United States District Court, W.D. New York
Tracy J. Karl-Lebrenz, Plaintiff,
CAROLYN W. COLVIN,  COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
HUGH B. SCOTT, Magistrate Judge.
The Hon. Richard J. Arcara referred this case to this Court under 28 U.S.C. § 636(b) (text order, Feb. 13, 2013). Pending before the Court are cross-motions for judgment on the pleadings by plaintiff Tracy J. Karl-Lebrenz ("Karl-Lebrenz") (Dkt. No. 12) and the Commissioner of Social Security ("Commissioner") (Dkt. No. 11). Karl-Lebrenz argues that the Commissioner erred in finding that her physical impairments did not meet the criteria for disability under 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A. Karl-Lebrenz argues further that the Commissioner erred when she determined that her mental impairments were not severe. Additionally, Karl-Lebrenz argues that the Commissioner did not offer suitable explanations for giving little weight to the testimony of Dr. Tera Storms, Dr. Raja Rao, Dr. Edward Simmons, or Dr. Jan Hendryx. Karl-Lebrenz also argues that the record lacks evidentiary support for a decision that she has the Residual Functional Capacity to perform light work, and that the Commissioner's reliance on and application of the Medical-Vocational Guidelines was improper in light of evidence indicating that she has non-exertional impairments. Finally, Karl-Lebrenz argues that the Commissioner failed to provide adequate reasoning for finding her testimony not credible. The Commissioner responds that Karl-Lebrenz did not meet her burden of satisfying all of the criteria for Listing 1.04A, disability due to Disorders of the Spine; that Karl-Lebrenz's mental impairments were correctly determined to be non-severe according to the "special technique" laid out at 20 C.F.R. § 404.1520a of the regulations for evaluating the severity of mental impairments; that proper consideration and weight was given to the opinions of Karl-Lebrenz's treating sources; and that her reliance on the Medical-Vocational Guidelines was proper in this case.
The Court has deemed the motions submitted on papers under Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court respectfully recommends granting Karl-Lebrenz's motion (Dkt. No. 12) in part, vacating the Commissioner's determination, and remanding the case for the purpose of completing the medical record and for reassessment of mental and physical disability. The Court recommends denying Karl-Lebrenz's motion without prejudice to the extent that it seeks any other relief. The Court further recommends denying the Commissioner's motion (Dkt. No. 11).
A. Procedural History
Karl-Lebrenz applied for disability insurance benefits under the Social Security Act on September 3, 2008, claiming a disability that began on March 8, 2003. (Certified Administrative Record at 190, hereinafter designated as .) Karl-Lebrenz stated that she was unable to work because of chronic neck and upper back pain, radiating into her arms, legs, hands, and feet; an inability to lift; tingling in her hands, causing her to drop things; regular headaches; depression; anxiety; and memory problems. [195.] Karl-Lebrenz's claim was denied on October 21, 2008. [68.] On October 27, 2008, Karl-Lebrenz requested a hearing by an Administrative Law Judge ("ALJ"). [80.] Before a hearing was conducted, Karl-Lebrenz's attorney provided a brief summarizing her claim. [121.] The brief explains that Karl-Lebrenz's cervical spine was injured in a motor vehicle accident, because of which she underwent spinal surgery. [122.] Karl-Lebrenz's attorney goes on to list the following alleged impairments: fibromyalgia; reduced range of motion of the cervical spine; inability to perform repetitive motions; chronic cervical pain syndrome; ADHD; lumbago; thoracic pain; cervicalgia; post-laminectomy syndrome; sensory polyneuropathy; Major Depressive Disorder; and Dysthymic Disorder. [122-124.] The hearing occurred on November 3, 2010, before ALJ William Weir. [27.] On March 31, 2011, the ALJ denied the claim in a written decision. [11.] Karl-Lebrenz filed a request for the Appeals Council to review the ALJ's decision on May 3, 2011. [7.] On September 11, 2012, the Appeals Council denied the request to review the ALJ's decision. [1.] Karl-Lebrenz commenced this case by filing a Complaint on November 8, 2012. (Dkt. No. 1.)
B. Factual and Medical Background
Karl-Lebrenz was born on August 11, 1956, and was forty-six years old on March 8, 2003, the alleged onset date of her disability. [62.] Because the date of her fiftieth birthday, August 11, 2006, fell within the relevant period, she was initially considered as a younger individual and then as an individual closely approaching advanced age, pursuant to 20 C.F.R. § 404.1563 (c) and (d). The relevant period for consideration of disability is March 8, 2003, Karl-Lebrenz's alleged onset date, through December 31, 2007, her date last insured for Social Security disability benefits ("DLI") pursuant to 20 C.F.R. § 404.130 (a). Her highest level of education, an associate degree in nursing, was attained in December of 1981. [149.]
Karl-Lebrenz began her past relevant work as a rural route mail carrier for the United States Postal Service ("USPS") in 1993. [167.] She held this job until March 1, 1999, when she was involved in a motor vehicle accident while working. [637.] After her accident, Karl-Lebrenz returned to work in a reduced capacity until October 3, 2001, when she underwent spinal surgery. [168.] She returned to work in a reduced capacity at USPS as a supervisor at first, and then as an administrative assistant for four hours per day, from June 18 until August 12, 2002. [143.]
On March 4, 1999, shortly after her motor vehicle accident, Karl-Lebrenz was examined by Rajnikant Patel, M.D. [289.] She complained of pain in her neck, radiating to her upper back, head, and down her arms. Karl-Lebrenz claimed that the pain had increased since the accident, and upon examination Dr. Patel noted tenderness over the cervical spine and a limited range of motion in her neck. [289.]
On October 3, 2001, Edward Simmons, M.D., performed spinal surgery on Karl-Lebrenz. She underwent a complete anterior discectomy at C5-C6 and C6-C7, a partial anterior vertebrectomy of C6, an anterior keystone fusion from C5-C7 with autologous bone graft taken from her right anterior iliac crest, and anterior spinal concepts plate fixation from C5-C7. [403.]
On August 9, 2002, Karl-Lebrenz was examined by Dr. Patel. Dr. Patel noted that Karl-Lebrenz was very tearful on examination, and that she was having a lot of pain as a result of her motor vehicle accident and subsequent surgery. She opined that her pain was exacerbated by work-related stress, and Dr. Patel informed her that chronic pain often leads to depression. In a follow-up appointment on September 4, Dr. Patel referred Karl-Lebrenz for psychiatric treatment. [271.] Dr. Patel's treatment notes for several examinations in 2005 and 2006 note clinical impressions of depression and ADHD. [262-267.]
At an appointment with Jan Hendryx, D.O., on August 15, 2002, Karl-Lebrenz reported that she was misplacing objects and suffering from other memory problems, both at home and at work. She again reported difficulty dealing with work-related stress. Upon examination, Dr. Hendryx noted she had pain in her cervical and thoracic spinal regions. [459.]
On February 10, 2003, Dr. Simmons met with Karl-Lebrenz for a follow-up appointment. Karl-Lebrenz reported increasing pain at the base of her neck and upper and mid-thoracic areas, radiating into both arms. She further reported numbness and tingling in this distribution, along with a hyperesthesia to light touch. She indicated that she had difficulty wearing clothes over this area, because even a light touch was aggravating. Upon examination, Dr. Simmons found Karl-Lebrenz had tenderness to palpation over the C7 to T4 area, along with paraspinal muscle spasms and a reduced range of motion in her neck. Dr. Simmons concluded that Karl-Lebrenz's condition had deteriorated to such a degree that she had a total disability with regards to all work, and that physical therapy and pain management were necessary to prevent further deterioration. At the time of the examination, Karl-Lebrenz's insurance carrier had not approved any physical therapy or pain management. [402.]
On April 8, 2003, Dr. Hendryx examined Karl-Lebrenz and noted that she had been experiencing migraines. [523.] After seeing her again on April 29, Dr. Hendryx noted Karl-Lebrenz had tender points in the mid-thoracic area, as well as pain travelling up her cervical spine and into her head, to the right temple and eye. He noted decreased muscle tone in the upper trapezii as well as spasms, and further noted the presence of spasms and tightness in the lower cervical paraspinals. [521.]
On June 30, 2003, Karl-Lebrenz was again examined by Dr. Hendryx. She was experiencing burning pain and a tingling sensation in her cervical and thoracic spine, radiating down her right arm into the fingers and thumb of her right hand. Karl-Lebrenz reported that she had been dropping things with her right hand and Dr. Hendryx described her hand as "weaker overall." Once again it was noted that stress seemed to increase her pain, and she reported difficulty driving or riding in a car. Karl-Lebrenz reported that she had been experiencing headaches with pain around her eyes, associated dizziness, photophobia, and hypersensitivity, and that these headaches could persist for half of a day. She also notified Dr. Hendryx that she had been feeling depressed and that her psychiatrist, Dr. Saha, intended to increase her psychiatric medication. [535-536.]
Upon examination on October 16, 2003, Dr. Hendryx noted that Karl-Lebrenz had moderate edema over the cervical and thoracic junction, tender points, and tenderness on palpation, which was greater on the right side. Her deep tendon reflexes were 2/4 in both upper extremities. [530-531.]
On April 22, 2004, Dr. Hendryx noted that Karl-Lebrenz was waking up in the morning with a throbbing pain radiating from her cervical and thoracic spinal regions into her shoulders and head. [528.]
On September 9, 2005, Dr. Hendryx completed an injury compensation report, stating that Karl-Lebrenz had been diagnosed with depression and neck pain. In this report, Dr. Hendryx indicated that Karl-Lebrenz had a poor prognosis for full recovery, and that she was at or nearing maximum medical improvement from a rehabilitative standpoint. He suggested that the depression could best be addressed by Karl-Lebrenz's psychiatrist, Dr. Saha. [539.]
On January 6, 2006, Dr. Patel examined Karl-Lebrenz. He made note of increased neck pain, radiating into Karl-Lebrenz's right upper extremity and into her head, as well as muscle spasms. Dr. Patel indicated that Karl-Lebrenz's symptoms were affected by weather changes. He noted that her affect was depressed, and that his impression was that Karl-Lebrenz suffered from chronic lower back pain, depression, ADHD, and headache. [264.]
On July 18, 2006, Karl-Lebrenz was examined by Dr. Hendryx. He noted that she had been seeing a psychologist and psychiatrist, Dr. Raja Rao, for her depression. On examination, Karl-Lebrenz had a blunted affect and continued to experience pain in her neck and mid-to-upper back. [549.]
On August 18, 2006, Dr. Hendryx noted that Karl-Lebrenz had been experiencing increased pain in her upper back, radiating around her jaw and chin. He indicated that she received temporary relief from acupuncture treatments, and that she had a blunt affect and tenderness upon examination. [548.] On the same date, Dr. Hendryx filled out a work capacity evaluation for the U.S. Department of Labor, in which he opined that Karl-Lebrenz could lift 1-10 pounds; walk, stand, and sit for 3.5 hours per day; operate a motor vehicle at work for 3.5 hours per day; operate a motor vehicle to and from work for 0.5-1 hour per day; perform repetitive movements of the wrists and elbows for 1-2 hours per day; bend and stoop for 0-1 hours per day; and that she was unable to perform activities which involved reaching, pushing, pulling, or twisting. He concluded that Karl-Lebrenz could work for a maximum of 3.5-4 hours per day, and that she required a 15-minute break every hour. [570.]
On November 21, 2006, Dr. Hendryx noted that Karl-Lebrenz continued to experience pain in her mid- to upper back, neck, and lower scapular area. She continued to present as depressed, with a blunted affect, and opined that she should remain off work. [571.]
On April 20, 2007, Dr. Hendryx noted increased pain in Karl-Lebrenz's upper thoracic region and ribs. She had mild edema of the cervical spine and tenderness to palpation. Dr. Hendryx also noted that her affect was blunted, and instructed her to remain off work. [576.]
On July 27, 2007, Dr. Hendryx noted that Karl-Lebrenz was in "a lot of pain." She had pain in her upper trapezius and shoulders, up the side of her neck, and into her head, intermittently radiating down her right arm. She attained some partial relief from various forms of treatment, including yoga, massage therapy, and biofreeze. She described her pain as 5/10 or 6/10 on a good day, and 8/10 on a bad day, and claimed it was exacerbated by cold and damp weather, heavy clothing, and stress. Karl-Lebrenz indicated that she was treating her depression with a psychologist, Dr. Storms. [580.] On examination, Dr. Hendryx noted that Karl-Lebrenz had a decreased range of motion and deep tendon reflexes of 2/4. Her right handgrip and bicep strength were decreased to 4/5, and she had decreased muscle tone. [582.]
On October 16, 2007, Dr. Hendryx noted that Karl-Lebrenz had an increase in neck pain, as well as pain in her right shoulder and right arm. He also indicated that she had been experiencing some left lower back pain in the weeks preceding the appointment. [586.]
On November 15, 2007, Karl-Lebrenz indicated an increase in upper back and neck pain to Dr. Hendryx, which coincided with an increase in stress and depression symptoms. She also reported a tingling and itching sensation in both palms. Dr. Hendryx noted that her affect was blunted, and instructed Karl-Lebrenz to remain off work. [588.]
On December 21, 2007, Karl-Lebrenz was examined by Dr. Hendryx. Dr. Hendryx noted muscle spasms in the middle and posterior scalene, as well as reduced grip strength of 4/5 and tenderness in the upper trapezius. Karl-Lebrenz was tearful at times during the examination. Dr. Hendryx assessed that she had neck pain and depression, and he instructed her to remain off work. [590.]
On May 22, 2008, Karl-Lebrenz received a CT scan of her cervical spine. The scan, which was ordered by Leonardo Fugoso, M.D., and interpreted by Bluett Jones, M.D., was limited due to the anterior cervical fusion hardware from C5-C7. The scan showed that the interosseous screws at C5 extended beyond the posterior end plate of the vertebral body of the thecal canal. Dr. Jones reported that without intrathecal contrast, which was not used for this scan, it was difficult to evaluate the screws' encroachment on the spinal cord. Dr. Jones reported apparent fusion at C5, C6, and C7, some loss of intervertebral space at C4-C5, and a slight reversal of the curve at the C4-C5 level. Dr. Jones also noted a loss of intervertebral space at C7-T1. Based on the results of the CT scan, Dr. Jones opined that disc herniation in the superior cervical spine was doubtful but could not be ruled out. The lower sections also showed no definite disc herniation, though Dr. Jones noted that small herniations could be overlooked without intrathecal contrast. Dr. Jones indicated that on the soft tissue windows, the screws appeared to encroach on the spinal cord. Consequently, Dr. Jones recommended that Karl-Lebrenz have a CT myelogram to better evaluate the extent to which the screws encroached on the spinal cord, if at all, and to rule out disc herniations. [358-359.]
On August 1, 2008, Dr. Simmons met with Karl-Lebrenz for a consultation. During the consultation, Karl-Lebrenz stated that her neck pain was constant, and she characterized it as a burning sharp pain in the back of her neck, radiating to the bilateral shoulders and extending into the right scapula and down the arms. She informed Dr. Simmons that her symptoms were aggravated by reaching overhead, lifting, driving, and extending her neck, as well as by humid or damp weather. Dr. Simmons noted that Karl-Lebrenz had had minimal improvement with conservative management other than with acupuncture, massage therapy, and use of Medrol Dosepak. Dr. Simmons noted that Karl-Lebrenz suffered from swelling in the back of her neck and spasms in her hands in addition to her neck and back pain. She reported that she dropped things easily. [399.] Dr. Simmons noted that x-rays of Karl-Lebrenz's cervical spine showed that her cervical plate was in good position with a solid fusion at C5-C7. He opined that one screw in the C5 vertebral body extended beyond the cortex, and that there was moderate loss of disc height at C7-T1. Dr. Simmons further noted minimal loss of disc height at C2-C3, mild loss of disc height at C4-C5, and no identifiable disc herniation. Based on his observations, Dr. Simmons opined that Karl-Lebrenz's symptoms were causally related to her motor vehicle accident in 1999, and that she "has a permanent total disability with regards to her previous type work and a permanent marked partial disability with regards to all work." [400.]
On October 1, 2008, Karl-Lebrenz's treating psychologist, Tera Storms, Psy.D., completed a form regarding her mental health treatment. [369.] Dr. Storms stated that she had been seeing Karl-Lebrenz twice per month since 2005, with her last exam in September 2008. [363.] Based on their time together, Dr. Storms diagnosed Karl-Lebrenz with recurrent Major Depressive disorder, Dysthymic disorder, and ADHD, listing depression, tearfulness, anhedonia, lack of energy, fatigue, weight gain, powerlessness, agitation, irritability, anxiety, difficulty sleeping, poor concentration and focus, forgetfulness, and hopelessness as her current symptoms. [363.] Dr. Storms indicated that Karl-Lebrenz's symptoms were static and chronic, and that her prognosis did not include partial or full recovery or remission. [364.] When prompted to provide the dates and results of any special testing performed, such as an EEG or psychometric tests, Dr. Storms indicated "not medical dr" and "no psych. testing done." [364.] Dr. Storms indicated that Karl-Lebrenz's symptoms began in 1999, subsequent to her work injuries. [365.] In her mental status evaluation, Dr. Storms indicated that Karl-Lebrenz had a negative attitude, but her appearance and behavior were within normal limits; Karl-Lebrenz's speech was logical and coherent, despite occasional cognitive distortions, her thoughts were primarily rational, and her perception was reality-based and rational; Dr. Storms noted that Karl-Lebrenz's affect was mostly flat, and that she was tearful, overwhelmed, and was easily agitated. [366.] When prompted to evaluate Karl-Lebrenz's sensorium and intellectual functions, Dr. Storms noted that she was oriented to person, place, time, and situation, that her capacity to retain information was within normal limits, and that her ability to perform calculations and serial sevens was "ok"; she noted that Karl-Lebrenz's attention and concentration were very poor, that her memory was moderately impaired, and that her insight and judgment were mildly impaired, and poor at times. [366.] Dr. Storms opined that Karl-Lebrenz was able to perform all activities of daily living independently, but slowly, ...