Sprague v. Astrue
Filing
17
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 2/4/14 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
BRENDA SPRAGUE,
)
)
Plaintiff,
)
)
v.
) Case No.
) 12-3455-CV-S-REL-SSA
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security, )
)
Defendant.
)
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Brenda Sprague seeks review of the final decision
of the Commissioner of Social Security denying plaintiff’s
application for disability benefits under the Social Security Act
(“the Act”).
Plaintiff argues that the ALJ erred in (1) failing
to properly develop the record by ordering a consultative exam to
test plaintiff’s mental functioning, and (2) in deriving a
residual functional capacity that is not based on the substantial
evidence.
I find that the substantial evidence in the record as
a whole supports the ALJ’s finding that plaintiff is not
disabled.
Therefore, plaintiff’s motion for summary judgment
will be denied and the decision of the Commissioner will be
affirmed.
I.
BACKGROUND
On July 29, 2009, plaintiff applied for disability benefits
alleging that she had been disabled since April 1, 2009.
Plaintiff’s disability stems from Langerhans histiocytosis1 and
hypertension.
23, 2009.
Plaintiff’s application was denied on September
On April 6, 2011, a hearing was held before an
Administrative Law Judge.
On June 17, 2011, the ALJ found that
plaintiff was not under a “disability” as defined in the Act.
On
April 17, 2012, the Appeals Council denied plaintiff’s request
for review.
Therefore, the decision of the ALJ stands as the
final decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for
judicial review of a “final decision” of the Commissioner.
The
standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by
substantial evidence.
42 U.S.C. § 405(g); Richardson v. Perales,
402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th
1
Histiocytosis is a general name for a group of syndromes
that involve an abnormal increase in the number of immune cells
called histiocytes. There are three major classes of
histiocytoses, one of which is Langerhans cell histiocytosis,
which is also called histiocytosis X. Histiocytosis X has
typically been thought of as a cancer-like condition. More
recently researchers have begun to suspect that it is actually an
autoimmune phenomenon, in which immune cells mistakenly attack
the body, rather than fight infections. Extra immune cells may
form tumors, which can affect various parts of the body including
the bones, skull, and other areas.
http://www.nlm.nih.gov/medlineplus/ency/article/000068.htm
2
Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir.
1996).
The determination of whether the Commissioner’s decision
is supported by substantial evidence requires review of the
entire record, considering the evidence in support of and in
opposition to the Commissioner’s decision.
Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876
F.2d 666, 669 (8th Cir. 1989).
“The Court must also take into
consideration the weight of the evidence in the record and apply
a balancing test to evidence which is contradictory.”
Wilcutts
v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v.
Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla.
It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Richardson v. Perales, 402
U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th
Cir. 1991).
However, the substantial evidence standard
presupposes a zone of choice within which the decision makers can
go either way, without interference by the courts.
“[A]n
administrative decision is not subject to reversal merely because
substantial evidence would have supported an opposite decision.”
Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of
proving he is unable to return to past relevant work by reason of
3
a medically-determinable physical or mental impairment which has
lasted or can be expected to last for a continuous period of not
less than twelve months.
42 U.S.C. § 423(d)(1)(A).
If the
plaintiff establishes that he is unable to return to past
relevant work because of the disability, the burden of persuasion
shifts to the Commissioner to establish that there is some other
type of substantial gainful activity in the national economy that
the plaintiff can perform.
Nevland v. Apfel, 204 F.3d 853, 857
(8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo.
2000).
The Social Security Administration has promulgated detailed
regulations setting out a sequential evaluation process to
determine whether a claimant is disabled.
codified at 20 C.F.R. §§ 404.1501, et seq.
These regulations are
The five-step
sequential evaluation process used by the Commissioner is
outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful
activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a
combination of impairments which significantly limits his ability
to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment
in Appendix 1?
4
Yes = disabled.
No = go to next step.
4.
Does the impairment prevent the claimant from doing
past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5.
Does the impairment prevent the claimant from doing any
other work?
Yes = disabled.
No = not disabled.
IV.
THE RECORD
The record consists of the testimony of plaintiff and
vocational expert George Horne, in addition to documentary
evidence admitted at the hearing.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
Earnings Record
The record shows that plaintiff earned the following income
from 1971 through 2010:
Year
Earnings
Year
Earnings
1971
$ 281.10
1991
$
1972
458.96
1992
0.00
1973
1,072.37
1993
2,545.68
1974
5,635.73
1994
8,152.68
1975
0.00
1995
8,464.84
1976
0.00
1996
1,181.21
1977
6.88
1997
9,684.00
5
0.00
1978
1,938.42
1998
14,825.61
1979
48.70
1999
16,178.70
1980
3,035.05
2000
17,894.04
1981
0.00
2001
18,348.97
1982
3,624.58
2002
13,670.51
1983
4,494.01
2003
2,454.72
1984
0.00
2004
19,078.29
1985
0.00
2005
15,591.48
1986
0.00
2006
22,118.35
1987
0.00
2007
12,728.15
1988
0.00
2008
17,144.62
1989
0.00
2009
6,111.45
1990
0.00
2010
0.00
(Tr. at 111).
Function Report
In a Function Report dated August 14, 2009
(Tr. at 136-
143), plaintiff described her day as follows:
I take my pain medication and about 30 minutes later I’m
able to walk without the severe pain. I shower and get
dressed in loose fitting clothing because it makes it a
little easier to work. I eat 1 slice of toast so I can take
my diabetes medication. I dust the furniture and my husband
vaccums [sic] because it hurts for me to do that and he
cooks me some kind of noodle soup for my lunch because a
bland soup is easier for me to keep down without vomiting.
My husband leaves for work at 2:30 p.m. and I lay down for
about an hour. My daughter that moved with her husband from
Arkansas to Missouri about 8 months ago when I started
getting really sick to help me with household chores comes
to my house after she gets off work and cooks dinner for me
and my husband (she lives about 6 houses from our house).
She also does our laundry and folds it and I put it away.
She also lives close to our home and if I need anything I
call her and she can get here quickly if I need anything. I
grocery shop usually on Fridays with my husband driving me
and carrying in the supplies and helping me put them away.
6
I will read my books and go to bed around 10:00. I wake up
several times during the night because of the pain or
vomiting.
Throughout this form plaintiff described a lot of what
others do, but she did not describe very much of what she does
during a normal day.
Plaintiff reported that she takes care of her husband but
that she does not do much.
He takes care of their animals.
Her
daughter helps her with housekeeping (plaintiff dusts and cleans
her bedroom) and cooking, although plaintiff does cook once in a
while -- she prepares her own meals about twice a week for 15 to
20 minutes each time.
drive her.
vomiting.
She drives if there is no one else to
She wakes up several times a night due to pain and
Plaintiff reported that she does not get her hair cut
very often because she can’t sit for any period of time.
able to feed herself, but she has no appetite.
She is
Plaintiff is able
to go out alone, but she tries not to due to pain and vomiting
which can “come on unexpectedly.”
Plaintiff shops with her
husband for about an hour once a week.
Plaintiff is able to pay
bills, count change, and use a checkbook or money orders.
Plaintiff reads a lot.
She reads for about an hour at a
time, and then she gets up and moves around to stop the cramping.
Plaintiff talks with friends on the phone or they come to her
house to visit two or three times a week.
Plaintiff was asked to circle the activities affected by her
7
conditions.
She died not circle talking, hearing, seeing,
understanding, following instructions, using her hands or getting
along with others.
She can walk about 400 feet before needing to
rest for 5 or 10 minutes.
pay attention.
She listed no limit to her ability to
She is able to follow instructions, but sometimes
she has to look at written instructions several times and
sometimes oral instructions have to be repeated.
had problems with authority figures.
She has never
She has always handled
stress well, “but lately I get very upset and cry a lot”.
Disability Report
In a Disability Report dated August 3, 2009, plaintiff
reported that she weighed 118 pounds (Tr. at 157-167).
In this
form plaintiff attributed her weight loss to “loss of appetite”
(Tr. at 158).
When she was asked how her conditions limit her
ability to work, she did not mention vomiting several times every
day.
She did say that her “langerhans causes the bones in my
body to break at anytime without warning.”
She stopped working
on April 1, 2009, because of her constant pain (Tr. at 158).
Disability Report - Appeal
“[N]othing has changed since the last report[,] I vomit all
day long[,] I have a hard time walking[,] I can’t remember a lot
of things[,] I’m in a lot of pain all the time” (Tr. at 175).
8
B.
SUMMARY OF TESTIMONY
During the April 6, 2011, hearing, plaintiff testified; and
George Horne, a vocational expert, testified at the request of
the ALJ.
1.
Plaintiff’s testimony.
At the time of the hearing plaintiff was 56 years of age
(Tr. at 26).
at 26).
Plaintiff is 5’4” tall and weighs 132 pounds (Tr.
Plaintiff previously lost 82 pounds due to “loss of
appetite, and pancreatitis” (Tr. at 27).
and her husband works (Tr. at 27).
Plaintiff is married
She has a driver’s license
but is unable to drive due to her medications -- “I just don’t
trust my reaction times, so I don’t drive any longer” (Tr. at
27).
Plaintiff gets rides from her husband or daughter (Tr. at
27).
Plaintiff is unable to work due to constant pain and
frequent vomiting (Tr. at 29-30).
The vomiting started
approximately June 2007 which was a few months before her first
attack of pancreatitis (Tr. at 37).
vomits about 4 times (Tr. at 37).
On an average day plaintiff
Her doctors suspect the
vomiting might be related to her Langerhans but they are not sure
(Tr. at 38).
Plaintiff has a tightening in her esophagus which
is swelling caused by the vomiting (Tr. at 38).
9
She has a fairly
consistent cough2 associated with the nodules in her lungs (Tr.
at 39).
Plaintiff had surgery on her right leg and hip associated
with the Langerhans, and she had chemotherapy due to lytic
lesions on her bones (Tr. at 40).
persistent pain (Tr. at 40).
Since then, she has had
Plaintiff was able to perform a
sedentary job all the while she was undergoing chemotherapy (Tr.
at 40-41).
She suffered renal failure, but then went back to
work for five years (Tr. at 41).
She was “just so tired and
vomiting all the time, and missing work” so she quit working in
April 2009 (Tr. at 41).
Plaintiff was asked how much work she
was missing because of her symptoms, and she said, “Oh, well,
more with the hospitalizations.
half months.
One time I was off for two and a
With the hospitalization and surgery and then I’d
go back to work and I could work maybe two weeks, and I’d start
getting sick again, and just off and on, and I know my record
must be terrible” (Tr. at 41).
Plaintiff cannot lift more than 2 to 5 pounds (Tr. at 30).
She is unable to say how long she can walk before needing a break
because she gets out of breath (Tr. at 30).
Plaintiff can stand
still for about 5 minutes and then she either has to sit down or
2
Plaintiff had coughed a “couple of times” during the
hearing and plaintiff’s counsel described that as a “fairly
consistent” cough, to which plaintiff agreed (Tr. at 39).
10
move around (Tr. at 30).
She can sit for 10 to 15 minutes before
needing either to get up or at least shift her position (Tr. at
30).
She cannot bend forward at the waist without pain; she
cannot squat; she can use her hands (Tr. at 30-31).
Plaintiff’s pain is mostly in her right thigh and lower back
into her left side (Tr. at 31).
The pain occurs constantly, but
she gets sharp pains about once an hour (Tr. at 31, 35).
With
medication, her constant dull pain is a 6 or a 7 on a scale of 1
to 10 (Tr. at 35).
(Tr. at 35).
The sharp shooting pains are a 9 out of 10
There are no precipitating factors (Tr. at 31).
For relief plaintiff will lie on a carpeted floor and stretch for
about 10 to 15 minutes, and she does that 4 or 5 times a day (Tr.
at 31).
Plaintiff has had no recent changes to her medication (Tr.
at 29).
Her medications cause extreme fatigue and problems with
short-term memory (Tr. at 29).
Plaintiff has noticed memory
problems because she cannot remember what she watches on the
news, and she never gets her kids’ names right (Tr. at 31-32).
She sleeps only 3 to 4 hours a night because her leg pain wakes
her up and she has hot flashes (Tr. at 32, 36).
She does not
take naps during the day (Tr. at 36).
Plaintiff lives in a duplex with her husband (Tr. at 32).
She is able to put laundry in, but her husband takes it out of
the washer and puts it in the dryer because it’s too heavy for
11
plaintiff (Tr. at 32).
Plaintiff is able to dust and do other
minor things around the house (Tr. at 32).
she does not shop (Tr. at 32).
Plaintiff only leaves her home to
go to doctor appointments (Tr. at 33).
computer (Tr. at 33).
(Tr. at 33).
She does not vacuum,
She no longer uses a
She watches television without difficulty
She reads biographies (Tr. at 33).
Plaintiff used to take her grandchildren to the zoo every
month, but she can’t do that anymore (Tr. at 33).
A typical day
now starts at 4:30 when she gets up and watches the news (Tr. at
33).
Her husband works evenings, and he gets up at 9:00 and they
spend the morning together (Tr. at 34).
chores around the house (Tr. at 34).
Plaintiff does a few
After her husband goes to
work, her daughter comes over to make sure things are taken care
of and to visit with plaintiff (Tr. at 34).
alcohol (Tr. at 38).
Plaintiff drinks no
She used to smoke a pack of cigarettes a
day, but she is now down to about 4 cigarettes per day (Tr. at
38).
Plaintiff’s last cardiac procedure was a catheterization
(Tr. at 34).
Plaintiff’s diabetes is “well under control” unless
she gets pancreatitis, and then she has to use an insulin shot
(Tr. at 34-35).
Plaintiff has hypertension, and her medication
causes a dry mouth and makes her very tired (Tr. at 39).
She was
unable to identify any symptoms caused by the hypertension but
noted that it was not under control even with medication (Tr. at
12
39).
2.
Vocational expert testimony.
Vocational expert George Horne testified at the request of
the Administrative Law Judge.
Plaintiff’s past relevant work
consists of customer order clerk, DOT 249.362-026 with an SVP of
4 (semi-skilled) and sedentary; sales clerk, DOT 290.477-014,
with an SVP of 3 (semi-skilled) and light; and administrative
clerk, DOT 219.362-010, with an SVP of 4 (semi-skilled) and light
(Tr. at 42).
The first hypothetical involved a person who could perform
light work but would need to alternate sitting and standing every
30 to 60 minutes throughout the day (Tr. at 43).
The vocational
expert testified that such a person could not work as a customer
order clerk or a sales clerk, but the person could work as an
administrative clerk (Tr. at 43).
The second hypothetical involved a person who could lift and
carry up to 5 pounds, stand or walk up to 5 minutes at a time,
sit for 15 minutes at a time, could only occasionally bend or
stoop and could never squat (Tr. at 44).
The vocational expert
testified that such a person could not perform any of plaintiff’s
past relevant work (Tr. at 44).
With the claimant’s age,
education and work experience, such a person could not work
because even a sedentary job would require lifting up to 10
pounds on an occasional basis, and the sit/stand option would
13
interfere with pace persistence and productivity (Tr. at 44).
The third hypothetical was the same as the first except the
person would need to take two unscheduled breaks throughout the
day for 10 to 15 minutes at a time due to the need to vomit or
lie on the floor and stretch (Tr. at 44-45, 46).
The vocational
expert testified that such a person likely could not work due to
the unscheduled nature of the breaks (Tr. at 45).
If the individual had limitations of memory, concentration
and attention caused by fatigue as a medication side effect, and
was therefore limited to simple, unskilled work, the person could
not perform plaintiff’s past relevant work because unskilled work
is an SVP of 1 or 2 (Tr. at 45).
C.
SUMMARY OF MEDICAL RECORDS
Most of plaintiff’s medical records pre-date her alleged
onset date and occurred while she was engaged in substantial
gainful activity.
On February 28, 2005, plaintiff saw William Wester, M.D., at
Orthopaedic Specialists of Springfield, complaining of right leg
pain, worse with walking (Tr. at 289).
Testing revealed that
plaintiff had a bone lesion in her right femur (thigh bone) (Tr.
at 290).
Dr. Wester diagnosed plaintiff with a probable
pathologic fracture.3
3
A pathologic fracture occurs when a bone breaks in an area
that is weakened by another disease process.
14
On March 14, 2005, Dr. Wester took a biopsy and performed
surgery to repair plaintiff’s fracture (Tr. at 290).
At a
follow-up appointment on March 25, 2005, plaintiff told Dr.
Wester that her symptoms had improved and that she had no
discomfort with moving her hip and knee (Tr. at 290).
The biopsy
revealed that plaintiff had probable histiocytosis (Tr. at 290).
On April 18, 2005, plaintiff met with Amy Rabe, M.D., at
Oncology-Hematology Associates, to discuss treatment options for
her histiocytosis (Tr. at 339).
Plaintiff weighed 177 pounds.
An MRI revealed that plaintiff had a lesion in her femur and left
iliac (pelvic bone).
nodule.
A CT scan of her chest showed an upper lung
Dr. Rabe recommended that plaintiff get a second opinion
and see Dr. Clouse to discuss the possibility of radiation.
On May 9, 2005, plaintiff followed up with Dr. Rabe after
undergoing radiation treatment (Tr. at 337).
Plaintiff’s blood
pressure was 169/109, she weighed 179 pounds and she continued to
smoke a half a pack of cigarettes per day.
to report hip and back pain.
Plaintiff continued
Dr. Rabe observed that plaintiff
continued to walk with a slight limp.
Despite her pain and other
symptoms, plaintiff reported that she continued to work full time
at a desk job.
Dr. Rabe recommended that plaintiff undergo
chemotherapy.
On May 16, 2005, plaintiff saw Dr. Rabe (Tr. at 335).
Plaintiff reported that she had been having severe pain in her
15
lower back and right hip.
“Her pain previously was reasonably
well controlled with 1 to 2 hydrocodone/APAP [narcotic].
However, with 2 tabs of hydrocodone each time over the weekend
her pain remains severe.”
Dr. Rabe began administering a
four-course cycle of chemotherapy.
At a follow-up appointment with Dr. Rabe on July 11, 2005,
plaintiff reported that she was doing better with her gait (Tr.
at 331-332).
“[B]ilateral hip pain has mostly resolved, although
she continues to have back pain about the lumbar area.
She uses
approximately four hydrocodone/Tylenol, although at bedtime she
occasionally uses an oxycodone [narcotic] which she states gives
her an all-night pain relief better than hydrocodone does.
has had minimal nausea and noticed only mild hair loss.
She
She
continues to have some fatigue, although is able to maintain her
full-time work status.”
Dr. Rabe noted that plaintiff was
“definitely clinically improving” and had tolerated her treatment
well.
Plaintiff had her next course of chemotherapy.
On August 12, 2005, plaintiff completed chemotherapy (Tr. at
314, 327).
At a follow-up appointment on September 9, 2005,
plaintiff was feeling well in general and had “good ambulation”
(Tr. at 327).
146/90.
She weighed 173 pounds and her blood pressure was
“Clinically she is doing well, although imaging studies,
obtained on August 2nd, show only stable disease.
Shortness of
breath with showers only, and no shortness of breath with mild
16
exertion, possibly related to humidity in shower.
have lung involvement by her disease.”
Patient does
Plaintiff requested that
Dr. Rabe refill plaintiff’s hypertension medication since
plaintiff was seeing Dr. Rabe more frequently than her primary
care physician, and Dr. Rabe agreed to do so.
On November 3, 2005, plaintiff followed up with Dr. Rabe
(Tr. at 325-326).
Plaintiff reported that “her pain is under
good control with only an occasional need for oxycodone two to
three tabs as needed.”
Plaintiff’s blood pressure was 165/110,
and she weighed 177 pounds.
blood work looked good.
Her gait was much improved, and her
Plaintiff’s Langerhans histiocytosis was
stable, “overall, patient is doing well.”
On February 2, 2006, Dr. Rabe examined plaintiff (Tr. at
324).
“She feels well in general, and her pain is well managed
with oxycodone two to three tabs q. [every] 4 h. p.r.n. [as
needed] for pain.
She is working full-time and only experiences
intermittent hip discomfort which is well managed with her
existing pain medications.”
Plaintiff’s weight had gone up some
since her last visit -- she weighed 181 pounds.
pressure was 182/97.
Her blood
Her whole body scan, which had been done on
January 26, showed some improvement in her existing lesions with
no new lesions.
A CT scan of her chest and abdomen showed no new
findings in her lungs and a negative examination in her abdomen.
“Patient has very stable disease at this time, and her symptoms
17
have overall improved after treatment.”
About a year later, on January 24, 2007, plaintiff saw Dr.
Wester, her orthopedic doctor, complaining of left leg pain (Tr.
at 288).
Plaintiff reported her pain had been present for the
last six to eight weeks, it was worse with activity, she was not
having any issues with night pain, and she was able to go up and
down stairs.
Plaintiff had full range of motion in her hip,
knee, ankle and foot.
She had mild discomfort with seated
straight leg raising on the left.
plaintiff’s pelvis and left hip.
abnormalities of her knee.
Dr. Wester took x-rays of
Plaintiff had no bony
She had mild arthritic changes at the
hips, but Dr. Wester did not think that was causing her left leg
pain.
Dr. Wester assessed “left leg pain, etiology of which may
be mechanical low back.”
He recommended physical therapy and
prescribed Lodine, a non-steroidal anti-inflammatory.
About nine months later, on September 12, 2007, plaintiff
went to the hospital with complaints of abdominal pain and
vomiting for the last two or three days (Tr. at 389-399).
Plaintiff’s abdominal pain was a 7 out 10 at its worst, and “pain
medications seem to make it better.”
Plaintiff was taking
hydrocodone 5/500 one to two pills every four hours as needed for
pain, and Atenolol 100 mg daily for hypertension.
Plaintiff was
working at Legal Services at the time, and she was smoking about
4 cigarettes per day.
“Smoking cessation was discussed with
18
her.”
During a review of systems, plaintiff reported bone pain
associated with her histiocytosis X especially in her lower back
and right hip.
Plaintiff denied depression, and on exam she was
observed to be alert and oriented times three with normal mood
and affect.
Her blood pressure was 200/100.
She denied any
change in weight.
Plaintiff’s pancreatic enzymes were elevated.
was elevated.
Her glucose
She was treated by Karl J. Orscheln, M.D., who
initially assessed pancreatitis,4 hypertension, elevated blood
glucose, and history of histiocytosis X.
Plaintiff was admitted
and put on IV morphine for her pain and was given nothing by
mouth until her abdominal pain was under control.
Plaintiff was kept in the hospital on IV morphine and IV
hydration and eventually transitioned to a clear liquid diet and
then to a regular diet.
2007.
She was discharged on September 17,
Her discharge diagnoses were:
1.
Acute pancreatitis, presumed secondary to gallstones.
2.
Hypertension.
3.
Impaired glucose tolerance.
4.
Tobacco abuse.
5.
History of histiocytosis X.
4
Pancreatitis is inflammation in the pancreas. The pancreas
produces enzymes that assist digestion and hormones that help
regulate the way the body processes sugar (glucose).
19
Plaintiff was given prescriptions for Percocet (narcotic),
Atenolol (a diuretic used to treat hypertension), and
Lisinopril.5
She was told to eat a low-fat diabetic diet and to
stop smoking.
On December 20, 2007, plaintiff followed up with Robert
Ellis, M.D., at Oncology-Hematology Associates, for her
histiocytosis (Tr. at 314-315).
Plaintiff reported that she had
some aching in her right femur but felt fairly well overall.
blood pressure was 212/120 and her weight was 178 pounds.
Her
On
exam plaintiff was noted to be pleasant, alert and oriented times
three.
Her physical exam was normal.
showed no changes (Tr. at 314, 387).
active bone lesions (Tr. at 314, 388).
A CT scan of her chest
A bone scan showed no
Dr. Ellis assessed
Langerhans histiocytosis with severe hypertension and diabetes
mellitus as secondary conditions.
He found that her Langerhans
histiocytosis was clinically stable and that she had a good
prognosis.
He added Hydrochlorothiazide (a diuretic) for
hypertension and refilled her Hydrocodone (200 pills).
On February 28, 2008, plaintiff was seen at the emergency
room with complaints of abdominal pain, nausea, and vomiting that
had started “yesterday” (Tr. at 375-386).
were normal.
Her mood and affect
Her pancreatic enzymes (lipase) were markedly
5
An ACE inhibitor used to treat hypertension.
dilation of blood vessels.
20
It causes
elevated.
Says her whole family had viral gastroenteritis last week,
including herself. Resolved in everybody about 4 days ago.
Was OK and went back to work for 2 days. Started yesterday
began having nausea and vomiting with ~10 episodes of
vomiting. Had 2 episodes of diarrhea. No abdominal pain at
that time. Before going to bed, ate a piece of toast with
her pills and immediately vomited it back up. Went to bed
and began having abdominal pain “above her belly button and
up and to the left.” Described it as “my insides being
twisted.” No radiation. Was 4/10. Was unable to sleep due
to pain. At about 0100 this AM, was tired of not being able
to sleep so drank a coke with ~3 oz of rum in it. Said that
“drinking the booze” made the pain much worse and wasn’t
able to sleep much after that. Tried her home Norco
[narcotic] 5/500 mg x2 tabs without relief, so came to ER
this am because pain up to 8-9/10 and “unbearable.” Says
this is exactly like her previous episode of pancreatitis. .
. . No appetite and reports nothing “has stayed down in 2
days.” Reports she drinks 1-2 hard drinks about every 2-3
weeks.
Plaintiff listed her current medication as Hydrocodone/
acetaminophen (narcotic), lisinopril (for hypertension) and
Metformin (for diabetes).
She did not list Atenolol or
hydrochlorothiazide, which had been prescribed two months
earlier, for hypertension.
She reported smoking 3/4 pack of
cigarettes a day and occasional alcohol use.
Plaintiff denied
depressed mood, anxious mood, or problems sleeping.
Plaintiff’s
blood pressure, 200/110, was elevated “likely secondary to
inability to take meds, plus stress of pain.
No signs of end
organ damage and thus no evidence for HTN [hypertension]
emergency.”
Shelby Hahn, M.D., admitted plaintiff to the hospital and
21
diagnosed her with pancreatitis.
Plaintiff was given IV
morphine, IV hydration, IV hypertension medication, insulin, and
a nicotine patch.
She had an ultrasound, the findings of which
“could represent pancreatitis,” and an MRI of her abdomen which
was consistent with pancreatitis.
Plaintiff had nothing by mouth for 3 days and improved;
however, once food was introduced her abdominal pain returned.
She had nothing by mouth for another two days and then she was
switched to oral medications and food.
By the time of her
discharge on March 6, 2008, she was tolerating a full diet.
“Throughout her entire hospital stay her blood pressures had been
quite difficult to control.”
Once she was able to tolerate oral
medications, she was started on Metoprolol6
and at the day of discharge her blood pressures are well
controlled with systolic blood pressures between 1 teens and
140s to 150s and normal diastolics up to approximately 90
diastolic. The difficulty with the blood pressure was
discussed with the patient. She was somewhat worried about
the numerous medications. She was told that as an
outpatient her primary care physician could titrate the
blood pressure medications of his choosing up and decrease
the number of medications she would be taking.
Her condition on discharge was good.
6
“Advised complete
Metoprolol is a beta blocker. Beta blockers, also known as
beta-adrenergic blocking agents, are medications that reduce your
blood pressure. Beta blockers work by blocking the effects of
the hormone epinephrine, also known as adrenaline. When you take
beta blockers, the heart beats more slowly and with less force,
thereby reducing blood pressure. Beta blockers also help blood
vessels open up to improve blood flow.
22
alcohol abstinence.”
On March 12, 2008, plaintiff followed up with Dr. Landholt
at PatientCare Family Clinic (Tr. at 274).
to improve and denied vomiting.
Plaintiff continued
She weighed 163 pounds.
“Blood
pressure has remained at her discharge levels, metoprolol is
making her very tired at this point although this is somewhat
improved.”
Dr. Landholt declined to change her medication.
He
told her to follow up in three weeks.
On April 4, 2008, plaintiff followed up with Dr. Landholt
(Tr. at 272).
169 pounds.
Her blood pressure was 230/108 and her weight was
“Patient is extremely tired from the medications,
blood pressure has not responded.
well.”
Is exercising and eating
Dr. Landholt stopped plaintiff’s Metoprolol but continued
her prescription for Clonidine7 and Lisinopril/Hydrochlorothiazide.
Three months later, on July 2, 2008, plaintiff went to the
emergency room at CoxHealth complaining of abdominal pain, nausea
and vomiting for the past week and a half (Tr. at 201-205, 233254).
At the time she came to the hospital, she was in kidney
failure.
Plaintiff’s medications were listed as Lisinopril (for
7
Clonidine is used alone or in combination with other
medications to treat high blood pressure. Clonidine is in a
class of medications called centrally acting alpha-agonist
hypotensive agents. It works by decreasing your heart rate and
relaxing the blood vessels so that blood can flow more easily
through the body.
23
hypertension), Metformin (for diabetes), Vicodin (narcotic),
Clonidine (for hypertension), and Metoprolol8 (for hypertension).
Plaintiff continued to smoke but said she had not used alcohol in
several months.
She was working as a paralegal.
blood pressure was 172/76.
Plaintiff’s
Her mood and affect were appropriate
and she was alert and oriented times three.
There was no
weakness, range of motion restriction, or tenderness in any
joint.
Plaintiff’s pancreatic enzymes were markedly elevated,
her glucose was elevated, her liver enzymes were low.
She was
assessed with acute pancreatitis causing acute renal failure,
severe dehydration, and intractable pain; diabetes mellitus type
2 uncontrolled; hypertension uncontrolled; and intractable nausea
and vomiting.
Due to renal failure and severe dehydration,
plaintiff was admitted to intensive care.
Plaintiff’s
medications were stopped and she was given IV hydration, IV blood
pressure medication, IV pain control, and other IV medications
affecting her magnesium and potassium due to kidney failure.
A
CT scan confirmed pancreatitis.
Plaintiff’s nausea and vomiting improved on her first day in
the hospital.
By the third day she was on food and was able to
take oral pain medications.
She was discharged home on July 6,
8
There is no explanation for the change in medications from
plaintiff’s last visit with her primary care physician who
discontinued Metoprolol.
24
2008, with a recommendation to have her gallbladder removed.
Her
discharge medications were Vicodin (narcotic), Clonidine (for
hypertension), Metformin (for diabetes), and Metoprolol (for
hypertension).
On July 10, 2008, plaintiff saw Dr. Landholt for a follow up
(Tr. at 209).
“We do not have any discharge information [from
the hospital but] the patient is improved and was advised by her
doctor to get a referral to have her gallbladder out.
She is
unaware of the studies that they did [or] any results.”
Plaintiff weighed 147 pounds which was a decrease of 22 pounds
since her last visit the beginning of April 2008.
On July 16, 2008, John C. Crighton, M.D., at CoxHealth,
surgically removed plaintiff’s gallbladder (Tr. at 208).
Eight and a half months later -- April 1, 2009 -- is
plaintiff’s alleged onset date.
Three months later, on June 30, 2009,
plaintiff met with
Rick Klingensmith, a nurse practitioner, at Oncology-Hematology
Associates (Tr. at 217-218).
Plaintiff weighed 138 pounds, which
was 9 pounds less than she weighed a year earlier.
pressure was 188/101.
Her blood
Plaintiff’s last visit in this office was
over a year and a half earlier.
Plaintiff reported that gallbladder surgery had “had no
effect” and that she had been hospitalized “approximately four
times” over the last 18 months.
In fact, plaintiff had not been
25
hospitalized since her gallbladder surgery a year earlier and had
been hospitalized a total of three times, all before her alleged
onset date.
Plaintiff reported that over the past few months her “energy
is improving, as well as her appetite. . . .
fairly well today.”
Overall she feels
Plaintiff did report worsening of bone pain,
specifically in her back, pelvis and right arm.
On exam
plaintiff was noted to be pleasant, alert and oriented times
three.
There was tenderness to palpation “throughout nearly the
entire spine, the right humerus and the entire pelvis.”
A bone
scan was recommended.
On July 13, 2009, plaintiff underwent a bone scan which was
compared to her previous bone scan dated December 12, 2007 (Tr.
at 226).
The scan showed some chronic deformity in her right leg
(where she had previously had surgery) which was “stable.”
She
had some degenerative change in the lower lumbar spine at L4 and
the right acetabulum9 but the remainder of her skeleton was
9
26
unremarkable and stable.
On July 23, 2009, plaintiff had an MRI of her right hip
which revealed mild degenerative changes, and she had an MRI of
her back, the results of which “are consistent with advanced
degenerative changes” (Tr. at 223-225).
On July 29, 2009, plaintiff filed her application for
disability benefits.
On September 19, 2009, Anthony Zeimet, D.O., performed a
consultative examination in connection with plaintiff’s
application for disability benefits (Tr. at 263-268).
HISTORY OF PRESENT ILLNESS: . . . She states that . . .
[s]he has some problems with her pancreas and her liver, as
well as her bones. She has widespread bone pain and in
fact, had a fracture on her right leg that required an
intramedullary rod placement and screw placed to help
stabilize that on the right side [which occurred in March
2005]. She notes that she has high blood pressure. It is
not very well controlled. She is only on clonidine at this
time. They believe that her blood pressure is elevated
because of her pain. She notes that she has diabetes but is
unsure of when her last hemoglobin A1c [which measures the
average blood glucose level for the past three months] was.
She did not check her blood sugar today and really cannot
tell me what her average blood sugars are. She states she
has never been told that she has diabetes to the eye,
kidney, or the nerves. She has widespread body aches and
pains. Primarily, her right hip bothers her a lot, and she
has back pain in the left side. . . . She is unable to
tell me what makes the pain worse or better. She rates her
pain currently 4/10. She notes that she has lesions on her
lungs that are attributed to her Langerhans as well. She
does have some shortness of breath with activity and is able
to cook and do light housework. She denies any wheezing but
coughs. She does not use any inhaler. She has had [four]
bouts with pancreatitis that she thinks were probably due to
her Langerhans. She said, “I guess.” Her last episode,
though, was in January 2009. She states she vomits a lot.
27
She states she vomits at least 2 times a day and is unsure
exactly why. She does not have abdominal pain. She just
vomits usually early in the morning. This is why she left
her job working as a receptionist for a legal services
company.
On a self-questionnaire, the patient states she can sit,
stand, or walk for about an hour at a time each. She can
lift and carry about 10 pounds. . . . She does not require
anything to help her walk. She currently does not have a
job. She last worked in April 2009 as a receptionist for a
legal services company. . . . She does admit to smoking,
and she is working on quitting. She does not drink alcohol.
She can drive a car.
Plaintiff reported that she has chronic pancreatitis with
the last episode in January 2009; however, the medical records
show that plaintiff’s last episode was actually in early July
2008.
Plaintiff listed her current medications as Metformin (for
diabetes), Clonidine (for hypertension), and Hydrocodone
(narcotic), 7.5 mg 2 tablets four times a day.
report any mental symptoms.
Plaintiff did not
She continued to smoke.
Plaintiff’s blood pressure was 180/88.
She weighed 133
pounds (which was a decrease of 14 pounds in the past 14 months
-- in July 2008 she weighed 147 pounds).
Plaintiff was able to
get on and off the exam table and up and out of the chair without
much difficulty.
She appeared “somewhat hesitant” to do the
activities or range of motion, but she was able to do them
without much difficulty.
tenderness.
She had no muscle atrophy, no spasm, no
She was able to follow simple directions, her affect
was normal, and her personal hygiene was good.
28
Plaintiff had no limitation in range of motion of any
extremity.
She had full range of motion in shoulders, elbows,
wrists, knees, hips, and ankles, although she did have some pain
during range of motion testing of her right hip.
Plaintiff was
able to walk without any assistive device, do heel-to-toe walk,
walk on heels and toes, and squat.
of her cervical and lumber spine.
She had full range of motion
Straight leg raising was
normal.
Dr. Zeimet reviewed plaintiff’s right hip x-ray, an MRI of
the lumbar spine from July 2009, a bone scan from July 2009, an
initial history and physical from July 2008, and hospital records
from July 2008 when plaintiff had pancreatitis.
Dr. Zeimet assessed right hip osteoarthritis, degenerative
joint disease in her back without radiculopathy, diabetes type 2,
uncontrolled hypertension, history of pancreatitis “last episode
in January 2009” and history of Langerhans histiocytosis.
IMPRESSION: . . . With regard to [her] ability to work an
8-hour day with normal breaks to sit, stand, and walk; I
think she actually can work an 8-hour day. I think her
probably most significant limiting factor is the pain that
she has in her back and in her right hip, and she may need
to alternate positions to alleviate pain periodically
throughout the day. However, I do believe that she can work
and perform light duty such as secretarial duty that she was
doing back in April. She had no limitation in range of
motion including squatting. Her gross and fine motor hand
grip and grasp were intact. She does not require any
devices for ambulation. Her vision is normal, uncorrected.
Hearing is intact. Communication skills are decent. She
does have the ability to travel and drive a car.
29
On December 9, 2009, plaintiff saw Dr. Ellis for a follow up
on histiocytosis (Tr. at 312-313).
she had seen Dr. Ellis.
in her right hip.
Plaintiff complained of increased pain
Plaintiff said she had a general feeling of
“not feeling well.”
a daily basis.
It had been two years since
She was taking 8 to 10 hydrocodone pills on
Her medications included Clonidine (for
hypertension), Metformin (for diabetes), MS Contin (narcotic) and
Norco (narcotic).
Dr. Ellis noted that plaintiff had been
“without definitive evidence of disease recurrence” since she
finished chemotherapy in August 2005.
Plaintiff reported fatigue so severe that it interfered with
her activities of daily living.
had to stop working.”
“Her fatigue is so bad that she
She reported musculoskeletal pain mainly
in the right inguinal area10 and pain that radiates down her
right femur.
She reported a daily cough, abdominal pain/
discomfort, joint pain, and difficulty falling or staying asleep.
10
30
She denied dizziness.
On exam Dr. Ellis found no joint
tenderness, no muscle tenderness.
glucose was high at 212.
Her lab results showed her
She was assessed with history of
Langerhans histiocytosis, “severe, uncontrolled pain” for which
Dr. Ellis prescribed more narcotic pain medication, and “severe
hypertension” for which she was directed to follow up with her
primary care physician (plaintiff’s blood pressure was 202/101).
Dr. Ellis recommended that plaintiff have a skeletal survey and
CT scans.
Plaintiff did not mention vomiting at any time during
this visit.
The next day, on December 10, 2009, plaintiff had a bone
survey, which revealed no new lesions (Tr. at 371-372).
There
appeared to be cystic areas in plaintiff’s left hip but they were
of uncertain significance and unchanged since 2007.
CT scans of
plaintiff’s abdomen, pelvis, and chest revealed nodular densities
in both lungs (Tr. at 373-374).
They were “of uncertain
significance” and a follow up study in three to six months was
recommended “if clinically indicated” for further evaluation.
On January 2, 2010, plaintiff saw John Steinberg, M.D., at
the Ferrell-Duncan Clinic, to discuss a possible lung biopsy (Tr.
at 302-304).
Plaintiff weighed 142 pounds.
was 198/108.
Plaintiff complained of shortness of breath and a
wheezing cough.
She continued to smoke.
Her blood pressure
Plaintiff specifically
denied “unexpected weight gain or weight loss, chronic fatigue,”
31
nausea, gastrointestinal pain, change in bowel habits, myalgias
(muscle pain), new arthralgias (joint pain), muscle atrophy,
weakness or depression.
On exam Dr. Steinberg heard no wheezes,
rales or rhonchi, but “a few fine crackles on expiration
possibly.”
She was alert and oriented times three, moving all
four extremities, she had a normal gastrointestinal exam, and no
other abnormal findings.
On January 8, 2010, plaintiff saw John Wolfe, M.D., at the
Ferrell-Duncan Clinic, for a pulmonary consultation (Tr. at
367-369).
200/100.
Plaintiff weighed 145 pounds.
Plaintiff continued to smoke.
Her blood pressure was
“She has lost 60 pounds
and attributes that to 3 episodes of acute pancreatitis in the
past year.”
In fact, plaintiff had not had an episode of
pancreatitis for the past 18 months, and 18 months earlier she
weighed 147 pounds, only two pounds heavier than on this day.
Additionally, six days earlier when she saw Dr. Steinberg,
plaintiff had specifically denied “unexpected weight gain or
weight loss.”
During a lengthy review of systems, plaintiff did
not mention vomiting.
Dr. Wolfe heard no wheezes, no rales and
no rhonchi during an examination of plaintiff’s lungs.
32
A
spirometry test11 was normal.
Dr. Wolfe diagnosed plaintiff with
stable interstitial markings in both lungs, nodular densities in
both lungs, and chronic bronchitis.
He recommended that
plaintiff stop smoking, and he scheduled her for a lung biopsy.
On February 4, 2010, plaintiff saw Crystal Powell, a
physician’s assistant at PatientCare Family Clinic, to check her
blood pressure (Tr. at 285-286).
Plaintiff weighed 142 pounds,
and her blood pressure was 182/102 and then 174/98.
Plaintiff
had gone to the hospital that morning for pre-biopsy labs, and
her biopsy was actually cancelled because her blood pressure had
been 200/112 at the hospital.
“Pt admits that her BP has been
running high for at least the past year despite taking clonidine
daily; it is usually in the 160s/100s at home.
She denies any CP
[chest pain], dyspnea [shortness of breath], HAs [headaches],
palpitations, or vision changes.”
Plaintiff’s last lab work was
two years earlier, including an A1C test.
that she “quit smoking last week.”
11
33
Plaintiff reported
While here, pt mentions she is also having a problem
w/persistent emesis [vomiting]. She is throwing up at least
3x/day, often much more, for at least the past year. She
has lost about 30 pounds since it started. She denies any
hematemesis [vomiting blood], abdominal pain, or bloody or
black/tarry stools. No diarrhea or constipation. . . .
[S]he has had CT scans of abdomen and chest every 3 months
and per patient, she has never been told that anything
unusual has been found in the abdomen.
Lisinopril was added to treat plaintiff’s hypertension.
Fasting labs were drawn, and plaintiff was directed to keep a
blood pressure log and return in one week to see Dr. Landholt.
Plaintiff was told to take Prilosec (an over-the-counter
medication which decreases the amount of acid produced in the
stomach) and an upper GI was recommended.
Six months later, on August 9, 2010, plaintiff followed up
with Dr. Ellis (Tr. at 309-311).
Plaintiff complained of
increasing pain in her paraspinous area.12
She also reported
periods of chest pain and shortness of breath.
biopsies were negative.
However, lung
Dr. Ellis noted that plaintiff had not
had any recurrence of her histiocytosis since completing
chemotherapy in August 2005.
Plaintiff continued to smoke.
weighed 147.6 pounds and her blood pressure was 204/125.
Dr. Ellis heard no wheezes, rhonchi or rales.
She
On exam
Plaintiff had
tenderness to palpation of a right paraspinous area at about T9,
12
The muscles next to the spine are called the paraspinal
muscles. They support the spine and are the motor for movement
of the spine.
34
10 and 11.
She was alert and oriented times three, her judgment
was normal, her insight was normal.
She was assessed with severe
uncontrolled hypertension, pain “overall better control,” and
chest pressure.
She was referred to Dr. Ray Rosario for
evaluation of chest pain, her narcotic pain medicine was
increased, and an MRI of the spine and plain films of the right
hip were ordered.
That same day, Dr. Ellis completed a “Physician’s Statement
for Disabled License Plates/Placard” (Tr. at 269).
With two
checkmarks, Dr. Ellis indicated that plaintiff had a “Permanent
Disability” and that she “cannot ambulate or walk 50 feet without
stopping to rest due to a severe and disabling arthritic,
neurological, orthopedic condition or other severe and disabling
condition.”
The form included a restriction based on shortness
of breath, but that restriction was not checked by Dr. Ellis.
On August 18, 2010, plaintiff had an x-ray of her hip, which
revealed degenerative changes (Tr. at 359).
An MRI of her
thoracic spine showed mild degenerative changes without
significant narrowing of the spinal canal (Tr. at 363).
On September 2, 2010, plaintiff saw Raymond Rosario, M.D.,
at the Ferrell-Duncan Clinic, for a cardiology consultation (Tr.
at 296-300).
Plaintiff weighed 150 pounds, and her blood
pressure was 191/102.
Plaintiff described chest pain lasting
about one to two minutes and occurring about three times a week.
35
Plaintiff continued to smoke 3/4 pack of cigarettes per day.
used alcohol occasionally.
She
During a review of systems, plaintiff
reported shortness of breath on exertion, nausea, and insomnia.
She did not mention vomiting.
She denied palpitations, edema,
fainting, or wheezing.
On exam plaintiff was noted to be alert and oriented, her
behavior and affect were appropriate.
Her lungs were normal, her
abdomen was normal, she had normal gait and station with normal
muscle strength and tone.
Due to her family history of heart disease and her
significant history of tobacco abuse, plaintiff was started on
Coreg (a beta blocker used to treat hypertension), Lisinopril
(used to treat hypertension), and aspirin, a blood thinner.
Dr.
Rosario discussed plaintiff having an angiogram13 and she agreed
to proceed.
“Discussed health risks of smoking and benefits of
13
An angiogram is an imaging test that uses x-rays to view
your body’s blood vessels. Physicians often use this test to
study narrow, blocked, enlarged, or malformed arteries or veins
in many parts of your body, including your brain, heart, abdomen,
and legs. When the arteries are studied, the test is also called
an arteriogram. If the veins are studied, it is called a
venogram. To create the x-ray images, your physician will inject
a liquid, sometimes called dye, through a thin, flexible tube,
called a catheter. He threads the catheter into the desired
artery or vein from an access point. The access point is usually
in your groin but it can also be in your arm or, less commonly, a
blood vessel in another location. This dye, properly called
contrast, makes the blood flowing inside the blood vessels
visible on an x-ray. The contrast is later eliminated from your
body through your kidneys and your urine.
36
cessation.
Advised to quit.
Discussed risks and benefits of
medications to assist cessation. . . .
Discussed benefits of
heart healthy diet and regular exercise.
Discussed options to
maximize control of lipids [cholesterol].
Discussed importance
of optimal blood pressure control and methods to achieve.”
Plaintiff had a normal EKG and normal conduction.
On September 3, 2010, Stephen Kuehn, M.D., performed a
coronary angiography and left heart catheterization, which
revealed coronary disease (Tr. at 350-351).
Plaintiff had an
ejection fraction14 of 55% which was normal, systemic
hypertension, and intermediate coronary disease.
“The patient is
to be treated aggressively for primary prevention, including
cholesterol reduction and both blood pressure control.”
Dr.
Kuehn increased plaintiff’s Coreg and recommended she follow up
with her primary care doctor for consideration of additional
blood pressure medication.
14
Ejection fraction is a measurement of the percentage of
blood leaving your heart each time it contracts. During each
heartbeat cycle, the heart contracts and relaxes. When your
heart contracts, it ejects blood from the two pumping chambers
(ventricles). When your heart relaxes, the ventricles refill
with blood. No matter how forceful the contraction, it does not
empty all of the blood out of a ventricle. The term “ejection
fraction” refers to the percentage of blood that is pumped out of
a filled ventricle with each heartbeat. The left ventricle is
the heart’s main pumping chamber, so ejection fraction is usually
measured only in the left ventricle (LV). An LV ejection
fraction of 55 percent or higher is considered normal.
http://www.mayoclinic.org/ejection-fraction/expert-answers/faq-20
058286
37
Two months later, on November 9, 2010, plaintiff underwent a
CT scan of her chest, which revealed a few a few tiny nodules
described as stable and unchanged (Tr. at 348).
A previously
noted nodule had resolved.
Four months later, on March 14, 2011, plaintiff saw Dr.
Ellis for a follow up on Langerhans histiocytosis (Tr. at
306-308).
Dr. Ellis noted that there had been no evidence of
disease recurrence since August 2005.
I am seeing Brenda today for scheduled followup of her
Langerhans histiocytosis. In the interim overall she has
felt well. She was last scanned in November 2010, which
showed no new mass or lesion. Very stable and actually
improved overall. She denies any changes in her respiratory
status. No new shortness of breath or cough. She had no
new bone pains or adenopathies. She continues to have pain
in her hip and lower back which is stable and well
controlled with her use of morphine. She continues to
follow up with Dr. Landholt and Dr. Rosario for
hypertension. She reports a moderate amount of fatigue but
is stable and continues to stay slightly active as much as
possible. She has no new concerns at today’s visit.
Plaintiff did not mention vomiting.
Her blood pressure was 227/109.
She denied dizziness.
Her weight was 145.4 pounds.
exam she was described as “well nourished.”
wheezes, rales or rhonchi.
On
Dr. Ellis heard no
Her abdomen was nontender.
She had
some tenderness in the paraspinous area around T9, 10 and 11.
She was alert and oriented times three, her judgment was normal,
her insight was normal.
She was assessed with Langerhans
histiocytosis, severe uncontrolled hypertension, and “pain.
38
Overall better control.”
He made no changes to her treatment
regimen.
V.
FINDINGS OF THE ALJ
Administrative Law Judge Kenton Fulton entered his opinion
on June 17, 2011 (Tr. at 10-17).
Plaintiff’s last insured date
was December 31, 2013 (Tr. at 12).
Step one.
Plaintiff has not engaged in substantial gainful
activity since her alleged onset date (Tr. at 12).
Step two.
Plaintiff has the following severe impairments:
type II diabetes mellitus, hypertension, degenerative joint
disease, and Langerhans histiocytosis (Tr. at 12).
Step three.
Plaintiff’s impairments do not meet or equal a
listed impairment (Tr. at 12).
Step four.
Plaintiff retains the residual functional
capacity to perform light work.
She can lift and carry 10 pounds
frequently and 20 pounds occasionally, and she needs the ability
to alternate sitting, standing and walking every 30 to 60 minutes
throughout the workday (Tr. at 12-13).
Plaintiff’s subjective
allegations of disabling symptoms are not entirely credible.
Plaintiff is capable of performing her past relevant work as an
administrative clerk (Tr. at 16).
39
VI.
CONSULTATIVE EXAM
Plaintiff argues that the ALJ erred in refusing to order a
consultative exam with memory testing.
“Plaintiff testified at
[the] hearing that her medications make her tired and cause her
to experience short-term memory problems.” (plaintiff’s brief at
page 9).
Plaintiff’s argument that the ALJ ignored medical
records “showing prescriptions for Clonidine which is used to
treat both high blood pressure and attention deficit, anxiety,
and pain disorders” is unpersuasive.
The evidence is clear that
plaintiff was treated for severe uncontrolled hypertension, not
for attention deficit or anxiety.
The medical records show
absolutely no basis for a mental health evaluation.
The regulations . . . do not require the Secretary or the
ALJ to order a consultative evaluation of every alleged
impairment. They simply grant the ALJ the authority to do
so if the existing medical sources do not contain sufficient
evidence to make a determination. 20 C.F.R. § 416.917(a);
Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986) (per
curiam); Landsaw v. Secretary of Health and Human Services,
803 F.2d 211, 214 (6th Cir. 1986). Thus, the issue is
whether the record contained sufficient medical evidence for
the ALJ to make an informed decision as to [the claimant’s]
alleged mental impairment.
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
In this case, the only evidence in the record suggesting a
mental impairment was plaintiff’s non-credible administrative
hearing testimony.
On the other hand, there is sufficient
evidence in the record of no severe mental impairment for the ALJ
to have made an informed decision in that regard.
40
Plaintiff was regularly using narcotic pain medication and
hypertension medication since as far back as 2005, years before
her alleged onset date, and was able to work at the substantial
gainful activity level despite any allegations of memory or
concentration impairment as a side effect of medication.
In September 2007 while at the hospital plaintiff denied
depression, and on exam she was observed to be alert and oriented
times three with normal mood and affect.
In December 2007 Dr.
Ellis observed that plaintiff was pleasant, alert and oriented
times three.
On February 28, 2008, at the hospital plaintiff’s
mood and affect were observed to be normal.
mood, anxious mood, or problems sleeping.
She denied depressed
In July 2008, during
plaintiff’s final hospitalization, her mood and affect were
observed to be normal, she was alert and oriented times three.
In June 2009 -- on plaintiff’s first doctor visit after her
alleged onset date -- she was observed to be pleasant, alert and
oriented times three.
In September 2009 during a consultative
exam in connection with her application for disability benefits,
plaintiff did not report any mental symptoms at all.
Her affect
was normal, her personal hygiene was good, she was able to follow
simple instructions, and her communication skills were decent.
In January 2010, plaintiff denied depression, and she was
observed by Dr. Steinberg to be alert and oriented times three.
In August 2010, Dr. Ellis observed that plaintiff was alert and
41
oriented times three, her judgment was normal, her insight was
normal.
In September 2010, Dr. Rosario observed that plaintiff
was alert and oriented, her behavior and affect were appropriate.
In March 2011, plaintiff was observed to be alert and oriented
times three, her judgment was normal, her insight was normal.
Plaintiff never complained to any doctor over this sevenyear period of any problems with any mental symptoms.
The ALJ
had sufficient medical evidence to make an informed decision
regarding the existence of any mental impairment.
No
consultative examination was warranted.
VII. PLAINTIFF’S RESIDUAL FUNCTIONAL CAPACITY
Plaintiff argues that the ALJ erred in finding that
plaintiff can perform a job with a sit/stand option every 30 to
60 minutes.
“The ALJ has no medical support for finding that
Sprague is capable of performing work if she is allowed to
alternate between sitting and standing every 30-60 minutes.
Such
a finding cannot be supported by substantial evidence.”
(plaintiff’s brief at page 12).
Plaintiff’s argument is without
merit.
A claimant’s residual functional capacity is defined as the
most that a claimant can still do despite his physical or mental
limitations. 20 C.F.R. § 404.1545(a); Leckenby v. Astrue, 487
F.3d 626, 631 n.5 (8th Cir. 2007).
When determining a claimant’s
residual functional capacity, an ALJ should consider all relevant
42
evidence, including medical records, observations from treating
physicians, and the claimant’s subjective statements about his
limitations.
Cir. 2004).
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
The ALJ’s residual functional capacity finding must
be supported by some medical evidence.
Dykes v. Apfel, 223 F.3d
865, 867 (8th Cir. 2000) (finding that the ALJ’s finding was
supported by medical evidence because the ALJ relied on the
claimant’s treatment records).
The burden of proving disability
based on the residual functional capacity remains on the
claimant.
Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008);
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
Here the record supports a finding that the ALJ actually
gave plaintiff the benefit of the doubt in finding that she would
need a sit/stand option at all.
ambulation.
In August 2005, she had good
In January 2007 despite complaining of leg pain,
plaintiff was able to go up and down stairs, she had full range
of motion and only “mild discomfort” with seated straight leg
raising on the left (straight leg raising was later found to be
normal).
She had only mild arthritic changes and physical
therapy was recommended.
In September 2007 she reported pain in
her back and hip, but she was still able to work full time.
In
December 2007 she reported some aching in her right femur but her
physical exam was normal.
In July 2008 plaintiff had no
weakness, no range of motion restriction, and no tenderness in
43
any joint.
In June 2009 (after plaintiff’s alleged onset date),
plaintiff reported worsening of bone pain in her back, pelvis and
right arm; however a bone scan showed only a stable right leg
where she previously had surgery, and some degenerative changes
in her spine and pelvis.
The remainder of her skeleton was
unremarkable and stable.
An MRI of the right hip showed only
mild degenerative changes.
In September 2009, plaintiff told Dr.
Zeimet that she can sit, stand or walk for about an hour at a
time each.
She did not need any assistive device.
Plaintiff was
able to get out of a chair and on and off the exam table without
difficulty.
Her range of motion was entirely normal.
heel-to-toe walk, walk on heels and toes, and squat.
leg raising was normal.
She could
Straight
Based on all of that Dr. Zeimet found
that plaintiff “may need to alternate positions to alleviate pain
periodically throughout the day.”
In December 2009, plaintiff reported pelvic and hip pain to
Dr. Ellis who found no joint tenderness and no muscle tenderness.
He recommended a bone survey which was unchanged since 2007 when
plaintiff was working full time.
In January 2010, in connection
with a lung biopsy, plaintiff denied muscle pain or new joint
pain.
She denied muscle atrophy or weakness.
findings were denied.
On exam abnormal
In August 2010, plaintiff reported
increasing pain in her back; however, Dr. Ells assessed “pain,
overall better control”.
He ordered a hip x-ray which showed
44
only degenerative changes, and an MRI of her thoracic spine which
showed only mild degenerative changes.
In September 2010, Dr.
Rosario observed that plaintiff’s gait was normal, she had normal
muscle strength and tone.
He recommended regular exercise.
In
March 2011, plaintiff told Dr. Ellis that overall she was feeling
well.
She had no new bone pains or adenopathies.
She continued
to have pain in her hip and lower back which was noted to be
stable and well controlled with her use of medication.
Furthermore, in her Function Report plaintiff said she reads
for an hour at a time and then gets up and moves around to stop
the cramping.
Because the medical records show that plaintiff had adequate
control of her pain with medication; her MRIs, x-rays, bone
scans, and CT scans all reflected mild findings; the test results
were unchanged from several years before plaintiff’s alleged
onset date; she never voiced a difficulty with sitting or
standing to any doctor; no one ever recommended she limit her
sitting, standing or walking other than Dr. Zeimet who suggested
she may need to have a sit-stand option; plaintiff herself told
Dr. Zeimet that she could sit, stand or walk for an hour at a
time each; and plaintiff stated in her Function Report that she
reads for an hour at a time before needing to get up to move
around, I find that the ALJ did not err in finding that plaintiff
would need a job that would permit her to change her position
45
every 30 to 60 minutes.
Plaintiff also argues that the ALJ erred in discounting the
opinion of Dr. Ellis, plaintiff’s treating physician.
Plaintiff
fails to point to what opinion she thinks the ALJ should have
given more weight; however, because none of Dr. Ellis’s records
show any limitation other than his completion of a form for a
disability placard, I will assume this is the opinion to which
plaintiff is referring.
Checking a box on a form to get a
disabled license plate is not substantial evidence of a physical
limitation, especially when the doctor who completed the form
never mentioned any of those limitations in any of his records,
either as complaints by his patient or as findings by him or any
specialist to whom he referred the patient.
Plaintiff’s argument
is completely without merit.
Next plaintiff argues that the ALJ erred in failing to
accommodate plaintiff’s frequent vomiting when assessing her
residual functional capacity.
Plaintiff’s allegations of
constant vomiting are not credible.
On September 12, 2007, plaintiff reported vomiting for the
past 2 to 3 days.
She was hospitalized with pancreatitis.
On
February 28, 2008, she reported vomiting that started the day
before.
She was hospitalized with pancreatitis.
On March 8,
2008, plaintiff saw Dr. Landholt and denied vomiting.
On July 2,
2008, plaintiff reported vomiting for the past week and a half.
46
She was hospitalized with pancreatitis.
On September 19, 2009,
plaintiff told Dr. Zeimet -- in connection with her disability
case -- that she “vomited a lot”, at least two times a day, and
that the reason she stopped working was due to frequent vomiting.
Less than three months later, she saw Dr. Ellis for treatment and
did not mention vomiting.
She saw Dr. Wolfe for treatment on
January 8, 2010, and did not mention vomiting.
She saw
physician’s assistant Crystal Powell on February 4, 2010 (less
than a month later) and reported vomiting at least three times a
day, often much more.
Ms. Powell recommended an upper GI;
however, there are no records of an upper GI and in fact
plaintiff had no further medical records for the next six months.
On August 9, 2010, plaintiff saw Dr. Ellis for treatment and did
not mention vomiting.
On September 2, 2010, plaintiff saw Dr.
Rosario for treatment and did not mention vomiting.
On March 14,
2011, plaintiff saw Dr. Ellis for treatment and did not mention
vomiting.
Dr. Ellis observed that plaintiff was “well
nourished.”
Comparing those records to her administrative paperwork, one
finds extreme exaggeration.
On August 14, 2009, in a Function
Report plaintiff said she can only eat soup to keep from vomiting
and that she wakes up several times a night due to vomiting.
In
an undated Disability Report Appeal, plaintiff reported vomiting
“all day long.”
In her testimony on April 6, 2011, she said she
47
vomits at least four times a day and she quit working because she
vomits all the time.
Yet three weeks before the hearing, she had
seen Dr. Ellis for treatment and had not mentioned vomiting, and
she was observed to be well nourished.
Plaintiff attempts to bolster her allegations of frequent
vomiting by claiming that her weight loss was attributable to her
vomiting.
There is no merit to this contention.
A record of
plaintiff’s weight follows:
#
04/18/2005 - 177 pounds
#
05/09/2005 - 179 pounds
#
08/12/2005 - 173 pounds
#
11/03/2005 - 177 pounds
#
02/06/2006 - 181 pounds
FIRST HOSPITALIZATION FOR PANCREATITIS - SEPTEMBER 2007
#
12/20/2007 - 178 pounds
SECOND HOSPITALIZATION FOR PANCREATITIS - FEBRUARY 2008
#
03/12/2008 - 163 pounds
#
04/04/2008 - 169 pounds
THIRD HOSPITALIZATION FOR PANCREATITIS - JULY 2008
#
07/10/2008 - 147 pounds
#
06/30/2009 - 138 pounds
#
08/03/2009 - plaintiff alleged in a disability report that
she weighed 118 pounds
#
09/19/2009 - 133 pounds
#
01/02/2010 - 142 pounds
#
01/08/2010 - 145 pounds
#
02/04/2010 - 142 pounds
#
08/09/2010 - 147.6 pounds
#
09/02/2010 - 150 pounds
48
#
03/14/2011 - 145.4 pounds
#
04/06/2011 - plaintiff alleged at the hearing that she
weighed 132 pounds
The medical records clearly show that plaintiff’s weight
loss occurred after each hospitalization for pancreatitis, during
which she received no oral nutrition or hydration for multiple
days.
The medical records also clearly show that plaintiff’s
weight continued to go up gradually during the time she alleges
she was vomiting multiple times every day and every night.
Furthermore, in a Disability Report plaintiff claimed that
her weight loss was due to loss of appetite, not vomiting.
On
January 2, 2010, Dr. Steinberg noted that plaintiff specifically
denied unintentional weight loss.
There is no credible support in the record for plaintiff’s
assertions.
I find that the ALJ’s residual functional capacity
assessment is supported by the record.
VIII. CONCLUSIONS
Based on all of the above, I find that the substantial
evidence in the record as a whole supports the ALJ’s finding that
plaintiff is not disabled.
Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is
denied.
It is further
49
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
February 4, 2014
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