United States District Court, M.D. Tennessee, Northeastern Division
Crenshaw Chief Judge.
REPORT AND RECOMMENDATION
Brown United States Magistrate Judge.
The Honorable Waverly D. Crenshaw, Jr., Chief United States
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
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.
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.
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).
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.
medical records for Dr. Alan Drake, M.D., are before the
court for the period March 21, 2001 through February 29,
2016.(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
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
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)
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 stenosisbilaterally 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)
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,  weakness, back pain or
joint disability.” (Doc. 5, pp. 453, 456, 461)
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 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)
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 curvature,
multiple mildly narrowed degenerative lumbar discs and
associated minimal hypertrophicendplate lipping.”
(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)
Kathryn Galbraith, Ph.D., examined plaintiff consultively on
September 30, 2013 to conduct a clinical interview, mental
status examination, and to review the record. (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,
” 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.
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)
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.
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)
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.
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
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)
Non-Medical Documentary Evidence
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 due to her continued battle with
her illness. . . .” (Doc. 5, p. 311)
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)
Lynn, the principal at Woodland Park from 2008-2012, provided
a written testimonial dated April 2, 2014 which included the
. . . . 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)
Luna, Principal of Woodland Park beginning in 2010 provided a
written testimonial dated April 3, ...