Fletcher v. Astrue

• Decision Date: 07 March 2012
• Docket Number: No. 2:10-0109,2:10-0109
• Parties: BARBARA FLETCHER v. MICHAEL J. ASTRUE, Commissioner of Social Security
• Court: U.S. District Court — Middle District of Tennessee

BARBARA FLETCHER

v. MICHAEL J. ASTRUE,Commissioner of Social Security

No. 2:10-0109

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NORTHEASTERN DIVISION

Dated: March 7, 2012

To: The Honorable Thomas A. Wiseman, Jr., Senior District Judge

REPORT AND RECOMMENDATION

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claims for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"), as provided by the Social Security Act ("the Act").

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 12) should be denied.

I. INTRODUCTION

The plaintiff filed applications for SSI and DIB on July 27, 2007, alleging a disability onset date of May 1, 2004, due to a heart attack, stent placement, diabetes, rheumatoid arthritis, diabetic neuropathy, high blood pressure, anxiety, and depression. (Tr. 93-100, 127.) Her applications weredenied initially and upon reconsideration. (Tr. 51-54, 59-62.) A video hearing before Administrative Law Judge ("ALJ") Andrew G. Sloss was held on October 28, 2009 (tr. 24-40),¹ and the plaintiff amended her alleged onset date to November 23, 2005. (Tr. 30.) The ALJ delivered an unfavorable decision on December 2, 2009 (tr. 11-21), and the plaintiff sought review by the Appeals Council. (Tr. 6.) On September 14, 2010, the Appeals Council denied the plaintiff's request for review (tr. 1-3), and the ALJ's decision became the final decision of the Commissioner.

II. BACKGROUND

The plaintiff was born on November 23, 1955, and was 50 years old as of November 23, 2005, her alleged onset date. (Tr. 30, 98.) The plaintiff completed high school and one year of nursing school. (Tr. 30.) She worked as a licensed practical nurse. (Tr. 149, 169.)

A. Chronological Background: Procedural Developments and Medical Records

Between October of 1988, and April of 2002, the plaintiff presented to Mississippi Baptist Medical Center on multiple occasions and she was diagnosed with chest pain, right shoulder pain, right ankle pain, abdominal pain, osteoarthritis, asthma, and a herniated cervical disc at C6-7, and she underwent a stent of the right coronary artery, a cervical myelogram, a cervical hemilaminectomy at the C6-7 disc, a cholecystectomy, and a right salpingo-oophorectomy. (Tr. 184-349.) From January of 2000, to April of 2002, the plaintiff presented to Central Mississippi Medical Center and was diagnosed with migraines, right lower abdominal pain, a right ankle sprain, an"[a]cute inferior myocardial infarction,"² "[t]riple-vessel coronary artery disease," and hyperlipidemia. (Tr. 350-83.) An August 9, 2004, nuclear stress test revealed that the plaintiff was "clinically negative for chest pain and electrocardiographically negative for ischemic EKG changes." (Tr. 445.)

Between September of 2004, and August of 2007, the plaintiff presented to Dr. Eric Fox on multiple occasions for hormone replacement therapy ("HRT") and with complaints of insomnia, migraines, cold symptoms, coughing, right side rib pain, right ankle pain, foot pain, hand pain, back pain, chest discomfort, arthritic pain, depression, and anxiety. (Tr. 384-452, 484-97.) He noted that the plaintiff's weight fluctuated between 128 pounds and 164 pounds and that she was five feet tall (tr. 392, 394, 396, 398, 401, 403, 406, 409, 411, 414, 420, 423, 431, 485); diagnosed her with insomnia, migraines, diabetes, dyslipidemia, hypertension, allergic rhinitis, Chronic Obstructive Pulmonary Disease ("COPD"), coronary artery disease, costochondritis, a right ankle sprain, peripheral neuropathy, chest tightness, anxiety, depression, osteoarthritis pain, rheumatoid arthritis, and lower back pain; and prescribed Aspirin, Estradiol, Delestrogen, Plavix, Sonata, Ambien, Avandamet, Lantus, Decadron, Prednisone, Medrol Dosepak, Singulair, Nasacort, Endal-HD, Augmentin, Levaquin, Advair, Toradol, Naprelan, Naprosyn, Lortab, Ultracet, Percocet, Prozac, Cymbalta, Lexapro, Trazodone, Xanax, Alprazolam, Vistaril, Phenergan, Lovastatin, Methotrexate, and Tizanidine.³ (Tr. 384-452, 484-97.)

On September 20, 2007, Stephen Hardison, M.A., a consultative psychological examiner, completed a psychological evaluation (tr. 455-59) and noted that the plaintiff "appear[ed] in some physical discomfort during the evaluation" and had a depressed mood with flat affect. (Tr. 455.) The plaintiff related that she had "chronic problems with arthritis and diabetic neuropathy;" felt depressed; is able to prepare simple meals, drive, shop for groceries, occasionally work outside, and perform "some chores" but she "cannot sit or stand for long." (Tr. 457.) Mr. Hardison diagnosed the plaintiff with anxiety disorder, not otherwise specified ("NOS") and depression "with things relating greatly to her chronic pain problems." (Tr. 458.) He also concluded that the plaintiff was not significantly limited in her ability "to remember and carry out basic 1- and 2-step instructions," "to remember and carry out somewhat more detailed instructions," "to respond appropriately to change in a routine work setting including being aware and take appropriate precautions regarding normal hazards," and "to set realistic goals and make plans independently," and that she was mildly to moderately limited in her ability "to sustain concentration and persistence" and to interact socially. Id.

On September 24, 2007, Dr. Daniel Kan, a consultative examining physician, completed a medical evaluation (tr. 460-64) and noted that the plaintiff weighed 147 pounds, had a slow butsteady gait, and had "4/5 to 5/5 strength of the upper extremities . . . [and] 4/5 in both lower extremities." (Tr. 461-63.) He diagnosed the plaintiff with diabetes and with "[r]ule out" coronary artery disease and arthritis and found that

[i]n regard to work expectations on the basis of previous history, physical findings and without the benefit of full medical records, diagnostic radiological and neuropsychological testing, it is estimated that the claimant may be able to occasionally lift light weights. She may be able to stand and walk for 1- to 2-hour periods and may be able to sit for about 6 hours in an 8-hour work period with normal breaks.

Of note, that patient was observed when she left the office and was walking and driving without difficulties when compared to her performance in the office where she was hardly able to move.

(Tr. 463-64.)

On October 10, 2007, George W. Livingston, Ph.D., a nonexamining Tennessee Disability Determination Services ("DDS") psychologist, completed a Psychiatric Review Technique Form ("PRTF") (tr. 465-78) and diagnosed the plaintiff with anxiety disorder, nos. (Tr. 470.) He concluded that the plaintiff had moderate restriction of activities of daily living and moderate difficulties maintaining social functioning, concentration, persistence, or pace. (Tr. 475.) Dr. Livingston noted that there was "insufficient evidence" pertaining to the plaintiff's episodes of decompensation⁴ and that the record medical evidence "establishes a mental impairment that is more than non-severe, but that does not meet or equal any listing," that the "[m]ental limitations indicated by various sources are generally consistent," and that the "limitations indicated by the [claimant] are viewed as generally credible." (Tr. 475, 477.)

Dr. Livingston also completed a mental Residual Functional Capacity ("RFC") assessment (Tr. 479-82) and opined that the plaintiff was moderately limited in her ability to understand, remember, and carry out detailed instructions; in her "ability to maintain attention and concentration for extended periods;" in her "ability to sustain an ordinary routine without special supervision;" in her "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;" in her "ability to interact appropriately with the general public;" and in her "ability to respond appropriately to changes in the work setting." (Tr. 479-80.)

In November and December of 2007, the plaintiff returned to Dr. Fox on two occasions with complaints of anxiety and joint pain. (Tr. 498-507.) Dr. Fox diagnosed her with diabetes, rheumatoid arthritis, osteoarthritis, chronic pain syndrome, hip pain, knee pain, and lower back pain; noted that her hypertension, coronary artery disease, and anxiety were stable; and prescribed Alprazolam, Hydrochlorothiazide,⁵ Hydroxyzine, Lyrica,⁶ Lortab, and Ultram. (Tr. 500-01, 507.)

On December 26, 2007, Dr. Frank R. Pennington, a nonexamining consultative DDS physician, completed a physical RFC assessment (tr. 508-15) and opined that the plaintiff could lift/carry 50 pounds occasionally and 25 pounds frequently, that in an eight hour workday she could sit or stand for about six hours, and that her ability to push/pull was unlimited. (Tr. 509.) He also found that the plaintiff could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; could occasionally climb ladders, ropes, or scaffolding; and should avoid concentrated exposure to extreme heat and cold. (Tr. 512.)

On April 10, 2008, the plaintiff presented to Dr. Fox with complaints of mild to moderate lower back pain that radiated down to her right hip. (Tr. 530-33.) Dr. Fox found that the plaintiff had spinal pain with movement; diagnosed her with muscle spasms, right sciatica, and anxiety; noted that her hypertension and coronary artery disease were stable; and prescribed Flexeril,⁷ Alprazolam, Hydrochlorothiazide, Lortab, and Lyrica. Id.

On December 26, 2007, Dr....