United States District Court, M.D. Tennessee, Nashville Division
H. SHARP, UNITED STATES DISTRICT JUDGE
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.
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.
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. §
issued an unfavorable decision on November 9, 2012. (AR p.
26). Based upon the record, the ALJ made the following
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
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).
REVIEW OF THE RECORD
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
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
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.
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
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 ...