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Marzini v. Colvin

United States District Court, W.D. Wisconsin

August 15, 2016

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


          WILLIAM M. CONLEY District Judge

         Pursuant to 42 U.S.C. § 405(g), plaintiff Catherine A. Marzini seeks judicial review of a final decision of the defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, which denied her application for Supplemental Security Income. On June 24, 2016, the court heard oral argument on plaintiff’s contention that the administrative law judge (“ALJ”) failed to provide a sufficient explanation for his giving “little weight” to the written opinions of Nurse Practitioner Laurel Sorenson, as co-signed by a physician. For the reasons set forth below, the case will be remanded to the Commissioner for further proceedings.


         Marzini claims a disability onset date of May 1, 2004, primarily because of low back pain resulting from a work-related injury sustained in 2002 and chronic low back and neck pain since that time. Marzini was 48-years old when she first applied for benefits on February 14, 2011. She has past work experience as a certified nursing assistant and housekeeper, but has not worked since applying for benefits.

         In the summer of 2010, Dr. Josephine Ng diagnosed Marzini with discogenic back pain based on the results of a magnetic resonance imaging study (“MRI”).[1] (AR 299, 463-465.) Critical to Marzini’s challenge are the treatment notes and opinion of Nurse Practitioner Laurel Sorenson, whom Marzini saw for the first time on September 15, 2010 for a variety of health complaints. (AR 434-442.) At that visit, Marzini told Sorenson that she had a “permanent 20-pound lifting restriction.” (AR 436.) On exam, Sorenson noted Marzini had a full range of motion in all joints, a grossly normal neurosensory and motor strength, a normal gait, and a normal affect. (AR 439.)

         From September of 2010 to December of 2012, Marzini saw Sorenson on several occasions under the supervision of Dr. Espada and other doctors for pre-operative physical examinations and unrelated health complaints. Throughout this time, Sorenson regularly noted that Marzini had normal strength, reflexes, and sensation; was “able to climb stairs easily;” and was in an exercise program. (AR 353, 507, 509, 793, 795-796, 732-734, 773-775, 745-748, 711-716, 698-700, 686-689, 631-632.) From October 2011 to July 2012, Marzini also saw another nurse under Dr. Espada’s supervision for diet and weight loss, to whom she reported exercising as much as 30-60 minutes a day; walking for most of her errands; climbing stairs 15 minutes a day; doing squats, sit-ups and using an exercise machine; and at times, modifying her exercise routine due to low back pain. (AR 647, 667, 601, 647, 643, 646, 737-739, 815, 824, 680, 722-723.)

         On April 18, 2011, Marzini saw Dr. Ng regarding low back pain and reported numbness in her right leg and constant bilateral lumbar spine pain of a “7-8, ” which increased with activity. (AR 513.) Marzini also reported that the Flexeril and Gabapentin she was taking were mildly effective, but that Gabapentin caused headaches. As a result, Dr. Ng discontinued the Gabapentin and ordered physical therapy. (AR 807-808.)

         On September 15, 2011, Marzini saw Dr. Ng again, advising Ng that her low back pain was worse than before. (AR 770.) Ng assessed Marzini with lower extremity radiculitis and spinal nerve root inflammation, causing Ng to order another MRI. (AR 770.) Weeks later, Marzini saw Ng again. This time, Marzini reported that she “felt better” and that her pain was localized to the middle of her lumbar spine and infrequently radiated to her right leg. (AR 750.) Marzini continued to see Ng from September of 2011 to August of 2012 for low back pain, demonstrating full motor strength. Her MRI also remained essentially unchanged from the previous one, although her pain had reportedly increased.

         By December 2012, Marzini was complaining to Sorenson that her low back pain was getting worse and that she was “thinking about using” a cane. Although she was tearful during a December 13 exam and demonstrated some weakness in her right leg, Sorenson found she was in no acute distress. (AR 878.) On August 13, 2012, Marzini sought a second opinion from Dr. Panna Varia, M.D., who noted that Marzini was able to walk without much difficulty, had normal strength and sensation, unrestricted hip range of motion, and a negative straight leg raise. (AR 825-827.)

         A residual functional capacity assessment performed by consulting physician Dr. Pat Chan, M.D., on April 15, 2011, found Marzini able to lift 20 pounds occasionally, 10 pounds frequently, as well as stand, sit or walk 6 hours a day with unlimited pushing and pulling and no postural limitations. Dr. Chan also noted that Marzini had: minimal lumbar degenerative disease with no central canal compromise; normal strength and sensation; a negative straight leg test; and the ability to climb stairs easily, to shop, and to make meals. (AR 482-495.)

         On May 29, 2013 (after the administrative hearing before the ALJ on May 21, 2013), Nurse Practitioner Sorenson completed a residual functional capacity assessment, which was co-signed by Dr. Espada. (AR 917.) Sorenson concluded that Marzini had a poor prognosis, a herniated L4-5 disc, facet hypertrophy, lower extremity pain and weakness, decreased range of motion of the spine, and pain severe enough to interfere with concentration and attention “often or at least 50% of the day.” She further noted that Marzini was “incapable of even low stress jobs” due to an inability to tolerate work stress; was incapable of working on a part-time basis; could not lift 10 pounds; and would miss work “four or more times per month.” (AR 918-919.)

         On June 6, 2013, the ALJ issued a written decision finding Marzini severely impaired by spinal degenerative disc disease and obesity. (AR 37.) Although he reviewed Marzini’s history of depression and childhood trauma, and use of anti-depressants and anti-anxiety medication, he noted that she had reported feeling better overall and that her mental examinations were generally normal without focal deficits or mood symptoms. The ALJ also noted that Marzini’s records reflect occasional tearfulness related to pain, situational or financial stressors, or death in the family. (AR 35-36.)

         Even so, the ALJ discounted Marzini’s claims regarding the limiting effects of her symptoms because in his view, those claims conflicted with the medical records, largely unremarkable physical exams, her daily activities, and her exercise regimen. For largely the same reasons, the ALJ gave Sorenson’s opinions “very little” weight, plus he found that Sorenson lacked specialty training to state an opinion on Marzini’s mental and physical condition, and did so without examination or reference to objective facts. By contrast, the ALJ gave the state non-examining physician opinion some weight because “there exist[] a number of reasons to reach similar conclusions (as explained throughout this decision).” (AR 43.) ...

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