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Cardoso v. Colvin

United States District Court, D. Massachusetts

July 25, 2014

ESMERALDA CARDOSO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REMAND AND REVERSE AND DEFENDANT'S MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

F. DENNIS SAYLOR, IV, District Judge.

This is an appeal of a final decision of the Commissioner of the Social Security Administration denying the application of plaintiff Esmeralda Cardoso for Social Security Disability Insurance ("SSDI") benefits. Cardoso contends that she has been disabled since July 12, 2009, after being injured at work. She has appealed the Commissioner's denial of her claim on the ground that the decision is not supported by "substantial evidence" as required by 42 U.S.C. ยง 405(g). Specifically, Cardoso contends that the Administrative Law Judge ("ALJ") erred by (1) misconstruing the medical evidence and the law, (2) by excluding evidence of her visits to a chiropractor, and (3) by failing to give appropriate consideration to her complaints of pain.

Pending before the Court is plaintiff's motion for an order reversing the decision of the Commissioner and defendant's cross-motion for an order affirming the decision of the Commissioner. For the reasons stated below, the motion to affirm will be granted and the motion to reverse will be denied.

I. Background

Plaintiff Esmeralda Cardoso was born on July 10, 1965. (A.R. at 127). She is currently 48 years old. ( Id. ). She attended school as far as the eighth grade in Cape Verde. (A.R. at 33-34). In the past, she has worked as an assembler, a certified nursing assistant ("CNA"), and a stitcher. (A.R. at 19). She was working as a CNA when the injury at issue occurred. (A.R. at 198).

A. Injury and Medical Evidence

Cardoso injured her back on July 12, 2009. At the time, she was preventing a patient from falling while working as a CNA. ( Id. ). She felt severe pain in her back that forced her to stop working for the day. (A.R. at 234). The following day, July 13, she went to Braintree Rehabilitation Hospital, complaining of sharp and intermittent pain to the lumbar area. (A.R. at 198). She reported that the pain caused her some difficulty sleeping, and that bending and twisting increased the pain. ( Id. ).

On examination, Cardoso had a normal stance and a slightly antalgic gait. ( Id. ).[1] She had moderate tenderness, but no palpable spasm in the lower back spinal muscles. ( Id. ). The lower extremity examination suggested normal sensation, with no straight-leg raise sign or Patrick's sign. ( Id. ).[2] She was instructed to use ice to reduce swelling, and was prescribed Naprosyn and Flexeril. ( Id. ).[3] Cardoso was also started in physical therapy and was told that she could do restricted work. ( Id. )

On July 29, 2009, Cardoso returned to Braintree Rehabilitation Hospital. (A.R. at 199). She complained of continuing lower back pain, occasionally radiating toward the middle of her back. ( Id. ). She had a normal stance and gait, and moderate tenderness without palpable spasm in the lower back muscles. ( Id. ). She also had increased pain and increased lumbar lordosis, or curvature of the spine. ( Id. ). The lower extremity examination showed normal sensation and no straight-leg raise sign. ( Id. ). She had not begun physical therapy due to a vacation, but was scheduled for an evaluation the following day. ( Id. ). Her clinician advised her to continue her medications and that she could perform light duty. ( Id. ).

Cardoso returned to Braintree Rehabilitation Hospital for a third time on August 5, 2009. (A.R. at 200). She complained of pain throughout her back, concentrated on her lumbar area. ( Id. ). She had tenderness to moderate palpitation throughout her back, again most prominent in the lumbar muscles. ( Id. ). The lower extremity examination was mostly normal, except that she had increased lumbar pain with straight-leg raising. ( Id. ). Again, the clinician advised her that she could do light duty and should continue physical therapy. ( Id. ). The clinician also recommended a second opinion from a physiatrist. ( Id. ).

Cardoso underwent a physiatry evaluation with Dr. Janet Limke on August 13, 2009, at Braintree Rehabilitation Hospital. (A.R. at 201). She complained that her back pain was unimproved despite taking her medications and completing five sessions of physical therapy. ( Id. ). She also stated that she recently ran out of medication and that her back pain was a five to seven on a ten-point scale in intensity. ( Id. ). She further complained that she had difficulty sleeping, and recalled a previous back injury that she suffered after a motor vehicle crash years ago. ( Id. ) She contended that she had been fully recovered from this before her back injury on July 12, 2009. ( Id. ). During her physical examination, lumbar flexibility was limited by pain to seventy degrees forward bending, fifteen degrees extension, and twenty degrees side bending in each direction. ( Id. ). Her walk was slow with a non-antalgic gait. ( Id. ). Her lower extremity strength was restricted by poor effort do to her back pain, but no focal weakness was indicated. ( Id. ). Straight-leg raise aggravated the pain at approximated fifty degrees, and seated straight-leg raise was negative. ( Id. )

Dr. Limke concluded that Cardoso likely had an annular tear or disc protrusion without signs of neurologic impairment. ( Id. ).[4] Dr. Limke assured her that she could safely work through pain in order to restore function to the spine, and that her condition would improve with time and progressive exercises. ( Id. ). Dr. Limke prescribed a prednisone taper and renewed her prescriptions for Flexeril and Naprosyn. ( Id. ).[5] She told Cardoso that she believed it would be safe for her to do light lifting up to ten pounds, and to do light tasks, before her next visit. ( Id. ). Dr. Limke encouraged the physical therapist to begin progressive lifting, even with very light weight. ( Id. ).

Cardoso returned to see Dr. Limke on August 27, 2009. (A.R. at 202). She reported no significant improvements in her lower back pain despite having followed the prednisone taper. ( Id. ). Further, she complained of significant pain radiation down her right leg. ( Id. ). She had made little progress in physical therapy, and the physical therapist had indicated significant pain behaviors with all activities. ( Id. ). A physical examination showed results similar to the previous one, except there was some decreased sensation on the right side of her back, and she reported mild discomfort on her right side when straight-leg raise was done to eighty degrees. ( Id. ). Dr. Limke noted that she could only lift eighteen pounds with great effort at physical therapy. ( Id. ). Dr. Limke decided to proceed with an MRI scan of the lumbar spine. ( Id. ). Dr. Limke put physical therapy on hold in the interim, but did not change the work recommendations. ( Id. ).

On September 10, 2009, Cardoso again returned to Dr. Limke after an MRI scan on September 2. (A.R. at 203). Dr. Limke noted that the MRI demonstrated spondylolysis without spondylolistheses on the L5 vertebra, central disc protrusion at L5-S1, disc bulging that mildly impinged on L5 nerve roots, and right disc protrusion at L4-5 contacting right L4 nerve roots. ( Id. ).[6] The physical examination indicated spinal motion limited to ninety degrees forward bending and fifteen-degree extension. ( Id. ). Dr. Limke concluded that she had low-back pain with radiation from the right lumbar region, and no signs of focal neurologic impairment. ( Id. ) He observed that lumbar deconditioning and central disc protrusion made it hard for her to lift and bend. ( Id. ).

Dr. Limke assured Cardoso that it was safe to work through pain in order to restore spinal function, and encouraged her to continue physical therapy including progressive lifting and spine conditioning. ( Id. ). Dr. Limke also suggested spine steroid injections to break the pain cycle and help her adapt to the change more quickly. ( Id. ). Finally, Dr. Limke told her to continue taking Naprosyn and Flexeril, and that she was able to work a light-duty position lifting ten pounds or less. ( Id. ).

Dr. Limke saw Cardoso again on October 8, 2009, for a re-evaluation. (A.R. at 204). She reported that she had seen little improvement in the pain as a result of therapy, and could only lift up to six pounds. ( Id. ). She showed small improvement on the physical examination, bending forward seventy degrees with pain, twenty degrees to each side, and extension to fifteen degrees. ( Id. ). Her strength was intact, and no calf atrophy was observed. ( Id. ). Dr. Limke's impression was low-back pain with underlying disc protrusion and no signs of neurological impairment. ( Id. ). She ordered an epidural steroid injection for the central disc protrusion. ( Id. ). Cardoso declined and instead sought to obtain a second opinion and continue therapy. ( Id. ).

Dr. Limke advised Cardoso to continue physical therapy. She again advised that it was appropriate for her to continue working through the pain with strength training in order to restore spinal function. ( Id. ). She thought it not unreasonable to do a return-to-work trial in about one month, even if some symptoms remained. ( Id. ).

Cardoso sought a second opinion from Dr. Raymond Pavlovich at Orthopedic Care Specialists on October 14, 2009. (A.R. at 234). She reported that her symptoms had initially been restricted to her lower back, but that the pain had since spread to her legs, primarily her right. ( Id. ). Dr. Pavlovich's assessment was lumbar degenerative disease with chondrolysis of the L5 vertebra. ( Id. ).[7] He believed she was already on the correct medications. He discussed epidural steroid injections with her, and referred her to Dr. Anthony Wong to schedule injections. (A.R. at 235).

Cardoso returned to Dr. Limke on November 5, 2009. (A.R. at 205). She reported no significant change in her pain, and indicated that she would not proceed with the recommended epidural injection. ( Id. ). She showed no significant improvements in functional intolerance despite completing physical therapy, and was not able to demonstrate her exercise program for home use. ( Id. ). She reported that her prior job had not been able to accommodate her. ( Id. ). On physical examination, Dr. Limke noted that she had a hard time demonstrating exercises, exhibited a lot of pain behaviors even with simple movements, and provided limited effort with manual muscle testing of her lower extremities. ( Id. ). No fasciculations or atrophy were noted, and her gait was normal. ( Id. ).[8]

Dr. Limke's impression was chronic low-back pain with disc degeneration and history of strain injury. ( Id. ). She observed no significant neurological impairment, and concluded that Cardoso either had a limited understanding of what she should be doing on her own or was being noncompliant with her exercise program. ( Id. ). She recommended that Cardoso could return to work with occasional lifting up to twenty-five pounds, and frequent lifting up to ten pounds, even if her symptoms were ongoing. ( Id. ). She again prescribed Flexeril, and noted that she would be arranging future care with another physician. ( Id. ).

Cardoso returned to Orthopedic Care Specialists on November 23, 2009, to see Dr. Wong. (A.R. at 237). She reported pain in her lower back, with an average of seven on a ten-point scale, but ranging from five to nine. ( Id. ). She reported the pain was exacerbated by walking, lifting, bending, lying, standing, or sitting. ( Id. ). Heat could somewhat alleviate the pain. ( Id. ). Dr. Wong's impression was not significantly different to that of Dr. Limke. (A.R. at 238). Because little improvement had been seen with conservative methods, he recommended lumbar epidural injections. ( Id. ).

Cardoso received her first lumbar epidural steroid injection on December 22, 2009. She returned to see Dr. Wong on January 14, 2010. (A.R. at 240-241). She noted that the first injection resulted in about one week of thirty percent benefit, and that the pain had since returned. (A.R. at 241). Dr. Wong suggested a lower extremity EMG to further evaluate the presence of radiculopathy. ( Id. ).[9]

On March 1, 2010, Dr. Wong concluded that the EMG showed mild bilateral L4, L5 radiculopathy. (A.R. at 243). He assessed the radiculopathy as likely resulting from L5-S1 disk protrusion. ( Id. ). Cardoso agreed to schedule a second lumbar epidural steroid ...


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