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Sheets v. Colvin

United States District Court, D. Delaware

November 13, 2014

TRACY L. SHEETS, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


MARY PAT THYNGE, Magistrate Judge.


This action arises from the denial of plaintiff Tracy Sheets's ("plaintiff") claim for Social Security benefits. On February 9, 2010, plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). (D.I. 14 at 10.) In her application and disability report, plaintiff claimed she became disabled beginning on June 30, 2009, due to neck, knee, and shoulder pain, hand numbness, and post-traumatic stress disorder ("PTSD"). ( Id. at 10-11.) Following the Social Security Administration's ("SSA") denial of her claim, both initially and upon reconsideration, plaintiff requested an ALJ hearing. ( Id. at 10, 20.) The hearing occurred on April 10, 2012. ( Id. at 10, 21.) At the hearing, testimony was provided by plaintiff and an impartial vocational expert, Ellen Jenkins ("Jenkins"). ( Id. at 21-59.) On May 3, 2012, the ALJ, Judith A. Showalter, issued a written decision denying plaintiff's benefits claim. ( Id. at 7-20.) Plaintiff requested a review of the ALJ's decision by the Social Security Appeals Council, which was denied on September 11, 2013. ( Id. at 1-6.) On November 3, 2013, plaintiff filed a timely appeal with the court. (D.I. 2.) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 23; D.I. 27.) For the reasons that follow, the court will grant and deny in part plaintiff's motion for summary judgment, and grant and deny in part defendant's motion for summary judgment.


Plaintiff was born on December 23, 1965. (D.I. 14 at 28.) She has a high school education, and attended some college. ( Id. at 10.) Her alleged disability dates from June 30, 2009. ( Id. ) Plaintiff's underlying injury occurred in 2007, when she sustained neck injuries in a motorcycle accident.[1] ( Id. at 15.) After the accident, she continued to work full-time until February 2009, and then part-time until 2011. ( Id. ) Plaintiff has not worked since 2011. ( Id. at 34.) Despite her prior vocational experience, plaintiff claims she remains disabled under the Act. ( Id. at 21-54.) To be eligible for DIB, plaintiff must demonstrate she is disabled within the meaning of ยงยง 216(l) and 223(d) of the Act. ( Id. at 10.)

A. Evidence Presented

Plaintiff began experiencing severe neck pain after an accident on June 1, 2007, in which she was thrown off her motorcycle after going into a ditch.[2] ( Id. at 273, 433.) This pain, described as "go[ing] down between the shoulder blades[, ]" did not radiate into the arms. ( Id. at 433.) On November 20, 2008, plaintiff underwent an MRI of the cervical spine at St. Francis Hospital, which revealed a large wide-based disc herniation at C5-C6 with minimal cord impingement, and also a small disc herniation at C6-C7. ( Id. at 267). An evaluation at Delaware Neurosurgical Group ("DNG") on January 14, 2009 revealed neck discomfort on turning. ( Id. at 433.) Plaintiff stated during the evaluation that neither physical therapy ("PT") nor pain medication provided "significant relief." ( Id. at 434.) Accordingly, she desired surgical treatment, and on February 9, 2009, underwent anterior cervical decompression with discectomy and arthroplasty using an artificial disc at C5-C6 ("surgery"). ( Id. at 434, 444-46.)

Plaintiff reported a reduction in pain following the surgery. ( Id. at 430-31.) She did, however, continue to experience some pain, especially late in the day. ( Id. ) At a follow-up visit to DNG on March 10, 2009, plaintiff advised she had not returned to work as a certified nursing assistant. ( Id. at 431). At another follow-up visit to DNG on April 21, 2009, she mentioned her pain was worse "after working a full day."[3] ( Id. at 430.) Her daily pain medications included Naproxen, Lortab, and Flexeril. ( Id. at 404, 430.) On March 23, 2009, plaintiff began PT at Christiana Care, which concluded on June 9, 2009. ( Id. at 404-17.) According to the records from Christiana Care, PT was successful, as all therapy goals were met. ( Id. at 404, 416.)

On June 22, 2009, plaintiff's primary care physician, Dr. Jose Castro ("Dr. Castro"), referred her to Dr. Frank Falco ("Dr. Falco"). ( Id. at 454.) Plaintiff told Dr. Falco she suffered from chronic neck and back pain, with an intensity of 7/10, regardless of pain medication. ( Id. ) She further advised there was 50% pain relief since the surgery. ( Id. ) After administering the Dallas Pain Questionnaire, Dr. Falco reported plaintiff had a "severe impairment with mood disturbance, depression, and anxiety." ( Id. ) He diagnosed postlaminectomy syndrome of cervical region, neck pain, degeneration of lumbosacral intervertebral disc, chronic pain syndrome, mood disorder NOS, opioid dependence, and depression with anxiety. ( Id. at 457.) Dr. Falco recommended a cervical spine MRI to determine the current condition of her neck. ( Id. at 454, 457.)

On June 30, 2009, plaintiff returned to DNG for another follow-up visit. ( Id. at 429.) She complained of pain "in the trapezius and down the thoracic spine." ( Id. ) She claimed the PT provided no improvement, and the pain was now worse in the morning, and increased with lifting. ( Id. ) Plaintiff advised of the examination by Dr. Falco and the upcoming MRI.[4] ( Id. ) Plaintiff reported taking multiple pain medications, and not working. ( Id. )

On July 6, 2009, plaintiff returned to Dr. Falco, who prescribed several pain medications, including Naproxen, Norco, [5] and Zanaflex. (D.I. 14 at 458-59.) On August 13, 2009, Dr. Falco performed posterior cervical facet joint nerve blocks ("nerve blocks"). ( Id. at 462-63.) At a follow-up visit with Dr. Falco on September 14, 2009, plaintiff related the nerve blocks provided 100% pain relief for six hours, but no relief thereafter. ( Id. at 464.) She also stated her pain medication was "working well." ( Id. ) On October 29, 2009, plaintiff underwent additional nerve blocks from Dr. Falco, and he scheduled her for a C4-C7 PE radiofrequency ablation ("RF ablation"), which was performed on November 25, 2009. ( Id. at 468-69, 471, 473.)

After her health insurance coverage expired in November 2009 and Dr. Falco subsequently discontinued his care, plaintiff did not seek further medical treatment until February 1, 2010, when she saw Dr. Castro. ( Id. at 283-84.) Plaintiff advised of experiencing severe pain since the RF ablation, and having no prescribed pain medications. ( Id. at 283.) She advised she obtained pain medications from her sister. ( Id. ) Dr. Castro prescribed Naproxen, Neurontin, [6] Norco, and Zanaflex. ( Id. ) At this time, Dr. Castro reported plaintiff was working part-time at Kohl's. ( Id. )

On March 1, 2010, plaintiff complained of depression to Dr. Castro, and was prescribed Lexapro as a result. ( Id. at 284, 546.) Beginning with this visit, Dr. Castro's records listed plaintiff as "unemployed."[7] ( Id. at 284-88, 290-91, 390-95.) On April 1, 2010, plaintiff informed Dr. Castro that she felt her "nerves [were] on edge" and she tended to "fl[y] off the handle." ( Id. at 285.) She also told Dr. Castro of previously receiving four steroid injections, which provided no pain relief. ( Id. ) Dr. Castro diagnosed anxiety state unspecified, and advised her to see a psychiatrist.[8] ( Id. )

On May 7, 2010, Dr. Castro referred plaintiff to Grossinger Neuropain Specialists ("GNS"). ( Id. at 271-72.) Plaintiff related to GNS that she had muscle spasms, which were helped by Zanaflex, which caused tiredness. ( Id. at 271.) GNS diagnosed chronic cervical and thoracic strain with myofascial pain, and possible fibromyalgia. ( Id. at 272.) Mobic was prescribed in place of Naproxen, along with Diazepam, a muscle relaxant. ( Id. )

On July 16, 2010, plaintiff began PT at Pro Physical Therapy. ( Id. at 292.) The physical therapist reported her condition was "consistent with posterior disc derangement[, ]" and "significant cervical [and] scapular weakness and scapular dyskinesia." ( Id. ) Plaintiff advised pain was worst in the morning, [9] and exacerbated by sitting, lying on her side, and lifting. ( Id. ) During visits to Dr. Castro between September 9, 2010 and November 8, 2010, plaintiff complained of constant neck pain, numbness in the arms, shoulder pain, stiffness in the right shoulder, and pain in both knees. ( Id. at 390-92.) Her knee pain began in mid-2009. ( See id. at 568, 597.)

On November 5, 2010, at a follow-up visit with GNS, plaintiff claimed Zanaflex was ineffective. ( Id. at 315.) GNS diagnosed trigger points in the lower cervical paravertebral and upper thoracic paravertebral region, and administered lidocaine injections at those trigger points. ( Id. ) On November 22, 2010, plaintiff began PT for her knees at Dynamic Physical Therapy. ( Id. at 568-98.) After completion of this PT on January 31, 2011, plaintiff claimed her knee pain was reduced by 50%, but she still experienced pain climbing and descending steps, mainly late in the day. ( Id. at 597.) On January 24, 2011, plaintiff returned to GNS, and more trigger points were located in her lower cervical paravertebral and upper thoracic paravertebral region. ( Id. at 507.) During this visit, Hydromorphone in place of Norco, [10] and a long-acting analgesic, Kadian, were prescribed. (D.I. 14 at 507.)

On July 7, 2011, plaintiff returned to GNS. ( Id. at 505.) She reported working two hours per day as a bus driver for the University of Delaware. ( Id. ) Plaintiff, however, could not tolerate the job due to pain, which caused her to be "emotionally drained." ( Id. ) She further advised the pain was unchanged since her last visit, and the intensity of her cervical spine pain ranged between 6/10 and 8/10. ( Id. ) GNS observed tenderness on palpation in the cervical spine, cervical paraspinous muscles, right subscapular area, lumbar spine, and lumbar paraspinal facet areas, as well as decreased range of motion in the cervical area and lumbar spine. ( Id. ) Plaintiff agreed to undergo cervical facet injections from C4 to C7 every other week at GNS, and received initial injections on August 4, 2011. ( Id. at 496-97, 505.) Upon returning for the second cervical facet injections on August 18, 2011, she advised the first round provided no relief. ( Id. at 489-90, 492.) The second set of injections were administered as scheduled. ( Id. at 489-90.) During a visit to Dr. Castro on October 24, 2011, plaintiff claimed the injections increased her pain. ( Id. at 555.) Dr. Castro's record for this visit listed plaintiff as unemployed. ( Id. )

On November 10, 2011, plaintiff returned to GNS, complaining of "central neck pain with radiation into the shoulders and arms and down into the thoracic region with numbness and tingling." ( Id. at 487.) Upon examination, "spasm and tenderness in her cervical region" and scarring from the 2009 surgery were noted. ( Id. ) GNS diagnosed failed surgical neck syndrome status post a C5-C6 disc replacement and cervical facet syndrome. ( Id. ) Her medications included Diazepam, Kadian, Hydromorphone, and Zanaflex. ( Id. ) Plaintiff was also using a TENS unit and massage.[11] ( Id. ) She was prescribed Lyrica in addition to the other medications, and was scheduled for a consultation for placement of a temporary spinal cord stimulator. ( Id. ) GNS determined her disability precluded gainful employment, and noted she was applying for social security disability. ( Id. )

On February 2, 2012, plaintiff returned to Dynamic Physical Therapy for PT of her shoulders. ( Id. at 639.) She was unable to reach above shoulder level, which required dressing with assistance. ( Id. ) She also complained of numbness in the upper extremities, mainly at night when lying on her side. ( Id. ) Most measurements initially taken for shoulder and joint movement were below normal range. ( Id. at 639-40.) On February 21, 2012, plaintiff underwent an EMG at GNS, which revealed moderate bilateral C6 radiculopathy. ( Id. at 676-77.) In its report to Dr. Castro, GNS explained the radiculopathy "correlates with her focal neurological deficits." ( Id. ) GNS also stated plaintiff was "totally and permanently disabled from gainful employment." ( Id. at 677.)

On February 21, 2012, GNS completed a Physical Residual Functional Capacity Questionnaire ("questionnaire") on plaintiff. ( Id. at 683-88.) The questionnaire reported her pain intensity as 8/10, and her impairments were expected to last 12 or more months and were consistent with her symptoms and limitations, with no evidence of malingering. ( Id. at 683-84.) GNS concluded plaintiff was "capable of low stress jobs" based on her symptoms and limitations, [12] and due to her impairments, she would, on average, miss more than four days of work per month. ( Id. at 684-87.)

B. Hearing Testimony

1. Plaintiff's Testimony

At the April 10, 2012 hearing, plaintiff testified about her background, injury, pain, and treatments. ( Id. at 21, 27-54.) She is divorced, has no children under 18 living with her, has a high school diploma, is able to read, write, and do simple math, and has a commercial driver's license. ( Id. at 28-29.) Her past employment included jobs as a school bus driver, tag scanner, certified nursing assistant, auditor, customer service operator, payment collector, and sign language interpreter. ( Id. at 30-33.) Except for the certified nursing assistant position, none of the jobs required heavy lifting. ( Id. ) The tag scanner job required standing; the auditor work required both sitting and standing; and the customer service operator, payment collector, and sign language interpreter positions required mostly sitting. ( Id. )

She stopped working on June 30, 2009 as a tag scanner because it required working consecutive days, which was too painful.[13] ( Id. at 34.) She currently receives financial assistance from her family, as well as a $125 monthly pension from her former husband.[14] ( Id. at 35.) Plaintiff filed for Social Security disability in February 2010 because she was unable to maintain employment despite multiple attempts to do so. ( Id. at 35-36.)

Her primary impediments to employment are physical. ( Id. at 36.) Her only surgery occurred in 2009, and did not resolve her problems. ( Id. ) After the surgery, she underwent numerous sessions of PT and multiple neck injections. ( Id. at 36-37.) The current treatment for her neck is through GNS, and she receives cervical injections and pain medications. ( Id. at 37.) Her ...

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