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Hatton v. Berryhill

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

April 1, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff BONNIE RUTH HATTON (Hatton) brings this cause of action pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of defendant NANCY A. BERRYHILL, Acting Commissioner of Social Security (Commissioner), denying plaintiff's application for disability insurance benefits (DIB). Both parties filed briefs in this matter. For the reasons stated below, the undersigned United States Magistrate Judge recommends the Commissioner's decision finding Hatton not disabled and not entitled to benefits be AFFIRMED.



         On or about October 10, 2013, Hatton, who was a few days shy of 26 years old at the time, filed an application for Title II social security disability benefits alleging she had become unable to work on October 21, 2009, shortly after her 22nd birthday. Hatton, in her application, claimed disability due to the following conditions: an injured spine (back and neck) due to a slip-and-fall accident at work, migraine headaches from a concussion related to the same fall and partly to a past history of corrective surgery for Arnold Chiari malformation, depression and anxiety, possible endometriosis or other female issues, obesity, and allergies. (Tr. 260-64; 273-76). Hatton and her administrative trial counsel submitted medical records starting from the date of the slip-and-fall injury in October of 2009 through 2016. Hatton submitted medical records from 2015 and 2016 after the administrative hearing before the Administrative Law Judge (ALJ) that the ALJ considered[1]; however, the ALJ did not review other records submitted in conjunction with Hatton's administrative appeal, although those are contained in the records sent to this Court.

         In a Disability Report dated November 22, 2013, Hatton claimed she stopped working on October 28, 2009, shortly after her slip-and-fall accident at Walmart. (Tr. 276). Hatton advised she had completed high school and three years of college. (Tr. 277). She worked as a cake decorator at Walmart from May of 2008 until the 2009 injury occurred, and remained employed by Walmart until October 2013. (Tr. 277). Hatton stated this was her sole employment. Id. She described her work duties as a cake decorator to include frequently moving boxes in the freezer up to 30-50 pounds, moving ice buckets between 25-30 pounds, stooping at least 6 hours, standing 8 hours, reaching 8 hours, and occasionally kneeling, crouching, crawling, and climbing. (Tr. 278).

         Hatton also completed a Function Report on October 29, 2013, in which she advised she lives with family, including her young daughter. (Tr. 299). Hatton stated her family and her friends assist in the care of her daughter and her household chores. (Tr. 299). She advised she can only prepare meals that take less than 10 minutes to prepare, can dress and shower as long as no bending is involved, has limited ability to groom herself, does not drive (especially distances over 15 minutes), can do some shopping on her own, and can handle her own finances. (Tr. 299-301). Hatton has given up most of her hobbies and spends her days mostly watching TV in bed or talking and texting on the phone. (Tr. 302). Hatton advised she can only walk 10-15 minutes at one time and then must rest 1 to 4 hours, only sit for 10-15 minutes at one time, and only pay attention for 30 minutes at one time. (Tr. 303). Hatton was prescribed a back brace in 2010, which she uses most of the time. (Tr. 304). Hatton also completed a second Function Report dated December 21, 2013. (Tr. 298-307). This report is substantially the same as her first report.

         On January 14, 2014, the Social Security Administration (SSA) denied Hatton disability benefits, finding her combination of conditions not severe enough to keep her from working. (Tr. 177). Further, they found Hatton could perform work at the light exertional level based on the totality of the claimant's medical records. (Tr. 177). On January 29, 2014, Hatton filed a request for reconsideration of the findings. (Tr. 203). The reconsideration included discussion of new evidence, Dr. Daneshfar's 2014 treatment records that Hatton submitted after the ALJ hearing. (Tr. 207). The SSA denied Hatton DIB upon reconsideration and found that all evidence submitted was “not sufficient to support that your conditions were disabling prior to 06/30/2011 when your period of coverage ended.” (Tr. 207). The conditions included back, neck, nerve damage, bone spurs, migraines, endometriosis, obesity, allergies, depression, and anxiety. (Tr. 207).

         On April 14, 2014, Hatton requested a hearing before the ALJ. (Tr. 208-209). On August 7, 2015, the ALJ held a hearing by videoconference on Hatton's application for DIB. (Tr. 143). Hatton was represented by counsel at the hearing. (Tr. 143). The ALJ obtained numerous medical records prior to the hearing; however, counsel for Hatton informed the court that a few additional medical records were needed to make the record complete and Hatton's counsel stated he could provide the records within one week of the hearing. (Tr. 143-144). As mentioned previously, the ALJ agreed to hold the record open until he received the medical records before making a decision. (Tr. 144). The ALJ admitted all medical records without objection. (Tr. 144). Hatton's attorney stated this was a worker's compensation case from a slip-and-fall accident and he believe Hatton's exertional level would be found to be less than sedentary. (Tr. 144-145). Hatton testified she went back to work for one week after the accident on a light duty basis, but her entire lower body went numb and she had to stop working permanently after that point. (Tr. 147). Hatton further testified she had impairments based on her back pain (Tr. 147-153), female problems (Tr. 148), and headaches (Tr. 150; 152-153).

         At the hearing, Hatton described her functional capacity to the ALJ as follows: can lift 10 pounds for limited amounts of time, sit still for about 20 minutes, stand about 15 minutes without leaning on something, and walk about 10-15 minutes at a time. (Tr. 155). Hatton is not able to care for her dependent child without assistance, primarily from her mother. (Tr. 156). Hatton testified she can perform some light household chores with assistance, she can drive only 10-20 miles at a time, and she can go to the grocery store for limited amounts of time. (Tr. 156-157). Hatton stated she has some days she cannot function at all from the pain, those occurring approximately five days a month. (Tr. 158). Hatton testified that with further treatment and physical therapy she believes she could finish her college degree and be able to work part time, but only if she had better insurance. (Tr. 159).

         A vocational expert (VE) also testified at the hearing. Based on Hatton's job description of her only prior work as a cake decorator for Walmart, the VE testified Hatton would no longer be able to perform that type of work based on her Disability Report. (Tr. 161). Based on the hypothetical presented by the ALJ (which limited claimant to less than sedentary exertional capacity), the VE identified other work in the regional or national level economy in sufficient numbers that such a person could perform. (Tr. 161-162). The ALJ then continued to limit claimant's hypothetical exertional level until the VE testified that no jobs would exist at that decreased exertional level. (Tr. 162). The claimant's attorney also questioned the VE and limited the hypothetical to include all of the limitations described specifically by Hatton, and the VE testified no jobs would exist at that exertional level or at a part-time level. (Tr. 162-164). Specifically, if an individual had to take unscheduled breaks, be absent from work on multiple days per month, or leave her workstation to walk around, no jobs would exist for such an individual. (Tr. 163-164).

         After the hearing, the ALJ held the record open for submission of additional medical records. (Tr. 165). Claimant submitted additional medical records that the ALJ considered before issuing his decision. (Tr. 110-139). A total of 585 pages of medical records were obtained and are part of this administrative record. (Tr. 110-139; 339-895). Additionally, claimant obtained 79 pages of additional medical record evidence after the ALJ's decision and submitted those to the Appeals Council. (Tr. 6-85).

         On November 4, 2015, the ALJ rendered an unfavorable decision, finding Hatton “was not disabled under sections 216(i) and 223(d) of the Social Security Act through June 30, 2011, the last date insured.” (Tr. 104). The ALJ's decision is discussed in further detail below. On December 1, 2015, Hatton requested a review by the Appeals Council of the ALJ's decision. (Tr. 86-87). On October 31, 2016, the Appeals Council denied Hatton's request for review after considering the medical records submitted after the hearing and the ALJ's decision. (Tr. 2). Thus, the ALJ's determination that Hatton was not under a disability during the relevant time period became the final decision of the Commissioner. (Tr. 1-4). Hatton now seeks judicial review of the denial of DIB benefits pursuant to 42 U.S.C. § 405(g).



         A. Treating Sources

         1. Dr. Randall Hendricks, M.D.: Central States Orthopedic Specialist, Inc.; Tulsa, OK

         Hatton began a treating relationship with Dr. Randall Hendricks (Hendricks), an orthopedic specialist, for the treatment of her spine and neck pain on June 28, 2010. (Tr. 525). At that time, Hatton was 22 years old, 230 pounds and had a four-month old baby. (Tr. 524). The initial X-rays showed no fracture of the spine, but Hendricks ordered an MRI to better assess Hatton's ongoing back and leg pain. (Tr. 524). Hatton stated her history of neck pain was mostly resolved at her initial consult with Hendricks. (Tr. 523). Hatton received no specific treatment for her back injury from November 13, 2009 until starting a treating relationship with Hendricks in mid-2010. (Tr. 523).

         Hendricks referred Hatton to Newman Memorial Hospital where she received an MRI of her spine without contrast on October 4, 2010. (Tr. 521). The MRI showed an L5/S1 endplate length discrepancy (disk protrusion), slight grade I retrolisthesis, and small posterocentral extrusion. The radiologist also identified small disc protrusions at ¶ 3/4 and L4/5. (Tr. 520). On October 29, 2010, Hatton followed up with Hendricks, who agreed that the L5/S1 protrusion and the retrolisthesis were significant. (Tr. 519). Hendricks recommended an L5-S1 discectomy and fusion with instrumentation. (Tr. 519). At that time, Hendricks found the patient temporarily and totally disabled. (Tr. 519).

         On December 3, 2010, Hatton underwent her discectomy and fusion with instrumentation. (Tr. 517). On December 17, 2010, Hatton followed up with Hendricks, and the fusion was healing nicely according to X-rays of the spine. (Tr. 515). Hendricks ordered Hatton to increase her activities gradually and to get out and walk. (Tr. 515). On January 28, 2011, Hatton followed up with Hendricks again, this time complaining of site pain and tenderness. (Tr. 513). X-rays were taken and the lumbar fusion was healing; Hendricks recommended trying to increase activities. (Tr. 513).

         On February 25, 2011, Hatton again followed up with Hendricks and complained of aggravated back pain from another fall. (Tr. 511). Hendricks found Hatton neurologically intact after X-rays were reviewed. (Tr. 511). Hendricks recommended Hatton wean herself out of the brace and start physical therapy. (Tr. 511). Hendricks decided to order an EMG and nerve conduction study to address Hatton's leg pain. (Tr. 511). Hendricks referred Hatton to Dr. Charles R. Shields, M.D., for the nerve conduction study and EMG, which he performed on March 18, 2011. (Tr. 507). The results of these studies appeared to show no significant peripheral neuropathy. (Tr. 507).

         On April 8, 2011, Hatton followed up with Hendricks who reviewed the studies performed by Dr. Shields. (Tr. 505). X-rays were performed, and Hendricks found Hatton to have no substantial deficit, releasing her to work on a light duty basis. (Tr. 505). On June 3, 2011, Hatton appeared with her father at Hendricks' office. (Tr. 503). Radiographs, AP and lateral of the spine showed a solid arthrodesis, and Hendricks believed the hardware used in the fusion could be the cause of Hatton's pain; thus, Hendricks recommended removal of the hardware. (Tr. 503).

         On July 5, 2011, Hatton had her hardware removed at the Oklahoma Surgical Hospital. (Tr. 501). Hendricks identified a solid arthrodesis and noted there was no motion upon manipulation of the fusion mass. (Tr. 501). October 10, 2011 was the first time Hatton returned to see Hendricks after her second spine surgery. (Tr. 498). She required two other surgeries in September of 2011 to address feminine problems relating to an ovarian cyst. (Tr. 498). Hendricks found these two surgeries limited her ability to be in aggressive physical therapy following her second back surgery. (Tr. 498).

         On February 15, 2012, Hatton followed up with Hendricks, again accompanied by her father, who now stated he was acting as her attorney. (Tr. 495). Hendricks noted Hatton was supposed to follow up at monthly intervals since her visit in October four months prior. (Tr. 495). Hatton failed to show for appointments or reschedule at appropriate times; it was only upon Hendricks sending Hatton a letter informing her she was facing termination as a patient that she showed for her February appointment, which she tried to reschedule for late March. (Tr. 495).[2] Hendricks released Hatton to return to work with a permanent 30-35 pound weight restriction. (Tr. 495, 497). Hendricks also released Hatton from his care on that date, finding she had achieved maximum medical benefit. (Tr. 495).

         2. Dr. Bejan Daneshfar: Texas Pain & Spine Institute; Amarillo, TX

         Hatton began a treating relationship with Dr. Bejan Daneshfar (Daneshfar) of the Texas Pain & Spine Institute on April 16, 2013. (Tr. 581). Daneshfar noted Hatton had not had a treating physician under worker's compensation since her release from Hendricks's care in February 2012; however, she had seen several other doctors in the interim. (Tr. 581-582). On April 30, 2013, Daneshfar performed an evaluation of Hatton, which included review of X-rays provided by her referring family physician, Dr. Rick Seiwart, taken on September 27, 2012. (Tr. 742). Hatton followed up with Daneshfar on July 23, 2013, and he performed another evaluation of her functioning capacity. (Tr. 743). Hatton was scheduled for a “block” injection to deal with pain. (Tr. 745). Review of the MRI without contrast performed on April 30, 2012, showed a “modest 3 mm posterior disc protrusion at ¶ 4/S without significant sac effacement and the central canal is patent. However, there is hypertrophy of the facets, and there is mild narrowing of the foramina at this level.” (Tr. 745).

         On September 23, 2013, Hatton followed up with Daneshfar. (Tr. 750). Daneshfar performed an examination of the spine and found Hatton did not have “good solid fusion” and had “pars fracture of L4, and fracture at lamina of L3” and she was an appropriate candidate for blocking/injection. (Tr. 752). On October 29, 2013, Daneshfar again examined Hatton and found the injections helped with her pain level. (Tr. 755). On this date, Daneshfar completed a “Physician's Statement/Medical Release” form indicating a permanent disability with the following limitations: 1/3 hour of sitting, 1/4 hour of sitting, 1/3 hour of walking, no climbing, no kneeling, no ladders, no squatting, no bending, no stooping, no pushing, no pulling, and no lifting over 10 pounds. (Tr. 736). Daneshfar indicated that Hatton needed to change positions frequently. (Tr. 736). Daneshfar's handwritten notes indicated Hatton suffered from chronic pain syndrome and “post laminectomy syndrome.” (Tr. 737). He noted “at this time” patient is disabled. (Tr. 737). Daneshfar's notes did not indicate the onset of her disability. On January 27, 2014, Hatton followed up with Daneshfar and was in severe pain. (Tr. 758).

         B. Exam ...

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