Gour v. Saul
| Decision Date | 27 January 2020 |
| Docket Number | Case No. 3:18-cv-30155-KAR |
| Parties | LEE GOUR, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
Lee Gour ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq. Plaintiff applied for DIB on March 5, 2015, alleging a May 1, 2003 onset of disability due to spinal disc degeneration, a back injury, and chronic nerve damage (A.R. at 118, 135).1 On November 28, 2017, the Administrative Law Judge ("ALJ") found that Plaintiff was not disabled through March 31, 2006, the date on whichshe was last insured, and denied her application for DIB (A.R. at 15-28).2 The Appeals Council denied review on July 26, 2018 (A.R. at 5-8) and, thus, Plaintiff is entitled to judicial review. See Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019).
Plaintiff contends that the ALJ erred by failing to (1) afford sufficient weight to Plaintiff's statements concerning the severity of her symptoms that existed on or before her date last insured ("DLI"); and (2) consult a medical advisor prior to concluding that Plaintiff was not disabled on or before the date on which her insured status expired. Pending before this court are Plaintiff's motion for judgment on the pleadings, which requests that the Commissioner's decision be reversed or remanded for further proceedings (Dkt. No. 12), and the Commissioner's motion for an order affirming the decision of the ALJ (Dkt. No. 16). The parties have consented to this court's jurisdiction (Dkt. No. 15). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons stated below, the court will grant the Commissioner's motion for an order affirming the decision and deny Plaintiff's motion.
Plaintiff was 48 years old on the date of the October 11, 2017 hearing (A.R. at 704, 708). In March 2006, she was 36 years old, was married, and was living with her husband and herthree children whose ages ranged from eighteen to three (A.R. at 715). Her fourth child was born on June 19, 2007 (A.R. at 276, 709). Plaintiff obtained a GED and attended two years of college (A.R. at 136, 708). In September 1999, Plaintiff began working as a cashier, stock person, and assistant manager at a convenience/package store (A.R. at 136, 137, 165-66). Plaintiff stopped working on May 1, 2003 when she was pregnant with her third child (A.R. at 135, 716).
Because Plaintiff contends that she suffered from disabling neck and back conditions and anxiety on or before her DLI of March 31, 2006, the background information will be limited to a discussion of those conditions (Dkt. No. 13; A.R. at 162).
Plaintiff's medical records, which spanned the period from April 15, 1997 to June 13, 2001, concerned an injury to her neck and back that occurred while she was employed as a CNA at a nursing home (A.R. at 213-252). On April 15, 1997, Plaintiff sought treatment at the Family Care Medical Center ("Family Care") for left back, neck, and head pain that occurred when she lifted a patient (A.R. at 244, 250, 252). An x-ray of Plaintiff's cervical spine on that date revealed that the vertebral bodies and disk spaces were well maintained, the pedicles were intact, the facet joints were normal, and there was no encroachment on the intervertebral foramina (A.R. at 251). On April 23, 1997, Plaintiff reported that her condition had improved (A.R. at 243). She was referred to physical therapy ("PT") on April 29, 1997 after she complained that she continued to experience pain and numbness in her neck (A.R. at 248). Plaintiff was "doing better" on May 12, 1997 (A.R. at 247).
On May 16, 1997, Plaintiff sought a second opinion from Kelly Armstrong, M.D., of Medical West Associates (A.R. at 244). Dr. Armstrong noted that Plaintiff had sprained her posterior neck muscles and trapezius muscles (A.R. at 244, 246). An examination revealed normal neck range of motion, arm strength, and reflexes and no adenopathy in Plaintiff's neck (A.R. at 244). Dr. Armstrong diagnosed "pulled muscles" and indicated that Plaintiff could return to modified duty at the nursing home on May 26, 1997 (A.R. at 244, 246).
On May 27, 1997, Plaintiff reported to Family Care that her condition had not improved and she was unable to perform regular or light duty work. She complained that, at times, pain radiated to her left arm. She was prescribed a cervical collar and Advil and directed to follow up with Scott R. Cooper, M.D. (A.R. at 245).
Dr. Cooper's note of Plaintiff's June 9, 1997 visit includes Plaintiff's description of an "'aching' along the lateral aspect of [her] left arm almost as far distally as the elbow" that was "associated with a feeling of weakness." She reported that the recurrence of severe pain prevented her from performing her normal CNA duties, but she was able to perform clerical work, and that PT had increased her cervical mobility. Upon examination, Dr. Cooper noted that: Plaintiff's sitting posture was significant for the slight forward flexion of her head; her cervical mobility was full with reproduction of posterior neck pain at the extremes; Plaintiff's left superior trapezius, levator scapula, and infraspinatus were tender when pressure was applied; her shoulder range of motion was full and pain free with a negative impingement arc; her strength was 5/5 throughout both upper extremities without significant deficits; and her deep tendon reflexes were 1+ throughout both upper extremities symmetrically. Supraspinatus stress on the left reproduced some superior and lateral shoulder pain, but foraminal compression testing wasnegative bilaterally. Dr. Cooper ordered an MRI "to rule out a left radiculopathy" and prescribed Nortriptyline (A.R. at 239-40).
The June 25, 1997 MRI of Plaintiff's cervical spine showed a left paracentral to lateral disc herniation partially involving the foramen at C5-6 with "moderate mass effect on the left anterior thecal sac and possible compromise of the exiting left C6 nerve root sleeve." There was no significant foraminal stenosis. A mild bilateral facet degenerative change was noted at C4-5 (A.R. at 238).
Plaintiff denied experiencing numbness, paresthesia, or weakness during her July 15, 1997 visit to Dr. Cooper. She described pain that radiated into the lateral aspect of her shoulder, but not below the elbow. Dr. Cooper noted that Plaintiff had a normal sitting posture and full cervical range of motion. There was tenderness diffusely in the scapular stabilizers on the left. Her strength was 5/5 throughout with the exception of shoulder abduction and external rotation, which were limited by pain. Deep tendon reflexes were 2+ symmetrically at the biceps, triceps, and supinators. "Foraminal compression testing was completely negative bilaterally." In view of the MRI results, Dr. Cooper paid special attention to Plaintiff's strength at the C6 distribution. Her wrist extension, biceps, and brachioradialis strength was 5/5. Dr. Cooper's impression was "[c]ervical pain with mild C6 radiculitis, but no motor or reflex changes." He ordered a brief course of manual PT and an EMG and prescribed Nortriptyline (A.R. at 237).
On August 13, 1997, Dr. Cooper cancelled the scheduled EMG because Plaintiff reported that she did not have any radiating symptoms into her left upper extremity. He "suspect[ed] that the[] radiating pain was in fact not radicular but instead musculoskeletal" and he was "concerned . . . that she ha[d] a component of facet mediated pain." He advised her to continue PT (A.R. at 236).
The record of Plaintiff's August 29, 1997 visit to Dr. Cooper indicates that Plaintiff reported that her pain had continued to decrease. She only experienced "twinges" in her suboccipital area bilaterally. Dr. Cooper noted that further treatment and follow-up could be discontinued if her condition continued to improve (A.R. at 235). Plaintiff reported that she returned to full-time duty at the nursing home in September 1997 (A.R. at 214).
Plaintiff saw Dr. Cooper about six months later, on February 23, 1998, for a "flare-up of her usual left sided neck and upper extremity pain" which had begun in mid-January when she assisted with the transfer of a patient at work (A.R. at 225, 234). After the incident, the pain in the back of her neck increased and radiated down her upper left arm to her wrist. In addition, her cervical and dorsal spine ached. She denied any sharp or severe pain. After an examination of Plaintiff which showed a negative bilateral foraminal compression test, full shoulder range of motion, the ability to hold her arm in a natural position without guarding, 5/5 strength throughout both upper extremities, no focal weakness, and deep tendon reflexes 1+ and symmetric throughout, Dr. Cooper diagnosed recurrent cervical radiculitis at C6 related to the known herniated disc. Plaintiff was cleared to return to light duty work (A.R. at 234).
On March 13, 1998, Dr. Cooper diagnosed persistent C6 (cervical) radiculopathy after Plaintiff indicated that she continued to experience pain that radiated down her left upper arm to the biceps with some occasional paresthesia in her left hand. She also had pain across her upper back. Dr. Cooper noted that Plaintiff's symptoms were "relatively mild." He recommended PT and cleared her to return to work with restrictions against heavy lifting and...
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