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Dempsey v. Berryhill

United States District Court, N.D. Alabama, Southern Division

August 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Rita Dempsey (“Plaintiff” or “Dempsey”) brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security (the “Commissioner”) denying her claims for a period of disability insurance benefits (“DIB”). See 42 U.S.C. § 405(g). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

         I. Proceedings Below

         Plaintiff filed her application for DIB on or about May 15, 2013, [1] in which she alleged a disability onset date of April 14, 2011. (Tr. 93, 104, 173-79). She later amended her alleged onset date to June 14, 2012. (Tr. 10, 204). The initial application was denied by the Social Security Administration (“SSA”) on August 19, 2013. (Tr. 110). Plaintiff requested a hearing before an Administrative Law Judge on August 28, 2013. (Tr. 115). The hearing was set for February 3, 2015 with Administrative Law Judge Cynthia G. Weaver (“the ALJ”). (Tr. 125). In her decision dated April 23, 2015, the ALJ determined that Plaintiff had not been under a disability within the meaning of Sections 216(i) and 223(d) of the Social Security Act from the date of onset through December 31, 2012.[2] (Tr. 16). The Appeals Council denied Plaintiff's request for review on August 19, 2016. (Tr. 1-4). This denial was the final decision of the Commissioner, and therefore a proper subject for this court's appellate review.

         II. Facts

         Plaintiff was fifty-five years old on her amended alleged onset date.[3] (Tr. 173). She alleges that she has been disabled since that time due to emphysema/chronic obstructive pulmonary disease (“COPD”), arthritis, neuropathy, anxiety, depression, asthma, high blood pressure, diabetes, bone spurs, and a failed hip replacement. (Tr. 93-94, 209). Plaintiff has a high school education and last worked in December 2007 as an assembly line worker. (Tr. 210-11). Her hand was injured on the assembly line in December 2007, and she has not worked since that time. (Tr. 14, 27-28, 192, 194). She received a Worker's Compensation settlement related to the hand injury in the amount of $3800. (Tr. 28).

         By way of background, Plaintiff had a total left hip arthroplasty performed by Dr. Horn in October 2010 for osteoarthritis. (Tr. 14, 283-84). X-rays of the hip taken in December 2010 showed “good fit and fill” and an overall “excellent” appearance. (Tr. 533). In June 2011 Plaintiff presented to The Orthopaedic Center complaining of some pain in her left hip and leg “for three days.” (Tr. 526). On examination, Dr. Burnside noted that “she walks with a limp” and “she complains of a lot of pain in the left hip and leg. She says it goes down to her knee on occasion but does not necessarily go below her knees. Both of her knees are bothering her.” (Tr. 527). Plaintiff was prescribed Medrol and Ultram and was told to return to Dr. Horn on an as needed basis. (Id.).

         Plaintiff returned to see Dr. Horn in July 2011 complaining of pain in the left hip over the trochanteric area. (Tr. 513). On physical examination Dr. Horn noted her gait had a “troubled appearance and chronic limp. She struggles to get up and down out of the chair.” (Id.). Dr. Horn injected the hip with Depo-Medrol. (Id.). Plaintiff was instructed to return to Dr. Horn on an as needed basis. (Tr. 514). She returned in October 2011 complaining of pain in the left knee “which has stiffness and soreness and activity intolerant and ongoing inability to walk and stand significantly.” (Tr. 510). Plaintiff received an injection in her left knee and left hip. (Id.).

         In March 2012 Plaintiff returned to Dr. Horn “saying that she is having tenderness in her hip.” (Tr. 508). Dr. Horn noted “[l]ast time I saw her in the fall she had a hip injection which was successful. She had total hip arthroplasty with good success.” (Id.). On physical examination Dr. Horn noted “no limp.” (Id.). There was “moderate tenderness” in the left hip. Dr. Horn diagnosed Plaintiff with “improved” tendonitis of the left hip, osteoarthritis of the left knee, and status post total hip arthroplasty left doing satisfactorily.” (Tr. 508-09).

         The available medical evidence during the relevant period from June 14, 2012 through December 31, 2012 is scarce. (Tr. 12, 26; Pl. Br. at 3). On September 18, 2012, Plaintiff presented to Dr. Horn at The Orthopaedic Center with “quite a bit of pain in her hip, in her back, and down her leg. She says the pain can go as far as the foot and has been tingling in her foot in the past.” (Tr. 505). On physical examination Dr. Horn noted “discomfort on extremes of motion, ” “motion of the left hip is painful, ” and “tenderness over the greater trochanter.” (Id.). In addition, both knees were noted to be “generally tender.” (Id.). Plaintiff was diagnosed with left leg pain secondary to lumbar radiculopathy, osteoarthritis of the knees bilateral, status post total hip arthroplasty left, and trochanteric tendonitis left hip unresponsive to injection. (Id.). An injection was given in the knee, and an MRI scan of the lumbar spine and a bone scan of the pelvis and demurs was recommended. (Tr. 506). After those tests, Plaintiff was informed that “the knee is not the origin of this pain.” (Tr. 614). X-rays of the lumbar spine showed “good straight alignment, good interspace, good disc spaces, left hip shows no problems with the stem, good fit and fill.” (Tr. 507). X-rays of the pelvis showed “satisfactory left total hip arthroplasty;” X-rays of the lumbar spine showed “good straight alignment, ” “good disc spaces, ” and “good preservation view L5 disc space.” (Tr. 528-29).

         On September 27, 2012, Plaintiff returned to the Huntsville Clinic with a painful hip. (Tr. 504, 612). Dr. Horn went over the results of the MRI with Plaintiff, and explained that neither her back nor her hip was the source of her pain. (Id.). Dr. Horn's notes state that Plaintiff “is not happy at all but I do not have any other suggestions with medicine adjustments and I sure do not want to change things given to her by her physician. … I hope that she can work with her medical doctor about the level of medications she has asked me about …” (Tr. 44, 504, 612). Plaintiff was advised to see Dr. Horn on an “as needed” basis. (Id.). Plaintiff did not receive any other medical treatment during the relevant time. (Tr. 14, 26).

         As to the effects of her medical conditions during the relevant period of June 14, 2012 through December 31, 2012, Plaintiff testified that she would occasionally need help tying her shoes, sometimes need help stepping in and out of the bathtub, and had difficulty standing at the stove and cooking due to the pain in her leg, heel, and lower back. (Tr. 40). She would try to load and unload the dishwasher, and could usually do the top rack but not the bottom rack because “being bent over like that, it would cause muscle spasms. I had muscle spasms bad in my back.” (Tr. 41). She was told by her doctor after her hip replacement surgery to never sweep, mop, or vacuum.[4] (Tr. 39-40).

         During the day, Plaintiff would have to alternate walking and sitting, and several times a day would have to lie on her back on the couch or in the bed, depending on how much she had tried to do before. (Tr. 41). “Doing too much” included loading and/or unloading the entire dishwasher, standing and cooking supper, and/or loading the washer into the dryer and then folding it up. (Tr. 42). Plaintiff testified that she would go to church before her hip surgery, but two years after the hip surgery she was unable to sit through an entire service and would have to get up and leave. (Tr. 42-43). She testified that her pain prevented her from sitting through a two-hour movie or the evening news. (Tr. 40-43).

         To help alleviate these symptoms, Plaintiff was taking Lortab and muscle relaxers; however, the pain was not completely relieved. (Tr. 43). The medications made her drowsy and nauseous: “more times than not back then I would have to take my pain medicines and just go to bed and ...

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