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Massey v. Colvin

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

January 5, 2017

DEBORAH KAY MASSEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Honorable Waverly D. Crenshaw, Jr., United States District Judge.

          ORDER

          Joe B. Brown, United States Magistrate Judge.

         REPORT AND RECOMMENDATION

         The Plaintiff brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the Social Security Commissioner's denial of her applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. For the following reasons, the Magistrate Judge RECOMMENDS that the Plaintiff's motion for judgment on the administrative record (Doc. 15) be DENIED and the Commissioner's decision be AFFIRMED.

         I. PROCEDURAL HISTORY

         In June 2012, the Plaintiff applied for disability insurance benefits and supplemental security income, alleging an onset date of February 22, 2012. (Doc. 13, pp. 124, 131).[1] Her applications were denied on initial review and again upon reconsideration. (Doc. 13, pp. 59-62). An administrative hearing was convened at the Plaintiff's request. (Doc. 13, p. 27). The administrative law judge (“ALJ”) issued an unfavorable decision on October 17, 2014. (Doc. 13, p. 8). The Appeals Council declined to review the ALJ's decision. (Doc. 13, p. 1). The Plaintiff then filed a complaint seeking review of the ALJ's decision. (Doc. 1). The Plaintiff moved for judgment on the administration record (Doc. 15) to which the Defendant responded (Doc. 19) and the Plaintiff replied (Doc. 20). The matter is ripe for resolution.

         II. REVIEW OF THE RECORD

         A. Medical Evidence[2]

         Records from Centennial Medical Center show the Plaintiff was admitted in July 2010 and again in February 2011 for respiratory distress, asthma, obstructive sleep apnea, allergies, hypertension, obesity, and pneumonia. (Doc. 13, pp. 235-238, 241-246). A July 2010 chest x-ray was unremarkable. (Doc. 13, p. 239). Upon finding nodular density in the left lung in February 2011, a chest CT was ordered. (Doc. 13, p. 248). The CT provided the impression that the lung nodule was due to atelectasis[3] and inflammatory changes. (Doc. 13, p. 247).

         On a monthly basis from June 2011 to September 2011, the Plaintiff presented to Dr. Salim Mehio, M.D., at the Frist Clinic for complaints of coughing, wheezing, sneezing, congestion, and asthma. (Doc. 13, pp. 256-261). In September 2011, the Plaintiff was improving in response to allergy drops. (Doc. 13, p. 258).

         The Plaintiff was treated by Dr. David Haase, M.D., at the MaxWell Clinic from December 2009 to June 2014. The vast majority of her treatment records show she had no respiratory difficulties. (Doc. 13, pp. 263, 269, 274, 278, 283, 288, 290, 297, 301, 306, 310, 319, 333, 338, 343, 353, 610, 613, 618, 626, 630, 839, 843, 847, 851, 867, 871, 906, 910, 915, 919, 923). She complained of asthmatic symptoms on several occasions before the alleged onset date of disability. On one occasion in 2010, she believed her asthma was caused by her medication and thereafter switched to her previous medication. (Doc. 13, p. 841). During another visit, she alleged worsening symptoms due to pollen in the air, but the records showed normal respiration. (Doc. 13, pp. 921, 923). She reported that she had been hospitalized twice for asthma attacks in 2010. (Doc. 13, p. 845). She complained about asthmatic symptoms in July 2011, but treatment notes revealed a normal respiratory rate and pattern with no distress. (Doc. 13, pp. 267, 269). Records show she was wheezing in September 2011. (Doc. 13, p. 294). She complained of coughing and asthma after exposure to perfume, floor-stripping chemicals, and mildew at work and church in November and December 2011. (Doc. 13, pp. 312, 321, 325). After the alleged onset date of disability, her complaints became less frequent. In March 2012, she complained of a recent asthma attack and reported that she had been off her Prednisone for three weeks without an attack for two months. (Doc. 13, p. 340). During the visit, her respiration was normal. (Doc. 13, p. 343). The Plaintiff was wheezing on May 14, 2012. (Doc. 13, p. 348). In November 2013, the Plaintiff stated she “[n]eeds a letter saying her condition is ‘basically unchanged and fit to work in a chemical free environment otherwise her condition will be exacerbated.'” (Doc. 13, p. 611). On January 6, 2014, the Plaintiff reported that recent exposure to perfume had exacerbated her asthma for which she used a nebulizer, Singulair, and Advair. (Doc. 13, p. 619). She presented on May 19, 2014 to have her Social Security paperwork completed. (Doc. 13, p. 632). She later visited on May 27, 2014 “to have the [Social Security] paperwork redone reflecting her abilities at her worse [sic].” (Doc. 13, p. 865). During the visit, her respiration was normal. (Doc. 13, p. 867).

         The Plaintiff was also treated by Dr. Jatin Kadakia, M.D., from Clarksville Pulmonary and Critical Care. A September 30, 2011 pulmonary function test was normal but suggested that the Plaintiff may have asthma. (Doc. 13, p. 369). She was observed to be wheezing and have decreased air entry in July 2012. (Doc. 13, p. 395). On August 20, 2012, the Plaintiff reported that she was feeling a lot better since taking Advair, she had no complaints of wheezing, she had only used her inhaler once in three weeks, and her CPAP was working very well. (Doc. 13, p. 387). From this point on, Dr. Kadakia's treatment notes generally reveal normal respiration and well-controlled asthma and allergies. (Doc. 13, pp. 389, 595, 598-599, 603). In May 2014, the Plaintiff requested a new nebulizer and a new CPAP. (Doc. 13, p. 592). She reported that her eight-year-old CPAP was no longer working because of an accumulation of dust. (Doc. 13, p. 592). She reported using her inhaler every six to eight hours, [4] she occasionally had dyspnea, wheezed, and coughed, and she had not visited the emergency room or urgent care in the past year for asthma. (Doc. 13, p. 592).

         From January 2013 to September 2013, the Plaintiff was treated at Gateway Medical Center for pain in her jaw and tooth. (Doc. 13, p. 422). Throughout her time at Gateway Medical Center, the Plaintiff did not display respiratory issues. (Doc. 13, pp. 423, 432, 447, 453, 505, 519, 528, 552, 557, 560, 734, 740, 744, 748, 777). Similarly, records from Mid-Cumberland Infectious Disease showed no respiratory issues from February 2013 to April 2013. (Doc. 13, pp. 657, 660, 663, 666, 669, 672).

         B. Opinion Evidence

         The Plaintiff applied for disability benefits on account of asthma, allergies, and other “disorders.” (Doc. 13, p. 156). She worked as a nurse from 1990 to 2012 where she was required to walk and stand eleven hours a day, sit for one hour a day, stoop, knee, and crouch for four hours a day, and write and reach eleven hours a day. (Doc. 13, p. 157). The heaviest weight she lifted was ten pounds, and she frequently lifted less than ten pounds. (Doc. 13, p. 158). She stated that she could perform her duties at work until she was exposed to allergens, such as perfume and cleaning products. (Doc. 13, p. 162). With respect to activities of daily living, such as preparing meals and performing household chores, the Plaintiff mainly claimed allergen-based limitations. (Doc. 13, pp. 163-167). She alleged difficulty lifting, squatting, bending, reaching, walking, talking, stair climbing, and completing tasks. (Doc. 13, p. 167). She estimated she could walk about a quarter of a mile in air conditioning without stopping for a ten to fifteen-minute break. (Doc. 13, p. 167). She also stated she was often unrested due to sleep apnea, but noted that her CPAP was helping. (Doc. 13, p. 173).

         On December 9, 2011, Dr. Walton, D.O., from the Office of Personnel Management (“OPM”) found the Plaintiff not fit for duty unless her respiratory disorders could be accommodated. (Doc. 13, p. 683). As a result of her environmental allergies, the Plaintiff was removed from employment in February 2012. (Doc. 13, pp. 687-691). The Plaintiff later received a notice of proposed removal in February 2014. (Doc. 13, pp. 756-759). According to the notice, a December 9, 2013 letter signed by Dr. Haase stated that the Plaintiff could work when she did not have direct, sustained exposure to triggers and when she could walk away from strong smells. (Doc. 13, p. 757). In response to Dr. Haase's letter, three positions were identified as potentially suitable for the Plaintiff. (Doc. 13, p. 757). Before the evaluation was completed, the Plaintiff retracted her request for a workplace accommodation and decided not to return to work. (Doc. 13, p. 757). On April 9, 2014, OPM approved the Plaintiff's application for disability retirement on account of COPD. (Doc. 13, p. 760).

         Dr. Haase submitted an undated medical statement to the Plaintiff's former employer in which he opined that the Plaintiff “must work in a ‘chemical free' environment.” (Doc. 13, pp. 211-218). On November 1, 2011, Dr. Haase wrote a letter in which he opined that exposure to allergens will exacerbate the Plaintiff's COPD, asthma, and bronchitis. (Doc. 13, pp. 680-681). He opined that the Plaintiff should have limited or no direct exposure to triggers, and “she requires an allergen free and chemical free environment in order to perform work duties.” (Doc. 13, p. 681). On June 4, 2014, Dr. Haase signed the same statement that he wrote on November 1, 2011. (Doc. 13, pp. 764-765). He also filled out an undated physical capacity evaluation for the Plaintiff, which he said reflected the Plaintiff when she was symptomatic. (Doc. 13, p. 766). According to Dr. Haase, when the Plaintiff is symptomatic, she can only sit, stand, or walk one hour each in an eight-hour workday; can never lift weight, push or pull, use feet for repetitive movement, perform postural activities, or be exposed to any environmental hazards; can occasionally grasp, perform fine manipulation, and reach; and cannot work a forty-hour week. (Doc. 13, p. 766).

         On November 16, 2012, state examiner Dr. Samuel Sullivan, M.D., concluded that the Plaintiff's asthma was not severe because she responded well to Advair. (Doc. 13, p. 416).

         Dr. Susan Warner, M.D., a state examiner, performed a physical residual functional capacity (“RFC”) assessment of the Plaintiff on April 8, 2013. (Doc. 13, pp. 582-590). Dr. Warner opined that the Plaintiff could occasionally lift fifty pounds, frequently lift twenty-five pounds, stand, walk, and sit for six hours in an eight-hour workday, and push and pull without additional limits. (Doc. 13, p. 583). Dr. Warner opined that the Plaintiff could frequently perform postural activities. (Doc. 13, p. 584). Dr. Warner found no manipulative, visual, or communicative limitations, and opined that the Plaintiff's only environmental limitation consisted of avoiding even moderate exposure to fumes, odors, dusts, gasses, poor ventilation, etc. (Doc. 13, pp. 585-586). Because the record did not support the severity of the symptoms alleged, Dr. Warner found the Plaintiff only partially credible. (Doc. 13, p. 589).

         State examiner Sherita Orr-Fonseca evaluated the Plaintiff on April 9, 2013. (Doc. 13, pp. 185-188). Identifying the same RFC as Dr. Warner, Ms. Orr-Fonseca was unable to evaluate the Plaintiff's past relevant work from the information provided, but opined that the Plaintiff could also adjust to other work. (Doc. 13, pp. 185-188).

         C. The Administrative Hearing

         The Plaintiff testified that her disability began in February 2012 when she was let go from her job as a registered nurse due to her extensive sick leave. (Doc. 13, pp. 31-32, 52). Before that time, she had worked at night to avoid hospital traffic, and until late 2010 the housekeepers had not stripped and waxed the floors when she was on duty. (Doc. 13, p. 36).

         The Plaintiff testified that she experiences two or three asthma attacks a month which incapacitate her for three days to a week. (Doc. 13, p. 33). She stated these attacks occur when she is outside her home, such as at the library or bank. (Doc. 13, p. 37). Even the carpeting present at the administrative hearing bothered her, she said. (Doc. 13, p. 37). She stated that she visits the emergency room at least four or five times a year for breathing problems. (Doc. 13, p. 38). She called an ambulance on one occasion because she had an allergic reaction to her asthma medication, and this has not reoccurred since switching medicines. (Doc. 13, pp. 38-39). Though she has been taking a holistic approach by eating foods in their raw state, she said that controlling her environment works best to control her asthma. (Doc. 13, p. 47).

         She described her home as a clean environment without perfumes, colognes, or carpeting. (Doc. 13, p. 34). She can do laundry and clean as long as she does not use products that flare up her asthma. (Doc. 13, p. 49). She shops for clothes online and only goes out to dinner occasionally. (Doc. 13, pp. 40-41). Before she moved in with her father, she did her own grocery shopping, but she said she had to hold her breath when walking by the cleaning supplies aisle and occasionally could not complete her shopping. (Doc. 13, pp. 42-43). She explained that her social activities are restricted by people wearing fragrances, and she drives herself to avoid exposure to smells and fumes. (Doc. 13, pp. 41-42). She goes to the library about twice a week for about thirty minutes at a time, and when she goes to church she is there for approximately three hours. (Doc. 13, pp. 45, 50).

         The ALJ presented several hypotheticals to the vocational expert. (Doc. 13, pp. 52-55). In response to the RFC ultimately selected by the ALJ, the vocational expert testified that such an individual could perform the Plaintiff's past work as well as other jobs. (Doc. 13, pp. 52-53).

         D. The ...


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