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McCartney v. Berryhill

United States District Court, S.D. Florida

June 13, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         THIS CAUSE comes before this Court upon the above Motions. The telephonic hearing was set for June 12, 2018. On the date and time for that hearing, counsel for Defendant called Chambers to report that she has not been able to reach the Plaintiff at her telephone number of record. (In its Order (DE 13) setting the hearing this Court advised the Plaintiff to give the Defendant a telephone number where she could be reached.) Nor did the Plaintiff call Chambers separately. Therefore the telephonic conference did not take place. This Court will not re-set the telephonic conference. Instead this Court will rule on the basis of the existing record. The existing record provides an ample basis by which to rule. Therefore, having reviewed the Motions, the Defendant's Response (DE 22), and the Administrative Record (DE 12) and without holding a hearing, this Court finds as follows:


         1. The Plaintiff applied for supplemental security income under Title XVI of the Social Security Act in January 2013. The application was denied at the first two administrative levels of review. On August 31, 2016, following a hearing, an Administrative Law Judge ("ALJ") rendered a decision finding the Plaintiff not disabled under the terms of the Social Security Act. The Appeals Council denied the Request for Review on July 28, 2017, thereby leaving the ALJ's decision final and subject to judicial review.

         2. The Plaintiff attended school through the 8th grade, leaving in 1990. From 1990 to 2008 she worked as a cashier for different retailers and restaurants. Her work history is sporadic.

         3. The disability application at issue here is not her first. At some point before September 2008 she had applied for disability benefits. The basis of that disability claim is unknown. From this period of time the instant record contains only one medical record: a consultative psychological evaluation by Dr. Schell dated September 11, 2008. Although a psychological evaluation, the Plaintiff emphasized physical health complaints: she complained of varied and severe pain that she attributed to a fractured back injury from September 2003. Dr. Schell observed pronounced pain behaviors. The Plaintiff reported taking a wide variety of opioid and other pain medications. As for her mental health complaints, she reported a history of mood swings, irritability, and poor concentration as well as past mental health treatment. She was not currently seeking mental health care, however. She cried during the appointment, and she had a detached and somatic affect. Dr. Schell otherwise reported a normal mental status. Dr. Schell diagnosed Attention Deficit Disorder (based on the Plaintiff's report), Bipolar Disorder II, somatization disorder chronic pain-type, and borderline personality disorder. Dr. Schell noted the presence of severe non-medical psycho-social stressors with work and social components, and he gave a GAF score of 64.

         4. In July 2009 the Commissioner denied that first application at the reconsideration level of administrative review. In 2009 and 2010 the Plaintiff worked as a CNA home health aide. None of her work history reached the substantial gainful employment level.

         5. The medical record resumes in February 2011. The Plaintiff had gone to the Treasure Coast clinic complaining of very severe pain in her right hand. The examination was overall normal except for reduced grip strength. The Plaintiff was prescribed Meloxicam and Tramadol. In May 2011 the Plaintiff began working as a veterinary technician.

         6. On September 11, 2012 she was involved in a car accident: she rear-ended a car that had pulled out in front of her. (A personal injury lawyer represented her for this accident.) She did not return to work afterwards; the date of this car accident is her date last worked.

         7. The Plaintiff went to the hospital after that car accident. She complained of a wide variety of very severe pain. A wide variety of radiographs and other diagnostic studies were performed, but no objectively determinable abnormality was found to explain her subjective pain complaints. The doctor suspected symptom exaggeration. The diagnosis was limited to. cervical strain possibly accompanied by right shoulder and hip strain, too. the doctor noted a bulge at the C5-6 disc.

         8. The hospital had given the Plaintiff opioid pain medication during her stay. She returned to the hospital on September 19th requesting oxycodone. She complained of neck and back pain. The attending doctor regarded her neck pain complaints as disproportionate to what the objective medical evidence shows. Cervical spasm and neck pain were diagnosed, and Toradol and Flexeril were prescribed.

         9. Starting on September 19th the Plaintiff began seeing a chiropractor, Dr. Labella, D.C. She saw him for regular appointments through November 14th. At that last treatment note of record the Plaintiff reported a wide variety of severe pain complaints.

         10. MRI's were taken on October 23, 2012. The MRI of her cervical spine showed bulges at the C2-3, C3-4, and C4-5 discs. The MRI of her lumbar spine showed bulges at the L4-5 and L5-S1 discs. Neither the cervical nor the lumbar bulges were causing nerve compression.

         11. At that last appointment with Dr. Labella, the Plaintiff stated that she wanted a new "OD" which this Court presumes to mean a new osteopath or orthopedic doctor. The record contains no orthopedic treatment notes leading up to this point in time, however. Evidently the Plaintiff did find a new orthopedist because on November 30th she began seeing Dr. Simon. The Plaintiff repeated her complaints of wide-ranging and very severe pain. The Plaintiff recalled pain so severe that it left her wheelchair-bound for two months (a circumstance which the preceding record does not show). Likewise she described the car accident, itself, in terms more severe than she did at the hospital. Dr. Simon was unable to conduct an adequate physical examination. He prescribed Percocet.

         12. The Plaintiff returned to Dr. Simon on December 21st. At this appointment Dr. Simon reviewed the MRI's. He read the lumbar MRI as showing a herniation at the L5-S1 disc for which ' he saw need for surgery. He saw no acute abnormality in the Plaintiff's cervical spine.

         13. On January 17, 2013 the Plaintiff filed the disability application under review here. She claimed a wide range of pain complaints and a wide range of very severe impairments stemming therefrom. She denied taking any medications for the pain (although Dr. Simon was prescribing Percocet). A case worker observed exaggerated pain behaviors. The Plaintiff also claimed pain-related depression and poor sleep.

         14. On January 25th the Plaintiff returned to Dr. Simon. She asked for an increase of her Percocet medication. Up to this point she had been unable to begin treatment with a pain management provider, she told him. At the next appointment on February 14th a colleague of Dr. Simon, Dr. Billinghurst, again referred the Plaintiff to pain management. The diagnosis that Dr. Billinghurst gave was of cervical and lumbar disc bulges and chronic pain syndrome. Dr. Billinghurst mentioned neither a herniation nor need for surgery.

         15. On March 11, 2013 the Plaintiff saw Dr. Mihalovich for a consultative psychological evaluation. The Plaintiff reported symptoms of depression, anxiety, and agitation. The mental status examination was consistent with those symptoms. Dr. Mihalovich diagnosed (1) Pain Disorder with physical and psychological factors and (2) Personality Disorder NOS ("not otherwise specified") with possible borderline features.

         16. On June 11, 2013 a chiropractor, Dr. Douglas, DC, filled out a Physical Capacity Evaluation questionnaire. He opined that the Plaintiff has a disabling degree of functional impairments. He stated that the Plaintiff limps from low back pain, has two bulging lumbar discs, and is unable to bend at the waist. He stated that neuropathy prevents frequent extremity use. Lastly he stated that the Plaintiff has ...

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