Muldrow v. Astrue
| Decision Date | 11 July 2012 |
| Docket Number | Civil Action No. 11-1385 BJR/DAR |
| Parties | DEBBIE MULDROW, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff seeks a judgment reversing the denial of her applications for Social Security Disability Benefits ("DIB") and Supplemental Security Income Benefits ("SSI"). Complaint (Document No. 1) at 2. In the alternative, she seeks a remand to the Social Security Administration for a new administrative hearing. Id. Defendant, as part of his answer, filed "a certified copy of the transcript of the record including the evidence upon which the findings and decisions complained of are based." Answer (Document No. 2); see also Administrative Record (Document No. 3).1 Currently pending for consideration by the undersigned are Plaintiff's Motion for Judgment of Reversal ("Plaintiff's Motion") (Document No. 5), and Defendant's Motion for Judgment of Affirmance ("Defendant's Motion") (Document No. 6).2
Upon consideration of the motions, the memoranda in support thereof and in opposition thereto, and the entire record herein, the undersigned will recommend that Plaintiff's motion be denied, and that Defendant's motion be granted.
Plaintiff, a 49-year-old resident of Washington, D.C., who developed significant pain in her neck and arm beginning in August, 2007. Plaintiff is a high school graduate, and has not completed any additional training. Administrative Record (Document No. 3-3) at 32-33. In 2007, Plaintiff was examined by a physician, who determined that Plaintiff had moderate to marked spinal stenosis at C5-6 with cord abutment and spinal canal narrowing, as well as moderate bilateral neural foraminal narrowing. See Administrative Record (Document No. 3-10) at 292. On August 6, 2007, Plaintiff underwent an anterior cervical discectomy and fusion with plating at C5-6. Id. at 286. Following this procedure, Plaintiff was examined on August 17, 2007; at that time, the physician found that Plaintiff "describe[d] no residual pain symptoms whatsoever[,]" and released her to return to work with no restrictions. See id. at 252. Plaintiff was then examined by her primary care physician on August 23, 2007; at that time, she reported neck pain with spasms at C5-6. Administrative Record (Document No. 3-11) at 296-97. Less than one year later, the treating physician noted that Plaintiff's complaints of pain were at a "4-5/10 level[.]" Administrative Record (Document No. 3-15) at 381-82.
On August 20, 2007, Plaintiff filed applications for "Disability Insurance Benefits and Supplemental Security Income Benefits, pursuant to Titles II and XVI of the Social Security Act[.]" Administrative Record (Document No. 3-7) at 136, 140. Plaintiff filed the applications based upon her cervical spine injury, a disability which she alleges began on August 6, 2007. Id. at 140. Plaintiff's applications for disability insurance benefits and supplemental security income benefits were denied initially on December 17, 2007, and then on April 10, 2008, denied upon reconsideration. See Administrative Record (Document No. 3-2) at 15.
On April 30, 2008, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Administrative Record (Document No. 3-2) at 15. An administrative hearing was held on September 10, 2009, during which the ALJ heard testimony from Plaintiff and vocational expert ("VE") Dr. Dean Leviton. See Administrative Record (Document No. 3-3) at 28-70. Plaintiff testified at the administrative hearing that she last worked in 2007 as an employee at a fast food restaurant, and before that, as an employee in a nursing home. Id. at 33. In addition to the testimony heard at the hearing, the ALJ also considered medical evidence, which comprises the administrative record now before this court.
During a period which, in part, predated the onset of her claimed disability, Plaintiff was treated for, among other conditions, cervical spine radiculopathy, by her treating physician, Dr. Thomas Garland, at Unity Health Care, Inc. See Administrative Record (Document Nos. 3-11, 3-12, 3-13, 3-15, 3-17) at 296-353, 381-460. In January, 2007, Plaintiff received a magnetic resonance imaging ("MRI") scan of her cervical spine which revealed "moderate to marked spinal stenosis due to moderate uncovertebral hypertrophy and mild central disc protrusion." Administrative Record (Document No. 3-10) at 292. On April 12, 2007, Dr. Garland prescribed pain medication. Administrative Record (Document No. 3-11) at 309. In addition, the scan revealed "mild cord abutment and mild spinal canal narrowing[.]" Id. On July 26, 2007, Dr. Vivek Deshmukh, of the Department of Neurosurgery at George Washington University, recommended that Plaintiff "undergo anterior cervical diskectomy at C5-C6 with fusion and plating." Id. at 255. Earlier that year, in February, 2007, Dr. Deshmukh recommended that Plaintiff "undergo EMG/nerve conduction velocity testing to determine if she has clear radiculopathy . . . and [consider] [whether to] proceed[] with anterior cervical discectomy and fusion and plating[.]" Id. at 260. Plaintiff underwent surgery on August 6, 2007. On August 15, 2007, Plaintiff returned to Dr. Deshmukh for a post-operative visit and indicated that she had "absolutely no pain." Id. at 254.
Plaintiff, during her two visits to Dr. Garland on August 23, 2007 and September 10, 2007, reported a recurrence of her cervical spine symptoms. Administrative Record (Document No. 3-11) at 296-97. As a result, Dr. Garland prescribed medication and recommended that Plaintiff wear a cervical spine collar. Id. Plaintiff reported to Dr. Garland that she was continuing to experience pain; Dr. Garland prescribed pain medication and potassium, recommended that she see her spinal surgeon, and advised her to wear a cervical collar. See Administrative Record (Document No. 3-16) at 429, 431-32, 436-37. In addition, Plaintiff indicated that her pain was improving, and that she was active enough to resume work. Administrative Record (Document Nos. 3-15, 3-16) at 381, 428, 434.
On November 9, 2007, Dr. Saba Kulathungam, a specialist in internal medicine, opined that Plaintiff, who was diagnosed with HIV infection in 2005, has an "[i]mpairment secondary to HIV infection [that] is non-severe." Administrative Record (Document No. 3-13) at 367.
On November 30, 2007, Dr. Freidoon Malek, the State Agency consultant, undertook a physical residual functional capacity assessment. Administrative Record (Document No. 3-14) at 369-376. Dr. Malek's assessment was that Plaintiff could occasionally lift up to 20 pounds and frequently lift up to ten pounds, with no further limitations on her ability to push or pull. Id. at 370. In addition, Dr. Malek opined that Plaintiff could sit, stand, or walk for up to six hours in an eight-hour workday. Id. Dr. Malek found postural limitations, those being that Plaintiff could never climb ladders, ropes, or scaffolds, could only occasionally crouch or crawl, and could frequently climb ramps or stairs, balance, stoop, or kneel. Id. at 371. Dr. Malek also found that Plaintiff had a limited ability to reach overhead. Id. at 372. However, he found no visual, communicative, or environmental limitations. Id. at 372-73. Dr. Malek also found that Plaintiff's "impairment is severe, but does not meet or equal the listing."3 Administrative Record (Document No. 3-13) at 368. On April 7, 2008, Dr. Fizzeh Nelson-Desiderio affirmed Dr. Malek's residual functional capacity assessment of Plaintiff, finding "no new injuries except for pain and muscle spasms." Administrative Record (Document No. 3-17) at 460.
On September 22, 2009, the ALJ denied Plaintiff's claim for benefits. Administrative Record (Document No. 3-2) at 15-23. Plaintiff then sought review by the Appeals Council of the ALJ's decision. Id. at 9. On May 26, 2011, the decision of the ALJ became the final decision of the Commissioner when the Appeals Council "found no reason under [the] rules to review the Administrative Law Judge's decision[,]" and denied Plaintiff's request for review. Id. at 1.
On July 29, 2011, Plaintiff commenced this action by filing a complaint in this Court. Complaint at 1. The parties then filed the motions which are the subject of this report and recommendation.
Plaintiff, in support of her motion for judgment of reversal, advances as her sole argument that the ALJ failed to develop the administrative record. Memorandum in Support of Plaintiff's Motion for Judgment of Reversal ("Plaintiff's Memorandum") (Document No. 5-1) at 4. Plaintiff asserts two claims more specifically. First, Plaintiff contends that the ALJ rendered his decision seventeen months after the "date of the last evidence contained in the record[,]" and failed to address "this evidentiary gap[.]" Second, Plaintiff contends that the record was "devoid of any medical evidence regarding the Plaintiff's current condition[,]" and that "[t]his failure to order a consultative examination was erroneous." Id. at 6.
Defendant, in his opposition to Plaintiff's motion for judgment of reversal and in support of his own motion for judgment of affirmance, contends that "(1) the administrative law judge ("ALJ") had no duty to obtain further medical records because [Plaintiff] bears the burden of providing evidence in support of her claims; and (2) the ALJ had no duty to obtain an additional consultative examination both because the record contains all of the evidence necessary to make a disability determination and because a consultative examination report is already in the record." Memorandum of Law in Support of Defendant's Motion for Judgment of Affirmance and in Opposition to Plaintiff's Motion for Judgment of Reversal ("Defendant's Memorandum") (Document No. 6-1) at 1.
Plaintiff filed an opposition to Defendant's motion for judgment of affirmance. Plaintiff's Opposition to Defendan...
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