Brown v. Astrue
Filing
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ORDER and OPINION affirming Commissioner's final decision denying benefits. Signed on 10/23/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
ANGELA BROWN,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 11-1185-CV-W-ODS
ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff's appeal of the Commissioner of Social Security=s final
decision denying her application for disability and supplemental security income
benefits. The Commissioner's decision is affirmed.
I. BACKGROUND
Plaintiff was born in March 1982, has earned her GED, and has no prior work
experience. She filed a previous application for benefits, which was denied on
November 19, 2009. She filed the instant application for Supplemental Security Income
benefits on January 13, 2010, alleging an onset date of November 20, 2009.
Plaintiff's primary allegations relate to her back problems and fibromyalgia. Her
medical history reveals treatment for back pain as far back as May 2000 arising from a
fall from a merry-go-round when Plaintiff was twelve years old. As noted this history did
not support a finding of disability through November 19, 2009. The Court will begin
summarizing the medical evidence starting at a point closer to the alleged onset date.
In January 2009, Plaintiff began receiving treatment at the Center for Advanced Pain
Management (“APM”) from Dr. Sadie Holland and Dr. Jessica Vanbibber, and during
that first appointment she received an epidural injection. R. at 451-54. In February
2009, a review of prior MRI results revealed a "wedge compression fracture deformity of
the L3 vertebral body superior endplate" and "mild bulging of the disk at L2-3 resulting
in slight fattening of the thecal sac" but without disk extrusion, stenosis, or nerve
impingement. Previous complaints of leg pain had resolved and her chief complaint
was muscle cramps, so she was prescribed a muscle relaxer. R. at 448-49.
On July 1, 2009, Plaintiff saw Dr. Holland at Cox Medical Center, reporting that
the pain injection (which provided 50% relief) had worn off in the past few weeks. Her
condition was described as having deteriorated and another epidural injection was
scheduled. R. at 258-59. This was performed on July 7, and another injection was
administered on July 29. R. at 254-57. On September 1, Plaintiff reported that the
injections did not help, and a surgical consultation was recommended and she was
referred to Springfield Neurological and Spine Institute (“Springfield Neurological”). R.
at 251-52. On November 11, Plaintiff saw Dr. Chad Morgan at Springfield Neurological
and told him she was experiencing pain in the back “with intermittent radiation” to her
legs. She described the pain “as a constant stiffness with intermittent aching [and]
throbbing pains” that were worse with walking or standing but that improved when she
laid flat or changed positions. She rated the pain at an 8 on a scale of one to ten. R. at
311. Plaintiff told Dr. Morgan the pain affected her sleep, prevented her from walking
more than a quarter of a mile, sitting for more than an hour, standing for more than an
hour, and to traveling for more than two hours. However, she could “manage [to lift]
light to medium weights if they are conveniently postioned” and pain medication
provided “complete relief from pain.” R. at 312-13. Upon examination, Plaintiff
demonstrated a normal range of motion in the cervical and lumbar spine and
extremities, normal gait, an absence of tenderness in the extremities, normal strength in
the extremities, and no deficiencies in motor abilities. In fact, no limitations or
abnormalities were revealed during the exam, which Dr. Morgan characterized as
“normal.” Dr. Morgan found “[e]vidence of multilevel degenerative disc disease and
spondylosis . . . without high-grade neural compression and no evidence of gross spinal
deformity” based on an MRI from 2007. Surgical options were discussed, as well as
non-surgical options including weight management (Plaintiff was 5’7” and weighed 257
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pounds), exercise, medication, injections, and physical therapy. R. at 313-14. On
November 16, Plaintiff returned to Springfield Neurological and saw Dr. Jeff Woodward.
Upon examination, Dr. Woodward noted “[n]o objective neurologic deficits noted on
physical examination today,” prescribed neurontin, and scheduled an appointment for
an EMG for her legs. R. at 309.
As stated earlier, Plaintiff’s alleged onset date is November 20, 2009, or nine
days after her appointment with Dr. Morgan and four days after her appointment with
Dr. Woodward. In December, Plaintiff underwent the EMG arranged by Dr. Woodward;
the results were normal. R. at 305. She returned to Springfield Neurological on
February 16, 2010, reporting that the neurontin was “helping with the pain” but it wore
off near the end of the day. The dosage was increased. R. at 338-39. Four weeks
later Plaintiff reported that the increased dosage had not helped much and she rated the
pain at a 7 on a one to ten scale. An MRI was arranged and Plaintiff was told to
continue doing home exercises and taking neurontin. R. at 335-36. Plaintiff was to
return in one week (presumably for reasons related to the anticipated MRI), but there
are no more records from Springfield Neurological.
On April 27, 2010, Plaintiff was sent (by whom is not clear; apparently, by Dr.
Vanbibber) for a rheumatology evaluation at the Ferrell-Duncan Clinic, which was
conducted by Dr. Joseph Mayus. The impetus for this visit was increased pain in her
hands. Dr. Mayus planned to arrange for a complete blood count, metabolic profile, and
other tests, but the Record does not indicate the results of these endeavors. R. at 35760. Plaintiff returned in July, at which time Dr. Mayus diagnosed her as suffering from
fibromyalgia and elbow tendinitis; he prescribed carisoprodol (a muscle relaxer) and told
her to return in three months. R. at 354-56.
On October 3, Dr. Mayus completed a form identifying the trigger points
satisfying his diagnosis of fibromyalgia; all of the trigger points were in Plaintiff’s thighs
or above. The form also indicates Plaintiff would be expected to have “widespread pain
for three or more months” during which time she could work four hours per day, stand
for two hours per day and thirty minutes at a time, sit for four hours per day and one
hour at a time, lift ten pounds occasionally and five pounds frequently, and could only
occasionally bend, stoop, or lift her arms above shoulder level. R. at 391-92. Plaintiff
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returned for her third visit to Dr. Mayus four days later, complaining of cramps in her
legs and ribs and chronic fatigue. Upon examination, Plaintiff exhibited a normal range
of motion in her hips, a “normal-appearing walk,” and no other limitations except
“[t]ender points at trapezius . . . scapular spine, upper T-spine, across the sacrum, [and]
SI joints.” Some prescriptions were added and she was told to return in three to four
months. R. at 399-400. There is no record that she ever returned to Dr. Mayus. In
January 2011, Dr. Mayus completed a “Pain Questionnaire” indicating Plaintiff’s pain
was of sufficient severity to interfere with her ability to focus or concentrate and opining
that she would probably miss an average of ten days of work a month due to the
physical or mental effects of pain. R. at 395.
Meanwhile, Plaintiff had continued seeing Dr. Vanbibber. During some of these
visits Plaintiff complained about numbness in her hand, but during none of them did she
discuss any problems in her back, neck, arms or legs. R. at 369-88. In June 2010,
Plaintiff told Dr. Vanbibber that Dr. Mayus diagnosed her as suffering from fibromyalgia.
Dr. Vanbibber described Plaintiff as being “[i]n no acute distress.” She also indicated
she was “[n]ot convinced this is fibromyalgia, however, will try amitryptiline qHS and
monitor for improvement.” R. at 367-68. On August 18, Plaintiff went to Dr. Vanbibber’s
office but had no complaints. R. at 363-64. She returned in October 2010, complaining
that for the last two months (or since her last visit) she experienced headaches, nausea
and light sensitivity. She also reported feeling sad and depressed. Dr. Vanbibber
prescribed Effexor for depression and Fioricet (a combination of acetaminophen,
butalbital and cafeeine) for the headaches. Dr. Vanbibber’s notes also indicate Plaintiff
was taking oxycodone. R. at 420-21. In November, Plaintiff reported that she was
undergoing vocational rehabilitation to try to become employable. Plaintiff was also on
a smoking cessation program. Her Effexor was increased. R. at 417-18. In January
2011, Dr. Vanbibber’s notes reflect that Plaintiff was experiencing “[s]ocial problems at
home,” including problems with her marriage that had been ongoing for years. Dr.
Vanbibber “encouraged [Plaintiff] to ttalk with husband and psychologist,” but it is not
clear that Dr. Vanbibber was still prescribing Effexor, as this medicine is not listed with
Plaintiff’s other prescriptions. R. at 410-11. In February 2011, Plaintiff reported plans to
leave her husband. R. at 404.
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During the administrative hearing, Plaintiff testified that she is unable to work due
to fibromyalgia and back problems. R. at 32. She stated she was in constant pain from
her tailbone to the middle of the back, and had been taking oxycodone for the last three
months. R. at 33. She also reported being depressed: she cried over “little things” and
felt unloved. R. at 33. She estimated that she could sit for thirty minutes at a time
before having to stand up, stand for thirty to forty-five minutes before experiencing
tingling in her legs and popping in her back, and could walk for a block. R. at 36. She
lies down approximately four times a day for thirty to sixty minutes in order to relieve
pain. R. at 38. She reported daily headaches and anxiety or panic attacks on a daily
basis. R. at 38-39.
A vocational expert (“VE”) also testified. The ALJ posed a hypothetical assuming
a person of the claimant’s age and education with no prior work experience who was
capable of lifting ten pounds occasionally and less than ten pounds frequently, standing
or walking for two hours per day, sitting six hours per day, and “[d]ue to mental
impairments and side effects of medication . . . would be limited to understanding,
remembering, and carrying out routine step instructions.” The hypothetical also limited
the person’s exposure to dust, fumes, temperature extremes, and other environmental
conditions, as well as the claimant’s ability to work near vibrations, dangerous
machinery, and at unprotected heights. The VE testified such an individual could work
in certain unskilled sedentary positions, such as final optical good assembler, stem
mounter, or a waxer. The VE further testified that these jobs would permit no more
than two absences a month “if those absences were a regular ongoing occurrence. R.
at 40-41. The ALJ took administrative notice of the fact that Dr. Mayus’s opinions would
preclude Plaintiff from performing any work. R. at 41-42.
The ALJ found Plaintiff retained the residual functional capacity described in the
hypothetical question he posed to the VE. R. at 18. He found Plaintiff suffered from a
medically diagnosable impairment but the evidence did not support the degree of
limitations she claimed. He noted her daily activities consisted of caring for three
children under the age of twelve and that she drove, shopped for groceries, and that
she was able to care for herself. R. at 19-20. Plaintiff’s medical records did not
consistently reflect problems related to depression and anxiety, much less problems of
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the severity she claimed. Most of Plaintiff’s mental/emotional problems were situational
in that they were related to difficulties in her marriage. R. at 20. With respect to
Plaintiff’s physical ailments, the ALJ found Plaintiff to be “somewhat credible” but
nonetheless concluded Plaintiff overstated her limitations. Medical tests consistently
indicate Plaintiff has normal muscle tone and strength, normal gait, and normal range of
motion. Based his findings about Plaintiff’s functional capacity and the VE’s testimony,
the ALJ found Plaintiff could perform work in the national economy.
II. DISCUSSION
A[R]eview of the Secretary=s decision [is limited] to a determination whether the
decision is supported by substantial evidence on the record as a whole. Substantial
evidence is evidence which reasonable minds would accept as adequate to support the
Secretary=s conclusion. [The Court] will not reverse a decision simply because some
evidence may support the opposite conclusion.@ Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v.
Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means Amore than a
mere scintilla@ of evidence; rather, it is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th
Cir. 2010).
A. Failure to Defer to Dr. Mayus’s Opinion
Plaintiff first contends the ALJ erred in failing to defer to Dr. Mayus’s opinion.
Generally speaking, a treating physician=s opinion is entitled to deference. However,
the Court is not convinced Dr. Mayus qualifies as a treating physician for purposes of
this rule. “The treating physician rule is premised, at least in part, on the notion that the
treating physician is usually more familiar with a claimant=s medical condition than are
other physicians.@ Thomas v. Sullivan, 928 F.2d 255, 259 n.3 (8th Cir. 1991) (citation
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omitted). There are only two documented examinations by Dr. Mayus before he offered
his October 2010 opinion regarding Plaintiff’s limitations. His last opinion, rendered in
January 2011, was offered approximately three months after he last saw Plaintiff. He
saw Plaintiff no more than four times in total, and Plaintiff’s regular doctor – Dr.
Vanbibber – did not believe Plaintiff suffered from fibromyalgia. Dr. Mayus’s limited
history with Plaintiff does not justify characterizing him as a treating physician.
Even if Dr. Mayus is a treating physician, this does not mean his opinion must be
accepted. A treating physician=s opinion may be disregarded if it is unsupported by
clinical or other data or is contrary to the weight of the remaining evidence in the record.
E.g., Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996). Dr. Vanbibber’s opinion that
Plaintiff did not suffer from fibromyalgia is entitled to some weight. Similarly, Dr.
Vanbibber’s findings of normal muscle tone, normal strength, normal gait and normal
range of motion provide valid reasons to discount Dr. Mayus’s opinion. Finally,
Plaintiffs’ complaints to Dr. Vanbibber are noticeably less severe than those she
reported during the administrative hearing. The Court concludes that even if Dr. Mayus
may be regarded as a treating physician, the Record provides sufficient reasons to
discount his opinions.
B. Sufficiency of the Evidence
Plaintiff argues the ALJ’s decision is not supported by sufficient evidence
because (1) he relied in inappropriate evidence to develop Plaintiff’s residual functional
capacity and (2) unfairly discounted Plaintiff’s subjective complaints. The Court
disagrees.
Starting first with the ALJ’s determination of Plaintiff’s credibility, it must be
remembered that the critical issue is not whether Plaintiff experiences pain, but rather
the degree of pain that she experiences. E.g., House v. Shalala, 34 F.3d 691, 694 (8th
Cir.1994). The familiar standard for analyzing a claimant=s subjective complaints of pain
is set forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history
omitted):
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While the claimant has the burden of proving that the
disability results from a medically determinable physical or
mental impairment, direct medical evidence of the cause and
effect relationship between the impairment and the degree of
claimant=s subjective complaints need not be produced. The
adjudicator may not disregard a claimant=s subjective
complaints solely because the objective medical evidence
does not fully support them.
The absence of an objective medical basis which supports
the degree of severity of subjective complaints alleged is just
one factor to be considered in evaluating the credibility of the
testimony and complaints. The adjudicator must give full
consideration to all of the evidence presented relating to
subjective complaints, including the claimant=s prior work
record, and observations by third parties and treating and
examining physicians relating to such matters as:
1. The claimant=s daily activities;
2. the duration, frequency and intensity of the pain
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant=s
subjective complaints solely on the basis of personal
observations. Subjective complaints may be discounted if
there are inconsistencies in the evidence as a whole.
739 F.2d at 1322. While current regulations incorporate these considerations, the
Eighth Circuit has declared that the Apreferred practice@ is to cite Polaski. Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
On appeal, Plaintiff identifies various reasons why the ALJ should have found
she suffers from pain – but this is not the critical issue. More importantly, the ALJ
considered all of the appropriate factors and found Plaintiff suffers from pain. The ALJ
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did not believe Plaintiff’s testimony regarding the extent of pain, but there is no portion
of the Record that compelled the ALJ to fully credit Plaintiff’s testimony and the Record
provides substantial evidence supporting the ALJ’s decision regarding Plaintiff’s
credibility on this issue.
Plaintiff’s argument regarding her residual functional capacity improperly
assumes a doctor must render an opinion that precisely matches the ALJ’s findings.
While Aa claimant=s RFC is a medical question, . . . in evaluating a claimant=s RFC, an
ALJ is not limited to considering medical evidence exclusively.@ Cox v. Astrue, 495 F.3d
614, 619 (8th Cir. 2007). It is simply not true that the RFC can be proved only with
medical evidence. Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir. 2000) (per curiam).
Evidence of Plaintiff=s actual daily activities and the medical evidence that existed
(particularly Dr. Vanbibber’s treatment notes and records) was sufficient to support the
ALJ=s determination about Plaintiff=s capabilities.
III. CONCLUSION
For the foregoing reasons, the Commissioner’s final decision denying benefits is
affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: October 23, 2012
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