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Brewer v. Commissioner Of Social Security

United States District Court, N.D. Ohio, Eastern Division

December 19, 2017

TAMARA BREWER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES S. GWIN JUDGE

          REPORT & RECOMMENDATION

          THOMAS M. PARKER UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff, Tamara L. Brewer (“Brewer”), seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         Because the ALJ's evaluation of the opinions of the treating physician complied with applicable regulations and because substantial evidence supported the ALJ's conclusion that Brewer's rheumatoid arthritis condition did not meet the requirements of Listing 14.09, I recommend that the final decision of the Commissioner be AFFIRMED.

         II. Procedural History

         Brewer applied for SSI and DIB on September 24, 2013 (Tr.165) alleging a disability onset date of May 19, 2012. (Tr.80) Brewer alleged disability based on diabetes mellitus, hypothyroid disease, rheumatoid arthritis, depression, and frozen shoulder. (Tr. 80, 181) Brewer's application was denied initially and on reconsideration. (Tr. 125) Thereafter, Brewer filed a written request for rehearing. (Tr. 132) Administrative Law Judge Frederick Andreas (“ALJ”) heard the case on November 19, 2015. (Tr. 35-79) The ALJ denied Brewer's claim on January 27, 2016. (Tr. 14) The Appeals Council denied further review on December 6, 2016, rendering the ALJ's January 27, 2016, decision the final decision of the Commissioner. (Tr. 1-3)

         III. Evidence

         Brewer now raises two arguments: (1) the ALJ erred in weighing the opinions of treating rheumatologist, Jeffrey A. Chaitoff, M.D. and (2) the ALJ erred when he found that Brewer's rheumatoid arthritis did not meet the criteria of Listing 14.09, which concerns arthritis and inflammation of certain joints. 20 CFR Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). Because the issues are limited, it is not necessary to summarize the entire record.

         A. Personal, Educational and Vocational Evidence

         Brewer was 38 years old on her alleged onset date, and had turned 41 by the time of the hearing. (Tr. 72, 117) Brewer completed the eleventh grade but never attained a GED. (Tr. 309) Brewer has worked as a cashier, customer service manager, and a telemarketer. (Tr. 183)

         B. Medical Records Related to Rheumatoid Arthritis

         Medical records addressing Brewer's arthritis date back to September 20, 2012 when she complained of left knee pain while hospitalized at Hillcrest Hospital because of diabetes complications. (Tr. 255) X-rays of Brewer's knee showed Brewer's bones were intact, no joint effusion, and a moderately narrowed medial joint, without any eburnation or spurring. (Id.)

         On September 13, 2012, Brewer went to the Emergency Department at University Hospitals Geauga Medical Center with non-traumatic pain and spasms on the left side of her neck. (Tr. 278, 305) She reported that her neck pain had been continuous since the day before and described it as sharp and severe, and exacerbated by movement. (Id.) Brewer rated the pain as a nine or ten on a ten scale. (Id.) Other than tenderness over the spastic trapezius and strap muscles on Brewer's left side, her physical examination was unremarkable. The examiner characterized Brewer's pain as “moderate.” (Tr. 305) The physician ordered cervical-spine films and prescribed Norflex and Toradol IM. (Tr. 305) X-rays of Brewer's cervical spine from September 13, 2012 showed reversal of normal cervical lordosis and minimal spurring off of C5 and C6. (Tr. 300)

         On October 8, 2012, Beejadi Mukunda, M.D. treated Brewer for anemia and diabetes. (Tr. 472) Dr. Mukunda found no muscular tenderness or weakness or joint swelling and noted that Brewer displayed a normal range of motion. (Tr. 473)

         On November 8, 2012 Rheumatologist Jeffrey A. Chaitoff, M.D. treated Brewer for her complaint of pain “all over the body” that had continued for two months. (Tr. 461) Dr. Chaitoff noted that he suspected rheumatoid arthritis and he planned to check Brewer's blood for antinuclear antibodies, CGP antibodies, and rheumatoid factor. (Id.) Dr. Chaitoff also prescribed the steroid Prednisone and Roxicodone for pain. ((Id.))

         Dr. Chaitoff saw Brewer again on December 19, 2012 for left shoulder pain. (Tr. 392) Dr. Chaitoff's examination revealed no tendinosis, tendinous rupture, tears, or fluid accumulation. (Id.) Dr. Chaitoff did observe that the subacromial bursa had a slight distention and the bursa stripe was thickened. ((Id.))

         Dr. Chaitoff saw Brewer on January 2, 2013, for her complaint of rheumatoid arthritis. (Tr. 393) Dr. Chaitoff observed that Brewer's extremities had no rheumatoid nodules or tophaceous deposits. (Id.) He prescribed methotrexate tablets and Humira. (Id.)

         On February 20, 2013, Dr. Chaitoff saw Brewer regarding a complaint of “daily” right shoulder pain. (Tr. 394) Dr. Chaitoff noted that the joint tenderness and joint swelling counts were both four. (Id.) Brewer reported the joint was stiff in the morning for a duration of sixty minutes. (Id.) Dr. Chaitoff observed Brewer's right shoulder had a “decent” range of motion, but the pectoral muscles were tender. (Id.) He also observed mild synovitis at Brewer's metacarpophalangeal joints. (Id.) Dr. Chaitoff diagnosed: rheumatoid arthritis; an adverse reaction to methotrexate, including minimal hair loss; and right shoulder pain, which he suspected was due to a muscle spasm. (Id.) Dr. Chaitoff reduced Brewer's prescription of methotrexate and also prescribed folic acid and Humira (adalimumab). (Id.)

         On March 14, 2013, Dr. Chaitoff saw Brewer regarding her complaints of [bi]lateral shoulder pain and her request for a cortisone shot for her more painful left shoulder. (Tr. 395) Dr. Chaitoff observed diminished range of motion in both of Brewer's upper extremities. (Id.) Dr. Chaitoff diagnosed adhesive capsulitis of both shoulders, left shoulder pain, and rheumatoid arthritis. (Id.) Dr. Chaitoff injected the left shoulder with methylprednisolone and lidocaine, planned a diagnostic ultrasound, and continued treatment with methotrexate. (Id.)

         On May 31, 2013, Dr. Chaitoff saw Brewer regarding her complaint of rheumatoid arthritis. (Tr. 396) Brewer reported that she “felt excellent” after taking Humira weekly, but her generalized pains recurred when she began taking the drug only once every two weeks. (Id.) Brewer reported pain in her knees, shoulders, hands, feet, and left temporomandibular joint. (Id.) Dr. Chaitoff discontinued the methotrexate and Humira, and prescribed Simponi injections, Azathioprine, Prednisone, and Roxicodone, “if needed for severe pain.” (Id.)

         On June 21, 2013, Dr. Chaitoff saw Brewer regarding her rheumatoid arthritis. (Tr. 397) Brewer reported that a single subcutaneous injection of Simponi made her feel significantly improved within three days. (Id.) Dr. Chaitoff prescribed daily Azathioprine and monthly Simponi injections. (Id.)

         On October 4, 2013, Dr. Chaitoff saw Brewer regarding a flare-up of her rheumatoid arthritis. (Tr. 398) Brewer reported that she tends to do well for three weeks, but her condition flares-up on the third week. (Id.) Brewer complained of being up all night with joint pains. (Id.) Dr. Chaitoff prescribed continued treatment with Simponi, Prednisone, and Roxicodone, if needed for severe pain. (Id.)

         On November 14, 2013, Dr. Chaitoff saw Brewer regarding her complaints of pain in her left elbow and right wrist. (Tr. 399) Brewer reported that she only had nine “normal days” following an injection of Simponi. (Id.) Dr. Chaitoff stated that Brewer's rheumatoid arthritis was “stable and under control” and noted that her Vectra “score was actually low.” He identified left lateral epicondylitis as an independent problem, and observed that “fibromyalgia syndrome” counted for much of Brewer's symptoms. (Id.) Dr. Chaitoff injected Brewer's right wrist with methylprednisolone and lidocaine, performed “dry needling” of the left lateral epicondyle, and prescribed Cymbalta, Simponi, Azathioprine, and Prednisone. (Id.)

         On December 16, 2013, Dr. Chaitoff saw Brewer regarding her complaints of arthritis in her joints, and her left elbow in particular. (Tr. 400) Brewer rated the intensity of her pain as severe and the joint tenderness count was two, while the joint swelling count was three. (Id.) Brewer reported that she experienced morning stiffness that lasted for ten minutes. (Id.) Dr. Chaitoff observed that Brewer's left lateral epicondyles were tender on palpation. (Id.) Dr. Chaitoff determined Brewer's left elbow pain was extra-articular at the tennis elbow site, the Vectra test score implied Brewer's rheumatoid arthritis was under control, and her “fibromyalgia syndrome” accounted for much of Brewer's symptoms. (Id.) Dr. Chaitoff prescribed Voltaren gel and continued treatment with Cymbalta, Simponi, and Azathioprine. (Id.)

         Dr. Chaitoff also evaluated Brewer on February10, 2014 regarding her complaints of pain in her right wrist and stiffness in the morning. (Tr. 401) Brewer reported that the Cymbalta had “helped a lot” and that she used oxycodone sparingly. (Id.) Dr. Chaitoff observed that Brewer's right wrist had mild swelling and tenderness, but her shoulders, knees, and ankles had no deformity, synovitis, or effusion. (Id.) He observed no rheumatoid nodules or tophi. (Id.) Dr. Chaitoff prescribed Azathioprine, Simponi, Cymbalta, and Roxicodone. (Id.)

         On March 5, 2014, Brewer went to the University Hospitals Emergency Department with complaints of dizziness and nausea. (Tr. 376) An examiner observed that Brewer's extremities, back and spine were within normal limits. (Tr. 361) Brewer was diagnosed with acute sinusitis and vertigo; she was prescribed antibiotics, Antivert, and Claritin, and discharged to home. (Tr. 376-77)

         In 2014, 2015, and 2016, Dr. Chaitoff evaluated and treated Brewer on several occasions for her rheumatoid arthritis, pain in her right first metatarsal phalangeal joint, swelling in her feet, rashes, and “morning stiffness.” (Tr. 543-555, 558-567, 653) Sometimes, Brewer reported that she felt well or was pleased with the results of her medications. (Tr. 543, 546, 548, 558, 561, 566) On at least one occasion, Brewer reported definite improvement that allowed her to do her housework slowly. (Tr. 558) At other times, Brewer complained of pain in her joints or body, a flare up of rheumatoid arthritis, or reported that the prescribed medications were not working or were causing side effects. (Tr. 544, 549, 554, 561, 563, 567, 653) Dr. Chaitoff prescribed treatments including ultrasound-guided injection of methylprednisolone (Tr. 545, 551, 562), Azathioprine, Enbrel, Prednisone, Actemra, Roxicodone, Cymbalta, Simponi, and Voltaren gel. (Tr. 543-546, 548) Dr. Chaitoff also had Brewer's blood tested with the Vectra DA test. (Tr. 550, 559)

         C. Opinion Evidence

         1. Dr. Eulogio Sioson - Consultative Examiner

         On April 18, 2013, Eulogio Sioson, MD, CIME performed a disability evaluation regarding Brewer's diabetes mellitus, mental condition, and pain in her neck, back, and joints. (Tr. 314) Dr. Sioson noted Brewer reported severe stiffness and pain in the morning and constant pain in her hips, knees, and ankles after walking five minutes, going up and down five steps, standing for ten minutes, or sitting for fifteen minutes. (Id.) Brewer said she could not do any household chores because of pain and weakness in her joints. (Id.) She reported she could dress, groom, shower, button, tie, and grasp, but with difficulty due to the pain in her shoulders, wrists, and hands. (Id.) Brewer reported she had surgeries for “trigger fingers 2nd to 4th” in her left hand in 2010 and in her right hand in 2011. (Id.) Brewer reported neck pains she believed were caused by her frozen shoulders. (Id.) Brewer reported mild back aches and no history of fracture, dislocation, or herniated discs. (Id.) Brewer reported that she was taking oxycodone, Humira, and prednisone. (Id.)

         With regard to Brewer's mental disorder, Dr. Sioson stated Brewer had 14-year history of depression. (Tr. 314) Brewer reported that she had poor sleep, normal appetite, weight gain, occasional memory and concentration problems, and she felt tired and hopeless. (Id.) Brewer had not been hospitalized for her mental disorder and had no suicidal thoughts or attempts. (Id.) Brewer reported that she did not think her medication was helping. (Id.) Dr. Sioson also noted Brewer's 30-year history of diabetes mellitus and hyperthyroidism. (Id.)

         Dr. Sioson observed that Brewer walked normally with no assistive device and was able to get up and down from the examination table, do heel/toe walking, but a declined to squat because of knee pain. (Tr. 315) Dr. Sioson observed Brewer had moderate lower back tenderness, tenderness and limited range of motion in both shoulders, right wrist, and left knee, and no apparent effusion or gross instability. (Id.) Brewer had no heat, redness, swelling, subluxation, or gross deformity in her joints. (Id.) Dr. Sioson observed Brewer was able to grasp and hold a 1.6 lb. dynamometer, even though she experienced pain in her right wrist and fingers when gripping the dynamometer, and she could manipulate with each hand, wrote legibly, was able to handle a clipboard and personal items, and tie shoes. (Id.) Straight leg raising while sitting was negative, but while lying down there was some pain in the top right of Brewer's thigh. (Id.) Brewer had tingling numbness in her right second to fourth fingers and manual muscle testing was affected by pain. (Id.) Dr. Sioson requested manual muscle testing and range of motion testing. (Id.)

         Dr. Sioson also observed that Brewer was alert, coherent, oriented, cooperative, and displayed no abnormal behavior or appearance. (Tr. 315) Dr. Sioson's impression was that Brewer “was not emotionally labile and was able to maintain attention and concentration.” (Id.)

         Dr. Sioson did not observe deformity or subluxation, despite Brewer's alleged history of rheumatoid arthritis and neck, back, and joint pains. (Id.) Dr. Sioson concluded that Brewer would be limited to sedentary work, due to the limitations on her range of motion from pain and the above findings. (Id.)

         2. Adi A. Gerblich, M.D. - Consultative Examiner

         On December 4, 2013, Dr. Adi Gerblich issued a disability evaluation of Brewer and her complaints of rheumatoid arthritis, fibromyalgia, diabetes mellitus, hypothyroidism, and depression. (Tr. 343) Dr. Gerblich noted that Brewer's right shoulder had limitation with flexion to 90 degrees and abduction to 90 degrees; however, external and internal rotation and extension were normal. (Tr. 344) Brewer's left shoulder, elbow, wrist, fingers, hips, knees, and ankles all had a normal range of motion. (Id.) Brewer's dorsolumbar range of motion was limited, with flexion to 60 degrees and extension to about 10 degrees. (Id.) Dr. Gerblich also noted that Brewer had difficulty walking from the parking lot to his office because of knee pain. (Id.) Dr. Gerblich stated Brewer could not climb any flights of stairs but noted that she dressed herself. He further noted that the laundry, cooking, and shopping were done by her husband. (Id.)

         Dr. Gerblich's evaluation was based on Dr. Sioson's documents describing Brewer's diabetes mellitus, mental disorder, and rheumatoid arthritis. (Id.) Dr. Gerblich concluded that Brewer was a chronic diabetic with progressive rheumatoid arthritis. (Tr. 345) Dr. Gerblich concluded that his examination did not indicate Brewer would be limited to sedentary activity, because Brewer's “pain with mobility, according to her history, is significant but cannot be ascertained objectively.” (Tr. 345) Rather, Dr. Gerblich stated he suspected Brewer's rheumatoid arthritis medication needed to be adjusted further to give Brewer pain relief. (Id.)

         3. Dr. Chaitoff - Treating Physician

         On April 30, 2014, Dr. Chaitoff issued the first of two medical source statements regarding Brewer's physical capacity. (Tr. 467) Dr. Chaitoff found that Brewer could only occasionally lift 5 lbs., walk or stand for a total of thirty minutes, and sit for two hours, because of her rheumatoid arthritis, arthritis of the wrists and knees, pain in the knees, left knee effusion, and water on the knee. (Id.) Dr. Chaitoff found that Brewer's ability to stand and walk were affected by her impairment, and she was able to walk or stand without interruption for thirty minutes. (Id.) Dr. Chaitoff stated that his finding was supported by Brewer's rheumatoid arthritis, arthritis of the wrist and knees, and left knee effusion. (Id.) Dr. Chaitoff determined that Brewer could rarely climb, balance, stoop, crouch, knee, or crawl, because of her knee conditions. (Id.) Dr. Chaitoff found that Brewer could rarely reach, push, or pull and could only occasionally do fine or gross manipulation, based on the medical finding of arthritis in Brewer's wrists and that “[h]er daughter had to brush her teeth.” (Id.) Dr. Chaitoff found that environmental restrictions did not affect Brewer's impairment. (Id.) Dr. Chaitoff noted that Brewer had been prescribed a cane, breathing machine, oxygen, and wrist splints. (Id.) Dr. Chaitoff noted that Brewer experienced severe pain, but did not need to elevate her legs at will. (Id.) Dr. Chaitoff also stated that, during an average eight-hour workday, Brewer would require five hours of additional rest time. (Id.) Dr. Chaitoff listed sleep apnea as an additional limitation that would interfere with an eight-hour workday. (Id.)

         Dr. Chaitoff also prepared a medical source statement regarding Brewer's mental capacity on April 30, 2014. (Tr. 465) He found Brewer could constantly: follow work rules; respond appropriately to changes in routine settings; maintain regular attendance and be punctual within customary tolerance; deal with the public; relate to co-workers; interact with supervisor(s); work in coordination with or proximity to others without being distracted; understand, remember, and carry out job instructions, whether simple or complex; maintain her appearance; behave in an emotionally stable manner; relate predictably in social situations; manage funds or schedules; and leave home on her own. (Tr. 465-66) Dr. Chaitoff found Brewer could frequently: follow work rules; maintain attention and concentration for extended periods of two hour segments; function independently without redirection; and socialize. (Id.) He found Brewer could only occasionally deal with work stress and could only rarely complete a normal workday and workweek without interruption from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 465) Dr. Chaitoff stated that the diagnoses of “major depression” and “generalized anxiety disorder” supported his assessment. (Tr. 466)

         On October 1, 2015, Dr. Chaitoff completed a second medical source statement regarding Brewer's physical capacity. (Tr. 660) In this evaluation, he found that Brewer could only occasionally lift 5 lbs., but she could walk or stand for a total of two hours, and sit for six hours, based on medical findings including Brewer's arthritis in her hand, shoulder, and knees and pain in her hip and knees. (Id.) Dr. Chaitoff found that Brewer's ability to stand and walk were affected by her impairment and that she was able to walk or stand without interruption for thirty minutes. (Id.) Dr. Chaitoff stated that his finding was supported by Brewer's rheumatoid arthritis, arthritis of the wrist and knees, and left knee effusion. (Id.) Dr. Chaitoff found that Brewer could only rarely climb, crouch, kneel, crawl, push/pull, or perform gross manipulation. (Tr. 660-61) He found that Brewer could occasionally balance, stoop, reach, or perform fine manipulation. (Id.) Dr. Chaitoff based these findings on Brewer's arthritis in her knees, shoulders, hands, and feet. (Id.) Dr. Chaitoff found Brewer's balance and gait were affected by environmental restrictions including heights and moving machinery. (Tr. 661) Dr. Chaitoff noted that Brewer had been prescribed a cane, walker, and wheelchair. (Id.) He indicated Brewer needed to be able to alternate positions between sitting, standing, and walking at will. (Id.) He also indicated that Brewer's pain was severe and interfered with her concentration and could take her off task, but should not cause absenteeism. (Id.) Dr. Chaitoff noted that Brewer did not need to elevate her legs at will. He indicated Brewer would require an additional two hours of rest time on an average work day. (Id.) He stated that Brewer would miss at least five days of work per month. (Id.)

         Dr. Chaitoff also completed a second mental capacity medical source statement on October 1, 2015. (Tr. 662-63) In this opinion, Dr. Chaitoff stated that Brewer could constantly: follow work rules, use judgment, maintain attention and concentration for extended periods of two hour segments; respond appropriately to changes in routine settings; function independently without redirection; work in coordination with or proximity to others without being distracted or distracting; complete a normal workday and workweek without interruption from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; she could understand, remember, and carry out job instructions, whether simple or complex; maintain her appearance; socialize; behave in an emotionally stable manner; relate predictably in social situations; manage funds and/or schedules; and leave her home on her own. (Id.) Dr. Chaitoff stated that Brewer could frequently maintain regular attendance and be punctual within customary tolerances; deal with the public; relate to co-workers; interact with supervisor(s); and deal with work stress. (Id.) Dr. Chaitoff based his opinion on Brewer's rheumatoid arthritis and diabetes mellitus. (Tr. 663)

         4. Jeff Rindsberg, Psy. D - Consultative Examiner

         On March 22, 2013, Dr. Rindsberg, performed a clinical evaluation at the request of the state agency to determine whether Brewer had any mental disorders or diagnoses. (Tr. 308) Brewer drove herself to the appointment. Dr. Rindsberg considered several sources of information, including a clinical interview with Brewer and a disability report and a function report provided by the state agency. (Tr. 309-310). Although Brewer raises no argument concerning the handling of her ...


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