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Shivock v. Colvin

United States District Court, D. Delaware

July 31, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


GREGORY M. SLEET, District Judge.


The plaintiff Robin Kim Shivock ("Shivock") filed this action against defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), on May 6, 2013. (D.I. 2.) Shivock seeks review of the Commissioner's final decision denying her applications for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), and supplemental security income ("SSI") under Title XVI. (D.I. 11 at 89-92.) Shivock's claims were denied initially on January 12, 2010, and then again on reconsideration on September 10, 2010. ( Id. ). Shivock requested a hearing before an administrative law judge ("ALJ"), which was held on July 28, 2011. ( Id. at 42-88.) The ALJ issued a decision on August 17, 2011, finding that Shivock was not disabled under the Act. ( Id. at 25-37.) The Appeals Council denied Shivock's request for review, and the Commissioner affirmed the ALJ's decision on December 7, 2012. ( Id. at 1-3.) Presently before the court are the parties' cross-motions for summary judgment. For the reasons that follow, the court will grant the Commissioner's motion (D.I. 18.) and deny Shivock's motion. (D.I. 15.)


Shivock contends that she has been unable to work since October 1, 2007, primarily due to degenerative disc disease and herniations in the cervical spine. (D.I. 11 at 56). She also suffers from fibromyalgia, spinal endometriosis, tarsal tunnel, and Hepatitis B. ( Id. at 188.) Shivock claims that the pain from these ailments impairs her ability to work and that her suffering makes her depressed, anxious, and unable to maintain focus. ( Id. at 56, 58, 307.) Shivock was forty-seven years old when she filed her application in 2008. ( Id. at 35.) She has a high school education with one year of undergraduate study, and is able to communicate in English. ( Id. ) Her conditions began when she was in a work-related accident on April 12, 2002, and an auto accident less than a month later exacerbated her symptoms. ( Id. at 30.) Shivock has undergone two neck surgeries as a result of the accidents. ( Id. at 51.)

A. Medical History

1. Mental Impairments

Shivock alleges that she has mental disabilities that impair her ability to work. Shivock claims that her chronic pain "affect[s her] ability to focus" and makes her forgetful. (D.I. 11 at 56.) The side effects from her medication also make her tired. ( Id. at 58.) Shivock also claims that she suffers from anxiety and depression and that her memory is "not what it used to be." ( Id. at 50, 70, 307.)

During the relevant time period, Shivock was not treated by a mental health doctor but was prescribed Xanex for her anxiety by her primary care physician, Dr. Anna Marie Sullivan. ( Id. at 70.) After initially denying her claim for DBI/SSI, the Social Security Administration ("SSA") requested that Shivock see Dr. Jodi L. French, a licensed psychologist, on November 24, 2009, for a consultative mental status evaluation. ( Id. at 303.) Dr. French found that Shivock had mild anxiety and depression, but no evidence of dementia. ( Id. at 308.) Dr. French concluded that Shivock's mild anxiety symptoms - frustration and worrying - could mildly interfere with her ability to cope with difficult and stressful interpersonal interactions. ( Id. ) Dr. French assigned Shivock a Global Assessment of Functioning ("GAF") score of 65.[1] ( Id. )

On January 12, 2010, Dr. D. Peterson, a state agency medical consultant, examined Shivock. ( Id. at 328-41.) In his Psychiatric Review Technique, Dr. Peterson concluded that Shivock showed mixed anxiety and depressed features, but that her condition was not severe. ( Id. at 340.) He found that her functional limitations in daily activities, social functioning, and maintaining concentration, persistence, or pace were mild. ( Id. at 338.) In another Psychiatric Review Technique performed on September 9, 2010, Dr. P.H. Woods, a second state agency medical consultant, affirmed Dr. Peterson's findings and noted that Shivock had the mental capacity to perform simple, work-related tasks. ( Id. at 356-69.) Both doctors noted that, despite Shivock's alleged memory problems, their examinations did not reveal cognitive difficulties. ( Id. at 329, 357.)

2. Physical Impairments

Shivock was injured at work on April 12, 2002, and was involved in an auto accident one month later, resulting in ongoing neck pain. ( Id. at 30.) Shivock sought treatment from Dr. Bruce Rudin on November 14, 2007, for neck discomfort and weakness in her upper extremities. ( Id. at 235.) Dr. Rudin, however, found only some degenerative changes. ( Id. ) Shivock underwent surgery on January 7, 2008, for posterolateral fusion of her cervical spine after a CT scan revealed a possible non-union at the C6-7 vertebra. ( Id. at 236.) At her follow-up appointment, Shivock reported sixty-five to seventy percent improvement in her neck pain, and she had full motor strength in her upper extremities. ( Id. at 237.) A cervical spine X-ray revealed that her "surgical hardware" was in a good position. ( Id. )

Dr. Rudin ordered another CT of Shivock's cervical spine on March 12, 2008, after she reported renewed pain. ( Id. at 239.) Shivock's CT scan revealed good positioning of the posterior instrumentation. ( Id. ) Further examination showed that Shivock had full motor strength in the upper and lower extremities, intact and symmetrical reflexes, and negative Hoffman's and clonus examinations. ( Id. at 241.) On July 2, 2008, an x-ray of Shivock's cervical spine showed a "solidly healed" anterior column. ( Id. at 242.)

Shivock again sought treatment from Dr. Rudin on August 4, 2008, this time with complaints of daily mild "low" back pain. ( Id. at 243.) An MRI showed "effectively normal" images. ( Id. at 244.) Dr. Rudin reported that he was "very comfortable" saying that there was no spinal etiology and that the most likely problem was fibromyalgia. ( Id. )

Dr. Sullivan completed a medical report form on March 26, 2009. ( Id. at 299-302.) The questionnaire stated that Shivock could never sit, stand, walk, climb, bend, squat, reach or crawl; could lift less than ten pounds; and had no fine motor or hand manipulation limitations. ( Id. at 300.) Dr. Sullivan also noted that Shivock had moderate restrictions of activities of daily living and moderate difficulty in maintaining social functioning. ( Id. at 301.) She also said that Shivock "often" had difficulties in maintaining concentration, persistence, or pace, and had "continual" episodes of decompensation, each of extended duration. ( Id. )

Dr. Sullivan ordered another MRI on November 4, 2009. ( Id. at 375.) The scan revealed "minimal degenerative changes of bilateral hip joints, " and the rest of the pelvis and hips were "radiographically unremarkable." ( Id. ) On December 8, 2009, Dr. Sullivan's completed a Residual Functional Capacity ("RFC") questionnaire, in which she stated that Shivock could walk zero blocks, could sit or stand for less than two hours in an eight-hour day, and needed to alternate between sitting and standing. ( Id. at 314-15.) Dr. Sullivan also indicated that Shivock could never lift or carry less than ten pounds and that she could never look down, look up, or turn her head from side to side. ( Id. at 315.)

The state requested a consultative examination by Dr. Douglas Wright on July 29, 2009. ( Id. at 346-47.) Dr. Wright found that Shivock walked with a normal gait, had full motor strength in her upper and lower extremities, had no significant limitation in her ability to rotate her head during a range of motion ("ROM") examination, had full grip strength, and showed a negative straight-leg raising test. ( Id. ) Dr. Edgar Folk, another agency consultant, performed an additional examination on December 16, 2009. ( Id. at 317-19.) Dr. Folk found that the tenderness reported by Shivock was indicative of fibromyalgia but found no edema, clubbing, or cyanosis. ( Id. at 318.) Dr. Folk also noted good pulses in Shivock's extremities. ( Id. )

By request, Dr. A. Serpick, a state-agency medical consultant, completed an RFC assessment form on December 30, 2009. Dr. Serpick opined that Shivock could occasionally lift twenty pounds, frequently lift ten pounds, sit for six hours in an eight-hour workday, stand or walk for at least two hours in an eight-hour workday, and push/pull an unlimited amount. ( Id. at 321.) Dr. P.H. Moore, another state agency physician, completed an RFC assessment on August 17, 2010, that found the same limitations for Shivock as Dr. Serpick did. ( Id. ...

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