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Salsbury v. Berryhill

United States District Court, W.D. Missouri, St. Joseph Division

October 3, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Rebekah Salsbury appeals the Commissioner of Social Security's final decision denying her application for disability insurance benefits under Title II of the Social Security Act. The decision is affirmed.

         I. Background

         Salsbury was born in 1978. She initially alleged she became disabled beginning 9/9/2009, but later amended her alleged onset date to 1/25/2013. The Administrative Law Judge held a hearing on 10/7/2015 and denied her application on 11/3/2015. The Appeals Council denied her request for review on 10/25/2016. In this appeal, Salsbury argues that the ALJ erred in finding that Salsbury's statements were not entirely credible. Salsbury also argues the ALJ failed to weigh and consider all opinion evidence of record by discounting the opinion of her treating physician, and by neglecting to evaluate the opinions of her chiropractor. Salsbury also argues the ALJ's RFC, specifically with regard to her mental impairments but also as a whole, is unsupported by any medical opinions. Finally, Salsbury argues the Commissioner failed to sustain her burden at Step 5 of the sequential analysis because the Vocational Expert included a job Salsbury could not perform in her testimony.

         A. Medical history

         Rebekah Salsbury has an extensive medical history, one which predates her alleged onset date by decades. In September 2013, Salsbury visited Wendell Bronson, D.O., who remarked she had “[a] chronic complex collection of pain, poor sleep, fatigue, mood changes, inactivity, muscle deconditioning, weight changes and more pain since long before [he] met her, she says since 1993.” Tr. 357. Her relevant medical history for the purpose of this order, however, begins at her alleged onset date, January 25, 2013.

         In May 2013, Salsbury was examined by Angelia Martin, M.D. She was concerned about the possibility of hyperglycemia or diabetes because of some swelling and fluid retention. After an examination, Dr. Martin's diagnosis was fluid retention. Tr. 380. Salsbury returned to Dr. Martin in July 2013, complaining of migraines, joint pain, muscle spasms, dry eyes, and dry mouth. She had experienced sudden weight loss and weight gain, and feared she might have lupus or Sjogren's syndrome. Dr. Martin diagnosed Salsbury with fatigue, myalgia, arthralgia, dry eyes, and dry mouth. Tr. 376.

         In July 2013, Salsbury visited Veronica Anwuri, M.D., her primary care physician, because she was having difficulty finding a rheumatologist. Salsbury had visited Dr. Anwuri several times over the past year, and Dr. Anwuri was familiar with Salsbury's symptoms. On previous occasions, Dr. Anwuri had diagnosed classic migraines, depressive disorder, carpal tunnel syndrome, myalgia and myositis, herpes zoster, gastroparesis, and esophageal reflux, and she had prescribed Hydroxyzine Pamoate, Tramadol HCI, Savella, Acetaminophen, Ibuprofen, and Promethazine. In July, Salsbury reported to Dr. Anwuri that she had dry eyes and a sore mouth, and requested to be checked for Sjogren's syndrome. Salsbury also reported wrist pain and swelling, and multiple trigger points that were tender upon exam. Dr. Anwuri diagnosed dry eye syndrome, swelling of hands, edema, generalized muscle weakness, and myalgia and myositis. She also referred Salsbury to a rheumatologist.

         In August 2013, Salsbury saw Melinda Pemberton, FNP. Ms. Pemberton's impressions were of fibromyalgia, abnormal serum ACE level, gastroparesis, dry eyes, anxiety, and depression. Tr. 363. Ms. Pemberton also observed significant hyperalgesia both above and below the waist, and underlying anxiety and depression. Tr. 364. She prescribed Savella and Tramadol, discontinued Flexeril, Lortab, Zyrtec, Ibuprofen, and Phenergan, and requested that Salsbury return to speak with Dr. Bronson, a rheumatologist, about her fibromyalgia. Id. Salsbury visited Dr. Bronson in September 2013, where he diagnosed her with fibromyalgia, anxiety, and depression. Tr. 357.

         Salsbury returned to Dr. Anwuri after visiting the rheumatologist. Once again, Anwuri diagnosed fibromyalgia, but ruled out osteoarthritis, rheumatoid arthritis, sarcoid, and lupus. Other diagnoses at this visit included chronic fatigue syndrome, costochondritis, myalgia and myositis, generalized muscle weakness, DeQuervain's tenosynovitis, and postherpetic neuralgia. Tr. 411.

         Throughout 2014 and 2015, Salsbury visited Dr. Anwuri on several occasions. Each time, Salsbury complained of increasing pain in her upper back and chest. Additionally, she reported anxiety and depression, intermittent swelling in her hands and feet, and fluctuating weight gain.

         During this time period, Salsbury also visited Kimberly Findley, D.C., a chiropractor, for treatment of her back pain and fibromyalgia. Tr. 462-96. Dr. Findley diagnosed thoracic myofascitis and cervical torticollis, and chiropractic manipulative therapy was administered. Tr/ 474. Although treatment began in September 2012, Salsbury returned primarily at two week intervals throughout 2013 and 2014, until at least August 2015. In her reports, Findley often indicated Salsbury was “feeling much better” after treatments. Tr. 482-87.

         In June 2015, Salsbury visited David Ewing, M.D. for evaluation of her migraines. Tr. 791. She reported pain that would last three to four days, and would occur on an average of twenty days a month. Id. Dr. Ewing's impression was that it was chronic daily headaches rather than migraines, perhaps caused by fibromyalgia, sleep disturbance, or a combination of the two. Tr. 794. Dr. Ewing prescribed Topamax, and at a follow up appointment in July 2015, Salsbury reported just one head ache in the time since her initial visit. Tr. 797.

         B. Mental Health

         In June 2013, Salsbury visited Katherine Cole, D.O., a psychiatrist, for an initial evaluation. Salsbury reported being chronically depressed and struggling with not working. Tr. 432. She also complained of low energy, low motivation, and anhedonia. Id. She frequently had panic attacks triggered by stress, and a history of abuse from her boyfriend and ex-husband. Dr. Cole diagnosed major depressive disorder, generalized anxiety disorder, post-traumatic stress disorder, and panic disorder without agoraphobia, and prescribed BuSpar, Depakote, and Wellbutrin. Tr. 435.

         Salsbury returned to Dr. Cole in July 2013, reporting vertigo for the past two-three weeks. At this appointment, Salsbury appeared to be hypomanic with racing thoughts and rapid speech. Tr. 428. One month later, in August 2013, Salsbury visited Dr. Cole once again. Tr. 418. This time she was doing a little better, and her mood was stable. Id. She was anxious due to being overwhelmed with all of her diagnoses, but she was not depressed. Id. Dr. Cole increased Salsbury's BuSpar prescription. Tr. 421.

         Salsbury visited Dr. Cole seven more times between September 2013 and March 2015. At each visit, Dr. Cole diagnosed major depressive disorder, generalized anxiety disorder, post-traumatic stress disorder, panic disorder without agoraphobia, and cognitive disorder likely related to chronic pain and fatigue. Dr. Cole also prescribed BuSpar, Wellbutrin, Depakote, and Adderall, though she increased and decreased the dosages as necessary.

         C. Expert opinions

         Kenneth Smith, M.D., a State agency medical consultant, opined that Salsbury could lift and/or carry 25 pounds occasionally, 10 pounds frequently; sit six hours; stand and/or walk two hours; occasionally climb ladders, ropes, scaffolds, ramps, and stairs; occasionally balance, stoop, kneel, crouch, and crawl. Tr. 79-80. The ALJ gave this opinion little weight. Tr. 23.

         Linda Skolnick, Psy.D., a non-examining, non-treating State agency psychological consultant, opined that Salsbury had mild restriction of activities of daily living, moderate difficulties maintaining social functioning, and moderate difficulties maintaining concentration, persistence, or pace. Tr. 77-82. She also opined Salsbury could not perform complex tasks or tolerate work that required contact with the public. Dr. Skolnick also opined, however, that Salsbury retained the capacity to understand, remember, and carry out at least simple to moderately complex instructions and tasks. She also opined that Salsbury could interact socially and adapt in a setting that did not require close interpersonal interaction with the public. The ALJ gave the opinion great weight because Dr. Skolnick provided support for it, it is consistent with the claimant's mental health treatment records, and it considers the claimant's improvement with the use of medication. Tr. 24.

         Veronica Anwuri, M.D., Salsbury's treating physician, completed two Physician's Residual Functional Capacity Assessments with regard to Salsbury's physical limitations. In the first, May 2014, she opined Salsbury could lift ten pounds frequently and twenty-five pounds occasionally. Tr. 394. She indicated Salsbury could sit less than one hour a day and stand or walk less than two hours a day, but would need to lie down or recline more than four hours a day. Id. Dr. Anwuri checked boxes indicating Salsbury could use her hands for repetitive simple grasping, but could not perform other repetitive actions with her hands or arms. Id. She checked boxes indicating Salsbury could occasionally perform most postural activities, but could never squat. Id. at 395. Dr. Anwuri checked boxes indicating Salsbury's degree of pain and fatigue were debilitating, and indicated that Salsbury would miss work more than three times a month due to her impairments. Id.

         In the second Physician's Residual Functional Capacity form, dated September 2015, Dr. Anwuri opined that Salsbury could sit up to five hours a day, though only for one hour at a time. Tr. 820. She again checked boxes indicating Salsbury could use her hands for repetitive simple grasping, but could not perform other repetitive actions with her hands or arms. Id. She indicated Salsbury could occasionally perform most postural activities, but could never squat or stoop. She also checked boxes indicating Salsbury could not work around unprotected heights, moving machinery, temperature changes, dust, fumes, or drive. Id. at 821. Again, Dr. Anwuri checked boxes indicating Salsbury's fatigue and pain woud be debilitating. Id. at 822. She also indicated Salsbury had poor or no ability to deal with the stress of a low stress job, and would miss work three times each month. Id.

         D. The hearing before the ALJ

         Salsbury testified that she was thirty-seven years old and holds an MBA in Human Resource Management, but had not worked since her alleged onset date of January 25, 2013. Tr. 39-40. Salsbury stated that extreme pain, extreme fatigue, cognitive impairment, brain fog, and memory problems prevent her from working. She reported pain everywhere, although she stated it was most significant in her back, legs, and hips. Tr. 40.

         Salsbury testified that she could not sit or have anything touching her back, and that it also hurt her to stand up or lean over. Tr. 41. Salsbury reported that her pain continued to worsen, and that she often experienced numbness and pain in her fingers, toes, and feet. She estimated she could sit for up to two hours, or walk for up to one hour, but neither activity would be painless. Id. Salsbury also reported balance issues, and stated that she needed a cane to help her walk. Tr. 42. In addition to the physical pain, ...

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