United States District Court, E.D. Missouri, Eastern Division
JULIANNE M. MARTINY, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
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).
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).
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.
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.
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).
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).
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.
Standard for Determining Disability Under the Act
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. §
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.
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.
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).
The ALJ's Decision
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
[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.
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 ...