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O'Neil v. Commissioner Social Security Administration

United States District Court, D. Oregon, Eugene Division

March 31, 2017



          Youlee Yim You United States Magistrate Judge


         Plaintiff, Melissa Lea O'Neil (“O'Neil”), seeks judicial review of the final decision by the Social Security Commissioner (“Commissioner”) denying her applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401-433, and Supplemental Security Income (“SSI”) under Title XVI of the SSA, 42 U.S.C. §§ 1381-1383f. This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with F.R.C.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, that decision is AFFIRMED.


         O'Neil protectively filed for DIB and SSI on June, 27, 2011, alleging a disability onset date of August 28, 2010. Tr. 128-30.[1] Her applications were denied initially and on reconsideration. Tr. 197, 206. On September 24, 2013, a hearing was held before Administrative Law Judge (“ALJ”) Ted W. Neiswanger. Tr. 86-127. The ALJ issued a decision on October 31, 2013, finding O'Neil not disabled. Tr. 67-77. The Appeals Council denied a request for review on July 23, 2015. Tr. 1-3. Therefore, the ALJ's decision is the Commissioner's final decision subject to review by this court. 20 C.F.R. §§ 404.981, 416.1481, 422.210.


         Born in June, 1973, O'Neil was 40 years old at the time of the hearing before the ALJ. Tr. 128-29. In addition to a high school diploma, she took one year of college courses, and has past relevant work experience as a caregiver, phlebotomist, nursery school attendant, and receptionist. Tr. 75. O'Neil alleges she is unable to work due to the combined impairments of obesity, a cervical spine condition causing pain, bilateral knee problems, left shoulder impingement, myofascial pain, stomach problems, and depression. Tr. 69-70, 130, 156.


         O'Neill was injured in a 2007 motor vehicle accident in which she was ejected from her vehicle and sustained a concussion and fractures in her cervical spine and left clavicle. Tr. 397-98. She subsequently underwent surgery, including a fusion of C5-C6-C7 and discectomy. Tr. 386-90, 403. Later that year, O'Neil was diagnosed with a medial meniscal tear in her right knee, for which she had a meniscectomy in April 2008. Tr. 416- 18.

         In June 2008, O'Neil reported neck pain, headache, and depression following physical therapy for her knees. Tr. 423. She had an MRI the following month that showed mild foraminal narrowing at two levels of the cervical spine. Tr. 453. By September, O'Neil indicated she had used up all of her pain and depression medication, and complained of knee pain and instability. Tr. 473. She received a cortisone injection. Tr. 469.

         One year later in August 2009, O'Neil sought treatment for acute abdominal pain. Tr. 544. She also reported upper back and neck pain. Id. She was provided Percocet for thoracic pain, and diagnosed with cervical radiculitis. Id. By December, O'Neil reported abdominal pain, but had no other complaints. Tr. 542.

         In January 2010, O'Neil indicated she had fallen down, injuring her shoulders and neck. Tr. 540. She was diagnosed with a neck strain and provided Vicodin. Id. In March, O'Neil had an MRI that showed a solid fusion of C5-C7, as well as C5-6 degenerative disc disease. Tr. 523. O'Neil underwent another discectomy and fusion later that month to address the C5-6 level. Tr. 498.

         By September 2010, O'Neil reported resolution of her pre-operative complaints, but indicated that she had experienced considerable left shoulder pain throughout the summer. Tr. 564, 566, 696. In October, she was diagnosed with left shoulder impingement syndrome. Tr. 627.

         O'Neil established care with Michael Boespflug, M.D., in January 2011. Tr. 820. He noted chronic neck pain with mild hand numbness, but no radiculopathy. He also assessed myofascial pain syndrome in the neck and upper back. Tr. 820. O'Neil repeatedly experienced shoulder and neck pain over the following months, despite doing stretching exercises and physical therapy and taking anti-inflammatory medication. Tr. 817.

         In September 2011, O'Neil reported a sudden onset of right knee pain while walking. Tr. 723. An MRI showed a full thickness cartilaginous tear involving the lateral femoral condyle. Tr. 731. She subsequently had arthroscopic surgery to address the medial and lateral condyle. Tr. 798. O'Neil continued to report tenderness in her neck and shoulder, and Dr. Boespflug diagnosed cervical radiculopathy with myofascial pain syndrome and right knee arthritis. Id. Her left shoulder pain worsened again in January 2012. Tr. 679, 794. She was reported to be markedly depressed during her cervical surgery recovery. Tr. 681. A cervical MRI in February 2012 showed no spinal stenosis, with stable lower cord atrophy and myelomalacia. Tr. 677. Mild degenerative changes were noted at the cervical fusion levels. Tr. 678.

         In April 2012, O'Neil reported significant right knee soreness causing her to limp for which she received a steroid injection. Tr. 712. An MRI of her left knee the following month revealed a tear in the meniscus root. Tr. 737. In June, Dr. Boespflug diagnosed internal left knee derangement with meniscal tear and cyst and trachantric bursitis/tendinitis in the right hip, and continued to diagnose myofascial pain syndrome in the left side of the neck. Tr. 786. In the following months, O'Neil was diagnosed with irritable bowel syndrome (“IBS”), and had another arthroscopic knee procedure. Tr. 879, 883, 989.

         On September 18, 2012, Dr. Boespflug completed a questionnaire prepared by O'Neil's attorney. Tr. 837-40. The doctor set forth O'Neil's multiple diagnoses, and noted she could reach in front of her torso less than one third of the day on the left side, and would require breaks following the performance of fine and gross manipulations. See Id. He opined O'Neil would not be able to complete a normal workday two days per month due to her impairments. Tr. 840. Two months later, O'Neil had another left knee steroid injection. Tr. 875.

         In January 2013, O'Neil reported that she was no longer able to attend pool physical therapy. Tr. 899. She continued to endorse left-sided neck pain and bilateral knee pain. Id. She was advised to find a way to continue pool physical therapy and to attempt to lose weight. Id. Her left knee pain worsened again in April 2013. Tr. 897.

         In June 2013, x-rays of O'Neil's bilateral knees showed moderate-to-severe osteoarthtritic changes on the right and moderate changes on the left. Tr. 864. Depression and obesity were also indicated. Id. She received injections in both knees the following month. Tr. 859. At that time, it was noted that her gait was a “little bit shuffling” but not terrible. Id. The doctor again discussed weight loss with her. Id. The day after receiving these injections, O'Neill returned to the doctor and reported she had fallen at home and landed on her left shoulder. Tr. 893. Weight loss was again discussed, and she was commended for having lost some weight. Id.


         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

         At step one, the ALJ determines if the claimant is performing substantial gainful activity. If so, the claimant is not disabled. 20 C.F.R. §§ ...

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