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Bergstrom v. Berryhill

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

June 27, 2018

ELIZABETH BERGSTROM, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF Social Security, [1] Defendant.

          Crenshaw Chief Judge.

          REPORT AND RECOMMENDATION

          Joe B. Brown United States Magistrate Judge.

         To: The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge.

         This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Social Security Administration (SSA) through its Commissioner denying plaintiff's application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 416(I) and 423(d). For the reasons explained below, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 11) be DENIED and the Commissioner's decision AFFIRMED.

         I. PROCEDURAL HISTORY[2]

         Plaintiff filed an application for DIB on February 13, 2013. Plaintiff alleged that she was disabled because of degenerative disc disease and fibromyalgia (fibromyalgia or FM). (Doc. 5, pp. 115, 122, 251) Plaintiff alleged an amended disability onset date of June 3, 2013. Plaintiff's application was denied initially on November 7, 2013 and upon reconsideration on March 20, 2014.

         Plaintiff requested a hearing before an ALJ on April 10, 2014. A hearing was held before ALJ Todd Spangler on April 4, 2016. Plaintiff was represented at the hearing by attorney Donna Simpson. Edward Smith, an independent vocational expert (VE) testified at the hearing.

         The ALJ entered an unfavorable decision on May 9, 2016. (Doc. 5, pp. 19-37) Plaintiff appealed the decision to the Appeals Council on May 27, 2016 (Doc. 5, p. 187) which denied her request for review on May 11, 2017 (Doc. 5, pp. 1-7).

         Plaintiff brought this action through counsel on July 13, 2017 (Doc. 1), following which she filed a motion for judgment on the administrative record on December 4, 2017 (Doc. 11). The Commissioner responded in opposition on January 2, 2018. (Doc. 13) Plaintiff did not reply. This matter is now properly before the court.

         II. EVIDENCE[3]

         A. Documentary Evidence

         1. Medical Evidence

         The medical records for Dr. Alan Drake, M.D., are before the court for the period March 21, 2001 through February 29, 2016.[4](Doc. 5, pp. 333-66, 384-98, 432-41, 474-80, 585-91) The following letter written by Dr. Drake to the White County Board of Education on May 23, 2013 is among these records:

Ms. Bergstrom suffers from fibromyalgia, chronic back pain, multiple allergies, and a disorder that makes it impossible for her to work with the chemicals involved in her work as a janitorial worker at . . . Woodland Park [Elementary School (hereinafter Woodland Park)]. The fact that air conditioning will be turned off in the near future also complicates her functional picture.
This is to notify you that she will be taking a medical leave due to the above listed problems beginning June 6, 2013. I anticipate that she probably will not return in the near future [due] to the nature of her problems.

(Doc. 5, p. 361) Also among these records is a letter written by Dr. Drake on April 2, 2014 after plaintiff's application for benefits was denied on initial review:

It is my understanding, from Ms. Bergstrom, that she has been denied disability benefits due to a recent decision.
I am her primary care provider and have been for many years. [Plaintiff] suffers from significant fibromyalgia, degenerative disc disease, depression, and anxiety. It is my opinion that she is unable to obtain and keep gainful employment with her lack of formal education and training/experience. She is unable to work on a continuous basis for more than a few minutes without experiencing significant symptoms and thus is unable to maintain gainful employment. I would urge you to please reconsider your decision.

(Doc. 5, p. 393)(bold and underline added to support the analysis below at pp. 10-18)

         Dr. Drake referred plaintiff to Dr. Khan W. Li, M.D., in September 2008 for a neurological evaluation of her low back pain. (Doc. 5, pp. 382-83) Dr. Li wrote the following in his September 29, 2008 report: “[Plaintiff] has full strength in both of her extremities. The sensation is intact to light touch. Gait is within normal limits. Balance is normal. Reflexes are 1 and symmetric.” (Doc. 5, p. 382) Dr. Li also wrote:

[Plaintiff] brings today with her an MRI of her lumbar spine. This MRI demonstrates extensive degenerative disc disease from L3-4 to L4-5, including L5-S1. There are significant . . . changes to the vertebral bodies. There is an element of foraminal stenosis[5]bilaterally at ¶ 4-5, which is moderate, and some mild central stenosis at ¶ 4-5 and L3-4. Overall, [plaintiff's ] MRI demonstrates significant degenerative disease for someone her age.

(Doc. 5, p. 382) Dr. Li also noted that he thought plaintiff “could benefit from physical therapy, ” that she “may . . . in her lifetime require some sort of spinal surgery, ” “that since she is able to deal with the pain so well right now, and is able to work full-time . . . she is not yet at the point of requiring surgery, ” and that she “is content with coping with her pain with her pain medicines and her normal daily routines.” (Doc. 5, pp. 382-83)

         Dr. Jeffrey Loveland, D.P.M., treated plaintiff for foot problems seven times between November 19, 2009 and August 31, 2015. (Doc. 5, pp. 452-73) Dr. Loveland noted the following on three occasions between June 15 and August 31, 2015: “Patient denies any past joint pain, joint swelling, muscle pain, post static dyskinesia, [6] weakness, back pain or joint disability.” (Doc. 5, pp. 453, 456, 461)

         Plaintiff presented to Dr. W. Travis Cain, M.D., on March 26, 2013 to assess an alleged “reaction to metal in [her] caps and dental work.” (Doc. 5, pp. 444-48) Dr. Cain noted in the examination section of his clinical record that plaintiff was “in no acute distress, ” and in both the Review of Systems (ROS) and examination sections that she exhibited “[n]o specific joint pains, joint swelling, or erythema[7] around the joints.” (Doc. 5, pp. 444-45) Dr. Cain noted subsequently that tests for allergies to dental metals, latex and mouse feces were negative. (Doc. 5, p. 446)

         Dr. Terrence Leveck, M.D., examined plaintiff consultively on September 26, 2013. (Doc. 5, pp. 368-71) Dr. Leveck noted that plaintiff was in “no acute distress” at the time of her exam, that she “move[d] readily between the chair and the table, ” and that “[s]trength testing [wa]s normal in her grips, elbows, wrists, ankles, and knees.” (Doc. 5, p. 369) Dr. Leveck referred plaintiff for X-rays of her “lumbosacral spine” because the results of the 2008 MRI were “not available to [him].” (Doc. 5, p. 368) The impressions from the X-rays were as follows: “Tiny dextroscoliosis[8] curvature, multiple mildly narrowed degenerative lumbar discs and associated minimal hypertrophic[9]endplate lipping[10].” (Doc. 5, p. 371) Dr. Leveck diagnosed plaintiff with “Musculoskeletal back pain” and FM, noting that her “[f]ibromyalgia examination revealed tenderness at 14 of 18 points.” (Doc. 5, 370) His assessment of plaintiff's physical capabilities was as follows: “She could sit for eight hours out of eight. Fine motor function is intact. She can stand and walk for eight hours out of eight and lift and carry 5 lbs occasionally.” (Doc. 5, p. 370)

         B. Kathryn Galbraith, Ph.D., examined plaintiff consultively on September 30, 2013 to conduct a clinical interview, mental status examination, and to review the record.[11] (Doc. 5, pp. 372-77) Dr. Galbraith diagnosed plaintiff with “[a]djustment [d]isorder [w]ith [a]nxiety” noting that her “current psychiatric state was euthymic, ”[12] and characterizing her psychiatric impairments as “mild” to “moderate.” (Doc. 5 p. 377) Plaintiff represented that she was able to “prepare simple meals . . . wash dishes, vacuum, sweep and do laundry though she ha[d] to take frequent rest periods, ” but was “unable to do yard work.” (Doc. 5, p. 376) Plaintiff also represented during the course of her evaluation that “she ha[d] never been fired or let go” from a job. (Doc. 5, p. 376)

         Rebecca Joslin, Ed.D., examined the MER on October 3, 2013 on initial review. (Doc. 5 pp. 81-82) Dr. Joslin determined that plaintiff had an anxiety disorder that resulted in only mild to moderate limitations. (Doc. 5, p. 82)

         Dr. Charles Settle, M.D., examined the MER on November 6, 2013 on initial review. (Doc. 5, pp. 84-86) Dr. Settle determined that plaintiff had the residual functional capacity (RFC) to perform light work with limitations.

         On December 11, 2013, plaintiff requested that her 2008 MRIs be repeated because they were “over five years old and . . . w[ould] not be accepted by the disability people . . . .” (Doc. 5, p. 385) Dr. Drake ordered MRIs of plaintiff's lumbar and cervical spine. (Doc. 5, p. 386) The MRIs were completed on December 20, 2013. (Doc. 5, pp. 561-62) On December 23, 2013, Dr. Drake's office “notified [plaintiff] there were no changes from the last MRI per Dr. Drake, ” i.e., the MRI that she provided to Dr. Li in 2008. (Doc. 5, p. 386)

         M. Duncan Currey, Ph.D., examined the MER on March 12, 2014 upon reconsideration. (Doc. 5, pp. 99-100) Dr. Currey also determined that plaintiff had an anxiety disorder that resulted only in mild to moderate limitations. (Doc. 5, p. 99)

         Dr. Frank Pennington, M.D., examined the MER on March 19, 2014 upon reconsideration. (Doc. 5, pp. 101-04) Dr. Pennington also determined that plaintiff could perform light work with limitations.

         Dr. R. Craig Saunders, M.D., examined plaintiff for left ankle pain on September 9 and October 7, 2014. (Doc. 5, pp. 400-08) Dr. Saunders wrote the following in the ROS section of both clinical reports: “Patient reports . . . no muscle aches, no muscle weakness . . . no back pain . . . no exercise intolerance . . . no arm pain on exertion . . . no weakness, no numbness . . . no fatigue . . . .” (Doc. 5, pp. 402, 406)

         2. Non-Medical Documentary Evidence

         Sandra Crouch, Director of Schools in White County, provided a written testimonial dated March 31, 2014 in which she stated, in relevant part, that plaintiff “resigned from the school system in 2012[13] due to her continued battle with her illness. . . .” (Doc. 5, p. 311)

         Will England, an English Teacher at Woodland Park, provided an undated written testimonial which included the following:

Liz continued to be part of Woodland Park until the fall of 2013 when she resigned. The last year . . . Liz . . . would come in late, leave early, or not come in at all. When she was [on the job] she complained about being tired and hurting and could not do certain jobs. This caused conflicts between her and her co-workers. . . .

(Doc. 5, pp. 312-13)

         Craig Lynn, the principal at Woodland Park from 2008-2012, provided a written testimonial dated April 2, 2014 which included the following:

. . . . During my last two years as principal [plaintiff] began having health issues that hindered her performance. [She] complained to me about muscle pains and aches and chronic fatigue problems. . . . She . . . got where she could not lift the trash cans in the dumpster due to pain. Also during this time, her character began to change . . . . Again during my last two years, especially during the last year, her mood swung from mild depression to being combative with staff. My last year at the school, she became difficult to work with because of arguing and could not get along with the other custodians. . . .

(Doc. 5, p. 315)

         Kim Luna, Principal of Woodland Park beginning in 2010 provided a written testimonial dated April 3, ...


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