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Johnson v. Berryhill

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

March 24, 2017




         Pursuant to the consent of the parties and the order of reassignment dated March 2, 2016 (doc. 17), this case has been transferred for the conduct of all further proceedings and the entry of judgment. Before the Court are Plaintiff's Brief in Support of Claim, filed May 12, 2016 (doc. 22), and Defendant's Response Brief filed June 9, 2016 (doc. 24). Based on the relevant filings, evidence, and applicable law, the Commissioner's decision is AFFIRMED.

         I. BACKGROUND [1]

A. Procedural History

         Sandra Kay Johnson (Plaintiff) seeks judicial review of a final decision by the Acting Commissioner of Social Security (Commissioner)[2] partially denying her claims for disability insurance benefits (DIB) under Title II of the Social Security Act (Act) and for supplemental security income (SSI) under Title XVI of the Act. (R. at 1, 18.) Plaintiff filed her applications for DIB and SSI on July 1, 2010, and August 18, 2010, respectively, alleging disability beginning on April 1, 2009.[3] (R. at 364-69.) Her claims were denied initially and upon reconsideration. (R. at 171-74.) Plaintiff requested a hearing before an administrative law judge (ALJ), and she personally appeared and testified at a hearing on October 12, 2012. (R. at 45-63.) On December 14, 2012, the ALJ issued a decision finding that Plaintiff was not disabled and denying her claims for benefits. (R. at 175-94.) She timely appealed to the Appeals Council, which granted her request for review and remanded the decision to the ALJ for additional consideration on March 26, 2014. (R. at 195-99.)

         On July 8, 2014, Plaintiff personally appeared and testified at a second hearing before the ALJ. (R. at 109-46.) The ALJ partially denied her claims, finding that she was not disabled prior to March 19, 2014, but became disabled on that date and continued to be disabled thereafter. (R. at 18-44.) Plaintiff timely appealed the ALJ's decision to the Appeals Council on December 8, 2014. (R. at 17.) The Appeals Council denied her request for review on October 14, 2015, making the ALJ's decision the final decision of the Commissioner. (R. at 1-7.) Plaintiff timely appealed the Commissioner's decision under 42 U.S.C. § 405(g). (See doc. 1.)

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on March 20, 1959, and was 55 years old at the time of the second hearing before the ALJ. (R. at 109-15, 364.) She left school in the 10th grade and never received a GED. (R. at 113.) She had past relevant work experience as a cashier, hospital food service worker, and home attendant. (R. at 33.)

         2. Medical Evidence

         On May 31, 2006, Plaintiff was admitted to the Bluitt-Flowers Health Center of the Parkland Health and Hospital System (Parkland) for back and hip pain. (R. at 536-38.) She had slipped on a wet floor and landed on her right side. (R. at 537.) Tenderness was found in her right lumbar spine area, and she was diagnosed with right hip and knee pain. (R. at 537-38.) X-rays taken the next day showed that her right hip had a "subtle sclerotic linear density" that was "possibly due to impacted fracture or previous stress line, " and that her right knee was "normal." (R. at 527-28, 543.)

         On September 11, 2007, Plaintiff was transported by ambulance to the emergency room of Renaissance Hospital after a fire broke out in her home. (R. at 547-56.) She reported that she had to "wake and assist" her son out of the house, and that she suffered moderate pain in her head, chest, hip, and back. (R. at 548.) There was no evidence of tenderness or trauma, but there was a limited range of motion in her right hip. (R. at 548-49.) It was noted that Plaintiff was "making effort to not cooperate [with the] basic exam, " but there were no problems with her orientation, mood, or confusion. (R. at 548.) She was diagnosed with smoke inhalation and potential psychological issues. (R. at 550, 555.)

         On September 27, 2007, Plaintiff met with Dr. Charles Tuen, M.D., for her headaches. (R. at 591-94.) Dr. Tuen noted a normal physical exam with no tenderness, good upper and lower extremity strength, and "mild limping" in her gait. (R. at 592-93.) During the neurological exam, Plaintiff had good orientation, a normal fund of knowledge, normal recent and remote memory, and the ability to cooperate and follow conversations without problem. (R. at 592.) Dr. Tuen diagnosed her with tension headaches potentially caused by smoke inhalation due to her house fire. (R. at 593 -94.)

         Between January 8, 2008, and July 3, 2014, Plaintiff regularly received mental health counseling and prescription medications from Dallas Metrocare Services (Metrocare). (R. at 603-616, 740-54, 863-905, 932-41, 1037-57, 1134-237, 1294-1315, 1348-50.) At her initial evaluation, she was diagnosed with major depressive disorder without psychotic features and was assigned a Global Assessment of Functioning (GAF) score of 49. (R. at 603.) It was consistently noted that she had coherent speech, no paranoia, an intact memory, and fair attention/concentration, but it was also noted that she was easily frustrated and irritable. (R. at 608, 616, 743, 747, 875, 884, 892-93, 898, 937-38, 1039, 1042-43, 1055-56, 1212, 1215, 1224, 1236-37, 1295, 1301, 1311.) During her sessions in 2010, Plaintiff reported that she had been tripling her pain and anti-depressant medication because they were "just not strong enough, " and that she would change clinics if they did not increase her medications. (R. at 889-93, 904-05, 938.) The increase was denied, but she was prescribed a different type of anti-depressant medication. (R. at 1043, 1046.)

         On February 19, 2008, Plaintiff met with Dr. Ingrid J. Zasterova, M.D., for an internal medicine consultative examination. (R. at 596-601.) Dr. Zasterova reported that she had "5/5" muscle strength in all extremities and a full range of motion in her neck and joints, with the exception of "some discomfort" in her right hip and minor limitation in her lumbar spine. (R. at 598, 601.) Plaintiff had a normal station and gait, could toe, heel, and tandem walk, and could "move around the room without her assistive device." (R. at 598.) Dr. Zasterova's clinical impressions were trochanteric bursitis in her right hip with no evidence of other abnormalities. (R. at 598.)

         On April 16, 2008, Plaintiff returned to Parkland for pain in her right hip and lower back. (R. at 618-20.) She reported the pain as being "6/10" when moving or walking. (R. at 619.) Besides tenderness in her lower lumbar spine, there were no abnormal findings during her physical exam. (R. at 619.) She was prescribed pain medication and instructed to return if the pain became worse. (R. at 620.)

         On July 11, 2008, Plaintiff met with Dr. Mark W. Matthews, Ph.D., for a psychological consultative examination. (R. at 634-42.) She reported a history of panic attacks and was "ambivalent" about having a history of depressive episodes. (R. at 637.) Dr. Matthews opined that she had an impaired attention and concentration, difficulty with her short and long-term memories, limited insight, and adequate judgment. (R. at 639.) He diagnosed her with panic disorder without agoraphobia, assigned her a GAF score of 55, and offered a guarded prognosis. (R. at 640.) Dr. Matthews also "expect[ed] the course of treatment will be challenging because [Plaintiff] appear[ed] uninterested" in treatment for her mental issues. (R. at 640.)

         On September 30, 2008, Plaintiff returned to Parkland for pain in her right hip. (R. at 650-55.) She had a normal gait, but she had "a little difficulty in walking [without] pain." (R. at 652.) She received X-rays of her right hip that showed "subtle osteoarthritis . . . with minimal spur formation" and "no joint space narrowing." (R. at 655.) She returned on December 14, 2008, for an MRI on her lumbar spine. (R. at 653.) The MRI results were generally "unremarkable" but did show "minimal posterior disc bulge which on sagittal images [did] not significantly impinge the thecal sac." (R. at 653.) The overall impression was degenerative disc change. (R. at 654.)

         On January 6, 2009, Plaintiff returned to Parkland for a follow-up orthopedic evaluation. (R. at 665-66.) She rated the pain in her upper lumbar and right upper thigh as "10/10." (R. at 665.) During the physical evaluation, Plaintiff had "5/5" bilateral lower extremity strength with intact sensation but "extreme tenderness" in her lumbar spine. (R. at 665.) Based upon the examination and MRI results, the physician "[could] not explain [the] reasons for extreme discomfort." (R. at 665.) She was instructed to return for further evaluations, and she returned for another MRI on her right hip on March 5, 2009. (R. at 661-62, 666.) The MRI results showed "very mild" degenerative changes in the right hip and "minimal nonspecific" edema. (R. at 661.)

         Between March 10, 2009, and February 8, 2011, Plaintiff received regular treatment and therapy for her hip and back pain at Parkland. (R. at 712-39, 764-88, 847-62, 971-82, 986-1030.) Her pain had an "unknown etiology, " though one Parkland physician believed that she may have "right meralgia paresthetica." (R. at 722, 725, 977, 1019.) Even though she was instructed to complete 6 weeks of physical therapy, she frequently missed or rescheduled, and one medical record noted that she had "yet to complete [physical therapy] ¶ 3 years." (R. at 713-18, 722.) Her pain medication was refilled at each appointment. (See e.g., R. at 719, 769, 971, 974.)

         On April 19, 2010, Plaintiff met with Dr. Kris Weber, Ph.D., for a psychological evaluation. (R. at 790-802.) Dr. Weber conducted several intelligence assessment tests, but noted that her scores were "not a good indication of her true intellectual functioning as [Plaintiff] put forth minimal effort on tasks that required thought and planning." (R. at 795.) It was still evident that Plaintiff had deficits in her intelligence and "limited cognitive flexibility, " however. (R. at 795-96.) Dr. Weber opined that she "[did not] want to put forth the necessary effort to make improvements [in her health], but wants her environment to change or others to change the situation." (R. at 797.) Plaintiff was assigned a GAF score of 45-50 and diagnosed with bipolar disorder, borderline intellectual functioning, and pain disorder "due to hip injury but mostly a function of psychological factors." (R. at 798.) Dr. Weber opined overall that Plaintiff was suited for "rote duties and a highly structured environment, " and that she should avoid jobs that required critical thinking, decision making, and timeliness. (R. at 801.)

         On October 5, 2010, Dr. Jim Cox, Ph.D., a state agency medical consultant (SAMC), completed a Psychiatric Review Technique form and a mental residual functional capacity (RFC) assessment for Plaintiff based upon the record. (R. at 906-23.) Dr. Cox assessed for affective disorders and diagnosed her with maj or depressive disorder without psychotic features. (R. at 909.) He found mild restrictions of activities of daily living and moderate difficulties in maintaining social functioning, concentration, persistence, and pace. (R. at 916.) He further found that her ability to understand, remember, and carry out detailed instructions was markedly limited. (R. at 920.) Dr. Cox determined overall that Plaintiff could understand, remember, and carry out only simple instructions, make simple decisions, attend and concentrate for extended periods, interact adequately with co-workers, and respond appropriately to changes in routine work settings. (R. at 922.)

         On October 14, 2010, Dr. Jeanine Kwun, M.D., a SAMC, completed a physical RFC assessment of Plaintiff based upon the record. (R. at 924-31.) She found that Plaintiff had the following exertional limitations: could occasionally lift or carry 20 pounds; could frequently lift or carry 10 pounds; stand, walk, or sit with normal breaks for a total of about 6 hours in an 8-hour workday; and an unlimited ability to push or pull. (R. at 925.) Plaintiff also had nonexertional limitations: could occasionally crouch and crawl; could frequently balance, stoop, kneel, and climb ramp and stairs; and could occasionally climb ladders, ropes, and scaffolds. (R. at 926.) She had no manipulative, visual, communicative, or environmental limitations. (R. at 927-28.)

         On February 8, 2011, Dr. Shiv Sharma, M.D., from Parkland performed a right lateral femoral cutaneous nerve block operation on Plaintiff s right hip. (R. at 986-1030.) There were no complications during the procedure, and she was discharged the same day. (R. at 1019-20.) After the surgery, she received physical therapy at Parkland where she was issued a "quad cane" to use during therapy. (R. at 993-94.) She continued to complain of hip pain, however. (R. at 1000-20.)

         On February 22, 2011, Plaintiff was referred to the Southwest Spine Institute for an evaluation of her hip and back pain. (R. at 1033-35.) She reported "7/10" pain and significant difficulty when she attempted to change positions. (R. at 1033.) She also reported that she had received pain management and physical therapy at Parkland, but the physician's assistant noted that it "sound[ed] to [him] that [formal therapy] was just too uncomfortable for her." (R. at 1033.) Plaintiff showed a "significant amount" of tenderness in her lumbar spine, and she ambulated with the use of a cane. (R. at 1034.) She appeared to be "neurovascularly intact" in her bilateral lower extremities, but she had a slightly antalgic gait. (R. at 1034.) She was diagnosed with lower back pain with possible right-sided lumbar radiculopathy. (R. at 1035.)

         On March 8, 2011, Plaintiff met with Dr. R. Mills Robert, M.D., of the Southwest Spine Institute for a follow-up and an MRI. (R. at 1129-33.) Dr. Robert reported that the MRI of her hips "appear[ed] fairly normal" with only mild degenerative disc change, and that the MRI of her spine similarly showed only minimal disc protrusion with no obvious nerve root or spinal impingement. (R. at 1129.) Plaintiff had some tenderness but showed a "good range of motion" in both hips with normal ...

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