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Bivens v. Colvin

United States District Court, M.D. Tennessee, Columbia Division

March 23, 2015

TERRI BIVENS, Plaintiff,
CAROLYN W. COLVIN, Acting commissioner of Social Security, Defendant.


WILLIAM J. HAYNES, Jr., District Judge.

Plaintiff, Terri Bivens, filed this action under 42 U.S.C. § 405(g) against the Defendant Carolyn Colvin, Acting Commissioner of Social Security, seeking judicial review of the Commissioner's denial of her application for supplemental security income ("SSI") under the Social Security Act.

Before the Court is Plaintiff's motion for judgment on the record (Docket Entry No. 18) contending, in sum, that the Administrative Law Judge ("ALJ") erred by failing to consider properly the opinions of Dr. Fatti, Plaintiff's previous treating physician, and Dr. Wilson, an examining physician, and by posing an incomplete hypothetical to the vocational expert. The Commissioner contends that the ALJ's decision is supported by substantial evidence.

The ALJ evaluated Plaintiff's claim for SSI benefits using the sequential evaluation process set forth at 20 C.F.R. § 416.920. (Docket Entry No. 12, Administrative Record at 12-22). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her amended alleged onset date of December 9, 2010. Id. at 14. At step two, the ALJ determined that Plaintiff had the following severe impairments: reflex sympathetic dystrophy ("RSD") with associated pain syndrome, history of bilateral tendonitis, decreased visual acuity and obesity. Id . At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16. The ALJ did not find any physician who determined that Plaintiff's impairments met or medically equaled a listed impairment, and that physician consultants for the State did not so find. Id . At step four, the ALJ determined that Plaintiff had the residual functional capacity to perform light work with limitations. Id . At step five, the ALJ utilized the testimony of the vocational expert to conclude that Plaintiff is capable of performing past relevant work, or certain other work. Id. at 20-21. The ALJ concluded that Plaintiff was not disabled within the meaning of the Act and was not entitled to disability benefits. Id. at 21. Following this decision, Plaintiff requested a review. Id. at 6-7. Plaintiff's request for review was denied on October 24, 2013. Id. at 1-4.

A. Review of the Record

On December 20, 2010, Plaintiff Terri Bivens applied for SSI benefits for a disability that began on November 1, 1997. Id. at 110-115. Plaintiff later amended her claim to an alleged disability onset date of December 9, 2010, the protective filing date. (Docket Entry No. 18, Plaintiff's Motion for Judgment on the Record, at 2).

On January 7, 2011, the State requested medical records from Dr. John Fatti, Plaintiff's treating physician in Dewitt, New York, listed on her application. (Docket Entry No. 12, Administrative Record at 198). Dr. Fatti submitted records of office visits dating between October 16, 2001 and July 11, 2006. Id. at 199-226. In the first record, on October 16, 2001, Dr. Fatti noted that Plaintiff was presenting "for follow-up and management of her bilateral wrists." Id. at 225. On this visit, Dr. Fatti opined that Plaintiff "was to continue on no work heavily or repetitively with either hand as she is now (sic)." Id . Dr. Fatti encouraged Plaintiff to contact VESID (Vocational and Educational Services for Individuals with Disabilities, an office of the New York State Education Department). Id . Dr. Fatti consistently listed Plaintiff's diagnosis as "tendonitis, " noted Plaintiff's complaints of weakness and pain, and prescribed Tylenol #3 with Codeine. Dr. Fatti also listed work restrictions, if any, on every report. These restrictions were for "partial disability moderate" on September 30, 2002 and was for sedentary work only restrictions as of July 1, 2003. Id. at 218, 222.

On February 23, 2004, Dr. Fatti noted, "[i]n my opinion, because her bilateral upper extremity problems are continuing and worsening and because of her mentally depressed state, in my opinion she is totally temporarily disabled. Again, I am asking for Compensation approval for Psychiatric Evaluation and Treatment!" Id. at 214. This visit was also the first time Dr. Fatti noted depression in Plaintiff, observing, "within about 30 seconds of me talking to her, she was crying and very upset"; "she is at the end of her rope, she is depressed, she is not sure what she is going to do with her life, and this has been an ongoing thing, mentally worsening each time she comes to see us"; "her depression is increasing and she is mentally unable to do things other than the most rudimentary activities of daily living and helping to care for her kids." Id. at 213-214.

On two occasions, October 25, 2004 and February 28, 2005, Plaintiff's difficult with laundry is mentioned and on July 5, 2005, Dr. Fatti noted that Plaintiff's medication is interfering with her ability to perform the activities of daily living. Id. at 209, 207, and 205. On July 11, 2006, Plaintiff's final visit, Dr. Fatti noted that Plaintiff was "quite disturbed, crying, and very frustrated with her entire condition in life" and that "she is very upset." Id. at 201. Dr. Fatti also does not restrict Plaintiff to "totally temporarily disabled" again. On July 11, 2006, the final visit, Plaintiff is diagnosed with "tendonitis elbow" and "Reflex Sympathetic Dystrophy, " and given the work restriction "[t]he patient may work with the following restrictions: She is capable of sedentary work only." Id. at 200.

After filing her claim, Plaintiff was evaluated by Dr. Woodrow Wilson on February 22, 2011. Id. at 227-235. In that report, Dr. Wilson observed that Plaintiff had "not been under doctors' care since 2006. She has had no recent evaluation for this and has had no x-rays or MRI scans done recently." Id. at 227. After her physical examination, Dr. Wilson noted that Plaintiff's "[e]lbows, wrists, and hands have full range of motion, but she does complain of pain in her left elbow and left wrist on motion. She seems to be sensitive to touch in those areas." Id. at 228. Dr. Wilson diagnosed Plaintiff with, "1. Chronic arm and shoulder pain with history of RSD, causing chronic pain syndrome. 2. History of heavy tobacco use. 3. Obesity." Id. at 229. Due to RSD, Dr. Wilson imposed several limitations on Plaintiff's ability to work:

Use of Hands:
Limited to "frequently": handling, fingering, feeling, push/pulling on the left and right hands
Postural Activities:
Limited to "frequently": climb stairs and ramps, climb ladders or scaffolds, balance, ...

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