Avila v. Astrue
| Decision Date | 15 November 2012 |
| Docket Number | CAUSE NO: 2:11-cv-400 |
| Parties | DEBRA L. AVILA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on the petition for judicial review of the decision of the Commissioner of Social Security filed by the claimant, Debra L. Avila, on November 1, 2011. For the reasons set forth below, the decision of the Commissioner is AFFIRMED.
The claimant, Debra L. Avila, applied for Disability Insurance Benefits on February 5, 2008, alleging a disability onset date of December 14, 2006. (Tr. 212-216) Her claim initially was denied on March 26, 2008, and again denied upon reconsideration on May 13, 2008. (Tr. 137-38) Avila requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 154) A hearing before ALJ Marlene R. Abrams was held on July 13, 2010, at which Avila, medical expert Dr. Hilda Martin, and vocational expert Leonard M. Fisher testified. (Tr. 20, 36)
On August 27, 2010, the ALJ issued her decision denying benefits. (Tr. 30) The ALJ found that Avila was not under a disability within the meaning of the Social Security Act from December 14, 2006, through to the date the ALJ issued her decision. (Tr. 29) Following a denial of Avila's request for review by the Appeals Council, she requested an extension of time within which to file a civil action, which was granted. (Tr. 1) Avila filed her timely complaint with this court on November 1, 2011.
Avila was born on July 19, 1960, making her 50 years old on the date of the ALJ's decision. (Tr. 30, 45). She was 5'1" tall and weighed approximately 179 pounds. (Tr. 46, 400) Avila was married and, at the time of the ALJ's decision, resided with her husband, adult son, and two minor grandsons.1 (Tr. 64, 66) She graduated from high school and completed two years of college as well as various vocational training courses. (Tr. 46)
Avila was last employed in December 2006 as an administrative assistant with the Evangelical Lutheran Church, Inc. (Tr. 48) Avila held this position for approximately seven months prior to quitting because she "could not [sic] longer stand the pain." (Tr. 60) From approximately 1999 to 2004, Avila was employed as an executive administrative assistant for United Methodist, and she then worked as a temporary assistant at Tri-State Metal for three months prior to working for the Lutheran Church. (Tr. 49, 57)
Avila's diagnoses included chronic low back pain; mild sweeping dextroscoliosis to the lumbosacral and lower thoracic spine curvature; lumbar degenerative disc disease; severe disc degeneration; and facet joint arthoropathy, mild disc space narrowing; and left paracentral disc herniation, all at the L5-S1 level. (Tr. 296, 317, 332, 348, 358, 379, 388)
Avila saw her long time treating physician, Kurt J. Giricz, D.O., in September and October 2007 with a cough and congestion and complained of a headache and body aches. (Tr. 321, 323, 324) Dr. Giricz made a diagnosis of bronchitis with a viral upper respiratory infection. (Tr. 321, 323)
On November 17, 2007, Avila returned to Dr. Giricz with complaints of low back pain "on and off for about a year," which she treated with Advil, an over-the-counter medication. (Tr. 319, 320) Avila stated that the pain radiated into her buttocks bilaterally but "not into the thigh or below the knee, or into the calf area." (Tr. 319) Dr. Giricz determined Avila suffered from lumbosacral strain and degenerative arthritis of the lumbar spine. Dr. Giricz prescribed 500mg of Relafen twice daily for ten (10) days and ordered an x-ray of the lumbosacral spine. (Tr. 319) Avila's November 19, 2007 lumbar spine x-ray revealed "mildsweeping dextroscoliosis to the lumbosacral and visualized lower thoracic spine curvature"; disk space narrowing at L5-S1; and mild posterior facet joint arthritic changes bilaterally at L5-S1 level. (Tr. 325)
Avila saw Dr. Giricz again on December 1, 2007 for a follow-up consultation after her November 19, 2007 x-rays, during which Dr. Giricz discussed treatment options. Avila declined to initiate injection procedures, but she agreed to begin physical therapy as prescribed by Dr. Giricz. Avila told Dr. Giricz that she received no relief from the Relafen and took Tylenol PM at night for her symptoms. (Tr. 317)
On December 4, 2007, Avila was evaluated by Mark Stern, P.T., Certified M.D.T. (Tr. 299) Avila complained of pain in the central L5-S1 region and upper gluteal pain on the right. Avila stated that she had low back pain for about a year, with an increase in pain over the last month. (Tr. 299) Stern's evaluation showed Avila had no myotomal pattern of weakness; was negative for dural signs; demonstrated a minimal loss of extension with all other movement within functional limits; and had a decrease in posterior/anterior mobility of lumbar segments 3, 4, and 5. Stern's assessment stated that Avila's impairments included decreased spinal range of motion, decreased segmental mobility, tenderness to palpation, and pain. (Tr. 300) Stern concluded thatAvila's impairments caused functional limitations of decreased tolerance for instrumental activities of daily living and a "decreased ability to tolerate extended periods of community entry activities or any activity in a sustained position;" however, Stern placed no restrictions on Avila's activities. (Tr. 300, 331)
Avila was seen six times for outpatient physical therapy treatment from December 6, 2007 to January 3, 2008. (Tr. 305, 307) She reported "improvement in pain" at her December 20, 2007 therapy session, and "less pain" on January 3, 2008. (Tr. 300-307) Avila did not return to therapy after January 3, 2008, and she was discharged on February 6, 2008. (Tr. 307)
On February 4, 2008, Avila returned to Dr. Giricz with complaints of occasional discomfort and pain in the lumbosacral area that stopped at the right buttock. Avila stated that her pain endured for a "relatively short period of time" and generally was resolved by the next day after treating it with Tylenol PM. (Tr. 315) Avila assessed her pain at a 1 on a scale of 1 to 5 on that date.
On March 25, 2008, state agency physician Dr. B. Whitley, M.D., completed Avila's Physical Residual Functional Capacity Assessment pursuant to his review of evidence as provided by the Social Security Administration. (Tr. 332-340) Dr. Whitley'sassessment concluded that Avila could lift and/or carry 20 pounds occasionally; could lift and/or carry 10 pounds frequently; could stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday; and could push and/or pull with no restrictions other than as shown for lift and/or carry. (Tr. 333) Dr. Whitley's report further established that Avila could climb ramps and stairs frequently, that she never could use ladders, ropes, or scaffolds, that she had no manipulative, visual, or communicative limitations, but that she should avoid hazards such as machinery or heights. (Tr. 334-336) Dr. Whitley determined that Avila's contentions regarding the nature of her impairments and limitations were supported within the medical and other evidence in the file. However, her contentions regarding the severity of her symptoms and the related functional restrictions were not supported. (Tr. 337)
In support of his conclusions, Dr. Whitley's report described Avila's medical conditions and limitations as follows: Lumbar facet arthropathy with pain in the lower right back that did not extend below the right buttock; no pattern of weakness; +2 sensation and deep tendon reflexes; negative for dural signs; some decrease of range of motion of L-spine; and pain which was relieved with medication. (Tr. 333). Dr. Whitley's Physical Residual Functional Capacity Assessment form was affirmed by Dr.Fernando R. Montoya, M.D., on May 8, 2008, who noted that light RFC seemed appropriate. (Tr. 340)
On April 28, 2008, Dr. Giricz examined Avila and found that her area of pain was about 15-20 cm in diameter in the lumbar area and paraspinal lumbar musculature and was mainly in the right lumbosacral joint at L5-S1. (Tr. 354) Dr. Giricz noted that Avila was sent to physical therapy without success; was unable to sit for lengthy periods of time; had to get up or lie down a couple of times a day; and was limited in her activities. Dr. Giricz referred Avila to Dr. Ravi Kanakamedala for a pain management consultation with a plan to return to his office for follow-up and treatment. (Tr. 354) On the same date, Dr. Giricz completed a Medical Assessment of Ability To Do Work-Related Activities and concluded that, during an eight-hour work day, Avila could lift less than five pounds; could stand for less than one hour and sit for less than 30 minutes; required two periods of rest (under 30 minutes) in a reclined position; never could climb, balance, stoop, crouch, kneel, or crawl; and was restricted by pain from pushing/pulling. Dr. Giricz's report further established that Avila had to avoid heights and moving machinery and indicated that Avila experienced pain with long periods of sitting, had failed at physical therapy attempts, and was unable to pursue gainful employment. (Tr. 342-345)
On January 24, 2009, Avila returned to Dr. Giricz for evaluation of her persistent, chronic low back pain. Dr. Giricz noted that Avila was taking over-the-counter, non-steroidal antiinflammatory drugs without much benefit. He prescribed Relafen, 500 mg twice a day, and recommended pain management consultation for an injection procedure for her facet arthropathy.
On January 29, 2009, Dr. Kanakamedala examined Avila and administered diagnostic medial branch blocks of bilateral L3, L4, and L5 under fluoroscopy. (Tr. 377-380) Dr. Kanakamedala's physical examination revealed tenderness upon palpation at L4-L5, facet joint tenderness at L4-L5 and L5-S1 bilaterally, and pain upon extension and rotation bilaterally, with painful...
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