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Barnes v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

August 2, 2019

Cynthia Elizabeth Barnes, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION

          PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.

         This is a case under 42 U.S.C. § 405(g)[1] to review a final decision of the Commissioner of Social Security denying Cynthia Barnes's claim for disability-insurance benefits. Barnes seeks vacatur and remand on three asserted grounds: (1) the Administrative Law Judge (“ALJ”) erred at step two of the five-step sequential process by finding her mental impairments non-severe; (2) the ALJ erred at the same step by finding her physical impairments non-severe; and (3) the ALJ violated her constitutional due process rights by relying on evidence outside the record. Doc. 22. The Commissioner contends Barnes shows no error warranting relief. Doc. 26.

         I. Framework

         The Social Security Administration (“SSA”) uses an administrative review process a claimant ordinarily must follow to receive benefits or judicial review of a denial of benefits. Bowen v. City of New York, 476 U.S. 467, 471-72 (1986). A state agency acting under the Commissioner's authority makes an initial determination. 20 C.F.R. §§ 404.900-404.906. If dissatisfied with that determination, the claimant may ask for reconsideration. 20 C.F.R. §§ 404.907-404.918. If dissatisfied with the reconsideration determination, the claimant may ask for a hearing before an ALJ. 20 C.F.R. §§ 404.929-404.943. If dissatisfied with the ALJ's decision, the claimant may ask for review by the Appeals Council. 20 C.F.R. §§ 404.967-404.982. If the Appeals Council denies review, the claimant may sue in federal district court seeking review of the ALJ's decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.

         To obtain benefits, a claimant must demonstrate she is disabled. 20 C.F.R. § 404.1512(a). A claimant is disabled if she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). A claimant must show disability by the date last insured. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

         To decide whether a person is disabled, the SSA uses a five-step sequential process, asking (1) whether she is engaged in “substantial gainful activity, ”[2] (2) whether she has a severe impairment or combination of impairments, (3) whether the impairment meets or equals the severity of anything in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App'x 1, [3] (4) whether she can perform any of her “past relevant work”[4] given her “residual functional capacity” (“RFC”), [5] and (5) whether there are a significant number of jobs in the national economy she can perform given her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4). If the SSA finds disability or no disability at a step, it will “not go on to the next step.” 20 C.F.R. § 404.1520(a)(4).

         II. Overview

         Barnes was born in 1958. Tr. 193. She completed twelfth grade, Tr. 245, and has worked as a residential real estate agent, bank worker, child-care worker, data-entry worker, and teacher's aide, Tr. 246.

         Barnes was insured to March 31, 2008. Tr. 12, 203. She applied for benefits on July 11, 2014, alleging she had become disabled on June 1, 2005, Tr. 193, from a nervous breakdown, depression, lethargy-malaise, anxiety, panic attacks, borderline personality disorder, post-traumatic stress disorder (“PTSD”), fibromyalgia, and osteoarthritis, Tr. 77, 244. The relevant period is June 1, 2005 (the alleged onset date), to March 31, 2008 (the date last insured). Tr. 12, 13, 193, 203.

         Barnes failed at each level of the administrative process. Tr. 84-85 (initial disability determination by state agency), 86-87 (reconsideration determination by state agency), 7-28 (decision by ALJ), 1-6 (action by Appeals Council).

         III. Evidence[6]

         A. Records Before the Alleged Onset Date of June 1, 2005

         In July or August 2004, Barnes received treatment at the Southern Chester County Family Practice Associates Clinic for depression and fatigue. Tr. 783-85. Her medication (Lexapro) was left unchanged, and she was advised to check back in six months. Tr. 785.

         In November 2004, Barnes was treated at Feeney Chiropractic Care Centre for bilateral hand pain and “neck pain radiating down the arm and into the middle and ring fingers on the right hand” due to a recent incident while walking her dog, and for “mild back pain” from a 1995 car accident. Tr. 772. Her physical examination was mostly normal, and she was recommended for chiropractic treatment and a rehabilitation exercise program. Tr. 773-75.

         In January 2005, Barnes called Southern Chester to report continued “burning, tingling, numbness in both hands and problems with shoulders and arms” despite ongoing chiropractic care. Tr. 280-82, 782-83. A few days later, she had an appointment there and was advised to get an EMG of her upper extremities. Tr. 281.

         In February 2005, Barnes got an EMG at Brandywine Valley Neurology Clinic, which indicated she had bilateral carpal tunnel syndrome. Tr. 293-95, 769-70. A week later, she returned to Southern Chester to discuss the carpal tunnel syndrome and continued cervical-spine pain, which was radiating to her arms and hands. Tr. 771. She was scheduled for carpal tunnel surgery on March 4, 2005, but expressed a desire to “avoid this if possible.” Tr. 771.

         Beginning in February 2005, Barnes obtained chiropractic care from Jessica Bohl, D.C. Tr. 767-68.

         In March 2005, Barnes returned to Southern Chester and reported progress with her neck pain due to the chiropractic care, a fifty to sixty percent improvement in her carpal tunnel syndrome, and a twenty to thirty percent improvement in her bilateral grip strength. Tr. 795. The assessment was that Barnes had shown improvement, had “responded well to conservative care, ” and should continue chiropractic care and trigger-point therapy. Tr. 795-96.

         In May 2005, Barnes returned to Southern Chester and reported that her counselor “strongly feels” she should stay on her medication (Lexapro) and that her neck was “doing better” and is “improving.” Tr. 278, 780. Her mental and physical examination showed no abnormal findings. Tr. 279.

         B. Records After the Alleged Onset Date of June 1, 2005

         To September 2005, Barnes continued to obtain chiropractic care from Bohl. Tr. 767-68.

         In December 2005, Barnes was treated at the Health Care Center at Christiana, where she reported treatment for borderline personality disorder by Judith Willets, Ph.D., stating that treatment was no longer working, that she had gained thirty pounds in three years, and that she was having difficulty concentrating and finishing projects. Tr. 269. There were no abnormal medical findings. Tr. 270, 809.

         From January to June 2006, Barnes met regularly with Dr. Willets at the Pike Creek Psychological Center to treat depression and anger, and she was consistently diagnosed with depression and borderline personality disorder. Tr. 379-91. Dr. Willets found that Barnes's symptoms of depression decreased on four occasions (Tr. 380-82, 386, 391), increased on five occasions (Tr. 379-80, 383, 390), and had no change on eleven occasions (Tr. 379-82, 384-86, 389, 391). Dr. Willets labeled Barnes's prognosis as “improvement” on five occasions (Tr. 381, 384, 386, 391), “fluctuating” on eleven occasions (Tr. 379-83, 385, 390-91), and “guarded” on four occasions (Tr. 379, 382, 386, 389).

         In August 2006, after moving to Florida, Barnes sought initial treatment at the Harbor Cardiology and Vascular Center. Tr. 412-15. A complete physical and psychological exam revealed no problems or symptoms and no abnormal findings concerning her musculoskeletal and neurological systems. Tr. 412-15.

         In September 2006, Barnes underwent a mammogram screening. Tr. 395.

         On July 31, 2007, Barnes returned to Harbor Cardiology seeking a prescription refill for Lexapro and a referral for a new psychiatrist. Tr. 443. She had a flat and apathetic affect. Tr. 443.

         In September 2007, Barnes underwent another mammogram screening. Tr. 394.

         C. Records After the Date Last Insured of March 31, 2008

         In August and November 2008, Barnes returned to Harbor Cardiology, with no notable findings. Tr. 440-44.

         In November 2008, Barnes underwent another mammogram screening. Tr. 401.

         In January 2009, Barnes underwent imaging tests for sinusitis and abdominal pain. Tr. 397-99.

         In August 2014, Sally Rowley, Psy. D., a non-examining psychological consultant, opined, based on the evidence to date, Barnes's mental impairments had been non-severe but her osteoarthritis and allied disorders had been severe during the relevant period (June 1, 2005, to March 31, 2008) and Barnes had not been disabled during the relevant period. Tr. 79, 81-82. But she also stated, “There is insufficient evidence to substantiate the presence of a disorder, ” and, “There is insufficient evidence to evaluate the claim.” Tr. 81-82.

         In September 2014, Usha K. Nandigam, M.D.-apparently Barnes's primary care physician in Florida, Tr. 394, 469, 472, 481, 504-completed a medical source statement providing opinions about Barnes. Tr. 516-18. She stated Barnes had been treated over the last eight years at her office for depression and panic attacks. Tr. 517. She opined Barnes was limited to one-third of a workday in her ability to concentrate, follow simple instructions, carry out simple instructions, understand simple instructions, use judgment, respond to supervision, respond to coworkers, respond to usual work situations, and deal with changes in a routine work setting. Tr. 517. She wrote she was “unable to assess” Barnes's postural limitations, manipulative limitations, and need to take breaks during the day; she expressed no opinion on Barnes's exertional limitations, visual limitations, and non-exertional limitations; and she expressed no opinion on whether Barnes had limitations due to a mental impairment. Tr. 517. She stated no opinion on whether Barnes had been disabled from substantial work from at least June 1, 2005. Tr. 517.

         In July 2016, Majd Alsamman, M.D., at Charlotte Behavioral Health completed three “mental disorders” forms for Barnes, indicating he had treated or examined her on June 30, 2016, and checking boxes next to statements that his opinions were provided within a reasonable degree of medical certainty and that Barnes's mental conditions had existed since June 1, 2005. Tr. 669-71. He found she did not meet the criteria for Listing 12.08 (personality disorder) but did meet the criteria for Listing 12.04 (affective disorder) and Listing 12.06 (anxiety-related disorder). Tr. 669-71.

         Regarding Listing 12.04, Dr. Alsamman checked boxes indicating that Barnes had an affective disorder with medically documented persistence, either continuous or intermittent, of depressive syndrome characterized by anhedonia or pervasive loss of interest in almost all activities; appetite disturbance with change in weight; sleep disturbance; psychomotor agitation or retardation; decreased energy; feelings of guilt or worthlessness; difficulty concentrating or thinking; and thoughts of suicide “in the past.” Tr. 670. He opined her disorder had resulted in a marked restriction of activities of daily living; marked difficulties in maintaining social functioning; and marked difficulties in maintaining concentration, persistence, or pace. Tr. 670. He opined she had a medically documented history of a chronic affective disorder of at least two years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support; and repeated episodes of decompensation, each of extended duration; and a current history of one or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. Tr. 671.

         Regarding Listing 12.06, Dr. Alsamman checked boxes indicating that Barnes had generalized persistent anxiety experienced by motor tension and autonomic hyperactivity; recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror, and sense of impending doom occurring on the average of at least once a week; and recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress. Tr. 669. He opined her anxiety resulted in a marked restriction of activities of daily living; marked difficulties in maintaining social functioning; and marked difficulties in maintaining concentration, persistence, or pace. Tr. 669. He opined the anxiety resulted in a complete inability to function independently outside the area of her home. Tr. 669. He checked “Yes” next to, “Has the patient's condition existed since 6/1/2005, ” but added, “[S]ince [patient's] been seen by me.” Tr. 669. He checked “Yes” next to, “I have read the medical records before and after the onset date of disability, ” but added, “Available.” Tr. 669.

         In a mental RFC assessment, Dr. Alsamman opined Barnes suffers from “extreme” impairments in the ability to maintain attention and concentration for extended periods; to perform activities within a schedule; to maintain regular attendance; to be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to work in coordination with or proximity to others without being distracted by them; to make simple work-related decisions; to complete a normal workday and workweek without interruptions from psychologically based symptoms; to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; and to respond appropriately to changes in the work setting. Tr. 672-73. He also opined she suffers from “marked” impairments in the ability to remember locations and work-like procedures; to understand and remember very short and simple instructions; to understand and remember detailed instructions; to carry out very short and simple instructions; to carry out detailed instructions; to ask simple questions; to request assistance; to be aware of normal hazards and take appropriate precautions; to travel in unfamiliar places or use public transportation; and to set realistic goals or make plans independently of others. Tr. 672-73. In a comments section, Dr. Alsamman diagnosed Barnes with severe major depression, PTSD, and generalized anxiety disorder as well as a history of back and neck injury. Tr. 673. He checked “yes” next to, “Has the patient been disabled from substantial gainful activity since 6/1/2005, ” but added, “since she has been seen by me.” Tr. 673.

         In January 2017, Dr. Alsamman wrote on a prescription form that Barnes has diagnoses of chronic PTSD, severe recurrent major depression, anxiety, and panic disorder; that she is permanently disabled and has been disabled since 2000; and that she continues to have symptoms and receive medications and therapy. Tr. 868.

         IV. ALJ's Decision

         The ALJ conducted a hearing on January 12, 2017, Tr. 47-76, and issued a decision on May 17, 2017, Tr. 7-28.[7]

         At step one, the ALJ found Barnes had not engaged in substantial gainful activity during the relevant period (June 1, 2005, to March 31, 2008). Tr. 13.

         At step two, the ALJ found that Barnes, through the date last insured (March 31, 2008), had had “medically determinable impairments” of “cervical/dorsal myositis, osteoarthritis, radiculitis and myalgia, bilateral carpal tunnel syndrome, depressive/adjustment and personality disorders.” Tr. 13. The ALJ further found that Barnes, through the date last insured (March 31, 2008), had not had “an impairment or combination of impairments” that had “significantly limited her ability to perform basic work-related activities for 12 consecutive months” and therefore had not had “a severe impairment or combination of impairments[.]” Tr. 13. Having found no disability during the relevant period (June 1, 2005, to March 31, 2008) at step two, the ALJ did not proceed to the next steps. Tr. 21.

         The ALJ's summary and analysis of the evidence to explain his findings spans nine single-spaced pages. Tr. ...


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