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Seney v. Colvin

United States District Court, D. Delaware

November 5, 2013

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

Page 346

Brenda Lee Seney, Plaintiff, Pro se, Wilmington, Delaware.

Charles M. Oberly III, United States Attorney, Wilmington, Delaware and Patricia A. Stewart, Special Assistant United States Attorney, Office of the General Counsel Social Security Administration. Of Nora Koch, Esquire, Acting Regional Chief Counsel, Region III and Lauren Donner Chait, Assistant Regional Counsel of the Office of the General Counsel Social Security Administration, Philadelphia, Pennsylvania. Counsel for Defendant.


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Plaintiff Brenda Lee Seney appeals the denial of her applications for disability insurance benefits (" DIB" ) under Title II, and supplemental security income benefits

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(" SSI" ) under Title XVI, of the Social Security Act (the " Act" ). See 42 U.S.C. § § 401-434, 1381-1383f. Jurisdiction exists pursuant to 42 U.S.C. § 405(g).

Pending before the Court are cross-motions for summary judgment filed by Seney and Carolyn W. Colvin, Acting Commissioner of Social Security. For the reasons set forth below, the Court denies Seney's motion for summary judgment and grants the Commissioner's motion for summary judgment.

I. Procedural History

Seney filed DIB and SSI applications on June 30, 2009, alleging an onset date of disability of October 23, 2007, as a result of multiple sclerosis. (D.I. 11 at 45, 104-107, 246). Seney was thirty-five years old on the alleged onset date. The claims were denied initially and upon reconsideration. ( Id. at 104-07). Thereafter, Seney requested a hearing which took place before an administrative law judge on December 13, 2010. Counsel represented Seney at the hearing, and Seney, her spouse, and a vocational expert testified. ( Id. at 58-103.) The ALJ found that Seney met the insured status requirements of the Act through December 31, 2012, and that she was not under a disability at any time from October 23, 2007 through the date of the decision on January 24, 2011. ( Id. at 45-57.) Seney sought review by the Appeals Council, but it denied her request for review and, therefore, the ALJ's decision became the final agency decision subject to judicial review. ( Id. at 9-13.) On December 13, 2012, Seney, proceeding pro se, filed the current action for review of the final decision. (D.I. 1.)

II. Medical Evidence

Seney presented to physician Lee Dresser, M.D., at Wilmington Neurology Consultants, P.A., on November 1, 2006, following a hospitalization in October 2006. (D.I. 11 at 350.) The impression was transverse myelitis, with a concern that it could possibly progress to multiple sclerosis. ( Id. ) Seney has since been followed by Neurology Consultants. Seney underwent an MRI on June 11, 2007, the findings of which were consistent with multiple sclerosis. ( Id. at 346.) Seney was advised of the findings on June 28, 2007. ( Id. at 346-347.) Seney was examined on July 26, 2007 and was clinically stable. ( Id. at 344-345.) Seney presented to Sheria A. Hudson, MSN, NP-C at Neurology Consultants on October 3, 2007 and complained of hand, neck, and back pain. ( Id. at 342-43.) Upon examination, Nurse Hudson noted full upper extremity strength, intact lower extremity strength, intact vibratory, touch and temperature sensation, accurate and stable coordination, and a stable and steady gait. ( Id. at 342-43.) Seney was started on a regimen of Rebif injections. [2] ( Id. at 343.) On November 28, 2007, after six weeks of Rebif injections, physical examination revealed no abnormal findings, and Seney reported that she was feeling well. ( Id. at 340-41.) Seney denied weakness, visual changes, bowel or bladder issues, numbness, and balance/gait disturbances. ( Id. at 340-41.)

Seney presented to Neurology Consultants on July 10, 2008, with complaints of soreness at the injection sites where she administers the Rebif. ( Id. at 273, 338.) The assessment was MS relapsing stable on Rebif. ( Id. )

Seney presented to Neurology Consultants on January 8, 2009, with complaints

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of intermittent neck pain. ( Id. at 271, 336.) She indicated that she was actively looking for employment. ( Id. ) On January 21, 2009, Seney underwent an MRI of the cervical spine, thoracic spine, and brain. The MRI of the cervical spine revealed decreased cervical cord demyelination at the C6 and C4-C5 and minimal degenerative disc bulging at C5-C6 with no disc herniation, central stenosis, or exiting nerve root compression. ( Id. at 373-74.) The MRI of the thoracic spine provided an impression that " [n]o progression or cavitation is present and there is no cord expansion, hemorrhage or edema [and n]o evidence of thoracic spine disc herniation, central stenosis or thoracic cord impingement." ( Id. at 378-79). The brain MRI indicated " [i]nterval decrease in size of previously described focus of demyelination within the posterior body of the left corpus callosum with minimal progression of periventricular white matter changes noted, which is nonspecific[; ] no current plaque edema, acute intracranial abnormality or focal posterior fossa/brainstem involvement[; and stable left CP angle arachnoid cyst with continued mild mass effect upon the left 7th and 8th cranial nerves." ( Id. at 377.)

Seney presented on March 26, 2009 with complaints of back, neck, and chest pain and cold chills. ( Id. at 257-58.) Seney was seen for a neurological follow-up on April 2, 2009. ( Id. at 264, 334, 398.) Nurse Hudson reported the results of the MRIs taken in January 2009, noting " no progression was present." ( Id. at 264.) Seney " had no problems with discrete weakness" and continued with the Rebif injections. ( Id. ) She related being chilled into the night hours after taking her injection, but indicated " that she does not always premedicate with ibuprofen or Tylenol prior to taking her injection" as prescribed. ( Id. ) Seney was fully oriented, had fluent speech, intact upper extremity strength, and steady gait, although the tandem gait was slow. ( Id. at 265, 335.) The assessment was MS with mild elevated liver function tests on Rebif. ( Id. at 265.)

Seney underwent an initial physical therapy evaluation on April 7, 2009, and presented with cervical pain that she rated at seven to nine out of ten with all activities of daily living. ( Id. at 263.) At the time, she indicated that she was " anticipating future employment." ( Id. ) Seney underwent physical therapy three times per week for four weeks with positive results. ( Id. at 275-289, 434-47.) Seney presented to her neurologist on June 24, 2009, after falling when she apparently lost strength in her legs. ( Id. at 267, 443.) Seney indicated she had been working in the volunteer program for social services moving furniture out of an apartment complex that was being renovated. ( Id. ) Seney was stable upon clinical examination. ( Id. ) She was prescribed a cane for use as needed. ( Id. ) Nurse Hudson completed a medical certification on June 25, 2009, and stated that it was unsafe for Seney to carry heavy items up and down stairs and that she is unable to tolerate extreme temperatures. ( Id. at 405.)

On September 14, 2009, Seney underwent a pulmonary function test, but the American Thoracic Society criteria were not met, and the results indicate that Seney gave an inconsistent effort. ( Id. at 324-86.) Seney presented to Dr. Dresser on September 30, 2009. ( Id. at 306, 330.) Seney complained of dysarthria, urinary hesitancy, and some involuntary spasms and leg cramps at night. ( Id. at 330) Seney stated that she had been using a cane to walk. ( Id. ) Seney had a stable gait, normal strength in her upper extremities, and mild weakness in the left lower extremity. ( Id. ) Examination revealed normal extraocular movements, facial

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strength essentially normal, normal strength in the upper extremities and mild weakness in the left lower extremity, gait cautious but not overtly spastic and mildly slow but fairly stable. ( Id. ) The impression was MS with some suggestion of recent exacerbation. ( Id. ) On October 8, 2009, Seney underwent an MRI of her brain that provided an impression of " [n]o pathologic intracranial enhancement." ( Id. at 355.)

State agency physician N. Britman, M.D., prepared an assessment of Seney's physical ability to conduct work related activities on October 16, 2009. ( Id. at 309-15.) The primary diagnosis was MS with a secondary diagnosis of asthma. ( Id. at 309.) Dr. Britman indicated that Seney could occasionally lift and/or carry ten pounds, frequently lift and/or carry five pounds, stand and walk for two hours in an eight-hour workday, sit for six hours in an eight-hour workday, with an unlimited ability to push and/or pull. ( Id. at 310.) Dr. Britman determined that Seney could frequently stoop and kneel; occasionally climb a ramp or stairs, balance, crouch, and crawl; and never climb a ladder, rope, or scaffold. ( Id. at 312.) In addition, because of her asthma and because heat aggravates MS symptoms, Seney should avoid concentrated exposure to extreme hot and cold, temperatures, wetness, humidity, fumes, odors, dusts, gases, and poor ventilation. ( Id. at 313.) Seney had no manipulative, visual, or communicative limitations. ( Id. at 312-13.) State agency physician Anne C. Aldridge, M.D., affirmed Dr. Britman's assessment of Seney's physical ability to perform work related activities. ( Id. at 321.) State agency physician Lawrence A. Churchville III, M.D., also reviewed and affirmed Dr. Britman's assessment. ( Id. at 322-23.) In addition, Dr. Churchville opined that a " cane is not required for ambulation. It is used occasionally when the claimant is having episodes of weakness or unsteadiness. Fingering or feeling is not limited in light of sensory examination described as 'unremarkable.'" ( Id. at 322.)

Seney was examined by Nurse Hudson on November 17, 2009. ( Id. at 328.) Following the examination, Nurse Hudson made an assessment of MS with some residual sensory symptoms and left lower extremity weakness. ( Id. at 329.) On January 28, 2010, Dr. Dresser indicated that Seney had normal strength in her upper extremities, near normal strength in her lower extremities, and a stable gait, but she could only recall one word of ...

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