SHARON L. GLEASON, District Judge.
On June 19, 2012, Cheri Lynn Gray filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("the Act") respectively,
Ms. Gray filed an opening brief seeking a remand for the payment of benefits.
A decision by the Commissioner to deny disability benefits will not be overturned unless it is either not supported by substantial evidence or is based upon legal error.
The Act provides for the payment of disability insurance to individuals who have contributed to the Social Security program and who suffer from a physical or mental disability.
The Act further provides:
The Commissioner has established a five-step process for determining disability within the meaning of the Act.
Before proceeding to step four, a claimant's residual functional capacity ("RFC") is assessed. Once determined, the RFC is used at both step four and step five. An RFC assessment is a determination of what a claimant is able to do on a sustained basis despite the limitations from her impairments, including impairments that are not severe.
The ALJ concluded that Ms. Gray was not disabled from December 29, 2011 through the date of the decision.
Ms. Gray was born in 1973; she was 38 years old on December 29, 2011.
On December 5, 2012, the Social Security Administration ("SSA") determined that Ms. Gray was not disabled under the applicable rules.
Although Ms. Gray's medical record dates back to 2003, the Court's review of the record is primarily focused on the period after the alleged onset date of December 29, 2011, which is the date on which Ms. Gray sustained a back injury at her place of work while "transporting a patient from his dialysis into his wheelchair."
However, the following records before December 2011 are noted:
On January 7, 2003, Ms. Gray visited the emergency department at Providence Alaska Medical Center ("Providence"). She indicated she had injured her back two months ago while at work, with considerable pain thereafter. She was assessed with "[a]cute and subacute thoracic and lumbar back strain."
On February 5, 2003, Ms. Gray saw Michael James, M.D., at Alaska Spine Institute. He noted that Ms. Gray had a normal straight leg raising test and normal sensation, strength, and reflexes in the lower extremities. He also noted that Ms. Gray had undergone an MRI "which is unremarkable" and that "x-rays demonstrate thoracic scoliosis." He scheduled her for thoracic facet blocks to "manage her pain."
From approximately March 3, 2003 to June 5, 2003, Ms. Gray underwent physical therapy for treatment of mid-back pain.
On April 26, 2003, Ms. Gray underwent a medical evaluation by James P. Robinson, M.D., PhD. He diagnosed her with a "nonspecific diagnosis of thoracic strain," but that there were "no unequivocal objective findings to support this diagnosis." He noted that Ms. Gray reported "rather substantial disability associated with her pain" and that her "score of 50 on the Impairment Impact Inventory is substantially higher than most individuals undergoing independent medical examinations." Dr. Robinson opined that Ms. Gray "warrants DRE Category II, or 5% whole person impairment of the thoracic spine."
On July 11, 2003, Ms. Gray went to the emergency department at Providence due to thoracic back pain. She was diagnosed with back strain. She reported having "trouble with her back since last November" and "was at work feeling well when she slipped on some water wrenching her back." She was assessed with back strain and prescribed Vicodin, Flexeril, Demerol, and Vistaril.
On July 29 and August 12, 2003, Ms. Gray visited Dr. James for follow up. At the visit on August 12th, Dr. James noted that she had an "absolutely normal MRI" and again noted that Ms. Gray had a "lack of pathology to explain her severe increase in symptoms and that this must be attributed to a thoracic strain if her facet joint injections do not provide any relief."
On June 17, 2008, Ms. Gray again went to the emergency department at Providence. She reported upper back sprain after pulling out a sleeper couch for a patient.
On February 2, 2010, Ms. Gray went to Providence's emergency department for "severe back pain" after a slip and fall while at work.
On May 19, 2011, Ms. Gray saw Kristofer A. Sargent, M.D. for an office visit at Providence Family Medicine Clinic ("PFMC"). Ms. Gray reported "excruciating upper back pain" and received a trigger point injection in the left scapular area. She was "encouraged to resume normal activity and to continue walking tonight." Her prescriptions included zolpidem, metformin, diphenhydramine, hydrocodone-ibuprofen, oxycodone-acetaminophen, cyclobenzaprine, ondansetron, bisacodyl, ibuprophen, estradiol cypionate, cholecalciferol, varenicline, metaxalone, and lidocaine.
At 2:15pm on December 30, 2011, Ms. Gray went to the emergency department at Providence with upper back pain "after lifting a patient last night." The provider, Andrew Elsberg, M.D., reported that Ms. Gray's physical exam revealed "paraspinous tenderness of the T-spine," but "normal extremity strength and sensation," with "no evidence of hyperreflexia," and "no midline tenderness." Dr. Elsberg diagnosed Ms. Gray with back strain and noted "[s]he will be put on light duty for the next week." The report lists the following medications: ibuprofen, zolpidem tartrate, estradiol cypionate, cholecalciferol, varenicline tartrate, metaxalone, metformin, and diphenhydramine.
On January 3, 2012, Ms. Gray received x-rays of her thoracic and lumbar spine. The impressions showed moderate thoracolumbar and thoracic spinal scoliosis, some degenerative changes within the upper to midthoracic spine, and minimal endplate depressions within the midthoracic spine. A MRI of Ms. Gray's lumbar spine showed that "bone alignment is normal," "disk contours are normal," and showed no "disk hernia or other disk abnormalities." An "[i]ncidental L1 vertebral body hemangioma" was noted; otherwise the MRI of Ms. Gray's thoracic spine was normal.
On January 11, 2012, Ms. Gray again saw Christina Brown, D.O., at PMFC, and reported back pain. Dr. Brown noted that Ms. Gray "was in in the [emergency department] and given a [prescription] for Percocet and Flexeril," but that Ms. Gray "didn't fill these because she doesn't like to take medications." Dr. Brown also noted that Ms. Gray reported "[s]he is not taking any medications at this time including diabetic medications— no reason given."
On January 17, 2012, Ms. Gray saw Beth Cant, M.D., at PFMC; she reported worsening low back pain. Dr. Cant noted that Ms. Gray had undergone x-rays and MRIs of her thoracic and lumbar spine, but that "no marked abnormalities [were] found on these exams." During the physical exam, Dr. Cant reported that Ms. Gray refused "to display her back range of motion" or sit on the exam table. The doctor also noted that "while distracting this patient, she did not complain of pain while pressing on her lumbar spine and right sided paraspinal muscles. However, when I asked if this was painful, she then winced." Ms. Gray's straight leg raise was negative bilaterally; her lower extremity strength was +5 over 5 on the left and right "other than with dorsiflexion and flexion at the knee which was +4/5." Dr. Cant referred Ms. Gray to the Alaska Spine Institute and gave her a work release for one week.
On January 18, 2012, Dr. Cant filled out a Worker Status Report that released Ms. Gray to "modified duty" from January 20, 2012 to January 27, 2012. In the report, Dr. Cant reported a "[d]ecreased range of motion with lumbar flexion, extension, bilateral rotation," with "+4/5 [right] lower extremity strength with dorsiflexion of ankle and flexion [at the] knee," and +1/4 reflexes for Ms. Gray's patellar/Achilles and "+2/4 on [the] left." Dr. Cant projected that Ms. Gray could resume "full duty" work on January 30, 2012.
On January 19, 2012, Ms. Gray saw Dr. Sargent for "re-evaluation of her ongoing back pain." Dr. Sargent noted that Ms. Gray was "in obvious discomfort sitting awkwardly." He observed "[n]o bony tenderness," "strength equal bilaterally," but "[p]araspinal pain and tightness," with "[s]everal trigger points in upper and lower back elicit severe pain." Dr. Sargent also noted that Ms. Gray walked "with a smooth gait" and her "mood is upbeat, affect full, insight and judgement good."
On February 1, 2012, Ms. Gray saw Daryl Chalifour, D.C., at Bilan Chiropractic. She reported neck, mid-back and lower-back pain. She told the doctor about her work related injury on December 29, 2011, and indicated she had "never injured her same area before." She reported that "her symptoms are aggravated when she bends, uses a computer, sleeps, flexes and extends, is working, stands up, drives, is under stress and goes up stairs" and that her symptoms are relieved when she takes prescription medications. Dr. Chalifour reported that "[t]esting of [Ms. Gray]'s cervical range of motion produced the result of decreased cervical flexion with pain, extension with pain, left rotation with pain, right rotation with pain, left lateral flexion with pain and right lateral flexion with pain." He observed the same in the lumbar spine. He also observed that "[b]iomechanical joint dysfunction was apparent over [Ms. Gray]'s C1, C6, T1, T6, T12, L5 and left SI vertebral segments." At the visit, Dr. Chalifour performed manual adjustments "over all restricted vertebral segments that were identified through a combination of x-ray analysis and motion palpation." He noted that "[a]ll segments moved well, and appropriate audible releases were heard with each adjustment." Dr. Chalifour reported that "[b]efore the visit was over, [Ms. Gray] stated that she felt better."
Also on February 1, 2012, Ms. Gray received x-rays of her full spine. The report found "[n]o evidence of recent fracture or dislocation; [e]arly mid and lower cervical spine degenerative disc disease with early mid apophyseal osteoarthritis; [e]arly to moderate thoracic spine degenerative disc disease with T9 and T10 costotransverse osteoarthritis; [e]arly to moderate L5-S1 degenerative disease with accompanying early lower lumbar apophyseal osteoarthritis; [and] [c]ervical hypolordosis with anterior weight bearing and a right lateral cervicothoracic list; right lateral thoracolumbar curvature."
On February 2, 2012, Ms. Gray again visited Dr. Chalifour. He reported that Ms. Gray "stated that her problems become better when she gets adjusted." Dr. Chalifour again reported that "[t]esting of [Ms. Gray]'s cervical range of motion produced the result of decreased cervical flexion with pain, extension with pain, left rotation with pain, right rotation with pain, left lateral flexion with pain and right lateral flexion with pain." Dr. Chalifour observed the same in the lumbar spine. He again observed that "[b]iomechanical joint dysfunction was apparent over [Ms. Gray]'s C1, C6, T1, T6, T12, L5 and left SI vertebral segments." Also at this visit, Dr. Chalifour performed manual adjustments "over all restricted vertebral segments that were identified through a combination of x ray analysis and motion palpation." He again noted that "[a]ll segments moved well, and appropriate audible releases were heard with each adjustment."
On February 3, 2012, Ms. Gray followed up again with Dr. Chalifour. Ms. Gray reported "increased low back pain radiating to the right leg while laying down." Dr. Chalifour's observations and reports regarding Ms. Gray's conditions were identical to the previous visits. He noted that "[b]ased upon the results so far, [Ms. Gray]'s prognosis is good because she is responding well to her chiropractic care."
On February 6, 2012, Ms. Gray followed up with Dr. Chalifour. At the visit, she stated that she was "doing worse than she was doing on her last visit." Dr. Chalifour's observations and reports were identical to the previous visits. He continued to note that "[b]ased upon the results so far, [Ms. Gray]'s prognosis is good because she is responding well to her chiropractic care."
Also on February 6, 2012, Ms. Gray saw Beth Wagner, D.O., at PFMC. Dr. Wagner observed that Ms. Gray appeared "very uncomfortable on the exam table." She diagnosed Ms. Gray with "lumbago; back pain, thoracic; somatic dysfunction of lumbar region; somatic dysfunction of thoracic region; and scoliosis." Dr. Wagner also noted that she "declined refills of [Ms. Gray's] pain meds," and instead deferred to Ms. Gray's primary care provider.
On February 7, 2012, Ms. Gray saw Dr. Sargent at PFMC; she again requested a refill of pain medication. Dr. Sargent declined the refills and deferred to Ms. Gray's primary care provider.
On February 8, 2012, Ms. Gray saw Dr. James at Alaska Spine Institute. Dr. James diagnosed Ms. Gray with "discogenic low back pain with some element of radiculopathy." Ms. Gray reported her pain had onset when she was injured on December 29, 2011 and since then had gotten worse. Upon examination, Dr. James reported impaired mobility of the lumbar spine, a positive straight leg test on the right, and mild hypesthesia of the posterior thigh. He noted that Ms. Gray's reflexes were +1 and symmetrical.
On February 9, 2012, Ms. Gray followed up with Dr. James. He indicated that "she probably has a bulge and annular tear at L4-5 on the right." He recommended an epidural steroid injection and physical therapy. He provided a prescription for Tylenol No. 3 and Flexeril.
At several visits, from February 8 to February 23, 2012, Ms. Gray saw Dr. Chalifour for follow up exams and adjustments. He reported at each visit that Ms. Gray's "current prognosis is good because she is responding well to her chiropractic care."
On February 15, 2012, Ms. Gray received epidural steroid injections at Alaska Spine Institute.
On February 28, 2012, Ms. Gray saw Dr. James for a follow up exam. She reported that following the epidural injection of February 15, 2012, "she has had 40% to 50% relief of her preinjection pain with regard to her low back. Her leg pain is reduced in its frequency but not intensity. There has been no relief of her mid back pain." He recommended continuing with chiropractic care and following up with a physical therapist.
On March 5, 2012, Ms. Gray had a physical therapy evaluation with Alan Blizzard, PT. He recommended physical therapy three times a week for range of motion and strengthening.
On March 8, 2012, Ms. Gray received physical therapy. The therapist noted that Ms. Gray reported continued soreness to lower back and right hip and had minimal palpable pain over the beltline on the right. The therapist noted that Ms. Gray was able to tolerate the exercises.
At chiropractic visits throughout March 2012, Dr. Chalifour reported that Ms. Gray's "prognosis was good" because she was "responding well to her chiropractic care."
On March 29, 2012, Ms. Gray saw Dr. James and reported "more severe back pain than previously," as well as hip pain. Upon examination, Dr. James observed "self-limited restriction of range of motion"; Ms. Gray's "[s]eated leg raise [was] negative" with "no specific weakness of either lower extremity."
Also on March 29, 2012, the physical therapist at Alaska Spine Institute reported that Ms. Gray experienced "on/off episodes" of increased and decreased pain in the lower back and right lower extremity. The therapist noted that "on [a] good day [Ms. Gray is] able to ambulate . . . and tolerate exercise."
On March 30, 2012, Ms. Gray returned to Dr. Chalifour for chiropractic treatment. She stated that she was "doing better" since her last office visit. Dr. Chalifour reported that Ms. Gray "let me know that her symptoms still improve when she gets adjusted."
On April 3, 2012, Ms. Gray returned to Dr. Chalifour. Although she reported doing worse than her last visit, Dr. Chalifour reported that she was still "responding well to her chiropractic care."
On April 4 and 5, 2012, Ms. Gray saw Dr. Chalifour. She reported "doing better" at the April 4th visit. The next day, Ms. Gray reported "doing worse." However, in both records of the appointments, Dr. Chalifour continued to opine that she was responding well to treatment.
In a physician's report on April 10, 2012, Dr. Chalifour opined that Ms. Gray could perform modified work as of February 20, 2012.
On April 17, 2012, Dr. Chalifour filled out an Employment Solutions form for the State of Alaska. In it, he opined that Ms. Gray would not "have the physical capacities to perform the physical demands" of her previous work as a dialysis technician, nurse assistant, or medical assistant. He also opined that at the time of medical stability, Ms. Gray "will incur a permanent impairment greater than 0 as a result of her neck and back injury."
During April and May 2012, Ms. Gray followed up with Dr. Chalifour. Throughout that time, he continued to opine that she was responding well to chiropractic treatment.
On May 15, 2012, Ms. Gray visited Andrew Fulp, PA-C, at Orthopedic Physicians Anchorage. He noted that upon examination, Ms. Gray "has a great deal of difficulty standing from a seated position and appears a little unsteady on her feet." He also observed that "[s]he can walk without assistance of her cane, but she again is unsteady and has a very slow and shuffling gait." He noted that "she has 3/5 strength in bilateral lower extremities to quadriceps function," and "4/5 bilateral lower extremity strength to EHL and anterior tibialis function." PA Fulp reported that she "is unable to extend any past neutral and in fact, is in a pitched forward position most of the time" and that the hip examination "shows pain with any type of maneuvering of the hip." He also observed a "negative bilateral straight leg raise." The x-rays ordered and interpreted by PA Fulp showed "generally well-maintained disk heights," "maybe slight disk space narrowing at L5 to S1," but "no significant anterior osteophyte formation and no significant instability with flexion/extension views." He noted normal and symmetric reflexes. PA Fulp concluded that he had "no great explanation as to why she is having such significant limited mobility and pain with any type of mobility. She generally has normal imaging." He reported that Ms. Gray declined his suggestion to try a new physical therapist.
On May 24, 2012, Dr. Chalifour completed an "excuse slip" indicating that Ms. Gray was unable to return to work because of "severe low back pain when standing, sitting, or lying down."
On June 5, 2012, Dr. Chalifour completed a physician's report for the Alaska Workers' Compensation Board. He concluded that Ms. Gray was not medically stable and that it was undetermined if the injury would permanently preclude return to work or result in a permanent impairment. He again noted that Ms. Gray had been released for modified work on February 20, 2012.
On June 7, 2012, Ms. Gray saw Franklin Ellenson, M.D., for a neurology consultation. Ms. Gray's chief complaint was "back pain." Dr. Ellenson noted normal muscle tone. He also reported that the "[s]trength of the deltoids, biceps, triceps, wrist flexors, wrist extensors, grip strength, hip flexors, knee flexors, knee extensors, ankle dorsiflexor are 5/5 throughout." He noted that "[p]ain limited full testing, but no focal areas of neurological weakness are detected" and that she had an "[a]ppropriate gait and arm swing, with normal heel, toe, and tandem gait." He diagnosed back pain and prescribed "Valium at night for muscle spasms," as well as massage therapy for ongoing pain. He saw "no need for surgical intervention" and told Ms. Gray she "is likely to get better."
On June 21, 2012, Dr. Chalifour notified Liberty Northwest that "Ms. Gray is not capable of returning to work in a similar capacity as she was previously." He recommended an independent medical evaluation, "due to the long standing nature of Ms. Gray's pain."
On July 14, 2012, Ms. Gray saw Douglas Bald, M.D., an orthopedic surgeon, for an independent medical evaluation requested by her employer, Liberty Dialysis. He reviewed Ms. Gray's medical records since December 29, 2011. Upon examination, Dr. Bald observed that Ms. Gray "is able to ambulate very briefly without use of the cane, but she has a very slow, wide-based, shuffling gait pattern and demonstrates a sense of instability on her right leg." Dr. Bald diagnosed Ms. Gray with thoracolumbar strain by history and "[s]evere psychogenic pain behavior and symptom magnification." Specifically, he noted that "[t]he most significant finding that is identified on today's examination is a severe element of psychogenic pain behavior and inconsistencies, which is likely the major contributing source of [Ms. Gray]'s persistent symptomatology and self-perceived disability." He opined that "[o]n a strictly objective physical basis, there does not seem to be any reason that Ms. Gray would not be capable of returning to her regular work duties, though at this point in time she perceives herself as being severely disabled and it is unlikely that anything treatment wise is going to reverse that perception." In a work situation, Dr. Bald opined that continuous standing should be limited to one hour, and total standing limited to four hours in an eight-hour work day. Occasional lifting would be limited to fifty pounds.
At multiple follow up appointments in June and July of 2012, Dr. Chalifour noted that Ms. Gray was "responding favorably to Myofascial Release."
On August 3, 2012, Dr. Chalifour completed another Employment Solutions form. He opined that Ms. Gray could sit for an "unlimited" time during an average work day and stand or walk one hour out of each work day. He opined that she could lift ten pounds frequently and up to forty-five pounds occasionally, but could not bend, squat, climb, crawl, stoop, or kneel. He noted that Ms. Gray could reach above shoulder level, perform simple grasping, push/pull, use fine manipulation, and perform computer work with both hands. Dr. Chalifour referenced Dr. Bald's independent medical exam on June 14, 2012 for diagnoses and recommendations.
On August 16, 2012, Dr. Chalifour opined that Ms. Gray would not be able to perform sedentary duty physical demands, conditions or activities. He stated that "[t]he severity of Ms. Gray's low back pain prevents her on occasion from sitting for prolonged periods of time." On August 22, 2012, Dr. Chalifour indicated that he was no longer treating Ms. Gray for injuries sustained during her work injury on December 29, 2011.
On October 29, 2012, Ms. Gray saw Leon Chandler, M.D., at AA Spine & Pain Clinic. She reported to him that the chiropractic treatments, pain medications, facet blocks, and physical therapy had all been effective in relieving her pain. Dr. Chandler reviewed x-rays taken at the visit. These x-rays showed "rotational scoliosis of the thoracic area about T4 and mild lumbar scoliosis." Additionally, Dr. Chandler noted that "C6-7 has posterior ostyophite intruding into the foramen and is perched with extension. C5-6 is also perched." A physical exam showed a normal cervical spine and negative Spurling's test, normal appearance of the neck, scoliosis in the thoracic and lumbar spine, abnormal reflex in the upper extremities on the right side and bilaterally on the knees, an unstable gait, unsteady when standing, abnormal motor with weakness on the right and spasms in the lower back with movement, a negative straight leg test bilaterally, and able to walk heel to toe. Dr. Chandler assessed Ms. Gray with depression, headache, hip pain, low back pain, lower extremity pain, generalized pain, and muscle weakness. He prescribed Flexeril, Valium, and Norco (90 5-325mg tablets).
On October 31, 2012, Ms. Gray received facet block and medial branch injections at the Alaska Spine Center.
On November 26, 2012, Ms. Gray followed up with Dr. Chandler. At the appointment, Ms. Gray reported that the block injections did not decrease her pain and Norco "didn't work well, nor the Flexeril." Dr. Chandler noted that Ms. Gray presented with "low back pain that radiates down both legs bilaterally that cramp muscles that cause spasticity." He also noted that Ms. Gray reported loss of bladder and bowel functions. He noted that she may need "blood work done for further investigation" and refilled her Flexeril, Norco, and Valium prescriptions.
Also on November 26, 2012, Ms. Gray applied for a disabled parking identification. Dr. Chandler indicated on the form that Ms. Gray was unable to walk two hundred feet without stopping to rest and was severely limited in her ability to walk due to an arthritic, neurological, or orthopedic condition. He indicated the disability was temporary up to a maximum of six months.
On December 7, 2012, Ms. Gray visited MA Butler at PFMC. Ms. Gray reported worsening depression, but also reported that she was not taking any medication for depression. She also reported "having trouble sleeping" and Ambien was "not working very well."
On December 11, 2012, Dr. Chandler completed a health status form for the State of Alaska. He opined that Ms. Gray would not be able to work full or part-time, but could participate in classroom activities. He also noted that myofascial massage and physical therapy may help. He indicated that he expected the condition to limit Ms. Gray's ability to work for at least twelve months.
On December 12, 2012, Dr. Chandler answered an inquiry from Liberty Dialysis regarding Ms. Gray's workers' compensation claim. Dr. Chandler opined that Ms. Gray's injury on December 29, 2011 was the substantial cause of her need for treatment and any claimed disability; he also noted that "oral medication [and] possible block therapy" would assist with pain relief.
On December 20, 2012, Ms. Gray saw Dr. Chandler for a follow up visit and medication refill. Dr. Chandler's progress notes again indicated a normal cervical spine and negative Spurling's test, normal appearance of the neck, scoliosis in the thoracic and lumbar spine, abnormal reflex in the upper extremities on the right side and bilaterally on the knees, an unstable gait, unsteady when standing, abnormal motor with weakness on the right and spasms in the lower back with movement, a negative straight leg test bilaterally, and able to walk heel to toe. Dr. Chandler again assessed Ms. Gray with depression, headache, hip pain, low back pain, lower extremity pain, generalized pain and muscle weakness. He refilled Ms. Gray's prescriptions of Flexeril, Valium, and Norco. He also prescribed ibuprofen, Lidoderm, Voltaren, and vitamin B-12 at the visit. He ordered additional steroid injections to the lumbar spine.
On January 4, 2013, Ms. Gray visited Erin Smith, M.A., at PFMC for follow up on depression and a refill of her Ambien prescription. MA Smith reported that at the last visit, Ms. Gray "was prescribed Cymbalta but she is unsure if it is helping." MA Smith also reported that "[w]hen I asked how her depression has been she stated `I don't know.'"
On January 9, 2013, Ms. Gray received facet block and medial branch injections to her lumbar spine at the Alaska Spine Center.
On January 21, 2013, Ms. Gray saw Dr. Chandler for a follow up visit. Dr. Chandler noted that Ms. Gray reported a "60% reduction in her pain for a couple of hours" following the recent injections, but also stated that "she has had a severe increase in pain to the point where she can barely sit or rest without her pain increasing." Ms. Gray reported that the previous injections on October 31, 2012 had "reduced her pain by 70%." Dr. Chandler did not refill her prescriptions at the visit as Ms. Gray indicated "she had enough medications right now and does not need a refill at this time."
On January 28, 2013, Ms. Gray visited the emergency department of Providence Alaska Medical Center with an "exacerbation of chronic back pain and worsening depression." A neurological exam was normal. On physical examination, Jessica Sotelo, M.D., observed that Ms. Gray's neck was "soft and supple with full range of motion"; her back had "diffuse tenderness over upper mid and lower back"; and she was "alert and oriented," had "[no] gross motor abnormalities, and was "ambulating with appropriate coordination." Dr. Sotelo noted that Ms. Gray seemed "to be severely depressed" and she requested that the psychiatric clinician evaluate Ms. Gray. Dr. Sotelo reported that Ms. Gray declined admission to the mental health unit at that time.
On January 30, 2013, Ms. Gray had an initial mental health assessment by Lorrie Lundquist, LCSW, M. Ed., at Good Samaritan Counseling Center ("Good Samaritan"). LCSW Lundquist observed that Ms. Gray had a normal appearance, clean hygiene, normal speech, a depressed and irritable mood, labile affect, a cooperative and guarded attitude, and good cognition, insight, judgment. She was orientated x4, with logical thought process, normal perception, thought content, sleep, and appetite. LCSW Lundquist assessed Ms. Gray as low to no risk of suicidal behavior. She recommended "a thorough medical psychiatric evaluation for diagnosis clarification" with pharmacological treatment and individual psychotherapy.
On February 5, 2013, Ms. Gray saw Meghan Farrell, ANP, at Good Samaritan. ANP Farrell conducted a psychiatric assessment at the visit and noted that during the interview Ms. Gray "was unable to sit on the couch due to being uncomfortable and in pain." Ms. Gray presented with logical thinking and appropriate thought content. Her social judgment was good, and her vocabulary and fund of knowledge were intact. ANP Farrell reported that Ms. Gray's insight into her illness was fair. She diagnosed Ms. Gray with major depressive disorder, single episode, moderate, and assessed Ms. Gray's current GAF as 65.
On February 8, 2013, Ms. Gray called Good Samaritan believing she was having a reaction to the Cymbalta. She reported feeling "jittery" with tingling in the arms. She was also very concerned about having high blood pressure.
On February 13, 2013, Ms. Gray received radiofrequency thermocoagulation at the Alaska Spine Center.
On February 18, 2013, Ms. Gray met with LCSW Lundquist at Good Samaritan "for the first session since [the] initial mental health evaluation." LCSW Lundquist reported that at the session Ms. Gray had a "very heightened mood, anxiousness, frustrated." She also noted "[s]ome racing thoughts."
On February 19, 2013, Ms. Gray attended a counseling session with ANP Farrell at Good Samaritan. ANP noted that Ms. Gray was oriented as to time, place, person, and situation; she had a cooperative attitude with good eye contact; her speech was "loud," but goal-directed and coherent; her motor skills were within normal limits; her mood was happy and anxious; and her perception, thought process, and thought content were within normal limits. ANP Farrell "encouraged [Ms. Gray] to re-initiate Cymbalta . . . [and] to initiate trazodone."
On February 25, 2013, Ms. Gray followed up with Dr. Chandler. Dr. Chandler reported that Ms. Gray stated that the radiofrequency "is causing her to have severe increase [in] pain" and that she wanted to "discuss further options including a possible increase in pain medications." Dr. Chandler's treatment notes indicate that Ms. Gray's physical exam was unchanged from the last three previous visits. He substantially increased the dosage of her Norco prescription at the visit.
On February 26, 2013, Ms. Gray attended a counseling session with LCSW Lundquist and a medication review with ANP Farrell on the same date. Ms. Gray complained of pain. LCSW Lundquist reported that Ms. Gray had a cooperative attitude, but blunted affect with dysphoric mood. She also exhibited normal speech, logical thought process, and normal thought content. ANP Farrell also noted "borderline traits" and made a "guarded" prognosis "due to inability to follow medication regimen."
On March 1, 2013, Ms. Gray requested and received an order from Dr. Chandler for a wheelchair "due to inability to walk far."
On March 13, 2013, Ms. Gray saw Rebecca Clark, M.D., at PFMC. Ms. Gray reported elevated blood pressure levels at home. Her blood pressure at the visit was 132/102. She was given a blood pressure kit. Dr. Clark noted that Ms. Gray was to "start lisinopril" and return in one month for a blood pressure check.
On March 25, 2013, Ms. Gray visited Dr. Chandler for a follow up visit and medication refills. She reported her "[s]ymptoms remain the same," and she was waiting for a wheel chair from a pharmacy. Dr. Chandler recommended that Ms. Gray "try swimming."
At the counseling session with LCSW Lundquist on March 26, 2013, Ms. Gray presented with "bright affect" and was "[v]ery talkative about her future."
On April 4, 2013, Ms. Gray met with LCSW Lundquist. She noted that Ms. Gray was "experiencing grief process related to health decline."
On April 11, 2013, LCSW Lundquist noted no significant change in Ms. Gray's mental status. She noted that Ms. Gray maintained "distortions of thought of her viability to engage in purposeful work" and that LCSW Lundquist offered "some challenge to distortions of thought related to accurate versus inaccurate limitations" at the session.
On April 18, 2013, Ms. Gray attended a counseling session with LCSW Lundquist. She noted no significant change in Ms. Gray's mental status. She reported that Ms. Gray presented as "agitated, [with] depressed effect."
On April 23, 2013, Ms. Gray saw Jane Sonnenburg, PA-C, at AA Spine & Pain Clinic, for follow up and medication refills. In the treatment notes, Ms. Gray's physical exam was unchanged from previous visits. PA Sonnenburg noted that Ms. Gray reported "constant, sharp, shooting, stabbing, burning, throbbing and aching" pain in the lower back and hips. She also noted that Ms. Gray reported medication, heat, and ice help the pain. PA Sonnenburg refilled Ms. Gray's prescriptions for gabapentin, Flexeril, Norco, and Valium.
On May 1, 2013, Ms. Gray saw Heather Bell, PT, ATP, at Providence Sports Medicine and Rehabilitation Therapies for a wheelchair assessment. PT Bell noted that Ms. Gray "presented to the appointment using a single-point cane." She also noted that Ms. Gray "was able to move all extremities against gravity." PT Bell also "[o]bserved functional strength is 4-/5 throughout," and that Ms. Gray's range of motion was "[w]ithin functional limits in all extremities." At the visit, PT Bell determined that "a four-wheeled walker for home mobility and a power scooter for community access are the most reasonable and cost-effective options to meet her needs."
On May 3, 2013, Ms. Gray saw ANP Farrell. Ms. Gray reported, "I think I'm broken." ANP Farrell noted a depressed mood, but "brighter affect towards end of session." She noted Cluster B traits. Her prognosis was fair and guarded.
On May 16, 2013, Ms. Gray saw Dr. Chythlook, M.D., at PFMC, for follow up on high blood pressure and "social security paperwork." Her blood pressure was 150/100 at that visit.
On May 21, 2013, Ms. Gray saw Dr. Chandler for medication refills. She reported "feeling more pain on more days and thinks maybe her current treatment plan is sub-optimal." Dr. Chandler refilled her Norco and Valium prescriptions.
On June 5, 2013, Ms. Gray visited Deborah Green, R.N., at PFMC, for a blood pressure check, which was 120/86 that day. RN Green noted Ms. Gray disclosed "rather random medication dosing and gives long inconsistent answers about her use of prn meds including phenergen, cyclobenzaprine, zaleplon, and hydrocodone/acetaminophen." RN Green also noted that Ms. Gray reported that she had not "increased her dose of lisinopril from 10 mg to 20 mg as instructed at her [May 16, 2013] appointment."
On June 6, 2013, Ms. Gray saw LCSW Lundquist. She noted that Ms. Gray had an "agitated, depressed affect" and that she presented "somewhat labial today but engaged well."
On June 12, 2013, Ms. Gray had a physical work performance evaluation by Kathryn Kerris, O.T., at Providence Sports Medicine & Rehabilitation Therapies. OT Kerris concluded that Ms. Gray would be able to perform sedentary work for an 8-hour day/40-hour week and that she could exert "up to 10 pounds of force occasionally . . . and/or a negligible amount of force frequently." "Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time." OT Kerris noted that Ms. Gray "self-limited on 12% of the 17 tasks" and "if the self-limiting exceeds 20%, then psychosocial and/or motivational factors are affecting test results." She also noted that Ms. Gray "has a high degree of unresolved pain" and that "she struggles to do daily living skills, her walking speed is very slow and she has had multiple falls." OT Kerris added, "[s]he will need a good ergonomic workstation if and when she goes back to work, which is adjustable and has good arm support."
On June 13, 2013, Ms. Gray attended a counseling session with LCSW Lundquist. She noted that Ms. Gray presented "somewhat labial today in mood but engaged well." That same day, Ms. Gray saw ANP Farrell for medication review. ANP Farrell reported that Ms. Gray had a normal appearance, orientation, memory, attention and concentration, and thought content, but abnormal mood, affect, and speech.
On June 14, 2013, Ms. Gray saw Bruck Clift, M.D., at PFMC, for follow up after going to the emergency department on June 6, 2013. Dr. Clift noted that Ms. Gray's diastolic blood pressure had been elevated since earlier in the year. At the visit, her blood pressure was 120/86. Ms. Gray reported continuing with the increased dose of lisinopril 20 mg since the emergency department visit.
On June 18, 2013, Ms. Gray saw Dr. Chandler for a follow up visit and medication refill. Dr. Chandler wrote, Ms. Gray "has scoliosis but no othe[r] diagnosis."
On June 27, 2013, Ms. Gray attended a counseling session with LCSW Lundquist. She noted that Ms. Gray presented "somewhat labial today in mood but engaged well."
On July 1, 2013, Ms. Gray went to PFMC for a blood pressure check and social security paperwork. Her blood pressure was 102/72 at that visit. She reported increased pain in the "mid-back and down into the legs" at the visit.
On July 2, 2013, Rachel Samuelson, M.D., a family practitioner, conducted a physical capacity evaluation of Ms. Gray. She opined that Ms. Gray could lift five and ten pounds occasionally, reach frequently, bend occasionally, and never squat or climb. She opined that Ms. Gray could sit frequently for a total of 2-4 hours, stand up to 33% continuously for a total of 2 hours, and walk up to 33% continuously, all with breaks, in an 8-hour work day. Dr. Samuelson indicated that Ms. Gray's medications moderately restricted her ability to drive, but that she was physically able to travel by bus. Dr. Samuelson also stated that Ms. Gray "has pain, though there is no clear medical explanation for this pain." Her prognosis was "unclear at this point."
On August 5, 2013, Kenneth Pervier, M.D., a neurologist, evaluated Ms. Gray. He noted that Ms. Gray "had no indication of pain while sitting quietly for the better part of 20 minutes before she even shifted once on a hard wooden chair." He also noted that she was "[a]lert, oriented to person, place, date and time" and "had a smiling, very active disposition, despite a problem of constant pain for years." He noted "decreased effort on the motor exam in all four extremities" and a "negative straight leg raising test while sitting." Yet Ms. Gray "had exquisite pain to almost fingertip pressure touching along the paraspinal musculature anywhere from the neck down to the sacral region, and she would jerk [to] pain jolts that she felt when being touched." Dr. Pervier opined that "[t]his level of stimulus should not have caused pain whatsoever in this patient's case." He remarked that Ms. Gray "had no difficulty . . . bending over grossly while sitting at the waist, over her knees, in order to reach down and put her shoes and socks back on; this is a bit inconsistent and the patient showed no pain manifestations in the face or otherwise, or checking motions secondary to any pain while she was doing this." Dr. Pervier noted that "without question [Ms. Gray's chronic pain] has a nonorganic factor to it." He recommended that "she continue with pain management with a psychiatrist or psychologist who deals with chronic conversion-type symptomatology and symptom augmentation symptomatology involved in her case chronically as well."
On August 13, 2013, ANP Farrell completed a health status questionnaire. In it, she diagnosed Ms. Gray with major depressive disorder, mild and chronic pain. ANP Farrell opined that Ms. Gray's medical conditions prevent her from working either full or part time. She indicated that Ms. Gray's inability to work would be expected to continue for six months or more. ANP Farrell noted that Ms. Gray's medications cause side effects impacting her ability to work, including "sedation, dizziness, and [reduced] concentration." ANP Farrell recommended physical therapy and a pain management consultation.
On August 26, 2013, ANP Farrell completed a second questionnaire regarding Ms. Gray's mental ability to do work-related activities. She indicated that Ms. Gray's ability to understand and remember simple and complex instructions, make judgments on simple and complex work-related decisions, and carry out complex instructions, were mildly affected by her mental impairment. ANP Farrell noted that "at times [Ms. Gray] is forgetful due to medication side effects" and that she "is experiencing daily fatigue due to insomnia."
Also on August 26, 2013, Ms. Gray saw Dr. Chandler for a follow up visit. He reported that Ms. Gray "states her leg spasms are becoming more frequent and her feet are starting to get a `tingly' feeling." Ms. Gray inquired about a possible increase in her medications. Dr. Chandler refilled her Ambien, diazepam, Flexeril, gabapentin, Ibuprofen, Norco, Phenergan, and Valium, with no change. He added a topical compound cream treatment.
On August 27, 2013, Ms. Gray applied for a permanent disabled parking identification. Marta Lasater, M.D., completed the physician portion of the permit application. Dr. Lasater opined that Ms. Gray was unable to walk two hundred feet without stopping to rest, was unable to walk without the use of an assistive device, and was severely limited in her ability to walk due to an arthritic, neurological, or orthopedic condition; she opined the disability was permanent.
On August 28, 2013, Ms. Gray saw Tom Grissom, M.D., at the Algone Institute, for a second opinion regarding her low back pain. Upon examination, he reported Ms. Gray showed "5/5 normal muscle strength" in the bilateral lower extremities and a "broad-based and waddling" gait. Dr. Grissom reported that Ms. Gray was "[o]riented x3 with appropriate mood and affect and able to articulate well with normal speech/language, rate, volume and coherence." He diagnosed Ms. Gray with degenerative joint disease of the spinal facet joint and recommended a discogram. Dr. Grissom also ordered an MRI and x-rays of the lumbar spine.
On September 24, 2013, Ms. Gray saw Dr. Chandler for follow up and medication refills. Ms. Gray reported pain that was "sharp, shooting, stabbing, burning, aching, pinching, and throbbing." She indicated that the pain was "generally made worse by bending, lifting, standing, sitting, walking, climbing stairs, straining, and driving." He refilled the Norco prescription; however, the toxicology report from the visit did not detect any Norco in Ms. Gray's system. He recommended that Ms. Gray discuss with Dr. Grissom if she should take a transdermal patch for pain relief.
On September 25, 2013, Ms. Gray saw ANP Farrell. ANP Farrell reported that Ms. Gray had abnormal attention and concentration and insight and judgment, but normal orientation, memory, language, mood, affect, speech, thought processes, and thought content. ANP Farrell also noted that Ms. Gray "did not mention pain during this session."
On September 30, 2013, Ms. Gray underwent "[l]umbar spine CT post discography" with Dr. Grissom. The examiner reported "[n]o disc degeneration, protrusion. . . . [n]o annular tear" at L3-L4, "grade 1 disc degeneration at L4-L5," and "[g]rade 1 disc degeneration with subtle annular bulge at L5-S1. No discrete disc bulge or annular tear is apparent." Dr. Grissom prescribed 11 Fentanyl patches (25mcg/hr) to Ms. Gray for the next 30 days.
On October 14, 2013, Ms. Gray saw Dr. Grissom for follow up after the lumbar discogram. Ms. Gray reported pain "exacerbated for about a week after the procedure." Upon examination, Ms. Gray exhibited normal 5/5 muscle strength in the bilateral lower extremities, a normal gait, "pain with lumbar lateral bending, pain with lumbar rotation and pain with facet maneuvers." She was oriented x3 with "appropriate mood and affect and able to articulate well with normal speech/language, rate, volume and coherence." Dr. Grissom prescribed 30 more Fentanyl patches at an increased dosage (50mcg/hr). He also recommended that Ms. Gray undergo an endoscopic discectomy procedure.
On November 11, 2013, Cheryl Fitzgerald, PA-C, from Algone, completed a health status report form for Ms. Gray. She identified Ms. Gray's diagnoses as degenerative disc disease, lumbar and cervical, and chronic lumbar radiculopathy. PA Fitzgerald indicated that Ms. Gray would not be able to work full time or part time for six months. She also opined that Ms. Gray's medications caused drowsiness. She recommended pain management, physical therapy, a possible spinal cord stimulator, and a functional assessment.
On December 6, 2013, Ms. Gray saw PA Fitzgerald at Algone for a follow up exam and medication refill. On examination, Ms. Gray's muscle strength and gait were normal.
On December 27, 2013, Ms. Gray saw PA Fitzgerald. Ms. Gray reported lower back pain. She reported increased pain with "prolonged sitting, transitioning from sitting to standing, and standing," but relief "somewhat with changes in position and medication." PA Fitzgerald noted that Ms. Gray ambulated "with use of a four-wheeled walker slow and cautiously." PA Fitzgerald diagnosed Ms. Gray with high risk medication use, neck pain, degenerative joint disease of the spinal facet joint, chronic lumbar radiculopathy, low back pain, and carpal tunnel syndrome of the left wrist. Ms. Gray reported the Fentanyl does not seem to be working as well for the past month. PA Fitzgerald increased Ms. Gray's Fentanyl dosage from 50 to 75 mcg and prescribed 150 Norco tablets (10-325mg). A drug screen was ordered but its results are not in the record.
On January 22, 2014, Ms. Gray saw Dr. Grissom. He performed "L4-5 and L5-S1 left-sided endoscopic discectomy under fluoroscopic and direct visualization." He refilled the Norco and Fentanyl prescriptions.
On January 29, 2014, Ms. Gray saw Briana Cranmer, M.D., at PFMC. Dr. Cranmer assessed Ms. Gray with bilateral lower extremity edema. At the visit, Dr. Cranmer observed that Ms. Gray was not in "acute distress but appears uncomfortable," that she was ambulating with difficulty, alert and oriented, but with "flattened affect, tearful." Ms. Gray reported that she was "concerned that she has hit the 200 lb mark" and that she "eats even when she's not hungry."
On February 12, 2014, Ms. Gray visited Dr. Grissom for a follow up exam. She reported "that she has not noticed any changes in her pain and states she still has days where moving around is not an option but she is hopeful." She also reported that "[p]ain increased with prolonged sitting, transitioning from sitting to standing, and standing," that the pain was relieved "somewhat with changes in position and medication," and "Norco offers relief in conjunction with [the] Fentanyl patch." Dr. Grissom increased the strength of the Fentanyl patches to over 100 mcg/hr. He also prescribed 150 Norco tablets (10-325mg).
On February 17, 2014, Ms. Gray saw Dr. Samuelson at PFMC for follow up. Ms. Gray reported continued leg swelling and "sometimes her hands as well," and reported that the "palms of her hands and soles of her feet are tingly and painful." Dr. Samuelson assessed Ms. Gray with "[e]xtremity edema, with tingling [in] the soles and palms," but noted that it was "[u]nclear what this is due to."
On February 18, 2014, Ms. Gray received a bilateral lower extremity deep vein thrombosis study. The study showed "no right or left lower extremity deep vein thrombosis."
On March 6, 2014, Ms. Gray saw PA Fitzgerald for a follow up exam and prescription refill. Upon examination, Ms. Gray showed "5/5 normal muscle strength" in the bilateral lower extremities, a normal gait, and "2+ pitting edema to the knee." PA Fitzgerald reported that Ms. Gray was "[c]ooperative and in no apparent distress" and "[o]riented x3 with appropriate mood and affect and able to articulate well with normal speech/language, volume and coherence." PA Fitzgerald diagnosed Ms. Gray with low back pain, chronic lumbar radiculopathy, peripheral edema, and long-term current use of opiate analgesic. She prescribed 150 Norco tablets (10-325 mg) and 11 patches of Fentanyl at 100mcgy/hr.
On April 1, 2014, Ms. Gray returned to PA Fitzgerald at Algone for medication refills. She also reported lower back pain and neck pain. PA Fitzgerald observed that Ms. Gray had "normal posture" and used a walker. Ms. Gray was alert and oriented x3 "with appropriate mood and affect." Ms. Gray reported that opioid therapy was helpful, but that "she has not had any kind of relief" from endoscopic microdiscetomy. PA Fitzgerald opined that Ms. Gray's "symptoms are consistent with neuropathic pain." OxyContin and oxycodone were both prescribed at this visit, but not fentanyl. PA Fitzgerald also referred Ms. Gray to four to six weeks of physical therapy, 3 sessions a week.
On April 14, 2014, Ms. Gray visited PA Fitzgerald for medications follow up. Ms. Gray reported that "[a]fter her last visit she `got tired of taking pills' so went off all of her medications `cold turkey,'" but that she was "back on the medications and is feeling better." Her edema had resolved.
On April 17, 2014, Ms. Gray saw Amy Hoger, PA, at PFMC. Ms. Gray reported "[n]umbness in [the] hands" and bottom of the feet for several months, her fingers were "not working at times," and that she has to "stop eating due to trouble with finger movement," but that she was not seeing a neurologist, had no recent injury, and had no other new symptoms. Upon examination, PA Hoger observed that Ms. Gray had a normal affect and speech pattern, answered questions appropriately, was able to follow two step commands, and was resting calmly at the visit. She noted that, with encouragement, Ms. Gray had normal range of motion and strength bilaterally in her upper and lower extremities.
On April 29, 2014, Ms. Gray saw PA Fitzgerald. She reported lower back pain and carpal tunnel syndrome, including hand tingling and numbness. PA Fitzgerald observed that Ms. Gray was alert, "cooperative and in no apparent distress," able to "articulate well with normal speech/language, rate, volume and coherence," with appropriate mood and affect, and "[o]riented x 3." Regarding Ms. Gray's hands, PA Fitzgerald noted no redness, edema, or deformity, no "thenar eminence atrophy," with a "[d]ecreased grip on right compared to left." PA Fitzgerald prescribed 150 Norco tables (10-325mg) and 11 patches of fentanyl (100mgc/hr). She also wrote a prescription for "cockup splints" to wear at night "until she sees the neurologist for nerve conduction studies."
On May 27, 2014, Ms. Gray saw Matthew Peterson, M.D., at Algone, for medication refills of the Norco tablets and fentanyl patches. He noted that he was "[u]ncertain of [the] source of pain" and that Ms. Gray "continued to have both low back and bilateral leg pain with leg weakness to the point she uses a walker."
Beginning June 5, 2014, Ms. Gray attended physical therapy sessions at East Side Physical Therapy.
On June 18, 2014, Ms. Gray saw Dr. Peterson for a follow up. She reported increased pain due to a fall. Her physical and neuropsychiatric exams were similar to previous visits at Algone.
On July 25, 2014, Dr. Grissom inserted a "[d]ual-lead spinal cord stimulator trial utilizing a Boston Scientific system."
On July 30, 2014, Ms. Gray saw Dr. Ellenson for a neurological evaluation. Dr. Ellenson diagnosed carpal tunnel syndrome and noted that Ms. Gray's "examination was normal except for her painful gait and persistent back pain. Nerve conduction studies reveal mild bilateral carpal tunnel syndrome worse on the right."
On August 1, 2014, Ms. Gray followed up with Dr. Peterson at Algone to have her spinal cord stimulator leads "looked at and re-dressed." He discontinued the Percocet and prescribed 28 tablets of oxycodone (20mg) with no refills.
On August 4, 2014, Ms. Gray followed up at Algone. The spinal cord stimulator was removed and her oxycodone prescription was refilled for fourteen more days.
On August 26, 2014, Ms. Gray visited Dr. Grissom. She reported that her "current [opioid] regimen has been effective," but that her pain that day was a "10." She queried whether "she might get a little bit more relief in her pain scales if she changes the [Fentanyl] patch every 48 hours." Dr. Grissom observed normal coordination, a normal gait "using [a] walker," no edema, a normal bilateral peripheral vascular lower extremity inspection, normal attention span, concentration, speech/language, rate, volume and coherence, and appropriate mood and affect. He diagnosed her with degenerative joint disease of the spinal facet joint, arthritis, carpal tunnel syndrome of the left wrist, peripheral edema, bulge of lumbar disc without myelopathy, neck pain, chronic lumbar radiculopathy, low back pain, long-term use of opiate analgesic, and narcotic withdrawal. He ordered a rheumatology panel, changed the Fentanyl prescription to 1 patch every 48 hours, and prescribed 90 more 20 mg tablets of oxycodone for 30 days.
On August 29, 2014, Ms. Gray had an MRI of her cervical spine. The MRI showed "C6-C7 left foraminal and extraforaminal disc protrusion and osteophyte formation resulting in severe stenosis of the left subarticular zone and left neural foramen," and "C7-T1 small right foraminal disk protrusion contributing to mild foraminal stenosis," and "reversal of cervical lordosis."
On September 19, 2014, Ms. Gray saw Dr. Peterson at Algone. He added a diagnosis of cervical radiculopathy after reviewing the MRI results from August 29, 2014. He prescribed an additional 90 tablets of 20 mg of oxycodone and 15 more 100 mcg/hr Fentanyl patches for the next 30 days.
On October 21, 2014, Ms. Gray saw Dr. Grissom for a "recheck of chronic opioid management. He reported that Ms. Gray was "very emotional today and in a lot of pain." He also reported that the "current regimen has been effective." Ms. Gray reported her insurance could only cover the Fentanyl patches every 56 hours, not the 48 hours prescribed. He refilled the Fentanyl at 15 patches for 30 days and 90 tablets of 20 mg oxycodone for 30 days.
On November 19, 2014, Ms. Gray saw Dr. Peterson at Algone for medication refills.
On November 24, 2014, Ms. Gray saw Claire Stoltz, M.D., at PFMC, for left hip, groin, and buttock pain that she reported had radiated down her leg for the past three days. Dr. Stoltz noted that Ms. Gray's reported left groin pain was of "unclear etiology at this time given her concurrent and complex back pain." She also noted that Ms. Gray was anxious and frustrated, "occasionally tearful," and in "moderate distress" during the visit. She noted that Ms. Gray was "currently on fentanyl patches and is planning on restarting gabapentin and methadone after tapering the fentanyl[l]." Dr. Stoltz reported that she informed Ms. Gray that she needed to involve her chronic pain doctor as "[w]e should not be adjusting her pain meds."
On December 2, 2014, Ms. Gray visited Zachary Kile, PA-C, at Algone. She reported increased pain. Upon examination, PA Kile noted that Ms. Gray had good, pain-free range of motion of the bilateral hips with internal/external rotation, mild pain to palpation of the GT Bursa, and "NV intact with negative Homan's sign."
On December 10, 2014 and January 7, 2015, Ms. Gray visited PA Kile. He refilled and adjusted medications. He indicated that Ms. Gray was at "low risk for opiate abuse."
On February 3, 2015, Ms. Gray saw Dr. Grissom for medication refills. He refilled the Oxycodone prescription and added 2 MS Contin tablets a day (30 mg). He added piriformis syndrome to her list of diagnoses.
On March 4, April 1, April 27, and May 26, 2015, Ms. Gray saw care providers at Algone for medication refills and adjustments.
On June 4, 2015, Dr. Grissom completed a health status report form for the State of Alaska based on his May 26, 2015 examination of Ms. Gray. He listed Ms. Gray's diagnoses as chronic lumbar radiculopathy, polyarthralgia, degenerative joint disease of the spinal facet joint, carpal tunnel left wrist, and cervical radiculopathy. Dr. Grissom opined that Ms. Gray could not work full time or part time. He specified that medication side effects may cause sedation/impaired mentation, dizziness, and vomiting that may impact Ms. Gray's ability to participate in a work or training environment.
On June 29, 2015, Ms. Gray saw Jenny Uphus, LPN, at Algone. LPN Uphus noted that Ms. Gray "is receiving opioids for neck pain, back pain, and fibromyalgia." She also noted that Ms. Gray "is having severe leg pain today and is having a hard time getting up and walking." LPN Uphus refilled the Oxycodone prescription and refilled the MS Contin prescription of 3 tablets a day (60mg). She also ordered massage therapy.
On July 14, 2015 and August 5, 2015, Ms. Gray saw Pebbles Shanley, M.D., at PFMC. Dr. Shanley reviewed "significant medical, surgical, social history, medications and allergies" at the visit. She also discussed fibromyalgia with Ms. Gray, noting "this is a new diagnosis from her pain management clinic."
On July 28, 2015, Ms. Gray visited Dr. Grissom. At the visit, Ms. Gray denied "any improvement in pain." Dr. Grissom refilled Ms. Gray's opioid medications.
On August 20, 2015, Ms. Gray saw Dr. Grissom for medication refills. She reported at this visit that her "current [opioid] regimen has been adequate."
On October 29, 2015, Ms. Gray followed up at Algone. She reported that her "current [opioid] regimen has been adequate and ineffective." Her dosage of MS Contin was reduced to 1 tablet/day of 30 mg.
On December 16, 2015, Ms. Gray had an x-ray of her lumbar spine. The x-ray showed the "[l]umbar vertebral bodies are anatomically aligned, vertebral body heights are normal, and there are no fractures seen." In comparison to the January 2012 x-ray, "no new acute appearing bony changes [were] seen." The x-ray also showed that the invertebral disc spaces were normal, pars interarticularis intact, no suspicious osteolytic or biastic lesions, and the visualized soft tissues appeared normal.
On December 22, 2015, Dr. Grissom wrote a letter opining that Ms. Gray "is fully disabled." He explained she "is unable to manage her pain with the use of interventional procedures" and that her pain "is not well managed with her current opioid treatment." He also reported that she is unable to physically work and is limited in her physical capabilities. She cannot walk long distances, sit for a prolonged time, manipulate stairs, lift, bend, or drive a motor vehicle.
On January 7, 2016, Ms. Gray saw Dr. Shanley at PFMC for "daily headaches." Dr. Shanley diagnosed her with "chronic migraine without aura without status migrainosus, not intractable."
On January 14, 2016, Ms. Gray saw PA Fitzgerald. PA Fitzgerald reviewed the lumbar spine x-rays "which were read out as normal." Strength testing of the lower extremities was 5/5 and equal bilaterally. Ms. Gray had normal posture, affect, speech, thought content, and perception. PA Fitzgerald diagnosed Ms. Gray with chronic lumbar radiculopathy, facet arthopathy, and long term current use of opiate analgesic. She adjusted and refilled Ms. Gray's medications at the visit.
On February 24, 2016, Ms. Gray saw David Penn, M.D., at PFMC, for daily headaches with "[m]igraine-like . . . sensitivity to light and sound."
On March 4, 2016, Ms. Gray received a cervical medial branch block at C3-C6 on the right.
On March 15, 2016, Ms. Gray visited PA Fitzgerald. She stated MS Contin "does not work at all and is a waste of money and time." She denied any improvement in pain from the recent medial branch block at C3-6. PA Fitzgerald noted that the new MRI showed mild degenerative changes at L3-4 with a left paracentral disc protrusion causing mild left foraminal stenosis and progression of degenerative changes at L4-5. PA Fitzgerald noted there was "[n]othing that really explains all of her pain." Ms. Gray stated that she "does not feel like the morphine is helping with her pain." PA Fitzgerald "[d]iscussed that [Ms. Gray's] pain medications could be exacerbating her pain"; accordingly, PA Fitzgerald reduced the MS Contin prescription.
On March 30, 2016, Ms. Gray saw Chelsey Jacobs, PA-C, at PFMC, for chronic headaches. PA Jacobs reported that Ms. Gray was interested in being referred for counseling and that she had stopped taking trazodone for insomnia over one month before the appointment. PA Jacobs diagnosed Ms. Gray with chronic intractable headache, unspecified; insomnia, unspecified; depression; and other chronic pain.
On April 6, 2016, Ms. Gray followed up with PA Jacobs. PA Jacobs adjusted her medications at the visit.
On April 11, 2016, Ms. Gray saw Dr. Ellenson at Alaska Neurology Center. He noted that she reported daily headaches, but that "[h]er examination shows a painful appearing gait and (sic) but is otherwise normal." Dr. Ellenson reported that he "explained the concept of medication overuse headaches" and wrote he was "optimistic her migraines will improve with the combination of topiramate and discontinuation of pain medication."
On April 15, 2016, Dr. Grissom wrote a letter opining that Ms. Gray "is unable to manage her pain with the use of interventional procedures only."
On June 9, 2016, Ms. Gray saw PA Fitzgerald for medication adjustments and refills. The morphine was discontinued and replaced with 60 tablets of Opana ER 15 mg, another opioid pain medication.
On July 26, 2016, Ms. Gray visited Dr. Shanley at PFMC for headaches and a neuropsychological referral. Ms. Gray reported having "depressed mood, anxiety symptoms as well as memory difficulty and decreased concentration."
On August 2, 2016, Ms. Gray followed up with Dr. Ellenson to adjust her medications for daily headaches.
On August 18, 2016, Ms. Gray saw Russell Cherry, PsyD, for a neuropsychological evaluation. Dr. Cherry conducted an interview with Ms. Gray and performed a battery of academic, mood, behavior, and adaptive behavior tests. Ms. Gray "did not list medications and had difficulty recalling them, with the exception of amitriptyline." She presented as "tired and possibly sedated/groggy." She reported panic attacks and severe depression, significant agoraphobia, and a marked change in personality and mood, all arising after her 2011 injury. Dr. Cherry noted that the test findings "are considered only marginally valid due to the patient failing two different internal validity checks indicating invalid performance, as well as due to her failing two brief screening measures of effort/motivation, where she performed below adults with mild dementia or mental retardation, which is implausible." He noted Ms. Gray's "extreme overreporting of implausible cognitive/neurological symptoms." Dr. Cherry diagnosed Ms. Gray with major depressive disorder, recurrent and severe; Posttraumatic Stress Disorder ("PTSD"); anxiety, unspecified; and adverse medication effects. He provisionally diagnosed Ms. Gray with bipolar disorder, not elsewhere classified ("NEC"); and somatoform disorder, NEC. Specifically, Dr. Cherry noted "[w]ith regard to provisional diagnosis of Somatoform Disorder NEC, the referral source questioned somatic health issues." He also noted the "numerous technically invalid and implausibly low scores on neuropsychological testing is common to somatoform populations, the patient's responses on psychological testing were prototypical for diagnosis of somatoform disorder, and the patient's history of significant abuse and depression and varied anxiety would greatly predispose her toward somatic expression of stress/depression/anxiety." He noted that Ms. Gray "is receiving far too many sedating medications" and in his opinion, "the pain center where [Ms. Gray] is being seen has a tendency for over-sedating patients." He recommended the ongoing receipt of social security and related services, resumption of individual therapy, and consultation with an attorney regarding qualification for additional benefits due to her 2011 work accident. Dr. Cherry also recommended working with a physical therapist on chronic pain and sleep accommodations, reviewing sedating medications, receiving housing assistance and a service animal, participation in a chronic pain group, future participation in a PTSD support group or anxiety group, and reviewing the need for a repeat sleep study "if sedating medications can be reduced in the future."
Ms. Gray attended the September 26, 2016 hearing with her attorney, Christopher Dellert. She testified that she was "unable to walk unassisted" because of leg weakness. She explained that the radiographic ablation procedure, discogram, microdiscectomy, multiple injections, spinal cord stimulator, physical therapy, and chiropractic treatments had not resulted in any kind of long-term improvement, and in fact her pain had increased in the years following her 2011 injury. She testified that at the time of the hearing her only treatment was pain medications and that these were "somewhat effective." She testified that she could not sit or stand for long periods of time due to pain. She testified that she could do "[r]egular personal hygiene things; set up; laundry; vacuum; light duty housework; mainly sit up, sit up in the house because I end up having to do a lot of laying," but after performing light duty housework or "normal stuff," she was "in tremendous pain, for the next day or two."
Robert Sklaroff, M.D., testified as a medical expert at the hearing based on his review of the medical record.
Margaret Moore, Ph.D., also testified as a medical expert at the hearing based on her review of the records.
On July 11, 2014, Ms. Gray completed a function report. She stated that she was "in pain all the time." She reported that she needed help dressing, using the restroom, and caring for her hair, but could prepare "quick meals" and do light dusting and pick up. She reported that she could walk ten to twenty steps before stopping and regularly used a walker, wheelchair, motor scooter, cane, and brace/splint. She also reported that her "mood has changed" and that she was "easily frustrated, irritated and angry."
On July 12, 2014, Ms. Gray's friend, Viola Raye Smith, provided a function report on Ms. Gray's behalf. She reported that Ms. Gray was in "constant pain" and that her sleep is "broken and not restful." She reported that Ms. Gray needed assistance with personal care and does not cook, do housework, or drive. She also stated that "the amount of medication she takes does not allow her to drive."
On July 13, 2014, Ms. Gray's fiancé, Craig Welch, provided a function report. He reported that Ms. Gray was unable to work due to her injuries and daily pain. He reported that her medications make her sleepy and "sometimes keep her from sleeping." He reported that he and Ms. Gray's daughter assist Ms. Gray with personal care, food preparation, and household chores, but that Ms. Gray could pay bills, count change, handle a savings account, and use checks. He also reported that Ms. Gray walks with a cane for assistance; she also uses a walker, scooter, and a brace/splint. Mr. Welch drives her to appointments due to medication and pain.
Ms. Gray's son, Derric Echey, also provided a function report on July 13, 2014. He reported that Ms. Gray could not work because of "daily pain" and that her medications make her very drowsy. He also reported that Ms. Gray needs assistance with personal care, does some light housework, and can pay bills and count change, but does not drive.
Ms. Gray asserts in her opening brief that "the ALJ erred (1) in finding that [Ms. Gray]'s pain disorder was not a severe impairment at Step Two; (2) in his weighing of [Ms. Gray]'s allegations about the severity and limiting effects of her impairments; and (3) in his weighing of the medical opinion evidence."
Ms. Gray alleges that "the ALJ erred in finding that [she] did not have a severe mental impairment that contributed to her symptoms." Specifically, she asserts that her "psychological pain, whether a chronic pain syndrome or somatoform disorder, results in more than minimal impact on her ability to perform basic work activities."
The Social Security regulations define severe impairment as an impairment which significantly limits a claimant's "ability to do basic work activities."
The ALJ found that a "somatoform disorder is not a medically determinable impairment for [Ms. Gray]." He noted that testifying medical expert Dr. Moore found "no reason" to make a somatoform disorder diagnosis and "no clear or formal diagnosis was made of somatoform disorder under section 12.08
Although the ALJ determined that somatoform disorder was not a medically determinable impairment for Ms. Gray, he still reviewed and analyzed treatment notes and findings discussing the potentially psychological elements of Ms. Gray's pain symptoms. The record does not contain objective medical evidence demonstrating a formal somatoform diagnosis. Moreover, ALJ Hebda did not end the sequential analysis at step two; he addressed Ms. Gray's pain symptoms throughout the decision and considered pain in determining her RFC.
Even if the ALJ erred by finding that somatoform disorder was not a medically determinable impairment for Ms. Gray, such error was harmless. The ALJ analyzed the evidence in the record regarding the psychological element of Ms. Gray's pain allegations and considered her pain symptoms in determining her RFC.
Ms. Gray alleges that the ALJ "did not give clear and convincing reasons for finding [Ms. Gray]'s allegations not fully credible." Specifically, she asserts that "the ALJ's finding that [her] allegations were inconsistent with the medical evidence was not based on the correct legal standard." Further, Ms. Gray claims that the ALJ "erred in basing his finding of inconsistency on the opinion of the independent medical examiner and a notation that treatment had been effective."
An ALJ's credibility assessment has two steps.
In the first step, the claimant "need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom."
In the second step, the ALJ evaluates the intensity and persistence of a claimant's symptoms by considering "all of the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about how [the claimant's] symptoms affect [him]."
The ALJ provided several reasons for his adverse credibility determination. First, the ALJ noted that "[m]edical findings are persistently the same and normal."
The ALJ also found that Ms. Gray's allegations of pain and pain behaviors were inconsistent with objective findings.
Third, the ALJ determined that the "record shows failure by [Ms. Gray] to follow medical recommendations."
Based on the foregoing, the Court finds that the ALJ provided specific, clear, and convincing reasons supported by substantial evidence in the record for his determination that Ms. Gray's allegations regarding the severity and functional impact of her pain symptoms were not wholly credible.
Ms. Gray asserts that the ALJ failed to "give specific and legitimate reasons supported by substantial evidence in the record for his weighing of the acceptable medical source opinions." She alleges that the ALJ erred by giving "little weight" to the opinions of Drs. Samuelson, Grissom, and Chandler and by "considering the opinions in isolation of the other evidence in the record, including their own treatment notes." Additionally, Ms. Gray argues that the ALJ "did not give germane reasons in support of his weighing of the opinion evidence from the treating and examining `other' sources." Specifically, she asserts that the ALJ failed to address Dr. Chalifour's "opinion at all in the decision at hand," failed to "offer a germane reason for giving [OT Kerris's] opinion little weight," and erred in "treating [PA] Fitzgerald's opinion as if it existed in a vacuum."
"Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s]."
In the Ninth Circuit, "[t]o reject the uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence."
Factors relevant to evaluating any medical opinion include: (1) the consistency of the medical opinion with the record as a whole; (2) the physician's area of specialization; (3) the supportability of the physician's opinion through relevant evidence; and (4) other relevant factors, such as the physician's degree of familiarity with the SSA's disability process and with other information in the record.
The SSA also permits a claimant to provide evidence from non-physician sources as to the severity of an impairment and how it affects a claimant's ability to work, including evidence from a nurse practitioner, physician assistant (PA), chiropractor, or therapist, including a physical therapist.
On October 29, 2012, Ms. Gray first saw Dr. Chandler for an initial evaluation.
Dr. Chandler's opinions regarding Ms. Gray's ability to walk were contradicted by Dr. Sklaroff, a non-examining medical expert who testified that he found nothing in his review of the record that supported Ms. Gray's need for an assistive device for ambulation he opined it would be desirable for Ms. Gray to "throw away the crutches" as it would enhance her capacity to function.
The ALJ's specific reasons for rejecting Dr. Chandler's opinions regarding Ms. Gray's walking ability are supported by substantial evidence in the record. An ALJ may reject a medical opinion, including a treating physician's opinion, if it is brief, conclusory and inadequately supported by clinical evidence.
Dr. Samuelson was one of Ms. Gray's treating physicians at PFMC, although it appears from the record that Ms. Gray only visited Dr. Samuelson on two occasions.
Dr. Samuelson performed a physical capacity evaluation of Ms. Gray on July 2013, her first visit with that doctor. On that day, Dr. Samuelson opined that Ms. Gray could lift up to ten pounds occasionally, was unable to squat or climb, could bend occasionally and reach frequently, and use her feet and legs for pushing and pulling activities for limited periods of time.
Here, the ALJ's specific reason for rejecting Dr. Samuelson's opinions regarding Ms. Gray's restrictions in activities such as lifting and carrying, is supported by substantial evidence in the record. The answers provided by Dr. Samuelson in the physical capacity evaluation questionnaire of July 2013 were primarily based on subjective reports of pain by Ms. Gray. Indeed, as the ALJ points out, Dr. Samuelson notes that Ms. Gray "has pain, though there is no clear medical explanation for this pain," while also noting that the MRI of the thoracic spine was normal and the x-ray of the lumbar spine showed no fractures and scoliosis.
Based on the foregoing, the Court finds that the ALJ provided specific, legitimate reasons, supported by substantial evidence, for rejecting Dr. Samuelson's opinion regarding Ms. Gray's restrictions of activities such as carrying and lifting.
Dr. Grissom began treating Ms. Gray in August of 2013.
The ALJ gave Dr. Grissom's opinions "little weight" because "[t]hey provide limited information about alleged limitations without providing an explanation for the limitations. Thus, Dr. Grissom is yet another doctor who failed to cite objective medical findings."
An ALJ "may discredit treating physicians' opinions that are conclusory, brief an unsupported by the record as a whole or by objective medical findings."
Dr. Chalifour was Ms. Gray's chiropractor beginning February 1, 2012.
OT Kerris, of Providence Sports Medicine & Rehabilitation Therapies, evaluated Ms. Gray in June 2013.
The ALJ considered OT Kerris's opinions in his RFC determination. For the reasons set forth above, the Court finds that the ALJ provided germane reasons for rejecting OT Kerris's opinion regarding Ms. Gray's restrictions of activities such as carrying and lifting.
PA Fitzgerald, at Algone, treated Ms. Gray regularly from November 2013 through March of 2016.
Although PA Fitzgerald did not specifically list objective medical findings or provide an extensive explanation for Ms. Gray's limitations in the health status forms she filled out in November 2013 and May 2014, based on her treatment notes, and treatment history, PA Fitzgerald provided an adequate explanation for Ms. Gray's limitations. Rejecting a cursory form when there are extensive treatment notes prepared by the provider in the record simply because the form itself did not contain an explanation is not a germane reason to reject the opinions set out in the form. Therefore, the ALJ erred in rejecting PA Fitzgerald's opinions.
The "ordinary remand rule" applies to disability cases. Under this rule, if "the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."
Ms. Gray argues that all three conditions are met in this case. The Commissioner responds that "even if the ALJ had committed the errors [Ms. Gray] identifies, an award of benefits would be an inappropriate remedy" because "the medical record raises serious doubts as to whether [Ms. Gray] is disabled."
Here, the Court has found that the ALJ did not provide legally sufficient reasons for rejecting the opinions of Dr. Grissom and PA Fitzgerald. Second, the record has been extensively developed. It contains hundreds of pages of treatment notes from medical visits from December 2011 through 2016, as well as additional records prior to Ms. Gray's alleged onset date. It contains numerous health status reports, imaging results, and medical evaluations. It includes testimony from Ms. Gray about her symptoms and testimony from two medical experts at the September 2016 hearing. Also included are multiple third-party functions reports. Third, if Dr. Grissom's and PA Fitzgerald's disability opinions are credited as true, the ALJ would have been required to find Ms. Gray to be disabled. Thus, all three conditions to credit-as-true have been satisfied.
But the Court agrees with the Commissioner that a remand for immediate benefits is not warranted in this case.
The Court, having carefully reviewed the administrative record, finds that the ALJ's reasons for rejecting the opinions of Dr. Grissom and PA Fitzgerald are not free from legal error. Accordingly, IT IS ORDERED that Ms. Gray's request for relief at Docket 1 is GRANTED IN PART as set forth herein, the Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision.
The Clerk of Court is directed to enter a final judgment accordingly.
