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Weathers v. Berryhill

United States District Court, E.D. Arkansas, Pine Bluff Division

October 30, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT




         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge D.P. Marshall, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.


         Ezette Weathers applied for social security disability benefits with an alleged disability onset date of January 30, 2007. (R. at 75). After a hearing, the administrative law judge (ALJ) denied her application. (R. at 36). The Appeals Council denied Weathers' request for review. (R. at 4). The ALJ's decision now stands as the Commissioner's final decision, and Weathers has requested judicial review.

         For the reasons stated below, the magistrate judge recommends reversing and remanding the Commissioner's decision.

         I. The Commissioner's Decision

         The ALJ found that Weathers had the severe impairments of mild disk protrusion at ¶ 5-C6 with minimal hypertrophy at that level and some minimal hypertrophic changes of the facet, with only some slight disk desiccation at ¶ 3-L4, and with only minimal degenerative changes of the facet joint at that level. (R. at 15). The ALJ specifically found that Weathers had no severe mental impairment. (R. at 16-22). The ALJ found that Weathers had the residual functional capacity (RFC) to perform the full range of medium work. (R. at 22). The ALJ then found that Weathers could perform her past relevant work as a chicken packer/hand packer. (R. at 35). Therefore, the ALJ held that Weathers was not disabled. (R. at 36).

         II. Summary of Medical Evidence

         Weathers was seen at the Dallas County Medical Center on January 28, 2007 following a motor vehicle accident. (R. at 299). She was diagnosed with acute cervical strain and abdominal contusion. (R. at 299). She had an x-ray that identified straightening of the cervical spine and degenerative osteophytes at ¶ 5-C6. (R. at 302). She was treated with Flexeril and Toradol and prescribed Flexeril and ibuprofen. (R. at 308). The next day, she saw her physician, Neema Suphan, M.D., who advised bed rest and physical therapy three times per week for her neck and back. (R. at 315). On February 1, 2007, Weathers presented for physical therapy where she was found to have slow, guarded movements due to pain, but with lower extremity strength and range of motion within functional limits. (R. at 316). Her cervical range of motion was decreased approximately fifty percent, and she had reduced range of motion in the upper extremities due to pain. (R. at 316). She continued in physical therapy and met all goals, including restoring cervical range of motion to functional limits, on April 5, 2007. (R. at 318).

         Weathers was referred to Reza Shahim, M.D. and complained of neck and back pain radiating into her shoulders and hips on June 11, 2007. (R. at 336). Dr. Shahim reviewed Weathers' records and found mild cervical spondylosis at ¶ 5-C6. (R. at 336). Dr. Shahim did not recommend surgery and referred Weathers for pain management. (R. at 336). On July 13, 2007, Thomas Hart, M.D. reviewed an MRI of Weathers' spine that showed straightening of the cervical lordosis, mild disk protrusion at ¶ 5-C6, and slight disk desiccation, minimal bulge, and minimal degenerative changes of the facet joint at ¶ 3-L4. (R. at 340-41). Dr. Hart recommended diagnostic cervical facet injections at ¶ 3-C4, C4-C5, C5-C6, and C6-C7 and suggested consideration of radiofrequency. (R. at 341). Dr. Hart performed the injections on July 18, 2007. (R. at 348). After the procedure, Weathers claimed a pain score of 10/10 but appeared to not be in severe distress. (R. at 348). Dr. Hart noted that Weathers seemed not to understand the visual analog score and that it was difficult to get a score or subjective pain rating. (R. at 348).

         Weathers saw Amir Qureshi, M.D. on September 6, 2007, complaining that her pain had increased after the facet injections. (R. at 333). Dr. Qureshi noted decreased range of motion at all points in Weathers' neck and tenderness over her cervical paraspinous muscles, bilateral lumbar paraspinous muscles, mid-spinous processes area, and bilateral SI joints. (R. at 334). Dr. Qureshi gave Weathers trigger point injections and a cervical epidural injection. (R. at 334-35). During a follow-up visit on October 4, 2007, Weathers reported that she had experienced relief for a few days but that her pain was currently 9 out of 10. (R. at 331). Dr. Qureshi's diagnosis was unchanged, and he repeated the epidural injections and prescribed Ultram. (R. at 332). She received additional injections on November 5, 2007. (R. at 342). She continued to complain of pain and received additional epidural injections on February 28, 2008. (R. at 329). On April 24, 2008, Weathers stated that her pain level was 2 out of 10, and Dr. Qureshi released her to go back to work. (R. at 327-28).

         Weathers presented to Charles Jones, M.D. on June 6, 2011 complaining of bilateral shoulder, bilateral neck, and back pain. (R. at 351). Dr. Jones assessed lumbago and cervical neck pain and prescribed Ultram and Flexeril. (R. at 352). She saw Dr. Jones again on December 7, 2011 with the additional complaint of ear pain when eating. (R. at 378). On December 27, 2011, Dr. Jones assessed myalgia and myositis in addition to the neck and back pain. (R. at 376-77). Dr. Jones continued to treat Weathers with pain medication, and she presented with TMJ pain on January 27, 2012. (R. at 375-76). Dr. Jones referred her to Stephen Shorts, M.D. in February 2012, and Dr. Shorts recommended that Weathers see a dentist to see if the TMJ pain could be reduced. (R. at 385).

         Weathers saw Efrain Segura, M.D. for a consultative examination on December 9, 2011. (R. at 357-62). Dr. Segura diagnosed neck, shoulder, and lower back pain and opined that Weathers had mild limitations in her ability to walk, lift, and carry and that she needed more ...

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