United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JULIET GRIFFIN, Magistrate Judge.
To: The Honorable Todd J. Campbell, District Judge.
The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Disability Insurance Benefits ("DIB"), as provided by the Social Security Act.
Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g) and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 14) should be DENIED.
In October 2010, the plaintiff protectively filed an application for DIB, alleging a disability onset date of February 25, 2010, due to, inter alia, fibromyalgia, asthma, sleep apnea, anxiety, high blood pressure, and stomach problems. (Tr. 11, 112-18, 131, 139.) Her application was denied initially and upon reconsideration. (Tr. 56-57, 62-64, 68-69.) The plaintiff appeared and testified at a hearing before Administrative Law Judge Renee Andrews-Turner ("ALJ") on January 2, 2013. (Tr. 29-55.) On February 7, 2013, the ALJ entered an unfavorable decision. (Tr. 11-23.) On April 23, 2014, the Appeals Council denied the plaintiff's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3.)
The plaintiff was born on May 24, 1962 (tr. 139), and she was 47 years old as of her alleged disability onset date. She graduated high school and has worked as a phlebotomist. (Tr. 32, 50, 143-48.)
A. Chronological Background: Procedural Developments and Medical Records
1. Medical Evidence
On October 23, 2008, the plaintiff was examined by Dr. M. Porter Meadors, III, a rheumatologist, and diagnosed with fibromyalgia, osteoarthritis, hypertension, dyspepsia/reflux disease, and chronic seasonal allergies/asthma. (Tr. 196-98.) During the examination, the plaintiff had some tenderness in her trapezius muscles and bilateral epicondyles, good range of motion in her hips, good grip strength, and normal tendon reflexes with no evidence of synovitis. (Tr. 197.) Dr. Meadors recommended physical therapy and prescribed Etodolac for the plaintiff's arthritic pain. (Tr. 198.) On March 4, 2009, the plaintiff presented to Dr. Maurice Barnes, a gastroenterologist, and was diagnosed with chronic gastroesophageal reflux disease ("GERD"), probable sleep apnea, exogenous obesity, and asthma. (Tr. 200.) Dr. Barnes suggested a sleep apnea evaluation and video esophogram. Id. The plaintiff returned to Dr. Meadors on April 9, 2009, reporting "some improvement in regard to persistent soft tissue pain." (Tr. 320, 323.) Dr. Meadors did not change the plaintiff's medical regimen and recommended that she undergo additional studies. (Tr. 320.)
From approximately April 2009 until October 2009, the plaintiff presented to Dr. Patricia Arns for primary care. (Tr. 242-65, 326.) During this time, Dr. Arns treated the plaintiff for a variety of ailments including, inter alia, asthma, sinusitis, hypertension, hyperglycemia, chest pain, stomach pain, weight gain, vitamin D deficiency, myalgia, probable osteoarthritis, and syncope after the plaintiff "passed out in church" one day. Id. Physical examinations during this time were generally unremarkable, finding the plaintiff to be alert, oriented, and in no acute distress with normal balance, gait, coordination, and deep tendon reflexes but with some edema in her lower legs and crepitus in her knees. (Tr. 252, 257, 259, 263-64.) In April and May 2009, Dr. Arns observed that the plaintiff demonstrated "[n]o unusual anxiety or evidence of depression." (Tr. 259, 264.) Dr. Arns prescribed a number of medications, including Advair and Singulair for asthma, Lunesta for sleep, Nexium for GERD, Cymbalta and Lyrica for fibromyalgia, and Benicar for hypertension. (Tr. 243, 246, 251, 257-58, 261, 264-65.) At various times, she observed that the plaintiff's asthma and hypertension were controlled on medication. (Tr. 251, 257, 264.) After October 2009, the plaintiff continued to call Dr. Arns' office with medical complaints, and she received prescription refills and medication samples from Dr. Arns until at least February 2011. (Tr. 243-48, 326.)
From approximately October 2010 until October 2011, the plaintiff presented for primary care to Matthew Walker Comprehensive Health Center where she was seen primarily by Dr. Joyce Semenya. (Tr. 327-72.) During this time, Dr. Semenya treated the plaintiff for fibromyalgia, chest pain, eczema, hypertension, asthma, depression, anxiety, anemia, dyspepsia, and abnormal glucose. Id. Dr. Semenya prescribed, inter alia, Flexeril and Etodolac for musculoskeletal pain; Advair and Singulair for asthma; and Lisinopril for hypertension. Id. After the plaintiff complained of depression and anxiety, Dr. Semenya variously prescribed Cymbalta, Gabapentin, and Celexa. (Tr. 327-31, 336, 346-48, 354-59.) In March 2011, the plaintiff was assigned a Global Assessment of Functioning ("GAF") score of 56, indicating moderate symptoms. (Tr. 355.) In June 2011, she reported that she was "doing well on medication, " experiencing "[symptom] improvement, " and "manag[ing] stressors better." (Tr. 335-36, 340.)
On January 17, 2011, Dr. Brannon Mangus, a Tennessee Disability Determination Services ("DDS") consultative physician, performed an all-systems examination of the plaintiff, who reported having problems with asthma, fibromyalgia, hypertension, stomach problems such as constipation and GERD, untreated sleep apnea, and anxiety. (Tr. 266-72.) Upon examination, she had normal gait, station, and mobility, and she had no difficulty getting out of a chair or onto and off of the examining table. (Tr. 269.) She was alert and oriented and in no apparent distress with normal speech and normal intellectual functioning. Id. Her grip strength was forty pounds in her right hand and thirty pounds in her left hand, and she was able to grasp and manipulate objects without difficulty. Id. She demonstrated 5/5 strength in all major muscle groups, no tenderness of any joint, 2 deep tendon reflexes, and full range of motion throughout. (Tr. 271.) Dr. Mangus observed that the plaintiff's ability to "walk, twist, turn, bend, and lift was not adversely affected" by obesity, and he did not identify any diagnosable abnormalities during the examination. Id. Dr. Mangus noted the plaintiff's history of fibromyalgia, probable sleep apnea, stomach problems, asthma, hypertension, and anxiety but opined that she had "no impairment-related physical limitations, by examination, today." (Tr. 271-72.)
On February 9, 2011, the plaintiff was psychologically examined by DDS psychological examiners Bobbie Hand, M.S., and Kathryn Sherrod, Ph.D. (Tr. 279-84.) The examiners observed that the plaintiff did not exhibit "any symptoms of anxiety" and was "polite, friendly, and talkative" throughout her evaluation. (Tr. 282.) The examiners noted that the plaintiff's concentration and memory appeared adequate, that she functioned in the "low average range of intelligence, " and that her adaptive functioning was normal. (Tr. 282-83.) Due to the plaintiff's complaints of "a relatively high number of unreasonable symptoms, " the examiners opined that "she was exaggerating the severity of her psychological symptoms." (Tr. 282.) The plaintiff reported that she was able to "attend to her self-care needs" and perform "several household chores unassisted" and that she was able to go grocery shopping. (Tr. 283.) Ms. Hand and Dr. Sherrod found no evidence upon which to base a psychological diagnosis, assigned the plaintiff a GAF score of 65,  and opined that she had no limitations with her ability to understand, remember, or concentrate; with her social skills; or with her adaptive functioning. (Tr. 283-84.)
On March 7, 2011, Dr. Larry Welch, Ed.D, a nonexamining DDS psychological consultant, completed a Psychiatric Review Technique ("PRT"). (Tr. 286-99.) Dr. Welch found no medically determinable mental impairment and no functional limitations. Id. On July 11, 2011, Dr. Jenaan Khaleeli, Psy.D., a nonexamining DDS psychological consultant, reached the same conclusion. (Tr. 306-19.)
The plaintiff presented to the emergency room on several occasions from April 2011 to August 2012 with symptoms related to asthma, including wheezing, dyspnea, chest pain, and sinusitis. (Tr. 373-405.) Chest x-rays were normal. (Tr. 375, 381, 387.) An EKG in August 2012 showed "a normal sinus rhythm, a normal axis, and no evidence of ischemia." (Tr. 387.) An x-ray in August 2012 showed an "obese thorax with bibasilar atelectatic changes" and "osteopenia and osteoarthritic changes of the bony thorax." (Tr. 387, 398.)
On October 15, 2012, Dr. Arns wrote a letter indicating that she had known the plaintiff since 1993, and treated her "for many of those years." (Tr. 406.) Dr. Arns indicated that the plaintiff had "severe asthma, requiring hospitalizations and multiple ER visits;" depression; and fibromyalgia, "complicated by degenerative disc problems and osteoarthritis." Id.
Dr. Arns completed a medical opinion assessing the plaintiff's ability to perform work-related physical activities and opined that she could lift and carry less than ten pounds occasionally and frequently; stand and walk less than two hours in an eight-hour workday; and sit less than two hours in an eight-hour workday. (Tr. 407-08.) She opined that the plaintiff could sit thirty minutes and stand ten minutes before needing to change positions and that she needed to be able to shift positions at will and walk around every thirty minutes for five minutes at a time. (Tr. 407.) Dr. Arns based these limitations on the plaintiff's low back pain, fibromyalgia, degenerative disc disease, osteoarthritis, and depression. Id. Dr. Arns also opined that, due to osteoarthritis in the plaintiff's knee, she could occasionally twist but could never stoop, crouch, or climb stairs and ladders. (Tr. 408.) Additionally, Dr. Arns opined that the plaintiff's upper extremity weakness caused impairments with her ability to reach, push, and pull. Id. She also opined that the plaintiff should avoid all exposure to extreme cold and heat, high humidity, fumes, odors, dusts, gases, perfumes, soldering fluxes, solvents, cleaners, and chemicals due to her severe asthma and that the plaintiff would be absent from work more than four days per month. Id.
Dr. Arns also completed a medical opinion assessing the plaintiff's ability to perform work-related mental activities and opined that, due to depression, the plaintiff had moderate difficulty responding appropriately to usual work situations and to changes in a routine work environment. (Tr. 409-11.)
B. Hearing Testimony
At the hearing held on January 2, 2013, the plaintiff was represented by counsel, and the plaintiff and the vocational expert ("VE"), Pedro Roman, testified. (Tr. 29-55.) The plaintiff testified that she is 5'1" tall and weighs 190 pounds. (Tr. 32.) She testified that she graduated high school and lives by herself. (Tr. 32, 38.) She said that she last worked in February 2010 for a physician but that the job ended "[d]ue to some disagreements and health issues." (Tr. 33.) She explained that, when she stopped working, her pain had gotten worse and she was under stress. (Tr. 41.)
The plaintiff testified that her health problems include fibromyalgia, sleep apnea, arthritis, depression, and asthma. She said that fibromyalgia "affects [her] whole body" but particularly her right leg and hip. (Tr. 33.) She described the pain as "excruciating" and said that it sometimes "keeps [her] from sleeping." (Tr. 33-34.) She related that she averages four hours of sleep on a "good night, " "stay[s] pretty fatigued and tired, " and does not eat very much. (Tr. 34.) She said that she used to fall asleep at work two or three times a day but that she has not had a sleep study performed because she does not have insurance. (Tr. 34, 45.) She testified that she also has arthritis in her right knee and began having problems with her right hand grip about a month before the hearing. (Tr. 44-45.)
The plaintiff testified that her depression "onset from a variety of things, " including getting a divorce, buying a house, losing her job, and remaining unemployed for three years. (Tr. 37.) She testified that her asthma attacks can be caused by laughter, changes in the weather, and fragrances. (Tr. 35.) She said that she has breathing problems "several times a week" and sometimes goes to the emergency room for breathing treatments. Id. She said that she takes Advair, Singulair, and uses inhalers for her breathing problems and that she used to receive breathing treatments from her physician-employer. (Tr. 35-36.)
The plaintiff testified that due to back and leg pain, she can sit, stand, or walk for no more than thirty minutes. (Tr. 36-37, 47.) She estimated that she can lift approximately ten to fifteen pounds. (Tr. 47.) She explained that she "can do most" chores around her house, including sweeping, mopping, and washing dishes, but that she does not have much to do because she lives alone. (Tr. 48.) She said that she drives approximately three times a week, usually to church where she sings in the choir. (Tr. 46.) She explained that the church service lasts approximately an hour to an hour-and-a-half and that she "sit[s] quite a bit during that time" but also stands while singing in the choir. Id. The plaintiff testified that her fellow church members "check on" her and that her mother goes grocery shopping for her and checks to see if she has eaten or taken her medicine. (Tr. 38-39.)
The plaintiff described Dr. Arns as her primary care provider "who knows all of [her] health issues." (Tr. 39.) She explained that she has seen Dr. Arns since "probably the early '90s" but has not been able to pay for visits because she does not have insurance so Dr. Arns gives her medication samples. (Tr. 37-39.) The plaintiff testified that she saw Dr. Arns "a couple of months" before the hearing. (Tr. 38.) When asked by the ALJ whether Dr. Arns performed "a thorough physical at that time, " the plaintiff replied that "[s]he checked me out a little bit then and filled out my paperwork and stuff for me and she gave me more samples for my asthma and my blood pressure and some more Cymbalta." (Tr. 48.) The plaintiff testified that it had "been a long time" since she had seen Dr. Arns prior to that visit but said that it had not been more than a year. (Tr. 49.)
The VE testified that his testimony was consistent with the Dictionary of Occupational Titles ("DOT") and classified the plaintiff's past work as a phlebotomist as light with a Specific Vocational Preparation ("SVP) level of three. (Tr. 50, 54.) The ALJ asked whether a hypothetical person with the plaintiff's age, education, and work history would be able to obtain work if she had no exertional limitations; could frequently balance, stoop, kneel, crouch, crawl, and climb; and could have only frequent exposure to dust, fumes, odors, gases, and pulmonary irritants. (Tr. 50-51.) The VE ...