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Lovell v. Colvin

United States District Court, E.D. Arkansas, Northern Division

January 26, 2017

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT


         Plaintiff Arlene L. Lovell (“Lovell”) commenced the case at bar by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, she challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon findings made by an Administrative Law Judge (“ALJ”).

         Lovell maintains that the ALJ's findings are not supported by substantial evidence on the record as a whole.[1] It is Lovell's position that her residual functional capacity was not properly assessed. She maintains that a medical assessment of her ability to do work-related activities prepared by Dr. Havi Goyal, M.D., (“Goyal”) and Anthony Kelly, P.A., (“Kelly”) was erroneously discounted.

         The ALJ is required to assess the claimant's residual functional capacity, which is a determination of “the most a person can do despite that person's limitations.” See Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004). The assessment is made using all of the relevant evidence in the record, but the assessment must be supported by some medical evidence. See Wildman v. Astrue, 596 F.3d 959 (8th Cir. 2010). If a treating physician offers an opinion, it should be given controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and is not inconsistent with the other substantial evidence. See Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006) (internal quotations omitted). The ALJ may discount the opinion if other medical assessments are supported by better or more thorough medical evidence or where a treating physician renders inconsistent opinions. See Id.

         A summary of the evidence relevant to Lovell's physical limitations reflects that in April of 2010, she was working as a certified nursing assistant when she injured her back. See Transcript at 44, 320. Over the course of the next three days, she began experiencing pain and stiffness in her back, buttocks, and legs. She sought medical attention for her injury, and Kelly observed the following: “[Lovell] has soft tissue tenderness at ¶ 4-5. [Deep tendon reflexes] are intact. She is neurovascularly intact distally. [She] has slight decrease in range of motion, and muscle spasm is evident. [She] was able to get up on the exam table. No labs or x-rays today. [She] is given a Toradol shot during the appointment 60mg. IM.” See Transcript at 320. A lower back strain and muscle spasm were diagnosed. She was prescribed medication and withheld from work.

         Goyal and Kelly subsequently saw Lovell on thirteen occasions over the course of the next three months. See Transcript at 349 (05/02/2010), 348 (05/05/2010), 347 (05/08/2010), 346 (05/15/2010), 345 (05/16/2010), 344 (05/19/2010), 343 (05/26/2010), 342 (06/01/2010), 341 (06/24/2010), 340 (07/06/2010), 339 (07/15/2010), 338 (07/16/2010), 337 (08/16/2010). The progress notes from the examinations reveal that Lovell continued to experience pain, but trigger point injections and medication help reduce the severity of her pain. A May 10, 2010, x-ray revealed the following: “The spine alignment is anatomic. There is mild dis[c] space narrowing at the L5-S1 level, as well as in the lower thoracic spine. The vertebral body heights are well maintained with small osteophytes noted. The adjacent bony and soft tissue structures are unremarkable.” See Transcript at 319. No acute abnormalities were observed, but mild degenerative changes to her lumbar spine were observed. She continued to be diagnosed with lower back pain and muscle spasm. A December 23, 2010, MRI revealed a “broad-based” disc protrusion and “[m]ild facet arthropathy at ¶ 4-L5 and “diffuse” disc bulging at ¶ 3-L4 and T12-L1 that likely causes no more than mild stenosis. See Transcript at 279.

         Beginning in June of 2011 and continuing through November of 2011, Goyal and Kelly saw Lovell again on ten occasions for her back pain. See Transcript at 336 (06/28/2011), 335 (07/18/2011), 334 (08/05/2011), 333 (08/15/2011), 332 (09/01/2011), 331 (09/16/2011), 330 (10/13/2011), 329 (10/27/2011), 328 (11/10/2011), 327 (11/23/2011). At the initial examination, Goyal and Kelly's findings and observations were as follows:

... [Lovell] presents to clinic for a follow up for evaluation of a workers compensation injury. [She] has lower back pain with significant pain in her buttocks. [She] also has pain in her mid back and upper shoulders. [She] feels that her pain level is 6 out of 10 today. [Lovell] has been put under a great deal of strain with her lost car and financial pressure of this case. This has been causing major depression. Still awaiting to get approval of case from [worker's compensation].
... Neck-soft tissue posterior at ¶ 5-C7. Pain with extension and flexion. Slight decreased [m]uscle strength [bilaterally]. [Lovell] has soft tissue tenderness L4-L5 [bilaterally]. Pain with straight leg [raises]. Muscle strength is 60% of normal. MRI shows multiple [herniated nucleus pulposus] lumber spine [t]rigger points [times ten].

See Transcript at 336. Goyal and Kelly diagnosed low back pain, insomnia, muscle spasm, neck pain, and depression. Medication was prescribed for Lovell's pain. The progress notes from Goyal and Kelley's subsequent examinations of Lovell were largely consistent in the following respect: Lovell continued to experience pain in her back and buttocks, and the only relief she obtained was through trigger point injections.

         On May 2, 2012, Goyal and Kelly prepared a medical assessment of Lovell's ability to do work-related activities. See Transcript at 281-283. Goyal and Kelly represented, in part, that Lovell's impairments give rise to the following limitations: 1) she cannot lift any amount of weight frequently and can lift no more than five pounds occasionally; 2) she can walk for a total of one hour a day but can only walk for fifteen minutes without interruption; and 3) although she can sit for a total of eight hours a day, she can only sit for fifteen minutes without interruption. Goyal and Kelly represented that Lovell's impairments prevent her from, in part, climbing, stooping, and pushing/pulling.

         On April 21, 2013, Dr. Jonathan Schwartz, M.D., (“Schwartz”) saw Lovell for a consultative physical evaluation. See Transcript at 285-289. He noted her complaints of low back and joint pain and listed her medications as “Hydrocodone, Ibuprofen, Gabapentin, and Carisoprodol.” See Transcript at 286. With respect to her activities of daily living, he observed the following:

[Lovell] is able to dress herself but will sometimes get help with her socks. She is able to do her own hygiene but will sometimes get help with her hair. She does “very little” cooking and dishes. She does not do any vacuuming, mopping, or yard work. She goes shopping. She has a driver's license but does not drive due to leg spasms. She denies any hobbies.

See Transcript at 286. Schwartz examined Lovell and observed, in part, that she was able to walk without assistance or difficulty and could sit comfortably. She was unable, though, to lie on the examination table because of her back pain, and it prevented him from assessing her range of motion in her hips and knee. He observed that she had a decreased range of motion in the lumbar portion of her spine, right knee swelling, and crepitus in her knees bilaterally. He diagnosed low back pain likely secondary to degenerative disc disease, and he could not rule out radiculopathy. He also diagnosed joint pain likely secondary to tendonitis and degenerative joint disease. Schwartz opined that Lovell was capable of lifting and carrying up to fifty pounds occasionally and twenty-five pounds frequently, standing and walking for up to six hours in a day, and sitting for up to six hours in a day. Although he was unable to assess all postural limitations, he opined that she could only occasionally stoop.

         On April 29, 2013, Dr. Keith Whitten, M.D., (“Whitten”) saw Lovell for a consultative psychiatric evaluation. See Transcript at 285-289. He observed, in part, that she appeared to be in pain, frequently shifting and changing positions. When she sat, she pressed down on the arm of her chair. With respect to her activities of daily living, he observed the following:

Currently, [Lovell] lives in a house with her boyfriend. She has been there for three years. She is able to bathe and dress herself but needs help with her shoes. Sometimes it is hard to get on her underwear. Her boyfriend does most of the housework. Her daughter helps out. She cannot bend past her knees. She cannot go camping anymore. She has to take a nap in the afternoon. She lead a dull, boring life. She prepares meals with the microwave. She ...

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