473-84)), experiencing cycles of pain and relief. (Id. at 372-442). She also walked in the swimming pool. (Id.)

         On July 10, 2012, Ms. Spear was seen at Mercy West Physical Therapy for lymphedema treatment of her head and cognitive assessment. (Tr. at 341). Ms. Spear had experienced head edema since the accident, most noticeable in the morning, as well as numbness at the left temple. (Id.) She complained of headaches on the left side. Cognitively, Ms. Spear had memory recall problems, word finding issues, and could not remember passwords. (Id.) On examination the occupational therapist noted Ms. Spear had increased girth of her head and neck due to fluid retention, pitting edema/fibrotic tissue at the right mastoid process and occiput, dysesthesia in the left parietal area of the skill, and accepted Ms. Spear's report of memory recall and word finding issues. (Id. at 342). The treatment plan was for lymph node massage, myofascial release, Kinesio taping, guided therapeutic exercise, training in a home program and further cognitive retraining and assessments twice a week for 10 to 12 weeks. (Id.) Ms. Spear followed through with the therapy prescribed through July and August 2012. (Id. at 345-53).

         On August 1, 2012, Ms. Spears was seen at Iowa Orthopaedic Center for a re-check of her persistent hip pain, which had been diagnosed as left hip trochanteric bursitis. (Tr. at 316). She received a cortisone injection in her hip in May 2012, and apparently another one before August. (Id. at 318). Physician's assistant Dudley Phipps discussed use of a foam roller in conjunction with continuing physical therapy, but was hesitant to administer another injection as she already had received two injections since May. (Id.)

         Also on August 1, 2012, Ms. Spears began to see Dr. Donald Gilbert, a psychologist, as she was having trouble driving, getting out of the house, flashbacks to the accident, and daily panic and anxiety attacks. (Tr. at 321). In a September 17, 2012, Psychiatric Assessment Form, Dr. Gilbert noted he had only met with Ms. Spears two times so far and could not yet determine what services might benefit Ms. Spear. (Id. at 322, 326).

         Ms. Spear saw nurse practitioner Michelle Hunerdosse at Mercy Indianola Family Medicine & Urgent Care on August 14, 2012, following up from her injuries in the car accident. (Tr. at 527). Ms. Spear reported she was still in pain, particularly her left hip. Ms. Hunerdosse took a history from Ms. Spear, including all the treatment she was undergoing. Ms. Spear weighed 301 pounds on this occasion. On physical examination, Ms. Hunerdosse observed an edematous area on the left scalp. (Id. at 528). Ms. Spear was to follow up in eight weeks. (Id.)

         On August 15, 2012, Ms. Spear called Mercy Neurosurgery complaining of neck pain and continued numbness and tingling affecting the index and middle fingers of her right hand. (Tr. at 518). A certified nursing assistant and physician's assistant saw her on August 23, 2012, at which time x-rays of the cervical spine were taken. (Id. at 511-12, 519). The x-ray showed the anterior fixation plate and interbody fusion material remained intact and in place with no significant change in the position and alignment of the bony elements. No new bony lytic or destructive changes were seen and the prevertebral soft tissues were unremarkable. (Id. at 519). On physical exam, Ms. Spear did not have any difficulty ambulating back to the exam room. No limp was detected. Her surgical incision was well healed. She weighed 295 pounds. The examiner noted 5/5 strength in bilateral upper extremities. (Id. at 511). Ms. Spear did have decreased sensation to light touch and pinprick over the webspace between her right index and middle fingers, and decreased sensation over the ulnar border of her thumb. (Id.) There was no evidence of thenar or hyperthenar wasting. She did have hyperesthesia with light touch over her upper thoracic spine. Her strength in her lower extremities was 5/5 and symmetric. Sensation was intact to light tough bilaterally in her lower extremities, her reflexes at biceps and triceps were 2 and symmetric bilaterally, as were reflexes at patella and Achilles. (Id.) The physician's assistant suspected Ms. Spear's neck pain to be myofascial in nature as her x-rays showed positive signs of fusion. (Id. at 512). Ms. Spear was directed to continue to work with physical therapy for both her chronic trochanteric bursitis and now upper thoracic back pain. She had no activity restrictions surrounding her cervical fusion and was to return to clinic as needed. (Id.)

         By September 12, 2012, the physical therapist returned Ms. Spear to her physician as “patient is unable to progress due to perception of pain.” (Tr. at 370). Ms. Spear was scheduled for consultation with a pain specialist to discuss other options of care. (Id.)

         On September 20, 2012, Ms. Spear saw Dr. Clinton Harris at Mercy Center for Pain Medicine. (Tr. at 504). She described the pain to Dr. Harris as extending over the left outside of her left thigh with pain into the left buttock and into the inside of the left leg, up into the groin region. An MRI of her hip demonstrated evidence of bursitis. Ms. Spear reported having been treated with trochanter bursa injections twice, the first giving better results than the second. (Id.) The pain occasionally kept her up at night and was present throughout the day, worse with sitting. (Id.) Ms. Spear weighed 300 pounds at this visit. On physical examination, Dr. Harris noted negative straight leg raise bilaterally, normal gait and station and posture, and mild tenderness in the lumbosacral spine and pelvic regions with pain over the left greater trochanter and left ischial tuberosity with palpation. (Id. at 505). Dr. Harris administered an injection of Depo-Medrol in the left ischial tuberosity bursa. (Id. at 506). He directed Ms. Spear to continue with therapy. (Id.)

         Ms. Spear returned to physical therapy on September 26, 2012, reporting her left hip was significantly better. (Tr. at 366). Treatment modalities were undertaken, the therapist noting tenderness at the greater trochanter but significantly reduced, improved levator ani mobility, tenderness at obturator internus and along the med ischial tuberosity and pubic rami, and significantly decreased tenderness and tightness in piriformis and gemellus along the sacral border. (Id.) The same day Ms. Spear also had manual lymphedema drainage techniques during occupational therapy for her head pain. (Id. at 364). She had met her short term goals with a decrease in fullness of the left parietal lobe of her head and reduced dysesthesia on the left aspect of her head. Ms. Spear was to continue to work on long term goals of participating in home program without active outpatient therapy and working on getting to sleep and improving her word finding ability. (Id. at 363).

         By October 10, 2012, Ms. Spear reported more pain to the physical therapist as she had been driving more because her husband had shoulder surgery. (Tr. at 361). Ms. Spear felt better mentally, although sleep was variable, and she was walking more. (Id.)

         Ms. Spear returned to Mercy Center for Pain Medicine on October 18, 2012, for follow-up on her hip pain. (Tr. at 499). She reported she was at least 40% better and the pain over the side of her left hip was improved. She continued to have pain into her left buttock, although the intensity had improved, and some pain into her head. (Id.) Her physical examination findings remained the same and Dr. Harris noted he would hold off repeating injections at that time. (Id. at 500).

         On November 12, 2012, Ms. Spear was discharged from physical therapy care for her complaints of left arm pain as she had seen good resolution of the pain with treatment. (Tr. at 360).

         Ms. Spear underwent a neuropsychological evaluation at On With Life on December 7, 2012, at the recommendation of Dr. Gilbert. (Tr. at 329). Dr. Gilbert referred Ms. Spear to On With Life because she was experiencing some cognitive difficulties following the accident. (Id.). Dr. David Demarest, a clinical neuropsychologist, reviewed Ms. Spear's medical records from her hospitalization after the accident and conducted an extensive interview with Ms. Spear. (Id. at 329-30). She described her pain problems with her hip and pelvis and headaches, which were getting worse. (Id. at 330-31). Ms. Spear had recently returned to work full-time dispatching for a public transportation company. (Id. at 330). She reported she had been in occupational therapy for lymph massage and myofascial release procedures and in physical therapy for her hip and pelvis pain. (Id.) She was taking three pain medications at the time of this visit. With respect to the cognitive difficulties, she reported that her husband said her personality had changed and she had some short-term memory difficulty, such as forgetting to flush the toilet or to shut the top of the washer. A friend had noted that Ms. Spear had become more assertive and would say things she would not have before the accident. (Id. at 331). She had been referred to a mental health professional because she was ruminating on her pain problems (among other personal issues). (Id.) Dr. Demarest conducted some tests over a four-hour period, noting Ms. Spear worked to the best of her abilities on all tests. (Id. at 332). Her test performances fell in the average range. What manifested during the testing were some mild attentional issues, which Dr. Demarest found consistent with her pain problems. (Id. at 335). He recommended she continue to work with Dr. Gilbert. (Id.)

         On January 4, 2013, Ms. Spear was discharged from occupational therapy treatment for the lymphedema symptoms in her head and neck as she did not return for follow-up with the therapist after her visit on September 26, 2012, and canceled an October 23, 2012, appointment. (Id. at 357).

         Ms. Spear saw Ms. Hunerdosse at Mercy Indianola Family Medicine on April 25, 2013. (Tr. at 524). She complained her right arm had been retracting and she was having aching pain. Specifically, Ms. Spear reported experiencing increasing episodes of involuntary movements of her right upper extremity. Her right wrist would flex and shoulder extend. Ms. Spear said her triceps was becoming sore. Her right index finger and middle finger had been numb since the accident. She had taken Nortriptyline and Cymbalta in the past, but did not feel these medications helped. (Id.) She did not have neck pain any longer and no longer did physical therapy. (Id.) Ms. Hunerdosse conducted a physical examination, finding no paraspinal tenderness in the cervical spine. She was unable to elicit triceps reflexes. (Id.) She assessed nerve irritation in connection with the ACDF site and recommended Ms. Spear follow up with her neurosurgeon and restart Nortriptyline. (Id.). Cervical spine x-ray taken the same date showed the cervical segments were anatomically aligned with no fracture or dislocation and no evidence of instrumentation. (Id. at 529). There was interval incorporation of the bone graft as compared to an x-ray taken August 23, 2012. (Id.)

         Ms. Spear followed up with Mercy Neurosurgery on May 6, 2013. She reported her right hand was “cramping up, ” making it difficult to type or write when this occurred. (Tr. at 515). The physician's assistant who saw Ms. Spear noted they could consider EMG/NCS for further evaluation. (Id.)

         On August 30, 2013, Ms. Spear returned to Mercy Indianola Family Medicine for refills on prescriptions. (Tr. at 521). She reported to Ms. Hunerdosse that she tried to return to work at Red Rock, but had a return of pain and was unable to keep the job. (Id.) She complained of right arm pain “contracture” and her left posterior leg/groin pain was much worse. (Id.) She was using more Hydrocodone and using Butalbital for her increased headaches, but still was feeling poorly. (Id.) Her scalp was painful and numb so she was doing lymphatic massage. Ms. Spear reported anxiety, which affected her ability to ride in a car or drive. (Id.) She also was still taking Nortriptyline. (Id.) Ms. Spear weighed 309 pounds at this visit. On physical examination, all was normal. Her gait and station were within normal limits and her spine had normal alignment and range of motion. (Id. at 522). Her cranial nerves II to XII were intact. (Id.) Ms. Hunerdosse planned to refer Ms. Spear to Physical Medicine and Rehabilitation for consultation. Ms. Spear was going to return to the swimming pool as that made her pain manageable. (Id.)

         Ms. Hunerdosse saw Ms. Spear again on November 7, 2013. (Tr. at 532). Ms. Spear said she was in the process of filing for Social Security disability and needed to have an exam within thirty days of the determination. She reported she was feeling better since leaving her job and was using less pain medication, although her pain was not better. (Id.) According to Ms. Spear's husband, her pain was not well controlled at home, she was irritable, and likely was not taking pain medications as needed. (Id.) Ms. Spear was experiencing intermittent “contracture” symptoms in her right hand and arm, like a spasm or cramp, had headaches three to four times a week, and was awake a lot at night and up and down. (Id.) She weighed 309 pounds at this visit. (Id. at 533). After discussing Ms. Spear's pain issues, Ms. Hunerdosse suggested trying Cymbalta, refilled the prescription of Butalbital for headaches, and Ms. Spear was to continue with other medications, and recheck with the clinic in six weeks. (Id. at 534).

         The Disability Determination Services Bureau referred Ms. Spear to Raymond Tibe, Psy.D, for mental status interview. Ms. Spear was tested on December 5, 2013, and Dr. Tibe's report prepared on December 9, 2013. (Tr. at 537). At the conclusion of his interview, Dr. Tibe concluded that Ms. Spear had an Axis I diagnosis of adjustment disorder with mixed mood, and a GAF of 55 to 60. (Id. at 539). Dr. Tibe could see that with respect to work activities, her “physical discomfort, difficulties with anxiety and catastrophizing could make attention, concentration and pace difficult at times.” (Id.) Her judgment, ability to relate to people, and ability to process incoming information were all intact. (Id.)

         Dr. David Smith, M.D, made an initial disability determination based on record review on December 31, 2013. (Tr. at 85-97). The examiner noted a consultative examination was required because the evidence at that time was insufficient to support a decision on the claim. (Id. at 89). The examiner found Ms. Spear's statements about her functional limitations related to her mental medically determinable impairments were mostly credible, but partially eroded by the fact she did not have ongoing psychological/psychiatric treatment. (Id. at 92). As for the credibility of her allegations concerning her physical impairments, the examiner suggested that because all her treatment was provided by midlevel providers, physicians' assistants and practicing nurses, Ms. Spear's symptoms were not treatable or severe. (Id.) The examiner rated her exertional limitations as occasionally lifting/carrying 20 pounds; frequently lifting/carrying ten pounds; standing or walking about six hours in an eight-hour workday; sitting about six hours in an eight-hour workday; unlimited pushing/pulling; occasional ability to climb ramps/stairs; never climbing ladders/ropes/scaffolds; and occasionally balancing, stooping, kneeling, crouching and crawling. (Id. at 92-93). In reaching this RFC, the examiner explained the medical evidence of record did not identify ongoing limitations attributable to the medically determinable impairments which were non-severe. (Id. at 93). Ms. Spear was morbidly obese and had chronic myofascial pain syndrome. She admitted to improvement when participating in aquatic exercise programs. (Id.) The examiner was critical of her care as being provided by “unacceptable medical providers” and lacking in depth evaluations of her complaints in the files. (Id.) Russell Lark, Ph.D, assessed Ms. Spear's mental residual functional capacity, noting there was no evidence of ongoing mental health treatment in spite of Ms. Spear's reports to providers that she was struggling with depression. (Id. at 95). He concluded that “[h]er attention, concentration, and pace may vary with her . . . pain/pain medications, ” but she “is able to complete at least 3-4 step tasks on a sustained basis. (Id.)

         Ms. Spear returned to Mercy Indianola Family Medicine on January 24, 2014. (Tr. at 541). Her chief complaint was pain in her hips and pelvis, headaches, right upper arm cramping, nerve pain down to her second and third fingers, and intermittent right-side rib aches. She wanted a referral to Physical Medicine and Rehabilitation. (Id.) Ms. Spear weighed 308 pounds at this visit. On physical examination, Ms. Spear's gait and station were within normal limits. (Id. at 542). A referral was made to the rehabilitation physician. (Id. at 543).

         X-rays were taken on February 28, 2014, and March 10, 2014 (Tr. at 591-92). The first was a single view of the pelvis that showed chronic-appearing heterotopic ossification or periosteal reaction adjacent to the proximal femoral diaphysis, similar to a previous x-ray taken May 1, 2012. (Id. at 592). The radiologist recommended a dedicated view of the entire left femur. He saw no acute fracture involving the hips, but did see very mild degenerative spurring. (Id.) The left femur x-ray showed good position and alignment of the bony elements with no evidence of fracture or dislocation. Density was seen abutting the lateral and posterior aspect of the midshaft of the femur, most in keeping the heterotopic ossification and likely related to old trauma. (Id. at 591).

         On February 28, 2014, Ms. Spear saw Dr. Ai Huong Phu at Mercy Physical Medicine and Rehabilitation to be evaluated for her hip pain. (Tr. at 783). She also had right sided arm pain and described the pulling sensation she would get in her arm with numbness in the index and middle finger. She described her left hip/groin/buttock pain as constant and worse with prolonged sitting. (Id. at 784). She did not have problems walking. Ms. Spear described the treatments she had tried. Dr. Phu took a complete history and conducted a physical examination. As relevant to her complaints, Dr. Phu observed Ms. Spear's gait and stance were normal, she was able to walk on toes and heels with good balance. (Id. at 785). Dr. Phu observed decreased cervical flexion, limited forward flexion of bilateral shoulders, no tenderness over the right arm nor spasticity. (Id.) Ms.

         Spear's lumbar was normal with full flexion, extension, sidebending, rotation and no pain. (Id.) She had a negative straight leg raise on the left, positive Faber on the left, tenderness over the left greater trochanter and over the left SI and buttock and ischial tuberosity and pubic ramus. (Id.) Dr. Phu reviewed prior x-rays. Dr. Phu concluded Ms. Spear had neuropathic pain from her head laceration, left-sided greater trochanter bursitis, possibly a left SI joint irritation, and left gluteal myofascial pain. Dr. Phu recommended x-rays of the left SI joint and that Ms. Spear start a transdermal cream for her neuropathic pain on her head and left hip region. Dr. Phu thought Ms. Spear might need another greater trochanter injection and perhaps an ultrasound for possible fluid drainage. She recommended Baclofen for Ms. Spear's right upper extremity spasms and would see her in four weeks. (Id. at 787).

         Jan Hunter, D.O., undertook a second record review on March 5, 2014. (Tr. at 100-13). Dr. Hunter reviewed the same medical records and other sources (statements by Ms. Spear, her husband, and a friend). Again, the examiner determined Ms. Spear's credibility was eroded because the medical evidence was treatment provided by “midlevel providers, physician assistants and practicing nurses suggesting her symptoms are not treatable or not severe.” (Id. at 108). The mental health examiner, Scott Shafer, Ph.D, reached the same conclusions as before. (Id. at 110- 11).

         Ms. Spear followed up with Dr. Phu on March 28, 2014. (Tr. at 788). She reported the Baclofen seemed to help, but she could only tolerate the evening dose, which assisted her in sleeping two to three hours at a time. She reported still having the left internal pelvic pain, which worsened when she sat. At this visit she rated the pain at 4/10 and said it was constant. Lying down improved the pain. The films were not present for review, but the report indicated there was heterotopic ossification on the lateral aspect of the proximal femur. Ms. Spear also reported she continued to have intermittent spasms in her right arm. (Id.) Dr. Phu conducted another physical exam with findings similar to the previous month. (Id. at 790). Dr. Phu continued the Baclofen prescription and would look for a provider who could do a pudendal block from which she thought Ms. Spear would benefit. Dr. Phu recommended Ms. Spear start pool therapy independently at least once a week. (Id. at 791).

         On April 11, 2014, Ms. Spear saw Dr. Harris, the pain specialist, to assess her left pelvic pain. (Tr. at 588). Ms. Spear weighed 300 pounds at this visit. She described her pain as continuous and worsening as the day progressed. (Id. at 588). She needed to constantly change positions from lying down to standing up and sitting on the toilet to relieve the pain. On physical examination, Ms. Spear was alert and in no acute distress; as relevant here, her motor strength was normal in the upper and lower extremities; and there was tenderness over the ischial tuberosity on the left. (Id. at 589). Dr. Harris diagnosed pudendal neuralgia and thought it would be reasonable to try a left pudendal nerve block. (Id.) He started Ms. Spear on Lyrica and Venlafaxine and suggested she talk to a psychologist regarding biofeedback. (Id.)

         Dr. Phu saw Ms. Spear on April 22, 2014, for a follow-up visit. Ms. Spear reported discussing the pudendal nerve block with Dr. Harris and felt she was interested, but wanted another opinion. (Tr. at 794). Her pain level on this occasion was 3/10, sharp and aching in nature, and constant. (Id.) Dr. Harris had given her a prescription for Cymbalta, but she had not started it yet. (Id.) She reported her pain worsened throughout the day, and when she changed positions from sitting to standing. (Id.) It mildly improved when she sat on the toilet and with lying down. (Id.) She had been taking the Baclofen in the morning and at night to help with the right arm, but the spasms were still ...

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