McWhorter v. Berryhill, 3:14-cv-01658

• Decision Date: 14 April 2017
• Docket Number: No. 3:14-cv-01658,3:14-cv-01658
• Parties: FLORENCE R. MCWHORTER, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

FLORENCE R. MCWHORTER, Plaintiff, v. NANCY BERRYHILL,¹ Acting Commissioner of Social Security, Defendant.

No. 3:14-cv-01658

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

April 14, 2017

Judge Sharp

MEMORANDUM

Pending before the Court is Plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 12). The motion has been fully briefed by the parties.

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 Plaintiff's claim for disability insurance under Title II , as provided by the Social Security Act ("the Act"). Upon review of the administrative record as a whole and consideration of the parties' filings, the Court finds that the Commissioner's determination that Plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g). Plaintiff's motion will be denied.

I. INTRODUCTION

Plaintiff, Florence R. Mcwhorter, filed a Title II application for disability insurance on March 21, 2011, alleging disability as of December 18, 2008. (Tr. 102-03). Plaintiff's claim wasdenied at the initial level on July 12, 2011, and on reconsideration on October 28, 2011. (Tr. 61-66, 70-72). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on March 11, 2013. (Tr. 9, 25, 74-75). On April 11, 2013, the ALJ issued a decision finding that Plaintiff was not disabled. (Tr. 6-20). Plaintiff timely filed an appeal with the Appeals Council, which issued a written notice of denial on June 26, 2014. (Tr. 1-3). This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).

II. ALJ FINDINGS

The ALJ issued an unfavorable decision on April 11, 2013. (AR p. 6). Based upon the record, the ALJ made the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2014.

2. The claimant has not engaged in substantial gainful activity since December 18, 2008, the alleged onset date (20 CFR 404.1571 et seq).

3. The claimant has the following severe impairments: lumbar fusion; fibromyalgia; and post-surgery on right wrist and left thumb with pins (20 CFR 404.1520(c).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) that is limited to lifting and carrying twenty pounds frequently and ten pounds occasionally;² standing and/or walking for sixhours in an eight-hour workday; sitting for six hours in an eight-hour workday; performing occasional postural activities with no use of ladders; occasionally handling with her light arm; and occasionally thumb-gripping with her left hand. Additionally, she needs a sit/stand option in thirty-minute intervals.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on September 28, 1959 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from December 18, 2008, through the date of this decision (20 CFR 404.1520(g)).

(AR pp. 11-20).

III. REVIEW OF THE RECORD

The following summary of the medical record is taken from the ALJ's decision:

The claimant has a history of degenerative changes of the lumbar spine most severe at L4-5 and post-operative changes related to a prior left hemilaminectomy at L5-S1 with mild to moderate left foraminal stenosis as demonstrated by an MRI performed on November 17, 2009. A subsequent MRI revealed moderate central stenosis at L3-4 due to disc bulging and facet hypertrophy. After conservative treatment measures and epidural steroid injections failed to relieve the claimant's symptoms, she underwent a decompressive lumbar laminectomy and fusion at L4-5 and L5-Sl on December 18, 2008, the alleged onset date. Exhibits 1F and 3F.

A follow-up treatment note dated January 15, 2009, from the claimant's orthopedic surgeon, Edward Mackey, M.D., reflects that it was planned for the claimant to return to work in two months on light duty. However, a couple of months later it was noted that she was improving slowly and still had lingering back discomfort with burning pain in her toes although an X-ray showed that her fusion was well-aligned. She was prescribed Celebrex and Lyrica and given refills of Lortab, and on April 23, 2009, Dr. Mackey ordered therapy for core strengthening with a transition to an independent gym program. Despite the claimant's ongoing symptoms, Dr. Mackey gave her light duty restrictions of lifting no more than fifteen pounds, lifting no more than five pounds frequently, and sitting and standing without limitations. Exhibit 3F.

On May 20, 2009, the claimant complained of worsening symptoms concerning for neuropathic pain, and she prescribed an increased dosage of Lyrica. However, it was noted that she still tried to return to her past work. The following month, a lumbar MRI showed circumferential effacement of the epidural fat around the thecal sac at L4-5 and L5-S1, a well circumscribed fluid collection in the laminectomy defect most indicative of a seroma, and mild enhancement of the disc and endplates of the intervertebral body graft placement due to either the claimant's recent surgery or early inflammatory changes. Exhibit 3F.

On June 15, 2009, the claimant met with pain management provider Jeffrey Hazlewood, M.D., on referral from Dr. Mackey. She endorsed a "pressure, soreness type pain" in her lower back that radiated to her right lower extremity and caused numbness and tingling in her right toes. However, she endorsed no more than mild to moderate pain with medication with a pain rating of four to five on a ten-point scale with ten being the worst. In addition to the claimant's symptoms, Dr. Hazlewood also noted that she had a history of left thumb surgery in 2002-2003 and two right wrist surgeries in 2003-2004. Exhibit 2F.

On examination, Dr. Hazlewood observed that the claimant had pain getting on the examination table. She had spasms throughout her lumbar spine, diminished lumbarrange of motion, decreased pinprick sensation in the right posterior calf, and slightly diminished motor strength in the right hip flexor and right anterior tibialis with give away. Otherwise, she had good range of motion throughout all extremities, negative straight leg raises, normal motor strength in the upper and lower extremities, normal reflexes, and normal sensation in the right medial foot and bilateral upper and left lower extremities. Based on his overall examination, Dr. Hazlewood diagnosed the claimant with chronic low back pain with a combination of mechanical and neuropathic pain, lumbar spasms, and sacroiliac joint pain "probably referred from the lumbar spine." She was continued on Lyrica, Celebrex, and Lortab and additionally prescribed Lidoderm patches. She was also advised to continue using a TENS unit and scheduled for sacroiliac joint injections. Exhibit 2F.

The next day, June 16, 2009, the claimant met with Dr. Mackey, who noted that she was doing well neurologically and had good motor function. However, she had increased pain with bilateral FABER test, and it was decided that she would proceed with the sacroiliac joint injections, which was performed by Dr. Hazlewood on July 7, 2009. Exhibits 2F and 3F.

At a follow-up visit to Dr. Mackey on July 28, 2009, it was noted that the claimant had tried to return to work but had been unable to do so. Nevertheless, it was determined that she was twenty-five percent better. A couple of months later, Dr. Mackey noted that the claimant had not been doing as well as he would have liked and that that he could not medically clear her to return to her past work. He instead decided to send her for a functional capacity evaluation. Exhibit 3F.

The actual findings of that functional capacity evaluation were not found in the provided records. However, based on the results of the evaluation, Dr. Mackey assessed permanent restrictions on October 21, 2009, of no lifting over five pounds frequently, thirty pounds maximum, ten pounds from floor to waist, ten pounds from waist to chest, and ten pounds overhead. He further opined that she needed to alternate between sitting and standing, sitting for forty-five minutes per hour and standing for fifteen minutes per hour. Such restrictions were not inconsistent with a physical examination conducted by Dr. Hazlewood just a few days prior on October 6, 2009, with findings of diminished lumbar range of motion but only mild spasms, non-antalgic gait, and good range of motion throughout the lower extremities. Exhibits 2F and 3F.

The following month on November 9, 2009, Dr. Mackey determined that the claimant had an overall impairment rating of twenty-two percent

...