Civitarese v. Commissioner of Social Security Administration
Filing
18
Memorandum Opinion and Order: The Commissioner's decision is AFFIRMED. Magistrate Judge Kathleen B. Burke on 12/21/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RACHEL CIVITARESE,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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CASE NO. 1:17-CV-85
MAGISTRATE JUDGE
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Rachel Civitarese (“Civitarese”) seeks judicial review of the final decision of
Defendant Commissioner of Social Security (“Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the
parties. Doc. 12.
For the reasons stated below, the decision of the Commissioner is AFFIRMED.
I. Procedural History
Civitarese protectively filed an application for DIB on June 6, 2012, alleging a disability
onset date of February 10, 2012. Tr. 14, 77. She alleged disability based on the following:
major depression, anxiety and degenerative disc disease. Tr. 198. After denials by the state
agency initially (Tr. 89) and on reconsideration (Tr. 90), Civitarese requested an administrative
hearing. Tr. 125. A hearing was held before Administrative Law Judge (“ALJ”) Traci M. Hixon
on March 13, 2015. Tr. 29-76. In her August 21, 2015, decision (Tr. 14-23), the ALJ
determined that there are jobs that exist in significant numbers in the national economy that
Civitarese can perform, i.e. she is not disabled. Tr. 21. Civitarese requested review of the ALJ’s
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decision by the Appeals Council (Tr. 9) and, on November 14, 2016, the Appeals Council denied
review, making the ALJ’s decision the final decision of the Commissioner. Tr. 3-5.
II. Evidence
A. Personal and Vocational Evidence
Civitarese was born in 1980 and was 32 years old on the date her application was filed.
Tr. 158. She has a GED and last worked in February 2012 as a teller supervisor at a bank. Tr.
34, 42.
B. Relevant Medical Evidence1
On August 2, 2011, Civitarese saw her general practitioner, Philip Gigliotti, M.D.,
complaining of severe low back pain that radiated into her left upper leg and thigh after riding on
a motorcycle. Tr. 352, 368. She had no numbness or weakness and she also reported that she
“still” had pain in her upper back. Tr. 368. Dr. Gigliotti diagnosed her with lumbar
radiculopathy with left leg weakness and ordered an MRI. Tr. 368.
On January 25, 2012, an MRI of Civitarese’s lumbar spine showed a small right central
disc herniation at L5-S1 with “[n]o foramen compromise or thecal sac stenosis” but an
“impression on the dural sac.” Tr. 392. An MRI of her cervical spine taken the next day showed
a “large broad-based disc herniation at the C5-C6 levels ... that displaces subarachnoid fluid and
causes impression on the ventral margin of the spinal cord.” Tr. 393.
On February 15, 2012, Civitarese saw Ajit A. Krishnaney, M.D., at the Cleveland Clinic
spinal surgery department for a follow-up visit. Tr. 240. Civitarese reported that, a week after
her prior visit on February 3, 2012, she woke up with very severe exacerbation of her neck pain
that radiated into her right middle, ring, and little fingers. Tr. 240. The pain was so severe she
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Civitarese only challenges the ALJ’s findings regarding her physical impairments. Accordingly, only the medical
evidence relating to Civitarese’s physical impairments are summarized and discussed herein.
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could not sleep or work. Tr. 240. She was taking Vicodin and did not experience relief from her
dexamethasone pack or Neurontin and was interested in pursuing epidural steroid injections or
surgery. Tr. 240.
On February 17, 2012, Civitarese saw Fady Nageeb, M.D., who gave her an epidural
cervical steroid injection. Tr. 237. She listed her pain as ranging from a 2-10/10 and that day as
a 9. Tr. 237. She had been prescribed Vicodin, Oxycodone, Percocet, Gabapentin, and
dexamethasone. Tr. 239. Dr. Nageeb recommended further injections as needed if Civitarese
experienced relief from that day’s injections. Tr. 239.
The next day, Civitarese presented to Cleveland Clinic’s Fairview Hospital due to
vomiting, neck pain, headache, and leg pain. Tr. 248. Her pain was 10/10 and she reported
having had an injection the day before. Tr. 248. She underwent another cervical spine MRI to
rule out an epidural hematoma or fluid collection. Tr. 251. The MRI showed no hematoma or
fluid collection and a disc osteophyte (bone spur) prominent on the right that mildly indented the
right side of the spinal cord at C5-6, causing moderate stenosis. Tr. 252. She also had a reversal
of the lordosis at C5-6. Tr. 251. There was no cord compression. Tr. 252. Civitarese requested
she be transferred to the Cleveland Clinic Main Campus and she was transferred there on
February 20. Tr. 249.
On February 21, 2012, Dr. Krishnaney performed an anterior cervical discectomy and
fusion and placement of anterior plate on Civitarese at C5-6. Tr. 297-298, 291.
On April 13, 2012, Civitarese saw Dr. Krishnaney for follow-up visit. Tr. 279.
Civitarese stated that she “ha[d] been doing pretty well since the surgery.” Tr. 279. Dr.
Krishnaney’s impression was that she was improving and had a left rotator cuff strain. Tr. 279.
He ordered a cervical x-ray to ensure Civitarese’s surgical hardware was in place and
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recommended physical therapy for her neck and left shoulder. Tr. 279. A cervical x-ray showed
intact surgical hardware. Tr. 274.
On April 16, 2012, Civitarese started physical therapy and saw Amanda Albernathy, PT,
DPT. Tr. 272. Civitarese reported that she was on short-term disability and was to return to
work on April 24. Tr. 272. Her status was “improving.” Tr. 272. Her pain was in the left side
of her neck and shoulder, was shooting, aching and constant, at that time 5/10 and ranging from
2/10 to 8/10. Tr. 272. Her pain got worse as the day progressed. Tr. 272. She had trouble
dressing, grooming, lifting her 2-year-old, sleeping on her left side, and she was unable to coach
basketball. Tr. 272. Lifting, reaching and turning her head made her pain worse. Tr. 272. Upon
exam she had “major” loss of motion in her cervical spine upon retraction, protraction and
rotation, and a loss of 21 degrees upon flexion, 25 degrees upon extension, and, with side
bending, 20 degrees (right) and 19 degrees (left). Tr. 274. Abernathy assessed Civitarese with a
“severely limited cervical range of motion and decreased strength throughout bilateral [upper
extremities].” Tr. 276. She had “decreased knowledge regarding her condition and how to
manage it.” Tr. 276.
On April 23, 2012, Civitarese reported to Abernathy that her positioning at night with a
towel roll was helping and that she can already notice a difference. Tr. 268. She was not waking
up as much at night. Tr. 268. She was doing well with her stretches but still felt that she wasn’t
moving her neck better. Tr. 268. Her pain had improved to 3/10 and she felt looser and more
normal. Tr. 368. Abernathy added shoulder exercises to her home exercise program. Tr. 268.
On May 25, 2012, Civitarese returned to Dr. Krishnaney. Tr. 264. She stated that she
continued to have pain in her left upper arm and the middle of her back when she turned her head
to the left. Tr. 264. Recently, she noticed that her head started shaking when she turned her
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head to the left. Tr. 264. Dr. Krishnaney recommended a cervical MRI to rule out adjacent level
disc herniation and referred her to be assessed for rotator cuff syndrome. Tr. 264. On June 4,
Civitarese saw Dr. Gigliotti and stated that she had had her surgical follow up but wanted a
second opinion. Tr. 374. She reported no radiation, no weakness, and complained of right flank
pain. Tr. 374. She was taking Vicodin regularly and was on Butrans pain patches. Tr. 374. Dr.
Gigliotti doubled her Butrans and refilled her Vicodin. Tr. 374.
On August 2, 2012, Michael Farber, M.D., wrote a letter to Philip Gigliotti, M.D.,
summarizing a discussion in which Dr. Gigliotti confirmed mechanical neck pain, little
improvement of radiculopathy and discomfort despite surgery, and reiterated that they “agreed
that subjective complaints appear to be out of proportion to the degree of objective data” and
“that there may be a psychological component that is contributing to subjective complaints.” Tr.
420-421. They further “agreed that until [additional] MRI results are completed, claimant should
likely be restricted from heavy duty lifting as defined by DOL.” Tr. 420-421.
On September 7, 2012, Dr. Gigliotti wrote a letter saying that Civitarese has cervical disc
disease which may have been made worse by lifting more than ten pounds. Tr. 422. On October
3, 2012, Dr. Gigliotti wrote a letter certifying that Civitarese suffered a neck injury “which
caused severe neck pain” and that daily heavy lifting of coin boxes could have made her neck
injury worse.”2 Tr. 430.
On September 21, 2012, Civatarese began treatment at Advanced Comprehensive Pain
Management and saw Sherif Salama, M.D. Tr. 313-318. Civitarese complained of neck pain
radiating to her bilateral shoulders and arms. Tr. 313. She was still having a lot of pain after her
fusion surgery. Tr. 313. She reported having been injured at work from lifting a lot of
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Civitarese was required to lift and carry coin boxes for her job at the bank. Tr. 43-44.
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shipments and her employer was fighting her workers’ compensation claim. Tr. 313. She
reported having injections in her neck in August but that these did not help her pain at all; nor
did physical therapy. Tr. 313. Her pain was dull, shooting and stabbing and was worse in the
morning. Tr. 313. Her pain was 8/10 and the worst it had been the past few weeks was 10/10.
Tr. 313. Driving and movement made her pain worse and pain caused her to have problems
sleeping. Tr. 313. Upon exam, she had a normal range of motion in her neck and head,
moderate tenderness bilaterally upon palpation along the cervical facets from C4 to C7, and a
decreased flexion of the cervical spine, with both rotations to the left and right limited 10 degrees
due to pain. Tr. 315 -316. She had bilateral tenderness in her trapezius muscles, normal range of
motion in her left shoulder with no joint or muscle tenderness, and 4/5 left shoulder strength and
abduction. Tr. 316. She had a normal range of motion in her wrists, hands and fingers and
normal grip strength. Tr. 316. Her thoracic and lumber spine exam were both normal as were
examination of both lower extremities. Tr. 316. Dr. Salama diagnosed Brachial
neuritis/radiculitis, NOS; cervical radiculitis; radicular syndrome of upper limbs; postlaminectomy syndrome; and cervical spondylosis with myelopathy. Tr. 317. He prescribed
Lyrica and Vicodin. Tr. 318.
On October 19, 2012, Dr. Salama administered median branch nerve blocks to the C4C5, C5- C6, and C6-C7 levels of Civitarese’s cervical spine. Tr. 319-320.
On November 7, Civitarese returned to Dr. Salama reporting that the injections made her
pain worse and that she was in bed for a few days afterwards with a severe headache. Tr. 309.
She complained of neck pain that was moving to her left side more and tingling in her bilateral
arms. Tr. 309. Her pain was made worse with movement and relieved by medications. Tr. 309.
She reported 0% improvement after her surgery and her pain was 7/10. Tr. 309. Dr. Salama
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commented that Civitarese was “a lot better” after her last injection because she had no rightsided neck pain. Tr. 312. He listed her diagnoses (Brachial neuritis/radiculitis, NOS; cervical
radiculitis; radicular syndrome of upper limbs; post-laminectomy syndrome; and cervical
spondylosis with myelopathy) as improved. Tr. 312. He educated Civitarese on neck strain
exercises. Tr. 312.
On December 5, 2012, Civitarese reported to Dr. Gigliotti that because her insurance
lapsed she was unable to see Dr. Salama. Tr. 381. She reported that she had more pain and Dr.
Gigliotti refilled her medication because she could not get medication from Dr. Salama as she
had been. Tr. 381, 312.
On October 21, 2013, she reported to Dr. Gigliotti that she had more neck pain. Tr. 482.
On February 19, 2014, Civitarese saw Dr. Gigliotti complaining of more pain in her neck
and lower back. Tr. 486-488. She had been trying to take Oxycodone but with minimal
improvement. Tr. 486. Upon exam, she had a normal gait and a normal motor exam in both
arms and legs. Tr. 488.
On May 16, 2014, Civitarese returned to Dr. Gigliotti stating that she had fallen
backwards several days prior and had developed more neck pain. Tr. 501. Her pain occasionally
radiated into her eye. Tr. 501.
On July 15, 2014, Civitarese reported to Dr. Gigliotti that her neck pain was better but
that she was getting more low back pain. Tr. 507. She was taking Oxycodone fairly regularly.
Tr. 507. On July 21, Civitarese complained to Dr. Gigliotti that she got headaches when she
took her Oxycodone. Tr. 510. She did not experience this with Vicodin. Tr. 510. She reported
having been diagnosed with migraines a few years prior. Tr. 510. Upon exam, she had no
tenderness in her spine, 5/5 motor strength, normal sensation, and normal gait. Tr. 512.
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On September 12, 2014, Civitarese returned to Dr. Gigliotti and reported continued
severe pain in her neck and lower back that radiated into her left arm and left leg, respectively.
Tr. 524. She had obtained insurance and planned on seeing consultants. Tr. 524.
On October 8, 2014, Civitarese returned to Dr. Gigliotti stating that, for the past two
days, she had had more neck pain and had been unable to sleep or move. Tr. 532. Her neck hurt
when she moved her arms. Tr. 532. She had an appointment with neurologist Dr. Rheiw in two
weeks. Tr. 532. Dr. Gigliotti increased her oxycodone from 10 mg every six hours to 15 mg
every six hours. Tr. 535.
On October 11, 2014, Civitarese had an MRI of her cervical spine. Tr. 556. The
interpreting radiologist, James Zelch, M.D., wrote:
There is evidence of signal loss between the fused segment (C5/6) as would be expected
after anterior cervical fusion. The fusion appears solid and presents a smooth interface
with the ventral aspect of the subarachnoid fluid column.
There is evidence of a right central disc herniation at C4-5. All other aspects of the study
are normal. Each foramen is well defined and clear (no nerve root compression). The soft
tissues adjacent to the cervical spine are normal.
CONCLUSION: Right central disc herniation at C4-5.
Satisfactory post-op appearance of the C 5/6 ACF [anterior cervical fusion].
The study of 2012 diagnosed a disc herniation at C5-6 which has been surgically
corrected. The disc herniation at C4-5 there is a recent finding.
Tr. 556.
On October 21, 2014, Civitarese reported that the increase in oxycodone had helped her
pain tremendously; she was more mobile and felt much better. Tr. 536. She reported feeling
weakness in her left arm. Tr. 536.
On November 9, 2014, Civitarese completed a self-evaluation of her functioning prior to
seeing Richard Rhiew, M.D. Tr. 469. She indicated that her pain was mostly 10/10 and did not
change very much, she could lift very light weights, she had headaches almost all the time, and
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she could “hardly drive my car at all because severe pain.” Tr. 469. She also wrote that she
should probably not drive a car at all because she had almost been in a few accidents. Tr. 469.
Because of severe neck pain, she could not read as much as she wanted and could “hardly do any
recreational activities.” Tr. 469. Based on the corresponding numerical ratings for each of her
answers, she received a disability index score of 80%.3 Tr. 469.
On November 10, 2014, Civitarese met with Dr. Rhiew. Tr. 470-475. Dr. Rhiew did not
believe that further surgery would significantly improve her dominant symptom of neck pain.
Tr. 470. He reviewed her MRIs and summed these up as showing previous fusion surgery, disc
herniation at C4-5 and no nerve compression. Tr. 473. He detailed her condition as having been
somewhat improved after her surgery but not completely; noted her treatment of opioid
medications, injections, physical therapy, and surgery; and recommended an EMG, pain
management, an x-ray to ensure proper surgical hardware position and a possible second
opinion. Tr. 473, 475. Dr. Rhiew observed that she had symptoms that did not correlate to the
objective findings. Tr. 473, 475.
On February 2, 2015, Civitarese saw Dr. Gigliotti. Tr. 548. Her chief complaint was
depression, explaining that her Cymbalta and Klonopin no longer seemed to be working. Tr.
548. She continued to have pain in her neck and lower back. Tr. 548.
On February 16, 2015, Civitarese returned to Dr. Gigliotti. Tr. 551. Her chief complaint
was anxiety; she also complained of episodes of depression, continued neck pain, and more
problems with her left arm and hand. Tr. 551. She had brought a disability form to be
completed. Tr. 551. Upon exam, she had no spinal tenderness, 5/5 motor strength in her right
arm and 4/5 in her left arm, normal sensation and a normal gait. Tr. 553.
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Plaintiff states, “This score corresponds with the rating of “crippled”[Fairbank JCT & Pynsent, (2000) The
Oswetry Disability Index . Spine 25(22):2940-2953].” Doc. 14, p. 9.
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C. Medical Opinion Evidence—Treating Physician
On February 16, 2015, Dr. Gigliotti filled out a check box Physical Capacities Evaluation
on behalf of Civitarese. Tr. 557-558. Dr. Gigliotti opined that Civitarese can sit for three hours
per day, stand for one hour per day, and walk for three hours per day (both at one time without
interruption and as a total in an eight-hour day); lift and carry zero to five pounds occasionally
and never more than five pounds; and occasionally bend or crawl but never squat, climb, or reach
above shoulder level. Tr. 557-558. She cannot use her left hand for simple grasping, pushing,
pulling, or fine manipulation and could not push or pull with her right hand. Tr. 557. She was
moderately restricted in her ability to be exposed to marked temperature and humidity changes.
Tr. 559. The form asked for objective findings to support the opinion but Dr. Gigliotti left that
section blank. Tr. 559.
D. Testimonial Evidence
1. Civitarese’s Testimony
Civitarese was represented by counsel and testified at the administrative hearing. Tr. 3166. She testified that she lives with her fiancé and their three children, ages 17, 13 and 5. Tr. 33.
She drives around her neighborhood, for instance to the bank or the store across the street, but
she cannot drive long distances and her fiancé drove her to the hearing. Tr. 33-34. While
driving, she has been in two accidents backing into people because she can’t turn her head that
well when backing. Tr. 34.
As for things she does around the house, Civitarese explained that she does not prepare
meals like she used to. Tr. 34. It depends on the day; she has very bad pain days, days when she
does not get enough sleep, and gets bad headaches “because of nerve problems and stuff.” Tr.
34. On days when she cannot cook something, her fiancé will cook or they will order out. Tr.
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35. She can load a dishwasher and use a vacuum cleaner. Tr. 35. The house has steps that she
needs to take to go to her bedroom or bathroom. Tr. 35. She can do laundry but her family has
to carry it up and down the steps for her. Tr. 35. She goes grocery shopping and her fiancé
usually goes with her “because I can’t lift, like, the waters, things like that.” Tr. 36. She never
pushes the grocery cart. Tr. 36. She can maintain her personal care and hygiene but sometimes
needs help washing her hair or blow drying it. Tr. 36. She likes to spend time outside with her
kids. Tr. 36. She used to scrapbook a lot but can no longer do so. Tr. 37. She can make it to
her children’s school to meet with teachers but she cannot attend sporting events because it is
uncomfortable to sit in the bleachers. Tr. 39.
On a typical day, Civitarese stated that she gets up around 6:00 a.m. Tr. 39. She takes
her medications, gets a cup of coffee, lies on the couch, and monitors the older kids as they get
ready for school. Tr. 39. Her younger child does not go to school but goes to her neighbor’s
house where “he has friends and stuff.” Tr. 40. Her older son walks the younger one to the
neighbor’s house. Tr. 40. On a day she does not feel as bad, pain-wise, her youngest child will
stay home with her. Tr. 40. After her children have left the house, it takes a while for her to get
moving: “my energy level’s awful.” Tr. 40. She has no motivation for anything anymore. Tr.
40. She tries to get dressed sometimes and it takes her a long time to do that. Tr. 40. She may
pick up a couple of things here and there around the house and then she lies down and watches
television while propped up on pillows. Tr. 40. She gets uncomfortable sitting and standing
“and stuff”; she gets a burning pain. Tr. 40. She also gets fidgety if she sits too long. Tr. 52.
She makes phone calls if she needs to and doesn’t go “anywhere.” Tr. 40. She has a computer
but mostly uses her phone if she has to do something like pay a bill or check her bank account.
Tr. 40. She is alone during the day and naps between 1 to 2 1/2 hours, depending on how awful
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her sleep was the night before. Tr. 41. Sometimes she runs errands around the neighborhood, to
two nearby stores and the bank. Tr. 41. She does not drive far because she can’t check her blind
spot while driving. Tr. 42.
Civitarese explained the work she performed as a teller supervisor and the bank. Tr. 4243. She monitored and maintained the vault, made the schedule for the tellers, coached sales,
etc. Tr. 42. She had to lift coin boxes every day, multiple times a day. Tr. 43-44. The coin
boxes easily weighed more than 20 pounds but less than 50 pounds. Tr. 44. She also had to do a
lot of overhead reaching. Tr. 44. She left her job because of her injury. Tr. 44. She had a
worker’s compensation claim that was denied; it was found that she had degenerative disc
disease and her lifting duties at the bank, while perhaps irritating her problem, did not cause it.
Tr. 45. Prior to her job at the bank she worked as a telemarketer. Tr. 46. When performing that
job, she remained seated the entire time. Tr. 46. She also had worked at a day care center taking
care of babies and constantly lifted more than 20 pounds. Tr. 48.
Civitarese explained the history of her neck injury. Tr. 49. It happened suddenly while
she was working at the bank. Tr. 49. A few days later it was worse—when she drove and hit a
bump with her car it was excruciating—and she “finally” went to her doctor, Dr. Gigliotti. Tr.
49. They took an MRI and she learned that she had a herniated disc at C5 and 6. Tr. 49. She got
an injection; the next day she had to go to the hospital and they did fusion surgery. Tr. 49. She
thought that everything would be okay after that but the pain was “crazy still.” Tr. 49. Nothing
seemed to get better. Tr. 49. She was constantly visiting her doctor or the surgeon. Tr. 49.
Then she lost her insurance and was without it for about 1 or 1 ½ years. Tr. 50, 63. She has had
a total of three injections but she can’t get them anymore because she experiences excruciating
head pain the next day. Tr. 50. She started increasing her pain medications. Tr. 50. Her life has
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changed. Tr. 50. As soon as she wakes and tries to sit like a normal person, “tears, because the
pain which is the worst part of this whole thing...” Tr. 51. Her normal pain is what she is used
to everyday. Tr. 51. One day she wakes up and she can’t move, and her fiancé or daughter has
to stay home to help her; she can’t even get out of bed and she remains bedridden for up to two
weeks. Tr. 51. It’s “crazy” that she is taking her medications, which are strong. Tr. 51. She
twitches a lot, especially her left eye, and sometimes her body jolts, especially when she is
sleeping. Tr. 51. Also, some days she can’t grab things; one time she dropped a gallon of milk
out of the fridge. Tr. 51. The day before the hearing she had no feeling in three of her toes. Tr.
52. Sometimes she has no feeling in her left shoulder. Tr. 53. She has to have a nerve study
done to see if her nerves can be fixed. Tr. 52. She doesn’t sleep at night and always has to get
up and take pain medication in the middle of the night. Tr. 52. She also has to adjust her
position a lot, moving pillows around. Tr. 53. Her mind races when she tries to fall asleep. Tr.
53. She also has lumbar spine issues that “kick in” when she does “standing stuff” but those are
not so severe. Tr. 54.
Civitarese takes oxycodone for pain; on mild pain days it helps “perfectly.” Tr. 54. But
on days that she struggles and has a pretty bad day, which she has more frequently than better
days (4 bad days a week), her medication has never taken her pain away fully. Tr. 54, 65. She
also takes tramadol “in between sometimes” when her pain is really bad. Tr. 57. Her
medications make her feel groggy, constantly tired, like she wants to pass out all the time, give
her “awful” memory loss, and she gets headaches a lot. Tr. 57-58.
Civitarese testified that she could probably lift and carry three pounds, and even that
much weight would start to “annoy” her neck and back. Tr. 58. She can no longer carry a purse
or wear high heels. Tr. 58. She can stand for maybe an hour before she needs to sit down and
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she prefers sitting to standing. Tr. 58. If she has to wait in line at the pharmacy for an hour and
there is a seat she will sit. Tr. 58. She can sit for about 20 or 30 minutes before she will lie back
on propped-up pillows. Tr. 59. She can walk for about an hour. Tr. 59. Her difficulty is on her
left side although her doctors are surprised because she has a bulging disc on the right side of her
cervical spine. Tr. 60. They think it might be something wrong with her fusion surgery and now
they want to take an x-ray instead of an MRI. Tr. 60-61. They think it is something that may
have happened after she had her October MRI. Tr. 61. Also, she does not have mobility in her
neck due to her fusion surgery, she can only turn it so far, and that is why she does not like to
drive anywhere. Tr. 62-63.
Civitarese stated that she has problems reaching overhead always and less of a problem
reaching “on more subtle down days.” Tr. 65. Her pain is made worse by lying down without
being propped up, sitting, and standing for certain amounts of time. Tr. 66. She can’t do
anything physical like play with her child at the playground and turning her head hurts. Tr. 66.
2. Vocational Expert’s Testimony
Vocational Expert (“VE”) Mark Anderson testified at the hearing. Tr. 66-74. The ALJ
discussed with the VE Civitarese’s past work as a teller supervisor, telemarketer and child care
provider. Tr. 67-69. The ALJ asked the VE to determine whether a hypothetical individual with
Civitarese’s age, education and work experience could perform her past work if the individual
had the following characteristics: can lift and carry 10 pounds occasionally, stand and walk for 2
hours and sit for 6 in an 8-hour workday, would need a sit/stand option every hour for about 5
minutes but would not leave the workstation during that time, can balance, can occasionally
climb ramps and stairs but not ladders, ropes or scaffolds, can occasionally stoop, kneel, crouch
and crawl, can frequently reach in front and occasionally overhead, cannot push or pull with the
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non-dominant, left upper extremity, can handle, finger and feel, and can have no exposure to
hazardous conditions such as unprotected heights, moving machinery or extreme cold
temperatures. Tr. 70. The VE answered that such an individual could perform Civitarese’s past
relevant work as a telemarketer. Tr. 70. The ALJ asked the VE if his answer would change if
the ALJ further limited the hypothetical individual to occasional overhead reaching with the
dominant arm but no overhead reaching with the non-dominant arm and only occasionally
reaching to shoulder height. Tr. 70-71. The VE stated that his answer would not change. Tr. 71.
Next, the ALJ asked the VE if the hypothetical individual described in the first
hypothetical could still perform the job of telemarketer if that individual had the following,
additional limitations: can perform simple, routine tasks with simple, short instructions, make
simple decisions, have few workplace changes, and have only superficial interaction (no
negotiation or confrontation) with co-workers, supervisors, and the public. Tr. 71. The VE
answered that such an individual could no longer perform work as a telemarketer. Tr. 71. The
ALJ asked the VE if such an individual could perform any other work and the VE responded that
the individual could perform work as a bonder (2,500 regional jobs; 10,000 Ohio jobs; 110,000
national jobs), touchup screener (1,700 regional jobs; 5,200 Ohio jobs; 158,000 national jobs),
and heat sealer (2,000 regional jobs; 16,000 Ohio jobs; 180,000 national jobs). Tr. 72. The ALJ
asked if the VE’s answer would change if the hypothetical individual would be unable to work in
a position in which her head would be static, i.e., held in a fixed position, and she could only
occasionally turn her head from side to side and look up and down occasionally. Tr. 72. The VE
replied such a limitation would not impact the jobs he identified. Tr. 73. The ALJ asked the VE
if his answer would change if the individual would be absent at least three times per month and
the VE stated that such a limitation would preclude the work he previously identified. Tr. 73-74.
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III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.
If claimant is doing substantial gainful activity, he is not disabled.
2.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
3.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a listed
impairment, claimant is presumed disabled without further inquiry.
4.
If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.
5.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.
16
20 C.F.R. §§ 404.1520, 416.920;4 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In her August 21, 2015, decision, the ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2017. Tr. 16.
2. The claimant has not engaged in substantial gainful activity since February 10, 2012, the
alleged onset date. Tr. 16.
3. The claimant has the following severe impairments: degenerative disc disease of the
cervical spine, lumbar spine disc herniation, depression, and anxiety. Tr. 16.
4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. Tr. 17.
5. The claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(b) except that she can lift/carry 10 pounds occasionally, stand/walk
2 hours, and sit for 6 hours with a sit/stand option every hour for 5 minutes. She can
balance, and occasionally climb stairs/ramps, but not ladders, ropes, or scaffolds. She
can occasionally stoop, kneel, crouch, crawl, and frequently reach in front. She can
occasionally reach overhead. She cannot push or pull with the left upper extremity, but
she can handle, feel, and finger. The claimant is precluded from hazards and extreme
cold. She can perform simple routine tasks with simple, short instructions, make simple
decisions, have few workplace changes, and is limited to superficial interaction with
coworkers, supervisors and the public. Tr. 19.
6. The claimant is unable to perform any past relevant work. Tr. 21.
4
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
17
7. The claimant was born on February 22, 1980 and was 31 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. Tr. 21.
8. The claimant has at least a high school education and is able to communicate in English.
Tr. 21.
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant
is “not disabled,” whether or not the claimant has transferable job skills. Tr. 21.
10. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform. Tr. 21.
11. The claimant has not been under a disability, as defined in the Social Security Act, since
February 10, 2012, through the date of this decision. Tr. 22.
V. Parties’ Arguments
Although Civitarese’s brief is organized in a way that suggest numerous objections to the
ALJ’s decision, she essentially objects to the ALJ’s decision on one ground: the ALJ’s treatment
of treating physician Dr. Gigliotti’s opinion. Doc. 14, pp. 14-27. In response, the Commissioner
submits that the ALJ did not err when she considered Dr. Gigliotti’s opinion and that her
decision is supported by substantial evidence. Doc. 17, pp. 6-19.
VI. Legal Standard
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
18
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
VII. Analysis
Civitarese advances numerous arguments in support of her position that the ALJ erred
when she considered treating physician Dr. Gigliotti’s opinion.
A. The ALJ discussed Civitarese’s MRIs and other evidence
Civitarese claims that the ALJ “conspicuously failed to mention the key MRI’s in the
record, including a recent October 2014 MRI showing a new disc herniation.” Doc. 14, pp. 1516, 17, 20. This is incorrect. The ALJ discussed Civitarese’s October 2014 MRI showing a
right-sided herniated disc. Tr. 17. The ALJ also discussed Civitarese’s January 2012 lumbar and
cervical MRIs. Tr. 17. The ALJ did not discuss Civitarese’s February 2012 MRI. However, this
MRI was taken three days before her cervical fusion surgery (Tr. 251-252, 297), which the ALJ
discussed. Tr. 17. Civitarese does not allege that there is any finding in the February 2012
cervical MRI taken three days before her cervical fusion surgery that is relevant to her arguments
challenging the ALJ’s treatment of Dr. Gigliotti’s opinion. Moreover, the fact that the ALJ
discussed Civitarese’s MRI findings in the Step Three portion of her decision and did not
reproduce that discussion when explaining the weight she gave to Dr. Gigliotti’s opinion was not
error. See Crum v. Comm’r of Soc. Sec., 660 Fed. App’x 449, 457 (6th Cir. Sept. 2, 2016) (The
ALJ was not required to reproduce her discussion of treatment records when explaining the
weight she gave to the treating physician).
Civitarese also complains that the ALJ “ignores the wealth of evidence about the cervical
limitations, and long treatment history, including narcotic prescriptions, pain management and
surgery.” Doc. 14, p. 16. It is not clear what Civitarese means by “cervical limitations” that the
19
ALJ purportedly ignored. The ALJ discussed (and thus did not ignore) Civitarese’s long
treatment history (Tr. 20, “Longitudinally, claimant has a history of neck pain and left arm
weakness before and after surgery.”; Tr. 17-18); pain management, including medication; and
her surgery (Tr. 17, 20).
B. The ALJ did not violate the treating physician rule
Civitarese argues that the ALJ violated the treating physician rule when she gave Dr.
Gigliotti’s opinion less than controlling weight. Doc. 14, p. 15. Under the treating physician
rule, “[a]n ALJ must give the opinion of a treating source controlling weight if he finds the
opinion well supported by medically acceptable clinical and laboratory diagnostic techniques and
not inconsistent with the other substantial evidence in the case record.” Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2). If an ALJ decides to
give a treating source’s opinion less than controlling weight, she must give “good reasons” for
doing so that are sufficiently specific to make clear to any subsequent reviewers the weight given
to the treating physician’s opinion and the reasons for that weight. Wilson, 378 F.3d at 544. In
deciding the weight given, the ALJ must consider factors such as the length, nature, and extent of
the treatment relationship; specialization of the physician; the supportability of the opinion; and
the consistency of the opinion with the record as a whole. See 20 C.F.R. § 416.927(a)-(d);
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007).
The ALJ gave Dr. Gigliotti’s February 16, 2015, opinion “some” weight, finding it
inconsistent with the substantial evidence of record. Tr. 20. Specifically, the ALJ observed that
Dr. Gigliotti’s treatment note dated the same day as his opinion showed that Civitarese had a
normal gait, sensations, reflexes, and good to normal muscle strength. Tr. 20. The ALJ also
commented that Dr. Gigliotti had previously opined that Civitarese could lift up to ten pounds,
20
should not lift heavy coin boxes, and that both Drs. Gigliotti and Farber agreed that she should
not lift heavy objects as defined by the Department of Labor.5 Tr. 20. In other words, the severe
limitations Dr. Gigliotti assessed Civitarese to have on February 16, 2015, were not supported by
the objective exam findings made by Dr. Gigliotti on the same day and were also more restrictive
than Dr. Gigliotti’s two prior opinions and those of another doctor, Dr. Farber. This evidence
cited by the ALJ is inconsistent with Dr. Gigliotti’s opinion; thus, the ALJ explained why she did
not give controlling weight to Dr. Gigliotti’s opinion. See Wilson, 378 F.3d at 544 (treating
source opinion entitled to controlling weight if the ALJ finds the opinion “well supported by
medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the
other substantial evidence in the case record.”).
Moreover, elsewhere in her decision, the ALJ detailed other evidence of record, including
MRI results; visits with pain management Drs. Salama and Rhiew; an x-ray taken after
Civitarese’s surgery; her longitudinal history of neck pain and arm weakness before and after
surgery; examination findings; treatment, including medication; and her complaints of pain. Tr.
17-18, 20. The ALJ commented that, in 2012, Dr. Gigliotti “conceded that [Civitarese’s]
continuing complaints of left shoulder and left arm pain were out of proportion to the underlying
clinical findings” and that pain management specialist Dr. Rhiev opined that her “complaints of
left upper extremity pain were inconsistent with the results of [the October 2014] MRI, which
showed a right sided herniated disc.” Tr. 17. Civitarese does not challenge this evidence. The
ALJ did not err when finding that the above evidence did not support Dr. Gigliotti’s February 16,
5
The Department of Labor’s classification of heavy duty lifting is akin to the DOT and Social Security Regulations:
occasionally lifting up to one hundred pounds, frequently up to fifty pounds, and constantly up to twenty pounds.
The category below heavy duty, which is medium duty, allows occasional lifting of up to fifty pounds. See Scott M.
Fishman, Bonica’s Management of Pain, p. 1500 (4th ed. 2012), available at http://tinyurl.com/y9cgxf29 (last
accessed Dec. 4, 2017); 20 C.F.R. § 404.1567(d) (“Heavy work involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine
that he or she can also do medium, light, and sedentary work.”).
21
2015, opinion. In other words, the ALJ gave good reasons for the weight she gave to Dr.
Gigliotti’s opinion. See 20 C.F.R. § 404.1527(c)(2). (If an ALJ decides to give a treating source
opinion less than controlling weight, she considers factors such as the length, nature, and extent
of the treatment relationship; specialization of the physician; the supportability of the opinion;
and the consistency of the opinion with the record as a whole).
Civitarese complains that it was unfair of the ALJ to cite to Dr. Gigliotti’s exam findings
dated the same day as his opinion, asserting that Civitarese was there that day with a chief
complaint of anxiety, not physical complaints. E.g., Doc. 14, pp. 15, 21. Nevertheless, Dr.
Gigliotti physically examined Civitarese that day and documented his physical findings (Tr.
553), which he did not always do when she visited (see, e.g., Tr. 550). Furthermore, that day,
Civitarese reported “continued” neck pain and “more problems” with her arm and hand and had
her disability form for Dr. Gigliotti to fill out. Tr. 551. The fact that Civitarese’s chief
complaint that day was not her physical pain does not undercut Dr. Gigliotti’s examination
findings, which were largely normal and, therefore, did not support his opinion that Civitarese
was as severely limited as he opined. Civitarese speculates that the ALJ “neglected to account
for the possibility of temporary improvement or a lull in symptoms.” Doc. 14, p. 21. The ALJ is
not required to consider possible reasons explaining objective exam findings, especially when, as
here, Civitarese complained to Dr. Gigliotti that day of “continued neck pain” and “having more
problems with her left arm and hand.” Tr. 551. She did not report to him that she was
experiencing a lull in her symptoms. Moreover, Civitarese does not identify other physical exam
findings taken by Dr. Gigliotti that she believes support his opinion assessing severe limitations.
Civitarese asserts that the ALJ did not mention the “active problems” section of the
treatment note from her visit with Dr. Gigliotti, which lists her diagnoses. Doc. 14, p. 20. But
22
the ALJ considered Civitarese’s diagnoses (Tr. 16) and a list of diagnoses does not equate to a
finding of disability.
Civitarese cites other evidence in the record that she believes supports Dr. Gigliotti’s
opinion. She details her subjective complaints and asserts that her MRIs showed that her disc
herniations caused stenosis, fluid displacement and nerve signal loss. Doc. 14, p. 17 (citing Tr.
392, 556). But the MRIs showing stenosis and fluid displacement were pre-surgery (Tr. 393,
252), and the nerve signal loss at C5-6 was post-surgery and was “as would be expected after
anterior cervical fusion.” Tr. 556. Otherwise, her herniation at C5-6 had been “surgically
corrected” and had a “satisfactory appearance.” Tr. 556. Doc. 14, p. 17. Moreover, whether
there is evidence in the record to support Dr. Gigliotti’s opinion is not the issue before the Court.
The issue before the Court is whether the ALJ’s decision is supported by substantial evidence. It
is; therefore, it must be affirmed. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir.
2003) (the Commissioner’s decision is upheld so long as substantial evidence supports the ALJ’s
conclusion).
Finally, Civitarese appears to assert that the ALJ gave more weight to the state agency
reviewer’s opinion than Dr. Gigliotti’s opinion. Doc. 14, pp. 23-24. But the ALJ gave “some”
weight to both the state agency reviewer’s opinion and Dr. Gigliotti’s opinion. Tr. 20.
Moreover, the fact that an ALJ gives less weight to a treating physician’s opinion than a state
agency reviewing physician’s opinion is not, standing alone, reversible error. See SSR 96-6p,
1996 WL 374180, at *3.
In sum, the ALJ did not violate the treating physician rule when she gave “some” weight
to Dr. Gigliotti’s opinion.
23
VIII. Conclusion
For the reasons set forth herein, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Dated: December 21, 2017
____________________________________
Kathleen B. Burke
United States Magistrate Judge
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