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Johnson v. Berryhill

United States District Court, S.D. West Virginia, Charleston Division

February 1, 2018

ANNA LEE JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          CHERYL A. EIFERT, UNITED STATES MAGISTRATE JUDGE

         This action seeks a review of the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) denying Plaintiff's application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. The matter is assigned to the Honorable John T. Copenhaver, Jr., United States District Judge, and was referred to the undersigned United States Magistrate Judge by standing order for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are the parties' cross motions for judgment on the pleadings as articulated in their briefs. (ECF Nos. 14, 17). The undersigned has fully considered the evidence and the arguments of counsel. For the following reasons, the undersigned RECOMMENDS that Plaintiff's request for judgment on the pleadings be DENIED, the Commissioner's request for judgment on the pleadings be GRANTED, the Commissioner's decision be AFFIRMED, and that this case be DISMISSED and removed from the docket of the Court.

         I. Procedural History

         On August 9, 2013, Plaintiff, Anna Lee Johnson (“Claimant”), completed an application for DIB, alleging a disability onset date of May 3, 2010, due to fibromyalgia; hypothyroidism that caused short-term memory problems; muscle spasms in her back, neck, and shoulders; anxiety; insomnia; severe headaches lasting over a month; joint pain in every joint that was worst in the hips and knees; hand and wrist pain; hypercholesterolemia; disc degeneration and/or bone spurs at ¶ 3 through C7 and Luschka's joint spondylosis. (Tr. at 252-57, 271). The Social Security Administration (“SSA”) denied Claimant's application initially and upon reconsideration. (Tr. at 166, 176). Claimant filed a request for an administrative hearing, which was held on September 24, 2015, before the Honorable Toby J. Buel, Sr., Administrative Law Judge (“ALJ”). (Tr. at 79-124). By written decision dated October 26, 2015, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 56-78). The ALJ's decision became the final decision of the Commissioner on January 9, 2017, when the Appeals Council denied Claimant's request for review. (Tr. 1-7).

         Claimant timely filed the present civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The Commissioner filed an Answer and a Transcript of the Administrative Proceedings. (ECF Nos. 8, 9). Both parties filed memoranda in support of judgment on the pleadings. (ECF Nos. 14, 17). Consequently, the issues are fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 42 years old on her alleged onset date and 47 years old on her date last insured. (Tr. at 69). She has the equivalent of a high school education and communicates in English. (Tr. at 270, 272). In the past, Claimant worked as a commercial cleaner, home health aide, cashier, and overnight stocker. (Tr. at 116-18).

         III. Summary of ALJ's Decision

         Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Social Security regulations establish a five-step sequential evaluation process for the adjudication of disability claims. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. § 404.1520. The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful employment. Id. § 404.1520(b). If the claimant is not, then the second step requires a determination of whether the claimant suffers from a severe impairment. Id. § 404.1520(c). If severe impairment is present, the third inquiry is whether this impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4 (the “Listing”). Id. § 404.1520(d). If the impairment does, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must determine the claimant's residual functional capacity (“RFC”), which is the measure of the claimant's ability to engage in substantial gainful activity despite the limitations of his or her impairments. Id. § 404.1520(e). After making this determination, the fourth step is to ascertain whether the claimant's impairments prevent the performance of past relevant work. Id. § 404.1520(f). If the impairments do prevent the performance of past relevant work, then the claimant has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, as the fifth and final step in the process, that the claimant is able to perform other forms of substantial gainful activity when considering the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. § 404.1520(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcomings has the capacity to perform an alternative job, and (2) that this specific job exists in significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir. 1976).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through March 31, 2015. (Tr. at 61, Finding No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant had not engaged in substantial gainful activity since May 3, 2010, her alleged onset date, through her date last insured. (Id., Finding No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: “fibromyalgia, degenerative disc disease of the cervical and lumbar spine, and headaches.” (Id., Finding No. 3). The ALJ also considered Claimant's hypothyroidism, hyperlipidemia, urinary tract infections, renal insufficiency, asymptomatic stage III chronic kidney disease, status post left wrist fracture, anxiety, and depression, but determined that these impairments were non-severe. (Tr. at 61-63). Under the third inquiry, the ALJ found that Claimant did not have an impairment or combination of impairments that met or medically equaled any of the impairments contained in the Listing. (Tr. at 63, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except never climb ladders, ropes, or scaffolds and perform all other postural activity occasionally. She may have no exposure to heights, moving machinery, and hazards. The Claimant is afflicted with chronic pain noticeable to herself at all times, but could maintain attention and concentration in two-hour increments with normal breaks.

(Tr. at 63-69, Finding No. 5).

         At the fourth step, the ALJ found that Claimant could perform her past relevant work as a cashier/checker. (Tr. at 69-70, Finding No. 6). Therefore, the ALJ found that Claimant was not disabled and was not entitled to benefits. (Tr. at 71, Finding No. 7).

         IV. Claimant's Challenge to the Commissioner's Decision

         Claimant asserts two challenges to the Commissioner's decision. First, Claimant contends that the ALJ's step three analysis of her cervical spine impairment and migraines was not supported by substantial evidence. Claimant argues that the ALJ's analysis of her cervical spine impairment under Listing 1.04 was conclusory, inconsistent with the ALJ's subsequent discussion of the evidence, and that the ALJ failed to apply any of the evidence to the listing criteria. (ECF No. 14 at 9-11). Claimant asserts that the analysis of her migraine headaches was similarly deficient because the ALJ did not identify the specific listing under Listing 11.00 that was considered, did not acknowledge that her headaches were to be considered under Listing 11.03, and did not compare the evidence to the listing criteria. (Id. at 12).

         Claimant also challenges the ALJ's assessment of her pain and credibility. Specifically, Claimant argues that the ALJ erred in relying almost exclusively on objective evidence to discredit allegations of disabling pain from headaches. (ECF No. 14 at 5-9). Claimant points to case law emphasizing that migraine headaches are not detectable in laboratory testing and physical examinations; therefore, an ALJ should not rely on the absence of objective evidence of migraine headaches to discredit a claimant's allegations of pain. (Id. at 7-8). Claimant states that the ALJ did not demonstrate how Claimant's statements were inconsistent with the evidence. Moreover, the ALJ selected and presented evidence in a manner designed to favor his own conclusions. (ECF No. 14 at 5-6).

         In response to Claimant's arguments, the Commissioner argues that the record did not contain probative evidence that Claimant met or equaled any of the listed impairments; therefore, any further articulation than the ALJ provided was unnecessary. Regarding Claimant's cervical spine impairment, the Commissioner states that the ALJ correctly found that Claimant could not meet the introductory criteria of Listing 1.04 because there was no evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis. (ECF No. 17 at 17-19). Further, the Commissioner argues that the record showed that Claimant did not suffer sensory loss, which was required under the listing. (Id. at 18-19). Regarding Claimant's headaches, the Commissioner contends that the ALJ thoroughly reviewed the evidence, which showed an absence of symptoms normally associated with migraines such as photophobia, sonophobia, nausea, or vomiting; daily activities that were inconsistent with Claimant's complaints; and testimony by a medical expert that Claimant did not meet a listing. (Id. at 19-22).

         As to Claimant's pain and credibility, the Commissioner asserts that the ALJ correctly analyzed Claimant's allegations regarding her headaches by considering a number of factors, not just the lack of objective evidence, including the fact that Claimant underwent little treatment prior to 2011, the type of treatment Claimant received or used, the lack of associated symptoms, and Claimant's daily activities. (Id. at 23-25). Further, the Commissioner points out that the ALJ accounted for Claimant's pain in the RFC finding, noting that Claimant had chronic pain noticeable to her at all times, but still had the ability to maintain attention and concentration in two-hour increments. (Id. at 25).

         V. Relevant Evidence

         While the undersigned has reviewed all evidence of record, only the notations most relevant to the disputed issues are summarized below:

         A. Treatment Records

         On December 8, 2011, a MRI was taken of Claimant's cervical spine due to her complaints of neck and arm pain. Claimant had some moderate disc degeneration and narrowing at ¶ 4-5 and C3-4, as well as mild degeneration and narrowing at ¶ 5-6 and C6-7, but there was no contact with Claimant's spinal cord. (Tr. at 396). Claimant also had a MRI of her thoracic spine, which was an “essentially negative” examination. (Tr. at 397).

         Shortly thereafter, on December 21, 2011, Claimant presented to Gregg A. Alexander, M.D., at Tallahassee Orthopedic Clinic, for chronic neck and back pain. (Tr. at 472). Claimant stated that she remained symptomatic despite trying physical therapy. (Id.). Dr. Alexander reviewed the MRIs of Claimant's spine taken earlier that month, noting that in Claimant's cervical spine, there was moderate disc/osteophyte at ¶ 4-5 and C5-6, but no central canal narrowing or neuroforaminal narrowing of significance. Dr. Alexander found the imaging, overall, reflected an essentially normal MRI for an individual of Claimant's age. He also saw no significant abnormalities in Claimant's thoracic spine. (Id.). Dr. Alexander remarked that Claimant's spine was normal in size and signal throughout. (Id.). On examination, Claimant had mild/moderate tightness in her neck and upper back, rapid withdrawal from light touch, and diffuse muscle tenderness, but no neurological deficits. (Id.). Dr. Alexander diagnosed Claimant with cervical disc degeneration at ¶ 4-5 and C5-6 that was moderate in severity, without any compressive lesion or clinical findings of spinal cord or nerve root compression, and mid-back pain with a normal MRI. (Tr. at 472). Dr. Alexander offered a prescription for Fioricet to Claimant to take as needed for muscle tension headaches. (Id.). Dr. Alexander documented that he tried to reassure Claimant that her spine anatomy did not require surgery and was not extreme. (Id.).

         On November 2, 2012, Claimant presented to Deborah E. Newsome, ARNP, for a disability examination because her request for benefits was recently denied. (Tr. at 422). Claimant reported neck pain and exhibited trapezius spasms bilaterally on examination. (Tr. at 422, 424). Claimant stated that her neck pain and spasms were somewhat relieved by Flexeril; thus, the medication was refilled. (Tr. at 426). Claimant also reported intermittent headaches for which she took Fioricet in the past with relief of symptoms. (Tr. at 425). Claimant's prescription for Fioricet was renewed, and she was advised to rest in a dark room when she had a headache. (Id.).

         On August 14, 2013, Claimant returned to Ms. Newsome, stating that she was experiencing persistent headaches that she rated a “10” out of “10” in severity, which began one month prior. (Tr. at 427). Claimant also continued to have neck pain. (Id.). Her neck pain was assessed to be cervicalgia for which Flexeril was renewed. (Tr. at 429). For her headaches, Claimant was prescribed the opioid pain medication, Tramadol, and the nonsteroidal anti-inflammatory drug (NSAID), Mobic. (Id.).

         On May 29, 2014, x-rays were taken of Claimant's lumbar, thoracic, and cervical spine with normal results; it was noted that if Claimant had further unexplained pain, a MRI or bone scan should be considered. (Tr. at 520-22). The following month, on June 17, 2014, Claimant presented as a new patient to Jessica M. Shreve, M.D., at Rosemar Clinic, to establish her primary care in West Virginia after moving from Florida. (Tr. at 582). Claimant explained that she suffered from neck and back pain and headaches that began several years ago when her mother, who suffered hallucinations secondary to a hypoglycemic episode, pushed Claimant into a door, twisting her neck, and kicked Claimant in the face. (Id.). Claimant stated that she saw a chiropractor over the past year with no relief. (Id.). She also complained that “nothing seemed to help” her headaches, although she did not regularly take Tylenol or ibuprofen. (Id.). On examination, Claimant had no tenderness, pain, or swelling in her cervical spine and she demonstrated normal movements, posture, and sensation. (Tr. at 584).

         On July 7, 2014, Claimant reported to Dr. Shreve that she continued to have neck pain and a headache almost daily. (Tr. at 575). She went to Med Express on June 27 and was given Narco to try, but it provided no relief, and she had previously tried tramadol with no relief. (Id.). Claimant had a headache at the time of her visit, but felt well in general with no visual, auditory, or neurological symptoms. (Tr. at 576). On examination, Claimant had no tenderness in her cervical spine and normal movement, posture, and sensation. (Tr. at 577). Dr. Shreve ordered a CT scan of Claimant's head and referred her for a neurosurgical consultation. (Tr. at 577).

         On July 28, 2014, Claimant presented to Houman Khosrovi, M.D., at PARS Neurosurgical Associates, Inc. Claimant reported that she suffered neck pain extending into her head, resulting in headaches. (Tr. at 503). Claimant explained that the headaches began after her mother shut Claimant's neck in a door and kicked her on both sides of her face in July 2013. (Id.). Claimant's musculoskeletal and neurological examinations were normal, except that Claimant had a moderately reduced range of motion in her cervical spine. (Tr. at 506-07). Claimant maintained a normal range of motion in her extremities; had no atrophy; demonstrated normal muscle tone, strength, and movement; and her sensation was intact. (Id.). Claimant was assessed with a headache and cervicalgia and the plan was for her to pursue physical therapy. If she continued to be symptomatic, Dr. Khosrovi would order a MRI. (Tr. at 507).

         On September 15, 2014, Claimant returned to PARS Neurosurgical Associates, Inc., and saw Brian P. Showalter, PA-C. She reported having completed four weeks of physical therapy, but the sessions were discontinued by the therapist because Claimant was not experiencing any relief of her symptoms. (Tr. at 508). Claimant further reported that she tried Mobic for two months, but it was discontinued due to kidney disease, and she stated that muscle relaxers offered modest ...


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