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Tatum v. Berryhill

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

February 26, 2018

BELINDA TATUM, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order No. 3-251, this social security appeal was automatically referred for full case management. Before the Court are Plaintiff's Appeal from the Decision of the Commissioner of Social Security, filed April 6, 2017 (doc. 13), Defendant's Response Brief, filed May 1, 2017 (doc. 14), and Plaintiff's Reply to Brief of Defendant, filed May 19, 2017 (doc. 15). Based on the relevant filings, evidence, and applicable law, the Commissioner's decision should be AFFIRMED.

         I. BACKGROUND[1]

         Belinda Tatum (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner)[2] denying her claim for disability insurance benefits (DIB) under Title II of the Social Security Act (Act). (doc. 13.)

         A. Procedural History

         On September 9, 2011, Plaintiff filed an application for DIB, alleging disability beginning on April 6, 2011. (R. at 280-81.) Her claim was denied initially and upon reconsideration. (R. at 138-40.) Plaintiff requested a hearing before an Administrative Law Judge (ALJ), and personally appeared and testified at a hearing on February 21, 2013. (R. at 67-101.) On June 19, 2013, the ALJ issued a decision finding Plaintiff not disabled and denying her claim for benefits. (R. at 141-66.) Plaintiff timely appealed the ALJ's decision to the Appeals Council. (R. at 167.) The Appeals Council granted her request for review on August 7, 2014, vacated the ALJ's decision, and remanded the case for further consideration. (R. at 167-70.)

         On remand, the ALJ conducted another hearing on April 27, 2015, and Plaintiff personally appeared and testified. (R. at 102-37.) On June 11, 2015, the ALJ issued a decision again finding Plaintiff not disabled and denying her claim for benefits. (R. at 8-37.) Plaintiff timely appealed the ALJ's decision to the Appeals Council. (R. at 7.) The Appeals Council denied her request for review on November 2, 2016, making the ALJ's decision the final decision of the Commissioner. (R. at 1-6.) 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 May 30, 1974, and was 38 years old at the time of the first hearing before the ALJ. (R. at 30, 72.) She graduated from high school and communicated in English fluently. (R. at 30-31, 72.) She had past relevant work as a nurse and an office manager. (R. at 30.)

         2. Medical Evidence

         On February 14, 2011, Plaintiff met with her primary care physician, Dr. Yvonne Reed, M.D., with complaints of “anxiety attacks” and pain in her back and hands. (R. at 382.) Dr. Reed noted that she had an unspecified decrease in the range of motion in her back and that she was “unable to cope at work.” (R. at 382.) She prescribed Lexapro for anxiety and ordered an MRI of Plaintiff's cervical spine. (R. at 382-84.) The MRI results showed evidence of central spinal stenosis, but no disc herniation or bulge at any level. (R. at 383-84.)

         On March 24, 2011, Plaintiff presented to the Emergency Room of the Harris Methodist Southwest Hospital for headaches and numbness in her face and left arm. (R. at 386-95.) Her physical examination showed no abnormal findings, and she was “oriented to person, place, and time” with a normal mood and affect. (R. at 390-91.) She received a CT scan of her head, which showed nothing unusual and a “normal noncontrast head CT scan.” (R. at 393-94.) The medical record noted that Plaintiff stated after the scan that “her headache [had] resolved, but she still [felt] some numbness in her face.” (R. at 392.) She was discharged without any medication and was referred to a neurologist. (R. at 391-92.)

         On April 22, 2011, Plaintiff met with Dr. Roger S. Blair, M.D., of the Neurology Associates of Fort Worth, for a neurological assessment of her bilateral upper extremity pain. (R. at 404-09.) Plaintiff complained of headaches, fatigue, eye pain, dizziness, stiffness, and pain in her back and neck. (R. at 405.) Dr. Blair noted that she was “alert, well oriented to time, place, and person” with an intact intellect and memory. (R. at 406.) There was no “drift, atrophy, fasciculations, or weakness in any of the muscles of the upper or lower extremities, ” but Plaintiff showed a decreased range of motion in her shoulders and reported “pinprick” pain in her hands and fingers. (R. at 407.) Dr. Blair's diagnostic impressions were “neck pain and headaches secondary to tight neck and upper shoulder muscles, ” a “mild right frozen shoulder, ” and “intermittent low back pain secondary to tight lumbar muscles.” (R. at 408.) He also ordered a diagnostic test to determine if Plaintiff had carpal tunnel syndrome. (R. at 408.) He opined that the cause of her pain was “myofascial” and due to “shortened muscles that produce[d] intermittent or constant pain, ” and he recommended that she regularly perform a series of four different stretching exercises to relieve the pain. (R. at 408-09.) Dr. Blair noted that Plaintiff “performed a full set of these exercises [during the assessment] with a significant reduction in pain and significant improvement in [range of motion].” (R. at 409.) He also ordered epidural steroid injections that Plaintiff received on April 27, 2011, and May 11, 2011. (R. at 396-97, 409.)

         On May 26, 2011, Plaintiff returned to Dr. Blair for a follow-up examination and a carpal tunnel diagnostic evaluation. (R. at 398-403.) Her arm/hand pain had “improved since she had the [steroid] injections, ” and the “pain and numbness in the hand [had] decreased” after performing the stretching exercises. (R. at 398.) She still complained of fatigue, stiff joints, headaches, numbness, dizziness, muscle weakness, and pain in her bilateral upper extremities, however. (R. at 399.) During her physical examination, Plaintiff showed an increased range of motion in her shoulders, a regular gait while walking, and no weakness in “any of the muscles of the upper or lower extremities.” (R. at 400.) Her diagnostic showed “no electrophysiological evidence of carpal tunnel syndrome, ” and Dr. Blair instructed her to continue the neck and shoulder exercises. (R. at 403.)

         From July 5, 2011, to February 27, 2015, Plaintiff had regular appointments and continual treatment with Dr. Sonia Bajaj, M.D., of the Huguley Medical Associates-Rheumatology Clinic upon referral from her primary care physician. (R. at 469-83, 512-13, 515-33, 551-92, 602-07.) During the initial evaluation, Dr. Bajaj noted Plaintiff's complaints of fatigue and “generalized joint and muscle pain” in her hip, neck, back, knees, ankles, and feet. (R. at 475.) Dr. Bajaj found during the physical examination that she had a “few Heberden's nodes” but otherwise a “normal range of motion with no pain or swelling over shoulders, elbows, wrists, hips, knees, [and] ankles” and “normal muscle strength and tone.” (R. at 475.) She diagnosed Plaintiff with systematic lupus erythematosus, inflammatory arthritis, depression, polyarthralgias, and myalgias. (R. at 475, 525-26.) She prescribed Neurontin for pain and also recommended taking over-the-counter Ibuprofen as needed. (R. at 476.) During her subsequent appointments, Dr. Bajaj regularly noted that Plaintiff was “in no distress, sitting, ” with a “normal muscle strength and tone in all four extremities, ” a “normal gait, ” and a “normal range of motion and curvature to cervical, thoracic, and lumbar spine.” (R. at 519, 521, 525, 527, 555, 562, 574-75, 581, 588, 602, 604.) She also noted during each psychological assessment that Plaintiff was “alert, awake, and oriented” and had “no gross motor or sensory deficits” with normal coordination and reflexes. (R. at 519, 521, 525, 527, 556, 563, 582, 588, 604.)

         On October 2, 2011, Loretta Pryor Bruce, M.S., L.P.C., submitted a letter detailing her professional counseling relationship with Plaintiff. (R. at 444.) She had been counseling Plaintiff “intermittently since February 23, 2011, ” but she had to discontinue therapy “because of financial reasons” at the end of July 2011. (R. at 444.) Ms. Bruce had “used cognitive behavioral therapy to help [Plaintiff]” with her depression and anxiety. (R. at 444.) She opined that Plaintiff had “experience[d] continuous pain which increase[d] [her] depression and inability to concentrate, ” which was “the reason psychologically and physically she [could not] work.” (R. at 444.)

         On November 11, 2011, Plaintiff met with Dr. Betty Eitel, Ph.D., for a consultative psychological examination and evaluation. (R. at 445-50.) She described “feeling blah” with daily pain and a lack of motivation. (R. at 446.) She also reported memory problems, symptoms of a panic attack, being “highly distractible, ” and a constant feeling of anxiety. (R. at 447.) She could drive “when she [had] to, ” could manage money, used a phone calendar to keep track of appointments, and could cook on the stove and in a microwave. (R. at 447.) Dr. Eitel noted that Plaintiff had a depressed mood, displayed appropriate and logical thoughts, had no delusions or unusual thoughts; had a “slightly impaired” concentration and ability to retain information; and had abstract reasoning levels “below the normal range.” (R. at 449.) Her diagnostic impressions were that Plaintiff had major depressive disorder, dementia NOS, panic disorder, and generalized anxiety disorder, and she assigned a Global Assessment of Functioning (GAF) score of 49. (R. at 450.) Dr. Eitel offered a guarded prognosis and found her capable of managing her benefits without assistance. (R. at 450.)

         On November 23, 2011, Dr. James B. Murphy, Ph.D., a state agency medical consultant (SAMC), completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity (RFC) Assessment form based upon Plaintiff's medical evidence in the record. (R. at 451-68.) He first noted that Plaintiff had been diagnosed with the following psychological disorders: dementia, NOS; major depressive disorder, recurrent; a panic disorder without agoraphobia; and a generalized anxiety disorder. (R. at 452-60.) He opined that these disorders caused moderate difficulties in maintaining concentration, persistence, or pace, as well as mild restrictions for activities of daily living and maintaining social functioning. (R. at 461.) He further opined that Plaintiff's alleged limitations were “not wholly credible;” even though she had “some residual [symptoms] of depression and anxiety, these [were] not sufficiently severe to wholly compromise her ability to work, ” and her assigned GAF score of 49 was an “overestimation of [symptom] severity.” (R. at 463.) In Plaintiff's RFC assessment, Dr. Murphy opined that she could “understand, remember, and carry out only simple instructions, make simple decisions, attend and concentrate for extended periods, interact adequately with co-workers and supervisors, and respond appropriately to changes in routine work settings.” (R. at 467.)

         On December 13, 2011, Dr. Laurence Lignon, M.D., a SAMC, reviewed Plaintiff's medical evidence on record and submitted a Physical RFC Assessment form. (R. at 484-91.) He determined that her primary diagnoses were inflammatory arthritis and myalgias. (R. at 484.) He opined that Plaintiff had the following exertional limitations: could occasionally lift/carry 20 pounds; could frequently lift/carry 10 pounds; could stand/walk with normal breaks for about 6 hours in an 8-hour workday; could sit for about 6 hours in an 8-hour workday; and had an unlimited ability to push/pull. (R. at 485.) He further opined that she had no postural, manipulative, visual, communicative, or environmental limitations. (R. at 486-88.) He concluded that Plaintiff's alleged limitation due to pain were “not wholly credible” when compared to the medical evidence in the record. (R. at 489.)

         On February 21, 2012, Plaintiff met with Dr. Brad Harman, M.D., of Cleburne Orthopedics and Sports Medicine (Cleburne Orthopedics) for pain in her left hip. (R. at 539-41.) She described the pain as “stiffness” and complained about how her left hip had been “popping” and “snapping.” (R. at 540.) Dr. Harman found upon examination that Plaintiff had “good active forward flexion and abduction, ” could “tolerate internal and external rotation without any reproduction of groin pain, ” and denied any radicular symptoms in her lower leg. (R. at 540.) His diagnostic impression was “left snapping hip, ” and he referred Plaintiff to “outpatient physical therapy to retrain her gait pattern” and scheduled her for a follow-up evaluation.[3] (R. at 540.)

         On March 15, 2012, Dr. Randal Reid, M.D., a SAMC, completed a Case Assessment Form for Plaintiff's physical impairments upon reconsideration, based upon Plaintiff's updated medical records from Dr. Bajaj being added to her file. (R. at 504.) Dr. Reid affirmed Dr. Lignon's Physical RFC assessment from December 13, 2011, and noted that the updated medical records did “not detail a significant deterioration.” (R. at 504.)

         On March 22, 2012, Dr. Cate Miller, M.D., a SAMC, completed a Case Assessment Form for Plaintiff's mental impairments upon reconsideration, based upon the medical records. (R. at 506-09.) She affirmed Dr. Murphy's assessment from November 23, 2011, and noted that the limitations were “primarily physical.” (R. at 506.) Dr. Miller, however, did point out that Plaintiff's diagnosis of dementia did not appear in any of the medical records other than the report from the consultative examiner, Dr. Eitel. (R. at 506.)

         On November 29, 2012, Dr. Bajaj submitted a Medical Opinion Re: Ability to Do Work-Related Activities (Physical) Form on behalf of Plaintiff. (R. at 512-13.) She opined that Plaintiff had the following exertional limitations: could occasionally lift/carry less than 10 pounds; could frequently lift/carry less than 10 pounds; could stand/walk with normal breaks for less than 2 hours during an 8-hour workday; could sit with normal breaks for about 2 hours during an 8-hour workday; and needed to lie down and elevate her legs at unpredictable intervals during a normal work day. (R. at 512.) She further opined that Plaintiff could never twist, stoop, bend, crouch, climb, kneel, crawl, or balance because of her “swollen and tender joints.” (R. at 513.)

         On February 5, 2013, Dr. Bajaj submitted a second Medical Opinion of Plaintiff's physical limitations. (R. at 515-18.) She opined that Plaintiff had the following limitations: could sit/stand between 1-2 hours with a frequent need to change positions in an 8-hour workday; could occasionally lift/carry up to 10 pounds; limited ability in pushing/pulling/grasping/manipulating in both hands; could occasionally bend, squat, reach, and stoop; and could never crawl, climb, kneel. (R. at 515-17.) She further opined that Plaintiff would be an unreliable worker and suffered from chronic pain that was “moderate.” (R. at 517.) She explained that these limitations were due to pain and arthritis. (R. at 515-18.)

         From August 26, 2013, to February 4, 2015, Plaintiff met with psychiatrist Dr. Hanane Chichane, M.D., approximately every two months for treatment of her depressive disorder and refills of her medications. (R. at 542-50, 593-98.) During her initial diagnostic interview, Plaintiff reported a history of depression and “feeling miserable.” (R. at 547.) Dr. Chichane noted that she showed a healthy but anxious appearance, “tense” behavior, an anxious and depressed mood, an appropriate affect, no abnormal thought content or process, and good cognitive abilities with average intelligence. (R. at 549.) Dr. Chichane diagnosed her with major depressive disorder, depression, panic disorder, and assigned a GAF score of 60. (R. at 550.) Plaintiff reported minor improvements in her mood during the treatment, and Dr. Chichane regularly noted how she had “fair” insight/judgment. (R. at 543, 544, 546, 593-98.)

         On February 8, 2013, April 14, 2014, June 10, 2014, September 11, 2014, December 22, 2014, and March 11, 2015, Plaintiff presented to the Hoffman Family Practice Associates for a variety of general ailments, including earaches, sinusitis, fatigue, influenza, shoulder pain, joint pain, and allergic rhinitis. (R. at 608-37.) Her physical exams regularly showed no cardiovascular or musculoskeletal abnormalities, and her neurological exams noted that she had a “normal” mental status with “no neuro deficit.” (R. at 611, 615, 616-17, 619-20, 622, 625.) During her appointment on December 22, 2014, she reported a “dull aching” pain in her left shoulder, and an X-ray showed a “decreased joint space in upper glenohumeral joint” but “5/5” muscle strength was noted in both of her upper extremities. (R. at 615.)

         3. February 21, 2013 Hearing

         Plaintiff, her husband (Husband), and a vocational expert (VE) testified at a hearing before the ALJ on February 21, 2013. (R. at 67-101.) Plaintiff was represented by an attorney. (R. at 69.)

         a. Plaintiff's Testimony

         Plaintiff testified that she had graduated from high school and had also completed a one-year nursing program and received a licensed vocational nurse (LVN) degree in 2002. (R. at 72.) Her most recent job had been as a full-time school nurse for the Joshua Independent School District, but she resigned after four years in April 2011, because she “got really sick” with severe anxiety and depression. (R. at 73, 75.) Before that, she had worked as a nurse for a home health care agency beginning in 2003. (R. at 75.) She had also worked for a year in a construction office where she “took care of all their bookkeeping, cleaning the office, taking care of everything there.” (R. at 76.) She had been applying for part-time receptionist jobs, but she had been unable to secure a position. (R. at 74.)

         Plaintiff explained that she had headaches “about twice a month” that lasted “at least five to six hours” and were “so bad” that she could only “just lie there.” (R. at 78.) She also had pain in her ankles, knees, hips, hands, wrists, shoulders, and neck, but the worst pain was in her hips and ankles. (R. at 79.) Her knuckles would frequently swell after continued use, such as writing or typing continuously for “15, 20 minutes, ” and she had problems lifting items when her hands were swollen. (R. at 80-81.) She testified that she could lift “probably about 10 pounds, ” could walk for “about 10, 15 minutes” without pain, could sit for “probably 15, 20 minutes” before having pain, and could stand for “20, 30 minutes” if she “kept [her] weight off [her] left leg.” (R. at 81-82.) She had to lie down every day “at least probably a couple hours” throughout the day due to fatigue and pain. (R. at 82-83.) Two to three times a month she “just [could not] do anything” except to “lie in bed.” (R. at 83.) She also had episodes of depression “once or twice a month, ” and she experienced “flares, ” which she described as feelings where “your body hurt from head to toe . . . [with] muscle pain and stuff like that.” (R. at 85.) These “flares” lasted “anywhere from two days to a week, ” but the effects were lessened after she was prescribed pain medication and anti-depressants by her primary care physician and her rheumatologist, but she had never been referred to a psychiatrist. (R. at ¶ 85-86, 88-90.) In 2006, she had surgery on her neck to help with her headaches, but she still experienced “numbness in [her] fingers and stuff, which the doctor said that was just permanent damage.”[4] (R. at 90-91.) Other than one trip to the emergency room in March 2011, she had not received any additional surgeries or hospitalizations since 2006. (R. at 91-92.)

         b. Husband's Testimony

         Husband testified that he had been married to Plaintiff for “almost 10 years” and had resided with her since then. (R. at 93.) He and their two teenage daughters took care of Plaintiff when she had a “flare-up, ” and they completed the primary household activities, including cooking, cleaning, and shopping. (R. at 84.) Since 2011, Plaintiff was now “totally 180, ” and he had to help her with household chores that she had never needed help with before. (R. at 93-94.) He further testified that Plaintiff did not “want to do anything because . . . she's hurting all the time.” (R. at 94.)

         c. VE's Testimony

         The VE testified that she had reviewed Plaintiff's vocational records and determined that she had the past relevant work of ...


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