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Brenda T. v. Berryhill

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

February 12, 2019

BRENDA T., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE

         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 Social Security Administration denying Plaintiff's application for Disability Insurance Benefits. 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 decision is affirmed.

         Procedural History

         On January 27, 2015, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) under the Act. Plaintiff alleged a disability onset date of October 31, 2011. (Tr. 15) Plaintiff's application was denied initially on June 30, 2015, and she thereafter requested a hearing before an Administrative Law Judge (“ALJ”), which was held on January 12, 2017.

         Plaintiff appeared with counsel for the hearing. Plaintiff testified concerning her impairments, daily activities, functional limitations, and past work. Gary F. Weimholt, a vocational expert, also testified at the hearing. In a written decision dated April 7, 2017, the ALJ denied Plaintiff's application for benefits. On December 7, 2017, the Appeals Counsel for the Administration denied Plaintiff's request for review. Therefore, the ALJ's decision stands as the final decision of the Administration in this matter. Accordingly, Plaintiff has exhausted her administrative remedies and the matter is properly before this Court.

         Administrative Record

         I. General

         Plaintiff filed for DIB benefits, alleging a disability onset date of October 31, 2011. Plaintiff's date last insured was December 31, 2013. (Tr. 15) Plaintiff was 58 years old on her date last insured and 61 years old at the time of her hearing before the ALJ. (Tr. 23) Prior to her alleged disability, Plaintiff worked at a family-owned funeral home in a capacity that combined or included work characterized as a funeral attendant and an administrative assistant. (Id.) After a divorce, Plaintiff left the funeral home business and worked as a membership solicitor and attendant for a gym. (Id.) As the record in this matter makes clear, Plaintiff's health declined in several respects after her date last insured.

         In her Disability Report - Adult (Tr. 290-300), Plaintiff's medical conditions are listed as follows: herniated discs, spinal stenosis, degenerated hip, disorder of sacrum, bursitis disorder, severe glaucoma, macular degeneration, and arthritis. (Tr. 291)

         II. Summary - Pertinent Medical Records and Opinion Evidence

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

         A. Pain Diagnoses, Treatment, and Management

         The administrative record includes a substantial volume of medical records documenting Plaintiff's treatment for back and hip pain during the time period between late 2011 and the end of 2013.[1] Although Plaintiff was treated by several different physicians and providers, the record indicates that Dr. Hugh Berry was the primary physician who addressed Plaintiff's back and hip pain during the time period at issue herein.

         The record indicates that, throughout 2012, Plaintiff received conservative care in the form of medication management and interventional care in the form of injections. The record further indicates that this treatment program provided substantial, but not complete, pain relief. In early February 2012, Dr. Berry's notes indicate that Plaintiff had hip and back pain and was in moderate distress. Dr. Berry recommended conservative care with medications and injections for pain relief. (Tr. 508, 611) Treatment notes from March 7, 2012, indicate that Plaintiff received injection treatment as recommended earlier. (Tr. 535, 921) When she was seen for follow-up on June 4, 2012, Plaintiff was in moderate distress. The treatment notes indicate conservative care, medication refills, and that injections had provided some improvement. (Tr. 505, 622) On June 13, 2012, Plaintiff received caudal epidural and trochanteric bursa injections. (Tr. 546, 938) Records from June 20, 2012, refer to an MRI of Plaintiff's lumbar spine, with notes indicating multilevel lumbar spondylosis, mild to moderate central canal narrowing at ¶ 3-L4, and mild left lumbar scoliosis. (Tr. 545) Plaintiff was seen again on July 2, 2012. The treatment notes indicate moderate distress, conservative treatment with medications, and interventional care with injections. (Tr. 503, 632) On August 16, 2012, Plaintiff received caudal epidural and trochanteric bursa injections. (Tr. 541, 952) On September 19, 2012, Plaintiff received a caudal epidural steroid injection. Treatment notes from October 16, 2012, note that Plaintiff's back pain had improved with injections, refer her to physical therapy, and reflect that Plaintiff was active with swimming. The October 16th notes indicate continued conservative care with medication and interventional care with injections. (Tr. 500, 644) Treatment notes from a follow-up visit on November 13, 2012, indicate that Plaintiff was in moderate distress, but had improved activity with at least a 50% reduction in pain. (Tr. 499, 653) On December 13, 2012, Plaintiff received caudal epidural and trochanteric bursa injections. (Tr. 538) The December 13, 2012, treatment notes indicate that Plaintiff was not in distress, and she denied any depression or anxiety. (Tr. 966)

         Throughout 2013, Plaintiff continued to receive conservative care in the form of medication management and interventional care in the form of injections. By and large, but not always, this course of treatment provided substantial pain relief to Plaintiff. Plaintiff was seen on March 27, 2013, more than three months after her prior reported visit in December 2012.[2]Plaintiff reported an 80% improvement in back pain and denied any depression or anxiety. Plaintiff received caudal epidural and trochanteric bursa injections. (Tr. 531, 973) During follow-up treatment on April 29, 2013, Plaintiff reported 80% relief and that her pain was at 2 out of 10. (Tr. 491, 663) On May 2, 2013, Plaintiff saw Dr. David Brown for an annual physical exam. Dr. Brown's notes indicate that she was generally doing well. (Tr. 449) On July 2, 2013, Plaintiff requested a caudal injection, and on July 10, 2013, she received caudal epidural and trochanteric bursa injections. (Tr. 488, 490, 531, 982) During follow-up treatment on July 30, 2013, Plaintiff reported no relief from her July 10th injections, with her pain at 7-8 out of 10. (Tr. 486, 673) On July 31, 2013, Plaintiff received caudal epidural and trochanteric bursa injections. (Tr. 528, 992) At her next reported visit, on September 24, 2013, Plaintiff reported that, after her prior injections, she had received 98% relief and that her pain was at 1 out of 10; she reported trying to exercise. (Tr. 482, 685) On November 18, 2013, Plaintiff saw Dr. Brown for a blood pressure check, hyperlipidemia, and anxiety; she requested Xanax. Dr. Brown's notes indicate “normal” findings for Plaintiff's eyes. (Tr. 444) On November 27, 2013, Plaintiff reported 65% improvement in lower back pain and received a caudal epidural injection. (Tr. 482, 526) During a telephone contact with Dr. Berry's office on December 11, 2013, Plaintiff reported a 60% improvement and requested an early medication refill, but during follow-up on December 12, 2013, Plaintiff reported no relief and that her pain was at 10 out of 10. (Tr. 481, 482, 696)

         Although it is beyond her date last insured, the records from 2014 indicate that Plaintiff continued to receive conservative care via medication management and interventional care with injection therapy. Such care included trochanteric bursa injections and bilateral sacroiliac steroid injections every two or three months, which provided substantial relief. For example, on July 10, 2014, Plaintiff reported she had received 80% pain reduction and that her pain was at 2 out of 10.

         B. Medical Evidence - Glaucoma

         Plaintiff received treatment for glaucoma from Dr. Bruce Cohen, M.D., and Dr. Paul Tesser, M.D., Ph.D. The medical records indicate that Plaintiff's glaucoma worsened after her date last insured. For example, in June 2015, Dr. Tesser performed a surgical procedure on Plaintiff's left eye to provide drainage for uncontrolled glaucoma. (Tr. 411)

         C. Opinion Evidence - Medical Source Statements (MSS)

         Dr. Berry submitted a Medical Source Statement - Physical, dated December 18, 2016. (Tr. 1069-71) In his MSS, Dr. Berry represented that he began treating Plaintiff in approximately 2010. He listed Plaintiff's diagnoses as sacroiliitis, lumbar radiculopathy, and lumbar spondylosis/scoliosis. Dr. Berry indicated that Plaintiff suffered from low back and leg pain, noting she received lumbar epidural injections and sacroiliac joint injections. Dr. Berry indicated that Plaintiff's psychiatric condition did not exacerbate her perception of pain or other symptoms. According to Dr. Berry, Plaintiff would likely miss work each month, but left blank on the form whether Plaintiff would miss one day or two or more days per month. Regarding the reasons Plaintiff would miss work, Dr. Berry indicated, “out of work since 2012 because of back pain.” (Tr. 1070) Dr. Berry opined that Plaintiff would be off task 100% of the time during an eight-hour workday. Dr. Berry further opined that Plaintiff must use a cane to assist with walking and standing when her pain is severe. Dr. Berry restricted Plaintiff to five minutes of sitting but declined to explain the medical reasons for such a restriction. Dr. Berry also indicated that, for prolonged sitting, Plaintiff should elevate her legs to 30 degrees but did not specify any duration. Dr. Berry restricted Plaintiff to standing for five minutes, walking for ten minutes, and lifting up to 5 pounds, but again he did not provide any medical explanation for such restrictions. Dr. Berry opined that Plaintiff's impairments were permanent but left blank the earliest date his restrictions would apply to Plaintiff.

         Dr. Cohen, Plaintiff's eye doctor, authored a Medical Source Statement - Vision, dated January 24, 2017. (Tr. 1122-24) Dr. Cohen began treating Plaintiff in March 2012. He noted diagnoses of advanced glaucoma, as well as prior glaucoma and cataract surgery in both eyes. Dr. Cohen assessed Plaintiff's corrected vision to be 20/20 (right) and 20/30 (left), with mild visual field loss in both eyes. Dr. Cohen indicated that Plaintiff's vision would frequently impact several work-related activities and limit certain abilities. Dr. Cohen also opined that Plaintiff had no significant limitations as of December 31, 2013. (Tr. 1124)

         Dr. Tesser, Plaintiff's later eye doctor, also provided a Medical Source Statement - Vision, dated January 9, 2017. (Tr. 1073-75) Dr. Tesser indicated that he began treating Plaintiff in May 2015. He diagnosed Plaintiff with moderate glaucoma in her right eye and severe glaucoma in her left eye. Plaintiff retained visual acuity (after best correction) of 20/25 (right) and 20/40 (left), with full field in her right eye and severe restriction in her left eye. Dr. Tesser provided specific opinions regarding Plaintiff's visual abilities relative to specific categories of work activities, but also stated that the “earliest date” of any restrictions was since his first exam of Plaintiff on May 8, 2015. (Tr. 1074-75)

         III. Administrative Hearing (Tr. 31-93)

         The ALJ held an administrative hearing on January 12, 2017. Plaintiff appeared in person, with her attorney. Vocational expert (VE) Gary Weimholt, M.S., also appeared by telephone. At the outset of the hearing, the ALJ reviewed the record with counsel and agreed to leave the record open for two weeks so that Plaintiff could submit additional records from Dr. Cohen regarding Plaintiff's glaucoma. Counsel explained that Plaintiff is disabled as a result of a combination of impairments, including glaucoma, anxiety, and back problems with radiculopathy. Counsel explained that Plaintiff has been disabled since at least December ...


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