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Frazier v. Berryhill

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

April 12, 2017

NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Pending before the Court is Plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 14). The motion has been fully briefed by the parties.

         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 Plaintiff's claim for disability insurance under Title II, as provided by the Social Security Act (“the Act”). Upon review of the administrative record as a whole and consideration of the parties' filings, the Court finds that the Commissioner's determination that Plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g). Plaintiff's motion will be denied.


         Plaintiff, Elizabeth Frazier, filed a Title II application for disability insurance on August 13, 2010, alleging disability as of August 16, 2003. (Tr. 29, 69, 144-45). Plaintiff's claim was denied at the initial level on November 30, 2010, and on reconsideration on June 3, 2011. (Tr. 69-74, 75-78). Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held on October 18, 2012. (Tr. 41, 100, 106). On November 9, 2012, the ALJ issued a decision finding that Plaintiff was not disabled. (Tr. 26-36). Plaintiff timely filed an appeal with the Appeals Council, which issued a written notice of denial on January 29, 2014. (Tr. 1-5). This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).


         The ALJ issued an unfavorable decision on November 9, 2012. (AR p. 26). Based upon the record, the ALJ made the following enumerated findings:

1. The claimant last met the insured status requirements of the Social Security Act on June 30, 2009.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 16, 2003 through her date last insured of June 30, 2009 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairment: degenerative disc disease, fibromyalgia, Sjogren's and residuals of atrial septal defect repair (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) in that she could lift 20 pounds occasionally and ten pounds frequently, could sit for six hour in an eight-hour workday and could stand/walk for six hours in an eight-hour workday. However, she could only occasionally balance stoop, knee, crouch, crawl and climb ramps and stairs. She could never climb ladders, ropes or scaffolds.
6. Through the date last insured, the claimant was capable of performing past relevant work as a cafeteria manager, DOT code 187.167-106, which is SVP7. This work did not require the performance of work related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant was not under a disability, as defined in the Social Security Act, at any time from August 16, 2003, the alleged onset date, through June 30, 2009, the date last insured (20 CFR 404.1520(f)).

(AR pp. 31-36).


         Plaintiff was born on May 11, 1953, and alleges that she became disabled on August 16, 2003. (Tr. 29, 144). In her Disability Report, Plaintiff alleged disability due to “[d]epression, injuries to neck, back, joints, degenerative disc disease.” (Tr. 167). The following summary of the medical record is taken from the ALJ's decision:

The claimant testified that she was injured in an accident, in both June and August of 2003. She began to have back pain that spread into her legs. She testified that she began to have joint pain in 2007. Both Dr. McFerland and Dr. Cuevas treated the claimant during that time. Dr. McFerland sent her to a pain clinic. She testified that before June of 2009, her date last insured, she experienced significant pain and secondary limitations in her lower back, feet and legs. She also had issues with foot pain and chronic fatigue. She testified that her doctor blamed the pain for the fatigue. She also testified to memory problems and anxiety attacks, but the timing of those conditions was less than clear in her testimony.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.
Notes from Dr. Leslie Cuevas show a diagnosis of Sjogren's in March of 2008. However, when the claimant was seen in September of that same year, at Vanderbilt Hospital, there was no mention of the condition. There is no indication that the claimant has received ongoing treatment or has suffered any significant limitations from the condition. Exhibits 2F and 3F.
The claimant had CTs (with contrast) and myelograms done in July 2004 that revealed cervical and lumbar disc bulges. At ¶ 4-5 and C5-6, she had minimal spondylitic disk bulges. At ¶ 4-5, she had mild broad-based spondylitic disk bulge, no focal disk herniation and neural foramina and facet joints intact. At ¶ 5-Sl, she had mild right lateral disc protrusion. There was no significant stenosis in any of the joints. In 2005, the claimant's records from Dr. McFerland show degenerative disc disease under his “Assessment, ” but the imaging studies suggest that the degenerative disc disease was very mild at that time. Exhibits 1F and 6F.
In April of 2007, the claimant had another MRI, secondary to complaints of low back pain, paresthesia and weakness in her legs. The images showed mild degenerative disk disease changes in the mid and lower lumbar spines. The images revealed mild central canal stenosis at ¶ 4-5, but no focal disk herniation or nerve root impingement. Exhibit 5 F.
In December of 2009, almost six months after the claimant's date last insured, the claimant visited Dr. Vaughn Allen, with continued complaints of back, leg and neck pain. He ordered MRIs that were very similar to those ordered years earlier. The lumbar images again showed mild and nominal readings. At ¶ 4-L5, there was moderate narrowing, but that moderate narrowing caused only mild stenosis. At ¶ 5-Sl, there was mild and minimal stenosis. The cervical images showed a little change. There was mild to moderate central stenosis at ¶ 5-C6 with mild foraminal stenosis. At ¶ 4-C5, the stenosis was mild. Dr. Allen recommended pain management for her degenerative disc disease and fibromyalgia. Exhibit 4F.
The claimant saw Dr. Ifeanyi Obianyo in the later part of 2010 and in early 2011. She consistently complained of back, neck, arm and leg pain and paresthesia, but there are no comments in the record that solidifies onset date and severity. Another cervical MRI was done in March of 201 l, and this time, the radiologist used the words “mild” and “minimal” to describe the stenosis from the claimant's degenerative disc disease. It appears that there has been no significant change from the findings of 2005. Exhibit 16F.
In June of 2011, the claimant established her care with Dr. Cathy L. Hammond-Moulton. She told the doctor that she had been diagnosed with fibromyalgia the previous year. She also said that her pain was the result of two back-to-back motor vehicle accidents in 2003. The claimant alleged to have a low back bulging disc and said that Dr. Lambert had performed an MRI in March of her shoulders, neck and arm. She said she also received steroid shots in March. She complained of numbness and tingling in both hands. Upon examination, the physician found vertebral spine tenderness in the lower back and palpable paraspinals spasm. However, the motor system was labeled normal. Additionally, the doctor noted a normal gait. The claimant visited this same physician in July and the doctor again described her gait as normal and her motor system as normal. In August of 2011, the claimant saw her physician for a sore throat, but she made no mention of musculoskeletal pain, based on the office visit notes. She visited the doctor again in October with chest congestion, but this time she mentioned pain in her right shoulder. This recitation of treatment since May of 2009 is significant only because it shows times without complaint even after the date last insured. More importantly, the claimant returned in December of 2011 with allergic rhinitis and back pain. Her description of the back pain was that it had been chronic, but not constant. The physician wrote, “Pains in the upper back, arm and low back ongoing and intermittent for yrs, but recently, about 2 weeks ago, began again w/ the left elbow to the upper shoulder and neck.” This description suggests that the claimant's testimony of constant, debilitating pain that causes an inability to stand without being bent-over is perhaps exaggerated. None of the treating physicians describes her condition as such. 17F
The claimant was diagnosed with fibromyalgia by at least 2005. In January of that year, the claimant's physician, Dr. McFerland, wrote in his office notes, “She reports chronic pain in her neck, legs, etc and she states, I refuse to work, ' ‘It kills me to lift my head up.' She again speaks in a stoic and matter of fact fashion essentially demanding that she is entitled to disability.” Although the doctor's “Assessment” included the diagnosis of fibromyalgia, under the doctor's “Plan, ” he wrote, “Discussed my concerns with her and the fact that although she has chronic soft tissue pain, I cannot consider her disabled by this.” Exhibit 6.
The claimant visited Dr. Leslie Cuevas in early 2006 and was again diagnosed with fibromyalgia. She returned in December of 2007, explained she had been “lost to follow up” because of discovery and repair of ASD, and complained of severe joint and muscle pain. She had been found to have a positive rheumatoid factor and had 18 out of 18 trigger points. The diagnoses were positive rheumatoid factor, fibromyalgia, and vitamin D deficiency. Dr. Cuevas noted that the claimant had negative side effects from Lyrica and suggested that she would benefit from regular exercise and better sleep. Exhibit 2F.
The claimant returned to see Dr. McFarland in December of 2006, but then waited almost a year before returning in November of 2007. It looks as if they may have spoken by phone in June of 2008, when she asked for the filling of some forms regarding disability based on a motor vehicle accident in 2003. There are no other notes or opinions provided by Dr. McFarland. It appears he treated her for pain for several years, but did not consider her pain disabling at the time he last commented on the subject in 2005.
In December of 2006, the claimant was preparing for parathyroid surgery, when an ECG identified an atria septal defect that required surgery. In February of 2007, the claimant saw her heart surgeon and reported that since the closure of her atrial septal defect the previous December, her symptoms had improved substantially and that she was “not that short of breath anymore and she [could] do more than what she had been in the past. An echocardiogram ... revealed a well-seated ADS device without evidence of left or right shunt. She denied chest pain, palpitation or syncope.” In April of 2007, the claimant saw the cardiologist for another follow up visit. Dr. David Zhao noted that the claimant had done well since her surgery and was not having any symptoms suggestive of procedural complications. Her echocardiogram revealed an ejection fraction of 55-65% without any valvular disease noted. Exhibit 3F.
The claimant had a chest x-ray in February of 2011. The radiologist noted the endovascularly placed occlusive device within the atrial septal defect, as well as mild cardiomegaly, but concluded, “no acute cardiopulmonary disease identified.” It appears the claimant has sustained a good recovery from the heart repair and is free of symptoms related to the defect. Exhibit 13F.
The claimant saw Dr. Brnce Davis in October of 2012, more than three years after the date last insured. His observations can be only guesses as to the claimant's condition in 2009. He summarized her medical history, complaints and observations. He saw a normal gait and full range of motion in both shoulders. She had slow, but normal motion in her wrists, hands and fingers. Her gait maneuvers, such as heel-toe and tandem, were normal, but slow. Dr. Davis concluded that the claimant could lift/carry ten pounds both occasionally and frequently, could sit for one to two hours at one time and four to six hours in an eight-hour workday. She could stand/walk for only four hours in an eight-hour workday. He also limited the claimant's neck motions, grip, climbing, squatting, extreme heat and cold, and movement on uneven surfaces. While this evaluation of the claimant's residual functional capacity in October of 2012 is not challenged, it is not considered a dependable assessment of her condition in May of 2009. The letter sent to Dr. Davis by the claimant's attorney, providing medical history and asking for an onset date for the claimant's present symptoms, does not contain the earlier quoted opinion of Dr. McFerland that the claimant's condition did not qualify her for disability at that time. Dr. Davis' hand written note on the attorney's summary is not based on the complete record as supplied by Dr. McFerland. Even so, the limited range of light exertion level work assigned in the residual functional capacity above, is not significantly different than this opinion issued three years after the date last insured. 15B and 18F.

(AR pp. 33-35).

During the hearing, she and her attorney made reference to chronic fatigue, carpal tunnel syndrome and joint pain.
Notes from Dr. McFerland include depression in the assessment part of the record, but there is no discussion of the condition. In June of 2011, when the claimant began treatment with Dr. Cathy L. Hammond-Moulton, her record noted “no depression.” Although depression may be an occasional problem, the record does not reflect any sustained treatment from a mental health provider and does not suppott the allegation of depression as a severe impairment. Exhibits 6F and 17F.
The claimant's allegations of joint pain are credible, but not to the extent that they qualify as a severe impairment. Dr. Bruce Davis examined her in 2012 and found that she had no tenderness in her wrist or hand. She had normal finger sensation, fist making and finger-thumb opposition. She had reduced grip, but no atrophy and no swelling, redness, warmth or nodules. She had full range of motion in both shoulders and elbows. Although she had a positive rheumatoid factor from a blood panel, her joint limitations are not severe, based on the observations of Dr. Davis. The doctor suspected that she might have carpal ...

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