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Osborne-Moore v. Colvin

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

May 4, 2015

MELANIE F. OSBORNE-MOORE, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

To: The Honorable Todd J. Campbell, United States District Judge.

REPORT AND RECOMMENDATION

JOE B. BROWN, Magistrate Judge.

For the reasons explained below, the Magistrate Judge RECOMMENDS that Plaintiff's Motion for Judgment on the Administrative Record (the record) (Docket Entry 16) be DENIED, and the Commissioner's decision be AFFIRMED.

I. Procedural History

Plaintiff protectively filed for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on April 05, 2010. (Docket Entry 12, p. 137).[1] She claimed an onset date of February 01, 2010 and disability due to: poor circulation in both legs, stroke, numb right leg, depression, high cholesterol, and high blood pressure. (Docket Entry 12, p. 137; 142). The Commissioner denied her claims on initial review and reconsideration. (Docket Entry12, pp. 59-69). Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). (Docket Entry 12, p. 72). On August 28, 2012, Plaintiff appeared before ALJ, H. Scott Williams. (Docket Entry 12, p. 36). Also appearing were Robert Parker (Mr. Parker), Plaintiff's attorney; Gary Sturgill, the vocational expert (VE); and George Wade (Mr. Wade), a witness. (Docket Entry 12, p. 36). The ALJ found that Plaintiff was not disabled under Title II or Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 416(i), 423(d), 1382(c). (Docket Entry 12, p. 11). On April 16, 2014, the Appeals Council denied Plaintiff's request for review. (Docket Entry 12, p. 1).

On June 16, 2014, Plaintiff, proceeding pro se and in forma pauperis, timely brought the instant action. (Docket Entry 1). Also on June 16, 2014, the District Judge referred this case to the Magistrate Judge. (Docket Entry 3). Defendant filed its Answer and the record. (Docket Entry 11-12). On September 17, 2014, Plaintiff filed a "Motion for Judgment, " which the Magistrate Judge construes as a Motion for Judgment on the Administrative Record. (Docket Entry 16).[2] To that end, the Magistrate Judge construes Plaintiff's Motion as seeking judicial review of the final decision of the Social Security Administration (SSA), through its Commissioner, as set out by the ALJ under 42 U.S.C. 405(g) and 1383(c). Defendant has filed a Response in Opposition. (Docket Entry 17). Therefore, the matter is properly before the Court.

II. Review of the Record

A. Relevant Medical Evidence

Relevant evidence begins on February 01, 2010. See 20 C.F.R. §§ 404.1512(d)(2) and 416.912(d)(2). On February 17, 2010, Plaintiff presented to Nashville General Hospital "for evaluation of complaints of blockage in her legs... [and] numbness in her toes and feet...." (Docket Entry 12, p. 337). The provider recommended that Plaintiff start medication to relieve her symptoms, that she have an annual study to evaluate her circulation, that she release her records for the provider to review, and that she stop smoking. (Docket Entry 12, p. 338). On February 25 and March 22, 2010, Plaintiff presented to Madison Family Clinic for follow up treatment of pain in her toes and legs. (Docket Entry 12, pp. 199-202). On October 30, 2010, Plaintiff presented to Summit Medical Center Emergency Room with joint pain. (Docket Entry 12, p. 222). The provider noted that she had diabetic neuropathy in both of her feet. (Docket Entry 12, p. 223). On November 26, 2010, Plaintiff presented to Skyline Medical Center Emergency Room (Skyline ER) with pain in her toe and was later discharged as stable. (Docket Entry 12, p. 284). On December 03, 2010, Plaintiff presented to Nashville General Emergency Room with chest pain and was later discharged as stable. (Docket Entry 12, pp. 318; 333).

Throughout February, May, September and October 2011, Plaintiff presented to Madison Family Clinic for follow up of her diabetes, high cholesterol, back problems, high blood pressure, obesity, and smoking. (Docket Entry 12, pp. 400-411). On October 21, 2011, Plaintiff presented to Skyline ER and was treated for "blue toe syndrome."[3] (Docket Entry 12, p. 383).

On January 09, 2012, Plaintiff presented to Eastland Memorial Emergency Room after a motor vehicle accident. (Docket Entry 12, p. 341). Radiology reports of her spine, hip, pelvis, and right forearm showed "no evidence of fracture or dislocation." (Docket Entry 12, p. 347; 349-52). Radiology reports of her chest and brain were "normal." (Docket Entry 12, p. 348; 353). She received follow up care at Madison Family Clinic. (Docket Entry 12, p. 397). She was treated by a chiropractor and dismissed for failure to comply with the treatment plan. (Docket Entry 12, p. 433). On January 22, 2012, Plaintiff presented to Skyline ER with chest pain, was discharged, and then received follow up care at Madison Family Clinic. (Docket Entry 12, pp. 360; 394). On March 26, 2012, Plaintiff was admitted for ongoing chest pain and ultimately underwent coronary artery bypass surgery the next day. (Docket Entry 12, pp. 412; 453).

B. Consultative Examiner Assessments on behalf of Disability Determination Services

On October 16, 2010, Dr. Brannon Mangus completed a medical consultative examination and reported no abnormalities. (Docket Entry 12, p. 220). On November 11, 2010, Deborah E. Doineau, Ed.D. (Dr. Doineau) completed a psychological consultative evaluation and concluded that "[a]lthough [Plaintiff] does appear to have depression and some anxiety, these symptoms do not appear to significantly impact her functioning." (Docket Entry 12, p. 231). Dr. Doineau also completed a medical source statement of ability to do work related mental activities. (Docket Entry 12, p. 232). She found that Plaintiff had mild limitations in carrying out simple instructions, and in understanding and remembering complex instructions. (Docket Entry 12, p. 232). She found that Plaintiff had moderate limitations in carrying out complex instructions. (Docket Entry 12, p. 232). On November 19, 2010, Jenaan Khaleeli, Psy.D. completed a psychiatric review of the record and found that Plaintiff had mild limitations in activities of daily living, social functioning, and concentration, persistence or pace. (Docket Entry 12, p. 247).

On February 05, 2011, Dr. Carolyn Parrish completed a physical RFC assessment. She found that Plaintiff could occasionally lift or carry fifty pounds, frequently lift or carry twenty-five pounds, sit, stand or walk for six hours in a normal eight hour day, and push or pull for unlimited periods. (Docket Entry 12, p. 310). She found that Plaintiff should avoid concentrated exposure to extreme cold or heat. (Docket Entry 12, pp. 311-14). On September 22, 2012, Dr. Mark Josovitz completed a post-hearing consultative examination. (Docket Entry 12, p. 497). He summarized that he found "zero physical findings to corroborate with the subjective complaints." (Docket Entry 12, p. 499). He noted that the orthopedic examination was "without limitation" and that he found "no limits to [Plaintiff's] activities." (Docket Entry 12, p. 499).

C. Plaintiff and Witness Testimony

On August 28, 2012, Plaintiff's attorney gave an opening statement to the ALJ. (Docket Entry 12, pp. 38-39). He stated that Plaintiff had a triple bypass, had "several admissions for chest pain and coronary artery disease, " and had "been diagnosed with peripheral vascular disease in her legs as well as peripheral neuropathy bilaterally." (Docket Entry 12, p. 38). Next, Plaintiff testified that she has a tenth grade education. (Docket Entry 12, p. 39). Plaintiff testified that she has diabetes and takes the medication, Metformin. (Docket Entry 12, p. 40). She testified that she has problems with her feet "where they hurt or they turn purple." (Docket Entry 12, p. 41). She testified that her toes tingle "all the time" and that she has had these symptoms since she had a stroke. (Docket Entry 12, p. 41). Plaintiff also testified that she has blockages in her legs. (Docket Entry 12, p. 42).

Plaintiff testified that she worked as a truck driver and that she "had to stop doing that because I could [not] drive all those hours without hurting when I get off work." (Docket Entry 12, p. 42). She testified that she had a stroke in 2007 and that her right side is still numb. (Docket Entry 12, p. 43). She testified that she has swelling in her ankles and legs twice a week. (Docket Entry 12, p. 43). She testified that since she has had bypass surgery, she still has chest pains, "but not as much." (Docket Entry 12, p. 44). She testified that she cannot afford most of her medications and that she was unable to attend rehabilitation after her surgery due to lack of insurance. (Docket Entry 12, p. 45).

Plaintiff testified that her back hurts "all the time" and described a motor vehicle accident in which she was involved. (Docket Entry 12, pp. 45-46). She testified that she can sit for twenty minutes at a time. Confusingly, Plaintiff testified that after twenty minutes, she has pain in her back and stated, "[m]y pain level is really high, so I guess I could take so much pain. Or I'm just faking it." (Docket Entry 12, p. 46). Plaintiff went on to state that she can stand for fifteen or twenty minutes. (Docket Entry 12, p. 46).

Next, Mr. Wade testified that he is Plaintiff's fiance and that over the past several years, he has seen Plaintiff with "[s]hortness of breath, feet turning purple." (Docket Entry 12, p. 48). He testified that he helps her dress, cook, and clean. (Docket Entry 12, p. 48). He testified that Plaintiff has chest pain and difficulty sleeping because of the pain. (Docket Entry 12, pp. 48-49). He testified that Plaintiff stays in bed to try to relieve the pain. (Docket Entry 12, p. 50).

D. Vocational Expert Testimony

The ALJ reviewed the past work of Plaintiff. (Docket Entry 12, p. 51). This included work as an office manager, which is considered sedentary, [4] skilled[5] work with an SVP of 7. (Docket Entry 12, p. 51). She also worked as a truck driver, which is medium and semiskilled with an SVP of 4. (Docket Entry 12, p. 51). She was also a production supervisor, which is light and skilled with an SVP of 7. (Docket Entry 12, p. 51). She was a hand packager, which is medium and unskilled. (Docket Entry 12, p. 51). Finally, she was a computer peripheral equipment operator, which is light and semiskilled with an SVP of 4. (Docket Entry 12, p. 51).

The ALJ then asked the VE to "assume the limitations that are stated in [record] exhibit 4F, and also assume the limitations in [record] exhibit 7F...." (Docket Entry 12, p. 51).[6] The VE clarified that there were "mental limitations noted in 4F... checked as moderately limited." (Docket Entry 12, p. 52). The VE testified that these "would preclude the skilled work that [he] noted earlier, " referring to Plaintiff's former employment. (Docket Entry 12, p. 52). The VE also testified that "the semiskilled and unskilled work... would be available." (Docket Entry 12, p. 52). The ALJ noted that "moderate is defined as more than a slight limitation, but is still able to function satisfactorily." (Docket Entry 12, p. 52). The ALJ asked the VE, "with ...


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