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Hardman v. Berryhill

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

March 5, 2018

KATHLEEN F. HARDMAN, Plaintiff,
v.
NANCY BERRYHILL[1], COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          JUDGE, DONALD C. NUGENT

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Kathleen F. Hardman (“Plaintiff”) requests judicial review of the final decision of the Commissioner of Social Security Administration (“SSA”) (“Defendant”) denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (SSI”). ECF Dkt. #1. In her brief on the merits, filed on April 17, 2017, Plaintiff asserts that the administrative law judge (“ALJ”) failed to: (1) articulate a valid reason at Step Two when he failed to find that her depression and anxiety conditions were severe impairments; (2) provide valid reasons for rejecting the opinions of her treating sources Dr. Vitarella and Kristen Drollinger; (3) properly evaluate Plaintiff's credibility; and (4) correctly find that Plaintiff could return to her past relevant work as a bank teller. ECF Dkt. #14. On June 28, 2017, Defendant filed a brief on the merits. ECF Dkt. #17. On July 10, 2017, Plaintiff filed a reply brief. ECF Dkt. #18.

         For the following reasons, the undersigned recommends that the Court AFFIRM the ALJ's decision and DISMISS Plaintiff's complaint in its entirety WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL HISTORY

         In December 2013, Plaintiff protectively filed applications for DIB and SSI alleging disability beginning December 2, 2013 due to fibromyalgia, depression, anxiety, a stroke, memory problems, fatigue, and colitis. ECF Dkt. #11 at 195-206, 272.[2] Plaintiff's applications were denied initially and upon reconsideration. Id. at 80-133, 136-163. Following the denial of her applications, Plaintiff requested an administrative hearing, and on September 24, 2015, an ALJ conducted the hearing and accepted the testimony of Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Id. at 34, 164. On October 9, 2015, the ALJ issued a decision denying Plaintiff's applications for DIB and SSI. Id. at 16-26. Plaintiff requested a review of the hearing decision, and on September 23, 2016, the Appeals Council denied review. Id. at 1, 14.

         On November 17, 2016, Plaintiff filed the instant suit seeking review of the ALJ's decision. ECF Dkt. #1. Plaintiff filed a brief on the merits on April 17, 2017. ECF Dkt. #14. On June 28, 2017, Defendant filed a merits brief. ECF Dkt. #17. Plaintiff filed a reply brief on July 10, 2017. ECF Dkt. #18.

         II. ALJ'S DECISION

         In his decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 2, 2013, her alleged onset date. ECF Dkt. #11 at 21.

         The ALJ found that Plaintiff had the severe impairments of fibromyalgia and colitis. ECF Dkt. #11 at 21. He further found that these impairments, individually or in combination, did not meet or equal any of the Listing of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”). Id. at 23.

         The ALJ thereafter determined that Plaintiff had the residual functional capacity (“RFC”) to perform light work with limitations of occasional kneeling and crawling, never climbing ladders, ropes or scaffolds, and avoiding workplace hazards such as unprotected heights and dangerous, moving machinery. ECF Dkt. #11 at 23.

         The ALJ went on to find that based upon the RFC that he determined for Plaintiff and the VE's testimony, Plaintiff could perform her past relevant work as a bank teller. ECF Dkt. #11 at 25. He therefore found that Plaintiff was not under a disability as defined in the Social Security Act from December 2, 2013, through the date of his decision. Id.

         III. STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS

         An ALJ must proceed through the required sequential steps for evaluating entitlement to social security benefits. These steps are:

1. An individual who is working and engaging in substantial gainful activity will not be found to be “disabled” regardless of medical findings (20 C.F.R. §§ 404.1520(b) and 416.920(b) (1992));
2. An individual who does not have a “severe impairment” will not be found to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));
3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement, see 20 C.F.R. § 404.1509 and 416.909 (1992), and which meets or is equivalent to a listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and 416.920(d) (1992));
4. If an individual is capable of performing the kind of work he or she has done in the past, a finding of “not disabled” must be made (20 C.F.R. §§ 404.1520(e) and 416.920(e) (1992));
5. If an individual's impairment is so severe as to preclude the performance of the kind of work he or she has done in the past, other factors including age, education, past work experience and residual functional capacity must be considered to determine if other work can be performed (20 C.F.R. §§ 404.1520(f) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

         IV. STANDARD OF REVIEW

         Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and makes a determination of disability. This Court's review of such a determination is limited in scope by §205 of the Act, which states that the “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). Therefore, this Court's scope of review is limited to determining whether substantial evidence supports the findings of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).

         The substantial-evidence standard requires the Court to affirm the Commissioner's findings if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). Substantial evidence is defined as “more than a scintilla of evidence but less than a preponderance.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if a preponderance of the evidence exists in the record upon which the ALJ could have found plaintiff disabled. The substantial evidence standard creates a “‘zone of choice' within which [an ALJ] can act without the fear of court interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001). However, an ALJ's failure to follow agency rules and regulations “denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.” Cole, supra, citing Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009) (citations omitted).

         V. RELEVANT MEDICAL EVIDENCE

         A. RELEVANT PHYSICAL IMPAIRMENTS

         Plaintiff was diagnosed with colon cancer in 2009 and underwent a colectomy. ECF Dkt. #11 at 366. She underwent chemotherapy thereafter but did not complete the course. Id. She underwent a CT scan of her chest on December 9, 2010 and had a left upper lobe tumor that was positive for non-small-cell adenocarcinoma. Id. The tumor was excised. Id.

         On July 11, 2012, Plaintiff underwent a colonoscopy to obtain biopsies due to her complaints of diarrhea and left lower quadrant abdominal pain and history of lymphocystic colitis. ECF Dkt. #11 at 360. The postoperative diagnosis was sigmoid diverticulum. Id. at 410. The biopsy revealed lymphocytic colitis. Id. at 409, 759.

         On April 17, 2013, Plaintiff presented to the emergency room complaining of exacerbation of her fibromyalgia pain in her right shoulder and arm. ECF Dkt. #11 at 524, 656. Plaintiff explained that she had been on Cymbalta for the last 8 months for financial reasons and she was unable to see her treating physician for the same reason. Id. Physical examination revealed limited range of motion in the right shoulder secondary to pain with tenderness to palpation. Id. The emergency room physician explained that the emergency room did not treat chronic pain and she needed to see her treating physician. Id. However, he diagnosed Plaintiff with acute right shoulder and arm pain and a history of fibromyalgia, gave her Percocet, and sent her home with NSAIDs. Id. On May 3, 2013, Plaintiff presented to Dr. Brine for her complaints of fatigue and joint pain in her hips, shoulders, neck and hands. ECF Dkt. #11 at 566. He noted Plaintiff's history of fibromyalgia and her complaints of worsening pain. Id. Upon examination, Dr. Brine noted Plaintiff's pain in the cervical spine with range of motion, restricted bending, restricted external rotation of the shoulders, joint swelling of the hands, pain to palpation, and mild crepitus of the shoulders and knees. Id. at 567. He diagnosed Plaintiff with arthritis at multiple sites not otherwise specified, fibromyalgia, and colitis. Id. He ordered blood tests for arthritis, thyroid and autoimmune diseases, as well as a urinalysis, which came back essentially normal. Id. at 567-568. He started Plaintiff on medication for her fibromyalgia. Id. at 568.

         On June 10, 2013, Plaintiff presented to Dr. Brine for follow up of her fibromyalgia. ECF Dkt. #11 at 562. She reported improving symptoms, such as improved functionality and insomnia, since beginning NSAIDs with Flexeril at night. Id. She did complain of increased anxiety. Id. Physical examination revealed positive joint pain to palpation, mild swelling, mild crepitus to the shoulder and knees, and multiple trigger point tenderness. Id. at 564. Dr. Brine diagnosed arthritis at multiple sites not otherwise specified, fibromyalgia, colitis not otherwise specified, and depression with anxiety. Id. He refilled Plaintiff's medications, added Sertraline for Plaintiff's depression with anxiety, and he suggested aquatic therapy. Id.

         Plaintiff presented to her treating physician, Dr. Vitarella, on July 22, 2013 and she reported that her fibromyalgia pain was improving, although she still complained of joint pain, stiffness and swelling. ECF Dkt. #11 at 484, 557. Dr. Vitarella's physical examination yielded normal results. Id. at 486. She diagnosed Plaintiff with fibromyalgia and depression with anxiety. Id. She prescribed medications for Plaintiff and encouraged her to do aerobic exercise 3-5 times per week for 30 minutes at a time. Id. Plaintiff reported that the pain was controllable at this time and Dr. Vitarella indicated that if the pain became too intense, she would prescribe Tramadol. Id.

         On October 16, 2013, Plaintiff presented to Dr. Vitarella for a reaction to Zoloft. ECF Dkt. #11 at 481, 549. Dr. Vitarella noted that Plaintiff presented with significant life stressors as her sister was critically ill and had almost died three times in that month and another sister had died in November, which made late October and November harder for her. Id. She also complained of being itchy and having anxiety. Id. Dr. Vitarella found no abnormalities upon physical examination and she diagnosed fibromyalgia, depression with anxiety, and prescribed Vistaril for anxiety and itching. Id. at 483.

         On October 17, 2013, Plaintiff presented to the emergency room explaining that she developed dizziness the night prior, with some staggering, slurring of her speech, and nausea. ECF Dkt. #11 at 506, 641. Tests were conducted and Plaintiff was diagnosed with nonspecific dizziness and transient dysathria resolved, with no evidence of cerebrovascular ischemia. Id. at 507, 650.

         On October 18, 2013, Plaintiff presented to Dr. Frimpong for a follow up from her recent emergency room visit for a transient ischemic attack (“TIA”). ECF Dkt. #11 at 479. She said that she had no slurred speech, blurry vision or neurological deficits since her October 16, 2013 TIA. Id. She reported that her mood had improved with Zoloft. Id. Upon examination, Dr. Frimpong found that Plaintiff was alert and oriented and had a normal examination. Id. He diagnosed her with fibromyalgia, depression with anxiety, and TIA. Id. at 479-480.

         On November 11, 2013, Plaintiff presented to Dr. Frimpong for a follow up from her recent emergency room visit for a TIA. ECF Dkt. #11 at 477. She said that she had no slurred speech, blurry vision or neurological deficits since her October 16, 2013 TIA. Id. She reported that her mood had improved with Zoloft. Id. Upon examination, Dr. Frimpong found that Plaintiff was alert and oriented and had a normal examination. Id. He diagnosed her with depression with anxiety, TIA, and hyperlipidemia. Id.

         On January 9, 2014, Plaintiff presented to Dr. Vitarella for follow up of her medications. ECF Dkt. #11 at 542, 637. She complained of increasing body aches and stiffness which worsened in the cold. Id. She related that her fibromyalgia pain had been flaring as of late. Id. Plaintiff also complained of a rash on her face, elbow and knees over the last two months, and a nearly 30 pound weight gain over the past year. Id. Upon physical examination, Dr. Vitarella noted a rash on Plaintiff's face and in her elbow creases. Id. She diagnosed Plaintiff with fibromyalgia, TIA, rash, and weight gain. Id. at 543. Dr. Vitarella ordered blood tests and cultures and modified Plaintiff's medications and added Amitriptyline and a steroid cream. Id.

         On January 23, 2014, the lab cultures showed suspected staph infection on Plaintiff's neck and face. ECF Dkt. #11 at 620. She was prescribed Keflex and Acyclovir. Id.

         On March 4, 2014, Dr. Vitarella completed a physical RFC questionnaire. ECF Dkt. #11 at 627. She opined that Plaintiff was limited to lifting and/or carrying up to 8 pounds and could do so for only 1/3 of an 8-hour workday due to her refractory fibromyalgia despite medications. Id. She further opined that Plaintiff's abilities to sit and stand/walk were not affected by her fibromyalgia and Plaintiff could only occasionally climb, balance, stoop, crouch, kneel and crawl because of her fibromyalgia. Id. Dr. Vitarella also opined that Plaintiff had no restrictions in dealing with heights, chemicals, dust, noise, fumes, or vibrations, but had to avoid moving machinery and temperature extremes due to her fibromyalgia. Id. She indicated that Plaintiff would be absent from work about 2 days per month due to pain or fatigue and would be off-task up to 10% of the workday due to pain or fatigue. Id. at 628. Dr. Vitarella opined that Plaintiff would need to lie down for ten minutes throughout the course of the workday, would be able to use her hands up to 70% of the workday, and would require about two unscheduled breaks per day if she worked a sedentary job. Id.

         March 31, 2014 progress notes from Dr. Vitarella show that Plaintiff presented complaining of a worsening of her fibromyalgia symptoms. ECF Dkt. #11 at 709. She was diagnosed with fibromyalgia, depression with anxiety, colitis not otherwise specified, abnormal weight gain, and gastric esophageal reflux syndrome. Id. at 711. She was referred to a rheumatologist as she had never been to one and the Elavil that was prescribed for her fibromyalgia pain was not helping. Id.

         On May 13, 2014, Plaintiff presented to Dr. Vitarella complaining of a two-week history of swelling in her legs, feet, hands and chest, along with shortness of breath and muscle weakness. ECF Dkt. #11 at 706. She was concerned with her symptoms due to her sister's death from congestive heart failure and her other sister's diagnosis with the disease. Id. Plaintiff denied chest pain or pressure or fever or chills, but indicated that she had arm and leg muscle aches. I d. Physical examination was normal, except for mild soft swelling in the feet and ankles. Id. at 707. Plaintiff was diagnosed with shortness of breath, edema, depression with anxiety, hyperlipidemia, fibromyalgia, fatigue and malaise, and myalgia. Id. She was sent for an echocardiogram and blood tests were ordered. Id.

         Plaintiff presented to the emergency room on July 5, 2014 complaining of lower extremity edema over the last month that had gotten worse. ECF Dkt. #11 at 761. Physical examination revealed no abnormalities and she was diagnosed with lower extremity edema and given a prescription for compression stockings. Id. at 761-762.

         Plaintiff presented to Dr. Enders on July 7, 2014 complaining of swollen feet and weight gain, although test results for such conditions came back negative. ECF Dkt. #11 at 740. Some edema was noted upon physical examination. Id. Dr. Enders diagnosed Plaintiff with edema and weight gain and ordered compression stocking and a 24-hour cortisol test. Id.

         Plaintiff presented to Dr. Enders on July 31, 2014 for the swelling of her legs, which she reported had resolved with a dietary modification. ECF Dkt. #11 at 738.

         On August 21, 2014, Plaintiff presented to Ms. Boville, a CRNP for Dr. Vitarella, for her complaints of bilateral foot swelling and follow up of her fibromyalgia and depression with anxiety. ECF Dkt. #11 at 736. Plaintiff noted that her health insurance changed and her medications may need changed as a result. Id. Upon examination, Plaintiff's medications were changed. Id.

         Plaintiff presented to Dr. Enders on September 23, 2014 for an evaluation of her fibromyalgia pain. ECF Dkt. #11 at 734. She related that the Gabapentin medication that he prescribed helped significantly, although she had occasional nerve pain that was shocking in character. Id. Upon physical examination, Dr. Enders diagnosed fibromyalgia, depression with anxiety, and neuropathy. Id. He continued Plaintiff's medications and started her on Sertaline Hydrochloride for her depression with anxiety. Id. at 735.

         On October 15, 2014, Plaintiff presented to Dr. Enders for her complaints of fibromyalgia pain. ECF Dkt. #11 at 732. She reported that it was better for the most part and her depression was better for the most part as well. Id. Dr. Enders continued Plaintiff's medications. Id. at 733.

         December 8, 2014 progress notes from Dr. Enders, M.D., show that Plaintiff presented for follow up and reported that she was losing weight and still had some depression, but was feeling better. ECF Dkt. #11 at 730. She indicated that she felt overwhelmed due to her fibromyalgia and she reported more pain since winter started. Id. She stated that her fibromyalgia pain was better than it was, although she still had problems concentrating. Id. Dr. Enders diagnosed Plaintiff ...


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