CAROL E. JACKSON, District Judge.
This matter is before the Court for review of an adverse ruling by the Social Security Administration.
On March 14, 2008, plaintiff Nancy Powell filed an application for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of March 14, 2010. (Tr. 184-87). After plaintiff's application was denied on initial consideration (Tr. 144-48), she requested a hearing from an Administrative Law Judge (ALJ).
Plaintiff sought review in this court,
In early 2007, plaintiff sought treatment from urgent care centers and emergency rooms for a variety of ailments, including bronchitis, laryngitis and pneumonia. (Tr. 254-59, 281-94). In June 2007, her primary care physician, Jesse D. Helton, D.O., treated plaintiff for complaints of depression, headache, and hypertension. (Tr. 330). He noted that plaintiff had not previously received treatment for these conditions. She was prescribed Clonidine for treatment of hypertension and anxiety and Prozac for treatment of depression.
In June and July 2007, plaintiff sought emergency treatment for injury to her right wrist. (Tr. 304-19; 246-50). X-rays in July 2007 were negative and plaintiff was discharged with instructions to take Ibuprofen or Tylenol. On July 30, 2007, plaintiff sought emergency treatment for a "sharp" headache that was sensitive to light, accompanied by nausea. (Tr. 295-303). She was observed to have a steady gait. She was treated with Ketorolac,
On August 4, 2007, plaintiff was diagnosed with pneumonia. (Tr. 281-94). On August 22, 2007, she was transported to the emergency room by ambulance with complaints of chest pain, which she rated at level 9 on a 10-point scale. (Tr. 263-80). She had been experiencing the pain sporadically for three weeks. Plaintiff reported that in the past she had been told that these symptoms might be due to her gall bladder. (Tr. 273). An ultrasound of the abdomen revealed a normal liver, gallbladder, and pancreas, mild splenomegaly, and echogenic portions of the kidney raising a question of medullary sponge kidney. (Tr. 263). An EKG was normal. (Tr. 268). She was treated with Toradol and morphine and discharged. A few days later, Dr. Helton started her on a trial of Nexium. (Tr. 329).
In November 2007, plaintiff reported that she continued to experience periodic epigastric pain and that the Nexium did not help. (Tr. 328). Dr. Helton noted the presence of a soft-ball sized neurofibroma on her right lateral leg. Plaintiff, who weighed 197 pounds, complained that she was unable to lose weight. She was started on medication for weight loss and, at her next office visit in December 2007, she had lost 15 pounds. (Tr. 326). In January 2008, plaintiff reported that she had constant pain in her right shoulder that her chiropractor diagnosed a rotator cuff tear. (Tr. 326). On examination, Dr. Helton noted marked weakness and tenderness on palpation. He referred plaintiff for an MRI and told her to take Ibuprofen for pain.
She continued to complain of shoulder pain in February 2008. (Tr. 325). In March, plaintiff requested Topamax
On May 12, 2008, Marsha Toll, Psy.D., completed a Psychiatric Review Technique. (Tr. 335-45). Dr. Toll concluded that plaintiff had a medically determinable diagnosis of depression but that her condition was not severe. Plaintiff had mild difficulties in maintaining social functioning and concentration, persistence or pace. Plaintiff's daily activities included caring for six children. She indicated that she had experienced changes in her self care and that she found it difficult to leave home due to feeling depressed. These claims were considered partially credible but, based on the totality of the evidence, plaintiff's impairment was not severe.
A nonexamining consultant completed a Physical Residual Functioning Capacity Assessment (PRFCA) on May 12, 2008. (Tr. 346-51). Based on a review of the medical records, the consultant determined that plaintiff can occasionally lift or carry 20 pounds and frequently carry 10 pounds. She can sit, stand, or walk about 6 hours in an 8 hour day, and had no limitations in pushing or pulling. The examiner noted that plaintiff claimed disability due to neurofibromatosis, high blood pressure, migraines, back problems, brown spots on the brain and a mass on her left leg. The medical record included diagnoses for neurofibromatosis and morbid obesity. With respect to plaintiff's migraine headaches, the examiner noted that her symptoms did not rise to "listing level," but plaintiff should nonetheless avoid exposure to environmental hazards and noise during migraines. Plaintiff was also treated for high blood pressure, which had not resulted in end organ failure, but which necessitated a restriction on working at heights. The medical record did not include ongoing complaints of, or treatment for, back pain. Plaintiff's daily activities included caring for six children. She had difficulty with chores and shopping and was unable to watch a 2-hour movie because she could not stand or sit for a long period of time. These allegations were considered partially credible and would not preclude her from performing within the specified limitations.
In June 2008, plaintiff returned to the emergency room for treatment of a headache that had lasted three days. (Tr. 353-71). She reported dizziness, pain at the base of her skull, nausea and shortness of breath. She also reported seeing spots and having episodes of confusion during which she blacked out and became nonresponsive. A physical examination did not disclose any weakness, fever, or neurological deficits. A CT scan of her head was normal. (Tr. 369). Plaintiff was diagnosed with headache and vertigo and discharged with prescriptions for Meclizine
Plaintiff was seen at the emergency room in September 2008, with increased swelling in her right lower leg. (Tr. 372-87). On examination, there was pain on palpation and with walking, but no redness or warmth. She rated the pain at level 9 on a 10-point scale. She was diagnosed with cellulitis and discharged with a prescription for an antibiotic and Percocet.
On October 16, 2008, Stanley London, M.D., completed a consultative orthopedic evaluation of plaintiff. (Tr. 388-94). His report indicates that he did not review any records. Plaintiff's chief complaints involved pain in her back and right leg, with swelling that occasionally became black and blue. She described the pain as sharp and stated that the pain in her leg was constant while the back pain came and went. She reported that she could walk for a block, and stand or sit for 20 minutes. On examination, Dr. London noted that plaintiff did not have true radiation of pain. He described a soft mass on plaintiff's lower right leg that was about 14 cm. across. She walked slowly and favored her right leg. She got on and off the examining table with difficulty. On a 5-point scale of muscle strength, with 5 indicating normal strength, plaintiff's lower right leg was rated at 4. (Tr. 392). However, she made only fair effort. Dr. London's clinical impressions were possible degenerative joint disease or disc disease and right leg post-trauma swelling and weakness with possible effusion or muscle tearing. Dr. London opined that plaintiff had a disability expected to last for 3 to 5 months. (Tr. 394).
Plaintiff was treated for laryngitis and strep throat in January 2009 (Tr. 402-07), and for pain in her clavicle in March 2009. (Tr. 408-12). In April 2009, she was diagnosed with bronchitis. (Tr. 413-16). In September 2009, she sought treatment for chronic pain in her left knee which had recently worsened. (Tr. 418-21). She had decreased range of motion and tenderness, without redness or swelling. X-rays were normal. Two days later she required treatment for a punctured ear drum. (Tr. 423).
Plaintiff sought emergency treatment on November 10, 2009, for abdominal pain, which she rated at level 10 on a 10-point scale. (Tr. 693). The pain had begun 9 days earlier and was worsened by eating. (Tr. 694). She reported experiencing weakness and fatigue, nausea and vomiting, and abdominal tenderness. (Tr. 697-98). Her neuromusculoskeletal, cardiovascular, and respiratory functions were all within normal limits. (Tr. 693). She had no pain or swelling in her extremities. Her diagnoses on discharge were urinary tract infection and probable gastroesophageal reflux disease. (Tr. 698).
On January 25, 2010, plaintiff was treated at an urgent care center for complaints of headache and low back pain. She did not have leg pain. (Tr. 687-88). She was diagnosed with sinusitis and low back pain. On February 26, 2010, she was treated for a urinary tract infection. (Tr. 684-85). On May 12, 2010, she sought treatment for anxiety, stating her husband had left her recently with 6 children to care for. (Tr. 680-82). She complained of poor sleep and decreased appetite; she denied experiencing chest pains, shortness of breath, and homicidal or suicidal ideation. She was given a prescription for Xanax to treat her anxiety.
Plaintiff sought emergency treatment for chest pain on August 20, 2010. (Tr. 672-78). She complained of constant pressure with intermittent sharp stabbing pain, worse with breathing. She rated the pain, which had been present for 4 days, at level 7 on a 10-point scale. With the exception of the pain, her physical condition was unremarkable and she was described as "smiling." (Tr. 676). At discharge, the physician noted that plaintiff "look[ed] very well" and wanted to go home. (Tr. 678). She was diagnosed with chest wall pain and hypertension. (Tr. 672).
On September 24, 2010, plaintiff again sought emergency treatment for a severe headache, cough, and insomnia. (Tr. 631-648). Plaintiff reported that she had had a chronic headache for three months. She denied chest pain, hearing loss, shortness of breath, nausea, vomiting, depression, and insomnia. She reported a history of neurofibromatosis, migraines, and attention deficit disorder. Her medications included Vicodin and Propranolol.
On October 12, 2010, plaintiff sought treatment at an urgent care center for a headache. (Tr. 668-70). She reported that she had had a migraine for five days that had worsened in the previous six hours. Usually, her pain resolved with Vicodin. She had eye pain, body aches, vomiting, nausea, and sensitivity to light and sound. She reported improvement after treatment with Toradol and Zofran.
Plaintiff returned to the urgent care center on February 11, 2011, with a severe cough that caused chest and back pain. (Tr. 664-66). She was diagnosed with bronchitis and given an antibiotic. On April 5, 2011, she returned with an abscessed tooth, a headache and dizziness. (Tr. 660-62). She was treated with Toradol and given prescriptions for an antibiotic, an anti-inflammatory, and Ultram.
Plaintiff returned to see Dr. Helton on April 8, 2011.
On April 30, 2011, a CT scan of the head was completed after she complained of pain after a fall. The results were unremarkable. (Tr. 815).
At an office visit on May 11, 2011, plaintiff told Dr. Helton that she was doing well on her current medications and had no new complaints. (Tr. 808-09). She was eating and sleeping well. Lab results indicated mild anemia but were otherwise normal. Dr. Helton continued her prescriptions for Inderal and HCTZ and scheduled her for follow up in four months. On July 18, 2011, plaintiff was treated for strep throat. She still had a broken tooth. (Tr. 807). On August 26, 2011, plaintiff presented with complaints of ear pain, and frequent heartburn with pain that radiated into her back. (Tr. 805-06). She reported that Ranitidine
On September 18, 2011, plaintiff went to the emergency room with elevated blood pressure. (Tr. 700-20). She reported that she had weakness, numbing, and tingling in her right arm and face; a headache; anxiety; and was seeing spots. She said that she was under a lot of stress and that her husband had left her the night before this episode. (Tr. 707). On examination, it was noted that she was oriented, was not in distress or agitated, and her mood and affect were normal. Her coordination and gait were normal, but she had "slight [right] arm drift." (Tr. 702). All diagnostic tests, including scans of the brain, were negative, (Tr. 702-03, 710, 714), and the physician ruled out stroke and tumors of the central nervous system as a cause of her symptoms. (Tr. 715). At discharge, she had some weakness on the right side, but her symptoms were improving. (Tr. 711, 715). She was prescribed Ativan to treat her anxiety.
On November 15, 2011, plaintiff told Dr. Helton that she was doing well. (Tr. 803-04). She said she had gained a lot of weight since her husband left. On examination, she was in no apparent distress and appeared well. Dr. Helton prescribed Adipex for weight loss, in addition to plaintiff's usual medications. On December 9, 2011, she was given an antibiotic to treat a urinary tract infection. (Tr. 802).
Plaintiff received mental health services from Community Treatment, Inc. (Comtrea).
Plaintiff returned to see Dr. Helton on March 2, 2012, with complaints of vomiting with motion, gastric pain, and intermittent right shoulder pain. Dr. Helton noted that plaintiff was anemic but refused to take supplements. (Tr. 799). On examination, she had tenderness in the gastric area, but no hepatomegaly or splenomegaly, and was not in apparent distress.
On March 5, 2012, Dr. Rohatgi noted that plaintiff presented with anxiety, worry, and stress arising from her legal problems. (Tr. 756-57). She was nonetheless able to perform her activities of daily living. He increased her dosage of Xanax to 1 mg. twice daily, and added 1 mg. of Haldol twice a day, and Benadryl for the side effects of the Haldol. Plaintiff's Global Assessment of Functioning (GAF) score was 60.
On April 26, 2012, plaintiff told Dr. Rohatgi that she was "coping appropriately" with ongoing difficulties and had decided to allow her children to stay with her mother for the moment. (Tr. 754). She had stopped taking Cymbalta, because her insurance lapsed, and Haldol, because it caused nausea, and she did not want to restart either medication. She wanted to continue only with the Xanax. Dr. Rohatgi noted that plaintiff did not present with depression or loss of interest and was "doing well." Her GAF score was 60.
Plaintiff went to the emergency room on June 7, 2012, with complaints of pain in her right lower leg. (Tr. 723-29). It was noted that she had a large mass on the outside of her right calf. She reported that it had been present for seven years but had started causing pain in the last 3 months. The mass also impeded her ability to fully flex her knee. She had not sought treatment because she did not have insurance. On examination she appeared healthy and was not in distress. (Tr. 725). She had full range of motion of the right leg, though she complained that full flexion "put[] tension on the swelling."
Plaintiff saw Dr. Rohatgi on July 20, 2012. (Tr. 752-53). She was optimistic of a favorable outcome to her legal problems with DFS. She stated that she was only taking Xanax once or twice a day. However, Dr. Rohatgi noted that she had run out of Xanax early. He offered to prescribe an antidepressant, but she refused and requested Adderall
On July 30, 2012, plaintiff reported to counselor Jennifer Austin, M.A., that there had been three deaths in the family in recent months and that she had attended her brother's funeral in defiance of instructions by the Department of Family Services to stay away because her children would be present. (Tr. 777-78). Nonetheless, it was noted that plaintiff's functioning and mood had improved. On August 7, 2012, plaintiff reported an increase in depressive symptoms. (Tr. 775-76). On August 30, 2012, Ms. Austin called plaintiff and learned that her children had been returned to her care, and all was going well. (Tr. 773-74).
On December 3, 2012, plaintiff went to the emergency room for treatment of a headache that began one week earlier. (Tr. 732-740). She described the pain as intermittent and mild. (Tr. 732). A CT scan of the head was normal. (Tr. 737). Her diagnoses at discharge were headache, urinary tract infection, and anemia. (Tr. 738). She was discharged with prescriptions for iron and Percocet. (Tr. 739).
Plaintiff returned to see Dr. Rohatgi on December 7, 2012. (Tr. 750-51). She reported that her children were in her care and DFS was still involved with her family. She had many financial worries. Xanax was no longer sufficient to address her anxiety and she asked to resume taking Cymbalta. Dr. Rohatgi agreed. Her diagnoses on this date were generalized anxiety disorder and adjustment disorder with depressed mood. Her GAF score was 55-60.
On January 10, 2013, plaintiff reported that she was about to lose her housing subsidy. (Tr. 769-70). She reported feeling anxious. Dr. Rohatgi noted that plaintiff was taking her Xanax "regularly throughout the day." (Tr. 748-49). She had increased worry, irritability, agitation, and restlessness, but no depression. She said she was having difficulty with focus and concentration, which she attributed to her history of attention deficit hyperactivity disorder, and for which she wanted medication. Dr. Rohatgi told her that this was not option for her and again discussed the benefits of better controlling her anxiety through medication and therapy, but she refused. He continued her prescriptions for Cymbalta and Xanax at the same levels. Her GAF was 60.
Plaintiff saw Dr. Helton on February 13, 2013. (Tr. 797-98). She reported that she had required emergency care for a migraine. She had not taken her blood pressure medication for almost a year because she could not afford it. She reported that standing increased the pain in the tumor on her right leg to 10 on a 10-point scale. She was not taking pain medication, however. She had gained more than 30 pounds, and Dr. Helton agreed to prescribe Adipex for 3 months in exchange for her agreement to walk three miles every day and diet. Plaintiff requested a handicap placard, but he found she did not qualify. He prescribed Propranol and Adipex.
On March 1, 2013, Dr. Rohatgi noted that plaintiff had many new stressors, including husband's attempt to gain custody of her children, involvement with DFS, and her oldest daughter's pregnancy. (Tr. 746-47). She reported anxiety and difficulty sleeping and requested an increase in Xanax. Dr. Rohatgi offered different medications, including those for sleep, but she refused. She was continued on her current dosages of Xanax and Cymbalta. She was directed to complete the paperwork for prescription assistance programs.
At the time of the hearing, plaintiff resided with her six children, ages 7 through 17. (Tr. 470-71). She was separated from her husband, who was on disability and did not provide any child support. Two of her children received disability. Plaintiff testified that she had received special education services for learning disabilities as a child. (Tr. 484). She left school at age 16 when she completed eighth grade. (Tr. 485).
Plaintiff participated in court-ordered individual and family counseling. (Tr. 473). She had been diagnosed with depression and anxiety for which she was taking Xanax and Cymbalta. The medications reduced the frequency of her crying spells from several in a day to one or two a week. (Tr. 488). She also experienced daily episodes of anxiety during which she felt claustrophobic and unable to breathe. (Tr. 491-92). Xanax helped to control these symptoms.
Plaintiff testified that she had neurofibromatosis, as did her mother, one of her children, and a younger brother who had died following surgery to remove a tumor. (Tr. 475-76, 482). Plaintiff testified that she had tumors on her brain that periodically filled with fluid, causing headaches and reduced hearing. (Tr. 475). Her headaches typically lasted for two or three days and could occur four or five times each month. (Tr. 456). She also had a softball-sized tumor on her leg, which swelled with activity and turned black and blue. (Tr. 479). The tumor caused her to stumble several times a day. (Tr. 477). Sometimes she had pain shooting into her toes. She typically spent half of each day in a recliner with her leg propped on a pillow. She was told the tumor was entwined in her muscles and ligaments and could not be removed. (Tr. 476). Plaintiff also testified that she had limited rotation of her right shoulder. (Tr. 481).
Plaintiff testified that, four or five times a month, she had headaches that lasted two to three days at a time. (Tr. 456). Her headaches "just come . . . out of nowhere." (Tr. 469). During headaches, she was unable to concentrate and had to remain in a cool dark place. (Tr. 473). Topamax did not control the pain, and she was allergic to Imitrex. (Tr. 456, 469). Other medications were too expensive and she had been unable to obtain financial assistance for other medications. (Tr. 470). Similarly, she could not afford to see a specialist for her neurofibromatosis.
Plaintiff testified that she tried to eat three meals a day, but her headaches often caused nausea. (Tr. 490). She bathed about twice a week, when she was able to get her oldest daughter's help. Her daughter also helped her to dress.
Plaintiff testified that she had never held a full-time job because she had suffered with neurofibromatosis and headaches since she was a small child. When asked how she took care of her children, she stated that her oldest child helped with the younger children, and her husband had helped before their separation. (Tr. 474). When the children were very young, her husband worked and the family paid someone to help her on days when she had headaches. (Tr. 475).
The ALJ heard testimony from Ann Winkler, M.D., Ph.D., who is board certified in internal medicine and rheumatology. (Tr. 454; 589). Based on a review of plaintiff's medical records, Dr. Winkler testified that plaintiff's medically determinable impairments included the nonsevere impairments of mild splenomegaly; decreased vision; hypertension; neurofibromatosis; and a single episode of weakness on her right side. Her severe impairments included headaches which were not adequately treated; a painful mass on her right leg; and morbid obesity. (Tr. 455-58). These impairments did not meet or equal a listing. Based on the limited information available, Dr. Winkler opined that plaintiff could lift or carry 50 pounds occasionally and 25 pounds frequently, stand or walk 6 hours out of 8, and sit without limitation. (Tr. 460). Dr. Winkler found that plaintiff had no postural limitations, but should avoid unprotected heights. Dr. Winkler opined that headaches can cause absences or diminish a person's capacity to stay focused. (Tr. 461-62).
Counsel asked Dr. Winkler about plaintiff's treatment for issues with her shoulder and arm. Dr. Winkler noted that plaintiff was treated for a broken rib in 2007, but did not require follow-up. In September 2011, it was noted that plaintiff had "light right upper . . . arm drift," which Dr. Winkler explained usually has to do with weakness. (Tr. 463-64). However, in December 2012, there were no complaints of weakness and thus the issue appeared to have resolved.
In response to questions from counsel, Dr. Winkler testified that Imitrex is usually prescribed for migraine headache. (Tr. 462-63). Other medications in the same classification are available for patients who are allergic to Imitrex, as plaintiff alleged. Dr. Winkler noted that plaintiff had one medication trial but there was no follow-up. (Tr. 466). Dr. Winkler agreed that some migraine sufferers do not respond to medication. (Tr. 465). However, under that circumstance, one would expect to find multiple trials of different medications, which had not occurred here. She would also expect to see advice to avoid caffeine, eat regular meals, exercise, and avoid smoking, which she also did not see.
With respect to plaintiff's neurofibromatosis, Dr. Winkler testified that the condition's severity depends upon the location and size of the fibromas. Dr. Winkler noted that Dr. London's report did not mention neurofibromatosis. (Tr. 466-67).
Dolores E. Gonzalez, M. Ed., a vocational expert, testified about the employment opportunities for a younger individual, with limited education, and no past relevant work experience, who was limited to performing work at the medium exertion level, who could occasionally climb ropes, ladders, scaffolds, stairs and ramps; could frequently stoop, kneel, crouch, crawl, and balance; and should avoid exposure to hazards and unprotected heights. In addition, the individual was restricted to routine repetitive tasks, that required only occasional judgment, decision-making, and changes in the work setting. (Tr. 497-98). Such an individual would be able to perform work as a dining room attendant or a hand packager. If the individual were restricted to performing light exertional work, she would be able to perform work as a mail sorter and a marker; and if restricted to sedentary exertional level, could work as a table worker or a document preparer. If the same individual were likely to be absent two days a month or be off task 20 percent of the time, she would be precluded from employment. (Tr. 499).
In the decision issued on October 10, 2013, the ALJ made the following findings:
(Tr. 14-22).
The Court must affirm the Commissioner's decision "if the decision is not based on legal error and if there is substantial evidence in the record as a whole to support the conclusion that the claimant was not disabled."
To be entitled to disability benefits, a claimant must prove she is unable to perform any substantial gainful activity due to a medically determinable physical or mental impairment that would either result in death or which has lasted or could be expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D), (d)(1)(A);
Steps one through three require the claimant to prove (1) she is not currently engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3) her disability meets or equals a listed impairment.
"Prior to step four, the ALJ must assess the claimant's residual functioning capacity (`RFC'), which is the most a claimant can do despite her limitations."
In determining a claimant's RFC, the ALJ must evaluate the claimant's credibility.
At step four, the ALJ determines whether a claimant can return to her past relevant work, "review[ing] [the claimant's] [RFC] and the physical and mental demands of the work [claimant has] done in the past." 20 C.F.R. § 404.1520(e). The burden at step four remains with the claimant to prove her RFC and establish that she cannot return to her past relevant work.
If the ALJ holds at step four of the process that a claimant cannot return to past relevant work, the burden shifts at step five to the Commissioner to establish that the claimant maintains the RFC to perform a significant number of jobs within the national economy.
If the claimant is prevented by her impairment from doing any other work, the ALJ will find the claimant to be disabled.
Plaintiff argues that the ALJ's Residual Functional Capacity (RFC) determination is not supported by medical evidence. She further argues that the hypotheticals posed to the vocational expert were improper.
A claimant's RFC is "the most a claimant can still do despite his or her physical or mental limitations."
Dr. Winkler testified at the hearing that headaches might cause absences from work or loss of concentration. (Tr. 461-62). Plaintiff argues that, because the ALJ gave significant weight to Dr. Winkler's opinion (Tr. 438), the ALJ was obliged to find that plaintiff's headaches would cause frequent absences and loss of concentration in formulating plaintiff's RFC. This argument fails to address the ALJ's determination that plaintiff's headaches were not as limiting as she alleged.
Plaintiff argues that the hypothetical submitted to the vocational expert did not accurately reflect her impairments and thus the ALJ should not have relied on her testimony. A hypothetical is sufficient if it sets forth impairments supported by substantial evidence in the record and accepted as true by the ALJ.
For the reasons discussed above, the Court finds that the Commissioner's decision is supported by substantial evidence in the record as a whole.
Accordingly,
A separate Judgment in accordance with this Memorandum and Order will be entered this same date.
