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Ventura v. Berryhill

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

April 4, 2019

RHONDA SUE V., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.



         This matter is before the Court for review of an adverse ruling by the Social Security Administration. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         I. Procedural History

         On April 27, 2015, plaintiff Rhonda Sue V. filed an application for a period of disability and disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and protectively filed an application for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of September 9, 2013. (Tr. 170-71, 172-78). After plaintiff's applications were denied on initial consideration (Tr. 92-96, 97-101), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 104-05, 106-08).

         Plaintiff and counsel appeared for a hearing on April 20, 2017. (Tr. 28-62). Plaintiff testified concerning her disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Deborah A. Determan, M.S. The ALJ issued a decision denying plaintiff's applications on November 22, 2017. (Tr. 13-22). The Appeals Council denied plaintiff's request for review on June 28, 2018. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability and Function Reports and Hearing Testimony

         Plaintiff was born in December 1964 and was 48 years old on the alleged onset date. (Tr. 191). She earned a Bachelor's degree in criminal justice, in May 2014, after her alleged onset date. (Tr. 33, 216). She lived in a mobile home with her teenaged daughter and her boyfriend, who traveled for work three weeks of every month from January through September. (Tr. 33-34, 39). She alleges that she became unable to work as the result of a fall on September 9, 2013, in which she injured her neck and back. (Tr. 32, 46). She previously worked as an administrative clerk in county government, a chemical abuse technician in a residential treatment center for adolescent boys, a substitute teacher, a cashier at a dollar store, and as a research assistant while in graduate school. (Tr. 34-39, 204). From 2006 to 2008, she managed a sports bar she owned with her then-husband. (Tr. 37, 56).

         Plaintiff listed her impairments as bulging/herniated discs of the cervical and lumbar spine, cervical spondylolisthesis, cervical and lumbar foraminal stenosis, cervical and lumbar degenerative disc disease, and lumbar facet degeneration/hypertrophy. (Tr. 215). In her February 2014 Function Report (Tr. 226-39), plaintiff described her daily activities as making meals for her daughter and boyfriend, reading, watching television, and using the computer. She also fed the family dog and fish. She listed her hobbies as painting, doing arts and crafts, camping, and babysitting for her grandchildren, although she was not able to do these activities very often and needed assistance with some of them. She was no longer able to run, do yoga, dance, garden, and work due to ruptured discs in her neck and back. Her sleep was disrupted by pain and she sometimes slept only four or five hours a night. She had difficulty with dressing and caring for her hair due to an inability to lift her right arm above her head, and needed help to get out of the tub. She did laundry, cooked, dusted, cleaned the bathrooms, and watered outdoor plants and swept the porch. She had a driver's license but, because of neck pain, could drive for only 15 minutes. She could walk five blocks before needing to rest for 10 minutes. She stated in the Function Report that she went grocery shopping once a week, spending 1.5 to 2 hours. At the April 2017 hearing, however, plaintiff testified that she no longer went to the grocery store. (Tr. 42). She was able to manage financial accounts. She restricted her social activities because she could not sit or stand for more than limited periods before needing to rest. She had no difficulty paying attention, completing tasks, or following instructions. She got along well with others, including authority figures. She normally did well at handling stress, but was presently experiencing stress and anxiety. She had no difficulty responding to changes in routine. She used an arm brace prescribed by her doctor. Plaintiff had difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, using her hands, and completing tasks. Plaintiff listed her medications as the muscle relaxer baclofen, Naproxen, Prozac, and Trazodone for sleep. (Tr. 218). In March 2017, she reported that she was taking a muscle relaxer and Naproxen for pain, vitamin D for osteoporosis, Effexor for depression, Klonopin for anxiety, and amitriptyline for sleep. She was also taking medications to treat irritable bowel syndrome (IBS), a hiatal hernia, allergies, and menopause. (Tr. 281-82).

         Plaintiff testified at the April 2017 hearing that she was injured in 2013 when she fell from her back door onto concrete from a height of four feet. She testified that she sustained herniated discs in her neck and low back. (Tr. 46-47). She initially tried conservative treatment, including steroid shots, physical therapy, and chiropractic care. She had neck surgery in February 2016 and lumbar surgery in January 2017. (Tr. 47). Her symptoms improved, but she still had what she described as whiplash in her neck and pain in her back when she bent over or reached too high. (Tr. 47, 52). As is discussed more fully below, she testified that she was able to stand for about 15 minutes before she had low back pain and some swelling in her legs. She then needed to lie down with a heating pad for about 10 to 15 minutes. She also testified, however, that this did not occur every day.

         Plaintiff testified that, as a result of the antibiotics she took after her neck surgery, she had two bouts of Clostridium difficile (C. diff) and now suffered from IBS, which caused diarrhea and pain.[1] (Tr. 42-43). She testified that she had been treated on an emergency basis for nausea and dehydration three or four times. (Tr. 50, 52-53, 683-84). She identified the IBS as her biggest barrier to work because she had frequent bowel movements and was not always able to make it to the restroom in time. (Tr. 42-43, 52). She took a medication which helped and her doctor had recently increased the dosage. A recent scope disclosed inflammation, precancerous polyps and a hiatal hernia. She was scheduled for a second procedure in about six months. (Tr. 43-44, 51). In addition, plaintiff stated that she had bursitis in her right shoulder that impeded her ability to lift her arm above her head. (Tr. 45). She also had surgery to address carpal tunnel syndrome and a ganglion cyst that prevented her from bending her thumb. These conditions improved following the surgery. (Tr. 51-52). Finally, she testified that she had depression and anxiety and sometimes wanted to sleep all day. (Tr. 45).

         Vocational expert Deborah Determan was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education, and work experience who was able to perform light work, who could never climb ladders, ropes, or scaffolds, could occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. In addition, the individual could occasionally reach overhead with her right arm, and frequently handle, finger and feel. The person needed to avoid concentrated exposure to vibration and pulmonary irritants, and all exposure to moving machinery and unprotected heights. (Tr. 57). According to Ms. Determan, such an individual would be able to perform plaintiff's past work as an administrative clerk, resident aide, and bar manager. In addition, the individual could work as an information clerk, a routing clerk, a furniture rental clerk. If restricted to sedentary work, the individual could still perform plaintiff's past work as an administrative clerk, in addition to work as a document preparer, telephone quote clerk, or callout operator. (Tr. 58-59). All work would be precluded if the individual had two or more unexcused absences per month, was off-task more than 15 percent of the time, needed more than two bathroom breaks in addition to the customary three breaks per day, or who needed to lie down for 25 minutes twice during the work day. (Tr. 59-61).

         B. Medical Evidence

         1. Medical Records

         On September 9, 2013, plaintiff walked out the door of her mobile home, not knowing that a workman had moved the steps away. She fell four feet to the concrete below, landing on her buttocks and striking her head. (Tr. 336). The following day, she went to the emergency department at Mercy Hospital Jefferson. (Tr. 309-12). X-rays of the left knee, right shoulder, right wrist, sacrum, and coccyx disclosed no fractures or subluxations. (Tr. 313-17). MRIs completed on September 23, 2103, disclosed minimal degenerative changes in the right shoulder, minimal disc protrusion at ¶ 4/C5 without spinal stenosis, disc protrusions at ¶ 5/C6 causing borderline spinal stenosis, and significant degenerative changes at ¶ 3-L4 with moderate stenosis. (Tr. 318, 320-21, 323-24). In October 2013, she told chiropractor Nancy K. Nitsch, D.C., that she had pain in her low back and neck, between her shoulders, and in her arm. She had a total of ten chiropractic treatments between October 11 and November 6, 2013, without lasting relief. (Tr. 293-94).

         Orthopedist Brett A. Taylor, M.D., offered a “spine opinion” in June 2014. (Tr. 336-39). Plaintiff reported that she experienced pain, weakness, and numbness throughout her right arm, that was worsened by raising her arm. She had difficulty with fine motor skills, such as writing and picking up small objects with her right hand. She also had neck pain that was worsened by moving her neck. In addition, she had pain in her back and right leg, without weakness or numbness. Her symptoms were aggravated by sitting and walking. She had been taking Master's level courses but had to stop due to pain. (Tr. 337). She was prescribed Baclofen and Trazadone. Following an examination, Dr. Taylor opined that plaintiff had “a complex constellation of symptoms” with “evidence of both lumbar and cervical instability” and “signs and symptoms consistent with stenosis/radiculopathy.” (Tr. 338). He recommended a two-month trial of epidural or nerve root injections and physical therapy, possibly followed by surgery if plaintiff's condition did not improve. Plaintiff received nerve blocks and epidural steroid injection in August and September 2014, without lasting relief. (Tr. 357-80).

         MRIs of the lumbar and cervical spine completed in October 2014 showed severe foraminal encroachment at ¶ 5-C6 and moderate stenosis at ¶ 3-L4. (Tr. 410, 414). In February 2015, Stefan Prada, M.D., of the Laser Spine Institute diagnosed plaintiff with herniated discs and spinal stenosis in both the lumbar and cervical regions. (Tr. 387-88). Dr. Prada recommended decompression surgery at ¶ 5-6 and L3-4. (Tr. 389).

         Plaintiff also sought treatment for gastrointestinal complaints. In November 2015, she was evaluated by gastroenterologist Youssef Assioun, M.D. (Tr. 569-75). She complained of abdominal pain, with nausea and vomiting, constipation alternating with diarrhea, heartburn, and dyspepsia. She also reported that she experienced depression and anxiety. A colonoscopy and endoscopy showed a hiatal hernia, diverticulosis, and small intestinal metaplasia, but were otherwise “unremarkable.” (Tr. 558-60, 561-63, 563-66, 578-582). Dr. Assioun prescribed Prilosec and Metamucil, and at follow-up in December 2015, plaintiff reported improvement in her symptoms. (Tr. 578). Dr. Assioun diagnosed plaintiff with possible GERD and IBS with diarrhea. (Tr. 582).

         On January 21, 2016, plaintiff underwent right carpal tunnel and right trigger thumb releases, which relieved her symptoms. (Tr. 609-10, 458). On February 10, 2016, neurosurgeon Fangxiang Chen, M.D., performed an anterior cervical discectomy and fusion (ACDF) to address plaintiff's progressive neck pain due to worsening degenerative disc disease and associated decrease in sensation. (Tr. 458-59). At follow-up in May 2016, plaintiff reported that she still experienced some burning and neck pain, which she rated at level 2 on a 10-point scale. According to Dr. Chen, plaintiff's symptoms were almost completely resolved and she was happy with her surgical outcomes.

         A few days after her ACDF surgery, plaintiff required hospital admission for abdominal pain, nausea, vomiting and diarrhea. (Tr. 475-84). She was treated for C. diff infection and improved rapidly. (Tr. 483). In April 2016, plaintiff was readmitted for a second C. diff. infection without evidence of megacolon.[2] (Tr. 487-529, 498). In June 2016, Dr. Assioun noted that plaintiff's infection cleared following treatment with antibiotics. (Tr. 543-47). She was taking Imodium and the antispasmodic Bentyl and reported that she had no diarrhea and her pain had improved. In addition, she denied experiencing anxiety and depression. (Tr. 543-44). A sigmoidoscopy revealed diffuse mild inflammation. (Tr. 549, 699).

         In September 2016, plaintiff returned to see Dr. Chen for treatment of lumbar-spine symptoms, including severe low back pain that radiated to her toes. (Tr. 656-57). When conservative treatment failed to resolve her symptoms, Dr. Chen recommended that she undergo a transforaminal lumbar interbody fusion at ¶ 3-4. (Tr. 660-61, 658-59). The surgery was completed in January 11, 2017. (Tr. 639). At her post-surgical follow up on February 21, 2017, plaintiff reported that her back pain was much improved, rating at 3 on a 10-point scale and only intermittent. (Tr. 662-63). She was again happy with her postoperative course.

         On March 17, 2017, plaintiff returned to see Dr. Assioun with complaints of chronic diarrhea. (Tr. 693-99). Dr. Assioun noted that plaintiff had not been seen since April 2016 and had cancelled three follow-up appointments. She reported that she took Imodium about two or three times a week to slow down her diarrhea. Her abdominal cramps were partially relieved by Bentyl. Her heartburn was “pretty well” controlled by Prilosec. Dr. Assioun started plaintiff on Vibrezi. An endoscopy in April 2017 showed a normal esophagus, inflammation in the greater curvature of the stomach but an otherwise normal stomach, and normal duodenum. (Tr. 688).

         2. Opinion evidence

         On September 11, 2015, Barry Burchett, M.D., completed a consultative examination of plaintiff. (Tr. 446-51). Dr. Burchett reviewed the history of plaintiff's injuries and her course of treatment to date. Plaintiff reported that she had intermittent neck pain that radiated into her shoulder and was aggravated by turning her head and by lifting weights heavier than a gallon of milk. She reported that neck surgery had been recommended but she could not afford it. She had intermittent low back pain, aggravated by lifting, coughing, or driving more than 15 minutes. She also had epigastric symptoms consistent with GERD. On examination, Dr. Burchett noted that plaintiff ambulated with a normal gait and did not have to use a handheld assistive device. She was stable, and comfortable in supine and sitting positions. She had no tenderness, redness, warmth or swelling in the shoulders, elbows, wrists or hands. She could fully extend her hands, make fists, oppose all fingers, write, and pick up a coin with both hands. She had normal range of motion of the finger joints of both hands, including the right thumb which displayed trigger-finger. Despite wearing a cervical collar to the examination, plaintiff had no tenderness of the cervical spine or paravertebral muscle spasm. Examination of her dorsolumbar spine was similarly unremarkable. She was able to stand on one leg at a time and straight leg raising was ...

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