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Hovis v. Colvin

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

August 5, 2016

REBECCA HOVIS, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court, pursuant to the Social Security Act (“the Act"), 42 U.S.C. §§ 401, et seq., authorizing judicial review of the final decision of the Commissioner of Social Security (the “Commissioner “) denying Plaintiff Rebecca Hovis’ Title II application for Disability Insurance Benefits (“DIB”). All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully briefed, and for the reasons discussed below, the Commissioner’s decision is affirmed.

         I. Procedural History & Summary of Memorandum Decision

         Sometime between 2002 and 2005, the exact date being unknown, [1] Plaintiff filed an application for DIB benefits under Title II. (Tr. 11, 26, 38-39) That application was denied by an Administrative Law Judge (“ALJ”) on June 28, 2007, and the denial was affirmed by the Appeals Council on April 11, 2009. (Id.) On August 1, 2012, Plaintiff re-filed her application alleging diabetes, diabetic neuropathy, heart palpitations, anxiety, seizure disorder, sleep apnea, and a ruptured disc as her disabling impairments. (Tr. 11, 26, 38-39, 52) Plaintiff alleges a disability onset date of November 8, 2005; her date of last insured for DIB purposes is June 30, 2007. Plaintiff's application was denied at the initial level and by an ALJ at the hearing level. (Tr. 8-16) The Social Security Administration Appeals Council denied Plaintiff's request for review, leaving the ALJ’s decision as the final decision of the Commissioner in this matter. Plaintiff filed the instant action on April 30, 2015. Accordingly, Plaintiff has exhausted her administrative remedies and the matter is properly before this Court. Plaintiff has been represented by counsel throughout all relevant proceedings.

         The ALJ concluded that Plaintiff had not met her burden of demonstrating that she suffered from a severe impairment. (Tr. 14) Accordingly, the ALJ held that Plaintiff was not under any disability during the relevant time period - November 8, 2005, her alleged onset date, to June 30, 2007, her date last insured. (Tr. 16)

         In her brief to this Court, Plaintiff nominally raises two issues, although these issues require the Court to consider several subsidiary matters. First, Plaintiff argues that the ALJ erred in concluding that none of her impairments were “severe” at step two of the sequential evaluation process. [ECF No. 12 at 7-12] Second, Plaintiff argues that the ALJ erred in discounting her credibility in evaluating her pain and subjective complaints. (Id. at 12-15) The Commissioner filed a detailed brief in opposition. [ECF No. 15]

         As explained below, the Court has considered the entire record in this matter. Because the decision of the Commissioner is supported by substantial evidence, it will be affirmed. The undersigned will first summarize the decision of the ALJ and the administrative record. Next, the undersigned will address each of the issues Plaintiff raises in this Court.

         II. Decision of the ALJ

         In a decision dated November 20, 2013, the ALJ determined that Plaintiff was not disabled under the Social Security Act. (Tr. 11-16) The ALJ acknowledged that the administrative framework required him to follow a five-step, sequential process in evaluating Plaintiff’s claim. (Tr. 12-13) At step one, the ALJ concluded that Plaintiff had not engaged in any substantial gainful activity from November 8, 2005 (her alleged disability onset date), to June 30, 2007 (the date on which Plaintiff last met the insured status requirements of the Act). (Tr. 13) At step two, the ALJ found Plaintiff had the following determinable impairments during the relevant time period: diabetes, degenerative disc disease, and obesity. (Id.) The ALJ further concluded, however, that none of Plaintiff’s impairments, either singly or in combination, “significantly limited her ability to perform basic work-related activities for 12 consecutive months; therefore, [Plaintiff] did not have a severe impairment or combination of impairments.” (Tr. 14) Accordingly, the ALJ terminated the sequential evaluation process at step two, finding Plaintiff not disabled. (Tr. 16)

         In making his determination, the ALJ declined to consider evidence regarding Plaintiff’s condition after her date last insured.[2] (Tr. 11) The ALJ also made an adverse credibility finding regarding Plaintiff’s “statements concerning the intensity, persistence and limiting effects of [her] symptoms.” (Tr. 15) In short, the ALJ concluded that Plaintiff failed to support her claim with sufficient, relevant evidence. The ALJ summarized his conclusions as follows:

In terms of [Plaintiff’s] alleged impairments, the only medically determinable impairments that are established by the medical records prior to the date last insured where polycystic ovarian syndrome, alleged right hip pain and some gastrointestinal symptoms to include cramping and diarrhea. [Plaintiff] was given no restrictions and was treated effectively with hydrations and medications. The clinic visits were intermittent and spread over a long period of time. The [Plaintiff’s] entire alleged period of disability was 20 months in duration, and in that period there was a total of five clinic visits … no hospitalizations and no visits to emergency departments…. The examination in December 2006 revealed no tenderness in the low back, and [Plaintiff] complained only of intermittent pain at a point on the posterior iliac crest .... The evidence in [the treatment records from the relevant time frame] contain[] no opinion statements or any function by function analysis of residual work capacity.

(Tr. 15) The ALJ further noted that, although the evidence after Plaintiff’s last date insured showed an increase in her pain, gastrointestinal discomfort, seizure activity, and migraine headaches, such evidence was not relevant to Plaintiff’s claim. (Id.)

         III. Administrative Record

         The administrative record in this matter and includes extensive medical records. The Court has reviewed the entire record, including the evidence covering the relevant time period. The following is a summary of pertinent portions of the record.

         A. The Hearing Before the ALJ

         The ALJ conducted a hearing on November 12, 2013. Plaintiff was present and represented by an attorney. Also present was a vocational expert (“VE”), Darrell W. Taylor, Ph.D. At the outset of the hearing, the ALJ and Plaintiff’s attorney noted that the matter appeared to be a “step five case.” (Tr. 25) Also, Plaintiff's attorney confirmed that Plaintiff’s date of last insured was June 30, 2007. (Id.) Plaintiff s attorney acknowledged that the only medical records in the administrative record that go “back anywhere close to prior to the date last insured” were the treatment records from Cape Physician Associates, dated January 19, 2005, to October 8, 2007. (Tr. 32, 242-51)

         Although the VE testified at the hearing, the ALJ ultimately found Plaintiff not disabled at step two. No party has identified any aspect of the VE’s testimony as being relevant to any of the issues in the present matter. Accordingly, only Plaintiff’s testimony is summarized herein.

         Plaintiff testified primarily in response to questions posed by her attorney, with additional questions interjected by the ALJ. At the time of her hearing, Plaintiff was thirty-nine years old. (Tr. 26) Plaintiff last worked in 2002 as a phlebotomist for a hospital in Cape Girardeau, Missouri. Plaintiff lost her job due to absenteeism allegedly caused by a seizure disorder. (Tr. 27) According to Plaintiff, in July 2001, she began to suffer from a seizure disorder that resulted in the loss of her driver’s license and the ability to travel to and from work. (Tr. 27-28) Plaintiff testified that she has not worked since she lost her phlebotomist job in 2002. When asked to identify the biggest problems that prevented her from returning to work, Plaintiff listed her limited driving ability, her back issues, anxiety, and depression. (Tr. 28)

         Plaintiff indicated that between 2002 and 2005, her currently alleged disability onset date, she had a prior disability claim pending. That claim was denied in or around 2008. (Tr. 26) Plaintiff explained that she did not apply for benefits again until 2012 because she had “just given up.” (Tr. 26-27)

         Plaintiff testified that, although she was taking medications, she still experienced seizures in 2005, 2006, and 2007. (Tr. 29) Plaintiff described her seizures during that time period as being “non-convulsive, ” and that she would have a “staring spell.” (Id.) Plaintiff claimed that she had at least four or five such seizures per month. (Id.) Plaintiff also testified that she experienced migraine headaches related to her seizures during the same time frame. (Tr. 30) Plaintiff reported that the migraine headaches would follow the seizure and last from a short period to the rest of the day in duration. (Tr. 31) Plaintiff testified that sometimes medication helped her with the migraine headaches and sometimes it did not help her. (Id.)

         Plaintiff also testified that, since 1997, she has experienced hip and lower back pain. Plaintiff stated that she originally injured her back at work, and that “it just has progressively gotten worse over the years.” (Tr. 31) During the 2005-2007 timeframe, Plaintiff indicated that she was on pain medication and received injections for her back pain. According to Plaintiff, her treatment only helped her for short periods of time. (Tr. 32-33)

         Plaintiff was also asked about her weight. She indicated that her weight fluctuated a lot. (Tr. 35) The ALJ asked Plaintiff about a doctor’s report that she was walking one and a half miles, three times weekly, riding a bike, and working out on a treadmill. Plaintiff claimed that she only tried to do those activities and was not actually able to do so. (Id.)

         Plaintiff also described problems with controlling her blood sugar, and that she was diagnosed with diabetes in December 2005. (Tr. 36)

         Plaintiff further testified that she was diagnosed with various stomach-related conditions, including irritable bowel syndrome and gastroesophageal reflux disease (“GERD”). According to Plaintiff, she had her gallbladder removed in 1996, and her stomach issues started in 1997. Plaintiff acknowledged that, despite the onset of her stomach problems, she was able to continue working as a phlebotomist. After Plaintiff stopped working, her stomach problems were better at times and worse at times. (Tr. 37) Plaintiff related, however, that her stomach problems resulted in her needing to use the restroom six to eight times on an average day, and up to fifteen times on her worst days. (Tr. 38)

         Plaintiff reported that she has suffered from hypertension and heart palpitations since around 2000 and that her symptoms could occur daily, sometimes lasting for fifteen to twenty minutes. Plaintiff stated that she could control her palpitations by holding ice chips in her mouth, but in severe cases, her husband took her to the hospital. (Tr. 40-41)

         Plaintiff also received treatment for ovarian cysts. According to Plaintiff, she has suffered from this condition since she was a young adult. (Tr. 41)

         Plaintiff described her daily activities and limitations during the 2005-2007 timeframe. She reported that she could not lift anything over twenty pounds, but was able to do some household work, including cooking and cleaning, and she was able to go shopping. Plaintiff indicated, however, that she had some difficulty performing her household chores and sometimes her husband handled shopping and other household duties. (Tr. 34) Plaintiff indicated that she could make her own bed, dress herself, and do some light cooking, but she also had to sit down frequently. Plaintiff stated that she would spend two or three hours to clean a room, because she had to sit down frequently. Plaintiff was able to take care of most of her basic hygiene matters. Plaintiff also occupied her time by watching television and reading. (Tr. 41-44) Plaintiff testified that she was most comfortable reclined, with her feet elevated and that walking or standing too long caused her legs to swell. (Tr. 43-44)

         B. Forms Completed by Plaintiff

         In her Disability Report - Appeal, Plaintiff reported that she is not able to drive “due to the side effects of my medications nor do I have a drivers [sic] license, I do not feel safe being a driver of a licensed vehicle.” (Tr. 227)

         IV. Medical Records and Source Opinion Evidence

         A. General History

         The medical evidence in the record shows that Plaintiff has a history of diverticulitis, hypertension, diabetes mellitus, seizures, hip pain, obesity, back pain, gastroesophageal reflux disease, and polycystic ovarian syndrome.[3] (Tr. 242-358) Although the Court has carefully considered all of the evidence in the administrative record in determining whether the Commissioner’s adverse decision is supported by substantial evidence, only the medical records relevant to the ALJ’s decision and the issues raised by Plaintiff on this appeal are discussed. See also 42 U.S.C. §§ 416(1) and 423(c); 20 C.F.R. § 404.131; Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998); (“In order to receive disability insurance benefits, an applicant must establish that she was disabled before the expiration of her insured status.”).

         B. Care Physician Associates - Dr. Robert ...


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