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Walls v. Berryhill

United States District Court, D. Delaware

March 6, 2019

LOIS A. WALLS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Date History Impression/Plan Medications Date Chief Complaint / Reason for Visit Exam Medications

          Angela Pinto Ross, Doroshow, Pasquale, Krawitz, Siegel & Bhaya, Wilmington, DE - attorneys for Plaintiff

          Nora Koch, Regional Chief Counsel, Heather Benderson, Assistant Regional Counsel, Social Security Administration, Philadelphia, PA - attorneys for Defendant.

          MEMORANDUM OPINION

          NOREIKA, U.S. DISTRICT JUDGE:

         Plaintiff Lois A. Walls (“Walls” or “Plaintiff) appeals the decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security (“the Commissioner” or “Defendant”), denying her claim for Social Security Disability Insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423(a)(1)(A) and (C). The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

         Pending before the Court are Plaintiffs motion and Defendant's cross-motion for summary judgment. (D.I. 12, 15). Plaintiff seeks reversal of the Commissioner's decision, or alternatively, a remand to the Commissioner for proper consideration of the record. (D.I. 13 at 20). The Commissioner requests that the Court affirm the decision denying Plaintiffs claim for benefits. (D.I. 16 at 12). For the reasons stated below, the Court will deny Plaintiffs motion for summary judgment and grant Defendant's motion.

         I.BACKGROUND

         A. Procedural History

         On February 5, 2013, Plaintiff filed an application for Disability Insurance Benefits, alleging disability beginning May 4, 2012. (D.I. 8 (“Tr.”) at 154-157). Plaintiffs claim was initially denied on May 31, 2013 and again upon reconsideration on August 16, 2013. (Tr. 96-101, 103-109). Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”) on September 16, 2013. (Tr. 110-111). The hearing took place on December 10, 2014 and included testimony from both Plaintiff and Christina L. Betty-Cody (“Ms. Cody), an impartial vocational expert (“VE”). (Tr. 24). After the hearing, on February 19, 2015, the ALJ issued a decision finding that Plaintiff “has not been under a disability, as defined in the Social Security Act, from May 4, 2012, through the date of [the] decision.” (Tr. 32). Plaintiff requested review of this decision on February 20, 2015 (Tr. 18-20), which was denied on December 18, 2015, making the ALJ's decision the final decision of the Commissioner. (Tr. 5-7).

         On April 8, 2016, Plaintiff filed suit in the District of Delaware seeking judicial review of the Commissioner's denial of benefits. (D.I. 2). Plaintiff moved for summary judgment on January 30, 2017. (D.I. 12). Defendant cross-moved for summary judgment on April 3, 2017. (D.I. 15). The parties completed briefing on the summary judgment motions on April 17, 2017. (D.I. 13, 16, 17).

         B. Factual History

         Plaintiff applied for Disability Insurance Benefits on February 5, 2013, when she was 55 years old. (Tr. 154). Plaintiff became unable to work May 4, 2012 at the age of 54, which is “closely approaching advanced age” as defined by 20 C.F.R. §404.1563(d). (Tr. 67). She is a high school graduate and completed specialized job training for Medical Reception. (Tr. 174). According to her Work History Report (Tr. 182-192), she held jobs as a bartender, in retail, as a stocker in a warehouse, and as a waitress in the 15 years prior to becoming unable to work.

         In her February 17, 2013 pain questionnaire (Tr. 206-207), Plaintiff states that she has constant aching in her wrists and arms, constant pain that is sharp at times in her back, constant aching and restricted movement to the left and right in her neck, and constant aching in her hips, legs and feet as well as pain that is sharp. She further states that “movement in excess, ” cold weather and exercise make her pain worse, and that hot baths and stretching sometimes helps. (Tr. 206). She states that any activity on her feet for any length of time causes pain and forces her to sit down (which helps for a short while before she has to get back up). (Tr. 207). She states that she has to live her life around her pain. (Tr. 207). She lists oxycodone and acetaminophen as her medications and that they are “very helpful” and give her no side effects. (Tr. 206). She is not involved in rehabilitation with the goal of returning to work either part-time or full time. (Tr. 206).

         In her February 21, 2013 function report (Tr. 209-216), Plaintiff indicates that she lives alone (Tr. 209), does not take care of anyone else, has a pet that she takes care of (food, water, clean litter box), and that she does not need help with personal care. (Tr. 210). She does not need reminders to take care of herself or to remember to take her medications and she prepares her own meals (Tr. 211). She cleans, does laundry, and mows the grass about once a week - though her son sometimes cuts the grass for her. (Tr. 211). She drives a car, is able to go out alone to go shopping, and is able to handle her financial affairs. (Tr. 212-213). Her ability to do so has not changed since her conditions began. (Tr. 212-213). She goes to a relative's home about twice a month for dinner. (Tr. 213). Plaintiff indicates that her conditions affect: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair-climbing, seeing, memory, completing tasks, concentration, and using her hands. (Tr. 214). She indicates, however, that she does not have trouble paying attention and that she follows both written and spoken instructions reasonably well. (Tr. 214).

         In her February 17, 2013 fatigue questionnaire, Plaintiff indicates that she has no energy, has to rest while completing tasks, takes several naps a day, gets distracted a lot, and has to write things down to remember them. (Tr. 219-220).

         1.Disability Reports

         a. February 7, 2013 (Form SSA-3368)

         In her original Disability Report dated February 7, 2013 (Form SSA-3368 (Tr. 172-181)), Plaintiff asserts that she is unable to work because of fibromyalgia, cervical spine impairment, degenerative disc disease, lumber spine impairment, severe back pain, osteoporosis, rheumatoid arthritis, anxiety, hypothyroidism, and chronic bronchitis. (Tr. 173). She indicates that she did not make changes to her work activity due to her conditions. (Tr. 174). Plaintiff lists the following relevant medications[1]: alendronate sodium (osteoporosis); cyclobenzaprine hydrochloride (arthritis); diclofenac (anti-inflammatory); gabapentin (fibromyalgia); meloxicam (arthritis); and oxycodone (pain), all of which were prescribed by Dr. Maged Hosney. (Tr. 176). Plaintiff lists the Southern Delaware Medical Group[2] and Dr. Hosny[3] as providers who may have medical records about her physical and mental conditions. (Tr. 177-180).

         b. July 2, 2013 (Form SSA-3441)

         In Plaintiff's July 2, 2013 Appeal Disability Report (Form SSA-3441 (Tr. 224-229)), she indicates that she has had no changes (for better or worse) in her illnesses, injuries, or conditions (Tr. 224) and that she is still treating with the Southern Delaware Medical Group and Dr. Hosny, both for the same conditions as previously listed. (Tr. 225-226). There are no medications indicated on the form but a remark notes that “upon request doctors will provide medications list.” (Tr. 228)

         c. September 17, 2013 (Form SSA-3441)

         In Plaintiff's September 17, 2013 Appeal Disability Report (Form SSA-3441 (Tr. 232-236)), she again indicates that she has had no changes (for better or worse) in her illnesses, injuries, or conditions. (Tr. 232). The treating physicians are listed as Dr. Hosny and Dr. Raid Kofahi. (Tr. 233). Dr. Hosny is listed as treating Plaintiff for osteoporosis, rheumatoid arthritis, fibromyalgia, and osteoarthritis. (Tr. 233). Dr. Kofahi is listed as treating Plaintiff for cervical spine impairment, lumbar spine impairment, degenerative disc disease, and carpal tunnel syndrome[4] with a first visit date of July 15, 2013. (Id.). The form indicates that Plaintiff is not taking any medications.

         2. Medical History, Treatment, and Conditions

          From the record, it is unclear when Plaintiff was first diagnosed with fibromyalgia. As the ALJ notes, “the claimant was diagnosed with fibromyalgia dating back to at least May 2011.” (Tr. 26, 294). The relevant medical history begins on May 17, 2011 and continues through her last insured date of September 30, 2017 (D.I. 13 at 3, Tr. 24).

         a. Southern Delaware Medical Group

         There are records from the Southern Delaware Medical Group in the transcript for several “encounters” from July 24, 2012 to June 11, 2014 (Tr. 262-6, 267-77, 369-404, 416). These “encounters” have the following diagnoses: hypothyroidism, osteoporosis, reflux, osteoarthrosis, chronic bronchitis (07/24/2012[5]); chronic bronchitis (08/06/2012); hyperlipidemia, hypothyroidism, anxiety state (08/24/2012); hypothyroidism, hyperlipidemia, anxiety state, osteoporosis, neuropathy, chronic bronchitis (09/16/2013); osteoporosis, hypothyroidism, hyperlipidemia (10/17/2013); hypothyroidism, hyperlipidemia, anxiety state (12/06/2013); otitis media, jaw pain, abnormal AST and ALT (01/02/2014); hyperlipidemia, hypothyroidism, leg swelling, foot pain (04/25/2014); hypothyroidism, edema, abnormal AST and ALT, leg swelling, hyperlipidemia (04/30/2014); abdominal wall hernia (05/06/2014); peripheral vascular disease of foot (05/15/2014); cellulitis (foot) (05/19-20/2014); foot pain, cellulitis of the foot, edema (06/11/2014). (Tr. 267, 370).[6]

         b. Rheumatology Center of Delaware, LLC (Dr. Hosny/NP Ashley)

         The medical records in the transcript from the Rheumatology Center of Delaware, LLC (“RCD”), Dr. Hosny, and Nurse Practitioner Ashley date from May 17, 2011 to October 2, 2014.[7]Dr. Honsy saw Plaintiff on May 17, 2011, four dates in 2012, two dates in 2013, and one date in 2014. Each visit was memorialized with a “Follow-Up Visit” note to Dr. Hammer, Plaintiff's primary care physician. (Tr. 293-4, 284, 288-9, 306-7, 522-40). For the most part[8], these “Follow-Up Visit” notes to Plaintiff's primary care physician consist of “interval history” and “impression/plan” and are summarized below:

Date
History
Impression/Plan
Medications
5/17/2011[9]
(Tr. 294)

History of osteoarthritis of multiple joints; secondary fibromyalgia; patient continues to do the same; daily widespread pain; worse with activities and not relieved with rest

Chronic fibromyalgia; osteoarthritis of multiple joints; patient continues to do the same

Percocet renewed
2/14/2012 (Tr. 293)

History of osteoarthritis of multiple joints; chronic fibromyalgia; chronic pain syndrome secondary to above; continues to do the same with intermittent flare ups; continues to have daily widespread pain; pain is overall well controlled on the combination of Percocet and Diclofenac

Chronic fibromyalgia; osteoarthritis of multiple joints; patient continues to do the same

Diclofenac Percocet renewed
5/17/2012 (Tr. 284)

Osteoarthritis of multiple joints; chronic fibromyalgia; chronic pain syndrome; continues to be dependent on Percocet to control symptoms; continues to do the same with daily widespread pain in addition to intermittent flare ups due to activities or weather; takes Diclofenac 2 or 3 times a week

Chronic fibromyalgia; osteoarthritis of multiple joints

Diclofenac Percocet renewed
8/16/2012 (Tr. 289)

Osteoarthritis of multiple joints; chronic fibromyalgia; chronic pain syndrome; increased pain in lower back; bilateral trochanteric areas radiating to bilateral thighs; pain worse with activities and not relieved with rest; increased insomnia

Fibromyalgia; increasing pain in lower back and bilateral trochanteric/hip joint area; x-rays and blood work ordered -

Percocet; renewed Diclofenac and Gabapentin

12/7/2012[10] (Tr. 288)

Osteoarthritis of multiple joints; fibromyalgia; chronic pain syndrome; continues to do the same; having flares of pain; pain in lower back and down legs; good control on Percocet

Osteoarthritis of multiple joints; fibromyalgia

Flereril increased due to muscle spasms in lower back; Percocet

3/28/2013 (Tr. 307)

Chronic fibromyalgia; chronic low back pain; continues to do the same; continues to have dull aching pain, widespread, all over body; continues to rely on multiple medications to control symptoms

Chronic fibromyalgia; chronic low back pain likely part of fibromyalgia; patient continues to do the same

Renewed Percocet and Diclofenac

6/27/2013 (Tr. 306)

Chronic fibromyalgia; degenerative disc disease of lumbar spine; chronic pain syndrome; dependent on narcotics (Percocet) for pain

Fibromyalgia; degenerative disease of lumbar spine; patient continues to do the same; reduce Percocet next month; discussed need to add long acting narcotic

Percocet

         In addition to the above follow-up visit notes, Dr. Hosny wrote two “To Whom It May Concern” letters dated January 10, 2014 (Tr. 603) and June 13, 2014 (Tr. 310). In the January 10, 2014 letter, Dr. Hosny states that Plaintiff has been diagnosed with fibromyalgia and osteoarthritis; that she has daily, severe, widespread pain in joints and muscles that causes difficulty in performing daily activities; that other symptoms include insomnia, fatigue and difficulty concentrating; and that for those reasons, Plaintiff is unable to work. In the June 13, 2014 letter, Dr. Hosny states that Plaintiff has a diagnosis of osteoarthritis, fibromyalgia, and chronic pain syndrome and that she is “disabled and unable to work.”

         Between October 2013 and October 2014, Plaintiff saw Linda Ashley, FNP-BC eleven times. These visits were memorialized with “follow-up visit” notes to Plaintiff's primary care physician and are summarized below:

Date
Chief Complaint / Reason for Visit
Exam
Medications
10/11/2013 (Tr. 539-540)

Management of fibromyalgia, DDD L-spine and chronic pain syndrome Dr. Kofahi ordered multiple tests:

Diagnosed with carpal tunnel, disc protrusion, and herniated disc of the L-spine; base brace and physical therapy was ordered

Gait normal; no visible joint swelling; tender joints: shoulders, elbows, knees, ankles; 12 tender points; tender cervical, lumbar, thoracic spine; relies on Percocet and morphine for pain control

Percocet; Morphine, Meloxicam; Tramadol; no side effects; no new meds added
11/7/2013 (Tr. 537-538)
Management of rheumatoid arthritis

Gait normal; no visible joint swelling; tender joints: shoulders, elbows, knees, ankles; no tender points; tender cervical, lumbar and thoracic spine

Tramadol, Percocet, Meloxicam, Morphine (dose increased); no new meds added
12/5/2013 (Tr. 535-536)

Management of osteoarthritis, fibromyalgia and chronic pain syndrome

Relies on narcotics for pain relief; pain worse with activity and not relieved with rest

Gait normal; right and left upper and lower extremities positive for tenderness, swelling, crepitations, effusion, deformity; bilateral upper extremity normal range of motion; no visible joint swelling; tender joints: shoulders, elbows, knees, and ankles; 12 tender points; tender cervical, lumber and thoracic spine

Tramadol, Percocet and Morphine; no new meds added Suggested physical and aqua therapy but patent is reluctant
01/09/2014 (Tr. 533-534)

Management of fibromyalgia, osteoarthritis and chronic pain syndrome

Pain is daily and widespread, worse with activity and not relieved with rest

Current medications effective for pain control

Gait normal; right and left upper and lower extremities positive for tenderness, swelling, crepitations, effusion, deformity; bilateral upper extremity normal range of motion; no visible joint swelling; tender joints: shoulders, elbows, knees, and ankles; 14 tender points; tender cervical, lumber and thoracic spine

Tramadol, Percocet, Morphine; prescribed Oxycodone
02/14/2014 (Tr. 531-532)

Management of osteoarthritis, fibromyalgia, and chronic pain syndrome

Pain is daily and widespread, worse with activity and not relieved with rest

Same as 01/09/2014
Tramadol, Oxycodone and Morphine; no new meds added
03/13/2014 (Tr. 529-530)

Management of osteoarthritis and fibromyalgia

Pain is daily and widespread, worse with activity and not relieved with rest; most of the pain is in neck, shoulders and radiates to low back

Same as 01/09/2014
Oxycodone and Morphine; no new meds added
05/08/2014 (Tr. 527-528)

Management of fibromyalgia, osteoarthritis and chronic pain syndrome

Pain is daily and widespread, worse with activity and not relieved with rest; most of the pain is in neck, shoulders and low back

Same as 01/09/2014

Oxycodone and Morphine; are effective for pain; no new meds added

06/12/2014 (Tr. 525-526)

Management of osteoarthritis of multiple joints, fibromyalgia and chronic pain syndrome

Pain is daily and widespread, worse with activity and not relieved with rest; most severe in neck, shoulders, low back and feet

Difficulty ambulating due to bilateral foot pain; present for more than a month

Same as 01/09/2014
Morphine and Oxycodone; effective for pain[11]; no side effects; no new meds added
08/07/2014 (Tr. 519-521)

Management of osteoarthritis of multiple joints, fibromyalgia, and chronic pain syndrome

Pain is daily and widespread, worse with activity and not relieved with rest; pain located in back, shoulders, low back, and feet; continues to treat with podiatrist for fracture

Continues to be dependent on morphine and oxycodone for pain control and denies side effects

Same as 01/09/2014 but gait and station listed as “abnormal.”

Morphine and Oxycodone; no new meds added

09/04/2014 (Tr. 517-518)

Management of osteoarthritis, fibromyalgia and chronic pain syndrome

Pain is daily and widespread which interferes with daily activities and sleep

Continues to be dependent on morphine and oxycodone for pain control

Same as 01/09/2014 with change to number of tender points (12).

Morphine and Oxycodone; no new meds added

10/02/2014 (Tr. 515-516)

Management of osteoarthritis of multiple joints, fibromyalgia and chronic pain syndrome

Pain is daily and widespread, worse with activity and not relieved with rest

Complaining of shoulder pain and requested steroid injection which have been effective in the past

Continues to be dependent on oxycodone and morphine for pain control

Same as 09/04/2014

Oxycodone, morphine, Flexeril; left shoulder injection of Medrol and Xylocaine; no new meds added


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