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Mosley v. Astrue

United States District Court, D. Delaware

June 23, 2015

VIVIAN MOSLEY, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

MEMORANDUM

GREGORY M. SLEET, District Judge.

I. INTRODUCTION

On October 13, 2011, the plaintiff Vivian Mosley ("Mosley") filed this action against the defendant Michael J. Astrue, Commissioner of Social Security ("Astrue" or "the Commissioner"), [1] for review of the final decision denying her disability insurance benefits ("DIB") and supplemental security income ("SSI") application under title II and XVI of the Social Security Act. (D.I. 20 at 2; D.I. 26 at 5.) Mosley brought this civil action under 42 U.S.C. § 405(g) as incorporated by 42 U.S.C. § 1383(c)(3). (D.I. 20 at 2.)

Mosley initially applied for disability and disability insurance benefits on March 6, 2008. (D.I. 13 at 88-103.) Mosley's claims were denied initially and on reconsideration. Subsequently, Mosley filed a request to have a hearing before an Administrative Law Judge ("ALJ"). (D.I. 13 at 59-60.) Mosley appeared and testified before the ALJ, Melvin D. Benitz, on May 28, 2009. ( Id. at 34-41.) On July 10, 2009, the ALJ issued an unfavorable decision against Mosley. ( Id. at 8-18.) The Appeals Council denied review on September 1, 2010, and the ALJ's determination became final. 20 C.F.R. §§404.955, 404.981, 416.1455, 416.1481 (2012); Sims v. Apfel, 530 U.S. 103, 107 (2000); Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001); (D.I. 13 at 1-4.)

Presently before the court are Mosley's motion for summary judgment and the Commissioner's cross-motion for summary judgment. For the reasons that follow, the court will deny Mosley's motion and grant the Commissioner's cross-motion. The court will affirm the decisions of the ALJ and the Appeals Council. The court's reasoning follows.

II. BACKGROUND

At the time of her hearing, Mosley was a forty-two year old mother with a high school education through the eleventh grade. (D.I. 13 at 88, 121-22.) Prior to her injury, Mosley worked as a construction laborer/flagger. ( Id. at 125.) On July 23, 2004, Mosley experienced a sharp pain in her lower back while helping a coworker lift a heavy generator. ( Id. at 201.) Mosley was able to finish her day at work after the pain subsided but she began to feel increased back pain in the days following the incident. ( Id. at 201.) Mosley frequently visited doctors for pain related treatment. ( Id. at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444, 445, 447, 449, 455, 461, 463, 467, 469, 472, 477, 479, 482, 484, 487, 489, 552-53, 581, 649, 664-66.) In spite of her ongoing back pain, Mosley was able to attend church services, walk for exercise, perform some housework, shop a couple times per week, prepare simple meals, watch television, and help raise a grandchild. ( Id. at 28, 33, 133-35, 549.)

A. Mosley's Medical Records

Mosley submitted medical records in support of her DIB and SSI applications. These medical records document the treatment of her lower back injury and are outlined below.

1. Relevant Medical Evidence

As noted, on July 23, 2004, Mosley was injured while helping a coworker lift a generator. (D.I. 13 at 201.) Three days after the incident, on July 26, 2004, Mosley visited her employer's worker compensation carrier's physician, Vaneeta Kubal, M.D. ( Id. ) Dr. Kubal diagnosed Mosley with a lumbar strain and planned to place Mosley on a modified work program. ( Id. ) On July 30, 2004, a week after the incident, Mosley visited her general practitioner Jui-Chih Hsu, M.D. ( Id. at 206.) Dr. Hsu similarly diagnosed Mosley as having suffered a lumbar sprain. ( Id. at 158, 206.) In his examination the straight-leg test was positive, but the remainder of the exam produced normal results. ( Id. at 206.) On August 12, 2004, Mosley received an MRI which showed a small central disc herniation at L5-S1 with mild bilateral neural foraminal narrowing more prominent on the left. ( Id. at 192.) Mosley was cleared to return to work, with restrictions, during an August 16, 2004, visit to Dr. Hsu. ( Id. at 191.) On September 9, 2004, Mosley received a physical therapy evaluation by Mr. Patrick W. Stauffer. ( Id. at 183.) Mr. Stauffer noted Mosley was making good progress and that her pain had decreased to zero while resting and two on a ten point scale while active. ( Id. at 184.) Mosley received a second MRI on September 22, 2004, which showed a small disc protrusion at T8-9. The remainder of the exam was unremarkable. ( Id. at 178.)

Mosley continued to visit doctors for her pain issues despite multiple diagnoses of normal and recovered health. ( Id. at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444, 445, 447, 449, 455, 461, 463, 467, 469, 472, 477, 479, 482, 484, 487, 489, 552-53, 581, 649, 664-66.) Mosley had approximately one hundred medical appointments between July 30, 2004 and April 22, 2010. (D.I. 27 at 2.) At these appointments she was often prescribed pain killers or given lumbar epidural injections. (D.I. 13 at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444, 445, 447, 449, 455, 461, 463, 467, 469, 472, 477, 479, 482, 484, 487, 489, 552-53, 581, 649, 664-66.) Dr. Kim, M.D. at the Mid-Atlantic Spine, treated Mosley multiple times for her back pain. On October 11, 2004, Mosley requested Dr. Kim's office complete forms documenting her disability for the Department of Social Services. ( Id. at 343, 359-60.) Dr. Kim's office denied Mosley's request and questioned whether Mosley was motivated by a secondary gain. ( Id. )

From 2005 to 2009 Mosley maintained regular monthly visits with Dr. Kim and one of his associates, Lee Irwin, M.D. Physical exams showed no muscle atrophy and a normal gait, however, Drs. Kim and Irwin continued to maintain and manage Mosley's medications and administer nerve blocks. ( Id. at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444, 445, 447, 449, 455, 461, 463, 467, 469, 472, 477, 479, 482, 484, 487, 489, 552-53, 581, 649, 664-66.) Dr. Irwin commented in his examination notes, on multiple occasions, that Mosley received good pain relief from treatment and saw no visible signs of swelling. ( Id. at 552-637.) Additionally, Dr. Irwin noted Mosley had good memory and concentration. ( Id. )

Mosley was later examined by David Stephens, M.D. for an evaluation requested by her attorney. ( Id. at 427-30.) In this physical examination Dr. Stephens determined Mosley had healed from a lumbar strain. ( Id. at 429.) In Dr. Stephens's opinion Mosley could have worked in light duty capacity from the time of her injury until October 18, 2004, and thereafter returned to full-time medium work without restrictions. ( Id. at 430-31.) Dr. Stephens performed a follow-up exam on Mosley in June 2005. ( Id. at 386-91.) This exam showed Mosley had a normal stance and gait. ( Id. at 387.) Dr. Stephens believed Mosley could return to full-time light duty work. ( Id. at 388, 390.) In October 2007, Mosley asked Dr. Irwin to switch her pain medication because she was applying for jobs and did not want the medication to come up on a urine test. ( Id. at 459.) In 2008, multiple doctors determined Mosley's condition was normal and that she could perform full-time light duty work. ( Id. at 444.) In 2009, during Mosley's monthly visits to Dr. Irwin her strength, muscle tone, and gait remained normal even though Mosley continued to complain of pain. ( Id. at 680, 683, 686, 689, 733, 736, 742, 745.)

2. Medical Evidence Post ALJ Decision

As a result of Mosley's continued complaints, Dr. Irwin suggested Mosley try a spinal cord stimulator for pain relief. ( Id. at 700, 718-19.) The spinal cord stimulator produced seventy percent back pain relief. ( Id. at 715.) Subsequently, Mosley elected to have a stimulator permanently implanted. ( Id. ) The stimulator was implanted on April 22, 2010. ( Id. at 706-07.)

B. Hearing Testimony

1. Mosley's Testimony

Mosley testified she last worked in July 2004. (D.I. 13 at 23.) She testified she experienced a lower back injury while working at Guardian Construction. ( Id. ) Mosley further testified she had been working construction as a flagger for twelve years. ( Id. at 23-24.) Mosley testified she was receiving injections, nerve ablations, narcotics, and therapy for her lower back injury. ( Id. at 24.) Mosley claimed to have chronic pain all day with significant swelling coupled with the left side of her body giving out occasionally or locking up. ( Id. at 24-25, 30.) Mosley testified that she takes pain medication to alleviate her pain, but that the pain medication does not completely alleviate her pain and the medication makes her groggy. ( Id. ) Mosley also asserted that she can only sit for twenty to thirty minutes, stand for forty-five minutes, and lift ten to twenty pounds without pain. ( Id. at 26, 35.) Mosley stated she cannot work due to constant pain and grogginess. ( Id. at 27.) Mosley testified to exercising at least two days a week, performing light household chores ( e.g., dishes, sweeping, and meal preparation), and attending church weekly. ( Id. at 25, 28, 33.) In addition, Mosley testified that she spends her days watching television, reading, or sleeping. ( Id. at 28.)

2. Vocational Expert's Testimony

An independent vocational expert ("VE") testified Mosley could return to light duty work. (D.I. 13 at 36.) The VE testified that a person with Mosley's characteristics could perform sedentary work as a security monitor and that there are about 275 security monitor positions within a seventy-five mile radius of Mosley's location. ( Id. ) In addition, the VE testified a person with Mosley's characteristics could also perform work as an envelope addresser/stuffer or information clerk. ( Id. ) There are approximately 475 envelope stuffer positions and 400 information clerk positions locally. ( Id. ) The VE testified that all of the above positions are sedentary and unskilled and available in the national economy. ( Id. ) Further, the VE testified that the individual with Mosley's ...


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