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Cindy W. v. Saul

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

September 19, 2019

CINDY W., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of 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 Cindy W.'s ("Plaintiff) application for disability benefits under Title II of the Social Security Act, see 42 U.S.C. §§ 401 et seq. All matters are pending before the undersigned United States Magistrate Judge with the consent of the parties, pursuant to 28 U.S.C. § 636(c). Substantial evidence supports the Commissioner's decision, and therefore it is affirmed. See 42 U.S.C. § 405(g).

         I. Procedural History

         On December 14, 2015, Plaintiff filed an application for disability benefits, arguing that her disability began on February 1, 2015, [1] as a result of bipolar disorder, depression, anxiety, total knee replacement, high blood pressure, high cholesterol, underactive thyroid, insomnia, sleep apnea, and neuropathy. (Tr. 91, 168-71, 191) Plaintiffs date of last insured is December 31, 2019. (Tr.192) On April 4, 2016, Plaintiffs claims were denied upon initial consideration. (Tr. 91-95) Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). Plaintiff appeared at the hearing (with counsel) on October 3, 2017, and testified concerning the nature of her disability, her functional limitations, and her past work. (Tr. 28-74) The ALJ also heard testimony from Debra Determan, a vocational expert ("VE"). (Tr. 65-74, 316-18) The VE opined as to Plaintiffs ability to perform her past relevant work and to secure other work in the national economy, based upon Plaintiffs functional limitations, age, and education. (Id.) After taking Plaintiffs testimony, considering the VE's testimony, and reviewing the rest of the evidence of record, the ALJ issued a decision on December 1, 2017, finding that Plaintiff was not disabled, and therefore denying benefits. (Tr. 8-22)

         Plaintiff sought review of the ALJ's decision before the Appeals Council of the Social Security Administration ("SSA"). (Tr. 1-5) On February 13, 2018, the Appeals Council denied review of Plaintiff s claims, making the December 1, 2017, decision of the ALJ the final decision of the Commissioner. Plaintiff has therefore exhausted her administrative remedies, and her appeal is properly before this Court. See 42 U.S.C. § 405(g).

         In her brief to this Court, Plaintiff raises five related issues. First, Plaintiff argues that the ALJ erred by giving partial weight to the opinions of Dr. Mattingly regarding her mental impairments. Plaintiff also challenges the ALJ's evaluation of her subjective complaints. Plaintiff argues that the ALJ erred by not finding her migraine headaches to be a severe impairment. Next, Plaintiff challenges the ALJ's determination that she retained the Residual Functional Capacity ("RFC") to perform light work. Lastly, Plaintiff requests that if the Court remands this case for further proceedings, the case be assigned to a different ALJ. Because the Court finds that remand is not appropriate, it does address the allegations of ALJ bias. The Commissioner filed a detailed brief in opposition. In her Reply brief, Plaintiff raises for the first time an additional argument regarding the weight accorded to Dr. Sturm's PMSS.

         As explained below, the Court has considered the entire record in this matter. Because the decision of the Commissioner is supported by substantial evidence, it will be affirmed.

         II. Medical Records

         The administrative record before this Court includes medical records concerning Plaintiffs health treatment from September 26, 2013, through September 28, 2017. The Court has reviewed the entire record. The following is a summary of pertinent portions of the medical records relevant to the matters at issue in this case.

         A. Mid County Orthopedics - Dr. Jason Rabenold (Tr. 367-93, 412-20, 428-36, 443-77)

         On February 16, 2015, Dr. Jason Rabenold treated Plaintiff for a right shoulder cuff tear. Plaintiff reported pain and difficulty with her daily activities and working as a school bus driver. After finding conservative treatment, including injections, therapy, anti-inflammatories, and activity modification, had not alleviated Plaintiffs pain, Dr. Rabenold performed surgery.

         On March 3, 2015, Dr. Rabenold performed right shoulder arthroscopy with rotator cuff repair and debridement surgery. In post-surgery follow up on March 9, 2015, Plaintiff reported that her pain was under control and she was exercising. Dr. Rabenold ordered physical therapy. Plaintiff indicated that she had lost her job so she would no longer have insurance as of April 1, 2015. Dr. Rabenold contacted Advanced Physical Therapy about a payment plan for Plaintiff. Plaintiff returned on April 6, 2015, and reported doing well and doing her physical therapy exercises. In follow-up treatment on May 18, 2015, Plaintiff reported her pain being under control and completing her home exercises. Dr. Rabenold continued Plaintiffs physical therapy treatment to improve her strengthening and conditioning.

         On September 17, 2015, Advanced Training and Rehab discharged Plaintiff and noted that Plaintiff had met 100% of her goals and achieved the maximum benefit of therapy.

         B. St. Charles Psychiatric Associates - Dr. Gregory Mattingly (Tr. 360-62, 395-402, 886-92)

         Between September 26, 2013, and April 6, 2017, Dr. Gregory Mattingly treated Plaintiffs bipolar disorder and attention deficit hyperactivity disorder ("ADHD"). Many of Dr. Mattingly's treatment notes tend to be illegible.

         On September 26, 2013, Dr. Mattingly's mental status examination showed Plaintiff was active, alert and oriented in person, time and place ("AAOX3"), with no suicidal or homicidal ideations. During treatment on January 28, 2014, Dr. Mattingly noted that Plaintiffs therapy goals included finding life balance and addressing stress and money management. Plaintiff reported that she had two minor school bus accidents so far this year. Mental status examination showed Plaintiff was AAOX3, with no suicidal or homicidal ideations, and decreased focus.

         On May 16, 2014, Plaintiff reported that she had moved in with her father because of issues with her son. Dr. Mattingly noted the same mental status examination findings. On September 19, 2014, Plaintiff reported that she had moved back home after telling her husband to deal with her son. Mental status examination showed Plaintiff was AAOX3, with no suicidal or homicidal ideations or hallucinations, and fair judgment/insight. The November 10, 2014, mental status examination showed the same mental status findings.

         On February 18, 2015, Plaintiff reported being very depressed and having problems at work and at home with her son. Mental status examination showed Plaintiff was AAOX3, with no suicidal or homicidal ideations or hallucinations, and fair judgment/insight. Dr. Mattingly increased Plaintiffs Latuda dosage. Dr. Mattingly also completed a form for medical leave under the Family Medical Leave Act ("FMLA"). In the FMLA form, Dr. Mattingly indicated that Plaintiffs recurrent bipolar depression episode started on February 1, 2015, with a probable duration of two months, and prevented her from performing job functions such as focus and concentration. Dr. Mattingly also indicated that Plaintiffs mental impairment would cause flare-ups that would prevent Plaintiff from working one day every two months. On February 26, 2015, Plaintiff reported being fired from her job. Dr. Mattingly adjusted Plaintiffs medication regimen. During treatment on March 12, 2015, Plaintiff reported that she was having problems at home with her son and problems after being fired. Dr. Mattingly noted the same mental status examination findings. Dr. Mattingly adjusted her medication regimen.

         On January 26, 2016, Plaintiff reported that she "filed for disability for other problems" and being in a car accident. (Tr. 890) Mental status examination showed AAOX3, no suicidal or homicidal ideations or hallucinations, and fair judgment/insight. Dr. Mattingly refilled her medication regimen. Plaintiff returned on June 22, 2016, and Dr. Mattingly continued her medication regimen. Dr. Mattingly noted the same mental status examination findings. On August 15, 2016, Plaintiff reported being in a lot of physical pain and feeling down. Dr. Mattingly noted the same mental status examination findings. Dr. Mattingly adjusted Plaintiffs medication regimen. On October 3, 2016, Plaintiff reported continued stress caused by her son and having a restraining order against him and considering moving to Sikeston to live with her niece. Mental status examination showed Plaintiff was AAOX3, moderately stressed with no suicidal or homicidal ideations and fair judgment/insight. Dr. Mattingly continued Plaintiffs medication regimen, On January 3, 2017, Plaintiff reported that her son was living at his girlfriend's house and Plaintiff had a restraining order against him. Dr. Mattingly noted the same mental status examination findings. In treatment on April 18, 2017, Plaintiff reported continued family conflicts. Mental status examination showed Plaintiff was AAOX3, with no suicidal or homicidal ideations, improved mood, and fair judgment/insight.

         C. CenterPointe Hospital (Tr. 928-81)

         On May 9, 2016, Plaintiff presented for general medical management at CenterPointe Hospital and reported having a suicide plan. Dr. Mattingly admitted Plaintiff for treatment for her active thoughts of suicide and crisis stabilization and placed her on suicide precautions. Dr. Mattingly noted that Plaintiffs prior psychiatric history included office treatment and hospital-based treatment and that Plaintiff "has been under a great deal of stress in taking care of a father who is medically ill, [and] her son who has bipolar disorder and substance abuse." (Tr. 980) Mental status examination showed Plaintiffs mood was down, her affect constricted, her speech slowed, and she had limited judgment and insight with an average overall level of intellect.

         At the time of discharge on May 17, 2016, Dr. Richard Anderson noted that Plaintiff had received adjustments to her medications, and Plaintiff had attended group and social worker counseling. Dr. Anderson noted that Plaintiff was no longer suicidal or psychotic, and her judgment, insight, and mood had improved.

         On May 19, 2016, Plaintiff presented for an outpatient psych evaluation and for stabilization. Plaintiff reported being unemployed and taking care of her demanding father and being overwhelmed by her environment. Plaintiff denied any suicidal ideations or impulsivity but she had anxiety and was unable to accomplish tasks. Dr. Roomana Arain's mental examination showed Plaintiffs thought processes to be logical and goal directed, her mood to be depressed, her orientation intact x4, her memory intact, her judgment moderately impaired, and her attention/concentration were distracted. Dr. Arain admitted Plaintiff for stabilization and therapeutic treatment and continued her medication regimen. In the discharge summary, Plaintiff noted that she had regained the stress of her home life, including being financially strained with some concern of having to file bankruptcy. Plaintiff reported that being the care taker of her alcoholic and verbally abusive father had put her over the edge and that she was no longer taking care of him. Plaintiff reported symptoms including irritability, poor concentration and motivation, anxiety, sadness, feeling of loss, low self-esteem, increased anger and appetite, and decreased daily activities. Plaintiff listed her stressors included taking care of her father, finances, chronic pain, conflict with her spouse, son's polysubstance abuse, and denial of Social Security benefits. Dr. Arain diagnosed Plaintiff with major depressive disorder and generalized anxiety disorder. Dr. Arain noted that Plaintiff was motivated for and cooperative with treatment.

         On June 3, 2016, Plaintiff was readmitted to the inpatient program because she reported feeling suicidal again and for evaluation and treatment for her problems with bipolar disorder and depression. Plaintiff listed her medically ill father, her son's bipolar disorder and behavior, and her difficult relationship with her unsupportive husband as her stressors. Mental status examination showed Plaintiff to be alert and oriented x3, depressed mood, constricted affect, limited judgment and insight, and positive thoughts of suicide. Dr. Anderson increased her dosage of medications and directed Plaintiff to participate in the therapy. In the discharge summary, Dr. Mattingly noted that Plaintiffs medication regimen had been adjusted while in the hospital, and her depressive symptoms and suicidal ideations had gradually improved. Her diagnoses were major depressive disorder, generalized anxiety disorder, and ADHD. Plaintiffs discharge follow-up included scheduling an appointment with Dr. Mattingly and transcranial magnetic stimulation treatment ("TMS").[2]

         Between June 13 and July 15, 2016, Plaintiff received frequent outpatient TMS treatment. During treatment, Plaintiff noted that her main stressor was her son who had been kicked out of the house by her husband. Plaintiff questioned whether she was depressed or worried about her family situation. Plaintiff did not report any side effects from the TMS treatment. Plaintiff reported 100% improvement for her depression with no crying episodes and feeling like she can handle situations. On June 27, 2016, Plaintiff reported that she felt like she had almost made "a complete turn around." (Tr. 949) Plaintiff also reported being excited for the future "for the first time in forever, " communicating better with her family, and enjoying life. During treatment on July 1, 2106, Plaintiff reported completing tasks around the house and socializing with friends and family and denied having any depression or anxiety. The treatment notes showed that Plaintiff had experienced improvement in her energy, motivation, depression, anxiety, and communications with her family. Plaintiff reported feeling the best she had felt in years. After her last TMS treatment, the therapist noted that Plaintiff would continue follow-up treatment with Dr. Mattingly.

         Between March 8 and March 20, 2017, Plaintiff received daily, outpatient TMS treatment. Plaintiff reported being estranged from her son and interested in pursuing volunteer opportunities. Plaintiff reported looking for a part time job and being in an unhealthy relationship with her husband. Plaintiff reported no negative side effects from the TMS treatment and the treatment really helped her symptoms.

         D. Mercy Clinic Pulmonology - Dr. Michael Brischetto (Tr.486-92, 894-924)

         On November 11, 2015, Dr. Michael Brischetto evaluated Plaintiff for possible sleep apnea and noted in his impression, sleep onset insomnia due to anxiety, anxiety, depression, and snoring. Dr. Brischetto recommended doing a sleep study and adjusted Plaintiffs medication regimen. Plaintiff reported stress from having her son live with her but her stress level had improved since her son was in treatment at a rehab facility. Examination showed no back, neck, or joint pain. Plaintiff indicated that she has problems due to her finances, husband, and son. Dr. Brischetto observed that Plaintiff had a normal gait.

         A December 11, 2015, sleep study showed mild-to-moderate obstructive sleep apnea, and the doctor recommended that Plaintiff return for CPAP titration.

         On August 19, 2016, Plaintiff reported being under a lot of stress from caring for her alcoholic father, placing her son in rehab, and being fired. Dr. Brischetto directed Plaintiff to continue using a CPAP and to exercise three to four hours prior to bed time.

         In follow-up treatment for sleep apnea and insomnia on January 16, 2017, Plaintiff indicated that she had filed for disability due to her bipolar disorder. Plaintiff reported spending a lot of time in bed playing on her computer or watching television.

         E. SSM Health St. Joseph Lake St. Louis (Tr. 497-544)

         On December 22, 2105, Plaintiff presented in the emergency room at SSM Health St. Joseph for treatment for a sternal fracture caused by a car accident. Plaintiff reported having knee and back pain. A MRI of Plaintiff s cervical spine showed no fracture and minor degenerative changes. The MRI of Plaintiff s cervical and lumbar spine was normal, and a bilateral knee x-ray was normal.

         F. Mercy Services O'Fallon Family Medicine - Dr. Alyssa Keller (Tr 552-700, 726-846)

         Dr. Alyssa Keller treated Plaintiff between December 16, 2014, and April 24, 2017.

         On December 16, 2014, Dr. Keller diagnosed Plaintiff with bronchitis. Plaintiffs Problem List included the notation, "mgrn with aura wo ntrc mgrn" with treatment from March 24, 2006, though January 17, 2011, with Dr. Thomas Sommers. Plaintiff reported having weekly migraine headaches with relpax providing relief. On February 23, 2015, Plaintiff returned for a preoperative examination and released Plaintiff for surgery. In follow-up treatment on April 13, 2015, Plaintiff reported having back pain and a rash. Plaintiff also reported crying spells and stress caused by her son's recent suicide attempt and being terminated from school bus driver job. Plaintiff indicated that Dr. Mattingly prescribed lithium for her psychiatric care, and she felt lithium and prozac helped her.

         On May 16, 2015, Plaintiff returned, complaining of back and abdominal pain. Dr. Keller noted that Plaintiffs blood pressure was well controlled on her current medication. Plaintiff returned on May 20, 2015, for a routine general medical examination with no complaints on review. Plaintiff reported previously using relpax for intermittent headaches with good relief, but she stopped taking relpax because it was not covered by her insurance. Plaintiff denied having any current headaches. Plaintiff reported starting a progressive daily aerobic exercise program and following a low-fat diet to lose weight.

         On June 23, 2015, Dr. Keller noted that Plaintiffs blood pressure was within a normal range. In follow-up treatment on August 26, 2015, Plaintiff received treatment for shingles and reported being under a great deal of stress caused by her family situation. Plaintiff explained that her son had been abusing multiple drugs and was recently released from a psychiatric unit.

         During treatment on December 1, 2015, Plaintiff returned for a medication review. Plaintiff indicated that she was applying for a new job as a driver for a packaging company and requested Dr. Keller complete the necessary paperwork. Plaintiff reported that she had a restraining order against her son because of his violent behavior and denied having any suicidal ideation or homicidal ideation. Dr. Keller observed Plaintiff had a normal gait and normal strength. Dr. Keller completed Plaintiffs paperwork for her new employer and explained how her new depression medication prescribed in the emergency room might have side effects including suicidal ideations. Plaintiff returned on December 8, 2015, to discuss restarting her psychiatric medications. Plaintiff explained that she thought she could get off some of her medications so that she could start a new job but her bipolar episodes interrupt her sleep. Dr. Keller referred Plaintiff back to Dr. Mattingly for psychiatric treatment. On December 16, 2015, Plaintiff reported "a history of bipolar disorder managed by psychiatry (Dr. Mattingly) on Latuda, adderall XR, and prozac." (Tr. 665) Plaintiff requested evaluation for burning discomfort in her feet with some numbness. In her assessment, Dr. Keller listed neuropathy and referred Plaintiff for nerve conduction testing. Plaintiff returned on December 29, 2015, for treatment after a car accident. Plaintiff reported lower back and left knee pain, severe chest pain, abdominal pain, and no severe headaches or loss of balance. An x-ray of Plaintiff s ribs showed a fracture of her fifth and sixth right lateral ribs. Dr. Keller instructed Plaintiff to rest, to apply ice as needed, and to use extra-strength Tylenol. A nerve conduction study of Plaintiff s bilateral lower extremities showed no denervation in the distal muscles on either side.

         Plaintiff returned on February 24, 2016, for follow-up treatment after a car accident. Plaintiff reported that her knee pain had improved and requested a referral for physical therapy for her back pain. On March 15, 2016, Plaintiff presented with radiating lower back pain. Examination of Plaintiff s back showed a normal range of motion and no tenderness. In treatment on March 28, 2016, Plaintiff reported that she had been seeing an orthopedic doctor and completed four weeks of physical therapy relieving her symptoms with overall improvement. Dr. Keller approved Plaintiff for medical clearance.

         Plaintiff returned on August 4, 2016, and reported feeling well with no complaints. Dr. Keller directed Plaintiff to begin a progressive daily aerobic exercise program and reduce exposure to stress. On September 27, 2016, Plaintiff reported abdominal pain possibly caused by the multiple medications she takes.

         In follow-up treatment on March 3, 2017, Plaintiff reported ongoing problems with bilateral ankle pain and swelling, a history of plantar fasciitis, and neuropathy in her feet. On April 24, 2017, Plaintiff reported left hip joint pain, swelling of right middle finger, hypertension, and bilateral swelling of her feet and ankles. Dr. Keller provided home exercises for her hip pain and continued her hypertension medication.

         G. Dr. David Lipsitz (Tr 706-10)

         On March 25, 2016, Dr. David Lipsitz, Ph.D., completed a psychological consultation after reviewing Plaintiffs medical records. Dr. Lipsitz observed that Plaintiff exhibited no difficulty with her posture or gait, and she drove herself to the consultation. As her chief complaint, Plaintiff stated that she drove a school bus for over seven years, and her bipolar disorder resulted in her not being able to deal with students so the school district fired her. Plaintiff reported a thirty-year history of psychiatric treatment. Plaintiff indicated that Dr. Mattingly diagnosed her with bipolar disorder ten years earlier. Plaintiff reported being depressed but her energy level is good. Dr. Mattingly also diagnosed Plaintiff with ADHD. Plaintiff reported "spending a lot of time taking care of her father" usually half the week Plaintiff goes to shows and plays poker once a week. Plaintiff spends most of her time playing computer games, taking care of her father, doing some housework, and preparing meals. Plaintiff indicated that she had a lot of stress caused by her son resulting in financial stress. Mental status examination showed no active psychotic functioning, depressed mood, intellectual functioning within the average range, good concentration, fair insight and judgment, and preoccupied thought processes with physical and emotional problems. Dr. Lipsitz found that Plaintiff did not have any impairment in concentration, but due to volatility factors, anxiety, and depression, Plaintiff had difficulty persisting with tasks and a somewhat slow pace.

         H. Mercy Orthopedic Clinic - Dr. Keith ...


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