Conejo v. Berryhill
| Decision Date | 04 May 2017 |
| Docket Number | Case No. 2:14-cv-01557-MMD-PAL |
| Parties | ZEIDY M. PONCE CONEJO, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Nevada |
(Cross-Mot. to Affirm - ECF No. 21)
This matter involves Plaintiff Zeidy M. Ponce Conejo's appeal and request for judicial review of the Acting Commissioner of Social Security, Defendant Nancy A. Berryhill's final decision denying her claim for disability insurance benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-33.
Plaintiff Zeidy M. Ponce Conejo ("Conejo") filed an application for disability benefits on December 30, 2010, alleging onset of disability on July 20, 2010, the last day she worked as a medical aesthetician. AR 10, 45, 169.2 She was 38 years old when she applied. AR 31. In her application, Ms. Conejo claimed she was unable to work because of cervical fusion, a titaniumdisc in her neck, pain in her left arm, constant pain in her spine, and depression. AR 168. A motor vehicle accident in March 2008 caused her to undergo a cervical fusion and plate placement in 2009. AR 15. A second accident in February 2010 necessitated a second and third cervical surgery in August 2010 and November 2011. AR 19-20. Conejo alleged she became disabled and stopped working shortly before the second surgery. AR 168. The Social Security Administration (the "Agency") denied her application initially and on reconsideration. AR 86-89; 95-97.
An administrative law judge ("ALJ") held a hearing on May 9, 2013, where Ms. Conejo appeared with counsel. AR 40-60. The ALJ accepted testimony from Conejo, AR 42-57, and a vocational expert, AR 57-60. During the hearing, counsel asserted that Conejo was disabled based on her back pain, cervical fusion, depression, and a recently diagnosed seizure disorder. AR 43. In a decision dated June 12, 2013, the ALJ found that she was not disabled. AR 10-33. The ALJ found that, despite her allegations of debilitating pain, Conejo's testimony revealed no restrictions in her daily activity and the medical records cast doubt on the severity of her symptoms.
Ms. Conejo requested review of the ALJ's decision by the Appeals Council, but the ALJ's decision became final when the Appeals Council denied review on August 5, 2014. AR 1-5. On September 23, 2014, she filed Complaint (ECF No. 1) in federal court, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). The Commissioner filed her Answer (ECF No. 14) on March 3, 2015. Conejo filed a Motion to Remand (ECF No. 18), and the Commissioner filed a Response and Cross-Motion to Affirm (ECF Nos. 21, 22). The court has considered the Motion, the Response and Cross-Motion, and the Reply (ECF No. 23).
In March 2008, Ms. Conejo was involved in a motor vehicle accident. AR 305-08. According to Mary Angela Thomas, M.D., an EMG/nerve conduction study of her upper extremities in June 2009 revealed essentially normal findings and no findings suggestive of C6-7 radiculopathy, despite a "slightly decreased ulnar motor nerve amplitude on the left." AR 248-49. However, she failed conservative care of her neck pain with radiculopathy, including chiropractic treatment, medication, nerve root blocks, and injections. AR 241-65 (medical recordsfrom Dr. Thomas); AR 562-64 (medical records from John B. Siegler, M.D.). Her injuries led to a cervical spinal surgery (fusion of C6-7 with decompression and reconstruction), which was performed by orthopedic surgeon, Mark Kabins, M.D., in August 2009. AR 17, 266-95. Conejo testified at the administrative hearing that she never felt well after the surgery and continued to experience neck pain, but she worked through the pain in order to pay bills. AR 48.
In February 2010, Ms. Conejo was involved in a second auto accident. AR 299-304. She presented to the St. Rose Dominican Hospital emergency room the following day reporting stiffness of her neck and upper back and discomfort in her right wrist. AR 299. She was ambulatory with a normal gait and denied having any numbness, weakness, or tingling, distally. AR 299. She expressed concern that the second accident may have damaged the hardware in her neck from the cervical fusion surgery. Id. She was discharged from the emergency room with prescriptions for Motrin, Percocet, and Flexeril, and told to follow up with Dr. Kabins and her primary doctor. AR 300-301. She testified that the second accident worsened her neck pain and caused headaches. AR 49-50.
In April 2010, Ms. Conejo was treated by urologist, Helen Housley, M.D., for a recurrent urinary tract infection (UTI). AR 309-12. On a review of systems, Conejo reported symptoms including joint or back pain, steroid joint injections, weakness and numbness in her extremities, and radicular pain. AR 310. However, Dr. Housley's examination revealed largely normal findings, even though the second accident occurred about six weeks prior. AR 310-11, 541-44. Conejo's spine was straight with a normal range of motion and there was no CVA or spinal tenderness to percussion. AR 310. She demonstrated a normal gait. Id. Her head was atraumatic and she was in no acute distress. AR 311. Additionally, she reported having recently traveled outside of the country to Costa Rica. AR 310.
Ms. Conejo underwent a second surgery with Dr. Kabins in August 2010. AR 50, 316. In January 2011, the surgeon noted that she had residual neck discomfort and a restricted range of neck motion. AR 380. The following month, radiographs of her cervical spine demonstrated that the instrumentation was in place, spinal alignment was well maintained, and there was no evidence of loosening, migration or failure. AR 379. Although she had residual spasms, neck pain, andheadaches, she had no new motor sensor deficits or new objective findings of abnormality. AR 378-79. Dr. Kabins deemed Conejo "neurologically stable." AR 379. Over the next few visits, Kabins stated that she had "made excellent progress," was "markedly improved from her preoperative status" overall, and she was "happy with the outcome" of the second surgery. AR 377-78.
In March 2011, Dr. Siegler, a board-certified physical medicine and rehabilitation specialist, noted that Conejo was status post a second cervical surgery with improvement of her radicular pain. AR 359. Her upper extremity strength was recorded as 5/5; however, she was still experiencing symptoms in her neck. Id. Dr. Siegler administered trigger point injections and prescribed pain medications including Oxycodone, Percocet, Zanaflex, and Lidocaine patches. AR 360.
Over the next few visits to Dr. Siegler, Ms. Conejo reported anxiety and gastrointestinal symptoms. AR 354, 356, 472, 476. She indicated that her primary doctor placed her on Zoloft and Xanax. AR 476; see also AR 370 (progress notes of Seema Sood, M.D.). Dr. Siegler adjusted her medications periodically and administered injections regularly. AR 463, 465, 467, 473, 477. Conejo's August 2011 treatment notes indicate that a plane ride flared her pain, but the medication was helping. AR 464. In September 2011, Dr. Siegler noted that she was "stable on medications," and she reported that the medications were "helpful." AR 462. However, the following month she stated that her pain seemed to be "worsening with increasing upper extremity complaints." AR 460.
Ms. Conejo also reported increasing pain, paresthesia, and dysesthesia to Dr. Kabins in September 2011. AR 490. She had decreased sensation in her fingertips and the lateral aspects of her hands and arms. Id. Radiographs indicated to Dr. Kabins that her artificial disc at C5-6 "could be inferior, keel if loose." Id. The treatment notes state that "a radiolucency around this indicative of pseudoarthrosis or loosening of the endplate to the vertebral bodies that are fixed," and Dr. Kabins believed this was likely the cause of Conejo's symptomology. Id. Based on her ongoing symptoms and failure of conservative care, Dr. Kabins referred her for a myelogram, CT scan, and further EMG testing, and he noted she may be a candidate for revision surgery at C5-6. Id.
Ms. Conejo underwent a cervical myelogram in October 2011. AR 502-03. The findings indicated that her fusion hardware appeared "intact without evidence of loosening." AR 502. There was a straightening of the normal cervical lordosis, a mild disc bulge at C3-4, and a minimal disc bulge at C4-5. Id. There was no evidence of spinal canal or neuroforaminal stenosis. Id. The EMG/nerve conduction study of her bilateral upper extremities stated impressions that there was no electrodiagnostic evidence of cervical radiculopathy, brachial plexopathy, peripheral polyneuropathy. or left upper extremity entrapment neuropathy. AR 494. After reviewing these results, Dr. Kabins concluded that Conejo was an appropriate candidate for revision surgery that would "require complete removal, revision decompression and reconstruction." AR 489.
In a letter to Ms. Conejo's insurance company, dated October 26, 2011, Dr. Kabins stated that she had an "apparent failure of the inferior portion of the artificial disc." AR 492. There was "a radiolucency on the Prodisc-C keel which [wa]s attempted to be imbedded in C6." Id. The doctor opined that the radiolucency was "indicative of loosening." Id.; see also AR 493-94 (Kabins noting that "the artificial disc could be inferior, possibly loose"). Although the loosening and/or failure was difficult to definitively ascertain from the CT/myelogram, the plain radiographs displayed "clear evidence of collapse and failure" and Conejo had a "distinct worsening of her underlying clinical condition failing supportive care services and medications." AR 492. As such, she consented to revision surgery. Id.
A third cervical surgery was performed in November 2011. AR 424-35. Ms. Conejo...
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