Myers v. Barnhart
| Decision Date | 27 November 2002 |
| Docket Number | Civ.A. No. H-01-2721. |
| Citation | 285 F.Supp.2d 851 |
| Parties | Rose M. MYERS, Plaintiff, v. Jo Anne B. BARNHART,<SMALL><SUP>1</SUP></SMALL> Commissioner of the Social Security Administration, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Timothy N. Derigo, Attorney at Law, Midland, TX, John Joseph Ingram, III, Ingram Law Firm, McAllen, TX, for plaintiff.
Kerry J. Simpson, U.S. Attorney's Office, Special Assistant U.S. Attorney, Dallas, TX, for defendant.
This Social Security Act appeal was referred to Magistrate Judge Calvin Botley pursuant to 28 U.S.C. §§ 636(b)(1)(B). On November 5, 2002, Magistrate Judge Calvin Botley issued a Memorandum and Recommendation [Doc. # 20], suggesting that this Court grant Defendant's Motion for Summary Judgment [Docs. # 16; see Doc. # 17 (Memorandum in Support)], and deny Plaintiff's Motion for Summary Judgment [Doc. # 15]. The time for objections to be filed by the parties as to the Memorandum and Recommendation has expired without any objections having been filed.2 The parties have provided no basis to revisit the findings and conclusions proposed in the Magistrate Judge's Memorandum and Recommendation, and that the Magistrate Judge's recommended dispositions will be adopted.3 This Court cannot conclude, in light of the record presented, that the decision of the Administrative Law Judge ("ALJ") that Plaintiff could perform unskilled, light work with limitations is supported by substantial evidence unsupported by substantial evidence, as that term is defined by federal law. There clearly is more than a scintilla of evidence to support the administrative decision in light of the ALJ's credibility findings, the evidence of Plaintiff's degree of pain, the absence of any evidence of deterioration or decompensation in work-like settings, the lack of objective medical evidence of pain or effects of the claimed fibromyalgia, and the role of the ALJ to resolve conflicts in the evidence, particularly with reference to Plaintiff's claimed inability to perform work for eight hours per day, five days per week. It is therefore
ORDERED that the Memorandum and Recommendation [Doc. # 20] is adopted as this Court's Memorandum and Order. It is further
ORDERED that Defendant's Motion for Summary Judgment [Doc. # 16] is GRANTED. It is further ORDERED that Plaintiff's Motion for Summary Judgment [Doc. # 15] is DENIED. It is further
ORDERED that this case is DISMISSED with prejudice.
A final judgment will be entered separately.
Plaintiff Rose Myers ("Myers") seeks judicial review of the Social Security Administration's ("SSA") denial of her claim for disability and supplemental security income benefits provided by Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 405 and 1381, et seq. See Plaintiff's Motion to Reverse or Remand (Entry # 15). Defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration ("Commissioner"), urges her decision denying Myers' claim for benefits be upheld and maintains that although Myers is limited to performing unskilled, light work with limitations, she is not disabled and is able to work at jobs found to exist in significant numbers in the national economy. See Defendant's Motion for Summary Judgment (Entry # 16) and Memorandum in Support (Entry # 17).1 Myers contends that the administrative law judge ("ALJ") wrongfully determined that she is not disabled as a consequence of failing to properly evaluate and consider the combined impact of her alleged impairments, particularly her pain and fibromyalgia; improperly relying upon the medical expert's response to a hypothetical question that failed to include all of her alleged impairments; and, failing to assess whether Myers would be able to maintain work on a regular basis. See Plaintiff's Motion to Reverse or Remand (Entry # 15). Myers maintains that the Commissioner's decision should be reversed or remanded, contending that it is not premised upon substantial evidence and does not comply with applicable legal standards.
Conversely, the Commissioner contends that her finding that Myers is not disabled, is based upon a complete review of the claimant's medical records as well as the opinions of her treating physicians and those of the vocational and consulting medical experts and, accordingly, the Commissioner's reaffirmation of the ALJ's decision that Myers is not disabled, as she retains the residual functional capacity to perform unskilled, light work with restrictions, is based upon substantial evidence and the proper application of the relevant legal standards. See Defendant's Motion for Summary Judgment (Entry # 16). The Commissioner disputes Myers' claims and contends that affirming the denial of the claim for disability and supplemental security income benefits is the only proper conclusion to this matter.
For the reasons discussed below, it is recommended that the ALJ's findings be affirmed.
Rose Myers is a forty-seven (47) year old, divorced female with no minor children. Myers earned a high school education by obtaining a GED and has past work experience as a clerical worker and school bus driver. (T.33-34, 39; R. 87-89, 99, 257-259).2 Myers ceased working on February 18, 1998, as a result of pain and depression caused by her alleged rheumatoid arthritis, osteoporosis, psoriasis, borderline lupus, diabetes, lung damage resulting from Legionnaire's Disease and fibromyalgia. (R. 125-136; T. 33-39).
Rose Myers presented to Dr. Judson Henderson on February 28, 1998, with complaints that she had hurt her back while trying to help a friend move. Myers reported a past history of having undergone surgery for a tubal pregnancy and is allergic to codeine. She was prescribed Robaxin for the lumbo-sacral pain and, after obtaining pap examination results, Flagyl for a coccobacilli vaginal infection. Radiological scans of the lumbo-sacral spine revealed her vertebral bodies in good alignment with no evidence of a fracture but narrowing of the lumbo-sacral interspace with associated sclerotic degenerative disc disease. No evidence of spondylolysis was presented. (R. 245-252). Myers appeared in the emergency room of Northeast Medical Center Hospital on June 16, 1998, complaining of fever, chills and coughing up blood. She related that she pulled a muscle in her neck, shoulder and upper chest on the left side and had a congested cough producing a blood-tinged sputum. Myers reported a history of smoking one pack of cigarettes per day, having had tuberculosis as a child, requiring two years of treatment. Following an examination by Dr. David Carlyle, Myers was admitted to the hospital, under the care of Dr. Stephen Isbell, in moderate respiratory distress with a possible diagnosis of bilateral Klebsiella pneumonia. A chest x-ray revealed bibasilar densities consistent with pneumonia and a urine sample tested positive for the Legionella antigen due to pneumonia. (R. 153-179). Following her discharge from the hospital, Myers appeared at the International Family Medical Center for a follow-up examination on July 3, 1998. She indicated that she was taking Paxil for depression because she was having trouble with her estranged husband and her on-going relationship with a younger man. Dr. Briner gave Myers a prescription for Bactrim for her continued cough and congestion and a Disability Certificate indicating that Myers would be unable to return to work for two months. A pap examination and mammogram performed at Northeast Medical Center Hospital on September 3, 1998, were both negative with no evidence of malignancy. (R. 183-201).
On March 1, 1999, Myers appeared at the International Family Medical Center with complaints of arthritis in her knees, pain in her hips and depression. Myers was referred to Dr. Celeste Thomas for examination. (R. 181). On April 26, 1999, Myers was examined by Dr. Thomas who noted that she complained of swelling pain in her knees and hips since she was twenty-one (21) years of age and that six of her eleven siblings had arthritis. Myers further related that she could hardly walk during a nine month period and following several episodes of recurring pain, had been told she had rheumatoid arthritis. Myers indicated that she also had low back pain as a result of degenerative disc disease and that she had pain at all times of the day. She was prescribed Flexeril, Celebrex and Elavil after Dr. Thomas determined that she had tender points consistent with fibromyalgia and osteoarthritis of the knees. (R. 229-234). Psychiatrist, Dr. Nilgun Giray-Bellezza, of the University of Texas Health Science Center, examined her on May 20, 1999, and diagnosed her as having a moderately severe major recurrent depressive disorder with chronic anxiety and a negative prognosis due to her failure to obtain psychiatric treatment and medication. Further, Dr. Giray-Bellezza determined that Myers had poor concentration and an impaired ability to cope with stress. (R. 223-234). At the request of the Texas Rehabilitation Commission ("TRC"), Dr. Donald Gibson,II, an internalist, examined Myers on June 21, 1999, noting her complaints of arthritis. Dr. Gibson's examination revealed that Myers appeared to have a combination of osteoarthritis and fibromyalgia with some soft tissue and joint pain. Myers revealed no severe immobility, was able to bend, squat poorly, and climb off and on the exam and x-ray table without difficulty. She had no gait or motor disorder and no reproducible fatigue. There was no evidence of swelling or deformity and her ability to sit, stand and walk for brief periods was not impaired. There was no evidence of radiculopathy, lower spinal disorder or neuropathy and her osteoposoris was mild with no history of pathologic fractures.(R. 235-239). On July 7, 1999, Dr. Grethe E. Wilk, an...
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