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McWhorter v. Berryhill

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

April 14, 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. 12). 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, Florence R. Mcwhorter, filed a Title II application for disability insurance on March 21, 2011, alleging disability as of December 18, 2008. (Tr. 102-03). Plaintiff's claim was denied at the initial level on July 12, 2011, and on reconsideration on October 28, 2011. (Tr. 61-66, 70-72). Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held on March 11, 2013. (Tr. 9, 25, 74-75). On April 11, 2013, the ALJ issued a decision finding that Plaintiff was not disabled. (Tr. 6-20). Plaintiff timely filed an appeal with the Appeals Council, which issued a written notice of denial on June 26, 2014. (Tr. 1-3). 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 April 11, 2013. (AR p. 6). Based upon the record, the ALJ made the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2014.
2. The claimant has not engaged in substantial gainful activity since December 18, 2008, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: lumbar fusion; fibromyalgia; and post-surgery on right wrist and left thumb with pins (20 CFR 404.1520(c).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals 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 the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) that is limited to lifting and carrying twenty pounds frequently and ten pounds occasionally;[2] standing and/or walking for six hours in an eight-hour workday; sitting for six hours in an eight-hour workday; performing occasional postural activities with no use of ladders; occasionally handling with her light arm; and occasionally thumb-gripping with her left hand. Additionally, she needs a sit/stand option in thirty-minute intervals.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on September 28, 1959 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 18, 2008, through the date of this decision (20 CFR 404.1520(g)).

(AR pp. 11-20).


         The following summary of the medical record is taken from the ALJ's decision:

The claimant has a history of degenerative changes of the lumbar spine most severe at ¶ 4-5 and post-operative changes related to a prior left hemilaminectomy at ¶ 5-S1 with mild to moderate left foraminal stenosis as demonstrated by an MRI performed on November 17, 2009. A subsequent MRI revealed moderate central stenosis at ¶ 3-4 due to disc bulging and facet hypertrophy. After conservative treatment measures and epidural steroid injections failed to relieve the claimant's symptoms, she underwent a decompressive lumbar laminectomy and fusion at ¶ 4-5 and L5-S1 on December 18, 2008, the alleged onset date. Exhibits 1F and 3F.
A follow-up treatment note dated January 15, 2009, from the claimant's orthopedic surgeon, Edward Mackey, M.D., reflects that it was planned for the claimant to return to work in two months on light duty. However, a couple of months later it was noted that she was improving slowly and still had lingering back discomfort with burning pain in her toes although an X-ray showed that her fusion was well-aligned. She was prescribed Celebrex and Lyrica and given refills of Lortab, and on April 23, 2009, Dr. Mackey ordered therapy for core strengthening with a transition to an independent gym program. Despite the claimant's ongoing symptoms, Dr. Mackey gave her light duty restrictions of lifting no more than fifteen pounds, lifting no more than five pounds frequently, and sitting and standing without limitations. Exhibit 3F.
On May 20, 2009, the claimant complained of worsening symptoms concerning for neuropathic pain, and she prescribed an increased dosage of Lyrica. However, it was noted that she still tried to return to her past work. The following month, a lumbar MRI showed circumferential effacement of the epidural fat around the thecal sac at ¶ 4-5 and L5-S1, a well circumscribed fluid collection in the laminectomy defect most indicative of a seroma, and mild enhancement of the disc and endplates of the intervertebral body graft placement due to either the claimant's recent surgery or early inflammatory changes. Exhibit 3F.
On June 15, 2009, the claimant met with pain management provider Jeffrey Hazlewood, M.D., on referral from Dr. Mackey. She endorsed a "pressure, soreness type pain" in her lower back that radiated to her right lower extremity and caused numbness and tingling in her right toes. However, she endorsed no more than mild to moderate pain with medication with a pain rating of four to five on a ten-point scale with ten being the worst. In addition to the claimant's symptoms, Dr. Hazlewood also noted that she had a history of left thumb surgery in 2002-2003 and two right wrist surgeries in 2003-2004. Exhibit 2F.
On examination, Dr. Hazlewood observed that the claimant had pain getting on the examination table. She had spasms throughout her lumbar spine, diminished lumbar range of motion, decreased pinprick sensation in the right posterior calf, and slightly diminished motor strength in the right hip flexor and right anterior tibialis with give away. Otherwise, she had good range of motion throughout all extremities, negative straight leg raises, normal motor strength in the upper and lower extremities, normal reflexes, and normal sensation in the right medial foot and bilateral upper and left lower extremities. Based on his overall examination, Dr. Hazlewood diagnosed the claimant with chronic low back pain with a combination of mechanical and neuropathic pain, lumbar spasms, and sacroiliac joint pain "probably referred from the lumbar spine." She was continued on Lyrica, Celebrex, and Lortab and additionally prescribed Lidoderm patches. She was also advised to continue using a TENS unit and scheduled for sacroiliac joint injections. Exhibit 2F.
The next day, June 16, 2009, the claimant met with Dr. Mackey, who noted that she was doing well neurologically and had good motor function. However, she had increased pain with bilateral FABER test, and it was decided that she would proceed with the sacroiliac joint injections, which was performed by Dr. Hazlewood on July 7, 2009. Exhibits 2F and 3F.
At a follow-up visit to Dr. Mackey on July 28, 2009, it was noted that the claimant had tried to return to work but had been unable to do so. Nevertheless, it was determined that she was twenty-five percent better. A couple of months later, Dr. Mackey noted that the claimant had not been doing as well as he would have liked and that that he could not medically clear her to return to her past work. He instead decided to send her for a functional capacity evaluation. Exhibit 3F.
The actual findings of that functional capacity evaluation were not found in the provided records. However, based on the results of the evaluation, Dr. Mackey assessed permanent restrictions on October 21, 2009, of no lifting over five pounds frequently, thirty pounds maximum, ten pounds from floor to waist, ten pounds from waist to chest, and ten pounds overhead. He further opined that she needed to alternate between sitting and standing, sitting for forty-five minutes per hour and standing for fifteen minutes per hour. Such restrictions were not inconsistent with a physical examination conducted by Dr. Hazlewood just a few days prior on October 6, 2009, with findings of diminished lumbar range of motion but only mild spasms, non-antalgic gait, and good range of motion throughout the lower extremities. Exhibits 2F and 3F.
The following month on November 9, 2009, Dr. Mackey determined that the claimant had an overall impairment rating of twenty-two percent based on her persistent back symptoms. Exhibit 3F.
On follow-up visits to Dr. Hazlewood, the claimant endorsed having no more than moderate pain with medication, and she stated that medication allowed her to function and have a better quality of life. Examinations continued to demonstrate decreased lumbar range of motion, spasms, and tenderness. However, they also showed negative straight leg raises, non-antalgic gait, and good range of motion throughout the lower extremities. Exhibit 16F.
Despite her ongoing symptoms, the claimant reported on April 21, 2010, that she had been looking for work while applying for disability, and on May 13, 2010, she mentioned that she had been walking thirty minutes one to two times a day for exercise. In July 2010, she experienced a significant flare-up in her low back pain, but on August 5, 2010, she reported having "dramatic improvement" after being prescribed Cymbalta. Exhibit 16F.
Several months later on October 21, 2010, Dr. Mackey noted that the claimant was doing well symptomatically and continuing with her exercise program. Exhibit 3F.
The claimant continued to endorse having moderate pain with medication, but on April 8, 2011, and May 5, 2011, she reported having a higher pain rating of six and seven, respectively. However, her physical examinations remained the same with findings of non-antalgic gait, negative straight leg raises, and good range of motion throughout the lower extremities. Exhibit 16F.
On May 31, 2011, the claimant underwent a medical consultative examination conducted by Deborah Morton, M.D. On examination, she had decreased lumbar, hip, left thumb, and knee range of motion; mildly positive straight leg raises bilaterally; diminished deep tendon reflexes in the lower extremities; diminished strength in the upper extremities; and absent Babinski reflexes. However, she had normal deep tendon reflexes in the upper extremities; normal gait, station, and gait maneuvers; normal strength in the lower extremities; normal sensation; and normal range of motion in her shoulders, elbows, wrists, and ankles. The claimant complained of fibromyalgia but had no pain on palpation of any trigger points. Exhibit 5F.
Based on her overall examination, Dr. Morton diagnosed the claimant with lumbar spine fusion status post injury, fibromyalgia, and left thumb decreased range of motion and opined sedentary work limitations. Exhibit 5F.
Following the consultative examination, the claimant met with an orthopedist on June 22, 2011, for evaluation of left sternoclavicular joint pain. On examination, she had a large prominence over her right sternoclavicular joint but full range of motion with good muscle strength and tone, negative drop arm, no crepitus, and no signs of instability. Nevertheless, she was diagnosed with right sternoclavicular joint prominence "most likely due to arthritis." The evaluating orthopedist determined that it was nothing more serious than that and recommended "just watching" the area. Exhibit 7F.
Remaining medical records from Dr. Hazlewood dated June 24, 2011, to February l5, 2013, reflect that the claimant endorsed increasing pain even with medication but that her physical examinations remained rather unremarkable and virtually unchanged from those conducted by Dr. Hazlewood prior to the medical consultative examination. Specifically, Dr. Hazlewood's examinations consistently noted decreased lumbar range of motion but normal motor strength in the bilateral lower extremities, negative straight leg raises, non-antalgic gait, and good range of motion throughout ...

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