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Dean v. Berryhill

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

March 17, 2017

DIONESE DEAN, Plaintiff,
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.



         This action is before the court for judicial review of the final decision of the Commissioner of Social Security that plaintiff Dionese Dean is not disabled under Title II or Title XVI of the Social Security Act and is thus not entitled to disability insurance benefits (“DIB”), 42 U.S.C. §§ 401 et seq., nor supplemental security income (“SSI”). 42 U.S.C. §§ 1381-1383(f). For the reasons set forth below, the decision of the Commissioner is affirmed.

         I. BACKGROUND

         Plaintiff applied for DIB and SSI in August 2012, ultimately alleging a disability onset date of March 15, 2013. (Tr. 131-43, 167). Her initial claims were denied on November 1, 2012. (Tr. 71-75). Plaintiff filed a timely written request for a hearing on November 9, 2012. (Tr. 78). She testified before an administrative law judge (“ALJ”) on April 22, 2014. (Tr. 24). On August 27, 2014, the ALJ determined plaintiff was not disabled. (Tr. 9-19).

         The ALJ decided that while plaintiff has severe impairments and is unable to perform her past relevant work (“PRW”), considering her residual functional capacity (“RFC”), there are jobs in significant numbers in the local and national economies plaintiff could perform. (Tr. 12-19). Plaintiff filed a timely request for review on October 1, 2014, which the Appeals Council denied on December 8, 2015. (Tr. 1-7). The decision of the ALJ therefore stands as the final decision of the Commissioner of Social Security. Plaintiff filed for judicial review of this decision on January 12, 2016, arguing that it is not supported by substantial evidence.

         A. Medical Record and VE Information

         Plaintiff was born on March 29, 1984. (Tr. 67-68). She first complained of low back pain at Grace Hill Health Center on August 20, 2012. (Tr. 242). At the time, she described the back pain as an ache that was aggravated by daily activities, lying and resting, running, sitting, and standing. (Tr. 242). While plaintiff claimed that the pain had been worsening the past three months, the pain was relieved by constant movement. (Tr. 242). She weighed 174 lbs. at the time with a body mass index (“BMI”) of 28.95. (Id.). Nurse Practitioner Brook Strickland prescribed Flexeril for plaintiff's back muscle spasms and Naprosyn for her pain and inflammation. (Tr. 243). Ms. Strickland ordered an x-ray of plaintiff's back, which showed a mild curvature of the lumbar spine. (Tr. 243, 408). Plaintiff was diagnosed with lumbago with sciatica. (Tr. 408).

         On September 13, 2012, plaintiff sought treatment at Grace Hill for lower back pain. (Tr. 290). She was referred for a CT scan with contrast of her lumbar spine. (Tr. 292-93).

         On November 15, 2012, Ms. Strickland of Grace Hill again saw plaintiff for low back pain, gastroesophageal reflux disease (“GERD”), allergies, and dyspnea. (Tr. 294). Plaintiff was again diagnosed with lumbago with sciatica, for which she was still waiting for a CT scan. (Tr. 294-96). Plaintiff was instructed to continue taking Gabapentin, which she reported as relieving her symptoms; Naproxen; and an increased dosage of Flexeril. (Tr. 294-96). She reported that the pain was an ache and throbbing feeling and was aggravated by sitting and standing. (Tr. 294). For GERD, plaintiff was instructed to take Ranitidine, and for the allergies Claritin. (Tr. 296). Lastly, plaintiff's Advair prescription was decreased, but she was instructed to continue using it daily and to start Albuterol as a rescue inhaler. (Id.). At the time of this visit, plaintiff weighed 209 lbs. and had a BMI of 34.78. (Tr. 295).

         On February 5, 2013, plaintiff returned to Grace Hill for back pain, GERD, asthma, allergies, tachycardia, and hypertension. (Tr. 303-05). Plaintiff was instructed to continue the same medications for the GERD and lumbago with sciatica. For plaintiff's asthma, she was instructed to continue to use Advair and use the Albuterol inhaler once a day. (Tr. 305). Ms. Strickland referred plaintiff to an ears, nose, and throat doctor, as the Claritin was not helping plaintiff with her allergies. Plaintiff was prescribed hydrochlorothiazide (“HCTZ”) for the swelling of her feet and legs (edema) and Metoprolol for her tachycardia. (Id.). At the time of this visit, plaintiff weighed 231.4 lbs. and had a BMI of 38.50. (Tr. 304). Ms. Strickland set a goal for plaintiff to abide by the DASH diet.[2] (Tr. 302).

         On February 7, 2013, plaintiff visited an orthopedic doctor on referral from Ms. Strickland. (Tr. 309). The orthopedic doctor reported both that plaintiff had noticed “significant improvement in pain with Gabapentin” while also claiming that she had experienced “worsening pain over last 6 months.” (Tr. 310). Plaintiff was again seen at Grace Hill on February 20, 2013, for hypertension, tachycardia, lumbago with sciatica, and a vitamin D deficiency. (Tr. 314). Ms. Strickland prescribed the same treatments, except she increased the Gabapentin and educated plaintiff on her vitamin D deficiency. (Tr. 310). At this time Ms. Strickland specifically noted plaintiff showed no evidence of depression. (Tr. 317).

         On April 3, 2013, Joseph Williams, M.D., of St. Louis Connect Care recommended plaintiff take Cymbalta for a month or two and return for a follow-up. (Tr. 404-05). Additionally, he noted there were no obvious abnormalities in her back visible in an x-ray, but he recommended she obtain copies of her MRI and CAT scans. (Tr. 404).

         On April 10, 2013, plaintiff was seen at Grace Hill by Vani Pachalla, M.D., for hypertension, edema, and back pain. (Tr. 319-20). Plaintiff's instructions were to continue her medications as prescribed, increase her activity level, and continue with the DASH diet as a goal. (Tr. 319).

         On April 24, 2013, plaintiff was seen at St. Louis Connect Care, where she had a follow-up to review the MRI of her back. At the time, her BMI was 45.4, which Dr. Williams noted met the Federal Government Standards for morbid obesity. (Tr. 407). Dr. Williams opined that “there is nothing on her MRI or [her] physical examination that would account for her back pain.” (Tr. 407). In order for plaintiff to relieve her back pain, Dr. Williams “recommended a diet and exercise and doing a job where she does something 8 hours a day instead of sitting around and eating.” (Tr. 407).

         On May 13, 2013, plaintiff went to Missouri Baptist Medical Center with complaints of a rapid heartbeat and chest pain. (Tr. 270). She rated her pain as 7/10 but was observed giggling and joking with her husband and the nurse while being examined. (Tr. 280-81). Tests administered that day did not reveal an official diagnosis, but it was noted that plaintiff had tachycardia unspecific and chest pain atypical. (Tr. 279).

         On May 20, 2013, at a follow-up with Grace Hill, plaintiff was referred to both a cardiologist and a nutrition counselor by Nurse Practitioner Judith Gallagher, with tachycardia and weight gain listed as assessments. (Tr. 324-26). At this visit, plaintiff weighed 249 lbs. and her BMI was 41.53. (Tr. 327).

         On August 28, 2013, at a follow-up at Grace Hill, plaintiff again complained of hypertension, allergies, asthma, GERD and back pain. (Tr. 333). David Richards, M.D., did not change any medication. (Tr. 334-35). Plaintiff weighed 260.80 and had a BMI of 43.39. (Tr. 334). On September 12, 2013, Dr. Richards restricted plaintiff's permitted activity to walking or standing only occasionally and to alternating between sitting and standing due to the increase in edema in her legs. (Tr. 345). Specifically, Dr. Richards noted plaintiff “should not stand for long periods of time” and “may require frequent sit down periods due to increase[d] edema in legs.” (Tr. 346).

         On October 17, 2013, plaintiff was referred to Washington University in St. Louis' Multidisciplinary Sleep Medicine Center for a sleep study, due to her snoring and difficulty sleeping. (Tr. 396). Plaintiff was evaluated and the suggested potential treatments for both restless leg syndrome and obstructive sleep apnea were “positive airway pressure, oral prosthesis, surgery, Provent adhesive nasal valves, and weight loss.” (Tr. 398). Additionally, it was noted that the insomnia was psychophysiological, “likely triggered by prior shift work and caregiver role in her mother's recent illness.” (Tr. 398).

         On December 2, 2013, plaintiff returned to Grace Hill with severe back pain. (Tr. 350-51). Plaintiff then weighed 263.4 lbs. and had a BMI of 43.83. (Tr. 362). On December 31, 2013, Dr. Richards saw plaintiff at Grace Hill for a follow-up on her severe back pain. (Tr. 368). Dr. Richards kept all of plaintiff's medication the same, including the goal of the DASH diet, but also added the goal of losing 75 lbs. by the upcoming summer. (Tr. 368-71). At this appointment, plaintiff weighed 268.8 lbs. and had a BMI of 44.69. (Tr. 370).

         On January 7, 2014, plaintiff was seen for a comprehensive eye exam after complaining of gradually worsening blurry vision in both eyes. (Tr. 377). Plaintiff was given a new eye glasses prescription as well as instructed to take out her contacts nightly to clean them instead of wearing them when she slept, as this was likely the cause of her corneal scars that seemed to cause her blurry vision. (Tr. 381).

         On January 8, 2014, plaintiff was seen at Washington University in St. Louis School of Medicine's Cardiovascular Division. (Tr. 399). Plaintiff was diagnosed with morbid obesity, hypertension, asthma, possible obstructive sleep apnea, physical deconditioning, probable diastolic congestive heart failure, and atypical chest pain. (Tr. 399). Plaintiff was advised to exercise lightly daily and to lose weight. (Tr. 400, 403). At this time, plaintiff weighed 264 lbs. (Tr. 400).

         On July 20, 2014, VE Robin A. Cook, Ph.D., CRC submitted written answers to a written questionnaire. (Tr. 217-25). In this document the ALJ described this hypothetical person:

7. Assume a hypothetical individual who was born on March 29, 1984, has at least a high school education and is able to communicate in English as defined in 20 CFR 404.1564 and 416.964, and has work experience as described in your response to Question #6 [, which listed four jobs]. Assume further that this individual has the residual functional capacity (RFC) to perform sedentary work as defined in 20 CFR 404.1567(c) and 416.967(c) except she can sit for approximately 15 minutes at a time before standing briefly to reposition before sitting back down. She would be able to remain on task while repositioning.

(Tr. 224).[3]

         Cook stated that a hypothetical individual with plaintiff's age, education, experience, and RFC would not be able to perform plaintiff's previous relevant work. (Tr. 224-25). When asked if there are jobs in the national economy this hypothetical individual could perform, the VE replied ...

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