United States District Court, N.D. Texas, Amarillo Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO AFFIRM
THE DECISION OF THE COMMISSIONER
ANN RENO UNITED STATES MAGISTRATE JUDGE.
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
AND PROCEDURAL RECORD
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; 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.
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).
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.
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.
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).
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.
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).
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).
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. §
Dr. Randall Hendricks, M.D.: Central States Orthopedic
Specialist, Inc.; Tulsa, OK
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).
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).
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).
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.
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).
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).
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). 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.
Dr. Bejan Daneshfar: Texas Pain & Spine Institute;
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).
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).