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Powell v. Colvin

United States District Court, E.D. Missouri, Eastern Division

February 3, 2015

NANCY POWELL, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


CAROL E. JACKSON, District Judge.

This matter is before the Court for review of an adverse ruling by the Social Security Administration.

I. Procedural History

On March 14, 2008, plaintiff Nancy Powell filed an application for supplemental security income, Title XVI, 42 U.S.C. ยงยง 1381 et seq., with an alleged onset date of March 14, 2010. (Tr. 184-87). After plaintiff's application was denied on initial consideration (Tr. 144-48), she requested a hearing from an Administrative Law Judge (ALJ). See 151-52 (acknowledging request for hearing). Plaintiff and counsel appeared for a video hearing on January 20, 2010. (Tr. 95-142). The ALJ issued a decision denying plaintiff's application on June 26, 2010 (Tr. 78-93), and the Appeals Council denied plaintiff's request for review on July 15, 2011. (Tr. 1-4).

Plaintiff sought review in this court, Powell v. Astrue, 4:11-CV-1340 (CEJ), and on August 6, 2012, the court remanded the matter, based upon the ALJ's misreading of an observation by a medical examiner and improper reliance on the opinion of a non-medical source. [Doc. #19]. On October 25, 2012, the Appeals Council remanded the matter to the ALJ. (Tr. 546). Plaintiff and counsel appeared for a second hearing on April 30, 2013. (Tr. 446-501). On October 10, 2013, the ALJ again denied plaintiff's application. (Tr. 427-41). The ALJ's second decision stands as the commissioner's final decision.

II. Summary of Prior Medical Evidence

In early 2007, plaintiff sought treatment from urgent care centers and emergency rooms for a variety of ailments, including bronchitis, laryngitis and pneumonia. (Tr. 254-59, 281-94). In June 2007, her primary care physician, Jesse D. Helton, D.O., treated plaintiff for complaints of depression, headache, and hypertension. (Tr. 330). He noted that plaintiff had not previously received treatment for these conditions. She was prescribed Clonidine for treatment of hypertension and anxiety and Prozac for treatment of depression.

In June and July 2007, plaintiff sought emergency treatment for injury to her right wrist. (Tr. 304-19; 246-50). X-rays in July 2007 were negative and plaintiff was discharged with instructions to take Ibuprofen or Tylenol. On July 30, 2007, plaintiff sought emergency treatment for a "sharp" headache that was sensitive to light, accompanied by nausea. (Tr. 295-303). She was observed to have a steady gait. She was treated with Ketorolac, [1] Compazine, and Benadryl and reported that her pain was almost fully relieved. (Tr. 299).

On August 4, 2007, plaintiff was diagnosed with pneumonia. (Tr. 281-94). On August 22, 2007, she was transported to the emergency room by ambulance with complaints of chest pain, which she rated at level 9 on a 10-point scale. (Tr. 263-80). She had been experiencing the pain sporadically for three weeks. Plaintiff reported that in the past she had been told that these symptoms might be due to her gall bladder. (Tr. 273). An ultrasound of the abdomen revealed a normal liver, gallbladder, and pancreas, mild splenomegaly, and echogenic portions of the kidney raising a question of medullary sponge kidney. (Tr. 263). An EKG was normal. (Tr. 268). She was treated with Toradol and morphine and discharged. A few days later, Dr. Helton started her on a trial of Nexium. (Tr. 329).

In November 2007, plaintiff reported that she continued to experience periodic epigastric pain and that the Nexium did not help. (Tr. 328). Dr. Helton noted the presence of a soft-ball sized neurofibroma on her right lateral leg. Plaintiff, who weighed 197 pounds, complained that she was unable to lose weight. She was started on medication for weight loss and, at her next office visit in December 2007, she had lost 15 pounds. (Tr. 326). In January 2008, plaintiff reported that she had constant pain in her right shoulder that her chiropractor diagnosed a rotator cuff tear. (Tr. 326). On examination, Dr. Helton noted marked weakness and tenderness on palpation. He referred plaintiff for an MRI and told her to take Ibuprofen for pain.

She continued to complain of shoulder pain in February 2008. (Tr. 325). In March, plaintiff requested Topamax[2] for headaches. (Tr. 324). Dr. Helton diagnosed plaintiff with headache and essential hypertension and prescribed a trial of Inderal to treat both conditions. In April, plaintiff told Dr. Helton that she was not taking the Inderal every day as prescribed and again requested a prescription for Topomax. (Tr. 323). Her diagnoses on that day included migraine, malaise, hypersomnia, and essential hypertension. Plaintiff was given a trial of Topomax for headaches and was advised to take her Inderal daily to regulate her blood pressure. In May 2008, plaintiff reported that she was doing well with her current medications. (Tr. 334). Dr. Helton noted the presence of neurofibromas on her face and extremities.

On May 12, 2008, Marsha Toll, Psy.D., completed a Psychiatric Review Technique. (Tr. 335-45). Dr. Toll concluded that plaintiff had a medically determinable diagnosis of depression but that her condition was not severe. Plaintiff had mild difficulties in maintaining social functioning and concentration, persistence or pace. Plaintiff's daily activities included caring for six children. She indicated that she had experienced changes in her self care and that she found it difficult to leave home due to feeling depressed. These claims were considered partially credible but, based on the totality of the evidence, plaintiff's impairment was not severe.

A nonexamining consultant completed a Physical Residual Functioning Capacity Assessment (PRFCA) on May 12, 2008. (Tr. 346-51). Based on a review of the medical records, the consultant determined that plaintiff can occasionally lift or carry 20 pounds and frequently carry 10 pounds. She can sit, stand, or walk about 6 hours in an 8 hour day, and had no limitations in pushing or pulling. The examiner noted that plaintiff claimed disability due to neurofibromatosis, high blood pressure, migraines, back problems, brown spots on the brain and a mass on her left leg. The medical record included diagnoses for neurofibromatosis and morbid obesity. With respect to plaintiff's migraine headaches, the examiner noted that her symptoms did not rise to "listing level, " but plaintiff should nonetheless avoid exposure to environmental hazards and noise during migraines. Plaintiff was also treated for high blood pressure, which had not resulted in end organ failure, but which necessitated a restriction on working at heights. The medical record did not include ongoing complaints of, or treatment for, back pain. Plaintiff's daily activities included caring for six children. She had difficulty with chores and shopping and was unable to watch a 2-hour movie because she could not stand or sit for a long period of time. These allegations were considered partially credible and would not preclude her from performing within the specified limitations.

In June 2008, plaintiff returned to the emergency room for treatment of a headache that had lasted three days. (Tr. 353-71). She reported dizziness, pain at the base of her skull, nausea and shortness of breath. She also reported seeing spots and having episodes of confusion during which she blacked out and became nonresponsive. A physical examination did not disclose any weakness, fever, or neurological deficits. A CT scan of her head was normal. (Tr. 369). Plaintiff was diagnosed with headache and vertigo and discharged with prescriptions for Meclizine[3] and Darvocet.

Plaintiff was seen at the emergency room in September 2008, with increased swelling in her right lower leg. (Tr. 372-87). On examination, there was pain on palpation and with walking, but no redness or warmth. She rated the pain at level 9 on a 10-point scale. She was diagnosed with cellulitis and discharged with a prescription for an antibiotic and Percocet.

On October 16, 2008, Stanley London, M.D., completed a consultative orthopedic evaluation of plaintiff. (Tr. 388-94). His report indicates that he did not review any records. Plaintiff's chief complaints involved pain in her back and right leg, with swelling that occasionally became black and blue. She described the pain as sharp and stated that the pain in her leg was constant while the back pain came and went. She reported that she could walk for a block, and stand or sit for 20 minutes. On examination, Dr. London noted that plaintiff did not have true radiation of pain. He described a soft mass on plaintiff's lower right leg that was about 14 cm. across. She walked slowly and favored her right leg. She got on and off the examining table with difficulty. On a 5-point scale of muscle strength, with 5 indicating normal strength, plaintiff's lower right leg was rated at 4. (Tr. 392). However, she made only fair effort. Dr. London's clinical impressions were possible degenerative joint disease or disc disease and right leg post-trauma swelling and weakness with possible effusion or muscle tearing. Dr. London opined that plaintiff had a disability expected to last for 3 to 5 months. (Tr. 394).

Plaintiff was treated for laryngitis and strep throat in January 2009 (Tr. 402-07), and for pain in her clavicle in March 2009. (Tr. 408-12). In April 2009, she was diagnosed with bronchitis. (Tr. 413-16). In September 2009, she sought treatment for chronic pain in her left knee which had recently worsened. (Tr. 418-21). She had decreased range of motion and tenderness, without redness or swelling. X-rays were normal. Two days later she required treatment for a punctured ear drum. (Tr. 423).

III. Additional Evidence Before the ALJ

A. New Medical Evidence

Plaintiff sought emergency treatment on November 10, 2009, for abdominal pain, which she rated at level 10 on a 10-point scale. (Tr. 693). The pain had begun 9 days earlier and was worsened by eating. (Tr. 694). She reported experiencing weakness and fatigue, nausea and vomiting, and abdominal tenderness. (Tr. 697-98). Her neuromusculoskeletal, cardiovascular, and respiratory functions were all within normal limits. (Tr. 693). She had no pain or swelling in her extremities. Her diagnoses on discharge were urinary tract infection and probable gastroesophageal reflux disease. (Tr. 698).

On January 25, 2010, plaintiff was treated at an urgent care center for complaints of headache and low back pain. She did not have leg pain. (Tr. 687-88). She was diagnosed with sinusitis and low back pain. On February 26, 2010, she was treated for a urinary tract infection. (Tr. 684-85). On May 12, 2010, she sought treatment for anxiety, stating her husband had left her recently with 6 children to care for. (Tr. 680-82). She complained of poor sleep and decreased appetite; she denied experiencing chest pains, shortness of breath, and homicidal or suicidal ideation. She was given a prescription for Xanax to treat her anxiety.

Plaintiff sought emergency treatment for chest pain on August 20, 2010. (Tr. 672-78). She complained of constant pressure with intermittent sharp stabbing pain, worse with breathing. She rated the pain, which had been present for 4 days, at level 7 on a 10-point scale. With the exception of the pain, her physical condition was unremarkable and she was described as "smiling." (Tr. 676). At discharge, the physician noted that plaintiff "look[ed] very well" and wanted to go home. (Tr. 678). She was diagnosed with chest wall pain and hypertension. (Tr. 672).

On September 24, 2010, plaintiff again sought emergency treatment for a severe headache, cough, and insomnia. (Tr. 631-648). Plaintiff reported that she had had a chronic headache for three months. She denied chest pain, hearing loss, shortness of breath, nausea, vomiting, depression, and insomnia. She reported a history of neurofibromatosis, migraines, and attention deficit disorder. Her medications included Vicodin and Propranolol.[4] On examination, her cardiovascular system, respiration, and psychiatric status were all normal. She had no edema or tenderness and had normal ranges of motion. Fibromas were noted on her right ear, face, and leg. A CT scan of her head was normal. Her headache resolved in the emergency room. (Tr. 636, 638).

On October 12, 2010, plaintiff sought treatment at an urgent care center for a headache. (Tr. 668-70). She reported that she had had a migraine for five days that had worsened in the previous six hours. Usually, her pain resolved with Vicodin. She had eye pain, body aches, vomiting, nausea, and sensitivity to light and sound. She reported improvement after treatment with Toradol and Zofran.[5] She was discharged with a prescription for the antidepressant Amitriptyline and told to follow up with her primary care physician.

Plaintiff returned to the urgent care center on February 11, 2011, with a severe cough that caused chest and back pain. (Tr. 664-66). She was diagnosed with bronchitis and given an antibiotic. On April 5, 2011, she returned with an abscessed tooth, a headache and dizziness. (Tr. 660-62). She was treated with Toradol and given prescriptions for an antibiotic, an anti-inflammatory, and Ultram.[6] She returned a few hours later with a temperature of 101 degrees. (Tr. 655-58). She was prescribed a different antibiotic and was told to follow up with a dentist as soon as possible. Also on April 5, 2011, plaintiff was notified that she was eligible for medical insurance through Missouri Health Net. (Tr. 649-52).

Plaintiff returned to see Dr. Helton on April 8, 2011.[7] (Tr. 810-11). He noted that plaintiff had been without insurance or medication for years. He described her as looking well and in no apparent distress. She had tenderness and swelling of the right jaw. He restarted her prescription for Inderal, and added hydrochlorothiazide (HCTZ) for treatment of ...

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