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Malloy v. Berryhill

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

July 18, 2018

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



         Plaintiff Hazel Annette Malloy[1] (“Plaintiff” or “Malloy”) 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 January 13, 2014, in which she alleged a disability onset date of April 24, 2013. (Tr. 18, 122-26). Plaintiff later amended her onset date to January 1, 2014. (Tr. 18, 36). The initial application was denied by the Social Security Administration (“SSA”) on April 8, 2014. (Tr. 18, 71-75). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on April 23, 2014. (Tr. 18, 78-79). The hearing was held on August 17, 2015 before Administrative Law Judge George W. Merchant (“the ALJ”). (Tr. 18, 87-91). In his decision dated September 25, 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. (Tr. 26). The Appeals Council denied Plaintiff's request for review on February 21, 2017. (Tr. 1-3). This denial was the final decision of the Commissioner and therefore is now a proper subject for this court's appellate review.

         II. Facts

         Plaintiff was 49 years old on her amended alleged onset date. (Tr. 36). She alleges that she has been disabled since that time due to congestive heart failure, tendinitis, and arthritis. (Tr. 35, 37, 46). She has an eighth-grade education and last worked in April 2013 as a head housekeeper. (Tr. 39, 41). Plaintiff drew unemployment benefits until January 2014. (Tr. 36).

         By way of background, in April 2009 Plaintiff presented to the Jasper Podiatry Center complaining of pain in her feet. (Tr. 210). Dr. Odle noted that Plaintiff's “nails are long, thick, and discolored, ” and were “painful during ambulation.” (Id.). Dr. Odle ordered nails one through five to be debrided and recommended follow-up in 10 weeks. (Id.). Plaintiff did not return to see Dr. Odle until January 2011. (Tr. 209). Dr. Odle again found Plaintiff's “[n]ails to be long, thick, and discolored with subungual debris and clinical evidence of onychomycosis;”[2] and that Plaintiff's nails are “painful with ambulation and shoe pressure.” (Id.). Dr. Odle ordered nails six through ten to be debrided. (Id.). Plaintiff returned to Dr. Odle in April 2012 complaining of frequent leg cramps along with burning and numbness in her feet. (Tr. 208.). Dr. Odle again ordered nails six through ten to be debrided. (Id.). In April 2013 Plaintiff returned to Dr. Odle. (Tr. 204-205). Dr. Odle examined the Plaintiff's new custom-made orthotics prescribed by Dr. Shah of the Lorna Road clinic in Hoover.[3] (Id.). Dr. Odle noted that Plaintiff had been wearing the orthotics since “last Friday.” (Id.). Dr. Odle noted that Plaintiff related chronic pain over lateral aspect of the left foot, [4] and that Plaintiff's foot is acutely painful with palpation. (Id.). Dr. Odle ordered nails six through ten to be debrided once again. (Id.).

         In July 2012, Plaintiff presented to Dr. Bradley at Walker Medical Diagnostics for a foot pain study. (Tr. 260). Dr. Bradley viewed Plaintiff's X-ray and noted a relatively flat longitudinal arch, small plantar calcaneal spur, an atypically thin navicular bone (probably developmental), an atypically thin fourth metatarsal (probably developmental), and a mild hallux valgus deformity and splaying of the second and third toes. (Id.). There was “no convincing evidence of acute pathology.” (Id.).

         In April 2013 Plaintiff presented to Dr. Shah for evaluation of her foot problems, including a “long history of flat feet” and “bilateral congenital brachymetatarsalgia.” (Tr. 240-42, 247-50). Dr. Shah noted that Plaintiff was “fine” until 6 months ago “but since then has experienced burning pain over the lateral column.” (Tr. 241). Dr. Shah noted that Plaintiff was wearing custom-made inserts by David Ford, and, while they were helping, Plaintiff continued to experience pain. (Id.).

         In late October 2013, Plaintiff was diagnosed with “tendinopathy[5] at the insertion of the peroneus of the base of the fifth metatarsal on the left foot” by Dr. Cuomo at Southern Orthopedics. (Tr. 289). After performing a physical evaluation of Plaintiff, Dr. Cuomo found that Plaintiff was “alert, oriented, and not in any acute distress” with a significant flat foot and a congenitally short fourth toe/metatarsal bilaterally. (Id.). Dr. Cuomo ordered, performed, and read radiographs of the left foot, which did not show any obvious abnormalities other than the short fourth metatarsal and a mild heel spur. (Id.). A radiograph of the right foot showed only a small heel spur at the base of the heel. (Id.). Dr. Cuomo wrote Plaintiff a script for some KG Cream and also prescribed physical therapy, stretching, and stepping on a freeze bottle. (Id.). She was advised to return to Southern Orthopedics in about a month for a reassessment of her progress. (Id.).

         In November 2013, Plaintiff underwent a bone density exam at BHC-Walker Imaging, which returned normal findings other than the left femoral neck which indicated osteopenia. (Tr. 223).

         In March 2014 Plaintiff underwent a disability determination by Dr. Bernard Simieritsch of the Winston County Medical Clinic. (Tr. 283-86). Plaintiff's complaints at that time were pain in both feet upon walking a half-mile, a spur on her head causing numbness in the neck, shoulders, and head, and shortness of breath due to purported congestive heart failure. (Tr. 283). On physical examination Dr. Simieritsch noted Plaintiff's (1) normal ability to heel and toe walk and squat and rise, (2) normal bilateral dexterity of fingers and thumbs, and (3) normal ability to button, tie shoelaces, pick up small objects, hold a glass, and turn a doorknob. (Tr. 285). Upon examination of the left foot x-ray, Dr. Simieritsch found a genetically shorter fourth metatarsal by about two centimeters, but the foot appeared to be otherwise normal.[6] (Tr. 282). Dr. Simieritsch noted that Plaintiff is obese and needs to lose eighty pounds, has a slightly reduced range of motion in her right shoulder, and has peripheral neuropathy of her feet. (Tr. 286).

         In April 2015 Plaintiff presented to Dr. Mendelsohn of Cardiology PC for a cardiac evaluation. (Tr. 291-311). Dr. Mendelsohn examined duplex sonography of Plaintiff's right and left lower extremities and found no evidence of deep venous thrombosis and noted that all of Plaintiff's venous structures showed normal augmentation and compressibility. (Tr. 311). Dr. Mendelsohn noted Plaintiff had abnormal EKG or ECG.[7] (Tr. 305). She was directed to begin compression hose therapy and follow up in three months to reassess the condition of her legs and the possible need for endovenous ablation. (Tr. 294).

         Since November 2011 Plaintiff has seen Dr. Russell as her primary care physician. (Tr. 215-74, 312-24; Pl. Br., Doc. #11 at 6). As Plaintiff's primary care physician, Dr. Russell referred Plaintiff to Dr. Bradley, Dr. Shah, Cahaba Imaging, and BHC-Walker Imaging and kept records from Plaintiff's visit to these doctors in his patient file for Plaintiff. (Tr. 215-74, 312-24). On August 17, 2015, the same date as Plaintiff's hearing before the ALJ, Dr. Russell issued a statement advising Plaintiff to elevate her feet three hours per day due to swelling and foot pain. (Tr. 324).

         As to the effects of her medical conditions during the relevant period of January 2014 to the present, Plaintiff testified that because of her congestive heart failure she gets very short of breath and tires easily. (Tr. 35). Plaintiff testified that her feet are “real painful” and that they “burn and tingle … and swell.” (Tr. 43). Plaintiff testified that because of arthritis in her shoulder sometimes it “gives away” and what she is holding “just falls.” (Tr. 47). ...

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