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Suter v. Berryhill

United States District Court, W.D. Missouri, Western Division

April 25, 2017

DANIELLE M. SUTER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          NANETTE K. LAUGHREY United States District Judge

         Plaintiff Danielle M. Suter appeals the Commissioner of Social Security's final decision denying her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The decision is affirmed.

         I. Background

         Suter was born in 1978 and alleges a disability onset date of 10/10/2011. Her date last insured was 6/30/2015. The Administrative Law Judge denied her application on 3/8/2013 and the Appeals Council denied her request for review on 1/4/2016.[1]In this appeal, Suter challenges the weight the ALJ gave certain opinion evidence, and the ALJ's assessment of the effect of her obesity and of her credibility. Suter also challenges the ALJ's findings at Step 5 of the sequential analysis.

         A. Medical history

         In October 2011, Suter complained to her primary care provider of fatigue and all-over body pain. Labs were negative for autoimmune diseases but reflected high C-reactive protein levels. She was prescribed asthma medication. At a November 2011 visit, she complained of low back pain and muscle aches and said she was concerned that she had lupus. Her doctor assessed myalgia and referred her for rheumatology and neurology consults. At a December 2011 visit, she complained of trouble walking and shortness of breath. Labs reflected high C-reactive protein levels. An echocardiogram was normal. Tr. 317-18. Suter's C-reactive protein was high in January 2012.

         Suter saw Shannon Kohake, M.D., a neurologist later February 2012. Suter complained of weakness, muscle spasms and pain, and poor concentration and memory loss. Under Plan, Dr. Kohake noted, "Overall, the patient's exam was unremarkable except for some pain limitation in muscle strength testing of the right hip flexor related to obvious pain in the region." Tr. 297. The doctor recommended MRIs of the brain given Suter's complaints of memory difficulties and word-finding, and of the cervical and lumbar spine, due to complaints of muscle weakness, spasms, and gait disturbance. The doctor also recommended a nerve conduction study and some labs.

         Suter had the nerve conduction study (of all limbs) the day after she saw Dr. Kohake. Steven Koss, M.D., a neurologist, concluded that the findings were all normal except for "mild" findings at the right wrist consistent with the clinical diagnosis of carpal tunnel syndrome. "There [was] no evidence of other mononeuropathies, large fiber peripheral neuropathy, lumbosacral/cervical neuropathy, or myopathy." Tr. 292. The MRIs of Suter's brain, cervical spine and lumbar spine were normal, except for a finding of some degenerative changes in the apophyseal joints at ¶ 4-L5 and L5-S1.

         In March 2012, Suter had her first visit with a rheumatologist, Arnold Katz, M.D. She told the doctor that she had had pain in her hips, legs, chest, and heart area since October 2011, was nauseated and spent a lot of time in bed. She was concerned that she might have lupus or multiple sclerosis. Dr. Katz noted that Suter had had negative autoimmune testing, and an MRI of her brain and extensive neurological work up were normal, and that her neurologist did not feel her symptoms were related to a neurological disorder. Dr. Katz also noted Suter's diagnosis of fibromyalgia, Suter's complaint that she sometimes could not move her right leg because it felt "paralyzed" and her normal lumbar MRI. Tr. 304. After examining Suter, Dr. Katz's assessment was active fibromyalgia, fatigue, persistent nausea, obesity, hematuria, asthma, insulin-dependent diabetes, rosacea, and depression. The doctor explained to Suter that she had classic signs and symptoms of fibromyalgia. Based on her negative autoimmune bloodwork and in the "absence of hard features suggesting lupus, " he did not believe she had lupus or "any other classic connective tissue disease." Tr. 308. He also noted that "[t]here are multiple reasons for an elevated C-reactive protein [level], and [Suter's] elevations [were] not particularly high, " so he did not feel they were "representative of any underlying connective tissue disease." Id. He ordered lab tests and a chest x-ray, and started a trial of gabapentin for pain.

         Suter saw Melissa Rosso, M.D., a primary care provider, in May 2012, reporting "a myriad physical complaints." Tr. 358. On exam, Dr. Rosso noted memory recall of two out of three words, decreased temperature sensation in Suter's previously injured ankle, proximal weakness greater than distal weakness in the limbs, and some reduction in flexion and extension of the joints bilaterally. The doctor also noted a rash on Suter's face in a butterfly-shaped distribution. Tr. 359. Dr. Rosso's Assessment was chronic pain. She noted that Suter's symptoms were not entirely consistent with fibromyalgia and that she suspected an autoimmune disorder. Under Plan, Dr. Rosso noted that Suter should continue gabapentin and NSAIDs, and would be referred to KU to establish care in the Family Medicine Clinic, and then obtain a rheumatology consult at KU.

         In July 2012, Suter saw Elizabeth Gerstner, M.D., a primary care physician, to reestablish care. Dr. Gerstner noted no abnormalities on physical exam. Suter was interested in medical marijuana for her fibromyalgia. The doctor declined to prescribe it because it was not a typical treatment, and recommended that Suter continue her current medication. The doctor noted that Suter had failed trials of antidepressants in the past and recommended that Suter consider a psychiatric consult.

         Suter had a follow-up appointment on 7/25/2012 with Dr. Kohake, the neurologist, for muscle pain and myalgias. The doctor noted that Suter's MRI results were largely normal and her rheumatology work up was negative. Suter said her concentration was a bit worse and that she had difficulty with sleep, which she related to Dr. Katz's prescription of gabapentin for pain. Physical exam was normal except that the doctor could not obtain reflexes in the lower extremities and there was some give-way weakness. Also, Suter gave poor effort on the motor exam. Dr. Kohake's Assessment was subjective muscle weakness, myalgias, muscle spasms, gait disturbance, and memory difficulty. Under Plan, Dr. Kohake noted that the etiology of Suter's symptoms was unclear, "however, we have not found a neurologic cause." Tr. 364. The doctor discussed neuropsychological testing for Suter's memory complaints and suggested that she check with her insurance. The doctor also discussed different medication options for Suter's pain, but Suter was reluctant to try new ones because of past adverse effects on her mood. Finally, Dr. Kohake recommended therapy for treatment of Suter's depression.

         In September 2012, Suter saw a rheumatologist, Celso Raul Velazquez, M.D., on referral from Dr. Spurlock. Suter told him that she had severe pain and achiness in her thighs and calves when she walked, and she could not use stairs; had severe, daily low back pain; and had tingling and weakness in her hands and feet, and weakness in her shoulders. The doctor noted on physical exam that Suter had decreased strength, but her "effort [was] inconsistent" and she had multiple fibromyalgia tender points. Tr. 383. Her joints were cool with normal range of motion and no swelling. Dr. Velazquez's Assessment included myalgias, polyarthralgias, "multiple symptoms that I cannot explain, " and "[s]ome ... symptoms suggest[ing] fibromyalgia[]" Id. He further noted, "I do not think she has lupus or another autoimmune rheumatic disease because she has no skin, joint, kidney or hematological abnormality to support this diagnosis." Id. He recommended "a second opinion from another neurologist." Id.

         In October 2012, Suter saw a gastroenterologist, Gregory Barber, M.D. with complaints of bloating and diarrhea. The doctor's Impression was gastroesophageal reflux disease, abdominal bloating, and diarrhea. He prescribed Levbid and Zantac. A gastric emptying study was normal.

         Suter had a hysterectomy in December 2012.

         On 3/6/2013, Suter saw Yvonne Spurlock, D.O., a primary care physician. Suter said she thought she had lupus and wanted Dr. Spurlock to diagnose her with and treat her for it. Dr. Spurlock said she would order labs, but was not comfortable making the diagnosis. The doctor also explained that the treatment had serious side effects. She recommended that Suter pursue a support group or another opinion from another specialist.

         Suter saw Dr. Spurlock again on 3/20/2013. Suter complained of a lot of all-over pain, and said she was very depressed and had been "suicidal a couple of days ago, " but was not currently. Tr. 986. She said she had not seen a psychiatrist in some time but needed to, to document that she had tried multiple antidepressants since childhood and that they did not work. Dr. Spurlock said she would arrange for a psychiatric evaluation and provided Suter with records.

         On 3/27/2013, Suter was seen at the MU Center for Rheumatology by C. Siva, M.D., for a "4th opinion on fibromyalgia vs lupus diagnosis." Tr. 889. Her chief complaint was "extreme pain everywhere[.]" Id. Dr. Siva reviewed Suter's medical records and test results. He noted facial flushing and diffuse allodynia and myofascial tenderness on physical exam. Under Assessment and Plan, he stated that he had reassured Suter there was "no objective evidence for" rheumatoid arthritis or lupus, and that the non-specific anti-inflammatory markers could be due to other medical conditions such as obesity and diabetes. Tr. 891. He suggested she try increasing her clonazepam dosage for pain, but she said it would be too sedating and asked about Vicodin. Dr. Siva suggested she talk to her primary care provider about Vicodin. He noted that she had a pending appointment with a psychiatrist and suggested she try different medications while under his supervision. He also gave her materials about self-management of chronic, widespread pain. Id.

         In July 2013, Suter saw Dr. Spurlock with complaints of pain. The only finding on physical exam was mild swelling in the legs. Dr. Spurlock's Assessment was chronic pain, chronic diarrhea, chronic nausea, uncontrolled diabetes mellitus, fibromyalgia, and depression and anxiety. Under Plan, the doctor noted that Suter would continue to see her psychologist. The doctor also recommended "possibl[e] shock therapy." Tr. 969. Suter said that her psychologist said it was "not appropriate for" her. Id. Suter did not want to try any medications such as Neurontin or antidepressants due to past reactions. Dr. Spurlock ordered labs.

         Suter returned to Dr. Barber, the gastroenterologist, in August 2013. The doctor suspected inflammatory bowel disease. The results of an esophagogastroduodenoscopy and a colonoscopy were normal.

         In September 2013, Suter returned to Dr. Katz, the rheumatologist, with complaints of pain and low-grade fever. He noted no edema in the extremities and that Suter's "last [complete blood count] was fine." Tr. 950. Her temperature was normal. Dr. Katz's Assessment was fibromyalgia, resistant to usual treatments; unexplained low grade fever; insomnia; fatigue; and depression. Under Plan, he noted that he would obtain an infectious disease consultation and pain management evaluation, and prescribed Dolobid for pain.

         Later the same month, Suter saw Dan Hancock, M.D. at the Centerpoint Medical Center pain clinic. Under History, Dr. Hancock noted that Suter:

[P]resents with a complex and convoluted past medical history. She presents with the dreaded complaint of "constant pain all over my body." She states that since she was diagnosed with fibromyalgia in 2003, she has had "head to toe pain which feels as though I am being crushed all over my body."

Tr. 931. Findings on physical exam were all normal, except that Suter identified tenderness at 18 of the 18 tender points designated by the American Rheumatological Association, including multiple soft tissue locations. The doctor noted that in filling out the intake questionnaire, Suter had marked 16 of the 17 pain descriptors. He noted that individuals who select more than 7 descriptors are those "who tend to over-magnify and are prone to somatoform disorders." Tr. 933. Dr. Hancock further wrote:

Note should also be made that although this patient does express a certain degree of frustration about the inability of medical personnel to identify the cause of her painful symptoms, the more she discusses her underlying symptoms, the more she appears to obtain some sense of enjoyment or pleasure that she has been able to "stump" as many physicians as she has, because she states that none of the doctors that she has seen have been able to provide her with any answers as to why she has experienced these painful symptoms.

Id. Dr. Hancock's Impressions included "chronic pain syndrome, etiology undetermined, " morbid obesity, "fibromyalgia-type symptoms, " clinical depression, obsessive/compulsive disorder, right carpal tunnel syndrome, and GERD. Id. Under Plan, the doctor stated that he had had a long discussion with Suter and her mother, and informed them that he had "nothing to offer...for the treatment of Suter's "chronic pain syndrome." Id. He told them that Suter's complaint of pain "over every square inch of her body" was not amenable to any type of interventional therapy. Id. He considered that she had tried "the gamut" of multiple antidepressants, anti-inflammatory, and anti-neuropathic pain medications and that she had stated she was intolerant of all of them. He did not recommend opioids. He did recommend cognitive behavioral therapy, which in his opinion "offered the greatest likelihood of success in treating [her] underlying condition." Tr. 934.

         Suter saw Daniel Geha, M.D., in October 2013 for an infectious disease consultation, and with complaints of a 10-day, low-grade fever and pain. Her temperature was 98.8° F. Dr. Geha's Assessment was unspecified myalgia and myositis; malaise and fatigue; fever, unspecified; and insomnia, unspecified. Tr. 1011. He also noted chronic fatigue with fibromyalgia, "[n]o other etiology established at this time[, ]" and recommended "continued symptomatic treatment with regular medical follow up." Id.

         At a follow up in January 2014 with Dr. Katz, the rheumatologist, Suter reported that the pain management doctor, Dr. Hancock, "did not believe in fibromyalgia, " and that the infectious disease specialist, Dr. Geha, "felt that her fever was 'fibromyalgia-related.'" Tr. 952. Dr. Katz noted that Suter had 16 out of 18 classic fibromyalgia tender points on exam and an erythematous blush on both cheeks. His assessment was fibromyalgia, active; insomnia; chronic fatigue; chronic headaches; right plantar fasciitis; and IBS. He increased her clonazepam dosage, discontinued diclofenac and started ketoprofen. He also ordered an x-ray of her foot.

         Suter saw Casey Williams, M.D. in March 2014 for left shoulder pain. She had decreased range of motion and crepitus. The doctor ordered an MRI and physical therapy. The MRI showed mild acromioclavicular, degenerative changes.

         At an April 2014 follow up with Dr. Katz, Suter complained of low energy and that she could not sit or stand for prolonged periods. She had tenderness in both shoulders and 18 out of 18 fibromyalgia tender points. The doctor prescribed lorazepam and Robaxin. Tr. 956.

         In June 2014, Suter saw Dr. Spurlock with complaints of insomnia. The ...


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