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Ford v. Berryhill

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

August 16, 2017

CHANTAL FORD, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         This action is before the Court pursuant to the Social Security Act, 42 U.S.C. §§ 401, et seq. (“the Act”). The Act authorizes judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying Plaintiff Chantal Ford's application for Disability Insurance Benefits and Supplemental Security Income. 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.

         Procedural History & Summary of Memorandum Decision

         On August 26, 2013, Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Act. Plaintiff alleged a disability onset date of September 17, 2012. (Tr. 12)[2] Plaintiff's claims were denied initially on October 4, 2013. (Id.) Thereafter, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on June 3, 2015. Plaintiff and Darrell Taylor, Ph.D., an independent Vocational Expert (“VE”), testified at the hearing. (Tr. 29) In a decision dated September 4, 2015, the ALJ denied benefits, concluding that Plaintiff was not disabled under the Act. (Tr. 12-22) 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 September 27, 2016. (ECF No. 1) Accordingly, Plaintiff has exhausted her administrative remedies and the matter is properly before this Court. Plaintiff has been represented throughout all relevant proceedings.

         Although the ultimate issue before the Court is whether substantial evidence supports the Commissioner's decision, Plaintiff's request for judicial review asks the Court to consider two inter-related issues, namely:

(1) Whether, in determining Plaintiff's Residual Functional Capacity (“RFC”), the ALJ erred in concluding that Plaintiff could perform sedentary work (with additional limitations) because no medical evidence supported the ALJ in this regard; and
(2) Whether the hypothetical question posed to the VE was adequate because it failed to include a limitation that Plaintiff would miss four work days per month.

         Both of these issues require the Court to address other related issues, including the ALJ's consideration of Plaintiff's credibility and the medical opinion evidence in the administrative record.

         After a thorough review of the record, the Court concludes that the Commissioner's decision is supported by substantial evidence. The ALJ gave good reasons for discounting Plaintiff's credibility. Although the ALJ did not give significant weight to any of the medical opinions in the record, contrary to Plaintiff's contention, there is medical evidence in the record, including medical source opinion evidence, to support a conclusion that Plaintiff is capable of sedentary work with the additional limitations noted. Such evidence includes aspects of the opinion provided by Plaintiff's treating physician, Dr. Gayla Jackson, M.D.

         Administrative Record

         I. General

         Plaintiff was 31 years old at the time of her administrative hearing. Prior to her alleged disability onset, Plaintiff worked in a variety of positions, including as a customer services representative, cashier, and casino security services. (Tr. 20) In her Disability Report - Adult, Plaintiff listed the following mental and physical conditions as limiting her ability to work: mental health; bipolar disorder; depression; anxiety; PTSD; obesity; high blood pressure; migraine headaches; sleep apnea; and asthma. (Tr. 184) In her Function Report - Adult, Plaintiff listed the following limitations to her ability to work: lifting, squatting, bending, standing, walking, sitting, kneeling, talking, stair climbing, seeing, memory, completing tasks, concentration, understanding, following instructions, and getting along with others.[3] (Tr. 223)

         II. Summary Review of Medical Evidence

         There is a great deal of medical evidence in the record. The Court has considered the entire record and summarizes specific aspects herein to provide context for this memorandum and order.

         A. Dr. Melissa Hollie, M.D.

         There are a few treatment records that predate Plaintiff's alleged disability onset date. Dr. Melissa Hollie apparently treated Plaintiff's hypertension, but noted that she was unsure whether Plaintiff had been compliant with her medications. (Tr. 269-71)

         B. SSM DePaul Health Center

         Plaintiff received treatment on numerous occasions, for a variety of reasons, from providers at SSM DePaul Health Center, including at the emergency room (“ER”). (See, e.g., Tr. 273-345, 678-90) For example, in 2012, Plaintiff received treatment for migraine headaches, ear pain, a sore finger, a broken tooth, chest pain, abdominal pain, and coughing. The medical records indicate that she typically received routine and conservative treatment for her conditions. For example, in February 2013, Plaintiff was treated at the ER for chest pain. The treatment notes indicate, among other things, that Plaintiff had a normal EKG. She was given a prescription for pain and referred to her primary care provider. (Tr. 311-16) Similarly, on June 23, 2013, Plaintiff again appeared at the ER with chest pain, and again she had a normal EKG and was found to have no acute disease of the chest. (Tr. 324-34) In July 2, 2013, Plaintiff was treated at the ER for abdominal pain with vomiting. The treatment notes reflect that all laboratory tests were “unremarkable.” (Tr. 335, 341) Furthermore, the treatment notes for many if not most of her ER visits indicate that she had 100% oxygen saturation.

         Additionally, a review of all of the treatment records from SSM DePaul Health Center show that the providers regularly found Plaintiff to be oriented, have a normal mood and affect, and intact memory and judgment.

         C. Christian Hospital Northwest

         Between 2012 and 2015, Plaintiff received treatment numerous times at Christian Hospital Northwest, including at the ER. Plaintiff was treated for a variety of complaints, including chest pain, ear pain, dizziness, knee pain, a finger burn from Clorox, women's health issues, a hand injury due to punching a person, breathing issues related to asthma, nausea and stomach symptoms. Despite her many trips to this facility, the record shows that Plaintiff typically received routine and conservative treatment and was not in acute distress, either physically or mentally. For example, in December 2012, Plaintiff appeared at the ER complaining of chest pain. Plaintiff was oriented and did not appear to be in distress and did not meet the criteria for critical care. Rather, she was advised to follow up with her primary care physician. As another example, in August 2014, Plaintiff was treated at this facility after complaining of difficulty breathing. She was diagnosed with asthma and tobacco abuse. In April 2015, Plaintiff returned to this facility, complaining of chest pain, shortness of breath, numbness, and a headache. Testing revealed no acute cardiopulmonary abnormalities.

         D. Mercy Hospital / Mercy Clinic & Dr. Gayla Jackson, M.D.

         The administrative record includes a large number of treatment notes from the Mercy Clinic and Dr. Gayla Jackson, M.D., from 2013 into 2015. The records suggest that Dr. Jackson treated Plaintiff for a number of different conditions, including but not limited to, asthma, obstructive sleep apnea, morbid obesity, and women's health issues. Plaintiff also reported to Dr. Jackson that she was attempting to conceive and have a child and received treatment from another provider, Dr. Marsha Fisher, related to fertility issues. Plaintiff also received periodic treatment at the Mercy Hospital ER.

         Dr. Jackson's treatment notes reflect problems controlling Plaintiff's various symptoms. For example, notes from May 2013 represent that Plaintiff's asthma was not well controlled and that she continued to suffer from morbid obesity. The notes further indicate that Plaintiff suffered from occasional anxiety and was receiving multiple psychiatric-related medications. Dr. Jackson's notes regularly indicate that Plaintiff exhibited a normal mood and affect, and was well-oriented.

         Dr. Jackson's notes, which span about two years, indicate that one of the substantial issues with Plaintiff's health care was controlling her asthma and hypertension. This issue is generally consistent with Plaintiff's frequent visits to the ER. Dr. Jackson's notes indicate, however, that Plaintiff was non-compliant with her treatment and/or medications. Dr. Jackson regularly noted that Plaintiff continued to smoke cigarettes despite her conditions. Similarly, Plaintiff was not using her CPAP machine to assist with her obstructive sleep apnea, and was not compliant with other medications, including medications for blood pressure, migraines, and psychiatric issues. Dr. Jackson's notes also indicate that Plaintiff consumed a poor diet, at one time reporting that she subsisted largely on fast food. Dr. Jackson's notes often indicate that she spent more than 50% of her time with Plaintiff on counselling, including encouraging Plaintiff to modify her lifestyle.

         On the whole, the treatment notes from Dr. Jackson and Mercy Clinic indicate that Plaintiff typically received routine and conservative treatment for her various ailments, and that Plaintiff was non-compliant with the course of treatment provided and recommended.

         Dr. Jackson completed an Arthritis Residual Functional Capacity Questionnaire, dated May 14, 2015, which is one of the important pieces of opinion evidence in the record. (Tr. 987) Dr. Jackson indicated that she had treated Plaintiff every three months for the prior two years, and that Plaintiff had a diagnosis of arthritis. Of twenty-one positive objective signs for arthritis listed on the form, Dr. Jackson identified only “Crepitus” (grinding or popping sounds) of the knees as applying to Plaintiff. Dr. Jackson listed morbid obesity, asthma, and bipolar disorder as additional diagnosed impairments. Although the questionnaire identified twenty-four more generalized symptoms for consideration, Dr. Jackson marked only “breathlessness.” Dr. Jackson indicated that Plaintiff was not a malingerer and that emotional factors did not contribute to the severity of Plaintiff's symptoms or functional limitations. Regarding pain, Dr. Jackson listed bilateral pain in Plaintiff's knees/ankles/feet, and that pain would frequently interfere with Plaintiff's attention and concentration. Dr. Jackson opined that Plaintiff could sit for more than two hours at a time (and at least six hours during an eight-hour workday), stand for fifteen minutes before needing to sit down, stand/walk less than two hours during an eight hour workday, and that she would need to shift positions between sitting and standing/walking. Dr. Jackson further opined that Plaintiff would need unscheduled breaks hourly. Dr. Jackson also made specific findings regarding Plaintiff's ability to perform various work-related tasks such as carry weight, twist or bend, and reach. Finally, Dr. Jackson estimated that that Plaintiff would miss about four workdays per month due to her impairments or treatment requirements. The ALJ's treatment of Dr. Jackson's opinion is discussed in greater detail below.

         E. Dr. Jordan Balter, D.O.

         The administrative record also includes numerous treatment notes from Dr. Jordan Balter. Dr. Balter was Plaintiff's treating psychiatrist from around 2012 until at least 2014. (See, e.g., Tr. 513-85) Many of Dr. Balter's notes are difficult to read. In a form dated September 16, 2013, responding to an inquiry for information relevant to Plaintiff's disability process, Dr. Balter noted that Plaintiff suffers from bipolar affective disorder and psychosis, and that she is unable to complete activities of daily living. (Tr. 513) Dr. Balter also completed a form entitled “Certification for Health Care Provider for FMLA Leave & Behavioral Health Provider Statement of Claim for Disability Benefits, ” dated April 17, 2013. (Tr. 666-70) In this form, Dr. Balter provided several opinions concerning Plaintiff's mental and emotional health, but estimated that Plaintiff might recover sufficiently to work by late May 2013.

         F. Dr. George Vergolias, Psy.D.

         Among the medical opinions in the record are three related opinions from Dr. George Vergolias, the last of which was dated September 11, 2013. (Tr. 644-52) Dr. Vergolias was not a treating source, but reviewed records and information, including from Dr. Balter and Plaintiff. Dr. Vergolias concluded that Plaintiff suffered from a functionally impairing psychological condition-bipolar disorder. Dr. Vergolias noted that Plaintiff's functional impairments would result in decreased abilities in the following areas: sustaining cognitive focus; multitasking without errors; problem solving fluidly and without frustration; appropriately interacting with customers/co-workers; and accomplishing tasks within demanding timelines. (Tr. 649) Dr. Vergolias estimated that such limitations would last approximately eight weeks, and recommended alternative treatment options to improve Plaintiff's symptoms. (Id.) Finally, Dr. Vergolias indicated that he believed the evidence showed Plaintiff had been compliant with her treatment. (Tr. 651)

         G. Debra Villar, Licensed Mental Health Case Manager

         The record also includes a “Medical Claim Plan, ” dated August 27, 2013, and signed by Debra Villar, Mental Health Case Manager, which includes Plaintiff's answers to a questionnaire for mental health claims to “Standard Insurance Company.” (Tr. 653-55)

         H. Dr. James Flax, M.D.

         The administrative record includes a Physician's Consult Memo, dated April 30, 2014, from Dr. James Flax, M.D. The memo appears to be directed to a claim associated with Plaintiff's long-term disability carrier. The memo also indicates that Dr. Flax was not an examining source. Rather, Dr. Flax reviewed the information from Dr. Vergolias, Dr. Balter, Mental Health Counselor Debra Villar, and Mercy Clinic.

         I. Dr. Marsha Toll, Psy.D.

         Dr. Marsha Toll completed a psychiatric review technique and provided a Mental Residual Functional Capacity assessment in the Disability Determination Explanations associated with Plaintiff's DIB and SSI applications. (See, e.g., Tr. 63-65, 68-69) The records provided to Dr. Toll included records from Dr. Balter in September 2013. Among other things, Dr. Toll found Plaintiff to have mild limitations regarding her activities of daily living and maintaining social functioning, and moderate limitations regarding concentration, persistence, or pace. (Tr. 63) The specific functional limitations found by Dr. Toll are identified in greater detail in the Court's analysis below.

         III. Administrative Hearing

         On June 3, 2015, the ALJ conducted a hearing on Plaintiff's disability applications. (Tr. 28-58) Plaintiff, who appeared with counsel, testified in response to questions posed by the ALJ. Plaintiff was 31 years old at the time of the hearing. Among other things, Plaintiff testified that her daily activities consisted of lying in bed, watching television, taking medications, and attending doctor's appointments. Plaintiff noted that she both slept a lot but had been up all night and could not sleep. Plaintiff discussed her medications and some of her functional limitations, and that she had ...

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