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Epps v. Berryhill

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

August 15, 2018

BETTIE EPPS, Plaintiff,
NANCY A. BERRYHILL, Deputy commissioner for operations Performing the duties and functions Not reserved to the Commissioner of Social Security Defendant.



         Plaintiff Bettie Epps (“Plaintiff” or “Epps”) 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 Social Security Disability Benefits (“SSDI”). 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

         On April 24, 2014, Plaintiff filed an application for SSDI benefits, alleging a disability onset date of October 22, 2013. (Tr. 22). Plaintiff's initial application was denied by the Social Security Administration (“SSA”) on August 5, 2014. (Tr. 98). After the denial, Plaintiff requested a hearing before an Administrative Law Judge (the “ALJ”). (Tr. 22). That hearing was held before ALJ Bruce W. MacKenzie on August 15, 2016. (Tr. 38). In his decision dated September 27, 2016, the ALJ concluded Plaintiff was not under a disability as defined by the Act since October 22, 2013. (Tr. 22-31). The appeals council denied Plaintiff's request for review on June 20, 2017. (Tr. 1-6). That denial was the final decision of the Commissioner, and is therefore a proper subject for this court's appellate review under 42 U.S.C. § 405(g).

         II. Facts

         Plaintiff was born on December 7, 1956 and was 56 years old on the date of her alleged disability onset. (Tr. 196). Plaintiff is able to communicate in English, and her educational background includes a high school degree and one year of college. (Tr. 199, 201). In her application for disability benefits, Plaintiff alleges that degenerative disc disease, spinal arthritis, left hip problems, gastroesophageal reflux disease (GERD), and anxiety limit her ability to work. (Tr. 180). Before leaving the workforce, Plaintiff worked as an accounts receivable clerk. (Tr. 195).

         During a checkup with her primary care physician, Dr. Ricky Fennell, on January 14, 2013, Plaintiff complained about anxiety. (Tr. 265). She told Dr. Fennell that her symptoms began in November 2012. (Id.). She reported feeling “somewhat stressed, ” anxious, and irritable, but denied depression (Id.). Even with these symptoms, she slept “okay” at times. (Id.). She was previously prescribed Trazadone for these issues.[1] (Id.). She noted her anxiety comes at times when she does not feel she should not be anxious, such as when she is at church. (Id.). Given this information, Dr. Fennell diagnosed Plaintiff with Anxiety disorder. (Tr. 267). He additionally diagnosed her with fatigue and malaise, hyperlipidemia, Vitamin D deficiency, and Hyperglycaemia. (Id.).

         On April 29, 2013, Plaintiff returned to Dr. Fennell's office with complaints of lower back pain radiating down her left leg. (Tr. 300). She reported that her pain was present for two months before she came in for examination. (Id.). She denied any trauma provoking the discomfort, and added that over-the-counter remedies and Lortab had not alleviated her discomfort. (Id.). Upon examination, Dr. Fennell noted moderate pain and tenderness in Plaintiff's lumbosacral area, particularly on the left side. (Tr. 301, 302). He observed that Plaintiff had normal strength and gait. (Tr. 302). In addition to her previous conditions, Dr. Fennell diagnosed her with accelerated hypertension and lower-back pain. (Id.). He prescribed Vicoprofen and Soma for pain, spasms, and inflammation, and he instructed Plaintiff to avoid lifting and strenuous physical activity. (Tr. 303). At the end of the visit, Dr. Fennell ordered an MRI for Plaintiff's lower lumbar spine. (Tr. 289). The MRI was conducted on May 10, 2013 and revealed lower lumbar spondylosis at the L5-S1 level with nerve root compression. (Tr. 289-90).

         Dr. Fennell referred Plaintiff to Dr. Johnny Carter, who she initially saw on June 25, 2013. (Tr. 326). Dr. Carter examined Plaintiff's May 10, 2013 MRI and reviewed her subjective history, including the report of the sensation of “slipping or giving way” in her back. (Id.). After conducting his own examination, he discovered musculoskeletal issues in Plaintiff's lumbar spine and pelvis, but reported no gait or motor abnormalities. (Tr. 331). He diagnosed Plaintiff with low back pain, lumbar spondylolysis, degeneration of the intervertebral disc, lumbar facet syndrome, lumbar spinal stenosis, sciatica, and left-sided L5-S1 disc protrusion. (Tr. 332). He prescribed Plaintiff Acetaminophen Oxycodone, Gabapentin, and a Medrol Dosepak. (Tr. 333). He also referred her to physical therapy for stretches, and “conservative pain modalities.” (Id.). Dr. Fennell noted that Plaintiff was to follow-up in the next 30 days and “if no better, schedule lumbar-caudal epidural injection with Dr. Carter in the UAB pain clinic.” (Tr. 334).

         Plaintiff began physical therapy with Joseph S. Schock in June 2013. (Tr. 335). During her initial evaluation on June 28, 2013, Schock noted that Plaintiff had pain while walking and lifting. (Tr. 335). Plaintiff told Schock that her ability to do housework was moderately limited secondary to her pain. (Tr. 335). On July 25, 2013, Plaintiff reported lumbar pain ranging from a four out of ten to seven out of ten. (Tr. 338). She also exhibited 75 percent range of motion, albeit with pain. (Id.). Dr. Schock noted “the patient tolerated today's treatment well after adjustment to the left side. Pain relief with traction.” (Id.).

         In September 2013, Plaintiff returned to Dr. Carter for lumbar, pelvis, and left hip pain treatment. (Tr. 339). She again reported a sensation that felt like her back was “slipping” or “giving way.” (Tr. 339, 348). Dr. Carter observed lumbar spine and pelvis issues, including: “mildly tender” bilateral L5-S1 semispinalis muscle, “mildly positive” left SLR, and “mildly diminished” left ankle reflexes. (Tr. 345). Plaintiff's gait and coordination appeared normal. (Id.). Dr. Carter diagnosed her with lumbar radiculopathy, lumbar spondylolysis, lumbar facet syndrome, low back pain, lumbar spinal stenosis, sciatica, and lumbar disc herniation and recommended a lumbar-caudle epidural. (Tr. 346). On September 12, Dr. Carter administered a fluoroscopic guided lumbar epidural steroid injection with contrast enhancement and limited IV sedation. (Tr. 358). However, Plaintiff said that this injection only provided relief for about eight hours before her pain returned. (Tr. 368). Dr. Carter thought that Plaintiff's report of morning relief followed by a return of pain later that night with no inciting event was unusual. (Id.). In light of “her unusual sudden increase in pain, we [] check[ed] new lumbar spine MRI scan to compare with the previous to rule out new extension of the disc.” (Id.).

         When Plaintiff returned on March 31, 2014, she told Dr. Fennell that her low back pain made her unable to fulfill her duties at home and at work and unable to sit for an extended period of time. (Tr. 316). Dr. Fennell notes that Plaintiff had an epidural block, but that she reported it made her pain worse. (Id.). Dr. Fennell recommended that Plaintiff return to Dr. Carter for a second epidural block. (Tr. 317).

         On May 5, 2014, Dr. Fennell filled out a depressive disorder sheet for Plaintiff, indicating that “she certainly has a lot of depression symptoms.” (Tr. 322-325, 451). During a visit on the same day, Plaintiff reported “bad nerves, ” decreased appetite, poor sleep, and thoughts of suicide two-to-three times per day. (Tr. 451). In addition to diagnosing her with lumbar spondylosis, lumbar spinal stenosis, left hip pain, left leg sciatica, Dr. Fennell diagnosed Plaintiff with mental depression. (Id.). He prescribed her Cymbalta and increased her dosage of Xanax. (Id.). Dr. Carter noted “a lot of her issues are mainly depression-related and not anxiety. It appears that her chronic pain is what is driving a lot of her symptoms.” (Id.).

         When Plaintiff returned to Dr. Carter on May 9, 2014, she told him that she was having difficulty sleeping because of pain. (Tr. 370). Issues with Plaintiff's lumbar spine and pelvic region were again noted, yet she still continued to ambulate normally. (Tr. 376). He diagnosed her with thoracic or lumbosacral neuritis or radiculitis, displacement of lumbar intervertebral disc without myelopathy, sciatica, and lumbar degeneration. (Tr. 378). He also recommended that Plaintiff consult with a pain management specialist for conservative pain treatment options. (Tr. 379).

         During her next visit with Dr. Fennell on June 2, 2014, Plaintiff reported that she could not tolerate the Cymbalta due to the side effects of itchiness and swelling. (Tr. 453). However, Xanax helped her anxiety and Percocet dulled the discomfort of her back pain. (Id.). Dr. Fennell noted that “she is scheduled for chronic pain management evaluation soon.” (Id.).

         Plaintiff began seeing pain specialist Dr. Peter Nagi on June 10, 2014. (Tr. 427). Plaintiff told Dr. Nagi that her back pain stemmed from a fall in a parking lot nine years prior. (Id.). She reported a constant sharp burning pain rated as a seven out of ten at its best and a ten out of ten at its worst. (Tr. 428). Dr. Nagi noted Plaintiff's “painful episode” after her epidural injection, “but she does not completely recall this issue.” (Tr. 427). Plaintiff reported that she can sit for about an hour and a half, stand for 45 minutes, and walk for about an hour. (Tr. 428). Emotionally, she said she experienced anger, depression, suicidal thoughts, disinterest, frustration, hopelessness, and panic. (Tr. 429). However, he noted in his psychiatric evaluation that Plaintiff was cooperative with appropriate mood, and lacked suicidal ideation or plan. (Tr. 432, 433). After completing his examination, Dr. Nagi diagnosed Plaintiff with lumbago, lumbosacral spondylosis without myelopathy, lumbar spinal stenosis, lumbar intervertebral disc displacement without myelopathy, and myofascial pain. (Tr. 433). He wrote a prescription for Gabapentin and Zanaflex, and he scheduled her for pain injections and more physical therapy. (Id.). He noted that “she has failed PT at this time and it made her pain worse. We will try once she has had her injection and pain is better controlled.” (Id.). He opined she could benefit from a prescription for TENS unit.[2] (Id.).

         On September 15 and October 7, 2014, Plaintiff followed-up with Dr. Fennell for reevaluation visits. (Tr. 454-457). She indicated her back pain and depression still caused issues. (Tr. 454, 456). Dr. Fennell elected to add Viibryd to her regimen to help combat her depression. (Tr. 454). Between these appointments with Dr. Fennell, Plaintiff returned to Dr. Nagi on September 26 and reported mild relief for two to three weeks after an epidural injection, but also reported the new symptom of “feel[ing] like tailbone is being scraped.” (Tr. 439). By the time Plaintiff returned to Dr. Fennell on December 22, 2014, she had returned to work and was wearing a back brace. (Tr. 458). She still experienced lower lumbar pain at that time and was told that further epidural blocks would not benefit her and she may require surgery. (Id.). After this visit, Plaintiff did not return to another physician for her back issues until September 2015. (Tr. 460).

         Plaintiff was first diagnosed with COPD during a visit with Dr. Fennell on June 11, 2015. (Tr. 460). Before this visit, the only issues she had expressed with cough and congestion were tied to some acute illness. (Tr. 269, 459). On this day, she was originally scheduled for a follow-up appointment to check on her back and mental health issues. (Tr. 460). Dr. Fennell noted, “She says the Viibryd has worked very well for her depression symptoms. She seems to be getting along very well now, using a combination of Viibryd and Benzodiazepine/Xanax.” (Id.). No. mention was made during this visit about Plaintiff's back issues. (Id.). Upon returning for another reevaluation on September 29, she continued to complain about her ongoing back and depressive issues. (Tr. 461). Dr. Fennell referred Plaintiff to another pain specialist because he does “not participate in chronic pain.” (Tr. 462). Nevertheless, Dr. Fennell wrote “I have encouraged her to become more ...

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