United States District Court, M.D. Tennessee, Nashville Division
Honorable Waverly D. Crenshaw, Jr., United States District
Brown, United States Magistrate Judge.
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
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). 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
REVIEW OF THE RECORD
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 and inflammatory changes.
(Doc. 13, p. 247).
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).
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).
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,  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).
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,
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).
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).
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).
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).
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).
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).
The Administrative Hearing
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,
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,
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).
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).