Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Everett v. Berryhill

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

July 5, 2018

MARTHA EVERETT, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          John E. Ott, Chief United States Magistrate Judge.

         Plaintiff Martha Everett brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her supplemental security income (“SSI”) benefits. (Doc. 1).[1] The case has been assigned to the undersigned United States Magistrate Judge pursuant to this court's general order of reference. The parties have consented to the jurisdiction of this court for disposition of the matter. See 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(a). Upon review of the record and the relevant law, the undersigned finds that the Commissioner's decision is due to be affirmed.

         I. PROCEDURAL HISTORY

         Plaintiff filed her application for SSI benefits on November 18, 2013, alleging she became disabled beginning June 20, 2012. It was initially denied by an administrative law judge (“ALJ”) on January 21, 2016, following a hearing. (R. 20-32).[2] The Appeals Council (“AC”) denied Plaintiff's request for review. (R. 1).

         II. BACKGROUND FACTS

         Plaintiff was 41 years old at the time of the ALJ's decision. (R. 32, 148). She previously worked as a cook, a dishwasher, and a server. (R. 40, 166-67). She alleges disability due to migraines, arthritis, and attention deficit hyperactivity disorder (“ADHD”). (R. 170).

         Following Plaintiff's hearing, the ALJ found that she had the medically determinable severe impairments of migraines, polyarthritis, ADHD, generalized anxiety disorder, acute stress disorder, and major depressive disorder. (R. 22). He also found that Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of a listed impairment. (R. 23). He further found that Plaintiff had the residual functional capacity (“RFC”) to perform light work with limitations. (R. 24). He determined that Plaintiff could not perform her past relevant work. (R. 29). He further found that based on Plaintiff's age, education, work experience, and RFC, and the testimony of a vocational expert (“VE”), Plaintiff could work as a bakery worker, linen clerk, or cleaner. (R. 31). The ALJ concluded that Plaintiff was not disabled. (R. 32).

         III. STANDARD OF REVIEW

         The court's review of the Commissioner's decision is narrowly circumscribed. The function of the court is to determine whether the Commissioner's decision is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971); Mitchell v. Comm'r Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2015; Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court must “scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.

         The court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, it must reverse the ALJ's decision. See Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). The court must affirm the ALJ's decision if substantial evidence supports it, even if other evidence preponderates against the Commissioner's findings. See Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990)).

         IV. STATUTORY AND REGULATORY FRAMEWORK

         To qualify for benefits a claimant must show the inability to engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D).

         Determination of disability under the Social Security Act requires a five step analysis. 20 C.F.R. § 416.920(a)(4). Specifically, the Commissioner must determine in sequence:

whether the claimant: (1) is unable to engage in substantial gainful activity; (2) has a severe medically determinable physical or mental impairment; (3) has such an impairment that meets or equals a Listing and meets the duration requirements; (4) can perform his past relevant work, in light of his residual functional capacity; and (5) can make an adjustment to other work, in light of his residual functional capacity, age, education, and work experience.

Evans v. Comm'r of Soc. Sec., 551 Fed.Appx. 521, 524 (11th Cir. 2014).[3] The plaintiff bears the burden of proving that she was disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); see also 20 C.F.R. § 416.920(a). The applicable “regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work.” Id.

         V. DISCUSSION

         Plaintiff asserts that the ALJ erred in that (1) he failed to properly assess the medical opinion of treating physician Dr. Richard G. Diethelm; (2) he substituted his opinion for that of Dr. David Wilson and treating social worker Dave Harvey; (3) he failed to find that Plaintiff met Listing 12.06; (4) he failed to state adequate reasons for finding Plaintiff not credible; (5) his decision was not based on substantial evidence; and (6) the RFC finding of an ability to perform light work is not supported by substantial evidence. (Doc. 12 at 2). The Commissioner responds that substantial evidence supports the ALJ's determinations. Each issue will be addressed below after the court provides the relevant medical evidence.[4]

         A. Medical Evidence

         On August 21, 2012, Plaintiff saw Dr. Diethelm, complaining of migraines. Plaintiff reported that she developed a headache in April 2012. It developed into “an occipital shooting headache that lasts 4 hours and is associated with light and sound sensitivity, worse with movement with nausea but no emiesis.” (R. 274). She also reported that “in the last 30 days she had 15 days of headache[s] of which 4 have been so severe as to be disabling.” (Id.) Dr. Diethelm listed a “frequency-to-severity ratio equal [to] 15:4.”[5] (Id.) Plaintiff was diagnosed with a migraine and placed on a medication treatment plan. (R. 275). She was seen for a return visit on October 22, 2012. She reported a frequency-to-severity ratio of 8:0. (R. 273). She was assessed as improving, and was directed to return in three months.

         Plaintiff returned to Dr. Diethelm on April 22, 2013, with complaints of toe pain and “global headache.” She reported a frequency-to-severity ratio of 15:15. (R. 272). Dr. Diethelm adjusted her medication and directed her to return in three months. (R. 273).

         On July 18, 2013, Plaintiff had a return visit. Her frequency-to-severity ratio was 9:9. Dr. Diethelm again adjusted her medication and directed that she return in six months.[6] (R. 271).

         On September 12, 2013, Plaintiff had an initial psychiatric evaluation with Dave Harvey, a licensed clinical social worker (“LCSW”). She complained of financial stress and constant anxiety. (R. 329). She was diagnosed with generalized chronic anxiety and acute stress disorder. (R. 331). She saw him again on October 22, 2013. Plaintiff complained at that time that she was “very tired and feels strung out.” (R. 337). She felt that her therapy sessions with Harvey were helpful, and she wanted to come monthly. (Id.)

         On November 19, 2013, Plaintiff saw Harvey for a follow-up visit related to her mental health treatment. (R. 338-39). Plaintiff reported “doing better” and feeling “very good” about her divorce becoming final the previous week. (R. 339). She stated she was dating and went to Mississippi the previous week with her son, boyfriend, and boyfriend's son. (Id.) She was planning to go to Georgia with her boyfriend that day. (Id.). Harvey noted Plaintiff had ADHD-inattentive type that could be treated with stimulant medication, and Plaintiff said she would follow through with her neurologist that prescribed all her medications. (Id.) Plaintiff mentioned dealing with some issues, and she was “[u]pbeat but tense, ” but Harvey indicated Plaintiff's mental status was “relatively normal.” (Id.) Harvey diagnosed Plaintiff with chronic generalized anxiety; chronic acute stress disorder; and chronic ADHD, predominately inattentive. (R. 338). When outlining Plaintiff's treatment plan, Harvey noted Plaintiff had excessive worry on a consistent basis, “motor restlessness, ” “distractibility of attention, ” memory deficits, and inability to follow complex directions. (R. 339).

         Six days later, on November 25, 2013, Plaintiff saw Raymond Doty, CRNP, for a left hand issue. (R. 340-43). Plaintiff reported that she tried to hit her dog but missed and hit a post. (R. 340). She denied psychiatric issues such as anxiety and depression. (R. 341). Doty found Plaintiff was fully oriented, had normal judgment, and demonstrated appropriate mood and affect. (R. 342).

         Plaintiff saw Dr. Diethelm on January 17, 2014, for complaints related to migraines, including photosensitivity, sound sensitivity, smell sensitivity, nausea, and vomiting. (R. 434). She reported that in the last 30 days she had 24 headaches, four of which were severe enough to be debilitating-a severity ratio of 24:4. (R. 434). Dr. Diethelm found Plaintiff was alert, fully oriented, and had normal mentation. (Id.) She had fluent speech, her pupils were equally reactive to light, and her extra ocular muscles were intact without nystagmus. (Id.) Her face was symmetric to strength and sensation. (Id.) She had full extremities strength, intact sensation, and a steady, unstressed gait. (Id.) She had pain on palpitation to the bilateral occipital nerves and bilateral trapezius muscles. (Id.). Dr. Diethelm administered suboccipital nerve blocks and administered trapezius injections. (Id.) He further noted that if Plaintiff's medications were ineffective, he would consider Botox injections. (Id.) He diagnosed her with intractable migraines. (Id.)

         On February 5, 2014, Plaintiff saw Harvey related to ADHD, anxiety, and chronic pain. (R. 353). Plaintiff mentioned she had severe migraines and was receiving treatment from Dr. Diethelm, including multiple shots, with little improvement. (R. 354). Harvey noted that she tolerates the pain, “but at times these headaches are so severe she cannot get out of bed.” (Id.) Plaintiff's diagnoses again were chronic generalized anxiety; chronic acute stress disorder; and chronic ADHD, predominately inattentive. (Id.)

         Harvey completed a “MENTAL HEALTH SOURCE STATEMENT, ” provided by Plaintiff on February 10, 2014. (R. 355-56). Harvey indicated Plaintiff could understand, remember, and carry out very short and simple instructions. (R. 355). However, she could not maintain attention, concentration, or pace for at least two hours; but she could perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; accept instructions and respond appropriately to criticism from supervisors; or maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. (Id.) In a 30 day period, Harvey stated, she would be expected to “frequently” miss work due to psychological symptoms. (Id.) Harvey indicated he “would say yes” to the inquiry whether her limitations existed back to January 1, 2012. (Id.) When asked if Plaintiff had medication side effects, Harvey stated, “none - In Constant Pain.” (Id.)

         The same day, Dr. Diethelm wrote a “To Whom It May Concern” letter stating Plaintiff suffered from chronic migraines that were a “debilitating illness.” (R. 356). Dr. Diethelm stated Plaintiff had “exquisite light and sound sensitivity, nausea, and vomiting which prevented her from doing activities requiring ... concentration or physical activity.” (Id.) He further indicated that her conditions existed back to January 1, 2012, and would “likely continue another 12 months.” (Id.)

         In March 2014, Plaintiff saw Dr. Diethelm related to a complaint of chronic migraines. (R. 433). Plaintiff said she could not tolerate one of her migraine medications due to side effects. (Id.) Dr. Diethelm found she was awake, was alert without any focal motor or sensory deficits, had equal pupils, and had a steady gait. (Id.) He diagnosed Plaintiff with intractable migraines and noted three of her medications had been ineffective, so he submitted authorization paperwork to administer Botox injections. (Id.)

         In April 2014, Plaintiff saw Dr. Diethelm to receive a first round of Botox injections related to her migraines. (R. 432). Dr. Diethelm found she was awake, was alert without any focal motor or sensory deficits, had equal pupils, and had a steady gait. (Id.) Plaintiff received her Botox injection and was told to return in six weeks. (Id.)

         On May 21, 2014, Plaintiff saw Nurse Doty complaining of a rash. (R. 357). She denied anxiety and depression, as well as gait issues. (R. 358). She had a normal musculoskeletal examination. (R. 359). She had intact memory; was fully oriented; and had normal insight and judgment. (Id.) She had appropriate mood and affect. (Id.)

         The same day, Plaintiff saw Dr. Diethelm for follow-up after receiving Botox injections. (R. 430). She reported having 25 migraines per month, with 25 of them being severe - a 25:25 ratio. (Id.) She reported having frontal pain that radiated to the vertex bilaterally, with light and sound sensitivity, nausea, and vomiting. (Id.) She said she was noncompliant with most medications and did not treat her headaches. (Id.) Dr. Diethelm found Plaintiff was alert, was fully oriented, and had normal mentation. (Id.) She had fluent speech, her pupils equally reactive to light, and her extra-ocular muscles were intact without nystagmus (Id.) Her face was symmetric to strength and sensation. (Id.) She had full extremities strength, intact sensation, and a steady, unstressed gait. (Id.) Dr. Diethelm noted Plaintiff had only received her first injection and was “likely to continue to improve with subsequent injections.” (Id.) She was treated for a current migraine, and it improved before she left the clinic. (Id.) Dr. Diethelm adjusted her medications. (Id.)

         In July 2014, Plaintiff filled out a questionnaire related to her Botox injections, in which she indicated she was still having frequent headaches, that she was not receiving any relief from the Botox injections, and she was having difficulties when experiencing migraines. (R. 441-42). The same day, she saw Dr. Diethelm for her second round of Botox injections related to migraines. (R. 429). Dr. Diethelm found she was awake, was alert without any focal motor or sensory deficits, had equal pupils, and had a steady gait. (Id.) Plaintiff received an injection and was told to return in six weeks. (Id.)

         In August 2014, Plaintiff returned to Dr. Diethelm for a follow-up after her second round of Botox injections related to her migraines. (R. 428). Plaintiff reported she still had about 30 migraines a month, with 10 being severe, but she did not treat them and “deals with it.” (Id.) She reported being non-compliant with medication due to her finances. (Id.) Dr. Diethelm found Plaintiff was alert, was fully oriented, and had normal mentation. (Id.) She had fluent speech, her pupils equally reactive to light, and her extra-ocular muscles were intact without nystagmus. (Id.) Her face was symmetric to strength and sensation. (Id.) She had full extremities strength, intact sensation, and a steady, unstressed gait. (Id.) Dr. Diethelm noted Plaintiff was “likely to continue to improve with subsequent injections.” (Id.) He gave her samples of medication since she could not afford them, and she “refuses to fill out patient assistance forms.” (Id.)

         In September 2014, Plaintiff saw Nurse Doty related to complaints of fatigue, constipation, and nausea. (R. 362). Nurse Doty found she had normal extremities; normal memory; and intact cranial nerves. (Id.) She was fully oriented; had appropriate mood and affect; normal insight; and normal judgment (R. 367).

         In October 2014, Plaintiff saw Dr. Diethelm for her third round of Botox injections. (R. 427). Dr. Diethelm found Plaintiff was awake, was alert without any focal motor or sensory deficits, and had a steady gait. (Id.) Dr. Diethelm administered injections and stated Plaintiff should return in six weeks to assess her improvement. (Id.)

         Later in October 2014, Plaintiff saw Nurse Doty for complaints of chronic fatigue. (R. 370). Plaintiff complained the problem is worsening and is aggravated by depression. (Id.) Nurse Doty found Plaintiff had normal extremities; normal memory; and intact cranial nerves. (R. 375). She was fully oriented; had appropriate mood and affect; normal insight; and normal judgment. (Id.)

         In November 2014, Plaintiff saw Dr. Diethelm for a follow-up after her third round of Botox injections related to migraines. (R. 426). She reported her previous injection was “significantly helpful in reducing her headache severity.” (Id.) She stated that her headache ratio was 20:4. (Id.) She further reported that she “typically” did not treat her headaches with medications and, instead, would lie down for rest that provided relief. (Id.) She denied having a headache at that time. (R. 426). Dr. Diethelm noted Plaintiff was “non-compliant with medications secondary to pay, but [was] unwilling to fill out patient assistance.” (Id.) Dr. Diethelm found she was alert and fully oriented, she had normal mentation, fluent speech, pupils that were equally reactive to light, and extra-ocular muscles that were intact without nystagmus. (Id.) Her face was symmetric to strength and sensation. (Id.) She had full extremities strength, intact sensation, and a steady, unstressed gait. (Id.) Dr. Diethelm determined to continued Plaintiff's Botox because Plaintiff “reports that it has significantly reduced her headache severity.” (Id.)

         In January 2015, Plaintiff saw Nurse Doty for complaints of swelling and sinus symptoms and to follow-up on lab tests. (R. 378). Nurse Doty found Plaintiff had normal extremities; normal memory; and intact cranial nerves. (Id.) She was fully oriented; had appropriate mood and affect; normal insight; and normal judgment. (R. 383).

         Later in January 2015, Plaintiff saw Dr. Diethelm to receive a fourth round of Botox injections. (R. 425). Dr. Diethelm found Plaintiff was awake, was alert without any focal motor or sensory deficits, and had a steady gait. (Id.) Dr. Diethelm administered the injections and stated Plaintiff should return in six weeks to assess her improvement. (R. 425).

         In February 2015, Plaintiff saw Nurse Doty for complaints of a rash and anxiety. (R. 386). Nurse Doty found Plaintiff had normal extremities; normal memory; and intact cranial nerves. (R. 390). Plaintiff was fully oriented; had appropriate mood and affect; normal insight; and normal judgment. (Id.)

         Plaintiff missed a March 2015 appointment with Harvey. (R. 479). In April 2015, Plaintiff saw Harvey and was “uptight” about her disability appeal. (R. 481). However, Harvey's observed that Plaintiff was “generally normal.” (R. 482). Her appearance, build/stature, and posture were within normal limits. (Id.) She had average eye contact, had activity within normal limits, and was cooperative. (Id.) She had perception within normal limits, no hallucinations or delusions, and average intelligence. (Id.) She had insight within normal limits. (R. 482). Beside “judgement (sic), ” Harvey wrote, “Impaired ability to make reasonable decisions: Within normal limits.” (Id.) Harvey further noted Plaintiff had a “better mood” that day. (Id.)

         On May 1, 2015, Plaintiff saw Dr. Diethelm to receive a fifth round of Botox injections. (R. 476). Three days later, on May 4, 2015, Plaintiff complained during an eye examination that she was experiencing migraine headaches “almost daily.” (R. 445). Later on May 26, 2015, Plaintiff saw Harvey for counseling. (R. 484-85). Examination findings were unchanged from April 2015. (Id.) Harvey noted Plaintiff was tense and uptight. (Id.) He also commented that her “severe financial instability prevents her from getting the medications/care she needs.” (R. 486).

         In July 2015, Plaintiff saw Dr. Diethelm for a follow-up after her fifth round of Botox injections related to migraines. (R. 476-77). She reported her previous injection was “mildly helpful.” (R. 477). She also reported taking Aleve and Maxalt, which were “helpful.” (Id.) Dr. Diethelm found Plaintiff was awake, was alert without any focal motor or sensory deficits, and had a steady gait. (R. 476). Dr. Diethelm noted he would adjust Plaintiff's medication, and if the medication was not effective she should return in six weeks for consideration of Botox. (R. 477).

         Later in July 2015, Plaintiff saw Chad Knight, LCSW, for counseling. (R. 487). Knight noted Plaintiff reported that she stopped taking her anxiety medication for “some reason she could not completely explain.” (R. 488). Plaintiff mentioned that she was a full-time caregiver for her mother who had a stroke recently, and that she recently had spent four days at the beach with a friend. (Id.) Knight noted that Plaintiff was anxious, had a hyper mood, and her affect was somewhat detached/animate. (R. 489). She was cooperative. (Id.)

         Plaintiff presented on July 28, 2015, at the emergency room after falling and breaking her right ankle. (R. 536). She denied psychiatric symptoms. (Id.) She was alert, fully oriented, and had no focal neurological deficits. (R. 537). She was cooperative, had appropriate mood and affect, and normal judgment. (Id.)

         In August 2015, Plaintiff presented to Christopher Kelley, M.D., for follow-up related to her right ankle surgery. (R. 465-66). Dr. Kelley found Plaintiff was in no acute distress and she was alert, cooperative, and oriented to person, place, and time. (R. 466). She also had normal coordination, gait, and posture. (Id.)

         Later in August 2015, Plaintiff saw Knight for counseling. (R. 490). She mentioned that she fell and broke her ankle after their last session, and she was stuck in her house without anything to do. (Id.) She indicated she had not done her relaxation and stress relief techniques. (R. 490-91). Knight noted Plaintiff was in a “very good mood” because she said she was finally able to get out of the house. (R. 490). Knight noted Plaintiff was alert and fully oriented with no disturbances. (R. 492). Her mood was good, her affect was full, and she was cooperative. (Id.)

         At the end of August 2015, Plaintiff saw Dr. Diethelm and received a sixth round of Botox injections. (R. 478). Dr. Diethelm found Plaintiff was awake and alert without any focal motor or sensory deficits, and she had a steady gait. (Id.) She was to return in six weeks for Dr. Diethelm to assess her improvement. (Id.)

         Plaintiff also saw Nurse Doty in August 2015, and he found she had normal extremities; normal memory; and intact cranial nerves. (R. 497). She was fully oriented; had appropriate mood and affect; normal insight; and normal judgment. (Id.) Doty diagnosed Plaintiff with chronic anxiety and adjusted her medication. (Id.)

         In September 2015, Plaintiff saw Knight, who noted Plaintiff was not complaining of stress and reported her medication increase was helpful. (R. 499). He indicated Plaintiff had a good mood, was less anxious, and had an affect congruent with her mood. (Id.) She had less pressure and normal speech. (Id.) She was “much calmer.” (Id.) Knight noted Plaintiff was “responding well to therapy and medication.” (R. 500). She was alert, was fully oriented without disturbances, and her condition was “improved.” (R. 501).

         In October 2015, Plaintiff saw Dr. Diethelm for a follow-up related to her migraines. (R. 577). Dr. Diethelm found Plaintiff was awake and alert without any focal motor or sensory deficits, and had a steady gait. (Id.) He noted a frequency-to-severity ratio of 18:12. (Id.) She received ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.