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Adair v. Berryhill

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

January 25, 2017

DEBRA S. ADAIR, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER [2]

          JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE

         Debra S. Adair (“Plaintiff”) appeals the decision of the Commissioner of Social Security (“Defendant”) denying her application for disability benefits under the Social Security Act. See 42 U.S.C. § 401 et seq. Because the decision is supported by substantial evidence and correctly applies the governing law, it is AFFIRMED. See 42 U.S.C. § 405(g).

         I. Background

         A. Procedural History

         At the time of her application for disability benefits, Plaintiff was 47 year old and alleged disability based upon Reflex Sympathetic Dystrophy (“RSD”), a chronic pain syndrome, affecting her right foot. (Tr. 191, 236) Plaintiff's RSD resulted from a work accident. In February of 2009, Plaintiff was employed as an animal cruelty investigator in New Jersey when a doghouse fell on her right foot. (Tr. 357) Plaintiff stopped working after this accident due to excessive pain in her right foot.

         As a result of her injury, Plaintiff protectively applied for disability benefits on July 20, 2012. (Tr. 222) Plaintiff's initial application was denied on November 6, 2012. (Tr. 108-112) Plaintiff then requested a hearing before an administrative law judge (“ALJ”) to contest this decision. At the hearing[3], Plaintiff appeared (with counsel), and testified concerning the nature and extent of her disability and her symptoms. (Tr. 31-60) After hearing Plaintiff's testimony and examining the objective medical evidence, and after taking testimony from a vocational expert (“VE”), the ALJ issued a decision, dated May 19, 2014, denying benefits. (Tr. 10-22) Plaintiff then sought review of the ALJ's decision, but the Appeals Council denied review. (Tr. 1-3) The case is thus properly before this Court. See 42 U.S.C. § 405(g).

         B. Medical Background[4]

         As noted above, Plaintiff's injury resulted from a workplace accident in February of 2009 when a doghouse fell on Plaintiff's foot. After the injury, Plaintiff went to an urgent care clinic. At the clinic, x-rays revealed no fracture in the foot, and Plaintiff was released with a prescription for pain-killers and a Cam Walker. (Tr. 349-50) Shortly thereafter, Plaintiff began treating with podiatrist Jimmy Trang, D.P.M. Plaintiff underwent several diagnostic tests in the subsequent months with mixed results. For instance, a magnetic resonance imaging (“MRI”) test from March 19, 2009 revealed a stress fracture at the base of the 5th metatarsal; but a follow-up MRI on June 10, 2009 revealed no evidence of fracture, (Tr. 517, 355), and a Computerized Tomography (“CT”) scan on August 13, 2010, showed complete healing of the prior metatarsal fracture with no acute abnormality. (Tr. 569) By December of 2010, there were “no findings in the area of concern.” (Id.)

         Plaintiff continued to report pain to her doctors, however, and she began seeing pain specialists. Dr. Luvell Glanton, M.D., noted that multiple diagnostic tests were negative for any abnormalities, and started Plaintiff on lumbar sympathetic blocks to deal with her pain, as opposed to pain medications. (Tr. 420-21, 427) Plaintiff initially reported that this procedure left her with “0/10 pain.”[5] (Tr. 427) Shortly thereafter, in July of 2011, Plaintiff began seeing pain specialists at Barnes Jewish Hospital due to continuing pain. She underwent a series of additional lumbar sympathetic blocks, which led to some relief, but Plaintiff complained that the relief was short-lived. (See Tr. 445, 450, and 461) Plaintiff's doctors identified her as “an excellent candidate” for a “10-week multidisciplinary pain management program, ” but there is no evidence that Plaintiff ever followed up with that recommendation. (Tr. 454)

         During this time, Plaintiff was pursuing a Worker's Compensation claim, and in the course of this process, Plaintiff was referred to another pain specialist, Dr. Suresh Krishnan, M.D. (Tr. 586) Dr. Krishnan examined Plaintiff in December of 2011, and concluded that Plaintiff “likely has [RSD]”. (Tr. 591) Dr. Krishnan recommended that Plaintiff undergo a spinal cord stimulator trial after ten weeks of physical therapy with biofeedback and deconditioning exercises for the foot. (Id.) Plaintiff did not follow up with this advice, however, and did not seek any regular treatment for her right foot throughout 2012, other than presenting to emergency rooms a couple of times, complaining of pain. (Tr. 468, 554, 535) Each of these times, Plaintiff was asked to follow up with her primary care doctor, but there is no evidence she did so. Each time, Plaintiff requested-and was prescribed-narcotic pain medication. (Id.)

         Plaintiff finally followed up with Dr. Krishnan in January of 2013. At that point, Dr. Krishnan suggested that Plaintiff undergo further diagnostic testing, and physical therapy. There is no evidence that Plaintiff followed up with the testing or physical therapy recommendations at that time.[6] Instead, Plaintiff received prescriptions for Vicodin, both from Dr. Krishnan, and from a “walk in clinic for pain.” (Tr. 584, 642) Dr. Krishnan continued to recommend that Plaintiff go forward with a spinal cord stimulator trial, which Plaintiff eventually agreed to pursue. Since February of 2013, Plaintiff has undergone two such trials, which she claims made the pain worse. (Tr. 615, 620) Subsequently, Plaintiff was treated with pain medications and additional ankle block procedures.

         C. ALJ's Decision

         In deciding Plaintiff's case, the ALJ applied the familiar five step test for determining disability applications. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her initial injury. (Tr. 12) At step two, the ALJ found that Plaintiff's RSD qualified as a severe impairment.[7] (Id.) The ALJ also found that Plaintiff suffered from various non-severe impairments, including degenerative disc disease, third right digital interphalangeal joint arthropathy, affective disorder, and anxiety disorder. (Id.) At step three, the ALJ found that Plaintiff did not suffer from any impairment(s) that met or medically equaled the severity of a listed impairment found at 20 C.F.R. Part 404 Subpart P, Appendix 1. (Tr. 13)[8]

         Before arriving at step four, the ALJ reviewed the entire record and concluded that Plaintiff retained the residual functional capacity (“RFC”) to:

perform a range of medium work as defined in 20 CFR 404.1567(b) except that she is able to lift and carry up to 50 pounds occasionally and 25 pounds frequently. She is able [to] stand and/or walk for approximately 3 hours per 8hour day for 20 minutes at a time and sit for approximately 6 hours per 8-hour day for 45 minutes at a time with normal breaks. She can climb ramps and stairs frequently, but never climb ladders, ropes or scaffolds. She can balance occasionally and stoop, kneel, crouch and crawl frequently. She must avoid exposure to extreme cold and concentrated exposure to vibration. She must avoid hazardous machinery, defined as unshielded moving machinery. She must avoid exposure to unprotected heights. The claimant must be able to elevate her foot no more than 18 inches during normal breaks.

(Tr. 14)

         In making this finding, the ALJ made several credibility findings and evaluated several pieces of medical opinion evidence. For example, the ALJ found that Plaintiff's statements concerning intensity, persistence, and limiting effects of her symptoms were “not fully credible.” (Tr. 15) In substance, Plaintiff testified that she was unable to work due to pain and swelling in her foot. She said that, while the pain mainly centers in the middle of her right foot, on bad days, the pain radiates to her ankle, knee and back. Plaintiff testified that this happens every two to three weeks, and that when it occurs, she has to lie on her bed and elevate her leg. (Tr. 44) Plaintiff argued that this precludes her ability to work.

         The ALJ found Plaintiff's statements regarding her symptoms to be not fully credible in light of numerous inconsistencies in the record. (Tr. 15) The ALJ took specific note of Plaintiff's rather extensive activities of daily living, which included a variety of household chores as well as caring for twelve horses, cleaning stalls, and horseback riding. Plaintiff also was able to shop for herself, including walking for more than an hour at a time, work on a computer, swim, play games with her stepson, and attend concerts and horse shows. (Tr. 15-16) The ALJ also noted that Plaintiff was not compliant with treatment recommendations. Plaintiff continued to smoke despite being advised that smoking increases chronic pain. (Tr. 16) Similarly, the ALJ identified several instances in which Plaintiff presented for pain medications at various emergency rooms, but did not follow-up with her primary care physician as directed. (See, e.g., Tr. 18) The ALJ further identified clinical and objective medical evidence that was inconsistent with Plaintiff's subjective statements, including imaging and other studies that showed no acute abnormality in her foot. (Tr. 16-17)

         As to the medical opinion evidence, the ALJ discounted the opinion of Dr. Suresh Krishnan, M.D., (Tr. 19), who treated Plaintiff's pain, and who opined that this pain limited her functional abilities and activities of daily living. (Tr. 722-25) Next, the ALJ gave “significant weight” to the opinion of Dr. Colleen Ryan, M.D., a state agency medical consultant, who opined that Plaintiff was capable of light work, except for a limitation to four hours of walking per eight hour workday. (Tr. 579) The ALJ altered this finding somewhat in her RFC, holding that, based on Plaintiff's admissions, she was capable of lifting more weight than Dr. Ryan thought. The ALJ thought Plaintiff capable of lifting fifty pounds. (Tr. 19-20)

         The ALJ also discussed the medical opinion evidence of Dr. Maureen Gottfried, D.O., and Dr. Jeffrey Petersohn, M.D., both of whom evaluated Plaintiff in connection with Plaintiff's application for Worker's Compensation. Dr. Gottfried thought Plaintiff “would benefit from further evaluation and treatment by pain medicine as opposed to further treatment by neurology.” (Tr. 373) Dr. Petersohn opined that it was uncertain whether there could be sufficient medical improvement with sufficiently few side effects to allow Plaintiff to return to work. (Tr. 386) The ALJ gave these opinions “little weight” because they were evidence adduced in the course of Worker's Compensation claims, and were not submitted in relation to Plaintiff's Social Security claim, and therefore, not sufficiently relevant. (Tr. 19)

         At steps four and five, the ALJ relied on the testimony of VE Gary Weimholt. The ALJ posed a series of hypothetical questions to the VE, some of which included limitations consistent with the RFC included in the ALJ's written decision. Relying on the VE's testimony, the ALJ concluded that Plaintiff could not return to her past work as an animal cruelty investigator, but that there were other jobs in the national and regional economy that Plaintiff could still perform, including sales clerk, telephone solicitor, and receptionist. (Tr. 21, 66-71) Each of these jobs would be semi-skilled and performed at either the light or sedentary level. Because Plaintiff could engage in work that was available in the national economy, the ALJ held that Plaintiff was not disabled.[9] (Tr. 21) Plaintiff then sought review of the ALJ's decision, but the Appeals Council denied review. (Tr. 1-3)

         D. Issues Before This Court

         Before this Court, Plaintiff makes three arguments for reversal. First, Plaintiff argues that the ALJ erred by placing disproportionate weight on her activities of daily living as a reason for denying benefits. (ECF No. 20 at 8-10) Plaintiff argues the ALJ selectively quoted testimony of what Plaintiff can do on “good days, ” without noting Plaintiff's contentions that she was much more limited on “bad days.” This broadens into a wider issue with the ALJ's credibility analysis. (See ECF No. 20 at 9) (“Furthermore, the ALJ failed to properly credit Plaintiff's subjective complaints of pain, all of which were consistent with the objective medical evidence.”) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th 1984)). Next, Plaintiff argues that “[t]he RFC is not based upon substantial evidence and lacks medical support.” (ECF No. 20 at 10) This includes two separate arguments. First, Plaintiff alleges that there is not sufficient medical evidence to support the RFC. (ECF No. 20 at 10-12) Second, Plaintiff alleges that the ALJ failed to give sufficient reasons for discounting Dr. Krishnan's opinion. (ECF No. 20 at 12-13) Defendant responds by arguing that the ALJ's findings are supported by substantial evidence.

         II. Standard of Review and Analytical Framework

         “To be eligible for [disability] benefits, [Plaintiff] must prove that [she] is disabled .…” Baker v. Sec'y of Health and Human Servs., 955 F.2d 552, 555 (8th Cir. 1992); see also Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). A disability is defined as 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A claimant will be found to have a disability “only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423 (d)(2)(A) and 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

         Per regulations promulgated by the Commissioner, the ALJ follows a five-step process in determining whether a claimant is disabled. “During the process the ALJ must determine: ‘1) whether the claimant is currently employed; 2) whether the claimant is severely impaired; 3) whether the impairment is, or is comparable to, a listed impairment; 4) whether the claimant can perform past relevant work; and if not 5) whether the claimant can perform any other kind of work.'” Andrews v. Colvin, 791 F.3d 923, 928 (8th Circ. 2015) (quoting Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)). “If, at any point in the five-step process the claimant fails to meet the criteria, the claimant is ...


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