Milam v. Colvin

• Decision Date: 24 July 2015
• Docket Number: No. 14–3240.,14–3240.
• Citation: 794 F.3d 978
• Parties: Tracy MILAM, Plaintiff–Appellant v. Carolyn W. COLVIN, Acting Commissioner, Social Security Administration, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

794 F.3d 978

Tracy MILAM, Plaintiff–Appellant

v.Carolyn W. COLVIN, Acting Commissioner, Social Security Administration, Defendant–Appellee.

No. 14–3240.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2015.

Filed: July 24, 2015.

Eugene Gregory Wallace, argued, Raleigh, NC, (Anthony W. Bartels, Jonesboro, AR, on the brief), for Plaintiff–Appellant.

Adrial B. McField, argued, Dallas, TX, for Defendant–Appellee.

Before BYE, BEAM, and SMITH, Circuit Judges.

Opinion

SMITH, Circuit Judge.

Tracy Milam appeals the district court's¹ affirmance of an Administrative Law Judge's (ALJ) denial of Milam's application for social security disability insurance benefits. We affirm.

I. Background

Milam applied for disability insurance benefits on July 12, 2011. She identified her disability onset date as August 31, 2009—the same day her employer laid her off. Prior to the layoff, Milam had worked for 20 years, most recently as a secretary/administrative assistant. Milam alleges that she is now totally disabled because of back pain, knee pain, hip pain, and osteoporosis

.

A. Milam's Medical History

On August 6, 2007, Milam visited Dr. Brent Sprinkle, D.O., complaining of “[c]ervical pain, some low back pain, [and] intermittent tingling.” Dr. Sprinkle tested both her upper and lower extremities and found no significant limitation in range of motion, no evidence of instability, no gross misalignments, and no strength deficits. He also tested her neck and upper spine and found no strength deficits and no significant limitations on flexion, extension, rotation, or side-bending. His examination of her lumbar spine

, however, revealed decreased motion and thoracic scoliosis. Dr. Sprinkle ultimately diagnosed “[i]diopathic scoliosis status post fusion in the 1970s.”²

Dr. Sprinkle then ordered an MRI of Milam's cervical spine. The MRI revealed a “straightening of the cervical spine without sublaxation” and that Milam's “cervical cord [was] normal in signal throughout.” The MRI indicated that “[m]ild disc/osteophyte

complex[es]” were causing “minimal” or “mild” canal narrowing at the C3–C4, C4–C5, and C6–C7 discs. The MRI likewise indicated that “[b]road disc/osteophyte complex[es were] caus[ing] mild to moderate canal narrowing, and appear[ed] to contact the anterior cord.... Mild indentation of the anterior cord [was] noted without signal abnormality.”

Milam returned to Dr. Sprinkle on August 16, 2007. He diagnosed cervical degenerative disc disease

. He opined that Milam's “pain is more muscle spasm related since about two minutes post trigger point injection her pain was considerably reduced.”

Milam visited Dr. Sprinkle again on September 14, 2007. Dr. Sprinkle administered a trigger point injection, prescribed Zanaflex

(a muscle relaxant) and Ultram ER (a pain reliever), and recommended a return visit in three to four weeks.

When Milam returned to Dr. Sprinkle on October 12, 2007, Dr. Sprinkle noted that the trigger point injection “seem[ed] to have made a huge difference” and that Milam was “not taking the Zanaflex

.” He then cleared her to return to work.

Milam did not seek treatment from Dr. Sprinkle again for her back pain until June 3, 2011—nearly four years later, and nearly two years after she claims she became disabled. During this visit, Milam informed Dr. Sprinkle that she “want[ed] to pursue disability.” Dr. Sprinkle's exam revealed no strength deficits, no instability, and no significant loss of range of motion except for a certain “decreased range of motion” in her lumbar spine. He also noted “[d]iffuse myofascial trigger points” and “bilateral lumbar paraspinal trigger points.” An x-ray showed that “previous spinal hardware for thoracic scoliosis

... appear[ed] to be in good position” and that “some mild degenerative is above and below her hardware.” Milam was “concerned that her pain [had] progressed,” and Dr. Sprinkle noted “some progression of degenerative changes ... above and below the level of her hardware infusion.”

Dr. Sprinkle opined that Milam could not “tolerate sedentary work that requires prolonged sitting.” Dr. Sprinkle noted during the same visit, however, that Milam “has a moderate activity level. Exercise includes walking and weights. Exercises 3–4 times a week. Exercises 0–5 hours per week.” He recommended that she continue the “home exercise program” and return for treatment “as needed.”

About this time, Milam began keeping a “Pain and Function Journal.” She continued making periodic entries until September 26, 2012. Milam's periodic entries generally noted that she experienced pain, headaches, stiffness, shortness of breath, and fevers. She usually rated her pain on a zero-to-ten scale. She rated her pain somewhere between zero and six on the significant majority of days in which she recorded any pain; in contrast, she rated her pain as a nine or ten only three times throughout the approximately 16–month period.

On June 17, 2011, Milam visited Dr. David Shenker, M.D., at a women's clinic to obtain an annual examination. She denied, among other things, any tingling, numbness, muscular weakness, joint pain, joint swelling, or difficulty sleeping.

Dr. Steven Strode, M.D., completed a Physical Residual Functional Capacity Assessment of Milam on September 10, 2011. He concluded that Milam could stand or walk for approximately six hours in an eight-hour workday. He also concluded that she could sit for approximately six hours in an eight-hour workday; frequently lift or carry up to ten pounds; occasionally lift or carry up to 20 pounds; frequently climb stairs or ramps; and occasionally climb ladders, balance, stoop, kneel, crouch, or crawl. He noted that Milam “[c]ooks, cleans, does laundry, walks, drives, goes out alone, and shops in stores.” A case analysis performed by Dr. Jerry Thomas, M.D., on November 15, 2011, reached the same conclusions with respect to Milam's limitations.

On November 9, 2011, Dr. Bruce Randolph, M.D., performed a consultative general physical examination of Milam. He diagnosed Milam with scoliosis

, chronic back pain, and arthritis. He also noted that she had normal range of motion in her shoulders, hips, knees, and spine and had only “moderate limitation in standing, walking, climbing, squatting, lifting and carrying.”

On March 26, 2012, Dr. Sprinkle saw Milam and recorded that she could not “tolerate hardly any bending[,] lifting[,] twisting[,] or walking[,] or standing to a significant degree.” He noted no significant changes in range of motion, stability, or strength. He recommended that she take or continue taking Skelaxin

(a muscle relaxant) and NSAIDs (non-steriodal anti-inflammatory drugs), deferred her injections, and advised her to return for treatment as needed.

Three months later, on June 28, 2012, Milam returned to Dr. Sprinkle for further assessment. Dr. Sprinkle noted that Milam was feeling pain and that “[t]here are no relieving factors.” He also noted that Milam was pursuing “disability because of her inability to tolerate primarily prolonged sitting or standing or bending or twisting and heavy lifting as a result of her diffuse cervical thoracic and lumbar degenerative disease and scoliosis

and Harrington rod placement.” Later that same day, however, he wrote a letter “To Whom It May Concern” stating that Milam “may return to work,” provided she did not bend, twist, lift more than ten pounds, or stand or sit for prolonged periods of time.

Finally, on October 30, 2012, Dr. Sprinkle completed a Functional Capabilities Assessment in which he opined that Milam could frequently lift less than ten pounds, occasionally lift ten pounds, stand or walk for less than two hours in an eight-hour workday, and sit for less than two hours in an eight-hour workday.

B. ALJ Hearing and Decision

At Milam's request, an ALJ conducted a hearing regarding Milam's application on October 26, 2012. With respect to her prior employment, Milam testified that her employer laid her off as part of a reduction in work force. The ALJ noted on the record his general suspicions about claimants who are “laid off—they work until the last day and then all of a sudden they're disabled.” He also observed that, after Milam's layoff and alleged disability onset date, she sought and received unemployment benefits and even looked for a new job.

Milam testified at the hearing that she can drive for only 20 minutes without back and hip pain, can sit for only 30 minutes continuously before needing to stand due to pain, can lift up to five to ten pounds, has limited ability to bend her back, and has difficulties rotating and squatting. She testified that she is in pain “24/7 on a good day” and sleeps an average of four to five hours per night. She submitted letters from three former coworkers stating, among other things, that Milam was absent from work up to five days per month.

Milam also testified about her daily activities. She confirmed that she cooks for up to 20 minutes every day, does laundry, showers on her own, and shops for groceries. She occasionally uses a walker or a cane that her mother gave her, although no physician ever prescribed that she use them.

The ALJ then posed two hypothetical scenarios to the vocational expert (VE) present at the hearing. The first hypothetical consisted of a person similar to Milam in terms of age and work experience who had mild to moderate pain; could sit for only four to six hours in an eight-hour workday; could stand for only two to three hours in an eight-hour workday; could sit or stand continuously for only 30 minutes at a time; could occasionally climb, stoop, crouch, kneel, and crawl; and would have to miss one or two workdays every month. The second hypothetical consisted of a similar person who had to miss three to five workdays per month due to moderate to severe pain.

The VE testified that the person in the first hypothetical could perform Milam's past work as a secretary/administrative assistant but that the person in the second hypothetical could not find...