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Norris v. Berryhill

United States District Court, N.D. Texas, Dallas Division

March 22, 2017




         Pursuant to the consent of the parties and the order of reassignment dated April 26, 2016, this case has been transferred for the conduct of all further proceedings and the entry of judgment. (doc. 17.) Before the Court is Plaintiff's Brief, filed March 20, 2016 (doc. 13), Defendant's Brief, filed May 19, 2016 (doc. 20), and Plaintiff's Reply Brief, filed June 9, 2016 (doc. 24).[1] Based on the relevant findings, evidence, and applicable law, the Commissioner's decision is AFFIRMED.

         I. BACKGROUND[2]

         A. Procedural History

         Lynda M. Norris (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner)[3] denying her claim for disability insurance benefits (DIB) under Title II and supplemental security income (SSI) under Title XVI of the Social Security Act. On January 23, 2012, [4] she applied for DIB and SSI, alleging disability beginning on December 10, 2011. (R. at 128-45.) Her claim was initially denied on April 18, 2012, and upon reconsideration on June 6, 2012. (R. at 77-82, 89-92.) On August 2, 2012, she requested a hearing before an administrative law judge (ALJ). (R. at 95-98.) She appeared and testified at a hearing on April 22, 2014. (R. at35-64.) On July 25, 2014, the ALJ issued his decision finding Plaintiff not disabled. (R. at 18-29.) Plaintiff timely appealed the ALJ's decision to the Appeals Council. (R. at 12-13.) The Appeals Council denied her request for review, and the ALJ's decision became the final decision of the Commissioner. (R. at 1-5.) Plaintiff timely appealed the Appeals Council's decision under 42 U.S.C. § 405(g).

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on May 2, 1968, and was 45 years old at the time of the hearing on April 22, 2014. (R. at 39.) She had two years of junior college, and had previously worked as a sales person/hardware (279.357-050, light, semi-skilled, SVP: 4), warehouse worker (922.687-058, medium, unskilled, SVP: 2), and merchandise clerk (299.367-014, heavy, semi-skilled, SVP: 4). (R. at 27, 39.)

         2. Medical Evidence

         Plaintiff was admitted to Baylor University Medical Center (Baylor) on October 14, 2009, after the “sudden onset of the worse headache of her life.” (R. at 405.) A head CT demonstrated a subarachnoid hemorrhage, and a CT angiogram demonstrated a basilar tip cerebral aneurysm. (Id.) Plaintiff underwent coiling of the basilar tip aneurysm. (Id.) The surgery was “uneventful, ” and a “[s]erial CT demonstrated progressive resolution of the subarachnoid hemorrhage.” (Id.) She progressively improved and was discharged on October 23, 2009. (Id.)

         On January 27, 2010, [5] Plaintiff met with Waleed H. El-Feky, M.D., at Texas Neurology, P.A. (Texas Neurology), for a follow up. (R. at 362.) Plaintiff reported to Dr. El-Feky that on October 13, 2009, she had the “worse headache of [her] life” and was taken to Baylor. (Id.) She was found to have a subarachnoid hemorrhage and ruptured basilar tip aneurysm and underwent a coiling. (Id.) Plaintiff denied any significant symptoms following the coiling, and Dr. El-Feky noted that she was awake, alert, and oriented with normal language, memory, and attention. (R. at 362-63.)

         Plaintiff had a CT of her head on February 8, 2010, at Baylor. (R. at 360.) William Taylor, M.D., found no evidence of acute intracranial abnormality on the CT, which redemonstrated a previously visualized large coil pack in the region of the basilar tip. (Id.)

         Plaintiff had a follow up with Dr. El-Feky at Texas Neurology on March 26, 2010. (R. at 357.) He noted that Plaintiff was asymptomatic but had “some anxiety” and suffered from a panic attack approximately once a month. (Id.) On March 9, 2011, Plaintiff returned to Texas Neurology because she was worried about her past basilar aneurysm coiling. (R. at 235.) She also complained that her skin tingled all over. (Id.) Quanetta L. Davis, PA-C, under the supervision of Dr. El-Feky, noted that Plaintiff had “no new symptoms but would like to review her pictures of her brain for reassurance.” (Id.) Ms. Davis noted that the reports showed she was stable. (R. at 236.)

         On August 5, 2011, and September 23, 2011, Plaintiff met with Scott Farley, D.O., at Comprehensive Spine Center of Dallas. (R. at 283-290.) Dr. Farley assessed low back pain and lumbar radiculopathy. (R. at 286, 290.) He continued her use of Norco for pain, referred her to physical therapy, and encouraged use of a back brace. (R. at 286.)

         On August 19, 2011, an MRI of Plaintiff's lumbar spine without contrast was performed. (R. at 247.) The test found a 3- to 4-mm far left posterolateral disc herniation with moderate, associated left neutral foraminal stenosis distally at ¶ 4-L5 and a 2- to 3-mm central disc protrusion with annular tear at ¶ 5-S1. (Id.)

         On October 5, 2011, Plaintiff presented at Cardinal Pain Center with a chief complaint of low back and leg pain. (R. at 277, 279.) She met with Vijay Arvind, M.D., who noted that Plaintiff was obese and in distress secondary to pain. (R. at 279.) He diagnosed her with lumbar radiculopathy, myofascial pain, and lumbar spondylosis. (R. at 281.)

         Plaintiff had an MRI/MRA brain examination of the head on November 7, 2011. (R. at 240.) She returned to Texas Neurology on November 10, 2011, for a routine follow up and to review her MRI/MRA brain results. (R. at 238.) Ky Yarborough, PA-C, under the supervision of Alan W. Martin, M.D., noted that her repeat MRI brain with intracranial M RA demonstrated as table, coiled, aneurysm, and that Plaintiff reported she was “doing well” but had “occasional” headaches. (Id.) Her physical exam was within normal limits. (See id.)

         On January 24, 2012, Plaintiff returned to Cardinal Pain Center and again met with Dr. Arvind. (R. at 274-75.) She again complained of back pain. (R. at 275.) Plaintiff reported that she quit her job because she was unable to keep up with eight to 12-hour shifts as a result of “horrible pain” going down her left leg. (R. at 275.) An MRI showed left L4 and L5 nerve root stenosis due to disc herniation and an annular fissure at ¶ 5-S1. (Id.) A physical exam, which included a mental status exam, was within normal limits, and Plaintiff was assessed with lumbar radiculopathy, lumbar herniated nucleus pulposus, and lumbar degenerative disc disease. (R. at 275-76.)

         On February 3, 2012, Plaintiff returned to Texas Neurology because of her headaches and met with Ms. Yarborough. (R. at 347) She reported daily headaches with photophobia, phonophobia, nausea, and subjective memory loss of unclear etiology. (R. at 348.) Plaintiff was started on Medrol and Amerge for her headaches. (Id.) Dr. Martin signed off on Ms. Yarborough's notes. (R. at 349.)

         On March 24, 2012, Plaintiff attended a consultative psychiatric examination with Peter Holm, M.D. (R. at 292-95.) She identified her chief complaint as anxiety and reported that she had noticed a decline in her cognitive function since about one year after her aneurysm repair. (R. at 292.) Plaintiff also reported that she had not been employed full-time since January 2012 because of her cognitive problems, but that she successfully had a one-day assignment the day before her appointment. (See id.) She also reported that her eyes had been very light sensitive for the prior six months, and that she experienced “some occasional headaches.” (Id.) Dr. Holm noted that Plaintiff had been treated with Ambien and Ativan, which had helped with her sleep and her anxiety over her perceived cognitive problems. (Id.) She denied any interactional problems with people but felt very easily overwhelmed by tasks. (R. at 293.) He diagnosed an amnestic disorder not otherwise specified and assigned a global assessment of function (GAF) of 45. (R. at 294-95.)

         On April 17, 2012, state agency medical consultant (SAMC) Susan Thompson, M.D., completed a Psychiatric Review Technique for Plaintiff. (R. at 296-308.) She noted Plaintiff had an amnestic disorder and found that she was moderately limited in maintaining social functioning and maintaining concentration, persistence, and pace. (R. at 299, 306.) Dr. Thompson also found that Plaintiff was mildly restricted in activities of daily living and had no episodes of decompensation. (R. at 306.) Dr. Thompson opined that Plaintiff's allegations were “partially supported.” (R. at 308.)

         Dr. Thompson completed a Mental Residual Functional Capacity Assessment. (R. at 318-21.) She determined that Plaintiff was moderately limited in her ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, complete a normal workday and workweek without interruptions from psychologically based symptoms and perform a consistent pace without an unreasonable number and length of rest periods, and accept instructions and respond appropriately to criticism from supervisors. (R. at 318-19.) She could understand, remember, and carry out detailed but not complex instructions, make decisions, attend and concentrate for extended periods, accept instructions, and respond appropriately to changes in routine work setting. (R. at 320.)

         SAMC James Wright, M.D., completed a Physical Residual Functional Capacity Assessment for Plaintiff on April 17, 2012. (R. at 310-17.) Dr. Wright opined that Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for a total of six hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday, and push and/or pull without limitations. (R. at 311.) He further opined that she could also occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but she could never climb ladders, ropes, or scaffolds. (R. at 312.) Dr. Wright also opined that Plaintiff's allegations were “partially supported.” (R. at 317.)

         Progress notes from Dr. Martin at Texas Neurology for April 18, 2012, show that Plaintiff complained of persistent anxiety and intermittent panic attacks but benefitted from Ativan. (R. at 325-27, 344-46.) She reported frequent headaches that responded to Tramadol, and exercise helped her anxiety symptoms. (Id.) She complained of cognitive and memory symptoms when she was anxious. (Id.) A physical examination was within normal limits. (R. at 325-26.) Plaintiff was assessed as having an aneurysm of other specified artery, a generalized anxiety disorder, and migraines, unspecified without mention of intractable migraine. (R. at 326.) She was prescribed Hydrocodone as needed for the headaches and Buspar for the underlying anxiety. (Id.)

         On June 4, 2012, Veena Ghai, M.D., affirmed Dr. Thompson's mental RFC assessment for Plaintiff. (R. at 329.) Likewise, Laurence Ligon, M.D., affirmed Dr. Wright's physical RFC assessment on June 5, 2012. (R. at 330.)

         On August 16, 2012, Plaintiff had a MRA intracranial exam, which showed the previously identified filling of the neck of the coiled basilar tip aneurysm; the configuration of the residual neck filling appeared unchanged and “stable.” (R. at 342.)

         On August 16, 2012, Plaintiff presented at Texas Neurology because of eye pain. (R. at 339.) Ms. Yarborough and Dr. Martin recommended that she consult with an ophthalmologist if the pain was not resolved by her headache treatment. (R. at 340.)

         On January 13, 2013, Plaintiff went to Baylor's emergency room with a complaint of headaches and a toothache as a result of broken teeth. (R. at 400.) A CT of the head without contrast was performed, and she was discharged in stable condition the same day. (R. at 401, 403.) The scan showed no evidence of acute intracranial process and a stable appearance of aneurysm coil pack at the basilar tip. (R. at 403.) The doctors diagnosed Plaintiff with acute pain in mandible dental caries, acute pain in maxilla dental caries, and headaches. (R. at 400-01.)

         On April 5, 2013, an MRI of Plaintiff's lumbar spine revealed left foraminal broad-based disc protrusion at ¶ 4-L5 level causing moderate to severe left neural foramen narrowing, and small central disc protrusion at the L5-S1 level without significant canal or foraminal narrowing. (R. at 503-07.)

         On August 18, 2013, Plaintiff went to Baylor's emergency room with a complaint of blisters on her tongue. (R. at 397.) She reported having smoked for 33 years, but she quit in 2009. (Id.) The doctors diagnosed her with stomatitis. (R. at 399.) Plaintiff was discharged the same day to see a dentist and/or an oral maxillofacial surgeon. (Id.)

         On September 6, 2013, Dr. Martin completed a one-page form that diagnosed Plaintiff with an aneurysm, depression, and anxiety. (R. at 331.) He opined that she was unable to work but that her disability was not permanent and that she “needs to be released by psychiatrist to resume work.” (Id.) On June 19, 2013, Plaintiff had a MR brain and MR angiographic examination of the head and met with Dr. Martin, who noted that her MRI and MRA appeared stable. (R. at 333-38.)

         On September 20, 2013, Plaintiff went to Baylor's emergency room because she felt unsafe at home alone as a result of increasing depression, which she attributed to her prior aneurysm and to her husband having left her that day. (R. at 392.) She was diagnosed with depression, suicidal ideation (resolved), and elevated blood sugar, and was discharged the same day. (R. at 392-96.)

         On September 21, 2013, Plaintiff went to Timberlawn Mental Health System (Timberlawn) because of her depression. (R. at 437.) She met with people at Timberlawn from September 21, 2013, through February 27, 2014. (See R. at 430-44.)

         Plaintiff had an MRA of the head on November 25, 2013, which demonstrated sequela of prior endovascular coiling of a basilar apex aneurysm with small focus of residual filling at the neck of the aneurysm, stable compared to multiple prior studies, and “otherwise unremarkable intracranial arterial vasculature.” (R. at 428.)

         From March 13, 2013 to November 6, 2013, Plaintiff went to Phoenix Pain Clinic for her back pain and headaches. (R. at 479-97.) Jose Duarte, M.D., repeatedly noted that her medications were “good enough for function, ” but that she still had some pain. (R. at 479, 481, 484, 487, 489, 491, 493.) He also noted that Ultram helped with her headaches. (Id.)

         On December 14, 2013, Plaintiff went to Baylor's emergency room with a complaint of headaches, anxiety, and pain to her posterior scalp, which had begun the day before. (R. at 388.) She described the headaches as intermittent and sharp, but“[a]t its worst the pain was moderate.” (Id.) It was accompanied by nausea, vertigo, and tingling on the right arm, and was aggravated by light and noise. (Id.) She reported that she had experienced chronic headaches several times a month since she had a cerebral aneurysm. (Id.) The doctors diagnosed Plaintiff with acute headaches and anxiety. (R. at 388, 391.) Her neurological exam was normal. (R. at 390.) She felt better after she was given medication and was discharged the same day. (R. at 390-91.)

         A lumbar spine MRI was completed on February 27, 2014. (R. at 524.) It revealed moderate-sized left foramial disc herniating at ¶ 4-L5 level, which caused moderate to severe left neural foraminal stenosis with likely indentation/compression of the exiting left L4 nerve root and mild spondylotic changes at ¶ 5-S1 level without significant canal or foraminal narrowing. (Id.)

         Between February 26, 2014, and April 22, 2014, Plaintiff went to Pain Diagnostic and Treatment Center, P.A., for her low back pain, and met with Timothey N. Zoys, M.D. (R. at 516-28.) On March 5, 2014, Plaintiff followed up with Dr. Zoys. (R. at 522.) She reported that she felt worse and described her pain as “aching, sore, ” ranging from 8/10 to 10/10. (R. at 522.) A physical and mental examination was within the normal limits. (See id.) He assessed her as having displacement of lumbar intervertebral disc without myelopathy, lumbosacral radiculitis not otherwise specified, and spinal stenosis of lumbar region. (Id.) An epidural steroid injection was recommended, but Plaintiff held off because of financial issues. (R. at 517, 523.) Dr. Zoys repeatedly noted that her response to the injection would determine whether further referral to a comprehensive interdisciplinary pain management program was warranted. (R. at 516-17, 519, 521.) When Plaintiff was seen again on April 16, 2014, it was noted the percentage of functional benefit and the percentage of pain relief with Norco treatment was 65-70 percent, and that she reported no side effects to the medication. (R. at 518.)

         On April 21, 2014 Khurshid Khan, M.D., completed a Medical Assessment of Ability to Do Work-Related Activities (Physical) for Plaintiff. (R. at 512-14.) Dr. Khan opined that her ability to lift/carry was not affected by her impairment. (R. at 512.) He also noted that she had two herniated discs in her lower back, and that her ability to stand/walk and sit was affected by impairment, which caused her to have “severe pain” when she stood or walked for more than 10 minutes. (Id.) Additionally, when Plaintiff sat for longer durations of time, she experienced compression on a nerve. (R. at 513.) He opined that she could sit for 20 minutes total in an eight-hour workday and 20 minutes without interruption. (Id.) She could occasionally climb, stoop, kneel, and balance but never crouch nor crawl because of her herniated discs. (Id.) Dr. Khan also opined that Plaintiff would not be a reliable worker due to her memory issues and her limited dexterity and range of motion. (R. at 513-14.)

         3. Hearing Testimony

         On April 22, 2014, Plaintiff and a vocational expert (VE) testified at a hearing before the ALJ.[6] (R. at 35-64.) Plaintiff was represented by an attorney. (R. at 37.)

         a. Plaintiff's Testimony

         Plaintiff testified that she was 45 years old, right handed, 5' 4" tall, and weighed 180 pounds. (R. at 39.) She was common-law married and had attended two years of junior college.[7] (Id.)

         Plaintiff alleged that she became disabled in December 2011, which was the last time she worked full time, as a result of an aneurysm. (R. at 43.) From 2007 to December 2011, Plaintiff maintained the video game sections in several stores, including Office Max, Circuit City, Walmart, and Best Buy. (R. at 42.) She replaced old video systems with new ones and handled “resets, ” which included taking everything out of sections and replacing those sections with new shelving, new products, and new tags. (R. at 42-43.) After her aneurysm in 2009, Plaintiff began to suffer from headaches three to four time a week. (R. at 45.)

         Plaintiff described her headaches as lasting one to two hours after she took her medication, and she would “seclude” herself in her bedroom without any light until they passed. (R. at 45-46.) Without her medication, her headaches persisted. (R. at 46.) She also suffered from diabetes and “extreme” anxiety, which she did not have prior to her aneurysm. (Id.) Plaintiff related her anxiety to a fear of dying because of her aneurysm. (See R. at 47.) She took Xanax, Klonopin, and Tramadol. (R. at 45-46.)

         Plaintiff started experiencing back pain in May 2011 after a “twist” and was diagnosed with two herniated discs. (R. at 43-44.) The pain caused her to stay in bed for several days at a time. (Id.) She had problems with her back throughout the day on a daily basis when she turned into certain positions, or when she tried to pick up something. (R. at 43-45.) When that occurred, she felt “extreme pain” that shot down her legs. (R. at 45.) After her aneurysm, Plaintiff also noticed a slowing of her mental capacities, and she decided to “gracefully bow out of being able to work full time.” (R. at 43-44.)

         In 2012, Plaintiff worked as a part-time merchandiser for five to 20 hours a week in the greeting card sections of Family Dollar and Dollar General stores. (R. at 40.) She would go in and remove outdated cards and stock the most recent or holiday-appropriate cards. (Id.) That position was for a fixed duration and lasted for approximately two months. (Id.) She again worked as a merchandiser at Family Dollar and Dollar General stores from October 2012 to May 2013. (R. at 41.) She had trouble focusing, suffered from short-term memory loss, and got lost leaving stores. (Id.) Her mental capacity “deteriorat[ed] at a fast rate.” (Id.) For example, when leaving stores, she forgot where she was and had to call her husband for directions to her home. (Id.) In March 2013, Plaintiff began to have problems completing her tasks at work. (R. at 48.)

         In response to a question related to her “biggest problem” with working eight hours a day, Plaintiff responded, “[t]he fear of the anxiety attacks; the pain that comes in my lower back; and the headaches that come unexpectedly; just everything, all of the symptoms that I seem to have developed from having the aneurysm, tells me I can't do it anymore.” (R. at 48-49.) She further explained that she was unable to work because her anxiety and back problem continued to get worse. (R. at 54.) Additionally, she could only stand and walk for ten minutes at a time, could only sit for 20 minutes out of an eight-hour workday, had a “little bit” of trouble getting along with people, and suffered from short-term memory issues. (R. at 56-58.)

         b. VE's Testimony

         The VE testified that Plaintiff had past work as a sales person/hardware (279.357-050, light, semi-skilled, SVP: 4), warehouse worker (922.687-058, medium, unskilled, SVP: 2), and merchandise clerk (299.367-014, heavy, semi-skilled, SVP: 4). (R. at 59.) The VE noted that Plaintiff indicated that she practiced sales/hardware and merchandise clerk at a heavy exertional level, but that based on her education and experience, the positions were typically practiced at medium and light-to-medium levels, respectively. (Id.)

         The ALJ asked the VE to consider a hypothetical person of the same age, education, and work background as Plaintiff, who had at least moderate difficulties in concentration, persistence, and pace, such that she was limited to simple, routine, repetitive tasks that were consistent with unskilled work that was learned by rote, and simple instructions and simple work-related decisions. (R. at 60.) Additionally, the hypothetical person was limited to few work place changes, little judgment, and simple and direct supervision and would have at least moderate difficulties in social functioning. (Id.) She could have no more than occasional contact with the general public and coworkers. (Id.) The hypothetical person was limited to light work, occasional lifting and carrying 20 pounds, frequently lifting and carrying 10 pounds, standing and walking with normal breaks for about six hours in an eight-hour workday, sitting with normal breaks for about six hours in an eight-hour workday. (Id.) She had no limitations with regard to pushing, pulling, or operation of hand and foot controls, and she was able to occasionally climb ramps and stairs, balance, stoop, kneel, and crouch. (Id.) The hypothetical person could not climb ladders, ropes, or scaffolds, and she was required to avoid even moderate exposure to hazards, moving machinery or unprotected heights, and commercial driving. (Id.)

         The ALJ then asked the VE whether the hypothetical person could engage in any of Plaintiff's past work, and the VE said she could not. (Id.) The VE opined that the hypothetical person could work as a laundry worker (302.685-010, light, unskilled, SVP: 2) with 123, 600 in the national economy and 10, 500 in Texas; a ticketer (229.587-018, light, unskilled, SVP: 2) with 213, 000 in the national economy and 16, 200 in Texas; and a mail clerk (209.687-026, light, unskilled, SVP: 2) with 70, 000 in the national economy and 4, 500 in Texas. (R. at 61.) Her testimony was consistent with the Dictionary of Occupational Titles (DOT). (Id.)

         The ALJ asked the VE to next assume the hypothetical person could lift and carry less than 10 pounds, stand and walk for less than one hour in an eight-hour workday, and sit for less than two hours in an eight-hour workday. (Id.) The ALJ then asked whether the hypothetical person could perform any of the previously described jobs or any other full-time competitive employment. (Id.) The VE opined that the hypothetical person could not. (Id.) It would be difficult for the hypothetical person to maintain competitive employment if she was not at her work station at least 90 percent of the time, or if she missed two or more days per month. (R. at 62.)

         C. The ...

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