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Crystal M. M. v. Berryhill

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

June 7, 2019

CRYSTAL M. M., 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 23, 2015, plaintiff Crystal M. M. protectively filed an application for a period of disability and disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq.[1] On July 8, 2015, she filed an application for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq. (Tr. 162-65). In both applications, she alleged disability beginning on February 21, 2000, which she subsequently amended to January 1, 2013. (Tr. 196). After plaintiff's applications were denied on initial consideration (Tr. 69-82, 83-96), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 104-06).[2]

         Plaintiff and counsel appeared for a video hearing on March 22, 2017. (Tr. 36-63). Plaintiff testified concerning her disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Jennifer Smidt, M.S. The ALJ issued a decision denying plaintiff's applications on September 1, 2017. (Tr. 15-28). The Appeals Council denied plaintiff's request for review on May 31, 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 May 1977 and was 35 years old on the amended alleged onset date. (Tr. 26). She lived with her husband who was disabled. She completed high school with special education classes.[3] (Tr. 26, 41, 45, 53). She previously worked as a home health aide, a customer service representative, a retail “crew” member, and in fast food. (Tr. 47, 216).

         Plaintiff listed her impairments as uncontrolled diabetes, learning disability, clinical depression, neuropathy, and emotional instability. (Tr. 203). In her August 2015 Function Report (Tr. 262-69), plaintiff stated that she was unable to work due to pain in her legs which prevented her from standing for long periods of time, uncontrolled blood sugar which caused her to shake, a learning disability that affected her comprehension of job duties, depression, and panic attacks. Her sleep was interrupted due to pain in her legs and feet. She was unable to count change or handle money. Her daily activities included fixing meals, watching television, napping, and taking care of a cat. She listed her hobbies as “reading all the time, ” relaxing, and watching television. (Tr. 265). She relied on her then-fiancé's help to complete laundry, wash dishes and cook meals. She did not do yard work. She did not drive due to panic attacks and did not like to go out on her own. She went shopping once a month, taking five hours to complete the task. She had to sit to dress. She could walk from the front door to the kitchen sink before needing to rest for 30 minutes. She spoke on the phone with family members and only socialized with friends who came to her house. She had difficulty completing tasks and following instructions and was not able to pay attention for as long as 20 minutes. She did not get along well with others, including authority figures, and had been fired from a job due to her inability to get along with co-workers and bosses. She did not handle stress or changes in routine well. Plaintiff had difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, seeing, using her hands, completing tasks, concentrating, understanding, following instructions, and getting along with others. In a narrative section, she wrote that her diabetes prevented her from engaging in much activity. She was unable to stand or walk as a result of pain and swelling in her legs due to neuropathy and she was unable to sit for long periods or lift due to her lumbar spine impairment. She had anxiety and panic attacks that made it difficult for her to get along with others and she was uninterested in activities due to her depression. She could not count change and had difficulty learning work routines. In August 2015, plaintiff listed her medications as insulin and hydrocodone. In a report completed in November 2015 (Tr. 291-98), plaintiff stated that her doctor had prescribed a third type of insulin to address her diabetes and changed her medications to address increased pain in her legs and feet. Her mental state was worse as well, she stated, with an increase in her anxiety and depression. She wrote that her high blood sugar caused her to pass out and wearing shoes and socks was “unbearable” due to increased pain. (Tr. 295). In February 2017, she was taking gabapentin, Valium, iron, vitamin B12, and Excedrin for Headaches in addition to her pain and diabetes medications. (Tr. 313-14).

         Plaintiff testified at the March 2017 hearing that she had surgery on her lumbar spine in November 2016. (Tr. 42). Bone was removed from her left hip to create a graft.[4] (Tr. 52-53). As a side effect of the surgery, she experienced swelling and pain in her legs and feet. (Tr. 48-49). When that happened, she had to lie down for three or four hours. (Tr. 51-52). She had just begun a course of injections and aquatic therapy. (Tr. 42, 48). Plaintiff testified that she had been unable to afford insulin to treat her diabetes since 2000 and was relying on medication left over from that time. (Tr. 55-56). Shortly before the hearing, plaintiff experienced an episode of elevated blood sugars that required emergency intervention. (Tr. 54). Plaintiff also testified that her immune system was compromised due to her diabetes and she was unable to fight off colds. (Tr. 43). In addition, she had diabetic retinopathy. (Tr. 49). Her diabetes had also compromised her bowel and bladder control and on two occasions while shopping at Wal-Mart she was unable to reach the restroom. (Tr. 49-50). Her social life was restricted because she wanted to stay close to the bathroom. She had a partial hysterectomy and tarsal tunnel surgery. (Tr. 43-44). In 2012 or 2013, she was diagnosed with cardiac arrhythmia. Her learning disabilities affected her comprehension and her ability to count money. (Tr. 44-45). She was not presently receiving treatment for mental health impairments. (Tr. 47). She had occasional migraine headaches. (Tr. 53). Plaintiff estimated that she could walk for five to ten minutes and stand for fifteen to twenty minutes before needing to rest. She could sit for five to ten minutes before she needed to get up and move around. She could not lift anything heavier than a gallon of milk. (Tr. 47). Cold weather affected her back pain and hot weather affected her diabetes.

         Vocational expert Jennifer Smidt 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, and occasionally stoop, kneel, crouch, and crawl. The person needed to work in a temperature-controlled environment, and avoid concentrated exposure to vibration, moving machinery and unprotected heights. Finally, the individual was limited to unskilled work. (Tr. 57-58). According to Ms. Smidt, such an individual would be unable to perform plaintiff's past work as a home health care aide. Other jobs were available in the national economy, such as marker, routing clerk, and photocopy machine operator. (Tr. 58). These jobs would be precluded if the individual were limited to performing sedentary work, but other jobs were available, including callout worker, document preparer, and administrative support worker. All work would be precluded if the individual required occasional unscheduled disruptions of the work day and work week due to pain or an inability to focus. (Tr. 58-59).

         B. Medical Evidence

         1. Education Records

         Education records from plaintiff's high school show that she had a learning disability in the area of mathematics, with some difficulties with spelling and grammar structure. She had strengths in reading comprehension and organizational skills. She preferred small-group and one-on-one instruction. (Tr. 337). In her senior year, plaintiff successfully passed all regular education classes with additional services from the cross-categorical resource room, using materials from her regular education instructors. (Tr. 335). Testing completed during plaintiff's sophomore year yielded a Full Scale IQ score of 73, which placed her in the borderline range of intelligence. At the same time, however, she demonstrated above average performance in tests of academic readiness in all areas except mathematics. (Tr. 342-43). Her classroom teachers reported that plaintiff was not a discipline problem, but needed frequent teacher approval. She was “perceived as a liar” because she had “a habit of telling stories . . . that are absolutely false. This behavior may more accurately be described as fantasizing, because she appears to believe” her stories. (Tr. 342).

         2. Medical Records

         During the period under review, plaintiff frequently sought treatment from the emergency department of the Poplar Bluff Regional Medical Center. For a period of time, she received primary care services from Chul Kim, M.D., at the Westwood Medical Clinic. In addition, she received services from medical specialists.

         Between August and November 2011, plaintiff sought emergency treatment on four occasions for complaints of depression, a small abscess, and abdominal pain. (Tr. 559-61, 552-57, 542-49, 535-40). She had one such visit in 2012 for anxiety. (Tr. 524-33). She sought emergency treatment in July and December 2013 for abdominal pain and depression.[5] She also had elevated glucose levels. (Tr. 490-500, 475-88, 462-68). Imaging completed on December 16, 2013, disclosed chronic cholecystitis. (Tr. 470). On January 30, 3014, plaintiff underwent laparoscopic cholecystectomy and repair of an umbilical hernia. Her glucose level was lower. (Tr. 363-75). At follow up on February 24, 2014, she complained of minimal pain around her umbilical site but was doing well overall and had good resolution of her symptoms. (Tr. 358- 60). She denied experiencing fatigue, palpitations, back pain or stiffness, incontinence, and joint pain or swelling.

         There are no records of further medical care until July 29, 2014, when the car plaintiff was driving was struck on the passenger side. At the emergency department, she complained of pain in her neck and right knee. (Tr. 447-60). On examination, she had limited range of motion of the right knee due to pain. Imaging of the neck, cervical spine, and right knee were unremarkable, with the exception of straightening of the cervical spine. She was discharged with prescriptions for Flexeril and Norco. The record contains no mention of her glucose level. She returned to the emergency department two days later with complaints of continued pain in her neck and right knee. (Tr. 437-45). On examination, she had moderate pain in the neck, right trapezius, and right knee. She was discharged without medication and directed to follow up with her private physician and to return to the emergency department if her condition worsened. On August 15, 2014, she returned to the emergency department for treatment of contact dermatitis. (Tr. 430-34). On examination, she had full range of motion of her neck, a steady gait, and no complaints of musculoskeletal pain. There is no indication that her glucose levels were concerning.

         On August 27, 2014, Sonjay Fonn, D.O., of Midwest Neurosurgeons, evaluated plaintiff's complaints of pain in her neck and low back following her car accident in July 2014. (Tr. 622-35). She complained of low back pain that radiated into her right leg with numbness and tingling and pain in her neck with numbness and tingling in her right arm. She also reported that she had a history of irregular heartbeat, poor circulation, swelling in her ankles, varicose veins, headaches, pain in her knees, and depression. On examination, she had no edema or cyanosis, full strength and normal muscle tone, normal gait and station, and her sensory and neurologic exams were normal. Her mental status examination was normal. Dr. Fonn assessed plaintiff with “signs and symptoms suggestive of lumbar radiculopathy.” (Tr. 624).

         On September 18, 2014, plaintiff sought treatment at the emergency department for complaints of dizziness and vertigo. (Tr. 421-28). On examination, she had no spinal tenderness and full range of motion of the neck and spine. It was noted that plaintiff's complaints were “out of proportion” to the examination findings. (Tr. 424). She was diagnosed with otitis media and discharged with prescriptions for antihistamines and antibiotics. There was no discussion of elevated glucose levels.

         On October 21, 2014, plaintiff sought treatment from Chul Kim, M.D., at the Westwood Medical Clinic. (Tr. 568-70). She complained of low back pain following her July 2014 car accident, nervousness, and hyperglycemia. In addition, she stated that she experienced a racing heart beat and shortness of breath about once a week. Her past medical history included a partial hysterectomy in 2003 and normal 24-holter monitoring and cardiac catheterization in 2007. She denied experiencing tingling, palpitations, back pain, stiffness or limitation in motion. She was taking Humalog and Levemir for her diabetes, and the antidepressant Lexapro. On examination, Dr. Kim noted that plaintiff looked tired. She had tenderness in the upper abdomen and low back. She displayed a normal gait and had no focal deficits. Her mood and affect were normal. Dr. Kim assessed plaintiff with diabetes, anxiety, low back pain, and PSVT.[6] Dr. Kim prescribed Naproxen, hydroxyzine, Celexa, and tramadol. At follow-up in November 2014, plaintiff reported that she was still depressed and stressed, had low back pain and had had three migraine headaches. (Tr. 571-73). Her glucose levels were lower. She also reported that a week earlier she had sought treatment for back pain at the emergency department where she was given Norco without benefit. On examination, Dr. Kim noted that plaintiff appeared well and was not in distress. With the exception of tenderness to the low back, her examination was unremarkable. Plaintiff was encouraged to exercise and was prescribed gabapentin, Flexeril, and hydrocodone. In December 2014, plaintiff reported that she had pain in both feet with numbness in her big toes, pain in her right upper abdomen after meals, and nervousness due to stress. (Tr. 574-76). On examination, she looked tired and had tenderness in her low back. Her mood, affect, gait, and extremities were all normal. Dr. Kim added diabetic peripheral neuropathy to plaintiff's problem list and prescribed hydroxyzine, [7] increased plaintiff's gabapentin, and encouraged her to diet and exercise. There is no indication of what her glucose levels were.

         On January 20, 2015, plaintiff went to the emergency department seeking treatment for an upper respiratory infection and bronchitis. (Tr. 414-19). She reported that she was seen the previous day at another emergency room. On examination, as relevant here, she was not in acute distress, had full range of motion of the neck, and had no cardiovascular or respiratory symptoms. She was given prescriptions for an antibiotic and cough syrup with codeine. There is no mention of elevated glucose levels. The following day, plaintiff told Dr. Kim that she had been sick for four days. (Tr. 577-79). She reported home glucose levels of 301 and 181. Dr. Kim noted that plaintiff looked weak and tired and was coughing but her examination was otherwise unremarkable. She was given the antibiotic Zithromax.

         On February 23, 2015, plaintiff told Dr. Kim that her prescriptions for Norco and gabapentin were not addressing her low back pain and neuropathy symptoms. (Tr. 580-82). She also reported occasional palpitations. On examination, she did not appear in distress, her spine was normal without deformity or tenderness, and she had a normal range of motion. Dr. Kim prescribed increased dosages of plaintiff's Norco and gabapentin. He noted that she had not had the A1C blood test[8] for two years.

         On March 10, 2015, plaintiff went to the emergency department after experiencing numbness in her face while exercising. (Tr. 401-12). On examination, she was not in acute distress and had full range of motion of the neck and spine, without tenderness. Her mental status was normal. A CT scan of the head and brain was normal, while a CT scan of the cervical spine disclosed straightening of the cervical lordosis without significant listhesis. She was discharged with a prescription for the steroid Medrol. There was no discussion of her glucose levels.

         On March 24, 2015, plaintiff told Dr. Kim that her low back pain persisted. (Tr. 583-85). In addition, she had woken up with abdominal pain and nausea twice in the last week and had painful swelling in both legs for more than 10 days. She also reported palpitations, diarrhea, nervousness, and depression. Her home glucose level was 100. On examination, she appeared well and was in no distress, with normal mood and affect. She did not display edema, clubbing, or cyanosis of the extremities. Dr. Kim added diarrhea following cholecystectomy to plaintiff's problem list, but ...

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