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West v. Berryhill

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

March 29, 2019

CAROL WEST, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          JOHN E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Carol West appeals from the decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her application for disability insurance benefits (“DIB”) under Title XVI of the Social Security Act. (“the Act”). (Doc. 1).[1] West timely pursued and exhausted her administrative remedies, and the Commissioner's decision is ripe for review pursuant to 42 U.S.C. § 405(g). West has also filed a motion seeking an order of remand pursuant to 42 U.S.C. § 405(g). (Doc. 18). For the reasons discussed below, West's motion to remand is due to be denied and the Commissioner's decision is due to be affirmed.[2]

         I. Procedural History

         West was forty-four years old as of the date of her current application for DIB. (R. 319).[3] Her past work history includes bookkeeping, as an administrative assistant, and as a foster parent. (R. 38). She alleges she became disabled on November 1, 2013. (R. 319). She claims she could no longer work due to a variety of issues, including fibromyalgia, irritable bowel syndrome, arthritis, back pain, two bulging discs, and bone spurs. (R. 341). After her claims were denied, she requested a hearing before an ALJ. (R. 269). Following the hearing, the ALJ denied her claim on October 26, 2016. (R. 18-40).

         Following the ruling, she appealed the decision to the Appeals Council (“AC”). As a part of the appeal, she submitted additional medical records in support of her claim. (R. 2). After reviewing the records, the AC declined to further review the ALJ's decision. (R. 1-4). That decision became the final decision of the Commissioner. See Frye v. Massanari, 209 F.Supp.2d 1246, 1251 (N.D. Ala. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)).

         West initiated this action on December 13, 2017. (Doc. 1). Nine months later, she filed her motion to remand. (Doc. 18).

         II. Statutory and Regulatory Framework

         To establish her eligibility for disability 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 twelve months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). The Social Security Administration employs a five-step sequential analysis to determine an individual's eligibility for disability benefits. 20 C.F.R. § 404.1520(a).

         First, the Commissioner must determine whether the claimant is engaged in “substantial gainful activity.” Id. at § 404.1520(a)(4)(i). “Under the first step, the claimant has the burden to show that she is not currently engaged in substantial gainful activity.” Reynolds-Buckley v. Comm'r of Soc. Sec., 457 Fed.Appx. 862, 863 (11th Cir. 2012).[4] If the claimant is engaged in substantial gainful activity, the Commissioner will determine the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i) and (b). At the first step, the ALJ determined West has not engaged in substantial gainful activity since November 1, 2013. (R. 21).

         If a claimant is not engaged in substantial gainful activity, the Commissioner must next determine whether the claimant suffers from a severe physical or mental impairment or combination of impairments that has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). An impairment “results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). Furthermore, it “must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms.” Id. An impairment is severe if it “significantly limits [the claimant's] physical or mental ability to do basic work activities . . . .” 20 C.F.R. § 404.1520(c).[5] “[A]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. § 404.1521. A claimant may be found disabled based on a combination of impairments, even though none of her individual impairments alone is disabling. 20 C.F.R. § 404.1523. The claimant bears the burden of providing medical evidence demonstrating an impairment and its severity. Id. at § 404.1512(a). If the claimant does not have a severe impairment or combination of impairments, the Commissioner will determine the claimant is not disabled. Id. at § 404.1520(a)(4)(ii) and (c).

         At the second step, the ALJ determined West has the following severe impairments: cervical disc disease; lumbosacral disc disease; psoriatic arthritis/ rheumatoid arthritis; fibromyalgia, migraine headaches; and irritable bowel syndrome. (R. 21). The ALJ specifically excluded the following medically determinable impairments because he found none of them causes more than minimal functional limitations or lasted for more than 12 continuous months: pneumonia, sepsis, acute respiratory failure, adult respiratory distress syndrome, hypoxia, dyspnea, leukocytosis, dyshidrotic eczema, hand dermatitis, sinusitis, influenza B, chest pain, an ingrown nail, restless leg syndrome, carpal tunnel syndrome, menorrhagia, right hand trigger ring finger, and being overweight. (R. 26-28).

         If the claimant has a severe impairment or combination of impairments, the Commissioner must then determine whether the impairment meets or equals one of the “Listings” found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii); see also Id. at § 404.1525-26. The claimant bears the burden of proving her impairment meets or equals one of the Listings. Reynolds-Buckley, 457 Fed.Appx. at 863. If the claimant's impairment meets or equals one of the Listings, the Commissioner will determine the claimant is disabled. 20 C.F.R § 404.1520(a)(4)(iii) and (d). At the third step, the ALJ determined Ms. West did not have an impairment or combination of impairments that meet or medically equal the severity of one of the Listings. (R. 28-31).

         If the claimant's impairment does not meet or equal one of the Listings, the Commissioner must determine the claimant's residual functional capacity (“RFC”) before proceeding to the fourth step. 20 C.F.R. § 404.1520(e); see also Id. at § 404.1545. A claimant's RFC is the most she can do despite his impairment. See Id. at § 404.1545(a)(1). At the fourth step, the Commissioner will compare the assessment of the claimant's RFC with the physical and mental demands of the claimant's past relevant work. Id. at §§ 404.1520(a)(4)(iv) and (e), 404.1560(b). “Past relevant work is work that [the claimant] [has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” Id. § 404.1560(b)(1). The claimant bears the burden of proving that her impairment prevents her from performing her past relevant work. Reynolds-Buckley, 457 Fed.Appx. at 863. If the claimant is capable of performing her past relevant work, the Commissioner will determine the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b)(3).

         Before proceeding to the fourth step, the ALJ determined West has the RFC to perform a limited range of light work. (R. at 31-38). More specifically, the ALJ found West had the following limitations to light work, as defined in 20 C.F.R. § 416.967(b):

no driving, no climbing, and no work at unprotected heights or operation of hazardous machinery. She can do no more than occasional stooping and crouching. She can do no upper extremity pushing and/or pulling or overhead reaching. She is limited to simple, repetitive, noncomplex tasks.

(Id. at 31). At the fourth step, the ALJ determined West would not be able to perform her past relevant work as a foster parent, bookkeeper, administrative assistant, or account specialist. (Id. at 38).

         If the claimant is unable to perform her past relevant work, the Commissioner must finally determine whether the claimant is capable of performing other work that exists in substantial numbers in the national economy in light of the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) and (g)(1), 404.1560(c)(1). If the claimant is capable of performing other work, the Commissioner will determine the claimant is not disabled. Id.at § 404.1520(a)(4)(v) and (g)(1). If the claimant is not capable of performing other work, the Commissioner will determine the claimant is disabled. Id.

         At the fifth step, considering West's age, education, work experience, and RFC, the ALJ determined she can perform jobs that exist in significant numbers in the national economy, such as those of cleaner, labeler, and packager or hand packer. (R. 39). Therefore, the ALJ concluded West has not been under a disability as defined by the Act since November 1, 2013, through the date of the decision. (R. 40).

         III. Standard of Review

          Review of the Commissioner's decision is limited to a determination whether that decision is supported by substantial evidence and whether the Commissioner applied correct legal standards. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). A district court must review the Commissioner's findings of fact with deference and may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the Commissioner. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district court must “scrutinize the record as a whole to determine whether the decision reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (internal citations omitted). 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. A district court must uphold factual findings supported by substantial evidence, even if the preponderance of the evidence is against those findings. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         A district court reviews the Commissioner's legal conclusions de novo. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner's] failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.” Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

         IV. Discussion

         There are two matters before the court: (1) West's motion seeking a remand order pursuant to sentence six of 42 U.S.C. § 405(g) and (2) her appeal of the administrative determination. In her brief on the merits of her claims, she asserts the following issues: (1) substantial evidence does not support the ALJ's decision to reject the medical opinions regarding what she could do despite her psoriatic arthritis and the nature and severity of the same; (2) the AC erred in failing to remand this matter to the ALJ to consider her newly submitted evidence; and (3) the ALJ's determination concerning her subjective symptoms is not based on substantial evidence. (Doc. 12 at 1).

         A. Medical History and Evidence

         West's relevant medical history is substantial. It is also necessary to repeat much of it to adequately address the issues raised by her. The court will begin with the oldest relevant matter first.

         1. Drs. William Craig, Charlie Talbert, and Mark Downey

         West initially sought treatment for neck, low back, and pelvic pain from Dr. William Craig on March 29, 2013. (R. 649). She complained that her pain restricted her physical activity and disrupted her sleep. (Id.). She reported a subjective pain score (“SPS”) of 5 out of 10. (Id.). Dr. Craig's physical examination found antalgic gait and tenderness in her greater trochanter and buttock. (R. 651). Dr. Craig administered a guided trochanteral bursal injection.[6](R. 652).

         West had another pain block on May 2, 2013, due to low back pain. (R. 641). She returned to Dr. Craig on May 21, 2013, complaining of severe, sharp, aching pain in her low back after she bent over to pick up her grandson when she felt a pop in her back. (R. 645). Dr. Craig's physical examination found a positive left straight leg raising test and hip tenderness. (R. 647). He administered a trigger point injection, adjusted her medications, and prescribed a back brace. (R. 648).

         West returned to see Dr. Craig on July 25, 2013, with a SPS of 5 out of 10. (R. 641). She reported that her pain after the May 2, 2013 pain block was about the same after the block as it was before the block. (Id.). Dr. Craig administered a venipuncture injection and prescribed a Medrol dose pack, Flexeril, and Norco. (R. 643).

         Ms. West returned to Dr. Craig on August 9, 2013, with a SPS of 5 out of 10. (R. 637). Dr. Craig administered a medial branch block injection and prescribed a short term dosage of Dilaudid. (R. 640).

         On February 26, 2014, Ms. West's low back pain was treated by Dr. Craig with a L5-S1 facet injection. (R. 600). Her SPS score was 5/10. She stated her pain worsened after her hospitalization for Acute Respiratory Distress Syndrome in November 2013. (R. 459-573, 600).

         A March 14, 2014 lumbar MRI scan found a disc protrusion on L5-S1 which extended more to the left side. (R. 657). The report indicates that the disc height had not changed during the last two years. (Id.). Dr. Craig increased her Lyrica dosage on March 21, 2014. (R. 583). On March 31, 2014, Dr. Craig treated her lumbar radiculopathy and lumbar facet arthropathy with a left L5-S1 lumbar inter laminar epidural steroid injection. (R. 595). She reported her SPS was 7 out of 10 on April 21, 2014. Dr. Craig noted her radicular back and leg pain were responding to therapies, medication and steroid injections. (R. 636). Dr. Craig opined that 60% of her symptoms were from her back and 40% were from her legs. He referred her to Dr. Charlie Talbert for a surgical evaluation. (Id.).

         Dr. Talbert evaluated West on April 24, 2014. His review of her lumbar MRI found disc degeneration at ¶ 5-S1, bulging at ¶ 4-5 and L3-4, and a left sided foraminal bulge. The bulge did not appear to put pressure on the number five root. (R. 632). His physical examination revealed West had good strength and a negative straight leg raise. (R. 633). Dr. Talbert sent her for a nerve test and suggested that she not have surgery. (R. 632). He stated in his notes, “She has a problem but we do not have a good fix.” (Id.).

         On August 27, 2014, Dr. Mark Downey administered a right L5-S1 transforaminal epidural steroid injection under fluoroscopy. (R. 825). West returned to Dr. Downey on October 29, 2014, with SPS pain score of 8/10. (R. 930). She described having severe and functionally limiting pain. Dr. Downey administered a second right L5-S1 transforaminal epidural steroid injection under fluoroscopy. (Id.). She returned to see Dr. Downey on January 21, 2015. (R. 935). She described having 100% pain relief for two months. (Id.). Dr. Downey administered a third right L5-S1 transforaminal epidural steroid injection that day. (Id.).

         2. Dr. Jeffrey D. Wade

         West also was evaluated by Dr. Jeffrey D. Wade, an orthopedic surgeon, on May 13, 2014. (R. 669). His physical examination of West found a positive left straight leg raising test with numbness and tingling in her left foot and weakness in her L5 nerve root. (Id.). He determined that her March 2014 MRI scan showed a degenerative disc at ¶ 5-S1 with a broad based disc bulge into left foramen, causing foraminal stenosis. (Id.). Dr. Wade told her that he could perform a laminectomy discectomy at ¶ 5-S1 with foraminotomy. (Id.). He did not recommend a fusion. (Id.). West decided to have the operation. Dr. Wade performed bilateral L5 laminectomies, medial facetectomies removing the central paracentral disk herniation, and a partial S1 laminectomy with the removal of a inferiorly migrated free fragment on May 16, 2014. (R. 683). Shortly after the surgery, West developed a subcutaneous infection that required irrigation and debridement on May 25, 2014. (R. 677).

         West saw Dr. Wade on December 2, 2014, complaining of lower back pain and bilateral leg numbness. (R. 931). Dr. Wade sent her for a lumbar MRI with contrast of her lower back. (Id.). Dr. Wade determined that her MRI showed mild to moderate left neural foraminal stenosis at ¶ 4-5 due to a bulging disc, posterior lateral spurring, and mild facet DJD. Additionally, a 7mm cyst was found at the far lateral aspect of the neural foraminal, which permiter contained the L5 nerve root. (R. 933).

         West received an injection on January 12, 2015, to alleviate irritation of her facet joint. (R. 932). An April 27, 2015 MRI showed stable findings compared with her December 2014 MRI and that she likely had a synovid or perineurial cyst. (R. 937).

         3. Dr. Sean O'Malley

         West began seeking Dr. Sean O'Malley in June 2015. (R. 941). West complained of stabbing right shoulder pain and low back pain in her hips and legs with numbness and weakness. She had right carpal tunnel release surgery in October 2015 and L5-S1 disc fusion surgery in December 2015. (R. 944, 950). Dr. O'Malley reported on January 8, 2016 that her back pain had improved substantially. By February 2016, her back pain resolved and she was walking regularly. (R. 952, 1036). Later that month, she did have to cut back on her walking due to pain. (R. 1036). Specifically, she reported some pain in her hip at night, and some pain in her left leg and feet. (Id.). Dr. O'Malley noted that her gait and strength were good. (Id.).

         4. Dr. Vicki L. Moore

         West was seen by Dr. Vicki L. Moore for Fibromyalgia, headaches, low back pain, migraines, and rheumatoid arthritis. (R. 990). On July 1, 2013, she was seen by Dr. Moore with complaints of pain in her lower left back and left forearm. X-rays disclosed narrowing of the C5-C6 disc space. (R. 713). She was prescribed rest, ice, and a Medrol dose pack (Id.). In December 2013, West returned to Dr. Moore after she fell. She complained of right hip pain.[7] (R. 706). She also told Dr. Moore that she could not return to work. (Id.). In February 2014, ...


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