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Wyatt v. Berryhill

United States District Court, D. South Carolina, Florence Division

November 14, 2018

ALICIA WYATT, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security; Defendant.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III, United States Magistrate Judge.

         This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB) and supplemental security income (SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.

         I. RELEVANT BACKGROUND

         A. Procedural History

         Plaintiff filed her application for DIB and SSI on May 15, 2014, alleging inability to work since May 24, 2009. (Tr. 22). Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on July 22, 2016, at which time Plaintiff and a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on September 23, 2016, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 22-31). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on June 26, 2017, making the ALJ's decision the Commissioner's final decision. (Tr. 1-4). Plaintiff filed this action on July 27, 2017. (ECF No. 1).

         B. Plaintiff's Introductory Facts

         Plaintiff was born on February 23, 1974, and was approximately thirty-five years old at the time of the alleged onset. (Tr. 131, 29). Plaintiff completed her education through at least high school and has past work experience as a loan clerk and teller. (Tr. 29). Plaintiff alleges disability due to fibromyalgia(FM), depression, vertigo, anxiety, and migraines. (Tr. 131).

         C. Medical Records and Opinions

         2009

         There were no pertinent documents in the record for 2009.

         2010

         On February 1, 2010, Plaintiff was seen by Gulzar Merchant. (Tr. 109). Plaintiff was not doing well and was still having joint pain. Plaintiff had not been seen since 2008; she had been seeing Dr. Waddell who was managing her FM. Higher doses of Savella made her fall; she wanted to stop taking Effexor to stay on Savella. Plaintiff also took Lortab. Pain level was 6. (Tr. 109). Upon examination, Plaintiff had tender points on the epicondyles, chest, back, and neck. (Tr. 109). Plaintiff had paraspinal muscle spasm in the upper back. Assessments were: FM, neck pain, depression, insomnia, paresthesia, and polyarthralgia. (Tr. 110). Plan was to stop Norflex, stop Elavil, and continue Ultram ER, Zanaflex, and Savella. A Lortab refill was declined. Effexor was to be tapered because she was doing well on Savella; she could not tolerate Cymbalta/Lyrica. (Tr. 110). Trazodone and Restoril was stopped.

         2011

         There were no pertinent documents in the record for 2011.

         2012

         On April 17, 2012, Plaintiff was seen by Dr. Wiley. (Tr. 364). Chief complaints were depression and anxiety. Plaintiff complained of poor sleep/appetite. Mood was depressed with some irritable mood swings. Plaintiff complained of panic attacks and shortness of breath. (Tr. 364). Plaintiff denied alcohol/substance abuse. Plaintiff was on probation for DUI in November 2011. (Tr. 364). Upon exam, Plaintiff had normal behavior and mildly depressed mood. (Tr. 365). Diagnosis was major depression, recurrent. Plaintiff had a GAF of 50. Plan was Effexor, Klonopin, and doxepin. (Tr. 365).

         On May 16, 2012, Plaintiff was seen by Dr. Wiley. (Tr. 363). Plaintiff stated she was arrested for DUI and had a prior 2011 DUI. Mood was more euthymic, but she had some anxiety regarding pending legal issues. Plaintiff was prescribed Effexor for depression.

         On June 12, 2012, Plaintiff was seen by Dr. Wiley. (Tr. 362). Plaintiff “discussed personal/financial issues.” Plaintiff complained of chronic diffuse pain, possibly from FM. Plaintiff felt mood and sleep were improved. (Tr. 362). Upon exam, Plaintiff had intact memory, good concentration, euthymic mood, appropriate affect, and good insight. Plan was to refer to pain specialist and refill Klonopin and doxepin.

         On September 25, 2012, Plaintiff was seen by Dr. Wiley. (Tr. 361). It is noted Plaintiff was charged with DUI while sitting in a parking lot. Plaintiff had no acute psychosis; mood was more depressed. Upon exam, Plaintiff had intact memory, good concentration, depressed mood, blunted affect, and good insight. (Tr. 361). Plan was doxepin for insomnia, increase Effexor, and refill Klonopin.

         2013

         On January 29, 2013, Plaintiff was seen by Dr. Wiley. (Tr. 360). It was noted Plaintiff was recently released from house arrest for DUI. Plaintiff stated she had a poor response to something but had been on trazodone in the past. There was no acute psychosis. Mood is less depressed. There were some side effects from Effexor XR 300. Upon exam, Plaintiff had intact memory, good concentration, depressed mood, appropriate affect, and good insight. (Tr. 360). Plan was refill Klonopin and trazodone and decrease effexor. (Tr. 360).

         On October 25, 2013, Plaintiff was seen at Powdersville Family Practice for ear pain. (Tr. 370). There was no dizziness, headache, or nausea. It is noted “going to bariatric clinic, wants to take Fastin.” (Tr. 370). Medication listed was Effexor.

         2014

         On January 23, 2014, Plaintiff was seen at Powdersville Family Practice for sudden hearing loss. (Tr. 369).

         On February 4, 2014, Plaintiff was seen by Dr. Wiley. (Tr. 359). Plaintiff discussed why she had not been seen since January 2013 and Plaintiff had received medications from her primary doctor. (Tr. 359). Upon exam, Plaintiff had intact memory, good concentration, euthymic mood, appropriate affect, and good insight. Assessment was Effexor, Klonopin, and trazodone.

         It appears Plaintiff was possibly seen for physical therapy several times in April 2014 and November 2014. (Tr. 366-67, 389-91).

         In March 2014, Plaintiff called Powdersville Family Practice and asked for a rheumatologist referral to recheck FM. (Tr. 368).

         On May 5, 2014, Plaintiff was seen by Dr. Wiley. (Tr. 358). Plaintiff discussed “personal/medical issues.” “No acute psychosis or [suicidal/homicidal] ideation.” (Tr. 358). Upon exam, Plaintiff had intact memory, good concentration, euthymic mood, appropriate affect, and good insight. Assessment/plan was Klonopin, trazodone, and Effexor.

         On May 28, 2014, Plaintiff was seen by Gulzar Merchant of Rheumatology Eastside. (Tr. 112, 401). Plaintiff had morning stiffness, was not able to use her hands to grip, had pain so intense she vomits, and had trouble sleeping due to pain. (Tr. 112). Plaintiff had no insurance and that is why she did had not been seen since 2010. Plaintiff reported worsening pain all over. Plaintiff took Effexor and ibuprofen. (Tr. 112). Pain was a level 10. Upon examination, Plaintiff had active tender points on the chest, back, and epicondyles. (Tr. 113). Under treatment, it states her symptoms are consistent with FM, but she needed a functional capacity evaluation to see how much she can work or not. Plaintiff was informed that Dr. Merchant did not perform such a test. (Tr. 114). Plaintiff had tried all medications available for FM, like Lyrica, Neurontin, Cymbalta, and Savella. “I do not have anything else to offer.” There was no clinical evidence of arthritis. (Tr. 114). Under polyarthraligia, it states no evidence of inflammation on exam. (Tr. 114, 375-77).

         Plaintiff reported that in June 2014, she had increased pain throughout her body, difficulty walking and standing for prolonged periods, cannot bend/stoop/squat, and experiences vertigo for weeks at a time. Plaintiff reported she experienced panic attacks and only slept 1-3 hours a night. Plaintiff reported difficulty focusing and an increase in severity and frequency of migraines. (Tr. 156).

         On June 2, 2014, Dr. Wiley completed a form. (Tr. 379). Diagnosis was major depression. Medications were Klonopin, trazodone, and Effexor. Medications helped her condition. For the question if psychiatric care had been recommended, “n/a” was written in. Plaintiff had a slowed thought process, appropriate thought content, depressed mood/affect, and adequate attention/concentration/memory. Due to recurrent depression and anxiety, Plaintiff had poor ability to: relate to others, complete simple, routine tasks, and complete complex tasks. Plaintiff was capable of managing funds.

         On June 4, 2014, Plaintiff completed a function report. (Tr. 305-12). Plaintiff reported her hands hurt and she cannot grip anything. (Tr. 305). Plaintiff sleeps 1-2 hours every other night and this keeps her from being able to concentrate. Plaintiff has chronic migraines and nervousness all the time. “Even getting out of bed is more than I can manage.” (Tr. 305). Plaintiff takes care of one dog and her mother helps. (Tr. 306). Plaintiff worries about everything. Plaintiff's skin feels like it is on fire and itches. Pain all over keeps her awake. (Tr. 306). Plaintiff reported she had no problems with personal care. Plaintiff does not cook because her hands hurt too bad and she cannot stand long enough. (Tr. 307). Plaintiff can fold clothes one hour weekly, dust 30 minutes monthly, and sweep 30 minutes to an hour monthly. (Tr. 307). Plaintiff only cleans her bedroom; her parents do the rest. (Tr. 307). Yard work is “impossible” because her feet, back, legs, shoulder, and neck hurt all the time. (Tr. 308). Plaintiff goes outside once a week because she has no desire to and her pain is too bad. (Tr. 308). Plaintiff reported that she had not gone out alone since 2011 due to anxiety and panic attacks. (Tr. 308). Plaintiff does not drive due to vertigo and past wreck fears. (Tr. 308). Plaintiff only shops for books online. Plaintiff is able to handle money. (Tr. 308). Plaintiff reads one book every 3-6 months. Plaintiff talks with people on social media every other day. (Tr. 309). Plaintiff reported not being able to be around others more than an hour or two due to pain and anxiety. (Tr. 310). Plaintiff cannot go out in public without having an attack and cannot be away from home more than 3 hours. (Tr. 310). Plaintiff must rest after walking to the mailbox. Plaintiff cannot concentrate. Plaintiff can pay attention for ten minutes. Plaintiff can follow written instructions very well. (Tr. 310). Plaintiff gets nauseous with changes in routine. (Tr. 311). Plaintiff has attacks if in a crowd of four or more people. Plaintiff reported medications of Effexor, trazodone, and Klonopin. (Tr. 312). Plaintiff reported she was “pretty much homebound since 2008.” Plaintiff reported she quit her job in 2009 because she was unreliable. Plaintiff reported when trying to go to the doctor she has cancelled appointments because she could not get out of bed. (Tr. 312).

         On July 7, 2014, Plaintiff was examined by state agency consultant Dr. Leporowski, Psy.D. (Tr. 380). Plaintiff was early and her father drove her. Plaintiff did not have a valid license. Plaintiff was adequately groomed and somewhat overweight. Plaintiff did not exhibit any pain behaviors. Attention and concentration were grossly intact. Plaintiff made good eye contact and was polite and cooperative. Plaintiff reported that she struggled to go to any kind of appointment and only left the house “if somebody drags me out.” (Tr. 380). Plaintiff reported she was diagnosed with FM in 2003. (Tr. 381). Plaintiff has seen a psychiatrist regularly since 2008. Plaintiff reported her car flipped on the interstate; she denied any physical injuries but was out of work for three months due to her emotional response. Plaintiff reported she took a lot of pain medication but did not get any relief and she stopped seeing a rheumatologist as a result. Plaintiff reported she has taken Zoloft, Prozac, Paxil, and Lexapro with no results; she felt Effexor works best for her. Plaintiff reported she had taken Depakote and Seroquel in the past. “Of note, she is currently prescribed Klonopin, 2mg, tid.” (Tr. 381). Plaintiff reported she was convicted of driving on a suspended license in the fall of 2013 and is unable to get her license back for 18 months. (Tr. 381). Plaintiff reported living with her parents the past three years was part of her problem. Plaintiff generally stays in her bedroom by herself. Plaintiff plays games on the computer a lot. Plaintiff does not do any shopping. Plaintiff can do her own laundry. Plaintiff has a boyfriend. Plaintiff participates in social media groups for dog owners and participated on dating websites. Plaintiff reported eating one meal a day. (Tr. 381). Plaintiff takes care of her own hygiene. (Tr. 382). Plaintiff reported she was unaware of her prior dependence on Xanax until she stopped taking it in March of 2010; she had seizures and was hospitalized for a week. (Tr. 382). Plaintiff did not exhibit any word-finding difficulty; memory appeared grossly intact. Concentration and attention were intact. Mood was euthymic; affect was full range. There was no emotional lability. Thoughts were logical and goal directed. She reported racing thoughts. “She did seem somewhat somatically preoccupied.” When she reported she only slept two hours a night, Plaintiff admitted she did not take trazodone regularly. “Enegery level is ‘very low.'” (Tr. 382). Plaintiff could manage own funds. Diagnosis was “other specific personality disorder(dependent and avoidant), anxiolytic use disorder, moderate.” Plaintiff exhibited good relatedness during this evaluation with a full range of affect and with pronounced dependency needs. (Tr. 382-83). “I did not find any evidence of a depressive disorder. There are no indications of an impairment in her ability to concentrate and perform tasks at a reasonable pace due to a mental disorder. No obvious cognitive deficits were noted during the mental status items administered during this evaluation.” (Tr. 383).

         On August 4, 2014, Plaintiff was seen by Dr. Wiley. (Tr. 357). Plaintiff “discussed personal issues.” Plaintiff complained of poor sleep; mood was “still mildly depressed.” Upon exam, Plaintiff had good concentration, depressed mood, blunted affect, intact memory, and good insight. Plan was Effexor, Klonopin, trazodone, and Wellbutrin. (Tr. 357).

         On August 13, 2014, Plaintiff's records were reviewed by consultant Ms. Werden. (Tr. 135-39). Ms. Werden opined Plaintiff's affective disorder was a severe impairment. (Tr. 135). Ms. Werden opined Plaintiff was moderately limited in the ability to: carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual, work in coordination with others without being distracted by them, complete a normal workday and work week without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 138). Plaintiff was capable of performing simple unskilled tasks for reasonable periods of time. (Tr. 138). Plaintiff was moderately limited in her ability to interact appropriately with the general public. (Tr. 139). FM was opined to be non-severe by reviewing consultant Dr. Farrell, M.D. (Tr. 146, 152). On September 26, 2014, Dr. Horn, Ph.D. essentially affirmed Ms. Werden's RFC, except found Plaintiff was not significantly limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 166-67).

         On August 27, 2014, Plaintiff was seen by Dr. Rogers, M.D. of Oaktree Medical Centre, Department of Neurology. (Tr. 384, 408). An NCV/EMG of upper extremities was ordered. Assessment was dizziness, vertigo, and muscle weakness. (Tr. 385). Plaintiff reported she had episodes lasting two to five days over six weeks where the room spins and she vomits. Plaintiff reported Dr. Merchant diagnosed her with FM and said there was nothing more that could be done. (Tr. 386). Records showed Plaintiff received Klonopin and phentermine consistently in the past year, but she filled prescriptions with six different addresses. (Tr. 386). Plaintiff reported she had been diagnosed with MS in 2006. Plaintiff reported sleeping two hours at a time at night. Plaintiff reported drinking three glasses of tea a day. Plaintiff's Beck's depression inventory was a 22 and mood disorder questionnaire was negative. (Tr. 387). Upon exam, Plaintiff was in no apparent physical distress. There was no cervical paramuscular tenderness to palpation. (Tr. 387). Plaintiff had tenderness to palpation of bilateral sacroiliac joints. “The patient is positive 12/18 fibromyalgia points but also 3/5 control points.” (Tr. 387). Mood was euthymic and affect was somewhat hypomaniac. “The patient would talk extensively on physical symptomatology. There is no overt pain behavior.” Plaintiff had inconsistent grip strength on the left with questionable ...


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