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Moustaris v. Commissioner of Social Security

United States District Court, Sixth Circuit

August 27, 2013



JAMES R. KNEPP, II, Magistrate Judge.


Plaintiff Dawn-Michele Moustaris filed a complaint against the Commissioner of Social Security seeking judicial review of the decision to deny Disability Insurance Benefits (DIB). The district court has jurisdiction under 42 U.S.C. § 405 (g). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 12). For the reasons stated below, the Court affirms the Commissioner's decision denying benefits.


On February 11, 2008, Plaintiff filed an application for DIB alleging a disability onset date of November 9, 2006. (Tr. 98). She claimed she was disabled due to fibromyalgia, depression, and anxiety. (Tr. 113). Her claims were denied initially and on reconsideration. (Tr. 70-73, 76-78). Plaintiff then requested a hearing before an administrative law judge (ALJ). (Tr. 79). Plaintiff (represented by counsel) and a vocational expert (VE) testified at the hearing, after which the ALJ concluded Plaintiff could perform a full range of light work and was not disabled. (Tr. 26, 30, 36). The Appeals Council denied Plaintiff's request for review (Tr. 1-4), making the hearing decision the final decision of the Commissioner. 20 C.F.R. §§ 404.955, 404.981. On July 12, 2012, Plaintiff filed the instant case. (Doc. 1).


Personal and Vocational History

Plaintiff was 42 years old on the date of the ALJ hearing. (Tr. 42). She completed high school and some college. (Tr. 120). Her past relevant work included jobs as a customer service supervisor, sales department manager, director of marketing, and marketing officer. (Tr. 57-59, 143-50). Most recently, she was a customer service supervisor but her employment ended in December 2008 - after her alleged disability onset date of November 9, 2006. (Tr. 27, 98). Plaintiff treated her health problems while employed, but her employment ended because the company had a change in management philosophy. (Tr. 27, 54).

With respect to Plaintiff's daily activity, she said she laid down 30 to 40 percent of the time and slept between eight and ten hours a day. (Tr. 49). Once she woke in the morning, she said it usually took her about two hours to become functional and for her medication to make her pain more manageable. (Tr. 52). During the day, Plaintiff made her bed, washed dishes, and did laundry with rest breaks. (Tr. 52). She walked about a half mile a few times a week, sometimes up to a mile depending on how well she felt. (Tr. 46). On other days, Plaintiff did some stretching. (Tr. 47). She could drive to doctor appointments, pick up prescriptions, and pick up groceries from the store. (Tr. 53). However, she said she usually experienced around two "down days" during the week when she could not participate in her daily activities. (Tr. 47). Plaintiff characterized her condition as having remissions and relapses, and said she could sustain all typical activity while in remission. (Tr. 132).

Plaintiff said her pain increased with walking, lifting, lying down, twisting, sitting, bending, standing, reaching, and simple household chores. (Tr. 176). Her pain decreased with heat, rest, reclining, sitting, walking, ice, activity, standing, and reducing stress. (Tr. 176). Floating in a warm pool helped, but Plaintiff said she could not swim. (Tr. 45). She also claimed she experienced severe dry mouth and "Fibro Fog", which were side effects from her medication. (Tr. 50). Plaintiff told the ALJ she could not remember having a good day in over three and a half years. (Tr. 44).

Fibromyalgia and Degenerative Disc Disease

On September 9, 1999, an x-ray of Plaintiff's cervical spine revealed mild degenerative changes from C3-T1. (Tr. 204). On October 9, 1999, an MRI of her lumbar spine revealed a tiny posterior central L5 disc herniation without effect on the thecal sac or neural foramina, and MRIs of her thoracic spine and cervical spinal cord were normal. (Tr. 205). In October 2004, MRIs revealed L5-S1 degenerative changes with moderate disc space narrowing, a small central disc herniation lateralizing slightly toward the right deforming, and a mild T11-T12 disc bulge but no significant abnormality in her cervical spine. (Tr. 313-14).

Primary care physician Dr. Nam's notes from November 2005 - a year before Plaintiff's alleged onset date - indicated medication was "helping" and Plaintiff was "feeling great". (Tr. 289). She participated in physical therapy with Michael Kamienski in December 2005, and he reported Plaintiff experienced "95% improvement towards complete recovery". (Tr. 403). She did not return to Dr. Nam complaining of pain until December 2007, when she complained of "lower back discomfort" and was referred to massage therapy. (Tr. 288).

Plaintiff continued to treat her fibromyalgia with physical therapy from January 2008 to June 3, 2008. (260-62). She reported she hurt all over, had generalized pain, trigger points, and soreness through the middle and low back regions. (Tr. 471). Physical therapist Mr. Kamienski reported Plaintiff's symptoms "fluctuated dramatically" between "having no symptoms, to having to stay in bed for the afternoon", but she reportedly had more good days than bad days. (Tr. 260). In Mr. Kamienski's June 3, 2008 report, he noted Plaintiff was responding favorably, gaining strength and functional ability, but still had pain symptoms. (Tr. 262).

In 2008, Plaintiff complained of pain in her lower back, neck, and head, along with muscle discomfort and tightness with tender points. (Tr. 282-85, 288). On February 18, 2008 and July 24, 2008, Dr. Nam stated Plaintiff was permanently disabled from any gainful employment, explaining her fibromyalgia and degenerative disc disease pain limited standing, walking, sitting, pushing, and pulling. (Tr. 366, 368). Plaintiff was prescribed a number of medications to treat her conditions, such as Flexeril, Vicodin, Lyrica, Gabapentin, Lorazepam, Ativan, and Fiorinal. (Tr. 281-89).

Plaintiff continued to see Dr. Nam for fibromyalgia and degenerative disc disease and on May 4, 2009, Dr. Nam reported Plaintiff had all-over pain and could not function in her daily activities. (Tr. 369). An examination also revealed 18/18 tender points. (Tr. 507).

Dr. Nam completed a medical source statement on June 22, 2009. (Tr. 382). He opined Plaintiff could lift up to ten pounds occasionally; sit for one hour at a time and four hours total during an eight-hour work day; stand 30 minutes at a time out of an eight-hour work day; and walk one hour total out of an eight-hour work day. (Tr. 382-83). He further found she could occasionally reach bilaterally but never push or pull; occasionally climb ladders, scaffolds, or stairs; occasionally balance, stoop, kneel, crouch, and crawl; and occasionally operate a motor vehicle. (Tr. 384-86).

On December 17, 2009, Dr. Nam advised Plaintiff to participate in water exercises two to three times per week. Subsequently, Dr. Nam completed another medical source statement on December 24, 2009. (Tr. 484). In that report, he limited Plaintiff to lifting ten pounds occasionally; standing and walking 30 minutes out of an eight-hour work day; and sitting one hour out of an eight-hour work day. (Tr. 484). He further found she should rarely or never climb, balance, stoop, crouch, kneel, and crawl. (Tr. 484).

On May 14, 2008, consultative physician Murrell Henderson, D.O., an occupational health specialist, examined Plaintiff at the state agency's request. (Tr. 252). He concluded Plaintiff had satisfactory range of motion in her digits and spine and also demonstrated satisfactory grip strength. (Tr. 253). Further, he noted no spinal or paraspinal tenderness. (Tr. 253). Plaintiff communicated effectively, had no deficiencies in hearing or speech, but had poor vision in her right eye. (Tr. 252). Nevertheless, she was able to drive. (Tr. 252). State agency physician William Bolz, M.D., reviewed Plaintiff's file in October 2008 and opined Plaintiff did not have evidence of a severe physical impairment. (Tr. 365).

Mental Health

William E. Mohler, M.A., performed a consultative psychological examination on May 7, 2008 and diagnosed Plaintiff with adjustment disorder with anxiety and depression. (Tr. 248-51). Mr. Mohler noted Plaintiff's mood was cooperative and her activity and energy levels appeared normal. (Tr. 249). Plaintiff's background suggested a history of anxiety and depression, and she indicated some depression due to her recent health issues. (Tr. 249). During the interview with Mr. Mohler, Plaintiff denied a history of anxiety, but was taking anti-anxiety medication at that time. (Tr. 249). She exhibited no "suicidal or homicidal ideation and no overt sign of depression during the interview". (Tr. 249). Mr. Mohler calculated her global assessment of functioning (GAF) score as 60[1] for symptom severity and 70[2] for functional severity. (Tr. 251). He concluded Plaintiff had no limitations in her ability to understand, remember, and follow instructions; mild-to-moderate limitations ...

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