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Holcombe v. Berryhill

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

September 11, 2017

DOROTHY M. HOLCOMBE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability and disability insurance benefits. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 18 & 20 (“In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the administrative record, Plaintiff's brief, and the Commissioner's brief, [1] it is determined that the Commissioner's decision denying benefits should be affirmed.[2]

         I. Procedural Background

         Plaintiff initially filed an application for a period of disability and disability insurance benefits on April 18, 2011, alleging disability beginning on January 1, 2007. (See Tr. 144-47.) Her claim was initially denied on June 20, 2011 (see Tr. 57-63) and, following Plaintiff's written request, an Administrative Law Judge (“ALJ”) (see Tr. 66-67), conducted a hearing on June 24, 2013. (Tr. 30-43). This hearing took place after a consultative examination by Dr. Huey Kidd. (Compare Tr. 44-47 (discussion at administrative hearing on September 5, 2012 of the need for a consultative examination) with Tr. 250-57 (consultative examination by Dr. Huey Kidd)). On July 11, 2013, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to disability insurance benefits (Tr. 20-26); the Appeals Council denied Holcombe's request for review on November 28, 2014. (Tr. 2-4).

         Following an appeal to this Court, see Holcombe v. Colvin, Civil Action No. 15-0028-KD-M, Doc. 1, the government filed a sentence four motion to remand, see Id. at Doc. 14; the government's motion was granted and this action was remanded to the Commissioner of Social Security for further administrative proceedings, see Id. at Docs. 15-16. Pursuant to the Court's order and judgment, the Appeals Council entered a remand order on September 8, 2015 (see Tr. 354-58), suggesting that the ALJ obtain the opinion of a medical expert, “if necessary, ” in order to “clarify the nature and severity of the claimant's impairments through December 31, 2011, the claimant's date last insured[.]” (Tr. 357.) Upon remand, the ALJ conducted an initial hearing on January 7, 2016 (Tr. 296-305) and a supplemental hearing on June 28, 2016 (Tr. 289-95).[3] On July 19, 2016, the ALJ issued a decision finding that, through the date last insured, Holcombe retained the residual functional capacity to perform a limited range of medium work and, therefore, was capable of performing her past relevant work as an inventory clerk, home health attendant, and sewing machine operator or, alternatively, was capable of performing other jobs existing in substantial numbers in the national economy. (See generally Tr. 272-83). Because the ALJ's decision of July 19, 2016 followed a court-ordered remand, the ALJ's decision became final on the sixty-first day following the ALJ's unfavorable decision, absent review by the Appeals Council. (See Tr. 270 (“If you do not file written exceptions and the Appeals Council does not review [the ALJ's] decision on its own, [the ALJ's July 19, 2016] decision will become final on the 61st day following the date of this notice. After [the ALJ's] decision becomes final, you will have 60 days to file a new civil action in Federal district court.”)). Because the Appeals Council did not review the ALJ's decision (see generally Doc. 13, Administrative Transcript), the hearing decision because the final decision of the Commissioner of Social Security.

         Plaintiff alleges disability due mild degenerative disc disease, mild thoracic arthritis, chondrolysis of the right hip, and lumbar spondylosis at ¶ 4-5. The ALJ's decision denying benefits reads, in relevant part, as follows:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2011.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of January 1, 2007 through her date last insured of December 31, 2011 (20 CFR 404.1571 et seq.)
The claimant worked after the alleged disability onset date but this work activity did not rise to the level of substantial gainful activity. The claimant performed self-employment in 2013 and 2014, after the date last insured. The claimant testified that she drove her aunt, who lived next door, back and forth to the doctor. She testified that she sometimes took food to [her] aunt. The claimant testified that this involved driving two to three times per month and intermittent food preparation. The claimant denied ever working full-time for her aunt. Her earnings indicated on the tax return were not the result of substantial gainful activity. The claimant did not perform work activity for pay or profit. The earnings are not indicative of substantial gainful activity.
3. Through the date last insured, the claimant had the following severe impairments: mild degenerative disc disease, mild thoracic arthritis, chondrolysis of the right hip, and lumbar spondylosis at ¶ 4-5 (20 CFR 404.1520(c)).
. . .
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
. . .
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the claimant can occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; and occasionally balance, stoop, kneel, crouch or crawl.
In making this finding, the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 96-4p. The undersigned has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant's symptoms, the undersigned must follow a two-step process in which it must first be determined whether there is an underlying medically determinable physical or mental impairment(s)-i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, the undersigned must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.
The claimant alleges that she cannot work due to impairments related to “thyroid problems, sinus, hay fever (sic), and back.” The claimant alleges that she can “hardly move my back” in the mornings. She stated that she is “dizzy a lot.” She stated that she does prepare simple meals and wash clothes. The claimant reported that she has difficulty getting up and down into the tub; however, she stated that she can take a shower and perform personal care with “no problem.” The claimant stated that she can drive and go out alone. She reported that she can shop once per week for several hours. The claimant reported that she can read the [B]ible and sew[.] She stated that she attends church two Sundays during the month. She stated that she can pay attention for as long as needed, can follow written instructions well, can follow spoken instructions adequately, and can deal with authority figures adequately. The claimant did state that she does not handle stress or changes in routine well. She stated that she can lift only about ten pounds. Although she stated that she cannot squat, she stated that she can bend halfway down; therefore, her ability to stoop and complaints regarding squatting are somewhat inconsistent with the Dictionary of Occupational Titles descriptions of these activities. The claimant stated that she cannot walk more than five to ten minutes. She stated that she can reach for a few minutes. She reported other difficulty at nighttime, but there was no evidence of daytime manifestations of any sleep/nighttime problems. However, she stated that she also has problems because her “legs swell every day and [there is] pain constantly[“].
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
In terms of the claimant's alleged back, hip, knee, and other physical impairment[s], the claimant's alleged limitations are not fully consistent with the evidence. The claimant did have a hip replacement procedure this year, in 2016. However, the level of treatment significantly changed recently. She has obtained treatment for multiple acute complaints over time, prior to the date last insured. However, the claimant's [hip] replacement brief treatment, surgery, and now recovery [are] documented primarily only in 2015 and 2016 although the surgical consultation has been in 2016. The claimant's treatment notes at Family Medical of Jackson indicate at several times during 2015 that the claimant [stated] she has back and hip pain. She was prescribed medications. However, there were extended periods without change in her medications. Her treatment was infrequent and conservative until only recently.
The claimant was sent to an examination in February 2016; however, again, that examination was only shortly before her surgery. Moreover, aside from the hip impairment, the claimant did complain of back pain; however, the claimant denied ever having obtained medications for that pain. She reported that she had used only anti-inflammatories for her hip. The claimant did have evidence of cervical[, ] lumbar and thoracic degenerative disc disease; however, each of those w[as] considered mild by the examining physician. The right hip did show chondrolysis but the left hip was normal even now. The claimant's examination showed that she had an antalgic gait on the right side. She did have pain in the groin area with limited range of motion. However, there was no atrophy or weakness. She had normal reflexes and sensation, even in 2016. She had a normal examination with regard to the upper extremities. Likewise, the claimant “on questioning her specifically about her cervical and thoracic spine, [] said she has no issues.” The claimant did have an MRI of the hip that showed “worrisome” findings that indicated concern for metastatic disease; however, there was subsequent hip replacement and other treatment for the hip since that time. Ultimately, there was no evidence of a PET scan or other testing. Dr. Dempsey's examination was after this MRI was performed. However, the recent nature of this concern and the absence of any conclusive medical evidence even now clarifies that this finding was not present at the date last insured. The claimant also had an x-ray of her lumbar spine near that time. She has a February 2015 x-ray that did show grade I spondylolisthesis at ¶ 4-5 “without evidence of spondylosis;” however, the later x-rays with Dr. Dempsey did include findings of a similar nature in the lumbar spine. The evidence clarifies that, even now, the issue is the lower back and hip. The limited severity for the mid and upper back is clear by the substantially normal findings.
However, particular care was provided to the functional limitations due to the hip and lower back impairment that were present at the date last insured, if any. The claimant had treatment even in 2015 with Mobic, Naprosyn, Medrol dose pack, and Celebrex at different times. Therefore, the claimant did have changes in medication; however, those changes were long after the date last insured. The examination findings in December 2014 actually described the musculoskeletal findings as “normal.” Her mood was euthymic, and there was no indication of an abnormal mood to indicate evidence of pain. Likewise, the chief complaint was “aching all over” that was both intermittent and only moderate in severity.
The claimant also had an MRI at the Jackson Medical Center that showed only “mild degenerative changes” in the hips and sacroiliac joints. X-rays of the hip and lower back in 2013 and 2015 all indicated only mild findings. That, yet again, provides substantial support for the residual functional capacity assessment through the time of the date last insured. Even these mild findings occurred well after the date last insured.
The claimant was examined by Huey Kidd, D.O. in January 2013. That examination showed that she ambulated “without a limp.” She was able to stand and squat without difficulty. She was able to bend to touch her toes, heel walk, toe walk, and exhibit full range of motion. The claimant had x-rays of the thoracic and lumbar spine at that time that were normal. The claimant had been taking over-the-counter Aleve and Ibuprofen. She did have moderate osteoarthritis of the knee but the tibia and fibula appeared normal. The claimant did report that her knees hurt, but she stated only that her “back, heels, arms, legs, hips, wrists, and knees” hurt. She did not provide any specific direction that her knee hurt in a manner corresponding to the x-ray. Nonetheless, the limitation to occasional kneeling, crouching, and crawling would address her knee pain. Dr. Kidd noted those limitations on his ...

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