United States District Court, E.D. Tennessee, Greeneville
DARIS A. POTTER
CAROLYN W. COLVIN, Acting Commissioner of Social Security.
REPORT AND RECOMMENDATION
DENNIS H. INMAN, Magistrate Judge.
This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. § 636 for a report and recommendation. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 11], while the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 13].
This is an action for judicial review of the final decision of the Commissioner which denied the plaintiff's application for disability and disability insurance under the Social Security Act following a hearing before an Administrative Law Judge ["ALJ"].
The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
Plaintiff was 52 years of age, a person approaching advanced age, on her alleged disability onset date of July 13, 2011. She has a high school education and cannot return to her past relevant work. The medical evidence is summarized in the defendant's brief as follows:
Medical records from John Whitlock, M.D., of Watauga Internal Medicine show that chest x-rays were performed in July 2010, which showed no radiographic evidence of acute cardiac or pulmonary abnormality (Tr. 173-174). In August 2010, Plaintiff complained of joint and back pain. X-rays of the left chest and ribs in September 2010 revealed osteopenia, but no fractures or acute disease (Tr. 189-195). She continued to complain of joint pain in November 2010 (Tr. 175, 196-199). Plaintiff was sent for a bone mineral density study that demonstrated she was osteoporotic and had a high fracture risk (Tr. 175). In January 2011, Plaintiff complained of nasal congestion (Tr. 200). Her height was recorded at 66 inches and she weighed 233 pounds (Tr. 200). Plaintiff continued to have musculoskeletal complaints (Tr. 200). She continued to smoke (Tr. 200). Her past medical history included back pain, gastroesophageal reflux disease, and hypertension (Tr. 200). Dr. Whitlock recommended smoking cessation and encouraged her to lose weight for better health (Tr. 203). Plaintiff saw Dr. Whitlock again in February 2011 (Tr. 204-206). In April 2011, Plaintiff reported having great pain with her fibromyalgia and musculoskeletal issues (Tr. 207). She stated her breathing was worse, yet she continued to smoke and made no real effort to cut back (Tr. 207). On physical exam, her lungs had scattered crackles bilaterally (Tr. 209). Musculoskeletal exam showed multiple tender points in typical presentation for fibromyalgia (Tr. 209). She had a depressed affect (Tr. 210). Dr. Whitlock discussed the importance of regular exercise and recommended she start a regular exercise program, lose weight, and stop smoking (Tr. 210).
Objective imaging of the lumbar spine was performed on May 19, 2011, at High Country Imaging due to low back pain (Tr. 224). Findings revealed bone structures were negative for acute fracture or slippage and the intervertebral spaces were preserved (Tr. 224).
When Plaintiff saw Dr. Whitlock on June 8, 2011, she admitted to having her worst allergy season, yet she continued to smoke a pack of cigarettes a day (Tr. 211-214). She returned on June 29, 2011, to discuss work papers (Tr. 270). Dr. Whitlock stated that because of recent injuries, Plaintiff should apply for disability benefits (Tr. 270-271). He told her that because of her fibromyalgia and chronic pain, she was not able to do her job, but he also told her this did not qualify her for Social Security disability since that meant totally and permanently disabled as to all gainful employment (Tr. 270-271). She stated she would be looking for employment that was less stressful to her musculoskeletal system (Tr. 270-271). Dr. Whitlock recommended she apply for short-term disability (Tr. 270-271). Notes from the office visit of September 12, 2011, reflect that Plaintiff continued to complain of pain (Tr. 273). She was on short-term medical leave from the university because of her inability to perform chores in housekeeping (Tr. 273). She continued to smoke, but stated she had cut down to one-half pack a day (Tr. 273). Plaintiff stated she would like to be on something to ease the pain, but she was not interested in seeing a pain clinic or an orthopedist for further injections (Tr. 273). Her weight was up six pounds since she took medical leave (Tr. 273). Dr. Whitlock opined Plaintiff was still unable to return to duties required at the university, so he extended the disability three months (Tr. 278). He again recommended smoking cessation (Tr. 278). When seen on December 13, 2011, Plaintiff stated she was essentially told that she had to work the program as described without further compromise (Tr. 279). Dr. Whitlock stated he was told by her human resource contact that she would have to apply for disability and he signed it as unacceptable (Tr. 279). Plaintiff complained of weakness (Tr. 279). Dr. Whitlock discussed regular exercise, smoking cessation, losing weight, and monitoring blood sugar (Tr. 282-283). He emphasized the need for treatment for osteoporosis (Tr. 283). Dr. Whitlock extended her leave of absence, given her chronic pain, fibromyalgia, and osteoarthritis (Tr. 283). In January 2012, Plaintiff reported ringing in her ears, dizziness, and sore throat, for which Dr. Whitlock prescribed a Z-PAK (Tr. 284-287). He opined that fibromyalgia and pain precluded her from returning to work at that time (Tr. 287). Plaintiff continued to complain of joint pain in March 2012 (Tr. 288). She reported that she was seen by Dr. Winfield, who felt she indeed did have fibromyalgia as well as osteoporosis (Tr. 288).
John Winfield, M.D., of Appalachian Regional Rheumatology, evaluated Plaintiff for fibromyalgia on March 14, 2012 (Tr. 300). Her medical history revealed Dr. Whitlock had diagnosed fibromyalgia two years previously in the setting of stress (Tr. 300). Plaintiff reported some impairment of activities of daily living (Tr. 300). During the previous week, she rated her pain and fatigue as 7/10 on the visual analog scale (Tr. 300). She had some difficulty getting a good night's sleep and awakened unrefreshed. She also had problems with depression and anxiety. X-rays of the thoracic spine showed degenerative changes with no acute findings (Tr. 267, 300). Dr. Winfield's impressions were fibromyalgia and osteoporosis of the lumbar spine (Tr. 302). He urged Plaintiff to get into a graded aerobic exercise program (Tr. 302). He increased her Gabapentin to an optimum dose, continued Tramadol, and added Savella to her regimen (Tr. 303). He scheduled a Reclast injection for osteoporosis (Tr. 303).
In a consultative psychological evaluation performed on September 27, 2011, Charlton S. Stanley, Ph.D., and Donna Abbott, M.A., a senior psychological examiner, diagnosed an adjustment disorder with depressed mood, moderate (Tr. 230). They stated Plaintiff could understand and remember on a level commensurate with her intellectual functioning (Tr. 230). They opined that she might have moderate difficulty with complex instructions, stated her adjustment was adequate, opined that she should be able to make decisions on simple and complex work situations, stated she could attend and concentrate, and should be able to maintain basic routine from a mental standpoint (Tr. 230). Dr. Stanley and Ms. Abbott further stated that Plaintiff's social interaction did not appear to be significantly limited, her general adaptation skills showed mild-to-moderate limitations, and it was their opinion that she could be aware of simple hazards and take precautions, could drive and travel alone, should be able to set goals and make plans to achieve these goals independently, should be able to work in proximity to others including supervisors, co-workers, and peers, might have mild-to-moderate difficulty dealing with stress and moderate difficulty adapting to change, and her limitations appeared primarily related to an adjustment disorder with depressed mood (Tr. 230).
Marianne E. Filka, M.D., performed a consultative medical examination on October 4, 2011 (Tr. 232). Plaintiff had an obese body build at a height of 65.75 inches and with a weight of 229 pounds (Tr. 235). There was trace ankle edema to the upper third of her lower legs, but no venous stasis pigmentation (Tr. 235). Her joint appearance showed moderate osteoarthritis changes in the fine finger joints (Tr. 235). There was tenderness in all of the joints and soft tissues and trigger point areas in the upper and lower distal and proximal extremities (Tr. 235). Postural changes (climbing up and down off the exam table, going from sitting to lying, lying to sitting, sitting to standing, and bending) were done with evidence of difficulty (Tr. 235). Her spine showed subtle thoracic or lumbar dextroscoliosis (Tr. 236). There was tenderness in the soft tissues and all the spinous processes in the cervical, thoracic, and low back (Tr. 236). She also had sacroiliac tenderness in the low back (Tr. 236). Plaintiff's mood and affect appeared depressed (Tr. 236). Dr. Filka diagnosed osteoarthralgias to multiple joints; fibromyalgia with typical muscle achiness, poor sleep, chronic fatigue, and intermittent foggy thinking; gastroesophageal reflux disease; hypertension; bilateral lower extremity edema; obesity; depression; chronic constant cervical and mid back pain with bilateral upper extremity intermittent radiating pain to the fingers; chronic intermittent lumbar spine radiating both lower extremities (on right to ankle and on left to thigh); and subtle dextroscoliosis in the thoracic and lumbar area (Tr. 236).
In a medical assessment, Dr. Filka opined Plaintiff could occasionally lift, push, pull, or carry up to 20-25 pounds and more frequently push, pull, lift, or carry up to 10-15 pounds; recommended Plaintiff avoid repetitive squatting, stooping, kneeling, crouching, or climbing; stated Plaintiff could occasionally climb stairs or ramps, but should avoid climbing ladders or scaffolding altogether; stated Plaintiff should alternate her position sitting, standing, and walking as needed; and stated Plaintiff should avoid heights, moving mechanical equipment, or heavy vibrating equipment (Tr. 236-237).
In a mental residual functional capacity assessment dated October 13, 2011, state agency medical consultant George Davis, Ph.D. opined Plaintiff could understand and remember for simple, detailed, and multi-step detailed tasks, but not at an executive level; could concentrate and persistent for the above tasks adequately; interact appropriately with the public, co-workers, and supervisors; and adapt to change and set limited goals (Tr. 169). Another state agency medical consultant, M. Candice Burger, Ph.D., affirmed Dr. Davis's opinion on November 1, 2011 (Tr. 262).
In a physical residual functional capacity assessment dated October 13, 2011, state agency medical consultant George L. Cross, III, M.D., opined Plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday, and sit (with normal breaks) for a total of about six hours in an eight-hour workday (Tr. 253). He stated that Plaintiff should never climb ladders/ropes/scaffolds, but could occasionally climb ramps/stairs, kneel, and crawl; and she could frequently balance, stoop, and crouch (Tr. 254). Plaintiff had ...