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Hodges v. Berryhill

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

July 17, 2019

TINA MARIE HODGES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting COMMISSIONER OF Social Security, Defendant.

          MEMORANDUM OF DECISION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.

         Plaintiff Tina Marie Hodges (“Plaintiff” or “Hodges”) brings this action pursuant to Sections 205(g) of the Social Security Act (“the Act”), seeking review of the decision of the Commissioner of Social Security (“Commissioner”) denying her claim for disability insurance benefits (“DIB”). See 42 U.S.C. §§ 405(g). Upon review of the record and briefs submitted by the parties, the court finds that the Commissioner's decision is due to be affirmed.

         I. Proceedings Below

         On August 14, 2014, Plaintiff protectively filed a Title II application for disability insurance benefits alleging disability beginning March 19, 2013.[1] (R. at 53, 169, 249). The claim was denied on November 3, 2014. (R. at 53, 175-79). On November 13, 2014, Plaintiff filed a written request for a hearing in front of an Administrative Law Judge (“ALJ”). (R. at 53, 184-85, 188-90). ALJ Walter Lassiter, Jr. conducted the requested hearing on February 19, 2016. (R. at 53, 75-115, 211, 218, 239). In his decision dated July 28, 2016, the ALJ determined that Plaintiff was not disabled under sections 216(i) and 223(d) of the Act. (R. at 53, 70). The Appeals Council denied Plaintiff's request for review on February 21, 2017. (R. at 1-6, 44). This denial made the ALJ's decision the final decision of the Commissioner and a proper subject for this court's appellate review.

         II. Facts

         Plaintiff Tina Marie Hodges, born on August 17, 1965, was 51 years old at the time of the hearing. (R. 82, 249, 362). She completed high school and held positions with Liberty National Insurance Company, What-A-Burger, Willy-T's, and Taco Bell in capacities ranging from “callback operator” with Liberty National to cashier and managerial roles with the various fast food restaurants. (R. at 57, 82-89, 268, 283). She left her position with Liberty National in 2005 due to a traumatic injury arising out of domestic violence. (R. at 57, 85, 283).[2] Later, Plaintiff worked for Willy T's, a fast food chicken restaurant, as a cashier for about a year. (R. at 86). Plaintiff then worked as a cashier at What-A-Burger, moving into a management position. (R. at 57, 86). Plaintiff lost her job with What-A-Burger due to her inability to maintain the night shift. (R. at 87-88). Plaintiff then worked at Taco Bell, again attaining a management position. (R. 57, 88-89). However, Plaintiff missed excessive amounts of time at Taco Bell and was subsequently fired. (R. at 57, 89). She cited depression as the reason for consistently missing work. (Id.)

         Plaintiff has not worked since March 2011 and claims she has suffered from suicidal thoughts, memory problems, concentration problems, and depression. (R. at 57, 90-93, 249). She has indicated she “mentally cannot be productive.” (Id.). In the case before this court, Plaintiff alleges onset of disability on March 19, 2013 due to the medically determinable impairments of “obesity; distant history of head trauma; history of fibromyalgia; hypertension; bipolar disorder, not otherwise specified with non-compliance; generalized anxiety disorder with non-compliance; and possible personality disorder.”[3] (R. at 53, 55, 262).

         Throughout the period of her alleged disability, Plaintiff was treated and/or assessed by numerous physicians, two counselors, and multiple nurse practitioners. (R. at 57-65, 336-689). She received various diagnoses, including: obesity, fibromyalgia, hypertension, pedal edema, pitting edema, bipolar disorder, generalized anxiety disorder, major depressive disorder, panic disorder, post-traumatic stress disorder (“PTSD”), pineal cyst, and borderline personality disorder. (R. at 58, 342, 368, 380-82, 385, 408, 412, 425, 441, 537, 540). Although Plaintiff consistently presented with symptoms of musculoskeletal pain, tremor, anxiety, and fatigue, it was frequently noted that she had normal range of motion in all four extremities, no constitutional or musculoskeletal issues besides pain and stiffness, no joint involvement, and was otherwise physically normal.[4] (R. at 340, 345-48, 350, 368-74, 380-85, 405, 435, 465, 470, 546, 556, 559, 563, 569, 573, 576). It was also noted that Plaintiff's tremor and gait disturbances resulted either from her pineal gland cyst or were “related to the extrapyramidal effects of Haldol, ” a drug Plaintiff was prescribed until treating physicians discontinued it. (R. at 390-94, 397).

         Plaintiff's treating physicians performed extensive diagnostic testing including several CT scans, MRIs, and a Transthoracic Echocardiogram. (R. at 377, 397-99, 402, 423, 440, 441, 472, 485). The results of these tests were negative/unremarkable except for a small cystic lesion involving the pineal gland that did not require surgery, trace mitral regurgitation and mild tricuspid regurgitation in the heart, nonspecific subcortical white matter hypoattenuation in the frontal lobes of the brain, mild retrolisthesis of L2 and 3, mild levoscoliosis of the lumbar spine, and multilevel degenerative changes most significant at ¶ 4-5 and L5-S1. (Id.)

         Plaintiff's activities of daily living up to and at the time of the ALJ hearing included interacting with her husband, watching television, and cooking. (R. at 94-97). Plaintiff testified that she only occasionally leaves the house, must be reminded to bathe, often stays in her pajamas all day, and is reluctant to interact with people besides her husband. (Id.) Plaintiff clothes, bathes, and cooks for herself.[5] (R. at 95-96).

         During the hearing, when given hypotheticals with factors and limitations similar to those indicated by Plaintiff's residual functional capacity (“RFC”), the Vocational Expert (“VE”) testified that someone similarly situated to Plaintiff would be able to perform her past work. (R. at 110-12). The VE further noted that Plaintiff could perform all past fast food work, but not insurance clerk work, if “impairment, limitation, medication, medication side effects and even allowance for fatigue . . . collectively or individually would limit this individual to simple, routine and repetitive work activity.” (R. at 112). However, the VE also noted that Plaintiff would likely lose all of her previous jobs if she was unable to interact with and respond appropriately to the public. (R. at 113).

         III. ALJ Decision

         Disability under the Act is determined using a five-step test. 20 C.F.R. § 404.1520(a)(4). First, the ALJ must determine whether a plaintiff is engaging in substantial gainful activity. Id. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing significant physical or mental activities. Id. § 404.1572(a). “Gainful work activity” is work that is done for pay or profit. Id. § 404.1572(b). If the ALJ finds that a plaintiff engages in substantial gainful activity, then the plaintiff cannot claim disability. Id. § 404.1520(b). Second, the ALJ must determine whether a plaintiff has a severe medically determinable impairment (“MDI”) or a combination of medically determinable impairments that significantly limits the plaintiff's ability to perform basic work activities. Id. § 404.1520(a)(4)(ii). Absent such impairment, a plaintiff may not claim disability. Id. Third, the ALJ must determine whether a plaintiff's impairment meets or medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See Id. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the plaintiff is declared disabled. Id. § 404.1520(a)(4)(iii).

         If a plaintiff does not fulfill the requirements necessary to be declared disabled under the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must first determine a plaintiff's residual functional capacity (“RFC”), which refers to the plaintiff's ability to work despite her impairments. Id. § 404.1520(e). In the fourth step, the ALJ determines whether a plaintiff has the RFC to perform past relevant work. Id. § 404.1520(a)(4)(iv). If the ALJ determines that a plaintiff is capable of performing past relevant work, then the plaintiff is deemed not disabled. Id. If the ALJ finds a plaintiff unable to perform past relevant work, then the analysis proceeds to the fifth and final step. Id. § 404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether a plaintiff is able to perform any other work commensurate with her RFC, age, education, and work experience. Id. § 404.1520(g). Here, the burden of proof shifts from the plaintiff to the ALJ to prove the existence, in significant numbers, of jobs in the national economy that the plaintiff can do given her RFC, age, education, and work experience. Id. §§ 404.1520(g), 404.1560(c).

         SSR 12-2p is a regulation designed to “provide guidance on how [to] develop evidence to establish . . . a Medically Determinable Impairment (“MDI”) for fibromyalgia . . . and how [to] evaluate [fibromyalgia] in disability claims.” 77 Fed. Reg. 43640 (July 25, 2012). Fibromyalgia may be the basis for disability if established by appropriate medical evidence from an accepted medical source, including but not limited to “longitudinal records reflecting ongoing medical evaluation and treatment.” Id. at 43642. A diagnosis alone cannot serve as the basis for establishing a MDI of fibromyalgia. Id. at 43641. Rather, the evidence must document physician-reviewed medical history and physical exams to determine whether “consistent with the diagnosis of fibromyalgia . . . symptoms have improved, worsened, or remained stable over time, and establish the physician's assessment over time of the person's strength and functional abilities.” Id. Specifically, a claimant must not only be diagnosed with fibromyalgia, but also must meet the criteria outlined in either the 1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia[6] or the 2010 ACR Preliminary Diagnostic Criteria.[7] Id. The five-step test outlined in 20 C.F.R. § 404.1520(a)(4) is not altered under SSR 12-2p. Id. at 43643. Fibromyalgia is not a listed impairment. So, under step three, fibromyalgia must medically equal a listed impairment either on its own or in combination with one or more other MDIs. Id. If a claimant's fibromyalgia or combination of that condition and another MDI does not medically equal a listed impairment, an RFC assessment will be required. Id. Due to the waxing and waning of fibromyalgia symptoms, the claimant's longitudinal medical and treatment record is considered. Id. The usual vocational considerations are applied with the inclusion of symptoms typically associated with fibromyalgia: widespread pain, fatigue, and/or other fibromyalgia symptoms resulting in exertional limitations, nonexertional physical or mental limitations, and/or nonexertional environmental limitations. Id. at 43644. Adjudicators must specifically consider the possibility of these limitations, which may “erode [the] occupational base . . . precluding the use of a rule in appendix 2 to direct decision, ” requiring the use of rules in appendix 2 as a framework and/or a vocational expert. Id.

         A two-step process governs the evaluation of a claimant's statements regarding symptoms and functional limitations. Id. 43643. First, medical signs and findings must show that a plaintiff has “a MDI(s) which could reasonably be expected to produce the pain or other symptoms alleged.” Id. As fibromyalgia is a MDI, this first step is satisfied by a diagnosis of fibromyalgia. Id. Second, the intensity and persistence of a claimant's symptoms and the extent to which those symptoms may restrict ability to work must be evaluated. Id. If a claimant's statements are not substantiated by objective medical evidence, “all of the evidence in the case record, including the person's daily activities, medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person's attempts to obtain medical treatment for symptoms; and statements by other people about the person's symptoms, ” is considered. Id. SSR 96-7p[8] is utilized to determine the credibility of a claimant's statements about the effects of her symptoms on functioning. Id. SSR 96-7p requires the ALJ to make “every reasonable effort to obtain available information that could help . . . assess the credibility” of a plaintiff's statements. Id.

         Here, the ALJ determined that Plaintiff had not engaged in substantial gainful activity from the amended alleged onset date of March 19, 2013 through June 30, 2015, the date last insured. (R. at 55). The ALJ also determined that Plaintiff had the following non-severe medically determinable impairments: obesity; distant history of head trauma; history of fibromyalgia; hypertension; bipolar disorder, not otherwise specified with non-compliance; generalized anxiety disorder with non-compliance; and possible ...


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