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Olivares v. Berryhill

United States District Court, N.D. Alabama, Southern Division

March 14, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Shandi Olivares (“Plaintiff”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security (the “Commissioner”) denying her claims for a period of disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Act. See 42 U.S.C. §§ 405(g) and 1383(a). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

         I. Proceedings Below

         Plaintiff filed applications for a period of disability, disability insurance benefits, and supplemental security income on August 21, 2013. (R. 9, 78). In the applications Plaintiff alleges disability beginning on January 10, 2013. (R. 157). Both Plaintiff's SSD and SSI applications were initially denied by the Social Security Administration (“SSA”). (R. 78-93). Plaintiff then requested and received a hearing before Administrative Law Judge (“ALJ”) Jerome L. Munford on April 29, 2015 in Gadsden, Alabama. (R. 31-77, 109-11). In his decision dated August 21, 2015, ALJ Munford determined that Plaintiff had not been under disability as defined by the Social Security Act from January 10, 2013 through the date of the decision. (R. 26). After the Appeals Council denied Plaintiff's request for review of the ALJ's decision (R. 1-4), the ALJ's decision became the final decision of the Commissioner, and therefore a proper subject of this court's appellate review.

         II. Facts

         Plaintiff was thirty (30) years old at the time the ALJ issued his decision, and attended school through the tenth grade. (R. 26, 38, 164, 189). Her previous work experience includes employment as a fast food worker, a cashier-checker, a poultry laborer, and most recently a housekeeper. (R. 70, 197-203). Plaintiff claims disability due to a back injury and severe migraines. (R. 188).

         Plaintiff's back injury occurred on January 10, 2013. According to medical records from the Gadsden Regional Medical Center, she “slipped on wet steps and went bouncing down several of them, now has severe pain to lower and mid back, left hip and left leg pain, worse in upper leg, denies toe, no neck pain. Symptoms came on suddenly. Symptoms are present now.” (R. 41, 309). She was diagnosed with acute lumbar strain and contusion to the proximal left lower extremity, left hip, left knee, and left foot and was prescribed medication for pain and muscle spasms. (R. 309-15). Before she was discharged, X-rays of Plaintiff's lumbosacral and thoracic spine were taken. (R. 326, 328, 531). Those X-rays revealed “moderate degenerative thinning of the L5-S1 disc” and “scoliosis of the thoracic spine” with no evidence of fracture. (R. 326, 328, 535). An X-ray was also taken of Plaintiff's left femur, which revealed “chronic degenerative joint disease, mild at the knee and less at the hip” but “no acute bony finding.” (R. 330, 533).

         Plaintiff followed-up with general practitioner Dr. Ochuko Odjegba on March 29, 2013 at the Canterberry Family Practice Center, complaining of worsening low back pain with “shooting pains in mid lumbar spine with leg weakness when walking [and] numbness and tingling of right calf and great toe.” (R. 333). She was prescribed additional medications for pain and was referred to radiology for diagnostic testing of her lumbar spine. (R. 335, 382). She returned to the Center on April 11, 2013 with no improvement of the back pain. (R. 337, 384). She was diagnosed with an upper respiratory infection and medications for the back pain were increased. (R. 339, 386).

         Although Plaintiff had been referred to radiology for an MRI of her lumbar spine, when she visited Dr. Odjegba on May 29, 2013 she reported that she had not had the MRI because she did not have the money. (R. 335, 382, 388). She rated her back pain a 9/10 and stated that she was not able to leave bed on some days, the pain was worse with activity and radiated to both feet, and she experienced numbness and tingling in her toes. (R. 388). On physical exam, it was noted that Plaintiff experienced tenderness at the lumbar spine area. (R. 390). She was diagnosed with chronic lumbago with radiculopathy from nerve compression. (R. 390). She was referred to a neurosurgeon at the UAB Kirklin Clinic and was prescribed additional pain medications. (R. 390).

         Plaintiff saw Dr. Odjegba again on June 26, 2013 presenting with improved back pain, rating it a 4/10. (R. 345, 347, 392). Plaintiff asked for pain medication refills and asked for diet pills. (R. 345). She was advised to use the pain medications for the chronic lumbago only as needed. (R. 394). She returned to Dr. Odjegba on August 1, 2013, having lost some weight and complaining of persistent lower back pain rated 5/10. (R. 349, 396). She described that the “pain has radiated to the right foot, right thigh, and right buttock. The patient describes the pain as numbness and shooting.” (R. 349). All of her prescriptions were refilled. (R. 352).

         On August 30, 2013 Plaintiff returned to the Family Practice Center and indicated that she “continues to have severe shooting pains in lower back, with bilateral leg weakness. Makes it difficult to work.” (R. 353, 400). She rated her back pain a 7/10 yet had appropriate mood and affect and was advised to continue with her current medications without change. (R. 355, 402). On October 15, 2013 she visited again with a chief complaint of weight gain and a secondary issue of having trouble sending the correct paperwork to UAB for the MRI and neurosurgical evaluation. (R. 404). Although she rated her pain as an 8/10, she again demonstrated appropriate mood and affect. (R. 406). She was advised to stop taking the weight loss drug since it was not helping her lose weight and to follow up in one month. (R. 407).

         Plaintiff was back at the Family Practice Center on November 19, 2013. (R. 410). She rated her back pain 9/10 and stated that the pain “worsens spontaneously and shoots into legs causing her legs to give out. Has been unable to provide all UAB charity care paper work. Wants to pay for MRI. Continues on meds.” (R. 410). An MRI of the lumbar spine was taken on November 25, 2013. (R. 364). The MRI revealed “prominent subcutaneous similar diffuse adipose changes with moderate multilevel facet DJD; disc signal changes at 4/5 and 5/1 with minor 4/5 bulging and slightly greater central bulging or very shallow HNP at 5/1; no visible canal, lateral recess, or foraminal stenosis at 5/1 or any other level is identified in no intrinsic CNS or significant paraspinal or retroperitoneal abnormalities otherwise are evidence.” (R. 364). On December 10, 2013 an MRI of Plaintiff's thoracic spine was taken revealing “no significant abnormalities” and the “vertebral elements and bony structures” within normal limits. (R. 518).

         Plaintiff sought treatment with Dr. James White at Northeast Alabama Neurological Services on March 10, 2014. (R. 520). At that time, Plaintiff reported constant low back pain radiating to her left leg and numbness with bilateral “burning” hip pain. (R. 520). Dr. White's plan was to “treat conservatively with at least one set of epidurals.” (R. 514). Plaintiff testified that Dr. White told her that she needed surgery but was “too young” and that surgery might result in further problems with her back. (R. 42-43). Various other visits to medical professionals in 2014 resulted in diagnoses of low back pain, chronic backache, hypertension, depressive disorder, migraines, [1] and anxiety. (R. 548, 557, 573).

         Dr. Sathyan Iyer evaluated Plaintiff (as requested by the SSA) on October 11, 2014. (R. 375). Plaintiff reported to Dr. Iyer that “some days she cannot get out of the bed and barely walk. Sitting, standing, bending, and climbing bother her. She saw neurosurgeon who apparently told her that she has a ruptured disc. She has not been able to take epidural shots because of lack of insurance. The neurosurgeon apparently did not recommend any surgery. She has problems with her hips. She cannot bend the left hip and the right hip bothers her some. She has a burning kind of pain over the left thigh and legs. Ankles bother her. She has problems with the neck and shoulder area.” (R. 375). Dr. Iyer's conclusion was that Plaintiff “will have impairment of functions involving standing, walking, bending, lifting, pushing, pulling, overhead activities, squatting, climbing, working at heights, working around moving ...

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