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Graham v. Colvin

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

July 14, 2015

ROBIN GRAHAM, Plaintiff,
CAROLYN COLVIN Acting Commissioner, Defendant.


CATHERINE D. PERRY, District Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying Robin Graham's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Graham claims she is disabled because she suffers from irritable bowel syndrome (IBS), arthritis, interstitial cystitis (IC), and fibromyalgia. After a hearing, the Administrative Law Judge concluded that Graham was not disabled. Because I cdonclude that the ALJ's decision was based on substantial evidence on the record as a whole, I affirm.

I. Procedural History

Graham filed her application for disability insurance benefits on January 14, 2011. She alleged an onset date of August 22, 2009. When her application was initially denied on April 15, 2011, Graham requested a hearing before an administrative law judge. She then appeared, with counsel, via video conference, at an administrative hearing on January 15, 2013. Graham and a vocational expert testified at the hearing.

After the hearing, the ALJ denied Graham's application on February 8, 2013, and she appealed to the Appeals Council. On April 21, 2014, the Council denied Graham's request for review. The ALJ's decision thereby became the final decision of the Commissioner. Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008).

Graham now appeals to this court. She alleges that the ALJ erred by: (1) making a decision contrary to the weight of the evidence; (2) failing to properly consider opinion evidence; and (3) failing to properly consider all of plaintiff's severe impairments at step 2 of the ALJ's analysis.

II. Evidence Before the Administrative Law Judge

Medical Records Before Period of Alleged Disability

In the medical records before the ALJ in 2006 to 2009, the period before the onset of Graham's alleged disability, Graham was seeing her primary care physician, Dr. Anthony Keele. She began seeing Dr. Keele in September 2006. She told Dr. Keele that she suffered from a bladder disease in her initial visit on September 6, 2006, and Dr. Keele diagnosed IC, IBS, and fatigue. (Tr., p. 377.) Graham saw Dr. Keele once more in September 2006 and then one time in October 2006; she stated no new concerns and that her urination was better. Graham's only concern was she urinated more at night. (Tr., pp. 375-76.)

On January 22, 2007, Graham complained of more frequent bladder pain that was worse than normal. (Tr., p. 371.) Again in March and April 2007, Graham saw Dr. Keele, stating new concerns of bladder pain and asking about different treatments that might be available for her condition. They discussed the possible use of Oxytrol patches.[1] (Tr., pp. 368-69.) From May 2007 to October 2007, Graham saw Dr. Keele five times, with complaints such as cramps, fatigue, achiness, and burning during frequency problems; he continued the treatment with medicine already prescribed. During some of these visits she indicated she was having pain in her neck, hips and legs. (Tr., pp. 362-67.)

In January 2008, Graham wanted to discuss "bladder pain" that she claimed was persistent, possible depression and problems sleeping. (Tr., p. 360.) Graham saw Dr. Keele for a foot injury in early 2008, and did not complain of pain and constipation until April 2008. In April she also complained of pain in her hip and leg. (Tr., pp. 356-59.) Throughout the rest of 2008, Graham had only a few complaints concerning her fatigue, muscle spasms, and tenderness. (Tr., pp. 345-55.)

In Graham's first visit to Dr. Keele in 2009, she had no new concerns noted in her chart. (Tr., p. 344.) The next two visits in March and February 2009, Graham had complaints concerning flu symptoms. (Tr., pp. 342-43.) On April 23, 2009, Graham went to Dr. Keele and complained of increased fatigue, joint and muscle pain, problems emptying bladder, and chest tightening. (Tr., p. 341.) While Graham saw Dr. Keele six more times throughout 2009, she did not state any new problems concerning her IC or fibromyalgia, even after the alleged onset of August 22, 2009. (Tr., pp. 333-40.)

Medical Records During Period of Alleged Disability

Graham alleged a disability onset date of August 22, 2009. Graham continued to see Dr. Keele after this date, but in 2009 Graham only saw him for medicine refills and testosterone shots. (Tr., pp. 333-38.)

On October 17, 2009, Graham began seeing urologist, Dr. Anthony Steele. In this initial visit, Graham discussed her history of symptoms and treatments, and effects on her daily routine. Upon a physical examination, most pain areas were within normal limits with no tenderness, except 1 cm area of tenderness on her vulva. Dr. Steele diagnosed IC, IBS, fibromyalgia, and noted that for treatment of fibromyalgia Graham should seek care of a rheumatologist. Dr. Steele prescribed Cystoprotek[2] and continuation of oxytrol. He discussed the option of treatment through bladder instillations.[3] (Tr., pp. 378-80.) Graham received her first bladder instillation at her November 2, 2009, appointment with Dr. Steele. Dr. Steele again recommended Graham see a rheumatologist, and gave Graham Vivelle patches[4] to sample. (Tr., pp. 381-82.)

Graham received two bladder instillations on November 9, 2009, and November 18, 2009. (Tr., pp. 383-84.) Additionally, Graham had a consultation with Dr. Susan Hoffstetter in the vulvar and vaginal disease clinic on November 18, 2009, complaining of dyspareunia and vulvar pain. Dr. Hoffstetter diagnosed dyspareunia and vulvodynia, and prescribed the use of Crisco or olive oil massaging multiple times a day and kegal exercises. (Tr., pp. 385-89.)

Although the medical records are not entirely clear, it appears that Graham saw a rheumatologist on November 24, 2009, Dr. Rama Bandlamudi, who examined her and ordered x-rays. (Tr., pp. 529-533).[5] She complained of pain all over her body over the past five years, with fatigue. The records contain a note stating: "18/18 tender points pos for FMS." (Tr. P. 530).

In December 2009, Graham underwent another bladder instillation. She also had a consultation with Dr. Susan Barr, involving interstim treatment[6] for her IC, but did not proceed with the procedure at this visit. (Tr., p. 391.) This same month, Graham also had a consultation with Dr. Alex Befferler, a Gastroenterologist and Hepatologist. Dr. Befferler diagnosed constipation, interstitial cystitis, and fibromyalgia, and prescribed Align, for digestive care, and an increased prescription of Miralax. (Tr., pp. 396-97.)

In 2010, Graham visited Dr. Keele, her primary care physician, once a month in February, March, April, and May. (Tr., pp. 329-32.) These visits were for hormone injection shots, and in April to complain of congestion, sneezing, and drainage. In June 2010, Graham saw Dr. Keele twice, once for her hormone injection and the second time complaining of a bladder infection. Graham was prescribed Ciprodex, to help with the bladder infection. (Tr., pp. 401-02.)

On July 2, 2010, Graham saw Dr. Keele. She complained of dizziness and inability to turn head to either side, symptoms which began the day before. Dr. Keele gave Graham a Kenalog injection to help with swelling, and prescribed Meclizine to help with the dizziness. (Tr., pp. 403-04.)

In August 2010, Graham had two follow-up visits with Dr. Keele. The first was for a hormone injection and prescription refills. The second visit on August 30, 2010, was a follow-up for Graham's hypothyroidism and complaints of chest congestion and drainage. Graham then followed up on her hypothyroidism with Dr. Keele on October 4, 2010. (Tr., pp. 406-11.)

On October 13, 2010, Graham saw Dr. Keele. She complained of pain in her legs that had lasted several weeks and requested a Percocet refill. (Tr., pp. 413-14.) In November 2010, Graham again visited Dr. Keele complaining of insomnia, which Dr. Keele had already previously diagnosed. (Tr., pp. 415-16.) Graham then had two appointments with Dr. Keele in Decemeber 2010. The first visit she complained of low energy, fatigue, and sore throat. Dr. Keele's only prescriptions were to treat infections for the sore throat. (Tr., pp. 417-18.) At the second visit in December 2010, Graham again complained of insomnia, which Dr. Keele treated with previously prescribed medications. (Tr., pp. 419-20.)

In January 2011, Graham visited Dr. Keele twice complaining of congestion, drainage, fatigue, and sore throat. Dr. Keele prescribed medications for allergies and infections to help with these symptoms. (Tr., pp. 421-24.) Graham saw her primary care physician Dr. Keele again on March 2, 2011. She complained of insomnia and frequent and painful urination. The only new prescription Dr. Keele prescribed this visit was Advil cold and sinus. (Tr., pp. 436-37.)

In June 2011, Graham saw urologist Dr. Steele. Graham had a bladder instillation performed during this visit, her first since December 2009. She also complained of problems with her fibromyalgia and pain. Dr. Steele recommended a cystoscopy and hydrodistension to help with discomfort and also diagnosis since he had never scoped her before. (Tr., pp. 461-68.)

Graham then followed up with Dr. Steele on August 12, 2011. The treatment notes indicate that Graham had a cystoscopy and hydrodistention performed, which she said "helped quite a bit, " but still thinks there are some problems. (Tr., p. 474.) Graham had a bladder instillation performed during this visit and Dr. Steele recommended she continue taking Cystoprotek over the counter. (Tr., pp. 469-75.)

In September 2011, Graham saw another primary care physician, Dr. Richard Tipton. Graham's chief complaints involved problems with hypothyroidism, IBS, and cystitis. Treatment notes indicated that Graham had normal range of motion of musculoskeletal system. Dr. Tipton' assessment recommended continued treatment with Dr. Steele for cystitis and Miralax to help with bowels. (Tr., pp. 537-40.)

Graham first saw Dr. Di Valerio, a rheumatologist, in September 2011. She reported a history of fibromyalgia syndrome and complained of musculoskeletal weakness, some numbness, chronic constipation, some left chest wall pain, and myalgia type pain in her hips, low back, neck, shoulders, upper back, and pelvic region. Upon Dr. Di Valerio's physical examination there was no musculoskeletal acute swelling. Dr. Di Valerio diagnosed fibromyalgia syndrome and fatigue. (Tr., pp. 507-09.) Graham saw Dr. Di Valerio again at the end of September 2011. She complained of left hip and legs hurting, with pain in left hip most severe that day, also stating she occasionally uses ibuprofen to help. Upon Dr. Di Valerio's physical examination, there were no tenderness points and Graham had full and painless motion in all four extremities of her body. (Tr., pp. 513-15.)

In October 2011, Graham visited Dr. Steele. Graham had a bladder instillation performed, and Dr. Steele said to continue with this plan of treatment because "patient doing well." (Tr., 476-89.) Graham also saw Dr. Tipton complaining of heart palpitations and sinus problems. Graham's EKG looked normal and Dr. Tipton prescribed Claritin to resolve sinus problems. (Tr., pp. 541-44.)

Graham saw rheumatologist Dr. Di Valerio again on November 2, 2011. She complained of pain all over body, swelling in hands, left hip and leg hurting, and right elbow pain due to a fall. Dr. Di Valerio performed a physical examination, which showed no tenderness or swelling, range of motion as full and painless in all four extremities, and gait normal. He prescribed Feldene and Mobic to help with the pain and inflammation caused from arthritis. (Tr., pp. 517-19.)

On January 4, 2012, Graham visited Dr. Di Valerio, continuing to complain of pain all over body, and additionally left chest wall pain. Treatment records noted that Graham believed her symptoms seemed to change with the weather. Upon physical examination, records indicate that there were no tenderness points, swelling, or weakness, and range of motion was full and painless in all four extremities. (Tr., pp. 520-23.) Graham also visited Dr. Steele on January 17, 2012. Graham indicated she had some worsening of her IC since last instillation in October 2011, but that she felt the instillations and cystoprek helped. (Tr., p. 496.) She had a bladder instillation performed during this visit. (Tr., p. 504.)

In March 2012, Graham saw Dr. Di Valerio. She complained that her symptoms had flared up from weather and had been bad the last month. Graham claimed to receive partial relief from medications, but energy was not great and right elbow and both knees were hurting. Dr. Di Valerio's physical examination showed no tenderness, swelling or weakness, as well as full and painless range of motion in all four body extremities and normal gait. Despite this, the records also note positive bilateral tender points at elbows, shoulders, chest, base of neck, sacular areas, low back, hips, and knees. (Tr., pp. 524-26.)

In May 2012, Graham again visited Dr. Steele. She complained her fibromyalgia was acting up, along with IC and IBS, and came in to have an instillation done. Graham had a bladder instillation performed and she was scheduled for a repeat instillation. (Tr., p. 553.)

On September 5, 2012, Graham visited Dr. Steele and had her follow-up bladder instillation performed. (Tr., p. 563-64.) That same month, Graham also visited Dr. Di Valerio. She complained of dealing with chronic joint and muscle pain, not sleeping well, and having a lot of pain in both legs. Graham also stated she was not doing well with pain medications. Upon physical examination, positive tender points were found in her shoulders and elbows of her right and left upper extremities and in both knees. All other areas had no tenderness or swelling, and had full and painless range of motion. (Tr., ...

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