Kelly v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Joel C. Hoppe on 3/30/17. (kld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
Civil Action No. 5:15-cv-00075
Joel C. Hoppe
United States Magistrate Judge
Plaintiff Willow Kelly asks this Court to review the Commissioner of Social Security’s
(“Commissioner”) final decision denying her application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401–434. The case is before me
by the parties’ consent under 28 U.S.C. § 636(c)(1). Having considered the administrative
record, the parties’ briefs and oral arguments, and the applicable law, I find that substantial
evidence supports the Commissioner’s decision.
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner’s final
decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited—it may not
“reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for
that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court
asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and
whether substantial evidence supports the ALJ’s factual findings. Meyer v. Astrue, 662 F.3d 700,
704 (4th Cir. 2011).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is
“more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount
of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes
into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 487–89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir.
1984). Ultimately, this Court must affirm the ALJ’s factual findings if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
A person is “disabled” if he or she is unable to engage in “any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). Social Security ALJs
follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in
sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an
impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to
his or her past relevant work based on his or her residual functional capacity; and, if not (5)
whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460–62
(1983); 20 C.F.R. § 404.1520(a)(4). The applicant bears the burden of proof at steps one through
four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the
applicant is not disabled. See id.
II. Procedural History
Kelly filed for DIB on October 20, 2012, alleging disability beginning on August 1,
2006, at which time she was forty-three years old, caused by recurrence of chronic Lyme disease
and co-infections; debilitating fatigue, exhaustion, and “air hunger”; joint and nerve pain in hips,
hands, and feet (severe); stabbing pains and facial tic; insomnia and drenching night sweats;
restless leg syndrome; depression and anxiety; dizziness, lightheadedness, and weakness; nausea,
vomiting, acid reflux, and appetite and weight loss; blurred vision and large floater; and
involuntary eye and head movements. Administrative Record (“R.”) 89–90, ECF No. 12.
Disability Determination Services (“DDS”), the state agency, denied her claim at the initial, R.
89–103, and reconsideration, R. 105–17, stages. On March 27, 2015, Kelly appeared with
counsel at an administrative hearing before ALJ H. Munday and testified about her impairments,
past work, and daily activities. R. 42–88. A vocational expert also appeared and testified about
Kelly’s past work and her ability to do other jobs in the national economy. R. 81–87.
On April 23, 2015, ALJ Munday issued a written decision denying Kelly’s DIB
application. R. 19–32. The ALJ determined that Kelly met the insured status requirements under
DIB through December 31, 2011, her date last insured (“DLI”). R. 21. ALJ Munday focused her
inquiry on whether Kelly was disabled between the alleged onset date and the DLI. R. 21, 32.
She determined that Kelly had severe impairments of Lyme disease, osteoarthritis, affective
disorder, and anxiety disorder, but found all of her other conditions, including her history of
psoriasis and her throat issues, to be non-severe. R. 21–22. She found that none of these
impairments met or medically equaled the severity of one of the listed impairments. R. 22–23.
As to Kelly’s residual functional capacity (“RFC”), 1 ALJ Munday determined that she could
perform light work 2 except that she required a sit/stand option every thirty minutes, if needed,
while on task. R. 24. Additionally, she could frequently balance and stoop; occasionally kneel,
crouch, crawl, and climb; frequently finger; occasionally be exposed to vibrations and hazardous
conditions such as unprotected heights and moving machinery; frequently interact with the
general public and supervisors; and perform simple, routine tasks. Id. Kelly could not perform
any of her past relevant work. R. 31. She could, however, perform other light jobs, including
non-postal mail clerk, marker, and counter clerk, that existed in significant numbers in the
national economy. R. 31–32. Therefore, ALJ Munday concluded that Kelly was not disabled
from her alleged onset date of August 1, 2006, through her DLI of December 31, 2011. R. 32.
The Appeals Council denied Kelly’s request for review, R. 1–3, and this appeal followed.
Kelly initially asserted that ALJ Munday inadequately explained the basis for discounting
her credibility concerning the description of her symptoms, improperly relied on the six-year gap
between the alleged onset date and filing for DIB to question her credibility, and erroneously
disregarded her testimony that she pursued alternative medical care during much of the relevant
period. Pl. Br. 5–22, ECF No. 15. At oral argument before this Court, however, she withdrew
these arguments and opted to proceed on the sole basis that the ALJ erred by not considering the
medical evidence in the record from after her DLI, which she contends shows she suffered from
A claimant’s RFC is the most he or she can do on a regular and continuing basis despite his or her
impairments. 20 C.F.R. § 404.1545(a); SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).
“Light” work involves lifting no more than twenty pounds at a time, but frequently lifting objects
weighing ten pounds. 20 C.F.R. § 404.1567(b). A person who can meet these lifting requirements can
perform light work only if she also can “do a good deal of walking or standing, or do some pushing and
pulling of arm or leg controls while sitting.” Hays v. Sullivan, 907 F.2d 1453, 1455 n.1 (4th Cir. 1999).
disabling symptoms of Lyme disease as of November 2011. Pl. Suppl. Br. 1, ECF No. 24. For
the following reasons, I find that Kelly’s argument is not persuasive.
Kelly’s Submissions and Testimony
During the administrative hearing, Kelly testified about her impairments and functioning
during the relevant period. After Kelly underwent antibiotic treatment for Lyme disease in 2000
in California, a doctor told her she would never fully recover. R. 56. Kelly subsequently moved
to Virginia and worked a variety of jobs. R. 46–50. When she could no longer work, she became
overwhelmed with depression. R. 47–48. Near the end of her employment with an attorney, she
began seeking out alternative medicine for her ailments, trying tinctures and herbs because the
antibiotics were not working. R. 58–59. She also tried chiropractic treatment, holistic medicine,
massage, diet changes, over-the-counter medication, ice and heat, and baths. R. 59–60.
Throughout this time, she had pain in her hands, legs, hips, and feet, but not until 2011 when she
started to experience sharp joint and nerve pain did she seek conventional medical treatment in
the form of narcotic therapy, R. 59, 61–62. Kelly also received a steroid injection in September
2011, which she described as a “really weird experience,” as she had a bad reaction to the shot,
including inflammation and searing pain down her leg. R. 74.
As to her activities during this time, Kelly would get out of bed and get dressed, but then
would lie down for about an hour. R. 62. On a regular day, she would lie down three more times,
but on a bad day she would lie down once or twice and not be able to get back up. R. 63. She
also worked as a workshop facilitator, managing the events and teaching emotional healing all
over the country, but mostly on the West Coast, for about eight to nine weeks per year. R. 50–51.
Although these trips involved extensive travel, Kelly managed by flying out early to give herself
a few days to recover before starting; when returning home, however, she needed anywhere from
one to three weeks to recover fully, depending on the length of the trip. R. 60. She also used a lot
of pain medication, stretching, and an upright sleeper to make it through the flights. R. 78–79.
She last conducted workshops in 2009, although she volunteered for one in 2014 and had to
direct everything from bed. R. 67–68. Kelly also infrequently performed as a singer as a hobby
despite having performance anxiety, but stopped in 2009. R. 52, 68–69. She spent most of her
time “horizontal” and never did anything as a single individual, always requiring a partner or
teammate to help her if needed. R. 71. She drove about three to four times per week to pick up
pet supplies and attempt to jumpstart her and her husband’s businesses, but had not done a big
road trip in a long time. R. 78. Her condition had worsened since 2006, and she started using a
cane in late 2011. R. 73.
Kelly also completed one function report as part of her DIB application. R. 209–16. She
again described a very minimal daily routine involving eating enough to take her medicine and
doing a few essential household tasks if she felt up to it. R. 209. She struggled with personal care
and did not get dressed unless she planned to leave the house, R. 210, which she did only to go
out for medical appointments, R. 212. She no longer prepared meals except to get herself a small
snack and did little to no house or yard work. R. 211. She had no hobbies, interacted with others
when they came over, and communicated via email. R. 213. Her conditions affected her ability to
lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, see, remember things, complete tasks,
concentrate, follow instructions, and use her hands. R. 214. She could walk only as far as across
the street before needing to rest, could pay attention for twenty to thirty minutes, and did not
finish what she started. Id. She used a cane, although it was not prescribed by a doctor. R. 215.
Her husband completed a third party function report in which he confirmed her claims,
particularly her minimal daily routine and that he takes care of most things around the house. R.
Although Kelly withdrew her challenge to ALJ Munday’s credibility analysis, the ALJ’s
reasoning on this issue provides necessary context for Kelly’s sole remaining argument. The
regulations set out a two-step process for evaluating a claimant’s allegation that she is disabled
by symptoms, such as pain, caused by a medically determinable impairment. Fisher v. Barnhart,
181 F. App’x 359, 363 (4th Cir. 2006) (citing 20 C.F.R. § 404.1529). The ALJ must first
determine whether objective medical evidence 3 shows that the claimant has a medically
determinable impairment that could reasonably be expected to cause the kind and degree of pain
alleged. 20 C.F.R. § 404.1529(a)–(b); see also Craig, 76 F.3d at 594. If the claimant clears this
threshold, then the ALJ must evaluate the intensity and persistence of the claimant’s pain to
determine the extent to which it affects her physical or mental ability to work. SSR 16-3p, 2016
WL 1119029, at *4 (Mar. 16, 2016); see also Craig, 76 F.3d at 595.
The ALJ cannot reject the claimant’s subjective description of her pain “solely because
the available objective medical evidence does not substantiate” that description. 20 C.F.R.
§ 404.1529(c)(2). Nonetheless, a claimant’s allegations of pain “need not be accepted to the
extent they are inconsistent with the available evidence, including objective evidence of the
underlying impairment, and the extent to which that impairment can reasonably be expected to
Objective medical evidence is any “anatomical, physiological, or psychological abnormalities” that can
be observed and medically evaluated apart from the claimant’s statements and “anatomical, physiological,
or psychological phenomena [that] can be shown by the use of medically acceptable diagnostic
techniques.” 20 C.F.R. § 404.1528(b)–(c). “Symptoms” are the claimant’s description of his or her
impairment. Id. § 404.1528(a).
cause the pain the claimant alleges she suffers.” Craig, 76 F.3d at 595. 4 The ALJ must consider
all the evidence in the record, including the claimant’s other statements, her daily activities, her
treatment history, any medical-source statements, and the objective medical evidence, id. (citing
20 C.F.R. § 404.1529(c), and must give specific reasons, supported by relevant evidence in the
record, for the weight assigned to the claimant’s statements, Eggleston v. Colvin, No. 4:12cv43,
2013 WL 5348274, at *4 (W.D. Va. Sept. 23, 2013).
ALJ Munday explained why she did not find Kelly’s allegations credible, a conclusion
which Kelly conceded at oral argument, at least as to the evidence preceding her alleged
exacerbation of Lyme disease symptoms in late 2011. Despite finding that Kelly’s medically
determinable impairments could cause her alleged symptoms, the ALJ determined that her
credibility as to the severity of her symptoms was undermined by limited findings on physical
and mental examinations; generally routine, conservative, and infrequent treatment; her failure to
take medication as directed; a lack of mental health complaints and treatment; the length of time
between alleging disability and filing an application; and her inconsistent activities and
statements. R. 24–30.
Substantial evidence supports the ALJ’s factual findings and reasoning. The ALJ noted
that despite seeing a chiropractor throughout the relevant period, Kelly rarely complained of
Lyme disease. R. 29; see also R. 361–62, 415–17. She was diagnosed with osteoarthritis in May
The Social Security Administration now cautions that the subjective prong of this analysis should not be
approached with an undue focus on the claimant’s “credibility.” See SSR 16-3p, 2016 WL 1119029, at
*1. The scope of this inquiry should be limited to those matters concerning the claimant’s symptoms,
rather than other factors that might otherwise be probative of the claimant’s overall honesty. Id. at *10.
“In evaluating an individual’s symptoms, [ALJs] will not assess an individual’s overall character or
truthfulness in the manner typically used during an adversarial court litigation. The focus of the
evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful
person.” Id. Statements that are internally inconsistent or that are inconsistent with the other evidence of
record, however, may lead the ALJ to “determine that the individual’s symptoms are less likely to reduce
his or her capacities to perform work-related activities.” Id. at *7.
2008, R. 29 (citing R. 377), but did not seek treatment again until December 2009, 5 at which
time she had 5/5 strength and mild situational anxiety, id. (citing R. 513–14). She had no
treatment in 2010 and reported left foot pain in April 2011, id. (citing R. 510–11), neck and left
shoulder pain in July 2011, id. (citing R. 362), and right hip and knee pain in September 2011, at
which time she had full strength and sensation and no instability, id. (citing R. 366–68). Kelly
did have some tissue swelling in November 2011, but it resolved by December 2011, and she did
not take nonsteroidal anti-inflammatory medication as recommended. Id. (citing R. 369–72).
Kelly did not see a mental health professional until August 2011, and except for having
depressed mood and affect, findings on examination were normal. Id. (citing R. 625–27).
ALJ Munday also explained that Kelly provided conflicting statements regarding her
conditions, and she engaged in extensive activities that were inconsistent with her allegations of
complete disability. R. 29–30. Kelly claims that she spent most of her time during the relevant
period “horizontal.” See supra Pt. III.A. The ALJ, however, cited conduct from both during and
shortly after the relevant period that was inconsistent with her reports of debilitating symptoms.
R. 29–30. For example, Kelly did a lot of singing in August 2007, R. 29 (citing R. 378), and
reported working as a singer/musician and speaking as a consultant, which increased demands on
her vocal cords, in September 2007, id. (citing R. 575). She traveled in July 2008, id. (citing R.
362), and flew to Europe in August 2008, id. (citing R. 455). In December 2009, she was
employed as a performance artist and had been conducting workshops and speaking
engagements concerning the environmental green movement. Id. (citing R. 513–14). She
reported playing music and teaching personal development in February 2011, R. 29–30 (citing R.
354), and did public speaking and held workshops in April 2011, R. 30 (citing R. 510). After her
In making this finding, ALJ Munday overlooks two of Kelly’s visits to her chiropractor in May and
November 2009. See R. 414, 421. This error does not significantly detract from the ALJ’s credibility
assessment because these visits revealed normal findings.
DLI in April 2012, she continued to exercise regularly, do volunteer work, and engaged in public
speaking in workshops. Id. (citing R. 508). She traveled to Germany for a month in June 2012,
id. (citing R. 599), and reported in August 2012 that she would be traveling for six weeks, id.
(citing R. 597). In March 2013, she traveled to Australia to teach at a conference, id. (citing R.
754), and offered conflicting accounts of her trip, id. (compare R. 758 (reporting to medical
providers that her travel was great), with R. 724 (explaining to her attorney that she required
extensive accommodations for the entire trip)).
Additional evidence in the record also supports the ALJ’s findings. Shortly after her DLI,
Kelly reported traveling significant distances for treatment, initially seeing a Lyme disease
doctor in Maryland before finding one closer to home, R. 758, 784, and treating with a
naturopath in Wisconsin, R. 589. In October 2012, she also stated that she had received multiple
tick bites over the last three years while going camping in Virginia. R. 671. Simply put, Kelly’s
extensive activities undercut her claims regarding her functioning during the relevant period. 6
Therefore, the ALJ properly considered these discrepancies in evaluating Kelly’s credibility, and
his reasons for questioning the severity of her reported symptoms are supported by substantial
evidence. See Bishop v. Comm’r of Soc. Sec., 583 F. App’x 65, 67 (4th Cir. 2014) (finding no
error where “the ALJ cited specific contradictory testimony and evidence in analyzing Bishop’s
credibility and averred that the entire record had been reviewed”); Sowers v. Colvin, No.
4:12cv29, 2013 WL 3879682, at *4 (W.D. Va. July 26, 2013) (finding that the claimant’s
Kelly asserts that many of her statements to her physicians about her activities were exaggerations or
puffery. Pl. Br. 8–10. While this assertion may be accurate, the record does not confirm it. Moreover, the
ALJ provided an adequate explanation for crediting Kelly’s contemporaneous statements to her
physicians, which described significant activities, over her claims at the hearing of greater functional
inconsistent statements about his symptoms provided substantial support for ALJ’s adverse
Consideration of Evidence After the DLI
Kelly argues that ALJ Munday erred by not considering the medical evidence from after
her DLI, as she asserts that her Lyme disease manifested again in November 2011—one month
before her DLI—causing disabling symptoms. To qualify for DIB, a claimant must prove that
she was disabled before her DLI. Bird v. Comm’r Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir.
2012); Johnson v. Barnhart, 434 F.3d 650, 655–56 (4th Cir. 2005). In doing so, a claimant may
rely on medical evidence generated after the DLI. See Bird, 699 F.3d at 340 (“Medical
evaluations made after a claimant’s insured status has expired are not automatically barred from
consideration and may be relevant to prove a disability arising before the claimant’s DLI.”).
Post-DLI evidence is generally admissible “in such instances in which that evidence permits an
inference of linkage with the claimant’s pre-DLI condition.” Id. at 341; cf. Potter v. Sec’y of
Health and Human Servs., 905 F.2d 1346, 1348 (10th Cir. 1990) (per curiam) (citing Millner v.
Schweiker, 725 F.2d 243, 246 (4th Cir. 1984)) (“It is true that a treating physician may provide a
retrospective diagnosis of a claimant’s condition.”). That said, the relevant inquiry is “whether
the claimant was actually disabled prior to the expiration of her insured status,” and “[a]
retrospective diagnosis without evidence of actual disability is insufficient.” Potter, 905 F.2d at
1348–49 (citations omitted). Moreover, it is the role of the ALJ, and not the courts, “to weigh the
medical evidence of record and determine if [it] support[s] a finding of disability during the
relevant time period.” Whitlock v. Sullivan, No. 89-00226-R, 1990 WL 357276, at *1 (E.D. Va.
Jan. 16, 1990).
Shortly before her DLI, 7 Kelly presented to Gregory Hardigree, M.D., on September 30,
2011, with a right hip problem, which occurred without any known injury. R. 366. She also
experienced some right knee pain. Id. Her symptoms were moderate in severity and worsening,
exacerbated by weight bearing, and relieved by nonsteroidal anti-inflammatory drugs. Id. Dr.
Hardigree assessed hip bursitis and administered a steroid injection in her hip. R. 367–68. Kelly
returned to Dr. Hardigree on November 14 and reported that the injection did not help. R. 369.
She also complained of right thigh pain in addition to her hip and knee pain during this visit. Id.
Dr. Hardigree did not perform a physical exam and assessed hip and knee pain. R. 369–70. He
also encouraged Kelly to take either Ibuprofen or Aleve regularly. R. 370. During a follow-up on
December 5, Dr. Hardigree noted that Kelly had not been taking the anti-inflammatories as
suggested. R. 372. As for her symptoms, the knot in the mid-right thigh had resolved, she had no
swelling or tenderness at the knee, and lab work showed normal complete blood count and
differential, but she had some swelling and stiffness in her fingers, persisting hip pain to
palpation, and palpable subluxation of the tendons posterior to the tip of the greater trochanter.
Id. Dr. Hardigree again recommended generic Aleve at the lowest effective dose and remarked
that he would recheck lab work in a few weeks and consider referring Kelly to a rheumatologist
if her symptoms persisted. Id. There is no evidence Kelly visited Dr. Hardigree again.
Kelly asserts that her Lyme disease never fully resolved after successful treatment with a
PICC line in 2003, and that it gradually re-emerged in 2011, ultimately manifesting after the
In her opening brief, Kelly attributes the lack of treatment records prior to September 2011 to her
religious belief that she should not pursue traditional medicine to treat her impairments and symptoms. Pl.
Br. 11, 16–17. To support this argument, Kelly cites a single, mostly illegible, treatment note. R. 866. A
clearer version of this treatment note only indicates that she had attended “Witch Camps” in the past, but
does not otherwise expound on either her religious beliefs or their influence on her treatment. See R. 691.
As the claimant bears the burden of proving disability, this single note is no substitute for medical
evidence of impairments causing functional limitation. Moreover, Kelly’s argument is contradicted by her
history of treatment with a chiropractor, R. 403–47, an internal medicine specialist, R.376–78, and an
OB-GYN, R. 510–21, prior to September 2011.
unsuccessful hip injection in September 2011. Pl. Suppl. Br. 2–4. She claims the return of her
Lyme disease became evident when she presented to Dr. Hardigree in November 2011 with
rapidly changing symptoms and reported that the injection did not help. She identifies his desire
to “check the markers of systemic inflammation” and order serological testing, see R. 370, as
evidence that her Lyme disease had recurred at that time. Thus, she contends that the ALJ erred
by disregarding treatment notes in the record from 2012 and later, Pl. Suppl. Br. 4, and that
remand is necessary to determine whether she is entitled to a closed period of disability
beginning in November 2011. 8
Here, however, the ALJ could reasonably determine that the medical evidence did not
show that Kelly’s Lyme disease returned in November 2011. She argues that her “perception of
returned symptoms [in 2011] is sufficient to place the return of her infection within the window
of coverage,” because “[m]ore than even the medical professionals, she understood what was
happening to her.” Id. at 4, 6. Kelly’s self-diagnosis, without more, falters in light of ALJ
Munday’s credibility analysis, and it does not overcome the substantial evidence, in the form of
her treating physicians’ notes, that otherwise supports the ALJ’s opinion. Cf. Bowen v. Yuckert,
482 U.S. 137, 146 (1987) (explaining that “[t]he Act provides that ‘[a]n individual shall not be
considered to be under a disability unless he furnishes such medical and other evidence of the
existence thereof’” (quoting 42 U.S.C. § 423(d)(5)(A))); Livesay v. Apfel, 52 F. Supp. 2d 623,
626–27 (E.D. Va. 1998) (holding that the claimant did not meet his burden of proving disability
prior to his DLI because the submitted medical evidence—although possibly supportive of his
Kelly proffers that she returned to part-time work in 2016, and thus is seeking only a closed period of
disability. Pl. Suppl. Br. 12. Because Kelly has not met her burden of demonstrating that she was disabled
prior to her DLI, I do not discuss whether a closed period of disability is warranted.
subjective claim that he suffered from a “silent” heart attack in the past—did not establish that
his condition arose or caused disability before the DLI).
The ALJ thoroughly recited the medical evidence through April 23, 2012, almost four
months after Kelly’s DLI, none of which showed that her Lyme disease had returned. See R. 26–
28. Kelly did not have a positive test for Lyme disease until late 2012. She had four serological
tests—in December 2011, R. 372, April 2012, R. 381, 386, May 2012, R. 630–34, and August
2012, R. 556–59, 564—that were all negative for or did not reveal a recurrence of Lyme disease.
A positive test was obtained on October 5, 2012, R. 647, 995. The ALJ also noted that Kelly
asked Dr. Hardigree in November 2011 whether her symptoms could be related to Lyme disease,
but that Dr. Hardigree opined they appeared extra-articular. 9 R. 27–28. Kelly argues that without
additional explanation from Dr. Hardigree, the ALJ could not properly rely on his medical
conclusion. Pl. Suppl. Br. 4–5. I must disagree. Dr. Hardigree’s conclusion comes at the end of a
paragraph in which he recites the objective evidence of her symptoms, many of which had
already resolved, R. 370, and Dr. Hardigree conducted a physical examination during Kelly’s
visit in September 2011, which showed minimal objective findings, R. 367. Additionally, Daniel
Sawyer, M.D., an internal medicine and infectious diseases specialist whom Kelly had seen since
at least 2003, indicated on April 10, 2012, that despite her subjective complaints, he doubted
Lyme disease was the cause of her symptoms, and he did not include Lyme disease under his
impressions on April 23, 2012. R. 374–75. The ALJ was not compelled to rely on Kelly’s selfdiagnosis over the assessments of her treating physicians.
Extra-articular means “situated or occurring outside a joint.” Dorlands Illustrated Medical Dictionary
663 (32d ed. 2012). Conversely, Lyme disease involves “highly variable manifestations that may include
myalgia, arthritis of large joints, stiff neck, involvement of the nervous and cardiovascular systems, and
systemic symptoms such as chills, fever, headache, malaise, and vomiting.” Id. at 538.
More importantly, the record does not reveal any disabling symptoms or functional
limitations present before or even shortly after the DLI. For example, Dr. Hardigree’s physical
examination from Kelly’s initial visit in September 2011, which the ALJ discussed, showed full
strength in the right hamstrings, quadriceps, and hip flexors; substantially normal range of
motion, no instability, subluxation, or laxity, and normal sensation and coordination of the right
hip; and negative straight leg raising test. R. 367. After the DLI, on February 7, 2012, notes from
Kelly’s chiropractor indicate that her passive and active ranges of motion were entirely normal
except for a mild decrease in her right hip abduction and her right knee extension. R. 397–98.
Her deep tendon reflexes, dermatomes, and muscle strength were also within normal limits, and
Bechterew’s, Kemp’s, Patrick’s, and straight leg raising tests were all negative. R. 398. On April
23, her chiropractor noted that she was responding favorably and tolerating treatment well. R.
387. On April 30, she treated with Lily Hargrove, M.D., for an initial visit. R. 606–07. Dr.
Hargrove’s physical exam revealed normal gait and no acute distress. Id. Kelly then saw Daniel
Jaller, M.D., for an initial Lyme disease consultation on May 7. R. 662. Other than an
eczematous patch on her left leg and elbow and decreased sensation to temperature and pinprick,
the physical examination was generally normal, as she had no joint swelling, tenderness, or
active signs of synovitis in her knees, wrists, or hands, and no clubbing, cyanosis, or edema in
the extremities. R. 663. A follow-up visit to Dr. Hargrove on May 14 showed full range of
motion in her hips bilaterally, no acute distress, and no musculoskeletal tenderness. R. 602. An
X-ray of her hip was also normal, showing no arthritis or fracture. R. 601. Follow-ups with Dr.
Jaller in June, R. 659–61, September, R. 657–58, and October, R. 655–56, likewise revealed
limited abnormalities on physical examination.
To be sure, Dr. Jaller’s treatment notes indicate that her symptoms worsened throughout
2012. During her initial consultation on May 7, she had pain in her hands and feet, numbness in
her fingers and head, swelling in her fingers and toes, increased restless leg syndrome (“RLS”),
intermittent night sweats, and fatigue. R. 683. On June 12, she reported improved night sweats
and RLS, but still experienced joint pains, dizziness, fatigue, a little brain fog, and muscle
spasms. R. 677. On September 5, she noted a wide range of symptoms including fatigue,
malaise, night sweats, headaches, blurred vision, sensory changes, dysphagia, muscle and joint
pains, joint swelling, neck pain, radiating shooting pains, numbness and tingling, muscle
weakness, loss of balance, brain fog, irritability and anxiety, and facial tics. R. 657. On October
5, Kelly felt about 20% better since her last visit, R. 674, but by October 25, she had increased
fatigue, dizziness, and brain fog; chills during the day; blurred vision; stabbing pain in her right
temple; poor appetite; burning, shooting sensation in her hands, fingers, and feet; and most
disabling of all, a feeling of not wanting to move at all with physical pain, R. 671.
Nevertheless, no entry in Dr. Jaller’s notes expressly or implicitly links these symptoms
and any resulting functional limitations to her condition prior to her DLI. See Bird, 699 F.3d at
341–42. In Bird, the Fourth Circuit held that the ALJ erred because despite not presenting any
medical records from before his DLI, Bird’s post-DLI evidence of a psychological examination
conducted by the Department of Veterans Affairs, the evaluation of a licensed clinical
psychologist, his own testimony, and a statement from his wife all corroborated the inference
that Bird’s symptoms of PTSD existed long before his DLI. Id. at 339–42. The only evidence in
this case linking Kelly’s functional limitations to the period before her DLI comes from her
subjective perception of symptoms. Her self-diagnosis and subjective report of symptoms, when
not confirmed by the medical evidence, does not provide persuasive grounds to overturn the
ALJ’s analysis. ALJ Munday thoroughly recited the medical evidence through April 23, 2012,
and she discussed Kelly’s report to her physicians of her activities through March 2013. See R.
30. The ALJ explicitly found that her RFC assessment addressed Kelly’s functioning through
late 2011. R. 29. Treatment notes from Dr. Hardigree and Dr. Hargrove as well as the May 2012
notes from Dr. Jaller provide more than a scintilla of evidence to support the ALJ’s RFC
assessment. Thus, even if Kelly were correct that her Lyme disease had returned before the DLI,
this would not undermine the ALJ’s decision because the record does not show disabling
symptoms and limitations stemming from her Lyme disease during the relevant period. See Flint
v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991) (explaining that the ALJ and Appeals Council
appropriately “recognized the need for some evidence of an actual disability during the period
that [the] claimant maintained insured status,” and that the post-DLI medical evidence and the
claimant’s subjective testimony were properly rejected “because [they were] not substantiated by
evidence in the record pertinent to the insured period”). Therefore, the ALJ’s analysis of the
medical and other evidence in the record provides substantial evidence for her determination that
Kelly is not disabled.
For the foregoing reasons, I find that substantial evidence supports the Commissioner’s
final decision. Accordingly, the Court will GRANT the Commissioner’s Motion for Summary
Judgment, ECF No. 20, and DISMISS this case from the docket. A separate Order will enter.
The Clerk shall send certified copies of this Memorandum Opinion to all counsel of
ENTER: March 30, 2017
Joel C. Hoppe
United States Magistrate Judge
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