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Martiny v. Berryhill

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

March 22, 2019

NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.



         This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Defendant Nancy A. Berryhill, Deputy Commissioner for Operations, Social Security Administration (the “Commissioner”) denying the application of Plaintiff Julianne M. Martiny (“Plaintiff”) for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). The parties consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 8). Because I find the decision denying benefits was supported by substantial evidence, I will affirm the Commissioner's denial of Plaintiff's application.

         I. Procedural Background

         On December 18, 2013, Plaintiff applied for SSI, alleging that she had been unable to work since September 1, 2008, due to a herniated disc, chronic lower back pain, chronic headaches, inability to concentrate, blurred vision, intermittent vertigo, nausea, immune dysfunction, failure to recover after a hysterectomy and sinus surgeries in 2012, chronic fatigue and infections, chest pain, chronic sinusitis, chemical sensitivities and allergies, left hand and wrist problems, weakness and pain in her right elbow, and adrenal dysfunction. (Tr. 172, 200). Her application was initially denied. (Tr. 117-21). On April 28, 2014, Plaintiff filed a Request for Hearing by Administrative Law Judge (ALJ) (Tr. 124). Plaintiff subsequently amended her alleged onset date to December 1, 2013. (Tr. 195). On November 19, 2015, the ALJ held a hearing on Plaintiff's claim. (Tr. 47-87). On September 8, 2016, the ALJ issued an unfavorable decision. (Tr. 8-46). On August 23, 2017, the Social Security Administration's Appeals Council denied her request for review. (Tr. 1-7). Plaintiff has exhausted all administrative remedies, and the decision of the ALJ stands as the final decision of the Commissioner of the Social Security Administration.

         II. Factual Background

         At the hearing before the ALJ, Plaintiff testified as follows. Plaintiff has worked for a number of years as a chiropractor and still has a valid license. (Tr. 52). She treats clients sporadically, but when she does so it wipes her out for two or three days. (Tr. 53). She last had an active office in about 2009 or 2010. (Tr. 53). She shut down her practice because of a combination of physical problems: herniated discs in 2008 that reduced her strength and stamina, heavy periods “to the point of hemorrhaging, ” and anemia that caused her to have to stay home for seven to ten days out of the month. (Tr. 57). In 2012, she had a hysterectomy. (Tr. 57). When her back pain first started, she went to her primary care physician and was prescribed Celebrex and Flexeril. (Tr. 58). She has not seen an orthopedic surgeon or neurosurgeon for her back. (Tr. 58). She has seen several different chiropractors for her back pain, and it has helped her get out of acute episodes. (Tr. 59). She also sometimes takes pain medications, such as anti-inflammatories. (Tr. 59). If it is a really bad day, she may take hydrocodone or oxycodone. (Tr. 60). Plaintiff testified that “it is hard to focus on anything when you're constantly spending energy to tune out pain.” (Tr. 59). She testified that she used to walk around the neighborhood, but can no longer walk long distances without back or leg pain. (Tr. 59-60). She can walk about 30 feet before needing to rest. (Tr. 60). She has a chair in front of the stove that she kneels on or sits on when she is cooking. (Tr. 60). She also has to stretch often. (Tr. 61). She testified that the pain “becomes the whole focus of [her] attention unfortunately.” (Tr. 61).

         Plaintiff has tension headaches, migraine headaches, and sinus headaches. (Tr. 81). She has migraines about once a month, and they last all day. (Tr. 82). She becomes sick, cannot stand light and sound, takes strong pain pills, and sleeps. (Tr. 82). She gets tension or sinus headaches several times a month. (Tr. 84). Plaintiff had sinus surgery, and after that the pain in her head went away for a while. (Tr. 69). However, she still gets sinus infections every month or two. (Tr. 69).

         Plaintiff has dizziness or vertigo a couple of times a week. (Tr. 69-70). It lasts minutes to hours. (Tr. 70). When it happens, she has to touch the walls to help her navigate. (Tr. 70). On days when it happens, she does not drive, and just stays at home. (Tr. 71). She had a tendon rupture in her left thumb and still has problems with it being weak. (Tr. 72-73). This causes her to lose the ability to pick up anything heavy or to grasp things. (Tr. 73). She is right-handed. (Tr. 74). Plaintiff also has numbness in her hands. (Tr. 75).

         Plaintiff was diagnosed by a chiropractor with fibromyalgia. (Tr. 64). She testified that about a month after her sinus surgery in 2012, she started having burning and spasming in her elbows and other parts of her body. (Tr. 65-66). She has had a burning in her left ankle and hands as well. (Tr. 66). The fibromyalgia is “just yet one more thing that contributes to pain that [she] ha[s] to either tune out or try to tone down with painkillers.” (Tr. 67). Plaintiff also testified that she has Hashimoto's thyroiditis. (Tr. 67). She testified that she is not taking thyroid medication but is doing supplementation. (Tr. 68).

         Plaintiff is being treated for sleep apnea. (Tr. 77). She uses a CPAP machine at night. (Tr. 78). It helps “to some degree” with her daytime fatigue. (Tr. 78). She rates her fatigue at a five to eight on a scale of one to ten. (Tr. 78).

         Plaintiff also testified that she is being treated for depression. (Tr. 68). She takes Celexa and occasionally sees a counselor. (Tr. 68). Plaintiff's medications help her depression to the extent that she no longer wants to stay in bed all day. (Tr. 79). She has crying spells less frequently since she started Celexa. (Tr. 79). Plaintiff testified that she is forgetful. (Tr. 79).

         Plaintiff is also being treated for anxiety. (Tr. 80). She takes Buspar as needed. (Tr. 80). She usually takes it whenever she has to leave the house. (Tr. 80). Leaving the house causes her anxiety because she has to fit into a schedule, meet other people's expectations, pull herself together, or be in a crowd. (Tr. 81).

         In Plaintiff's function report, completed on January 27, 2014, she stated that she can no longer do many things that she used to be able to do, such as lifting things, gardening, mowing the lawn, shoveling snow, cleaning house, reading or working on the computer for hours, cooking elaborate meals, and seeing patients for physical manipulation and analysis. (Tr. 213). She stated that she had done no gardening at all in the past year. (Tr. 216). She reported that she is often so weak that she has to sit on the toilet to dry and fix her hair and has to sit down to shower. (Tr. 213). It takes her two hours to vacuum due to the rest periods she needs. (Tr. 214). She does drive, but her headaches and vertigo make her feel unsure of herself. (Tr. 215). She is able to pay bills, handle a savings account, count change, and use a checkbook. (Tr. 215). She has difficulty lifting even less than twenty pounds; she can no longer walk more than 500 feet without resting; bending over makes her dizzy or start coughing; standing makes her back hurt; and sitting for more than 20 minutes makes her back hurt. (Tr. 217). She cannot pay attention for more than ten minutes. (Tr. 217). She does not handle stress well and does not handle changes in routine well. (Tr. 218). She sometimes uses a back brace when her back hurts severely, when she is going to be standing for a prolonged period, or when she has to lift something. (Tr. 218). She did not indicate that she uses a cane. (Tr. 218).

         With respect to the medical and vocational records, the Courts accepts the facts as presented in the parties' statements of fact. The Court will cite specific records as needed in the discussion below.

         III. Standard for Determining Disability Under the Act

         To be eligible for benefits under the Social Security Act, a claimant must prove he or she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec'y of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled a person who is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment must be “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot, considering his [or her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he [or she] lives, or whether a specific job vacancy exists for him [or her], or whether he [or she] would be hired if he [or she] applied for work.” 42 U.S.C. § 1382c(a)(3)(B).

         To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process. 20 C.F.R. § 416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the Commissioner determines whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities”; if the claimant does not have a severe impairment, the claimant is not disabled. 20 C.F.R. §§ 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the claimant's impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. § 416.920(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment, the Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. § 416.920(d); McCoy, 648 F.3d at 611.

         Prior to Step Four, the Commissioner must assess the claimant's “residual functional capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R. §§ 416.920(e), 416.945(a)(1). At Step Four, the Commissioner determines whether the claimant can return to his or her past relevant work, by comparing the claimant's RFC with the physical and mental demands of the claimant's past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his or her past relevant work, the claimant is not disabled; if the claimant cannot, the analysis proceeds to the next step. Id. At Step Five, the Commissioner considers the claimant's RFC, age, education, and work experience to determine whether the claimant can make an adjustment to other work in the national economy; if the claimant cannot make an adjustment to other work, the claimant will be found disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g), 416.960(c)(2); McCoy, 648 F.3d at 611.

         Through Step Four, the burden remains with the claimant to prove that he is disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that, given the claimant's RFC, age, education, and work experience, there are a significant number of other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d 1062, 1064 (8th Cir. 2012); 20 C.F.R. § 416.960(c)(2).

         IV. The ALJ's Decision

         Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not engaged in substantial gainful activity since December 1, 2013, the amended alleged onset date; that Plaintiff had the severe impairments of degenerative disc disease and facet osteoarthritis of the lumbar spine, mild degenerative changes of the thoracic spine, chronic sinusitis, obesity, depressive disorder, post-traumatic stress disorder, and somatoform disorder; and that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1 (Tr. 13-25). The ALJ found that Plaintiff had the following RFC:

[Plaintiff] has the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b), with the following additional limitations: she can frequently lift, carry, push and pull 10 pounds, and can occasionally lift, carry, push and pull 20 pounds; can stand and/or walk for six hours total in an eight-hour workday; can sit for six hours total in an eight-hour workday; can frequently climb ropes and stairs; can occasionally stoop, kneel, crouch, crawl, balance, and climb ladders, ropes, or scaffolds; must avoid concentrated exposure to extreme cold and heat; must avoid even moderate exposure to hazards such as unprotected heights and moving machinery; and is limited to performing simple, routine, repetitive tasks.

(Tr. 25). At Step Four, the ALJ found that Plaintiff could not perform her past relevant work as a chiropractor. (Tr. 38). At Step Five, relying on evidence from a vocational expert, the ALJ found that considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including representative occupations such as office helper, photocopy machine operator, and semiautomatic sewing machine operator. (Tr. 38-39). The ALJ therefore found that Plaintiff had not been under a disability, as defined in the Act, since, December 1, 2013. (Tr. 39).

         V. Discussion

         Plaintiff challenges the ALJ's decision on four grounds: (1) the ALJ failed to properly consider Plaintiff's somatoform disorder in making the RFC finding; (2) the ALJ erred at Step Two by finding Plaintiff's headaches were not a severe impairment; (3) that remand is required because there was new evidence submitted to the Appeals Council that is not included in the administrative transcript, and therefore Defendant has deprived the Court of the ability to review the case properly; and (4) that the ALJ failed to fully and fairly develop the record with ...

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