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Ortiz v. Berryhill

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

March 28, 2018

LAURA ORTIZ, 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 Opening Brief, filed September 22, 2017 (doc. 16), Defendant's Response Brief, filed October 20, 2017 (doc. 17), and Plaintiff's Reply Brief, filed November 9, 2017 (doc. 18). Based on the relevant filings, evidence, and applicable law, the Commissioner's decision should be REVERSED, and the case should be REMANDED for further administrative proceedings.

         I. BACKGROUND[1]

         Laura Ortiz (Plaintiff) seeks judicial review of a final decision by the Acting Commissioner of Social Security (Commissioner) denying her claims for disability insurance benefits (DIB) and widow's insurance benefits (WIB) under Title II of the Social Security Act (Act). (docs. 1, 16.)

         A. Procedural History

         On June 7, 2013, Plaintiff filed her applications for DIB and WIB, alleging disability beginning April 11, 2013. (R. at 252-59.) Her claims were denied initially and upon reconsideration. (R. at 131-83.) Plaintiff requested a hearing before an administrative law judge (ALJ), and she personally appeared and testified at a hearing on March 16, 2016. (R. at 103-30.) On May 18, 2016, the ALJ issued a decision finding her not disabled and denying her claim for benefits. (R. at 41-60.)

         Plaintiff timely appealed the ALJ's decision to the Appeals Council and included new medical evidence. (R. at 29-40.) The Appeals Council determined that the new evidence did not provide a basis for changing the decision and denied her request for review on July 27, 2016, making the ALJ's decision the final decision of the Commissioner. (R. at 19-28.) 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 August 1, 1960, and was 55 years old at the time of the hearing before the ALJ. (R. at 40, 109.) She had a 7th grade education and was fluent in Spanish. (R. at 111.) She had past relevant work as a laundry supervisor. (R. at 125.)

         2. Medical Evidence

         On December 7, 2011, Plaintiff was referred by Dr. Guadalupe Bustamante, M.D., of the Cavero Medical Group, to complete a physical therapy program for bilateral wrist and forearm pain. (R. at 407-13.) At her initial evaluation, she showed strength at “5/5” in her elbows and “4/4” in her forearms. (R. at 412.) The record noted a “mild strength difference between grip strength and supinators/pronators with pain during testing.” (R. at 412-13.) Two months later, the physical therapy records noted that Plaintiff had been “considered self-discharged at this time due to not returning to therapy” since her initial evaluation. (R. at 408.)

         On February 22, 2013, Plaintiff met with rheumatologist Dr. Syed Rizvi, M.D., with complaints of pain “all over [her] body.” (R. at 447-50.) She identified “constant, aching, burning” pain at an “8-9/10” level, but she denied any swelling in her joints or morning stiffness. (R. at 447.) During the physical exam, Dr. Rizvi noted that she “ambulat[ed] normal[ly]” with a full range of motion in her spine and hip, but she had pain and tenderness in the “extreme flexion” of her wrists. (R. at 449.) Dr. Rizvi diagnosed her with “myalgia and myositis, ” prescribed her pain medication, and referred her to physical therapy.[2] (R. at 450.)

         From March 8, 2013, to June 7, 2013, Plaintiff had monthly appointments with Dr. Rizvi for treatment of her myalgia. (R. at 435-47.) She continued to complain of “constant, aching” pain all over her body, especially in her hands and wrists, but she always denied joint swelling or morning stiffness. (R. at 435, 438, 441, 444.) The physical exams consistently showed “normal” ambulation, a “complete handgrip, ” pain and tenderness in the “extreme flexion” of her wrists, and a full range of motion in her cervical spine, hips, and knees. (R. at 435, 440, 443, 446.) Dr. Rizvi also noted that Plaintiff was positive for “18/18” tender points consistent with fibromyalgia. (R. at 437, 440.) He diagnosed her with fibromyalgia and refilled her pain medication at each appointment. (R. at 437-38, 440, 443-44, 446-47.)

         On April 16, 2013, Dr. Rizvi provided a medical opinion as to Plaintiff's physical limitations due to fibromyalgia. (R. at 602.) He opined that Plaintiff was unable to push or pull and could not lift anything “greater than 5 pounds.” (R. at 602.)

         On July 30, 2013, Dr. Vidya Madala, M.D., a state agency medical consultant (SAMC), completed a Physical Residual Functional Capacity (RFC) Assessment form based upon Plaintiff's medical evidence in the record. (R. at 136-38.) She opined that Plaintiff had the following exertional limitations: occasionally lift/carry 50 pounds; frequently lift/carry 25 pounds; stand/walk with normal breaks for about 6 hours in an 8-hour workday; and sit for about 6 hours in an 8-hour workday, with an unlimited ability to push/pull. (R. at 136-37.) She further opined that Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. (R. at 137.) She concluded that Plaintiff had some limitations in the performance of certain work activities, but those limitations would not prevent her from performing her past relevant work. (R. at 138.)

         On September 13, 2013, Plaintiff returned to Dr. Rizvi with complaints of pain in her hands, shoulders, and back. (R. at 568-70.) She reported a “constant, aching, burning” pain all-over that was rated at a “10/10” level. (R. at 568.) She continued to deny joint swelling and morning stiffness, and she had “normal” ambulation, “bilateral complete handgrip, ” and a full range of motion in her cervical spine, elbows, shoulders, and knees. (R. at 569-70.) Dr. Rizvi again noted “18/18” positive tender points and pain/tenderness in her “extreme flexion” in both wrists, and he refilled her prescription for pain medication. (R. at 570.)

         On February 25, 2014, Plaintiff presented to Los Barrios Unidos Community Clinic (Los Barrios) with complaints of body aches. (R. at 465-70.) All of the findings on her physical exam were “normal, ” including no edema in her extremities. (R. at 467.) The medical record noted that Plaintiff had been previously diagnosed at Los Barrios with diabetes mellitus and high blood pressure, but both were under control with medication. (R. at 465.) She was diagnosed with fibromyalgia and referred to a rheumatology specialist. (R. at 467-69.)

         On March 18, 2014, Plaintiff returned to Los Barrios and met with rheumatologist Dr. Margarita Fallena, M.D., for her fibromyalgia. (R. at 473-76.) Plaintiff identified “severe pain” throughout her body, particularly in her back and lower extremities. (R. at 473.) Dr. Fallena found “[m]ultiple fibromyalgia tender points, ” but the exam was “difficult” due to Plaintiff's “body habitus.” (R. at 474.) She prescribed Lyrica for the pain and instructed Plaintiff to return in four weeks. (R. at 475-76.)

         On April 16, 2014, Plaintiff returned to Dr. Fallena at Los Barrios. (R. at 489-92.) She reported “severe pain” that had been centralized in her right upper extremity for the past 3 days, but she also stated that the Lyrica had “help[ed] with the pain” and she could “walk more and get up easier from bed.” (R. at 489.) Her Lyrica dosage was increased because it “helped with symptoms.” (R. at 491.)

         On August 28, 2014, Plaintiff returned to Los Barrios for medication refills. (R. at 536-40.) Her “review of systems” and physical exam showed no change from her previous examinations. (R. at 537-38.) She continued to be prescribed the increased dosage of Lyrica for her pain. (R. at 538.)

         On December 1, 2014, Dr. Kavitha Reddy, M.D., an SAMC, reviewed the medical evidence on record and completed a Physical RFC assessment upon reconsideration. (R. at 169-71.) Dr. Reddy agreed with Dr. Madala's Physical RFC assessment from July 30, 2013, and he opined that Plaintiff could occasionally lift/carry 50 pounds; frequently lift/carry 25 pounds; stand/walk with normal breaks for about 6 hours in an 8-hour workday; and sit for about 6 hours in an 8-hour workday, with an unlimited ability to push/pull. (R. at 169-70.) She had no postural, manipulative, visual, communicative, or environmental limitations. (R. at 170.)

         On January 6 and 20, 2016, Plaintiff returned to Dr. Fallena for treatment of her fibromyalgia and joint pain. (R. at 597-601.) Plaintiff noted generalized pain in all joints from “head to toe.” (R. at 594, 597.) Dr. Fallena found a full range of motion in her shoulders, elbows, wrists, hands, hips, knees, ankles, and feet. (R. at 595, 598.) She further found that Plaintiff had “18 out of 18 tender points positive, ” and the joints in her bilateral shoulders, elbows, wrists, ankles, and knees were also tender. (R. at 595, 598.) After reviewing blood work labs, it was determined that Plaintiff was “negative for rheumatoid arthritis serologies” with “normal” inflammatory markers. (R. at 594.) She was diagnosed with fibromyalgia and polyarthralgia, and was instructed to take Lyrica twice a day for pain. (R. at 595-96, 598-99.)

         3. ...


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