Moses v. Colvin
Filing
13
MEMORANDUM OPINION denying Plaintiff's 11 Brief in Support of Judgment on the Pleadings, granting Defendant's 12 Brief in Support of Judgment on the Pleadings/Defendant's Decision; and dismissing this action from the docket of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 5/22/2017. (cc: counsel of record) (jsa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
ANGELA DAWN MOSES,
Plaintiff,
v.
Case No.: 3:16-cv-06581
NANCY A. BERRYHILL,1
Acting Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of the Social
Security Administration (hereinafter the “Commissioner”) denying plaintiff’s
application for supplemental security income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383f. This case is presently before the Court on the
parties’ motions for judgment on the pleadings as articulated in their briefs. (ECF Nos.
11, 12). Both parties have consented in writing to a decision by the United States
Magistrate Judge. (ECF Nos. 7, 8). The Court has fully considered the evidence and the
arguments of counsel. For the reasons that follow, the Court finds that the decision of
the Commissioner is supported by substantial evidence and should be affirmed.
1 Pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil Procedure, the current
Acting Commissioner of the Social Security Administration, Nancy A. Berryhill, is substituted for former
Acting Commissioner Carolyn W. Colvin as Defendant in this action.
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I.
Procedural History
Plaintiff, Angela Dawn Moses (hereinafter referred to as “Claimant”), completed
an application for SSI benefits on August 7, 2012, alleging a disability onset of
December 12, 20042 due to “Psychological problems, back lumbar problems, ibs [IBSIrritable Bowel Syndrome], vision, back injury, depression, anxiety, migraines, knee
problems, shoulder problems, hands, [and] allergies.” (Tr. at 216). The Social Security
Administration (“SSA”) denied the application initially and upon reconsideration. (Tr.
at 11). On May 23, 2013, Claimant filed a written request for an administrative hearing,
which was held on November 10, 2014 before the Honorable Maria Hodges,
Administrative Law Judge (“ALJ”). (Tr. at 31-64). By decision dated November 20,
2014, the ALJ determined that Claimant was not entitled to benefits.3 (Tr. at 11-25).
The ALJ’s decision became the final decision of the Commissioner on May 20,
2016, when the Appeals Council denied Claimant’s request for review. (Tr. at 1–3). On
July 21, 2016, Claimant brought the present civil action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The
Commissioner filed an Answer and a Transcript of the Proceedings. (ECF Nos. 9, 10).
Thereafter, the parties filed their briefs in support of judgment on the pleadings, each
requesting relief on her behalf. Consequently, this matter is fully briefed and ready for
resolution.
2 At the administrative hearing held on November 10, 2014, Claimant amended her onset date of
disability to August 7, 2012, the date of her application. (Tr. at 37).
Claimant previously filed for DIB and SSI benefits on December 7, 2006, which were denied initially
and upon reconsideration on April 5, 2007 and September 26, 2007, respectively. Claimant received an
unfavorable decision from ALJ Rosanne Dummer (“ALJ Dummer”) on August 6, 2009, which was
subsequently affirmed by the Appeals council on August 26, 2010, and by U.S. District Court on January
5, 2011. (Tr. at 11).
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2
II.
Claimant’s Background
Claimant was 35 years old at the time of the administrative hearing and the
ALJ’s decision. (Tr. at 36). She has at least high school education and is able to
communicate in English. (Tr. at 36, 215, 217). Claimant previously worked as a home
health caregiver, cleaner, restaurant worker, and cashier. (Tr. at 38-42, 218).
III.
Summary of ALJ’s Findings
Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden
of proving disability, defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable impairment which can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. 423(d)(1)(A). The
Social Security Regulations establish a five-step sequential evaluation process for the
adjudication of disability claims. If an individual is found “not disabled” at any step of
the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §
416.920. The first step in the sequence is determining whether a claimant is currently
engaged in substantial gainful employment. Id. § 416.920(b). If the claimant is not,
then the second step requires a determination of whether the claimant suffers from a
severe impairment. Id. § 416.920(c). If severe impairment is present, the third inquiry
is whether this impairment meets or equals any of the impairments listed in Appendix
1 to Subpart P of the Administrative Regulations No. 4. Id. § 416.920(d). If the
impairment does, then the claimant is found disabled and awarded benefits.
However, if the impairment does not, the adjudicator must determine the
claimant’s residual functional capacity (“RFC”), which is the measure of the claimant’s
ability to engage in substantial gainful activity despite the limitations of his or her
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impairments. Id. § 416.920(e). After making this determination, the next step is to
ascertain whether the claimant’s impairments prevent the performance of past
relevant work. Id. § 416.920(f). If the impairments do prevent the performance of past
relevant work, then the claimant has established a prima facie case of disability, and
the burden shifts to the Commissioner to establish, as the final step in the process, that
the claimant is able to perform other forms of substantial gainful activity, when
considering the claimant’s remaining physical and mental capacities, age, education,
and prior work experiences. Id. § 416.920(g); see also McLain v. Schweiker, 715 F.2d
866, 868-69 (4th Cir. 1983). The Commissioner must establish two things: (1) that the
claimant, considering his or her age, education, skills, work experience, and physical
shortcomings has the capacity to perform an alternative job, and (2) that this specific
job exists in significant numbers in the national economy. McLamore v. Weinberger,
538 F.2d. 572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the Social Security Administration
(“SSA”) “must follow a special technique at every level in the administrative review.”
20 C.F.R. § 416.920a. First, the SSA evaluates the claimant’s pertinent signs,
symptoms, and laboratory results to determine whether the claimant has a medically
determinable mental impairment. If such impairment exists, the SSA documents its
findings. Second, the SSA rates and documents the degree of functional limitation
resulting from the impairment according to criteria specified in 20 C.F.R. §
416.920a(c). Third, after rating the degree of functional limitation from the claimant’s
impairment(s), the SSA determines the severity of the limitation. A rating of “none” or
“mild” in the first three functional areas (activities of daily living, social functioning,
and concentration, persistence or pace) and “none” in the fourth (episodes of
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decompensation) will result in a finding that the impairment is not severe unless the
evidence indicates that there is more than minimal limitation in the claimant’s ability
to do basic work activities. 20 C.F.R. § 416.920a(d)(1). Fourth, if the claimant’s
impairment is deemed severe, the SSA compares the medical findings about the severe
impairment and the rating and degree and functional limitation to the criteria of the
appropriate listed mental disorder to determine if the severe impairment meets or is
equal to a listed mental disorder. 20 C.F.R. § 416.920a(d)(2). Finally, if the SSA finds
that the claimant has a severe mental impairment, which neither meets nor equals a
listed mental disorder, the SSA assesses the claimant’s residual function. 20 C.F.R. §
416.920a(d)(3). The Regulation further specifies how the findings and conclusion
reached in applying the technique must be documented at the ALJ and Appeals Council
levels as follows:
The decision must show the significant history, including examination
and laboratory findings, the functional limitations that were considered
in reaching a conclusion about the severity of the mental impairment(s).
The decision must include a specific finding as to the degree of limitation
in each functional areas described in paragraph (c) of this section.
20 C.F.R. § 416.920a(e)(4).
In this case, the ALJ determined that Claimant satisfied the first inquiry because
she had not engaged in substantial gainful activity since August 7, 2012. (Tr. at 13-14,
Finding No. 1). Under the second inquiry, the ALJ found that Claimant suffered from
the severe impairments of obesity, degenerative disc disease, Irritable Bowel Syndrome
(IBS), Bipolar Disorder, Anxiety-related Disorder, and Alcohol Abuse in remission.”
(Tr. at 14-15, Finding No. 2). However, the ALJ found that Claimant’s impairments of
endometriosis, polycystic ovarian syndrome, diabetes mellitus, hypertension,
headaches, and vision issues were non-severe. (Tr. at 14-16).
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At the third inquiry, the ALJ concluded that Claimant’s impairments did not
meet or equal the level of severity of any impairment contained in the Listing. (Tr. at
16-19, Finding No. 3). Consequently, the ALJ determined that Claimant had the RFC
to:
[P]erform medium work as defined in 20 CFR 416.967(c) except should
never climb ladders, ropes, or scaffolds; can frequently climb
ramps/stairs, balance, stoop, kneel or crouch; occasionally crawl; should
avoid concentrated exposure to temperature extremes, hazards, and
vibration; is limited to understanding, remembering and carrying out
simple instructions in a work setting involving occasional interaction
with others; and low-stress work, defined as no fast-paced production
rate or strict time limits.
(Tr. at 19-23, Finding No. 4). Based upon the RFC assessment, the ALJ determined at
the fourth step that Claimant was unable to perform her past relevant work. (Tr. at 23,
Finding No. 5). Under the fifth and final inquiry, the ALJ reviewed Claimant’s prior
work experience, age, and education in combination with her RFC to determine if she
would be able to engage in substantial gainful activity. (Tr. at 24, Finding Nos. 6-8).
The ALJ considered that (1) Claimant was born in 1979 and was defined as a younger
individual; (2) she had at least a high school education and could communicate in
English; and (3) transferability of job skills was not material to the disability
determination because using the Medical-Vocational Rules supported a finding that
the Claimant is “not disabled,” whether or not the Claimant had transferable job skills.
(Id.). Given these factors, Claimant’s RFC, and the testimony of a vocational expert, the
ALJ determined that Claimant could perform jobs that existed in significant numbers
in the national economy. (Tr. at 24-25, Finding No. 9). At the light level, Claimant could
work as a garment bagger or hotel maid; and at the medium level, Claimant could work
as a laundry worker or night cleaner and at the sedentary level, Claimant could work
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as an inspector or assembler. (Id.). Therefore, the ALJ concluded that Claimant was
not disabled as defined in the Social Security Act. (Tr. at 25 Finding No. 10).
IV.
Claimant’s Challenges to the Commissioner’s Decision
Claimant asserts two challenges to the Commissioner’s decision. First, she
claims that the ALJ failed to consider the combined effect of Claimant’s impairments
when determining her RFC. (ECF No. 11 at 4-6). As part of this challenge, Claimant
argues that the ALJ erred by finding that Claimant’s statements regarding the severity
and persistence of her pain, fatigue, and other symptoms were not fully credible. (Id.
at 6). According to Claimant, her statements and the objective evidence are mutually
supportive of a finding of disability under the Social Security Act; therefore, the
statements are entitled to full credibility. Second, Claimant contends that the ALJ’s
RFC finding is not supported by substantial evidence, because the ALJ’s discussion is
internally inconsistent. Specifically, Claimant points to the summary RFC finding set
forth on page 19 of the transcript, which indicates that Claimant is capable of less than
a full range of medium level work, and compares it to a statement in the associated
discussion at page 21, which states that Claimant is restricted “to a reduced range of
light work.” (Tr. at 21) (emphasis added). Claimant argues that both statements cannot
be correct and questions which RFC finding was intended by the ALJ.
In response to Claimant’s criticisms, the Commissioner asserts that the ALJ
clearly considered all of Claimant’s impairments when analyzing her RFC. (ECF No. 12
at 9-12). The Commissioner argues that the ALJ’s comprehensive RFC discussion
included an analysis of all of Claimant’s functional limitations that were established by
the record, and also accounted for all of those limitations in the RFC finding. The
Commissioner rejects Claimant’s credibility argument, emphasizing that the ALJ
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provided multiple reasons for discounting the severity of symptoms described by
Claimant. (Id. at 10). With respect to Claimant’s argument regarding the internal
inconsistency of the RFC discussion, the Commissioner apparently misunderstood the
argument, because she failed to directly address the discrepancy between the two
exertional findings in the RFC section of the written decision. Instead, the
Commissioner discusses all of the evidence that supports the ALJ’s determination that
Claimant could perform a reduced range of medium level work. (Id. at 11-13).
V.
Scope of Review
The issue before this Court is whether the final decision of the Commissioner
denying Claimant’s application for benefits is supported by substantial evidence. In
Blalock v. Richardson, the Fourth Circuit Court of Appeals defined substantial
evidence as:
Evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there
is “substantial evidence.”
483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966)). Additionally, the Commissioner, not the court, is charged with resolving
conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The
Court will not re-weigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Id. Instead, the Court’s duty is
limited in scope; it must adhere to its “traditional function” and “scrutinize the record
as a whole to determine whether the conclusions reached are rational.” Oppenheim v.
Finch, 495 F.2d 396, 397 (4th Cir. 1974). Thus, the ultimate question for the Court is
not whether the Claimant is disabled, but whether the decision of the Commissioner
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that the Claimant is not disabled is well-grounded in the evidence, bearing in mind that
“[w]here conflicting evidence allows reasonable minds to differ as to whether a
claimant is disabled, the responsibility for that decision falls on the [Commissioner].”
Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987).
VI.
Relevant Medical Records
The Court has reviewed the Transcript of Proceedings in its entirety, including
the medical records in evidence, and summarizes below Claimant’s medical treatment
and evaluations to the extent that they are relevant to the issues in dispute.
A. Treatment Records
On April 28, 2011, Claimant was examined by Ricardo Roa, M.D., in preparation
for nasal septoplasty, endoscopy, tonsillectomy, and adenoidectomy. (Tr. at 302-04).
Claimant’s current medical issues included adenoid hypertrophy, benign neoplasm of
the soft palate, deviated nasal septum, hypertrophied nasal turbinate, sinusitis, and
tonsillar hypertrophy. Her past medical history included arthritis, depression with
anxiety, otitis media, and sinusitis. Claimant presented with normal mood and affect.
A CT scan of the sinuses taken on March 21 revealed minimal mucosal thickening of
the right maxillary and left sphenoid air cells with minimal leftward deviation of the
nasal septum. A CT scan of the neck showed a subtle polypoid nodule projecting from
the soft palate just to the right of the midline that might represent a superficial mucosal
inclusion cyst. There appeared a possible cementoma near the first maxillary molar.
The surgery was performed on May 4, 2011. (Tr. at 298-300). The post-operative
diagnosis included lesion of the palate, chronic tonsillitis, adenotonsillar hypertrophy,
chronic sinusitis, nasal obstruction, nasal septal deviation, bilateral inferior turbinate
hypertrophy, and failure of medical management.
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On August 25, 2011, Claimant presented to her primary care physician, Daniel
Whitmore, D.O., with complaints of fatigue and persistent low back pain for the past
two to three years. (Tr. at 410). Claimant reported that she took Tylenol and Motrin for
pain, and they provided some relief. On examination, Claimant weighed two hundred
twenty-nine pounds with a blood pressure of 127/84. Claimant was alert and had an
appropriate mood. Her physical examination was otherwise unremarkable, except for
some pain elicited on palpation of her dorsolumbar spine and paraspinal muscles. She
did not have evidence of scoliosis, and her straight leg raise was negative. Claimant was
assessed with lumbago and was told to lose weight. She was also assessed with fatigue
due to weight gain and depression, although Dr. Whitmore felt Claimant’s depression
was under control with Celexa and hydroxyzine. Dr. Whitmore ordered x-rays of
Claimant’s thoracic and lumbar spine that were performed on August 29, 2011. (Tr. at
421). The thoracic spine x-ray demonstrated normal spinal alignment with no evidence
of acute fracture and well-preserved vertebral body heights and disc spaces. The
lumbar spine x-ray showed Grade I anterolisthesis of the L5-S1, secondary to bilateral
pars defects; however, no acute fracture was seen.
Claimant returned to Dr. Whitmore on September 22, 2011 informing him that
she had undergone physical therapy and chiropractic care for back pain that gave her
very little relief. Nonetheless, Claimant advised Dr. Whitmore that she was no longer
having back pain. (Tr. at 409). Claimant was assessed with resolved back pain and
encouraged to lose weight and go for daily walks.
The following month, on October 27, 2011, Claimant presented to Robert Lowe,
M.D., with complaints of pain from her “neck to her tail,” causing her legs to give out
and go numb.(Tr. at 369-71). Claimant described the back pain as radiating into the
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neck area, bilateral hips and legs along with numbness and tingling in the arms, legs,
and feet. She also complained of bowel and bladder issues, as well as urinary tract
infections. Claimant reported having ongoing back pain for several years that began
when she injured her back lifting a 15-pound bucket at work. Claimant denied
dizziness, abdominal pain, blurred vision, or bleeding. A review of systems was
determined to be within normal limits.
On examination, Claimant measured five feet, seven inches in height and
weighed two hundred twenty-eight pounds. She was pale and walked with a limp, but
could bear weight equally. Claimant flexed forward eighty degrees and could lateral
bend twenty-five degrees; however, her extension was stiff. Her reflexes appeared
intact at the knees and ankles, and her toe extensors were strong. Straight leg raise
while seated measured ninety degrees bilaterally, and while supine, measured eighty
degrees bilaterally. Sensation appeared less in the right leg; however, there was no
dermatome pattern. Dr. Lowe thought he would find a stocking pattern, which he did,
but to a lesser degree. There were no real trigger points located in Claimant’s back. Her
thigh and calve circumferences were symmetrical. Dr. Lowe opined that Claimant had
L5-S1 25% spondylolisthesis. Although Dr. Lowe could not visualize this on plain xrays, he observed that Claimant moved at L5-S1 and the disc heights were subtly
increased in height, which was compatible with a potential mal-absorption syndrome
that could explain her head to toe pain. Claimant was diagnosed with spondylolisthesis
and low back pain. For treatment, Dr. Lowe prescribed a lumbosacral support brace,
as he did not elicit any physical findings that warranted surgical intervention. Dr. Lowe
felt a positive Knudsen sign at L5-S1 with disc degeneration and narrowing of the disc
might also be a source of the back pain. Dr. Lowe did not believe Claimant’s back pain
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would be altered by more conditioning; however, he would consider physical therapy
for Claimant in the future.
Claimant returned to Dr. Lowe on November 17, 2011. (Tr. at 367-68).
Laboratory reports revealed that Claimant had a low level of Vitamin D. Claimant
continued to complain of constant neck and back pain causing her legs to give out and
go numb. Claimant also reported bowel issues; however, she had never received
medical treatment for this, and a review of systems was negative for abdominal pain,
nausea, or vomiting. Claimant’s gastrointestinal system was noted to be within normal
limits. Her physical examination was also normal. Claimant was prescribed Vitamin D
and instructed to return in six months.
Claimant presented to Sanjay Masilamani, M.D., on December 5, 2011 with
complaints of anxiety and depression. (Tr. at 391-96). Claimant reported that her
psychological symptoms began in her twenties and were related to family issues. She
had never seen a psychiatrist, but she had previously received counseling. Claimant
began drinking alcohol in her teens, causing her to build up a tolerance; however,
Claimant reported that she no longer drank alcohol and had not done so for over three
years. Claimant described her symptoms as mania, not being able to sleep, elevated
energy, racing thoughts, irritability, fatigue, muscle aches, and agoraphobia. Claimant
was being prescribed Celexa and hydroxyzine, noting these medications were helpful,
but her insurance no longer covered them. On examination, Claimant was cooperative
with good eye contact, normal speech, and no evidence of psychomotor agitation. She
showed logical and coherent thought processes. Her affect appeared restricted; her
mood was irritable and depressed; and her judgment and insight were limited.
Claimant was assessed with bipolar disorder, type 1; generalized anxiety disorder; full,
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sustained remission of alcohol abuse; and agoraphobia without history of panic
disorder. Dr. Masilamani felt that borderline intellectual functioning versus mental
retardation should also be ruled out. He gave Claimant a Global Assessment of
Functioning (“GAF”) score of 65-70.4 He documented that Claimant was having a
difficult time dealing with the loss of family members, but she was not suicidal at the
time. Dr. Masilamani talked to Claimant about following up with a therapist in addition
to providing her with a prescription for Lamictal. Claimant was advised to return in
one month.
Claimant presented to Dr. Masilamani on January 16, 2012 reporting no side
effects from her medication. Since increasing her dosage of Lamictal, her irritability
had slightly improved. (Tr. at 389-90). Dr. Masilamani recorded that Claimant was
wearing a back brace, was cooperative, and showed no sign of psychomotor agitation.
However, her mood was “jumpy” and her affect was slightly restricted. Claimant did
say she had met with a therapist, Jessica Williams, and felt it was very helpful. Claimant
demonstrated normal speech, logical thought processes, and fair insight and judgment.
Dr. Masilamani increased the dosage of Lamictal in addition to scheduling Claimant
for more therapy with Ms. Williams. As Claimant complained of sleep issues, her
hydroxyzine dosage was increased.
The Global Assessment of Functioning (“GAF”) Scale is a 100-point scale that rates “psychological,
social, and occupational functioning on a hypothetical continuum of mental health-illness,” but “do[es]
not include impairment in functioning due to physical (or environmental) limitations.” Diagnostic
Statistical Manual of Mental Disorders, Am. Psych. Assoc., 34 (4th ed. text rev. 2000) (“DSM–IV”). On
the GAF scale, a higher score correlates with a less severe impairment. The GAF scale was abandoned as
a measurement tool in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders
(5th ed. 2013) (“DSM–5”), in part due to its “conceptual lack of clarity” and its “questionable
psychometrics in routine practice.” DSM–5 at 16. A GAF score between 61 and 70 indicates “[s]ome mild
symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within the household), but generally functioning
pretty well, has some meaningful interpersonal relationships.” DSM–IV at 34.
4
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Claimant was examined by Ben Edwards, M.D., on February 1, 2012, for
complaints of pelvic discomfort. (Tr. at 320-24). On a review of symptoms, Claimant
denied having fatigue, malaise, headache, gastrointestinal issues, genitourinary
complaints, endocrine abnormalities, or psychological distress. (Tr. at 322). Her
physical examination was entirely normal. Claimant weighed two hundred forty-seven
pounds, and her blood pressure was 122/80. Claimant displayed a euthymic mood,
appearing alert and in no distress. Upon examination, Claimant had no abdominal
tenderness; her bladder, urethra and uterus were normal. Claimant was assessed with
candida albecans vaginitis, vaginal candidiasis, and contraceptive management.
Claimant was provided prescriptions for Enpresse and Fluconazole.
On February 16, 2012, Claimant returned to Dr. Masilamani reporting that the
increase in Lamictal helped stabilize her mood. (Tr. at 386-88). Overall Claimant
believed she was “functioning better.” Her issues with sleep were improved with
hydroxyzine. Claimant described a slightly depressed mood, which she attributed to a
recent loss of family members, although she reported she was coping well. Claimant
had met with Ms. Williams and used some of the therapist’s ideas of how to change
things at Claimant’s home, such as re-arranging the furniture in her and her daughter’s
rooms. Claimant’s assessment was unchanged, and her medication regimen remained
the same, as it appeared to be controlling her symptoms.
On March 14, 2012, Claimant presented to St. Mary’s Medical Center after
having been assaulted by a family member. (Tr. at 338-47). Claimant complained of
moderate pain caused by blows to her head. Although she did not lose consciousness,
Claimant felt “dazed.” In addition, Claimant complained of a headache and nausea, but
no numbness, loss of vision, dizziness, hearing loss, chest pain, difficulty breathing,
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weakness, abdominal pain or vomiting. On examination, her right temple was
moderately tender and mildly swollen; however, there was no Battle’s sign and no
“raccoon” eyes. Claimant’s neck was supple, non-tender, and displayed normal range
of motion. Claimant had mild, soft tissue tenderness in the right and left lower lumbar
area. The remainder of her examination was unremarkable. A CT scan of Claimant’s
head revealed a nearly total opacified left maxillary sinus, but no traumatic findings
were seen. (Tr. at 344). An x-ray of the lumbar spine revealed an L5 spondylolysis with
grade 1 spondylolistheses at L5-S1. This finding had not changed since September
2009 when a prior film was performed. The remainder of the findings were
unremarkable. (Tr. at 343). Claimant was assessed with minor closed head injury
resulting from a physical assault and sinusitis. Claimant was provided ibuprofen,
Augmentin, and Ultram, advised to apply ice to the head injury, and told to drink fluids.
Claimant was discharged in good condition.
Claimant returned to Holzer Clinic on March 29, 2012 for evaluation of her
sinuses. (Tr. at 358-61). She complained of nasal congestion, postnasal drainage,
frontal headache, and pain in both ears. Claimant also reported decreased bilateral
hearing as well as yellow drainage noting the pain was constant and dull both inside
and behind her ears. On examination, Claimant presented with normal mood and
affect. There was sinus tenderness upon palpation in the bilateral maxillary regions.
Otoscopy of the ears showed normal auditory canals and tympanic membranes with
ETD bilaterally. Claimant was assessed with postnasal drip, Eustachian tube
dysfunction, allergic rhinitis, laryngitis, and pharyngitis. Claimant was provided
prescriptions for Zithromax, Astepro, and a Medrol Pak, in addition to a
recommendation of daily use of nasal wash and Alkalol.
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On April 9, 2012, Claimant returned to Dr. Masilamani. (Tr. at 384-85).
Claimant told Dr. Masilamani that she felt depressed, rating her depression as four out
of ten but overall, she continued to “function fair.” Claimant expressed having
difficulties with her sister and complained that she could not visit her mother’s house
as often because of her sister’s presence there. She complained of headaches and
reported to Dr. Masilamani that she had been involved in a physical altercation with
her sister. Claimant was sleeping more, but her appetite was decreased. On
examination, Claimant made good eye contact, was cooperative, and had no
psychomotor agitation. Her mood was somewhat depressed, and her affect was
restricted. Claimant had limited judgment and insight; however, her thought processes
were logical, linear, and coherent. Claimant was assessed with bipolar disorder, type 1;
generalized anxiety disorder; alcohol abuse in full, sustained remission; agoraphobia
without a history of panic disorder; and rule out borderline intellectual functioning.
Claimant’s medication regimen of Lamictal and Celexa remained unchanged.
On April 17, 2012, Claimant presented to Dr. Whitmore for follow-up of injuries
received in the physical altercation with her sister. (Tr. at 408). Claimant described
pain that appeared to be post-concussive headaches, located in the right temple and
top of her head. A physical examination was unremarkable. Dr. Whitmore assessed
Claimant with post-concussion headaches, allergic rhinitis, and elevated blood
pressure. Claimant was provided a prescription for Naproxen.
Claimant returned to Dr. Masilamani on May 9 with complaints of stress, low
mood (three out of ten on a ten-point scale), frustration, and irritability. (Tr. at 38283). On the plus side, Claimant was tolerating her medications well and sleeping well
most of the time. She appeared fairly well groomed and was cooperative, although she
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made poor eye contact. Claimant was alert and oriented with normal speech and
thought process; however, her judgment and insight were limited. Claimant’s mood
was “somewhat down,” and her affect slightly restricted. Claimant’s diagnoses did not
change. Her prescription for Lamictal was increased to help ease her frustration and
irritability.
On May 17, 2012, Claimant presented to Dr. Lowe complaining of back pain. (Tr.
at 365-66). Although she wore a lumbar support brace that did offer some relief,
Claimant continued to complain of constant back pain that stemmed from her “neck to
her tail,” causing her legs to get numb and “give out.” (Tr. at 365). She reported that
her back hurt when she did housework, such as laundry and cleaning floors. Claimant
told Dr. Lowe she had a lot of bowel problems and been going to the bathroom quite a
bit for several months; however, a review of systems was negative for abdominal pain,
nausea or vomiting, and her gastrointestinal system was within normal limits. On
examination, Claimant weighed two hundred forty-three pounds. Her blood pressure
measured 122/72. Claimant walked without a limp, flexed forward eighty degrees,
extended twenty to twenty-five degrees, and could laterally bend twenty-five degrees.
While seated and while supine, straight leg raising measured ninety degrees bilaterally;
however, there were obvious trigger points in the low back. While lying recumbent,
Claimant had some pain across the back and had to roll to the side. Her diagnosis
remained spondylolisthesis and low back pain. Dr. Lowe remarked that the Claimant
was “doing rather well.” Claimant was interested in physical therapy, which
considering her status, Dr. Lowe felt was worth a try. He also felt however, that wearing
her back brace when performing household tasks or prolonged activities would be
beneficial. On the other hand, Dr. Lowe concluded that, ultimately, as Claimant was a
17
young woman, she needed to work on building her muscles as opposed to wearing the
back brace. Claimant was provided an order for physical therapy.
Claimant reported to Huntington Physical Therapy for an initial evaluation on
May 21, 2012. (Tr. at 372-74, 796-98). Claimant told Kelly Akers, DPT, that in 2003,
while lifting buckets of ice at work, she hurt her low back and, since then, had bilateral
leg to ankle symptoms. Claimant stated that the pain made it difficult to walk. Her
neurological status examination showed normal sensation. However, manual muscle
testing measured 2+/5 strength in all muscle groups. The motion limitation at the most
symptomatic area of Claimant’s low back segment was due to excessive stiffness and
tissue resistance. Claimant was scheduled for physical therapy, two times a week for a
total of six weeks.
Beginning on May 25, 2012, Claimant participated in nine physical therapy
sessions: May 25, May 30, June 1, June 5, June 7, June 12, June 18, June 22 and June
26. (Tr. at 778-95). At the May sessions, Claimant was not able to appreciate any
change in her pain. The therapist felt Claimant could benefit from increased strength
to her transverse abdominis muscle to help stabilize the lumbar spine. At her June 1
session, Claimant reported increased pain in the groin after her last treatment.
Claimant had no complaints of numbness with bridges but continued to rely on her
back brace to “stand up straight and bend over.” Claimant did report she was compliant
with her home exercise program. On June 5, Claimant reported soreness from her low
back to the bilateral glutes, rating the discomfort at eight on the ten-point pain scale.
When asked about compliance with home exercises, Claimant responded “some.”
Claimant presented to Dr. Masilamani on June 6, 2012. (Tr. at 380-81).
Claimant continued to tolerate her medications with no side effects. She complained of
18
decreased sleep due to pain, decreased appetite, and her mood had been “up and
down.” Claimant attributed her increased pain to physical therapy. She reported trying
to walk for exercise. Upon examination, Claimant’s affect was restricted, her judgment
and insight limited, and her mood fluctuated. Claimant’s assessment remained the
same. Dr. Masilamani increased Claimant’s dosage of Lamictal and encouraged her to
try to go for daily walks.
Continuing with physical therapy, on June 7, Claimant told the physical
therapist she was able to finish one load of laundry before having to stop and rest. (Tr.
at 786-87). On June 12 Claimant reported pain that radiated down the right leg which
began the day before. During therapy, Claimant complained of pain in the left leg
radiating to the knee. The left leg pain was centralized to the low back. (Tr. at 784-85).
On June 18, Claimant reported she was feeling better rating her pain at rest as five out
of ten. She experienced slight pain in the left leg the day before but it resolved that
evening and she did not have any at this session. Upon finishing her session, Claimant
reported she was able to complete all the exercises easier than last visit and her pain
was reduced to four out of ten. The therapist recorded Claimant did not complain of
radicular pain at rest or during therapy. (Tr. at 782-83).
Claimant returned to Dr. Lowe on June 21, 2012. (Tr. at 363-64). Claimant had
been receiving physical therapy for one month and was no worse, but according to Dr.
Lowe, Claimant had “a hard time saying she is better.” (Tr. at 363). Claimant was not
wearing her back brace at this appointment; however, she indicated that she normally
wore it quite a bit. Claimant complained of pain that radiated from the neck to the
bilateral hips and legs with numbness and tingling in her bilateral arms, legs, and feet.
Claimant said she had not been wearing her brace as much as she should, noting that
19
she continued to have constant, low back pain making her legs weak and causing her
legs to give out. She also reported bowel and bladder issues; however, a review of
systems was negative for abdominal pain, nausea or vomiting, and her gastrointestinal
system was within normal limits. On examination, Claimant could lie recumbent and
prone with no complaints. Her sitting straight leg raise was negative, but her supine
straight leg raise was slightly reduced. When palpating her back over the L5-S1 area,
and in the area where a free fragment should be found, there was no jumping or
reaction by Claimant, nor was there any swelling or trigger points. Dr. Lowe discussed
with Claimant that, generally, non-operative care was preferred over surgery for
treatment of spondylolisthesis. She was instructed to continue with her medication and
return in four months.
At her June 22 physical therapy session, Claimant noted she was confused about
continuing with physical therapy as her doctor had discussed surgery but also talked
about continuing physical therapy, so she elected to keep this appointment. (Tr. at 78081). Claimant had increased pain, rated six out of ten, which had been constant for the
past several days. She also reported radicular knee pain as well as occasional increase
in pain after physical therapy that made her very uncomfortable and “puts [her] to
bed.” At this visit, Claimant wore her back brace, although she had not worn it at the
prior visit. Claimant demonstrated some increased radicular pain was not exacerbated
by exercise. Finally, on June 26, Claimant reported no change in her pain level from
her last visit. (Tr. at 778-79). She described the pain as radiating from her mid back to
bilateral knees. She stated that home exercises did not alleviate her pain. During the
session, Claimant had worsening leg pain in some positions, which radiated from her
legs to her feet. Claimant was placed on her back and after a short while, she
20
complained of dizziness, ended the physical therapy session, and called her family to
come get her.
Claimant followed up with Daniel Whitmore, D.O., on July 17, 2012, for her
post- concussion headaches sustained after the altercation with her sister. (Tr. at 407).
As the headaches were improving, Dr. Whitmore elected to avoid maintenance therapy,
instead, advising Claimant to take Motrin as needed. Claimant was also assessed with
lumbago, knee pain, and GERD for which Claimant was prescribed Dexilant.
Claimant returned to Dr. Masilamani on July 26, 2012. (Tr. at 378-79). On a
scale of one to ten, Claimant reported her mood at a one. She was only getting three to
four hours of sleep at night, causing her to nap throughout the day. Claimant attributed
this to her back pain, noting that participating in physical therapy only made it worse.
Claimant’s assessment remained the same. Dr. Masilamani added Celexa to Claimant’s
medication regimen.
Claimant saw Dr. Whitmore on August 15, 2012 with complaints of exhaustion
and lack of energy. (Tr. at 406). Claimant’s physical examination was unremarkable;
however, Dr. Whitmore noted that Claimant wore a back brace. Dr. Whitmore
indicated Claimant might require a psychiatric referral as depression could be a cause
of her fatigue.
The following week, on August 27, Claimant presented to Dr. Masilamani
complaining of lack of sleep and energy for the past two months. (Tr. at 375-77). At this
visit, Claimant weighed two hundred forty pounds with a blood pressure of 135/89.
Claimant advised that she had starting seeing a mental health therapist again and was
tolerating her medications well. She described her mood as antisocial and indicated
that her most stressful issue was “fighting disability and getting her disability.” Dr.
21
Masilamani diagnosed Claimant with bipolar disorder, type 1; generalized anxiety
disorder; alcohol abuse in full sustained remission; agoraphobia without panic
disorder; and rule out borderline intellectual functioning. Claimant was advised to
continue therapy to improve her coping skills, and Trazodone was added to her
medication regimen to treat insomnia. Claimant returned to Dr. Masilamani on
September 27, reporting that the Trazodone helped some with her sleeping issues. (Tr.
at 503-04). She rated her mood as four out of ten and commented that if she could
sleep through the night, her mood would most likely improve. Consequently, Dr.
Masilamani increased the Trazodone dosage to alleviate Claimant’s sleep and mood
issues.
On October 18, 2012, Claimant was seen by Larry Hagan, M.D., for treatment of
chronic, recurrent sinus issues. (Tr. at 456-58). Claimant reported she had suffered
chronic sinus infections since the age of 12. She also coughed at night and wheezed
with exercise or respiratory infections; however, she had never been diagnosed with
asthma. Claimant had an eight year history of chronic urticarial (skin rash causing itch
and sometimes swelling) and recurrent angioedema (rash similar to hives) that were
recurrent, migratory, pruritic and resolved without sequellae. Claimant also reported
a history of recurrent ear and urinary tract infections. A review of systems was positive
for GERD; however, Claimant denied nausea, vomiting, diarrhea or any symptoms of
IBS. Claimant reported a history of joint pain and myalgia. Claimant was assessed with
non-allergic rhinitis, chronic sinusitis, chronic urticarial/angioedema, recurrent sinus,
otitis media and urinary tract infections, and possible asthma. Claimant was scheduled
for allergy tests and a chest x-ray, as well as provided a prescription for Allegra,
Plaquenil, and Vistaril.
22
Claimant reported to Matthew C. Wilson, M.D., on October 18, 2012, for allergy
and pulmonary function tests. (Tr. at 459-62). The spirometry test revealed no
significant sign of obstructive pulmonary impairment or restrictive ventilator defect.
Claimant did not test positive for any inhalant allergies.
On October 23, 2012, Claimant returned to Dr. Lowe, complaining of back pain
and left leg pain. (Tr. at 431-32). The pain was located in the neck and radiated to the
bilateral hips and legs. It was worse on the left side and was associated with bilateral
numbness and tingling in the arms, legs, and feet. Claimant reported bowel and
bladder problems that had been ongoing for years; however, she did not receive
treatment for those issues. A review of systems was negative for abdominal pain,
vomiting, or nausea, and Claimant’s gastrointestinal system was found to be within
normal limits. She reported that the pain in her low back was increasing and that
participating in physical therapy only made it worse. Claimant also complained of
weakness in her legs that caused them to go numb and “give out.” Her medications
included Empresse, Celexa, Vitamin D, hydroxyzine, Nasonex, cetirizine, Lamictal,
Astelin, Dexilant, Calcium, multivitamin, and naproxen.
On examination, Claimant walked with an erect posture and could bear weight
equally. Straight leg raising while seated measured ninety degrees bilaterally and
eighty degrees bilaterally while supine. Her toe extensors were strong, and pedal pulses
were intact. Her knee and ankle reflexes were found intact. Claimant described having
“no feeling” in her feet, legs, and at her waist. She did have sensation in a circle around
her body at the bottom of her chest between the chest and umbilicus. Dr. Lowe
described this as “almost a hysterical type pattern.” An x-ray of the thoracic spine did
not reveal widening of the pedicles or any unusual findings. An x-ray of the lumbar
23
spine showed L5-S1 spondylolisthesis as well as a loss of height of the L5-S1 disc space
with a positive Knudsen sign. The slippage was nearly twenty percent. The remaining
discs were maintained. Claimant was assessed with spondylolisthesis, low back pain,
thoracic back pain (non-injury), and osteopenia. She was advised to continue with the
current treatment plan, including taking Vitamin D. Dr. Lowe felt surgical intervention
was not indicated at this time, as surgical intervention on spondylolisthesis with a
patient experiencing a hysterical sensory pattern would provide unpredictable results.
Claimant was given an exercise program to help with core strength and was told to
continue wearing her back brace.
On October 29, 2012, Claimant reported to Dr. Masilamani that she was still
having sleep issues, stating that she was not getting as much sleep as she used to get.
Although her mood was slightly agitated (rating it five out of ten), she was “overall
okay.” (Tr. at 505-06). Claimant rated her multiple doctor visits, medical tests, and
increased pain as the most stressful events in her life. On examination, Claimant’s
mood was “in the middle” and her affect slightly restricted. Claimant demonstrated
thought processes that were logical, linear, and coherent, but her judgment and insight
were limited. Dr. Masilamani increased the Trazodone dosage to help with sleep issues
and advised Claimant to go outside more—at least one to two times per day.
Claimant returned to Dr. Wilson on November 8, 2012 with complaints of
congestion. (Tr. at 440-43). Claimant reported after her last visit with him, her toe,
then chest and arm started to swell. She was seen in the emergency room and told she
had allergies, was placed on prednisone that resolved the issue eventually. Claimant
had negative results on all allergy skin tests. With the exception of history of joint pain
and/or myalgia and “urinary problems noted,” a review of systems was negative,
24
including no symptoms of IBS, no dysuria, hematuria, polyuria, urinary urgency or
hesitancy. A spirometry test was administered with negative results. Claimant was
assessed with non-allergic rhinitis, history of nasal polyps, chronic sinusitis, history of
angioedema/urticarial and bipolar disorder.
Dr. Lowe saw Claimant on November 20, 2o12. (Tr. at 429-30). He noted
Claimant wore her back brace and had been doing her home exercises, but according
to Claimant, there was no improvement. She complained of constant back pain,
weakness, and numbness in her legs that caused them to “give out,” and she had bowel
problems, ongoing for several months. A review of systems was negative for abdominal
pain, vomiting, nausea, and Claimant’s gastrointestinal system was within normal
limits. On examination, Dr. Lowe recorded Claimant was “doing better.” Claimant
demonstrated normal movement with extension, as well as lateral bending measuring
twenty to twenty-five degrees. While seated, bilateral straight leg raise was negative.
While supine, straight leg raise was tolerated to eighty degrees bilaterally. Sensation
was intact in her feet, though “less than perfect,” and sensation in her abdomen
between the pelvic and umbilicus, as well as in the back, was normal. Claimant was
assessed with spondylolisthesis, low back pain, non-injury thoracic pain, and
osteopenia. Dr. Lowe remarked that the findings were as expected in a patient who had
spondylolisthesis with superimposed hysterical, unexplained sensory pattern.
Claimant was advised to continue taking Naproxen and wear her back brace
intermittently. Dr. Lowe opined there was no special medical treatment needed at this
time.
Claimant continued mental health treatment with Dr. Masilamani on December
10, 2012. (Tr. at 507-08). Claimant reported she was not feeling well and her mood was
25
down due to back pain and family issues; however, she reported her overall functioning
was “ok.” Claimant appeared depressed, with a broad, reactive affect. She was alert,
made good eye contact, demonstrated normal speech and thought process, but her
judgment and insight remained limited. Claimant was diagnosed with alcohol abuse,
in remission; bipolar disorder, type 1, most recent episode depressed; and generalized
anxiety disorder. Claimant was advised to continue taking her medications and work
with her therapist, and she was encouraged to exercise.
Claimant returned to Dr. Wilson on December 28, 2012, with excessive nasal
congestion and drainage. (Tr. at 433-34). A review of systems was unremarkable other
than history of joint pain or myalgia and GERD. The review was negative for nausea,
vomiting and diarrhea. There were no IBS symptoms, such as abdominal cramping,
bloating, hematochezia, melena, or mucoid bowel movement. Dr. Wilson noted
Claimant had negative results to all tests for inhalant and food allergies and a negative
urticarial profile. Claimant was assessed with probable acute sinusitis, chronic
urticarial, and GERD. Claimant was provided with a Medrol Dose Pak and Augmentin.
Claimant presented to Dr. Whitmore on January 17, 2013. (Tr. at 467-68). She
told him that, overall, she was “doing well.” Claimant had lost nine pounds since her
last visit. They discussed meeting with the nutritionist to work-up a diet and exercise
plan with a goal of exercise for forty-five minutes a day. Claimant was assessed with
depression, (“doing very well on Celexa and hydroxyzine), GERD, (“doing well on
Dexilant”), hyperglycemia and hyperlipidemia, (to be treated with diet and exercise).
On January 23, 2013, Claimant was seen by Dr. Masilamani. (Tr. at 509-10).
She reported improved sleep, even without taking trazodone, and a stable mood, made
better since she began to lose weight. Upon examination, Claimant’s mood was good
26
and her affect euthymic. Claimant was encouraged to start walking twenty minutes a
day for exercise, see the nutritionist, and meet with her therapist. Claimant was advised
to continue her medication regimen.
Claimant returned to Dr. Lowe on February 13, 2013, reporting that her back
symptoms remained the same. (Tr. at 472-73). A review of systems was within normal
limits. On examination, Claimant walked without a limp, and had relatively good
mobility of her back, intact reflexes at the ankles and knees, strong toe extensors,
negative straight leg raise both supine and sitting, and no trigger points in the low back.
Claimant was advised to continue to work on strengthening her core and to return in
two to three months.
Claimant saw Dr. Masilamani on February 25, 2013. (Tr. at 511-12). Claimant
reported her mood was stable, rating it five to six out of ten. Also, she was not having
any trouble sleeping, describing her sleep as “good.” At this visit, Claimant weighed
two hundred twenty-three pounds, and her blood pressure was 132/86. On
examination, her mood was fair, affect euthymic, speech and thought process normal,
although her judgment and insight remained limited. Claimant was encouraged to
continue to walk for exercise, remain on her medication, and take some time for
herself.
On February 27, 2013, Claimant presented to Ben Edwards, M.D., for an annual
gynecologic examination. (Tr. at 556-61). Claimant complained of pelvic pain. A review
of systems was positive for abdominal pain, pelvic pain, and painful periods with
excessive bleeding, but was negative for abdominal bloating, diarrhea, constipation,
urinary urgency, anxiety, depression, or premenstrual syndrome. On examination, the
abdomen was non-tender with no masses found. The uterus was normal in size with
27
no tenderness or masses. Claimant’s mood and affect were normal. Claimant was
assessed with dysmenorrhea, endometriosis, and female pelvic pain. Dr. Edwards
prescribed Naproxen and Empresse and ordered an ultrasound to investigate her
complaints of pelvic pain.
One month later, on March 27, Claimant underwent a transvaginal ultrasound
performed by William Burns, M.D. (Tr. at 554-55). The ultrasound revealed that
Claimant’s uterus was normal in size with no evidence of myometrial lesion. The
endometrial stripe was well defined, following a normal anatomic course measuring
4.9 mm in thickness. A tiny hyperechoic focus was found in the anterior endometrium
that was possibly a miniscule polyp. Claimant’s ovaries were normal in size with no
evidence of intra-ovarian or extra-ovarian adnexal lesion seen. The findings, other than
the endometrial finding, were found to be normal.
Claimant returned to Dr. Edwards on April 17, 2013 with complaints of pelvic
pain and menoetrrhagia. (Tr. at 547-51). She described the onset of moderate deep
pelvic pain that was gradual over a period of months. A review of systems was positive
for painful and irregular periods, and excessive bleeding during periods; however, it
was negative for abdominal pain, bloating, diarrhea, constipation or bright red blood
from the rectum, anxiety, depression or premenstrual syndrome. Claimant’s physical
examination was unremarkable, except for tenderness of the uterus. At this visit,
Claimant’s listed active problems included arthritis, backache, bladder disorders,
candida albicans vaginitis, change in stool, chest tightness, cholelithiasis, cholelithiasis
with chronic cholecystitis, dysmenorrhea, endometriosis, GERD, female pelvic pain,
polyuria, hay fever, headache, heart rate and rhythm, hemorrhoids, IBS, recent change
in weight, vaginal candidiasis, and vision impairment. Claimant was scheduled for a
28
laparoscopy, D & C, and hysteroscopy that occurred on April 25. (Tr. at 530-32).The
post-operative diagnosis was menometrorrhagia and chronic pelvic pain, polycystic
ovarian syndrome, and endometriosis.
On April 23, 2013, Claimant was examined by Dr. Lowe with complaints of back
pain after doing housework. (Tr. at 678-79). She described the pain as radiating from
her neck to her hips and legs, worse on the left. She had numbness and tingling in her
arms, legs, and feet. On examination, Claimant walked without a limp and had strong
toe flexors and intact reflexes. Claimant had no specific trigger points in the low back.
While seated, her straight leg raise was negative, but while supine, it was limited to
sixty-five degrees. Dr. Lowe remarked that after her last visit, he was concerned about
trunk conditioning; however, at this visit, Claimant was able to get on and off the
examining table with ease. Claimant was able to sit with legs extended, the only
problem being the positive supine straight leg raising in the form of tight hamstring
muscles. Claimant was advised to exercise and continue her medications.
Claimant saw Dr. Masilamani on April 29, 2013 reporting that her mood was
stable, and she had no sleep issues; however, she was having pelvic pain due to
endometriosis and described the pain as ten out of ten. (Tr. at 744-46). On
examination, Claimant presented with a down mood and euthymic affect. Her weight
at this visit was two hundred twenty-two pounds. Claimant was encouraged to exercise
and see her therapist, as well as continue with her medication regimen.
Claimant returned to Dr. Edwards on May 15, 2013 for post-surgical
examination. (Tr. at 525-29). An examination of Claimant’s abdomen was
unremarkable. Claimant was assessed with endometriosis and polycystic ovarian
syndrome. She was given a prescription for Jolessa.
29
Claimant saw Dr. Masilamani on July 1, 2013. (Tr. at 740-43). Claimant rated
her sleep as “fair,” and her mood stable, but with periods of irritability that she
attributed to her physical health. On examination, Claimant’s mood was fair and her
affect euthymic. Claimant was cooperative with normal speech and thought process,
and her judgment and insight were deemed fair. Claimant was advised to exercise, go
out as much as possible, and continue her medication regimen.
On July 18, 2013, Claimant saw Dr. Whitmore, remarking to him that, overall,
she was “doing well,” and had no specific complaints. (Tr. at 771-72). Claimant took
Naproxen for back pain as needed. Her physical examination was unremarkable other
than some acanthus nigricans of the skin. Claimant was assessed with a history of L5S1 anterolisthesis and L5 spondylosis; however, at this time, Claimant was stable with
no “out of the ordinary” back pain. Claimant was assessed with back pain; depression
for which she received treatment from Dr. Masilamani; allergic rhinitis; GERD that
was controlled well with Dexilant; hyperglycemia; and hyperlipidemia.
Claimant returned to Dr. Lowe on July 23, 2013, with complaints of pain
throughout her entire back, as well as occasional neck pain. (Tr. at 680-81). She
described the pain as radiating from her neck bilaterally to her hips and legs, worse on
the right side. She had numbness and tingling in her feet, again worse on the right.
Claimant rated the pain as seven on a ten-point pain scale. She also complained of
bowel and bladder problems; however, a review of systems was negative for abdominal
pain, nausea or vomiting, and her gastrointestinal system was within normal limits. On
examination, Dr. Lowe noted that he was seeing Claimant on a “good day.” She walked
without a limp, flexed forward to eighty degrees, extended twenty-five degrees, and
could laterally bend twenty-five degrees. While seated, straight leg raise measured
30
ninety degrees bilaterally and, while supine, eighty degrees bilaterally. The bowstring
sign was negative. Range of motion of the hips was normal, and Claimant’s sensation
was intact. Dr. Lowe did not find any trigger points. Dr. Lowe felt that Claimant could
limit wearing her back brace, using it if the pain were to flare up, or if she was going to
walk for an extended time, such as when shopping at stores. Dr. Lowe opined that
Claimant was doing well and did not need to alter her medication regimen. He urged
her to continue being active.
Claimant returned to Dr. Masilamani on August 5, 2013, reporting that, overall,
her mood was stable despite having some pain issues. (Tr. at 737-39). She reported that
she was able to get adequate sleep and had no problem with appetite; in fact, she was
trying to “eat better.” Claimant’s examination remained unchanged from her last visit.
She reported the most stress related to getting her child ready for school. Claimant was
advised to exercise, try to walk, make healthy dietary choices, and continue her current
medication regimen.
On November 4, 2013, Claimant saw Dr. Masilamani and told him her
depression had increased due to the loss of a pet and the recent loss of loved ones. (Tr.
at 733-36). She had not been sleeping well, and although Claimant said her mood was
stable, she had a lot of stress due to family issues. On examination, Claimant’s mood
was down and her affect euthymic. Claimant was encouraged to exercise, walk daily,
and return in one month. Dr. Masilamani increased Trazodone and noted that they
might discuss a referral to a psychologist at her next visit.
On December 4, 2013, Claimant reported to Dr. Masilamani that she was getting
enough sleep, she had no problem with her appetite, and her mood was stable,
describing most days as “decent.” (Tr. at 729-32). However, she did report continued
31
back problems. On examination, Claimant’s mood was fair and her affect euthymic.
Claimant was encouraged to exercise and continue her medication. Claimant advised
Dr. Masilamani she would like to schedule monthly appointments.
On December 10, 2013, Claimant presented to Med Express with complaints of
abdominal pain and left upper quadrant pain, as well as diarrhea, constipation, nausea
and vomiting that began three days prior. (Tr. at 637-41). At this visit, Claimant
weighed two hundred thirty-eight pounds and her blood pressure measured 124/78.
On examination, both the right and left upper quadrants were tender to palpation.
There were no masses or megly noted and there was negative CVA tenderness. An xray of the abdomen was found unremarkable. Claimant was assessed with constipation
and advised to drink fluids. She was given a prescription for Senokot.
Claimant returned to Dr. Masilamani on January 8, 2014 reporting she was not
having sleep or appetite issues and her mood was stable. (Tr. at 725-28). On
examination, Claimant was cooperative, demonstrated normal speech and thought
process, and showed fair insight and judgment. Claimant’s mood was down and her
affect euthymic. She was advised to exercise and begin walking twenty minutes per day,
as well as maintain her current medication regimen. Dr. Masilamani listed Claimant’s
active problems as allergic rhinitis (unspecified); bipolar, affective, depression
(moderate); coronary atherosel, unspecified vessel; GERD; generalized anxiety
disorder; manic depressive, unspecified; other and unspecified hyperlipidemia; other
disorders thyroid; and other malaise and fatigue.
On February 5, 2014, Claimant returned to Dr. Masilamani reporting she had
no sleep or appetite issues and her mood was stable; however, she was feeling
increasingly tired and did not feel like being active. (Tr. at 721-24). At this visit,
32
Claimant weighed two hundred forty-three pounds. Upon examination, Claimant
made good eye contact, showed normal speech, coherent thought process,
demonstrated a fair mood and euthymic affect, and her judgment and insight were fair.
Claimant was once again encouraged to exercise and start walking outside once the
weather improved. Claimant reported her biggest stressor to be her sister-in-law.
Claimant was scheduled to follow up with her therapist.
Claimant returned to Dr. Whitmore on February 12, 2014, stating that other
than a recent diagnosis of sinusitis, she was “doing well” with “no complaints or
concerns.” (Tr. at 766-67). On examination, Claimant’s heart and lungs were normal
with no wheezes, rhonchi, or rales noted. Her abdomen was soft, obese, and nontender. There was no edema or rash on the extremities and no neuropathy with
filament testing. Claimant was assessed with maxillary sinusitis, (treated with
Augmentin); depression (treated by Dr. Masilamani and doing well with Celexa and
hydroxyzine); chronic, annual allergic rhinitis (treated with Astelin, Nasonex and
Zyrtec); GERD (treated with Omeprazole); hyperglycemia; obesity (Claimant had
gained sixteen pounds since her last visit and did not appear to be motivated to lose
weight); and chronic lumbar back pain from L5-S1 anterolisthesis and spondylolysis
(treated with naproxen on per need basis as well as encouraged to exercise and lose
weight).
On March 5, 2014, Claimant told Dr. Masilamani that her sleep was variable,
her appetite normal, and her mood stable; however, she continued to have severe back
pain. (Tr. at 717-20). Upon examination, Claimant’s mood was fair and her affect
euthymic. Claimant was diagnosed with alcohol abuse in remission; bipolar disorder,
type 1, most recent episode depression; and generalized anxiety disorder. Dr.
33
Masilamani referred Claimant to Dr. Jimmy Adams at active physical medicine to help
with Claimant’s pain issues. For generalized anxiety disorder, Claimant was provided
prescriptions for Celexa, Hydroxyzine, Lamictal and Trazodone. Claimant was again
encouraged to exercise and follow-up with her therapist.
Dr. Whitmore examined Claimant on March 25, 2014 to follow up her
hypertension, noting Claimant had started taking Lisinopril the week before and her
blood pressure had improved. (Tr. at 763). Claimant reported that she continued to
have low back pain. At this visit, Claimant weighed two hundred forty-four pounds and
had a blood pressure of 127/73. Her physical examination was unremarkable other
than it was noted Claimant wore a back brace. Claimant was advised to continue taking
Lisinopril and follow-up with Dr. Lowe for back pain.
On April 1, 2014, Claimant returned to Dr. Lowe, reporting that she was “getting
along pretty good.” (Tr. at 682-83). Nevertheless, Claimant complained of pain in the
entire back, along with occasional neck pain that radiated into her hips and legs, worse
on the right side. Claimant rated the pain as seven out of ten. In addition, she reported
numbness and tingling in both feet, worse on the right, and bowel and bladder
problems that had been ongoing for years. A review of systems was within normal
limits. On examination, without wearing her back brace, Claimant had a normal gait
with no limp. While seated, her straight leg raise measured ninety degrees and was
seventy degrees in the supine position. There were no radicular issues, although
Claimant exhibited some low back pain. When bending the knees, Claimant could do
abdominal isometrics. Claimant mentioned that she lost weight after having sinus
surgery and wanted to continue losing weight, but had been gaining weight back
instead. Dr. Lowe noted that Claimant was wearing her back brace outside her clothes
34
so he talked with her about wearing it between a t-shirt and her outer shirt. He advised
that although surgery could be helpful for spondylolisthesis in some instances, when
considering Claimant’s combined issues of nerve problems and anxiety, and the fact
that she was “getting along rather well,” he was not inclined to change her current
course of treatment. She was told to return in three weeks to review her laboratory
results.
Claimant presented to Dr. Edwards on April 9, 2014, with breast-related
complaints. (Tr. at 515-20). A review of systems was negative for malaise, fatigue,
abdominal pain, abdominal bloating, diarrhea, constipation, urinary incontinence or
frequency, depression or premenstrual syndrome. Claimant’s mood and affect were
normal, as was her physical examination. Claimant was assessed with endometriosis,
polycystic ovarian syndrome, nipple discharge, and non-puerperal galactorrhea.
That same day, Claimant was seen by Dr. Masilamani, reporting that she was
having a flare up of back pain; however, she had no sleep or appetite issues, and her
mood was stable. (Tr. at 713-16). Claimant’s physical examination was unremarkable;
her mood was fair and her affect was euthymic. Claimant received refills of Celexa,
hydroxyzine, and Trazodone. She was advised to exercise and continue her current
medication regimen.
Later that month, on April 22, Claimant returned to Dr. Lowe. On examination,
Claimant weighed two hundred forty pounds. (Tr. at 684-85). Claimant presented in
“good spirits,” and according to Dr. Lowe wore her back brace and seemed “to be doing
well with it.” Claimant walked without a limp. Straight leg raise while seated measured
ninety degrees. Claimant’s lab reports indicated that her vitamin D level had risen to
normal range; however, the platelet volume had increased from 2011. Claimant was
35
assessed with low back pain, spondylolisthesis, non-injury thoracic back pain, and
osteopenia. Dr. Lowe opined that Claimant’s “total picture is favorable at this point.”
She was advised to return in three to four months and in the meantime, her platelet
volume would be re-examined.
On May 6, 2014, Claimant presented to Jessica L. Williams at Midland
Behavioral Health for counseling. (Tr. at 800-02). With respect to her history,
Claimant reported having some problems with reading. She had worked off and on over
the years, and was applying for disability due to a back injury. Claimant attended
church intermittently and lived with her child. Claimant currently complained of
depression and insomnia, describing her depression as moderate and her insomnia as
frequent. Claimant had problems dealing with stress, but her strengths included family
support, ability to learn and implement new coping skills, and access to transportation
and community resources. Claimant presented with a depressed mood and affect;
however, she was oriented to time, place, and people. Her thought process, memory,
cognitive function, judgment, and insight were intact. Claimant was encouraged to use
improved coping skills. Ms. Williams noted that Claimant was capable of recognizing
her emotions and regulating them most of the time. Claimant was diagnosed with
bipolar II disorder, which was stable and controlled.
The following week on May 14, Claimant returned to Dr. Masilamani, stating
that while her mood was stable, she felt increased irritability and had not been sleeping
well. (Tr. at 710-12). At this visit, Claimant weighed two hundred forty-one pounds and
her blood pressure was 138/81. Claimant demonstrated normal speech and thought
process; her eye contract was good; there was no psychomotor agitation noted; her
mood was irritable; and her affect was euthymic. Dr. Masilamani increased Claimant’s
36
dosage of Trazodone and advised her to follow up with her other physicians for sinus
issues and fatigue. She returned to Dr. Masilamani one month later on June 18 advising
him that she now slept fairly well most nights, and although she was upset about a
recent family issue, her mood had been stable. (Tr. at 707-09). Claimant presented with
an upset mood and euthymic affect. Claimant was encouraged to exercise, remain on
her medication regimen, and participate in outside activities. Dr. Masilamani advised
Claimant he would schedule her to see a psychologist.
On June 23, 2014, Claimant returned to counseling with Jessica Williams. (Tr.
at 803-04). Claimant presented with an anxious mood and affect. She was upset with
family members over their criticisms about the way she cared for her child. Claimant
reported she was trying to organize her child’s things, but it was very difficult due to
her depression. Ms. Williams encouraged Claimant to continue with the project and by
the end of the counseling session, Claimant was “laughing and appeared to feel a little
better.” Claimant was advised to continue doing things, both inside and outside her
home, to help improve her mood. Claimant returned to Ms. Williams one month later
on July 21 reporting she was doing “pretty well” but had low energy. (Tr. at 805-06).
Her mood and affect were depressed at this visit. Claimant was diagnosed with bipolar
II disorder, which was stable and controlled.
The following day, on July 22, Claimant presented to Dr. Lowe with complaints
of continued low back and bilateral leg pain, left side greater than right. (Tr. at 68687). Claimant rated her back pain as averaging seven to eight out of ten. Claimant also
continued to wear her back brace. On examination, Claimant walked without a limp
and did not have any trigger points in her back. Straight leg raise while seated
measured ninety degrees. Straight leg raise while supine measured seventy degrees;
37
however, this caused knee pain as opposed to back pain. As Claimant’s back brace
appeared worn out, Dr. Lowe provided Claimant with a prescription for a new back
brace and ordered lab work.
Claimant returned to Dr. Whitmore on August 12, reporting no specific
complaints or concerns. (Tr. at 761-62). Claimant’s current medication regimen
included Naproxen (pain relief), Celexa (depression), hydroxyzine (anxiety), Astelin
(rhinitis), Zyrtec (antihistamine), Enpresse (birth control), omeprazole (GERD),
Lisinopril (hypertension), Lamictal (mood), and trazodone (depression and anxiety).
A review of systems was negative for any gastrointestinal issues such as constipation,
diarrhea, melan, or hematochezia and was otherwise unremarkable with the exception
of chronic back pain. Nevertheless, Claimant’s past medical history included, in part,
irritable bowel syndrome. At this visit, Claimant weighed two hundred fifty-five
pounds and had a blood pressure of 123/79. Claimant’s physical examination was
unremarkable. Claimant was assessed with hypertension that was well-controlled,
allergic rhinitis well controlled; depression; GERD, well controlled; and history of
hyperglycemia. Claimant’s weight had increased by eleven pounds since her last visit;
attributed, in part, to her inability to be active due to back pain.
On August 19, 2014, Claimant presented to Dr. Lowe with complaints of back
pain and occasional neck pain that radiated into her hips and legs. She continued to
rate her pain as seven to eight out of ten. (Tr. at 688-89). On examination, her sitting
straight leg raise measured ninety degrees. Claimant’s toe extensors were strong, and
the reflexes in her knees and ankles were intact. Dr. Lowe discussed whether
Claimant’s condition warranted fusion surgery; however, he believed there was not
enough evidence to change Claimant’s current treatment plan. Claimant was advised
38
to wear her back brace and return in six weeks.
Claimant met with Jessica Williams for therapy on August 21, 2014. (Tr. at 80708). Ms. Williams found Claimant to have a depressed mood and affect; however, she
was alert, demonstrating intact thought process, memory, judgment, insight and
cognitive function. Claimant remained able to learn and implement new coping skills.
Claimant reported fatigue due to getting her child back in the routine of going to school.
She reported avoiding certain family members who were causing her stress, telling Ms.
Williams “things have been okay.”
On September 10, 2014, Claimant returned to Dr. Masilamani, reporting she
had no sleep or appetite issues, nor did she have any recent stressful events. (Tr. at
704-05). Claimant reported her mood had been stable (five to six on a scale of ten). On
examination, Claimant made good eye contact, showed no psychomotor agitation, and
demonstrated normal speech and thought processes. Her mood was good, and her
affect was broad and reactive. Claimant was advised to continue her medication
regimen and avoid family members who caused her stress.
Claimant returned to Med Express on September 22, 2014 with complaints of
painful, swollen left knee not attributed to an injury. (Tr. at 647-49). Claimant said the
pain began the day before and was located in the anterior left knee with worsening pain
upon weight bearing and with movement. Upon examination, there appeared full
strength against resistance in the left knee; however, there was limited flexion and
extension due to pain. There appeared normal laxity of the left knee but swelling was
noted and there was tenderness to the left patella on palpation. An x-ray of the left knee
revealed well-maintained joint spaces with no abnormal calcification, fracture or
periosteal reaction. There was no evidence of focal lytic or sclerotic lesion. Trace
39
suprapatellar effusion was noted. The overall impression was no acute bone
abnormality. (Tr. at 659). Claimant was assessed with left knee effusion and advised to
apply ice to the knee, get adequate rest, wrap the knee with ace bandage, and take
prednisone for five days.
One day later, Claimant presented to Dr. Whitmore for follow up of diabetes
mellitus. (Tr. at 753-57). Claimant had no complaints of worsening vision, chest pain,
dyspnea, numbness, or tingling in her limbs. A review of systems was negative. Past
medical history included recent non-compliance with diet and exercise. Claimant’s
active medical problems included allergic rhinitis, unspecified; benign neoplasm lesion
of the mouth; bipolar affective disorder, depression, moderate; cholelithiasis; diabetes
mellitus, type 2; endometriosis; GERD; generalized anxiety disorder; manic
depressive, unspecified; hyperlipidemia; malaise and fatigue; and spondylolisthesis at
L5-S1. At this visit, Claimant weighed two hundred fifty-three pounds with a measured
blood pressure of 131/88. Her physical examination was normal. Claimant had normal
deep tendon reflexes, and no peripheral neuropathy was noted during filamentis
testing. She was assessed with Type 2 diabetes mellitus, well controlled with
Metformin.
Claimant returned to Dr. Lowe on September 30, 2014 reporting she was having
a bad day due to pain located in her entire back and occasionally in her neck. (Tr. at
690-91). The pain radiated into both hips and legs, worse on the right side, with
numbness and tingling of the feet. Claimant rated her pain as averaging eight out of
ten. Claimant reported bowel and bladder problems and urinary tract infections.
Claimant also reported left knee pain and swelling. On examination, Claimant walked
without a limp. Dr. Lowe noted that Claimant wore her back brace. Her toe extensors
40
were strong, and straight leg raise while seated was ninety degrees. The reflexes in her
knees and ankles were intact, and she did not appear to have any significant sensory
change. Dr. Lowe advised Claimant that, frequently at her age, patients with
spondylolisthesis required surgical intervention; however, considering that he was
seeing her on a “bad day,” he did not feel surgery was an appropriate course of action
in her case. Instead, Claimant was prescribed Neurontin for pain relief and Vitamin D.
Claimant was advised to continue her medication regimen.
Claimant returned to Dr. Lowe the following month on October 21, reporting
continued back pain that rated seven out of ten. (Tr. at 692-93). Dr. Lowe noted that
an x-ray of the lumber spine showed osteopenia. Claimant was counseled on exercise,
abdominal isometrics, and press-up exercises. Dr. Lowe advised Claimant to work on
strengthening and stretching at home.
The following day, on October 22, Claimant presented to Dr. Masilamani
complaining of back pain and anticipating back surgery. (Tr. at 700-03). Claimant told
Dr. Masilamani that her mood was helped by taking Celexa and, overall, trazodone had
helped with her sleep issues. Claimant described her mood as stable, but she had been
irritable at times due to illness and back pain. On examination, Claimant’s mood was
fair, and her affect was euthymic. She was encouraged to exercise, return to Ms.
Williams for therapy, continue her medications, and follow up with Drs. Lowe and
Whitmore for her medical issues.
On October 28, 2014, Claimant was seen by Ms. Williams reporting ongoing
issues with some family members. (Tr. at 809-10). Ms. Williams noted that Claimant
was continuing to clear out her house, a project she had been talking about since
starting therapy with Ms. Williams. Claimant presented with a depressed mood and
41
affect. However, her thought process, memory, cognitive function, judgment, and
insight were intact. Claimant was assessed with controlled bipolar II disorder.
B. Consultative Assessments and Other Opinions
On December 21, 2012, G. David Allen, Ph.D., completed a Psychiatric Review
Technique. (Tr. at 89-91). He found that Claimant had medically determinable
impairments under Listing 12.04 (affective disorders) and Listing 12.06 (anxiety
related disorders), which did not precisely satisfy the diagnostic criteria. Dr. Allen
determined that Claimant had mild restrictions of activities of daily living and in
maintaining social function, concentration, persistence, and pace. Claimant had no
episodes of decompensation, and there was no evidence to satisfy the paragraph “C”
criteria. Dr. Allen opined that Claimant’s mental functional limitations did not exceed
mild severity. On April 3, 2013, Philip E. Comer, Ph.D., completed a Psychiatric Review
Technique, concurring with the findings of Dr. Allen. (Tr. at 104-06). Dr. Comer agreed
that the severity of mental functional limitation did not exceed mild, adding that the
new medical evidence in the file did not show any additional significant mental and/or
emotional limitations. Therefore, Dr. Comer affirmed Dr. Allen’s findings as written.
On December 26, 2012, Rabah Boukhemis, M.D., completed a Physical Residual
Functional Capacity Assessment. (Tr. at 91-93). Dr. Boukhemis determined that
Claimant could occasionally lift and/or carry fifty pounds; frequently lift and/or carry
twenty-five pounds; stand, walk and/or sit about six hours in an eight hour workday;
and had unlimited ability to push and/or pull with the listed weight restrictions.
Claimant could frequently climb ramps or stairs, balance, stoop, kneel, or crouch and
could occasionally crawl and climb ladders, ropes, or scaffolds. Claimant had no
manipulative, visual, or communicative limitations. As for environmental limitations,
42
Claimant was unlimited in her exposure to wetness, humidity, and noise; however, she
needed to avoid concentrated exposure to extreme cold or heat, vibration, fumes,
odors, dusts, gases, poor ventilation and hazards, such as machinery or heights. On
April 3, 2013, Pedro F. Lo, M.D., completed a Physical Residual Functional Capacity
Assessment, drawing identical conclusions to those of Dr. Boukhemis. (Tr. at 106-08).
Under the additional explanation section of the form, Dr. Lo commented that Claimant
was previously denied disability at medium residual functional capacity. He listed
Claimant’s allegations as lumbar back problems, IBS, vision problems, migraines, knee
problems, problems with shoulders and hands, and allergies. Dr. Lo opined that
Claimant had spondylolisthesis 20% grade and pars defect; however, there was no
neurological loss. Claimant had fair range of motion; her straight leg raise was
negative; and she was obese with a body mass index of 36. Dr. Lo affirmed the Physical
Residual Functional Capacity Assessment prepared by Dr. Boukhemis as written.
VII.
Discussion
Having thoroughly considered the record, the Court concludes that neither of
Claimant’s challenges to the Commissioner’s decision has merit. Each challenge is
considered below.
A. RFC Finding
Claimant is critical of the ALJ’s RFC finding, arguing that it failed to account for
the combined effect of all of her impairments and was based on an improper
assessment of her credibility. Between the third and fourth steps of the sequential
disability determination process, the ALJ must ascertain a claimant’s RFC, which is the
claimant’s “ability to do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis.” See Social Security Ruling (“SSR”) 96-8p,
43
1996 WL 374184, at *1 (S.S.A. 1996). RFC is a measurement of the most that a
claimant can do despite his or her limitations, and the finding is used at steps four and
five of the sequential evaluation to determine whether a claimant can still do past
relevant work and, if not, whether there is other work that the claimant is capable of
performing. Id. According to SSR 96-8p, the ALJ’s RFC determination requires “a
function-by-function assessment based upon all of the relevant evidence of an
individual’s ability to do work-related activities.” Id. at *3. The functions that the ALJ
must assess include the claimant’s physical abilities, “such as sitting, standing, walking,
lifting, carrying, pushing, pulling, or other physical functions (including manipulative
or postural functions, such as reaching, handling, stooping or crouching);” mental
abilities; and other abilities, “such as skin impairment(s), epilepsy, impairment(s) of
vision, hearing or other senses, and impairment(s) which impose environmental
restrictions.” 20 CFR 416.945(b-d). Only by examining specific functional abilities can
the ALJ determine (1) whether a claimant can perform past relevant work as it was
actually, or is generally, performed; (2) what exertional level is appropriate for the
claimant; and (3) whether the claimant “is capable of doing the full range of work
contemplated by the exertional level.” SSR 96-8p, 1996 WL 374184, at *3. Indeed,
“[w]ithout a careful consideration of an individual’s functional capacities to support an
RFC assessment based on an exertional category, the adjudicator may either overlook
limitations or restrictions that would narrow the ranges and types of work an
individual may be able to do, or find that the individual has limitations or restrictions
that he or she does not actually have.” Id. at *4.
In determining a claimant’s RFC, the ALJ “must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts
44
(e.g.
laboratory
findings)
and
nonmedical
evidence
(e.g.,
daily
activities,
observations).” Id. at *7. Further, the ALJ must “explain how any material
inconsistencies or ambiguities in the evidence in the case record were considered and
resolved.” Id. at *7. “Remand may be appropriate where an ALJ fails to assess a
claimant's capacity to perform relevant functions, despite contradictory evidence in the
record, or where other inadequacies in the ALJ’s analysis frustrate meaningful review.”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Cichocki v. Astrue, 729
F.3d 172, 177 (2d Cir. 2013)) (markings omitted).
Here, the ALJ provided a thorough discussion of Claimant’s impairments and
her RFC, addressing the objective medical evidence, Claimant’s statements regarding
the severity and persistence of her symptoms, Claimant’s reported activities, and the
function-by-function assessments provided by agency consultants. Contrary to
Claimant’s assertion, the ALJ did consider the functional limitations associated with
all of Claimant’s medically determinable impairments, including her non-severe
conditions. For example, at step two of the process, the ALJ addressed Claimant’s
functional limitations, acknowledging that she had some motion loss, loss of sensation,
and stiffness in her back. (Tr. at 14). The ALJ also accepted that Claimant had some
incontinence related to her IBS, and experienced mood swings and related symptoms.
(Tr. at 14-15). The ALJ reviewed the evidence regarding Claimant’s gynecological and
pelvic issues, concluding that these impairments were entirely asymptomatic after
treatment in April 2013. (Tr. at 15). Similarly, while Claimant had hypertension and
diabetes, her symptoms were well controlled on medication and, with diet and exercise,
Claimant would likely have no abnormal findings at all. As far as Claimant’s headaches
and vision problems, the ALJ indicated that these conditions should not interfere with
45
Claimant’s ability to work, because they could be corrected with an updated
prescription for eyeglasses. Consequently, the ALJ clearly considered the functional
effect of each of Claimant’s impairments.
In analyzing Claimant’s RFC, the ALJ also reviewed and considered the
reliability of Claimant’s statements regarding the disabling effects of her impairments.
Pursuant to 20 C.F.R. § 416.929, when evaluating a claimant’s report of symptom
severity and persistence, the ALJ is required to use a two-step process. First, the ALJ
must determine whether the claimant’s medically determinable medical and
psychological conditions could reasonably be expected to produce the symptoms
alleged by the Claimant. 20 C.F.R. § 416.929(a). “[A]n individual's statements of
symptoms alone are not enough to establish the existence of a physical or mental
impairment or disability.” SSR 16-3p, 2016 WL 1119029, at *2 (effective March 16,
2016).5 Instead, there must exist some objective “[m]edical signs and laboratory
findings, established by medically acceptable clinical or laboratory diagnostic
techniques” which demonstrate “the existence of a medical impairment(s) which
results from anatomical, physiological, or psychological abnormalities and which could
reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. §
416.929(b).
Second, after establishing that the claimant’s conditions could be expected to
produce the alleged symptoms, the ALJ must evaluate the intensity, persistence, and
The SSA recently provided guidance for evaluating a claimant’s report of symptoms in the form of SSR
16-3p. In doing so, the SSA rescinded SSR 96-7p, 1996 WL 374186, which Claimant relied on in her
memorandum. The undersigned finds it appropriate to consider Claimant’s second challenge under the
more recent Ruling as it “is a clarification of, rather than a change to, existing law.” Matula v. Colvin,
No. 14 C 7679, 2016 WL 2899267, at *7 n.2 (N.D. Ill. May 17, 2016); see also Morris v. Colvin, No. 14CV-689, 2016 WL 3085427, at *8 n.7 (W.D.N.Y. June 2, 2016).
5
46
severity of the symptoms to determine the extent to which they prevent the claimant
from performing basic work activities. Id. § 416.929(a). If the intensity, persistence, or
severity of the symptoms cannot be established by objective medical evidence, the ALJ
must consider “other evidence in the record in reaching a conclusion about the
intensity, persistence, and limiting effects of an individual's symptoms,” including a
claimant’s own statements. SSR 16-3p, 2016 WL 1119029, at *5-*6. In evaluating a
claimant’s statements regarding his or her symptoms, the ALJ will consider “all of the
relevant evidence,” including (1) the claimant’s medical history, signs and laboratory
findings, and statements from the claimant, treating sources, and non-treating
sources, 20 C.F.R. § 416.929(c)(1); (2) objective medical evidence, which is obtained
from the application of medically acceptable clinical and laboratory diagnostic
techniques, id. § 416.929(c)(2); and (3) any other evidence relevant to the claimant’s
symptoms, such as evidence of the claimant's daily activities, specific descriptions of
symptoms (location, duration, frequency and intensity), precipitating and aggravating
factors, medication or medical treatment and resulting side effects received to alleviate
symptoms, and any other factors relating to functional limitations and restrictions due
to the claimant’s symptoms. Id. § 416.929(c)(3); see also Craig, 76 F.3d at 595; SSR
16-3p, 2016 WL 1119029, at *4-*7. In Hines v. Barnhart, the Fourth Circuit stated that:
Although a claimant’s allegations about her pain may not be discredited
solely because they are not substantiated by objective evidence of the
pain itself or its severity, they 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 cause the pain the claimant alleges he suffers.
453 F.3d at 565 n.3 (citing Craig, 76 F.3d at 595). The ALJ may not reject a claimant’s
allegations of intensity and persistence solely because the available objective medical
47
evidence does not substantiate the allegations; however, the lack of objective medical
evidence may be one factor considered by the ALJ. SSR 16-3p, 2016 WL 1119029, at *5.
SSR 16-3p provides further guidance on how to evaluate a claimant’s statements
regarding the intensity, persistence, and limiting effects of his or her symptoms. For
example, the Ruling stresses that the consistency of a claimant’s own statements
should be considered in determining whether a claimant’s reported symptoms affect
his or her ability to perform work-related activities. Id. at *8. Likewise, the longitudinal
medical record is a valuable indicator of the extent to which a claimant’s reported
symptoms will reduce his or her capacity to perform work-related activities. Id. A
longitudinal medical record demonstrating the claimant’s attempts to seek and follow
treatment for symptoms may support a claimant’s report of symptoms. Id. On the other
hand, an ALJ “may find the alleged intensity and persistence of an individual's
symptoms are inconsistent with the overall evidence of record,” where “the frequency
or extent of the treatment sought by an individual is not comparable with the degree of
the individual's subjective complaints,” or “the individual fails to follow prescribed
treatment that might improve symptoms.” Id.
Ultimately, “it is not sufficient for [an ALJ] to make a single, conclusory
statement that ‘the individual's statements about his or her symptoms have been
considered’ or that ‘the statements about the individual's symptoms are (or are not)
supported or consistent.’ It is also not enough for [an ALJ] simply to recite the factors
described in the regulations for evaluating symptoms. The determination or decision
must contain specific reasons for the weight given to the individual's symptoms, be
consistent with and supported by the evidence, and be clearly articulated so the
individual and any subsequent reviewer can assess how the [ALJ] evaluated the
48
individual's symptoms.” Id. at *9. SSR 16-3p instructs that “[t]he focus of the
evaluation of an individual's symptoms should not be to determine whether he or she
is a truthful person”; rather, the core of an ALJ’s inquiry is “whether the evidence
establishes a medically determinable impairment that could reasonably be expected to
produce the individual's symptoms and given the adjudicator's evaluation of the
individual's symptoms, whether the intensity and persistence of the symptoms limit
the individual's ability to perform work-related activities.” Id. at *10.
When considering whether an ALJ’s evaluation of a claimant’s reported
symptoms is supported by substantial evidence, the Court does not replace its own
assessment for those of the ALJ; rather, the Court scrutinizes the evidence to determine
if it is sufficient to support the ALJ’s conclusions. In reviewing the record for
substantial evidence, the Court does not re-weigh conflicting evidence, reach
independent determinations as to the weight to be afforded to a claimant’s report of
symptoms, or substitute its own judgment for that of the Commissioner. Hays, 907
F.2d at 1456. Moreover, because the ALJ had the “opportunity to observe the demeanor
and to determine the credibility of the claimant, the ALJ’s observations concerning
these questions are to be given great weight.” Shively v. Heckler, 739 F.2d 987, 989
(4th Cir. 1984).
Claimant’s contention that the ALJ erred in discounting Claimant’s credibility,
because Claimant’s statements and the objective evidence were mutually supportive of
a disability finding does not actually address the propriety of the ALJ’s credibility
assessment. Instead, Claimant is merely reweighing the evidence, choosing to place
more evidentiary emphasis on her own statements than did the ALJ. Such an exercise
is not one in which this Court will engage. Rather, the Court will only review the
49
decision to ascertain whether the proper process was followed and the resulting finding
is supported by substantial evidence. Here, as more fully discussed below, the written
decision clearly reflects that the ALJ performed the proper two-step credibility analysis
and supported her finding with detailed pieces of evidence.
Claimant’s related criticism, that the ALJ simply regurgitated credibility
“boilerplate,” is not a fair representation of the ALJ’s discussion. Indeed, the ALJ
provided numerous case-specific reasons for her decision to discount the reliability of
Claimant’s statements. For example, the ALJ felt that Claimant’s “subjective
descriptions of symptoms severity and functional limitation seem[ed] rather excessive
and
exaggerated”
in
light
of
Claimant’s
noncompliance
with
treatment
recommendations. (Tr. at 21). In addition, the ALJ pointed out that Claimant had not
required surgical intervention or aggressive medical management, and her diagnostic
studies and clinical findings did not reflect any significant progression of her
impairments. The ALJ also noted that Claimant had no physician support for a finding
of disability; to the contrary, Dr. Lowe seemed to feel that conservative treatment had
been successful. (Id.). The ALJ further considered the record regarding Claimant’s IBS,
indicating that although Claimant complained of incontinence, there were few reported
incidents in the record. Claimant was not required to wear protective undergarments,
and she reported a healthy appetite, denying significant weight loss attributable to her
disease. (Tr. at 22). In fact, the record shows that Claimant had a tendency to gain
weight. Despite repeated advice from her treating providers to lose weight, Claimant
did not demonstrate any effort to pursue a weight loss regimen. In addition, Claimant’s
mental health treatment was ongoing, and her psychological conditions were deemed
stable on medication. (Id.). As part of the credibility analysis, the ALJ commented on
50
the medical evidence from a longitudinal perspective and referenced particular clinical
notes and diagnostic findings corroborating her conclusion that Claimant exaggerated
the disabling effects of her symptoms. Consequently, the ALJ’s credibility analysis and
discussion complied with the applicable rules and regulations.
Finally, the ALJ also considered the findings made by ALJ Dummer in
Claimant’s prior Social Security disability proceeding, as well as the RFC assessments
of the consulting experts. The ALJ placed significant weight on the opinions of the
agency consultants, who provided function-by-function assessments based upon the
evidence as a whole. The ALJ concluded that the evidence collected since the last
proceeding, combined with the opinions of the medical sources supported a reduction
in ALJ Dummer’s RFC finding. After having thoroughly reviewed and analyzed the
relevant evidence, the ALJ made an RFC finding and fully explained the basis of the
finding in a detailed discussion of the record. Therefore, the undersigned finds no error
in the ALJ’s RFC finding.
B. Inconsistency in the RFC Discussion
For her second challenge, Claimant highlights an “internal inconsistency”
between the RFC finding and the RFC discussion. In particular, the ALJ made a
determination that Claimant could perform a reduced range of medium exertional
work. (Tr. at 19). However, at the same time, the ALJ stated in the discussion that she
had reviewed ALJ’s Dummer’s RFC finding and felt “that additional evidence
submitted since the last decision provides a basis to warrant further reduction and
accordingly; has not fully adopted the prior findings.” (Tr. at 21). The ALJ added that
“[s]ignificant weight has been afforded the prior assessments and opinions of the nonexamining State agency physicians, Dr. Rabah Boukehemis and Pedro Lo. Restriction
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to a reduced range of light work as set forth appears reasonable and well supported.”
(Id.). Claimant stresses the confusion created by the two apparently inconsistent
findings and asks: “At any rate, did the Administrative Law Judge limit Plaintiff to
medium or light work?”
Obviously, the ALJ did misspeak at one point in the decision, or at the other.
However, a review of the decision and related evidence strongly suggests that the ALJ
intended to find Claimant capable of a reduced range of medium work, and the
reference to “light” work was a clerical error. Not only did the ALJ write the RFC
finding for medium work, but she asked the vocational expert to assume a reduced
range of medium level work in the controlling hypothetical question. Furthermore,
although ALJ Dummer’s prior decision likewise found Claimant capable of a reduced
range of medium level exertional work, their RFC findings are not the same. As the ALJ
indicates, her RFC finding does constitute a “further reduction” of the occupational
base when compared with ALJ Dummer’s RFC finding. In this case, the ALJ concluded
that Claimant should never climb ladders, ropes, or scaffolds; could only
occasionally crawl, and had additional limitations associated with her mental
impairments. In contrast, ALJ Dummer found that Claimant was limited to
occasional climbing of ladders, ropes, and scaffolds; frequent crawling; and she had
no limitations related to her mental impairments. (Tr. at 19, 73). As such, although
both ALJs found Claimant’s maximum exertional level to be medium, ALJ Dummer’s
finding included less limitation than the current RFC finding.
Lastly, the ALJ explicitly gave significant weight to the physical RFC findings of
Dr. Boukhemis and Dr. Lo, who both expressly concluded that Claimant was capable
of medium level exertional work with additional nonexertional limitations. (Tr. at 21,
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91, 106). Had the ALJ intended to find Claimant capable of only light level exertional
work, she would not have afforded significant weight to those opinions. Accordingly,
the record, the written decision, and the transcript of the administrative hearing all
indicate that the ALJ intended the RFC finding to include an exertional level of
medium, and the reference to light level work was a typographical error.
Nonetheless, any error in the RFC discussion is harmless, because the
vocational expert found work that Claimant was capable of doing work at the medium,
light, and sedentary exertional levels, even when assuming the additional
nonexertional limitations set forth in the RFC finding. Courts have applied a harmless
error analysis to administrative decisions that do not fully comport with the procedural
requirements of the agency’s regulations, but for which remand “would be merely a
waste of time and money.” Jenkins v. Astrue, 2009 WL 1010870 at *4 (D. Kan. Apr. 14,
2009) (citing Kerner v. Celebrezze, 340 F.2d 736, 740 (2nd Cir. 1965)). In general,
remand of a procedurally deficient decision is not necessary “absent a showing that the
[complainant] has been prejudiced on the merits or deprived of substantial rights
because of the agency’s procedural lapses.” Connor v. United States Civil Service
Commission, 721 F.2d 1054, 1056 (6th Cir. 1983). “[P]rocedural improprieties alleged
by [a claimant] will therefore constitute a basis for remand only if such improprieties
would cast into doubt the existence of substantial evidence to support the ALJ's
decision.” Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988). The Fourth Circuit has
similarly applied the harmless error analysis in the context of Social Security disability
determinations. See Morgan v. Barnhart, 142 Fed. Appx. 716, 722–23 (4th Cir. 2005)
(unpublished); Bishop v. Barnhart, 78 Fed. Appx. 265, 268 (4th Cir. 2003)
(unpublished). In this case, the testimony of the vocational expert, coupled with the
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written decision, provide substantial support for the conclusion that Claimant is not
disabled regardless of whether she is limited to a reduced range of medium work or a
reduced range of light work. Therefore, the Commissioner’s disability determination
should be affirmed.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is supported by substantial evidence. Therefore, the Court
DENIES Plaintiff’s motion for judgment on the pleadings, GRANTS Defendant’s
request that the Commissioner’s decision be affirmed, and DISMISSES this action
from the docket of the Court. A Judgment Order shall be entered accordingly.
The Clerk of this Court is directed to transmit copies of this Memorandum
Opinion to counsel of record.
ENTERED: May 22, 2017
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