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Shrum v. Commissioner of Social Security

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

June 5, 2018

DEBRA RADER SHRUM, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          HON. ALETA A. TRAUGER U.S. District Judge.

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Debra Rader Shrum (“Plaintiff”) brings this action under 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner denying her application for Disability Insurance Benefits under Title II of the Social Security Act. On April 14, 2017, Plaintiff filed a Motion for Judgment [Docket #18]. On January 30, 2018, the case was assigned to the undersigned pursuant to 28 U.S.C. § 636 for a Report and Recommendation. For the reasons set forth below, I recommend that Plaintiff's Motion [Docket #18] be DENIED.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on June 24, 2011, alleging disability as of May 4, 2010 (Tr. 229-230). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on February 1, 2013 (Tr. 88-131). On March 15, 2013, Administrative Law Judge (“ALJ”) Brian Dougherty found that Plaintiff was capable of performing her past relevant work as a computer clerk and as a customer service representative (Tr. 144-145). On June 20, 2014, the Appeals Council remanded the case for administrative proceedings, directing that the ALJ (1) provide an assessment of Plaintiff's mental limitations, (2) provide a rationale for the limitations found in the Residual Functional Capacity (“RFC”), and, (3) determine whether Plaintiff's past work activity rose to the level of “past relevant work” (Tr. 151-152). The Appeals Council also directed the ALJ to take supplemental testimony from a Vocational Expert (“VE”) “[i]f warranted by the expanded record” (Tr. 152).

         ALJ Dougherty held a second hearing on June 25, 2015 (Tr. 36). Plaintiff, represented by attorney Tina Foster, testified, as did VE Rebecca Williams (Tr. 45-76, 76-81). On July 31, 2015, ALJ Dougherty issued a partially favorable decision, finding that as of September 1, 2014, Plaintiff was disabled (Tr. 25-29). On September 22, 2016, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on November 14, 2016.

         II. BACKGROUND FACTS

         Plaintiff, born November 9, 1961, was 53 when ALJ Dougherty issued his decision (Tr. 29, 229). She completed two years of college and worked previously as a “coordinator/auditor” and global supply chain specialist (Tr. 251). Her application for benefits alleges disability resulting from migraines, anxiety, depression, Gastroesophageal Reflux Disease (“GERD”), stress, fatigue, heel spurs, bunions, and a variety of upper extremity and back problems (Tr. 249). She reported that she stopped working because she was laid off (Tr. 250).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony at the June 25, 2015 hearing:

         She lived with her husband (Tr. 45). Her 10-year-old grandson lived with them on weekdays (Tr. 45). Her husband continued to work (Tr. 47). Plaintiff relied on “frozen foods” for meal preparation (Tr. 47). Her husband grocery shopped, performed the heavier laundry chores, and vacuumed (Tr. 47). Plaintiff held a valid driver's license and was able to drive up to 10 miles at a time before experienced leg and back pain (Tr. 49). She received a handicap placard for her car several years earlier (Tr. 50). She last worked in 2010 (Tr. 50).

         Plaintiff received a Workers' Compensation settlement due to “repetitive motion type . . . injury” in 1989 or 1990 (Tr. 52-53). She attributed her “lay-off” at her most recent position to her frequent migraines, but acknowledged that three other individuals had been terminated at the same time (Tr. 53).

         Plaintiff was unable to work due to migraines, noting that before being laid off, she used up her leave and vacation time due to the condition (Tr. 58). She was unable to type well due to hand problems (Tr. 60). She denied overuse of pain medication, noting that her current dosage eased her pain without preventing her from functioning “at all” (Tr. 60-61). Physical therapy and occupational therapy worsened her condition (Tr. 64). She experienced pain while sitting and walked with a limp (Tr. 65). Before hurting her back in 2009, she was able to walk four miles a day but now experienced discomfort even walking to the mailbox (Tr. 66).

         In response to questioning by her attorney, Plaintiff testified that she was unable to hold or carry five pounds on a consistent basis (Tr. 69). Before being laid off, migraines caused her to miss three to four days of work each month (Tr. 70). She experienced two to three migraines each week lasting between four and ten hours (Tr. 70-71). In addition, she experienced chronic non-migraine headaches and sleep disturbances (Tr. 72). Due to non-restful sleep, she required two to three naps a day (Tr. 72). She spent a total of five hours a day napping (Tr. 73). Due to migraines and depression, she experienced comprehension and memory problems (Tr. 73-74). Her ability to work with others was compromised by depression and anxiety (Tr. 75). She experienced problems changing routines (Tr. 75-76).

         B. Medical Evidence

         1. Records Related to Plaintiff's Treatment[1]

         February, 2010 records by Robert McDaniel, M.D. note Plaintiff's report that her headaches were “not quite as frequent and . . . easier to control” (Tr. 381). Plaintiff reported that she was sleeping well and “missing less work” (Tr. 381). A May, 2010 MRI of the lumbar spine showed only mild degenerative disc disease with a shallow disc protrusion at ¶ 2-L3 (Tr. 375, 467). Dr. McDaniel's July, 2010 records state that Plaintiff experienced “situational stress and anxiety” due to losing her job and her husband's reduction in hours (Tr. 379). The same month, T. Scott Baker, M.D. noted Plaintiff's report of radiating back pain (Tr. 444). He observed that Plaintiff was in no acute distress with a normal mental status examination (Tr. 446). She demonstrated a normal gait, full muscle strength, and normal muscle tone (Tr. 446). Physical therapy records note that Plaintiff's goals were “met” (Tr. 464). The following month and in September and October, 2010, he administered epidural injections (Tr. 338, 440, 442). In November, 2010, Plaintiff reported that her back condition was unchanged (Tr. 435).

         January, 2011 range of motion studies were unremarkable (Tr. 430). In February, 2011, Dr. McDaniel recommended that Plaintiff exercise and lose weight (Tr. 377). The same month, she underwent a fasciotomy of the left foot for the condition of plantar fasciitis (Tr. 453). Followup records show initially good results (Tr. 454-455). March, 2011 records by Kimberly Plourde, M.D. state that Plaintiff was able to walk without difficulty (Tr. 468). In May, 2011, Plaintiff underwent additional epidural injections without complications (Tr. 418). The same month, Plaintiff reported “constant” left foot pain (Tr. 448). Dr. Baker's August, 2011 records note Plaintiff's report of “9/10” pain on average (Tr. 471). He advised her to “stay active and continue home exercise program” (Tr. 473).

         Dr. Baker's April, 2012 records note full muscle strength despite Plaintiff's report of continuing, intractable pain (Tr. 607-609). May, 2012 audiological testing showed “mild to profound asymmetrical sensorineural hearing loss bilaterally” but that Plaintiff retained “excellent” word recognition in both ears (Tr. 651). August, 2012 records also show full muscle strength (Tr. 605). Dr. McDaniel's October, 2012 records note Plaintiff's report of migraines once or twice a week (Tr. 618).

         In April and August, 2013, Dr. Baker noted that conservative treatment for back pain “provided a reduction in pain, improved quality of life, and improved activity level” (Tr. 688, 695). Dr. Baker's January, 2014 records note good results from physical therapy, home exercise, and transcutaneous electrical stimulation (“TENS”) (Tr. 711). February, 2014 imaging studies of the bilateral hands showed moderate osteoarthritis of the thumb joints (Tr. 717). In March, 2014, Dr. Baker administered bilateral wrist injections, noting that conservative measures “including medications and exercise” had failed (Tr. 718-719). September, 2014 EMG testing of the upper extremities slowed “very mild to mild” bilateral neuropathy of the wrist (Tr. 746). In December, 2014, Dr. Baker discharged Plaintiff for “inappropriate and/or threatening behavior” toward staff (Tr. 760).

         2. Non-Treating Records

         In August, 2011, Marie La Vasque, MA, on behalf of Susan R. Vaught, Ph.D., performed a consultative psychological examination, noting Plaintiff's report that daily activities were curtailed by migraines and back and foot pain (Tr. 506). La Vasque concluded that Plaintiff's attention “appeared to be intact, but her concentration appeared to be mildly to moderately impaired” with mild impairment in short-term memory (Tr. 507). La Vasque noted that Plaintiff's allegations of depression and anxiety bore a “primarily . . . somatic focus” (Tr. 507). She found that Plaintiff was capable of “understanding simple and complex instructions but “may have difficulty adapting to changes in work environment and/or job requirements” (Tr. 508).

         The following month, Babar Parvez, M.D. examined Plaintiff on behalf of the SSA, noting full strength in all extremities (Tr. 511). He noted a normal range of motion except for restriction of the dorsolumbar spine and left ankle (Tr. 512). The same month, R. Warren, M.D. performed a non-examining Psychiatric Review Technique, finding that as a result of depression and anxiety, Plaintiff experienced mild restriction in activities of daily living and moderate restriction in social functioning and concentration, persistence, or pace (Tr. 513, 516, 518, 523). Dr. Warren found that Plaintiff experienced moderate limitation in carrying out detailed instructions, maintaining concentration for extended periods, working within a schedule, working with others without distraction, completing a normal workweek without psychologically-based ...


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