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Norman v. Berryhill

United States District Court, N.D. Florida, Gainesville Division

June 7, 2018

TANGY LORIENE NORMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals to this Court from a final decision of the Acting Commissioner of Social Security (the “Commissioner”) denying her applications for Period of Disability and Disability Insurance Benefits under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income under Title XVI of the Act. (ECF No. 1.) The Commissioner has answered, ECF No. 13, and both parties have filed briefs outlining their respective positions. (ECF Nos. 18, 19.) For the reasons discussed below, it is recommended that the Commissioner's decision be affirmed.

         I. PROCEDURAL HISTORY

         Plaintiff filed her Title II and Title XVI applications on February 16, 2011, alleging a disability onset date of January 20, 2011. (R. 12, 129-30, 136-39, 1094-97.) Plaintiff alleged that she could no longer work due to neck pain, back pain, chest pain, and migraines. (R. 12, 730-46.) Her application was denied initially and upon reconsideration. (R. 35-45, 98-109.) Plaintiff amended the alleged onset date to April 1, 2011. (R. 12, 772-80.) After a hearing, an administrative law judge (“ALJ”) issued a decision unfavorable to Plaintiff on November 20, 2012. (R. 556-73.)

         The Appeals Council remanded for further consideration. (R. 574-77.) The ALJ then held another hearing on January 26, 2016, and again found on April 8, 2016, that Plaintiff was not disabled. (R. 9D-28.) After this opinion the Appeals Council denied Plaintiff's request for review on February 17, 2017. (R. 9A-9C.) Plaintiff then filed the instant appeal. (ECF No. 1.)

         II. STANDARD OF REVIEW

         The Commissioner's findings of fact are conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g) (2012). Substantial evidence is more than a scintilla, i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).

         Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court must also consider evidence detracting from evidence on which the Commissioner relied). However, the district court will reverse the Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep't Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(I), 423(d)(1) (2012); 20 C.F.R. §§ 404.1505, 416.905 (2015).[1] The impairment must be severe, making Plaintiff unable to do her previous work, or any other substantial gainful activity which exists in the national economy. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.

         The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). First, if a claimant is working at a substantial gainful activity, she is not disabled. §§ 404.1520(b), 416.920(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. §§ 404.1520(c), 416.920(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled. §§ 404.1520(d), 416.920(d). Fourth, if a claimant's impairments do not prevent her from doing past relevant work, she is not disabled. §§ 404.1520(e)-(f), 416.920(e)-(f). Fifth, if a claimant's impairments (considering her residual functional capacity (“RFC”), age, education, and past work) prevent her from doing other work that exists in the national economy, then she is disabled. §§ 404.1520(g), 416.920(g).

         III. SUMMARY OF THE RECORD

         Because the issues on appeal relate primarily to the ALJ's treatment of the opinion evidence, including Dr. Thompson's and Dr. Warchya's opinions, and the ALJ's Residual Functional Capacity (“RFC”) assessment, the relevant portions of the medical record, the opinion evidence, the hearing testimony, and the ALJ's findings are summarized below.

         A. Medical Evidence

         Throughout 2010 and to March 2011 Plaintiff visited Gainesville Primary Care Physicians.[2] Her diagnoses included migraine headaches consistently and neck pain and insomnia frequently. Her physical exam findings were normal other than occasional ear problems as well as neck tenderness and decreased range of motion in November 2010. Her prescribed treatment included medication and at times therapy and exercise. Notably, she reported improvement to her headaches and neck pain from physical therapy and massage therapy. (R. 217-86, 412-14.)[3]

         In May and August 2010 Plaintiff underwent consultations regarding her migraine headaches. Her physical exam findings were normal, and she did not complain of other pain. The impression was chronic daily headaches with strong migrainous features. But the recommended treatment involved only increasing her pain medications. (R. 160-65.)

         From May 2010 to February 2011 Plaintiff also visited North Florida Regional Medical Center due to her migraine headaches. She had no other complaints other than associated nausea, her physical exam was normal (other than an abnormal ear exam on one occasion), her CT scan findings were stable and showed no acute intracranial findings, and her treatment involved IV and prescription medications. Notably, during each visit she improved after medication. (R. 167-98, 206-14, 330-66.)

         Plaintiff also visited Richard Johansen Physical Therapy from December 2010 to May 2011. By the end of January, it was noted that her migraine headaches were reduced and that her right arm symptoms were gone. Additionally, her range of motion and mobility improved after each visit. Overall, Plaintiff's right upper extremity symptoms resolved well but that she continued to experience migraine headaches, neck pain, and occasional back pain. (R. 512-41, 543-44.)

         Plaintiff also visited Florida Pain and Rehabilitation Center from February to June 2011 to address her headaches and neck pain radiating to the right shoulder and arm.[4] Upon examination, Plaintiff exhibited tenderness on bilateral occipital nerve and cervical spine, and she had a positive Spurling sign bilaterally. The diagnoses included stable neck pain, occipital neuralgia, cervical radiculopathy, C4-5, C5-6 disc protrustion, and lesser extent C6-7 with mild bilateral foraminal stenosis at ¶ 5-6, cervical facet joint syndrome, carpal tunnel syndrome on the right side, low back pain, right foot and toe pain, hypertension, and depression.[5] (R. 196-200, 298-302, 312-15, 391-92, 446-50, 458-63, 507-11.)

         With regard to procedures and diagnostic testing, Plaintiff underwent a greater occipital nerve block in February 2011, cervical epidural steroid injections in February and March 2011, which offered her some pain relief, and a facet medial branch block in April 2011. She also had an MRI of her cervical spine done in February 2011, which revealed small broad-based central disc protrusion at ¶ 4-C5, C5-C6, and C6-C7. There was no cord compression, but there was mild bilateral neural foraminal narrowing at ¶ 5-C6.[6] (R. 201-05, 303-11, 317-21, 391-92, 451-57, 497.)

         In May 2011 Plaintiff visited the Orthopaedic Institute regarding neck pain and right shoulder and arm pain. Her physical exam findings were normal other than moderate paraspinous muscle spasms, some slight weakness in her right biceps and triceps, and reduced sensory in the right C6-7 distribution. Upon radiographic imaging, the impression was cervical spondylosis causing cervicalgia and intermittent cervical radiculopathy. The recommended treatment plan involved considering anterior cervical diskectomy and fusion at ¶ 4-5, C5-6, and C6-7. (R. 296-97, 435-36, 438-39.)[7]

         Plaintiff visited Primary Care Physicians of Gainesville from August 2011 to May 2012. Her physical exams revealed overall normal findings, but at times a mildly tender neck with decreased range of motion due to pain as well as lumbar tenderness. Her diagnoses included neck pain, headache/migraine, hypertension, low back pain, muscle spasm, generalized abdominal pain, hematuria, UTI, otalgia, post-gastric surgery syndromes, exposure to communicable disease, and insomnia. The course of treatment involved medication. (R. 415-34.)

         Plaintiff returned to Florida Pain and Rehabilitation Center from June 2011 and throughout 2012, and she experienced some relief from the course of treatment during this time. Plaintiff underwent trigger point injections in March and May 2012, and she experienced 50% pain relief. In October 2012 Plaintiff underwent a facet medial branch block of the cervical and thoracic spine, which resulted in 100% pain relief. She also underwent lumbar epidural steroid injections in November 2012. The notes also reflect that her medication and physical therapy were helping some. (R. 367-91, 410-11, 464-90, 492-93, 499-500, 1000-08.)[8]

         Plaintiff continued at the Florida Pain and Rehabilitation Center in 2013 and 2014. She stated that her medication was helping some and that she was not experiencing any side effects. Her treatment continued to involve medication only, which provided adequate relief, and she declined procedures and surgical consults. She did, however, undergo a trigger point injection in October 2013 to address her occipital neuralgia. But in February 2014 Plaintiff was permanently discharged from the clinic due to violating the narcotic contract. (R. 903-04, 1009-25.)

         Plaintiff returned to Primary Care Physicians of Gainesville in January 2014. Her physical exam findings were normal other than tenderness over the cervical and thoracic spine. Her assessments included insomnia, anxiety, migraine headaches, and neck pain. But her treatment involved medication only. (R. 899-902.)

         In March 2014 Plaintiff underwent diagnostic cervical facet joint injections at ¶ 4/C5, C5/C6, and C6/C7 at the Laser Spine Institute. After the procedure, Plaintiff reported 100% improvement. Her cervical MRI/CT scans revealed degenerative disc disease, bulging disc, foraminal stenonosis, facet degen/hypertrophy, and osteophytes at the C4/C5, C5/C6, and C6/C7 levels. Additionally, spinal stenosis in cervical region, displacement of cervical intervertebral disc without myelopathy, cervical spondylosis without myelopathy, and degeneration of the cervical intervertebral disc were noted. Then in June 2014 Plaintiff underwent a radiofrequency denervation to the dorsomedial nerves located at ¶ 4, C5, C6, and C7 areas at North Florida Surgical Pavilion. (R. 827-44, 850-51, 860-65, 919-44, 985-87.)

         Plaintiff also visited Southeastern Rehabilitation Medicine in 2014 and 2015 regarding pain management for cervical pain, low back pain, and migraine headaches. In 2014 her physical exam findings revealed tenderness over the cervical and thoracolumbar spine as well as restricted cervical spine range of motion, but a note in the findings stated she exhibited “pain behaviors of overreaction, superficial tenderness and severe guarding.” In 2015 her physical exam findings revealed tenderness of the neck and neck pain with motion as well as lumbosacral tenderness, but all other findings were normal. Her assessments included backache, cervical spondylosis (C4-C5), chronic common migraine, cervicalgia, depression, anxiety disorder, and chronic pain syndrome. Her treatment, however, included medication and home exercise as tolerated. (R. 858-59, 867-83, 908-12, 945-84, 987-98, 1029-59, 1068-72, 1074-86.)[9]

         Plaintiff also visited Southeastern Health Psychology in 2014. Her diagnostic classification included bipolar disorder, posttraumatic stress disorder, and pain disorder associated with both psychological factors and general medical condition. Due to the complexity of her medical and psychiatric problems, Plaintiff was referred to Shands Vista outpatient services. (R. 1065-67.)[10]

         B. Opinion Evidence

         1. Nicolas Bancks, M.D.

         Dr. Bancks, a medical consultant, completed a physical RFC assessment on July 14, 2011. He found that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, and she could sit, stand, and/or walk for about 6 hours in an 8-hour workday. Plaintiff also had limited push and/or pull in her upper extremities, and she could only occasionally climb, balance, stoop, kneel, crouch, and crawl. She also needed to avoid concentrated exposure to hazards, such as machinery and heights. Dr. Bancks also specifically noted that there was no objective basis to limit Plaintiff to sedentary work. (R.322-29.)

         2. ...


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