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Fiala v. Berryhill

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

March 13, 2017

REGINA KAY FIALA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

         Plaintiff Regina Kay Fiala brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the Commissioner's final decision denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.; and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. Because the Commissioner's final decision is not supported by substantial evidence on the record as a whole, I will reverse the decision.

         I. Procedural History

         On August 21, 2012, the Social Security Administration denied Fiala's July 2012 applications for DIB and SSI, in which she claimed she became disabled on May 3, 2012, because of a bulging disc, herniated disc, bipolar disorder, anxiety, depression, numbness in arms and fingers, high blood pressure, neuropathy, migraines, and high cholesterol. At Fiala's request, a hearing was held before an administrative law judge (ALJ) on March 18, 2014, at which Fiala and a vocational expert testified. On June 5, 2014, the ALJ entered a written decision denying Fiala's claims for benefits, finding her able to perform work as it exists in significant numbers in the national economy. On September 8, 2015, after review of additional evidence, the Appeals Council denied Fiala's request for review of the ALJ's adverse decision. The ALJ's decision is thus the final decision of the Commissioner. 42 U.S.C. § 405(g).

         In this action for judicial review, Fiala contends that the ALJ's decision is not supported by substantial evidence on the record as a whole. She argues that the ALJ improperly substituted her own opinion for the medical evidence of record and that the ALJ's assessment of her residual functional capacity (RFC) is not based on substantial evidence, which resulted in an improper hypothetical question being posed to the vocational expert. For the reasons that follow, Fiala's arguments are well taken. I will remand the matter for further proceedings.

         II. Evidence Before the ALJ

         A. Fiala's Testimony

         At the hearing on March 18, 2014, Fiala testified in response to questions posed by the ALJ and counsel.

         At the time of the hearing, Fiala was forty-one years of age. She lives in a condominium with her disabled mother. (Tr. 36.) She stands five feet, eight inches tall and weighs 280 pounds. (Tr. 40.)

         Fiala worked as a hospital nurse from 1995 to February 2003. From 2003 to January 2012, she worked as an RN/case manager in home health care. During that time, she also worked for six months as an RN/assistant director at a nursing home, and for one year as director of nursing for private home care. (Tr. 210.)

         Fiala testified that she has a herniated disc in her thoracic spine that causes muscle spasms and a constant burning sensation in her back. (Tr. 43.) She has difficulty bathing and dressing because of her limited ability to bend over. Her arms also go numb if she lifts them above her head for any length of time. (Tr. 41-42.) She testified that she can lift up to twenty pounds, stand for about two hours before needing to sit, and sit for about one hour without needing to change positions. (Tr. 42-43.) Fiala takes gabapentin, oxycodone, and morphine sulfate for pain, which reduces her pain from a level seven or eight to a level three. The medication makes her extremely drowsy, and she naps every day because of this. Fiala testified that she took and was addicted to opiates while she worked and that, although she did not nap on the job, she would fall asleep while driving. Fiala testified that her employer eventually sent her to get help. (Tr. 44-46.)

         Fiala testified that she also has had migraine headaches since she was a teenager and that she currently has them three or four times a month. The headaches can last from a few hours up to a day or two. She goes to bed when she has a migraine. (Tr. 48.)

         Fiala testified that she also suffers from bipolar disorder and experiences manic and depressive states. She testified that she has been in a deep depressive state for the past year. She was hospitalized in May 2013 for suicidal ideation and currently has suicidal ideation on a weekly basis. She testified that she shuts down during these episodes and does not get out of bed or eat or sleep. She takes medication for the condition but feels it does not work. Fiala testified that her doctors have tried everything except electric shock therapy. (Tr. 46-48.)

         As to her daily activities, Fiala testified that she does not do any cooking; her mother cooks. Fiala does light dusting and sweeping, and she folds laundry. (Tr. 42.) She is able to drive but has difficulty driving more than five miles. She does not drive as much as she used to. (Tr. 44.) Fiala testified that her sleep pattern is currently alright; she gets about six hours of sleep at night. (Tr. 46.)

         B. Vocational Expert Testimony

         Delores Gonzales, a vocational expert, testified at the hearing in response to questions posed by the ALJ and counsel.

         Ms. Gonzales classified Fiala's past work as a registered nurse and as a private duty home health nurse as medium and skilled; as a director of nursing as sedentary and skilled; and as a charge nurse as light and skilled. (Tr. 50-51.)

         The ALJ asked Ms. Gonzales to assume that Fiala was limited to medium work and “should avoid hazardous heights. The claimant is capable of reaching up to shoulder height. She should avoid reaching over shoulder height. She can frequently do stooping, kneeling, crouching and crawling. And she's limited to unskilled work as per her alleged mental impairment, and her continued use of opiates.” (Tr. 51.) Ms. Gonzales testified that Fiala could not perform her past relevant work but could perform medium unskilled work as a dining room attendant or hand packager, and light unskilled work as a ticket taker or usher. (Tr. 51-52.)

         Counsel asked Ms. Gonzales to assume that Fiala was limited to light work and would have three or more absences each month because of her mental illness. Ms. Gonzales testified that no jobs in the national economy would accommodate that rate of absenteeism. (Tr. 52.)

         C. Medical Records

         Because the Regulations provide for the Commissioner to consider a claimant's medical history for at least the twelve-month-period preceding the month in which the claimant's application for benefits is filed, 20 C.F.R. §§ 404.1512(d), 416.912(d), I have reviewed Fiala's medical records for the twelve- month period preceding July 2012. I have also reviewed earlier medical evidence to place in context the effect of Fiala's impairments during the relevant period.

         1. Records dated before July 2011

         As the result of a motor vehicle accident, Fiala underwent anterior cervical discectomy and fusion in February 2002 to resolve herniated nucleus pulposus at the C4-5 and C5-6 levels. Her discharge medications after the surgery included Oxycontin and Valium. (Tr. 1104-05, 1147.)

         In February 2003, Fiala was hospitalized for five days at St. John's Mercy Medical Center for depression and suicidal ideation. Her history of chronic back pain was noted upon her admission. She was diagnosed with major depressive affective disorder and was administered multiple psychotropic drugs and other medication, including muscle relaxants and opiate painkillers. Upon discharge, Fiala was instructed to see a pain management specialist and participate in adult psychiatric care on an outpatient basis. (Tr. 238-325.) She was thereafter admitted to St. John's Mercy Edgewood Program/Behavioral Health for continuation of treatment and medication management. (Tr. 328-65.)

         In May 2004, Fiala was admitted to the emergency room at St. John's Mercy for headaches and eye pressure. Her history of tension headaches, sinus headaches, and migraine headaches was noted. Her history of depression and chronic neck pain was also noted. Fiala was prescribed an antibiotic and Percocet for sinusitis. (Tr. 380-94.) To resolve her chronic sinusitis, Fiala underwent surgery in June 2004 to correct a deviated septum. (Tr. 395-431.)

         Fiala was admitted to St. John's Mercy Medical Center in October 2005 for escalating depression and anxiety. She reported that suicidal thoughts had become more intensive and she wanted to be admitted to a safe environment. Her current medications were noted to include Zoloft, BuSpar, Wellbutrin, Xanax, Restoril, and “double-strength” Vicodin. An adjustment to medication was planned, including a complete discontinuation of Xanax. (Tr. 918-22.)

         Fiala was admitted to Center Pointe Hospital in August 2009 for psychiatric evaluation and for detoxification relating to oxycodone dependence. Fiala questioned why she was there because, while her objective was to get off pain medication, she claimed she had “true pain.” Her current medications included clonidine, Robaxin, Cymbalta, nortriptyline, Zyprexa, lorazepam, Topamax, and Zanaflex. Fiala reported that she obtains relief with oxycodone. It was noted that Fiala had had two psychiatric hospitalizations since 2002 and that she had a history of anxiety and bipolar disorder, with her last manic episode occurring one year earlier. Fiala was diagnosed with opioid dependence and bipolar disorder. She was discharged six days later with instruction to continue with an outpatient treatment program. (Tr. 469-97, 544-45.)

         During Fiala's outpatient treatment, it was noted that she was currently on leave of absence from work because of increased symptoms of irritability, poor sleep, mood swings, and crying spells. She also had recently begun having migraines. (Tr. 533.) Fiala continued her outpatient treatment program through October 15, 2009. (Tr. 543.)

         On October 20, 2009, Fiala was again admitted to Center Pointe for symptoms of depression, anxiety, low mood, somatic complaints, irritability, anger outbursts, feeling on edge, and poor impulse control. Fiala participated in therapy sessions and was discharged the following day. Her discharge medications were Cymbalta, Depakote, Lyrica, Zyrtec, nortriptyline, Singulair, Topamax, Zanaflex, Zyprexa, Ativan, and oxycodone. Her discharge diagnoses included bipolar disorder, opiate dependence, and chronic pain. (Tr. 527-28.)

         Throughout this period, and specifically from February 2004 through March 2011, Fiala visited Dr. Steven Stromsdorfer, a psychiatrist, on no less than sixty-eight occasions for treatment of bipolar disorder. The severity of Fiala's condition waxed and waned over this period. Dr. Stromsdorfer prescribed numerous psychotropic medications and continually adjusted their dosage, given the transient nature of Fiala's impairment. (Tr. 813-32, 847-50, 866-916, 926, 930, 934-46.) These medications included BuSpar, Restoril, Zoloft, Xanax, Ambien, Wellbutrin, phenobarbital, Cymbalta, Rozerem, trazodone, Seroquel, Ativan, Zyprexa, nortriptyline, Halcion, and Abilify. (Tr. 752-60.) Fiala's treatment with Dr. Stromsdorfer continued into the period relevant to the ALJ's determination of disability.

         On May 23, 2011, Fiala visited Donna Waldo, a family nurse practitioner from her primary care physician's office, with complaints of fatigue, bipolar disorder, anxiety, acute onset of migraine headaches, and a six-year history of back pain aggravated by movement. She reported that she currently had back pain, anxiety, and depression. FNP Waldo noted Fiala's medications to include Cymbalta, Xanax, Flexeril, Percocet, Abilify, and Halcion. Physical examination was unremarkable. Fiala was instructed to continue with her current medications. (Tr. 1044-47.)

         On June 28, 2011, Fiala visited Dr. Stromsdorfer who noted her to be depressed and stressed. Her current medications were Cymbalta, Halcion, Xanax, and Abilify. Dr. Stromsdorfer observed Fiala to be dysphoric and to have a depressed and anxious mood and affect. She had no suicidal ideation. Dr. Stromsdorfer noted Fiala's bipolar disorder to have worsened and that she also experienced gastrointestinal and headache symptoms. Dr. Stromsdorfer instructed Fiala to increase her dosages of Xanax and Cymbalta. (Tr. 600.) On that same date, FNP Waldo instructed Fiala to continue with her current treatment regimen regarding all of her impairments. (Tr. 1040-43.)

         2. Records dated July 2011 through June 2012

         Fiala visited her primary care physician, Dr. Brij Vaid, on July 15, 2011, with complaints of migraine headaches. She was in no acute distress.

         Examination of the cervical spine was unremarkable, with Fiala exhibiting no pain and complete range of motion. Normal mobility about the back was noted. Musculoskeletal examination was normal in all respects. Fiala denied having any type of disability, including psychiatric symptoms. Dr. Vaid noted Fiala's mental and emotional status to be within normal limits. Dr. Vaid diagnosed Fiala with back disorder, for which she was taking Percocet; hypertension, for which she was taking Norvasc; migraine headaches, for which she received Sumavel injections; fatigue, for which she was taking Nuvigil and used a CPAP; and mental disorder, for which she was instructed to continue with psychiatric treatment. (Tr. 740-73.)

         Fiala returned to Dr. Stromsdorfer on July 18, who observed her to be dysphoric and tearful. Dr. Stromsdorfer rated Fiala's depression at 10/10 and her anxiety at 10/10. Fiala was instructed to increase her Cymbalta and to maintain her other medications as prescribed. Dr. Stromsdorfer assigned a GAF score of 55. (Tr. 599.) On July 25, Dr. Stromsdorfer noted that Fiala tolerated the medication adjustment. Fiala continued to complain of mood swings, but she had improved. Dr. Stromsdorfer rated Fiala's depressed and anxious moods at 4/10 and assigned a GAF score of 60. Fiala was instructed to continue on her medication as currently prescribed. (Tr. 598.)

         Fiala returned to Dr. Vaid on July 27 for follow up of her migraines, hypertension, bipolar disorder, and anxiety. Fiala had been noncompliant with her hypertension medication, and she experienced visual disturbances. She reported her migraines to be getting worse. Examination showed no change from her earlier exam. Fiala was continued on her medications. (Tr. 735-38.) Fiala visited her primary care physician's office six more times during the remainder of 2011. No changes in ...


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