United States District Court, M.D. Tennessee, Nashville Division
ALETA A. TRAUGER U.S. District Judge.
REPORT AND RECOMMENDATION
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
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).
offered the following testimony at the June 25, 2015 hearing:
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).
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).
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).
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).
Records Related to Plaintiff's
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).
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).
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.
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).
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).
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 ...