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Burke v. Berryhill

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

February 12, 2019

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



         Plaintiff Tacilyn Burke 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 (“Commissioner”) denying her claims for a period of disability and disability insurance benefits (“DIB”). See 42 U.S.C. § 405(g). Based on the court's review of the record and the documents submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

         I. Proceedings Below

         On June 9, 2014, Plaintiff protectively filed an application for disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act alleging disability as of June 8, 2014. (R. 49, 144, 182-95). The Social Security Administration (“SSA”) initially denied Plaintiff's application on September 8, 2014. (R. 49, 132-42, 144). On September 19, 2014, Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”). (R. 49, 98-126). That request was granted (R. 40, 49), and Plaintiff received a hearing before ALJ George Merchant on October 24, 2016. (R. 40, 48-49). On December 6, 2016, the ALJ issued a decision which was unfavorable to Plaintiff. (R. 46-48). After the Appeals Council (“AC”) denied Plaintiff's request for review of the ALJ's decision (R. 1-7), the ALJ's decision became the final decision of the Commissioner, and therefore a proper subject for this court's review.

         II. Statement of Facts

         Plaintiff's application alleges disability due to the following: various foot deformities, microcyst in bones of feet, spinal bone spurs, fibromyalgia, chronic pain syndrome, scoliosis, pineal gland cyst in brain, anxiety disorder, depression, severe migraines, and dyslexia. (R. 132). She completed four years of college and obtained a Bachelor of Science degree in communications. (R. 217, 320). She has past work experience as a caregiver at a group home, watching patients and handling medical billing. (R. 217-18). She was 29 years old at the time of the ALJ decision. (R. 59, 192).

         In early March 2011, Plaintiff underwent a routine brain MRI at Walker Medical Diagnostics due to complaints of headaches. (R. 261). The MRI revealed probable minimal paranasal sinus disease and a pineal gland cyst which are “typically clinically silent but can become symptomatic if greater than 1 cm in size, as in this case.” (Id.). On March 21, 2011, Plaintiff consulted with Dr. Carter S. Harsh at Neurosurgical Associates - Birmingham. (R. 271). Dr. Harsh reviewed the MRI and concluded: “I do not believe [the pineal region cyst] would be symptomatic.” (Id.). He recommended a follow-up scan in four months. (Id.).

         Plaintiff repeated the MRI in June 2011. (R. 268). The repeat MRI revealed “no significant change in cystic appearing mass in pineal gland since 3/09/2011, ” no hydrocephalus, and a “Chiari I malformation.” (Id.). Continued follow up on the cyst was recommended. (R. 269). On July 21, 2011, these results were discussed with Plaintiff during her visit to Dr. Harsh. (R. 273). Plaintiff was instructed to have a follow up MRI in one year and to be evaluated by a neurologist. (Id.).

         On June 14, 2012, Plaintiff again repeated the MRI. (R. 270). No change in the pineal cyst was noted. (Id.). The Chiari I malformation was again noted. (Id.). On June 28, 2012, the results from the MRI were discussed with Plaintiff during her office visit with Dr. Harsh. (R. 275). She reported some stable headaches and some syncopal episodes. (Id.). She was instructed to have another MRI in 18 months and to follow up with another doctor regarding the syncopal episodes. (Id.).

         Plaintiff was referred to Dr. Thomas B. Traylor at Rheumatology Associates, P.C. for “recent detected acute phase reactants.” (R. 291). At the July 25, 2012 visit, Plaintiff reported: modest obesity unresponsive to diet restrictions, bilateral foot deformity with chronic persistent foot pain, fibromyalgia, impaired grip, lateral hip pain and left knee painful swelling, neck pain with headaches, and chronic relapsing back pain. (Id.). X-rays from the visit revealed mild to moderate weight-related dependent osteoarthritis with mild cervical disc disease, mild lumbar disc disease, and mild thoracolumbar scoliosis. (R. 294). Plaintiff was to start a “graduated program of Physical Rehabilitation Therapy” to “include the use of an assistive device for weight bearing, bracing, orthotics etc. as appropriate” and to follow up in three to four weeks. (Id.). Plaintiff continued to visit Dr. Traylor throughout 2012 and 2013, with notes indicating mild limited mobility in the neck and back, painful knee mobility, and axial painful mobility. (R. 277-78, 281). Plaintiff continued with Physical Rehabilitation Therapy. (R. 368-81).

         Plaintiff underwent a gastric band procedure in July 2013. (R. 106-07, 277, 292, 294).

         On August 6, 2014 Plaintiff, had a consultative exam with Dr. Samia S. Moizuddin at Walker Rural Health services. (R. 314). Dr. Moizuddin noted that Plaintiff was applying for disability due to chronic body pain and depression/anxiety. (Id.). She found Plaintiff to be in no acute distress but did find waddling due to body habitus with no assistive device. (Id.). Plaintiff denied difficulty walking and exhibited full muscle strength in all groups, normal muscle tone, and intact sensations. (Id.). Dr. Moizuddin diagnosed Plaintiff with morbid obesity, chronic pain syndrome, GERD, obstructive sleep apnea, headache, depression, and anxiety. (Id.).

         On August 14, 2014, Plaintiff underwent a consultative examination by Dr. Charles E. Houston. (R. 320-22). Dr. Houston diagnosed Plaintiff with generalized anxiety disorder, depressive disorder, some narcissistic tendencies, and multiple physical problems. (R. 321). He noted that Plaintiff “has difficulty with her gait sometimes due to foot problems” and “doesn't like to drive.” (R. 321). Dr. Houston concluded that “[h]er ability to meet the demands of competitive employment is affected by her psychiatric problems, and possibly by her physical condition.” (R. 322).

         Radiology reports from May 2015 revealed mild multilevel degenerative disc disease of the lumbar spine. (R. 325). Plaintiff visited Dr. Ashish Shah at the Highlands Orthopedic Clinic on July 22, 2015 complaining of “pain over the right bunion, ” bilateral feet pain, and instability, but also reporting independence with all activities of daily living. (R. 358, 361). Two months later Plaintiff followed-up with Dr. Shah, now reporting that she was “essentially unable to work due to the pain and instability in her feet. She has been in ASO braces that she reports have no[t] helped foot pain and has even created some forefoot pains.” (R. 352). Dr. Shah diagnosed Plaintiff with pes planus foot deformity and discussed surgery ...

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