Lisa Cash v. Colvin

• Decision Date: 19 March 2015
• Docket Number: Civil No. TMD 14-325
• Parties: LISA CASH, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Maryland

LISA CASH, Plaintiff, v. CAROLYN W. COLVIN,Acting Commissioner of Social Security, Defendant.

Civil No. TMD 14-325

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

March 19, 2015

MEMORANDUM OPINION GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND

Lisa Cash ("Plaintiff") seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment or Alternative Motion for Remand (ECF No. 11) and Defendant's Motion for Summary Judgment (ECF No. 13).¹ Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner's decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Plaintiff's Alternative Motion for Remand (ECF No. 11) is GRANTED.

IBackground

Plaintiff was born in 1964, has a college education, and previously worked as a program director/account manager, public health analyst, project manager/senior research analyst, consultant, and director of research and education. R. at 25, 214. Plaintiff applied for DIB protectively on September 8, 2011, and for SSI on September 10, 2011, alleging disability beginning on May 24, 2011, due to lumbar and cervical spinal stenosis, lumbar degenerative disc disease, and facet arthritis. R. at 17, 179-89, 213. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 56-111. On June 18, 2013, ALJ Eugene Bond held a hearing at which Plaintiff pro se and a vocational expert ("VE") testified. R. at 32-55. On July 25, 2013, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of May 24, 2011, through the date of the decision. R. at 14-31. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on December 5, 2013. R. at 1-13. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 2083 (2000).

On February 2, 2014, Plaintiff filed a complaint in this Court seeking review of the Commissioner's decision. Upon the parties' consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.

IISummary of Evidence

A. Opinion Evidence

The ALJ noted in his decision:

In September 2011, [Plaintiff] was involved in a motor vehicle accident where she injured her right forearm. [Plaintiff] complained of right forearm burning and pain. [Plaintiff] was the driver of the vehicle, and there was front impact and the air bags deployed. She reported that she had pain in her neck, arms to her shoulder blades, low back, and legs to her buttocks. Lumbosacral spine films noted spondylolisthesis at the L4-5 level, Degenerative [sic] disc disease was seen at L5-S1 and facet degenerative changes were noted in the low lumbar spine as well. [Plaintiff] was diagnosed with cervical and lumbosacral spine strains superimposed upon her chronic cervical and lumbosacral pain.

R. at 23 (citations omitted); see R. at 341, 346, 357, 359-60.

The ALJ also noted:

In November 2011, [Plaintiff] reported that she was still getting neck pain, at least 4/10, and 3/10 with medications. [An] MRI of the thoracic pain [sic] revealed mild upper thoracic disk bulging. Surgery was recommended to [Plaintiff] in December 2011. In January 2013, [Plaintiff] underwent L4-5 laminectomy and posterior fusion extending from L3 to S1.

R. at 23 (citations omitted); see R. at 373, 441, 470.

As the ALJ also noted in his decision, on May 15, 2012, Plaintiff's treating physician, Birgitta Miller, M.D.,

noted that [Plaintiff] was diagnosed with back pain with radiation to left leg since 2004. [Dr. Miller] opined that [Plaintiff] could stand for 5-45 minutes and walk for 10 yards. [Dr. Miller] opined that [Plaintiff] could lift 5 pounds frequently, 10 pounds occasionally. [Dr. Miller] opined that [Plaintiff] could not climb ladders, or crawl up stairs. [Dr. Miller] opined that [Plaintiff's] prognosis for improvement was fair, and that her aging would likely exacerbate chronic conditions.

R. at 23 (citations and footnote omitted); see R. at 446.

In August 2011, Dr. Babak Arvanaghi, [Plaintiff's] treating physician, opined that [Plaintiff] was disabled by her condition, which restricts her activitiesand provides limitations to her abilities. He opined that these limitations were permanent, and precluded her from engaging in any gainful employment opportunities. In December 2012, Dr. Babak Arvanaghi[] opined that [Plaintiff] has become disabled by her condition, which restricts her activities and provides permanent limitations in her abilities that preclude her from engaging in any gainful employment opportunities. He noted that these limitations and her level of have [sic] increased since a September 2011 car accident. He opined that based on the underlying cause of [Plaintiff's] condition is [sic] degenerative disc disease, her condition will only continue to worsen over time.

R. at 23-24 (citations omitted); see R. at 460, 494.

On December 19, 2011, a state agency medical consultant, E. Nakhuda, M.D., assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 62-63, 70-71. Dr. Nakhuda opined that Plaintiff could (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk for a total of two hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 62, 70. Plaintiff occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or scaffolds). R. at 63, 71. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 63, 71. On July 17, 2012, Gurcharan Singh, M.D., another state agency consultant, affirmed Dr. Nakhuda's opinion. R. at 82-83, 92-93.

In May 2013, Dr. Arvanaghi noted that

[Plaintiff] recently underwent two surgical treatments. In January 2013, an anterior cervical discectomy and fusion was [sic] performed to decompress her spinal cord at the C3-4 level. This was followed in March 2013 by a posterior laminectomy and instrumentation fusion from L3-S1 to treat radiculopathy from her lumbar spine that was causing intolerable pain in her legs. Since the surgeries, the leg pain has been completely relieved; however, the chronic low back pain persists. In addition, [Plaintiff] continues to have pain in the neck and shoulders which radiates into the right arm.

R. at 492.

B. Plaintiff's Testimony

At the hearing, Plaintiff read her opening statement:

Since my neck fusion on January 16, 2013, I now have more muscle tension and spasms on the back sides of my neck and across the top of my shoulders, and I've been having more migraine headaches, about one per week. When I get one I feel nauseous and I'm sensitive to light and noise. If I can take my medication within the first 30 minutes of a migraine coming on, within about two hours I get relief. Otherwise I have to take a second dose and wait another one to two hours before I'm able to resume any activity.

Since the first surgery, I've also had a constant feeling of a pinched nerve in my right shoulder and arm, and my right hand is sometimes weak and unable to write, hold cooking utensils firmly or open jars or medicine bottles. Five months after the surgery, it is still painful for me to turn my neck past a certain point from left to right, so I turn my torso to be able to see when driving or to be able to check for oncoming traffic when crossing the street. My vocal [cords] are also still weak, and it is tiresome for me to talk at times, and I often struggle to speak loud enough to be easily heard.

Since the lumbar fusion on 3/1/13, the radiating pain down the back of my legs that had become so debilitating has been relieved. However, I continue to have constant low back pain and have more muscle spasms in my back. I also now have the constant feeling of pins and needles in my very lower back, buttocks and hips that I did not have before the surgery.

. . . .

Since the two hardware fusion surgeries, the resulting decreased range of motion has made it more difficult and painful for me to move—to get out of bed, to bathe, to comb my hair, to get dressed, to go up and down stairs, to get in and out of chairs, to cook, to reach for things overhead, to bend down, to get in and out of cars, to walk. Anything that requires me to move my body hurts, so I move very slowly now.

It is also more difficult for me to be upright standing or walking because of the added pressure it puts on my low back and hips. Even when I'm being still—leaning against a counter, sitting in a chair or lying down on the couch or bed—I still hurt and cannot stay in one position for very long.

. . . .

If I'm just having a bad day physically I limit my activity by cutting out some ADLs and trying to move as little as possible. Once my pain level reaches a six out of ten, if I do not start taking the Norco and Soma I will not be able to geta handle on the pain and will not be able to get it back down to something that I can tolerate comfortably.

In addition, the Neurontin makes it more difficult for me to read, and all three of these medications make it difficult for me to concentrate and think clearly. The other medication I am on regularly is Valium, which I take only at bedtime. Without it, I am unable to sleep through

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