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Dysart v. Berryhill

United States District Court, N.D. Oklahoma

July 27, 2017

TAMERA DYSART, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER TO GRANT PLAINTIFF'S APPEAL

          Gerald B. Cohn United States Magistrate Judge.

         I. Procedural Background

         On February November 5, 2013, Tamera Dysart (“Plaintiff”) filed as a claimant for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1382-1383 (“Act”), with a last insured date of September 30, 2017, [2] and claimed a disability onset date of May 12, 2013. (Administrative Transcript (hereinafter, “Tr.”), 12). On August 13, 2015, the administrative law judge (“ALJ”) found that Plaintiff was not disabled within the meaning of the Act. (Tr. 9-33). On May 16, 2016, the Appeals Council denied Plaintiff's request for review, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration (“SSA”). (Tr. 1-5).

         On June 28, 2016, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On October 11, 2016, Defendant filed the administrative transcript of proceedings. (Doc. 14). On December 13, 2016, Plaintiff filed a brief in support of the appeal. (Doc. 15) (“Pl. Br.”)). On February 6, 2017, Defendant filed a brief in response. (Doc. 18 (“Def. Br.”)). On February 27, 2017, Plaintiff filed a reply brief. (Doc. 19 (“Reply”)). On May 10, 2017, the Court referred this case to the undersigned Magistrate Judge.

         II. Facts in the Record[3]

         A. Background

         Plaintiff was born in July 1959 and thus was classified by the regulations as a person of advanced age through the date of the ALJ decision. (Tr. 111); 20 C.F.R. § 404.1563(e).

         Plaintiff completed the twelfth grade, completed a tax course in 1977 at a business and tax institute, and co-owned a business where she did bookkeeping and tax preparation. (Tr. 252). Since joining the family bookkeeping and tax preparation business in 1977, Plaintiff's work in general accounting and tax preparation included: (1) using a “computer or use a ten-key adding machine at least 6 hours a day during tax season”; (2) copying and proof reading; (3) interviewing clients and recording their information; (4) maintaining monthly bookkeeping accounts with profit/loss reports and sales tax and payroll reports, and; (5) attending fifteen hours of continuing education. (Tr. 253). Plaintiff lives with her husband who receives disability.[4] (Tr. 52).

         Earnings reports demonstrate that Plaintiff: (1) did not meet the earning threshold for any quarters of coverage[5] in 1991 and 2014; (2) in 1996 ($640 annual income), 1997 ($1, 545 annual income), 2004 ($1, 955 annual income), and 2005 ($1, 917 annual income), met the earning threshold for one to two quarters of coverage; from 1987 to 1990 (annual income between $2, 314 and $3, 768), 1992 to 1995 (annual income between $3, 507 and $7, 542), 1998 to 2003 (annual income between $2, 527 and $3, 780), and 2006 to 2013, met the earning threshold for three to four quarters of coverage, with the average annual income for those eight years totaling $ 6, 746.63. (Tr. 195-200).[6]

         B. Treatment History and Medical Opinions

         1. Mercy St. John Neurology: Nitin K. Sharma, M.D.

         On June 18, 2013, Dr. Sharma noted that Plaintiff fell and hit her head in the bathroom on May 13, 2013, without a loss of consciousness, followed by hitting her head on a dresser table corner at the same part of her head without any loss of consciousness. (Tr. 345). Dr. Sharma noted that the CT of the brain was negative and since the falls, Plaintiff reported experiencing “unilateral throbbing headache with visual disturbances, ” intermittent upper extremity weakness with paresthesia, double vision, dizziness, forgetfulness, confusion, and difficulties with sleep and concentration. (Tr. 345). Upon examination Dr. Sharma noted that Plaintiff's: (1) coordination was normal, visual field was normal, right eye upper eyelid exhibited mild droopiness, facial muscle functions were normal; (2) reflexes were normal; (3) gait stable; (4) motor strength was 4 to 5/5; (5) sensory was normal, and; (6) mental status was unremarkable. (Tr. 346). Dr. Sharma assessed Plaintiff with: (1) closed head trauma with head concussion; (2) post-concussion headache with cognitive dysfunction; (3) acute migraines/vascular headache, and; (4) unremarkable brain MRI. (Tr. 346).

         In a follow-up visit dated July 24, 2013, Dr. Sharma made similar examination findings as those made on June 18, 2013, and recommended that she continue with medicine regime of pamelor, naproxen, and imitrex. (Tr. 349-50). In a follow-up visit dated August 27, 2013, Dr. Sharma made similar examination findings as those made during the June 2013 and July 2013 visits. (Tr. 353). Dr. Sharma noted that Plaintiff's visual disturbances and migraine were improved and controlled and that her headache was “well controlled over pamelor/naproxen regime.” (Tr. 353).

         2. Psychiatric Review Technique: G.R.L., [7] Ph.D.; L.M.L., Ph.D.

         On February 20, 2014, Dr. G.R.L. reviewed the records and opined that Plaintiff had: (1) mild restriction of activities of daily living; (2) mild difficulties in maintaining social functioning; (3) mild difficulties in maintaining concentration, persistence or pace, and; (4) no repeated episodes of decompensation, each of extended duration. (Tr. 115). Dr. G.R.L. opined that Plaintiff did not meet the criteria for Listings 12.04 (affective disorders) or 12.06 (anxiety-related disorders). (Tr. 115). In support for the opinion, Dr. G.R.L. noted Plaintiff's medical history, noted mental health records indicated that Plaintiff was doing well, Plaintiff's report of symptoms, and cited an examination from November 2013 which noted no neurological symptoms, no confusion, no disorientation, and no psychological symptoms. (Tr. 115). Dr. G.R.L. noted (1) that a June 2013 record indicated unremarkable findings and negative MRI; (2) that a September 2013 record indicated that remote and recent memory was not impaired and no psychological symptoms; (3) that May 2013 and November 2013 CT scans and MRI were normal, and; (4) Plaintiff's report of ADLs which includes reading, watching TV, counting change, and socializing. (Tr. 116).

         On July 10, 2014, Dr. L.M.L. reviewed the records and made identical findings and provided identical explanation and summary of the evidence as provided in Dr. G.R.L.'s February 2014 Psychiatric Review Technique. Compare (Tr. 113-116) with (Tr. 122-27). Dr. L.M.L. reviewed additional evidence which included a June 2014 examination where Plaintiff reported becoming more depressed due to her tremors, and a review of symptoms indicated that there were no psychological symptoms, no anxiety, and no depression. (Tr. 127). Dr. L.M.L. noted that Plaintiff reported that her memory was still impaired, claimed that mentally she was fine but has some depression, and she could not physically complete her tasks and Dr. L.M.L. summarized a third-party report of Plaintiff's symptoms. (Tr. 127-28). Dr. L.M.L. concluded that the additional medical evidence did not demand greater limitations than already opined and that Plaintiff had “mild limitations in her global functioning.” (Tr. 128).

         3. Physical Residual Functional Capacity Assessment: J.S., [8] D.O.; Karl Boatman, M.D.

         On February 31, 2014, Dr. J.S. reviewed the record and opined that Plaintiff could: (1) occasionally lift and/or carry 50 pounds; (2) frequently lift and/or carry 25 pounds; (3) stand and/or walk for a total of about 6 hours in an 8-hour workday; (4) sit for a total of about 6 hours in an 8hour workday; (5) push and/or pull without imitation, other than shown, for her limitation with lifting and carrying. (Tr. 117). Dr. J.S. opined that Plaintiff did not have any postural limitations, manipulative limitations, visual limitations, communicative limitations, or environmental limitations. (Tr. 117). In support for the opinion, Dr. J.S. noted Plaintiff's: (1) medical history, report of symptoms and ADLs; (2) objective testing including x-rays, CTs, MRIs, and MR angiograms for the chest, head, brain, cervical spine, knee from April 2013 to November 2013; (3) unremarkable June 2012 examination; (4) a June 2013 examination where Plaintiff reported falling twice and hitting her head followed by experiencing photosensitivity, hearing sensitivity, sharp pain in the back of the eye whenever she tries to recall something and neurological examination revealed no involuntary movements, no tremor, no dysmetria, absent Balance/Romberg's sign, and revealed that Plaintiff was able to walk a straight line and had a normal gait. (Tr. 117-118). Dr. J.S. summarized June 2013 to August 2013 examination findings from Mercy St. John that demonstrated (1) normal coordination, visual field, facial muscle functions and reflexes; (2) that her right eye upper eyelid exhibited mild droopiness; (3) stable gait; (4) a motor strength of 4 to 5/5; (5) normal sensory; (6) unremarkable mental status, and; (7) that her headaches were well controlled with a pamelor/naproxen regime and her visual disturbances and migraine were improved and controlled. (Tr. 118). Dr. J.S. noted the November 2013 examination where notwithstanding Plaintiff's reported symptoms, there were no neurological symptoms, no dizziness, no lightheadedness, no fainting, no confusion or disorientation, and no sensory disturbances. (Tr. 118). Dr. J.S. concluded that Plaintiff:

retains the capacity to perform work related activities consistent with the RFC provided based on the [medical evidence of record] and ADL findings. [Plaintiff's] overall medical information is mild in nature. She does consistently report headaches but this is manage [sic] with med[ication]. Based on medical evidence in file, limitations with hearing, seeing and memory are overall normal.

(Tr. 118). Dr. J.S. opined that although Plaintiff demonstrated some limitations in performance of certain work activities, she was capable of doing past relevant work. (Tr. 119).

         On July 22, 2014, Dr. Boatman reviewed the record and made identical findings and provided identical explanation and summary of the evidence as provided in Dr. J.S.'s February 2014 Physical Residual Functional Capacity Assessment. Compare (Tr. 117-119) with (Tr. 129-31). Dr. Boatman reviewed additional evidence which included: (1) Records from Freeman Neurospine dated March 2014 indicating that Plaintiff had obstructive sleep apnea and recommending treatment with a CPAP machine and to avoid depressive medications especially before sleeping; (2) February 2014 record indicated mild L5-S1 lumbar spine facet arthopathy, unremarkable MRI of lumbar spine, examination revealing abnormalities in the lumbosacral spine such as tenderness to palpation and left-sided antalgic gait; (3) Plaintiff's March 2014 report of hand tremors that significantly diminish ability to write and eat and that tremors happen after she works a bit; (4) a March 2014 examination noting no abnormalities in the neck, normal movement in all extremities, recommendation that Plaintiff only work two to three hours until she recovered from the traumatic brain injury; (5) an April 2014 record indicating normal movement of all extremities and Plaintiff's report of insomnia, tremor, and fatigue; (6) a June 2014 record indicating normal movement in all extremities, Plaintiff report of insomnia, rash, fatigue and depression, and nutritional evaluation results were reviewed, and; (7) a June 2014 excision of a keratosis. (Tr. 130-31). Dr. Boatman also noted Plaintiff's and third-party reports of ADLs which included preparing light meals, light chores, shopping, reading, going to church, and watching TV and significant decreased ability to hold a pen, use a computer mouse, put on make-up, or type due to tremors. (Tr. 131). Dr. Boatman concluded that the additional evidence did not demand greater limitations than already opined. (Tr. 131). Notwithstanding the recommendation that Plaintiff only work two to three hours until she recovered from the traumatic brain injury, Dr. Boatman indicated that there was not any medical source or other source opinions about Plaintiff's limitations that needed to be addressed. (Tr. 131). Dr. Boatman reiterated the same conclusions of Dr. J.S. that although Plaintiff demonstrated some limitations in performance of certain work activities, she was capable of doing past relevant work. (Tr. 132).

         4. Grand Lake Family Medicine: Aunna Herbst, D.O.

         From July 15, 2011 to June 13, 2014, Plaintiff sought treatment from Grand Lake Family Medicine. (Tr. 359-424, 573-619). On July 15, 2011, Plaintiff reported back pain and was assessed with muscle spasms. (Tr. 359-60). On August 1, 2011, Plaintiff reported experiencing periodic migraine headaches which last for about three days affecting the right side of her face and neck. (Tr. 361). Plaintiff reported that there had been three months when she had not had these migraines but lately she has had them every month. (Tr. 361). Dr. Herbst prescribed alprazolam and sumatriptan succinate. (Tr. 362). On September 30, 2011, Plaintiff reported experiencing a headache for three days and Dr. Herbst continued with current treatment. (Tr. 363-64). On November 4, 2011, Plaintiff reported experiencing headache and fatigue and Dr. Herbst adjusted Plaintiff medication. (Tr. 365-66). On December 27, 2011, January 10, 2012, July 1, 2012, July 15, 2012, October 2, 2012, November 15, 2012, December 11, 2012, and Plaintiff sought follow-up treatment for symptoms not at issue in this case. (Tr. 367-374, 384-385, 391-401) (depression, anxiety, knee injury).

         On January 26, 2012, Plaintiff reported experiencing insomnia Dr. Herbst assessed her with fatigue. (Tr. 375-77). On April 26, 2012, Plaintiff reported feeling achy all over and it was noted that Plaintiff is still waiting for insurance before she could follow up with an endocrinologist. (Tr. 378-80). On June 8, 2012, Plaintiff reported improvement since starting thyroid medication, reported that she still experienced fatigue, it was noted that she is sleeping with the prescribed medication, and Dr. Herbst counseled her on lifestyle changes with diet and exercise. (Tr. 382-83). On September 10, 2012, Plaintiff reported that she still experiences headaches and that she had a two-day migraine the previous week. (Tr. 386). Dr. Herbst renewed Plaintiff's prescription for sumatriptan succinate to address the migraines. (Tr. 387).

         A record dated June 6, 2013, noted that Plaintiff had knee surgery on May 6, 2013. (Tr. 402). Plaintiff reported that since recently twice falling and hitting head, she has experienced periodic light and hearing sensitivity which creates a sharp pain in back of eye when she is tries to recall something. (Tr. 402). Upon examination, Dr. Herbst noted normal movement of all extremities, no involuntary movements, no tremor, no dysmetria, Rornberg's sign was absent, that Plaintiff was able to walk a straight line, stance and gait were normal, and her deep tendon reflexes were normal. (Tr. 404).

         On September 10, 2013, Plaintiff reported that she was still under a neurologist treatment due to her concussions and her main concern was insomnia. (Tr. 406). Upon examination, Dr. Herbst noted no arthralgias, no localized joint pain, no neurological symptoms, no dizziness, no lightheadedness, no fainting, and no sensory disturbances. (Tr. 407). Dr. Herbst noted that Plaintiff's remote memory was not impaired, recent memory was not impaired, cranial nerves were normal, no sensory exam abnormalities were noted, a motor examination demonstrated no dysfunction, no ataxic gait was observed, and reflexes were normal. (Tr. 408).

         On October 7, 2013, Dr. Herbst noted no musculoskeletal symptoms, no limb swelling, and no neurological symptoms. (Tr. 411-12). On October 14, 2013, Plaintiff reported back pain for past couple of days, and Dr. Herbst noted that Plaintiff was not fatigued, did not experience lightheadedness, no decrease in ability to concentrate, and normal movement in all extremities. (Tr. 414-16).

         On November 6, 2013, Plaintiff reported experiencing memory loss from the May 2013 car accident and described that she thought her symptoms were getting better; however, she still had difficulty recalling the days of the week, still occasionally walked sideways, and drove off the road when she thought that she was driving straight. (Tr. 418). Dr. Herbst noted that Plaintiff reported fatigue but no headache, no arthralgias or localized joint pain, and Plaintiff was presented normal movement of all extremities. (Tr. 420).

         On July 23, 2014, Plaintiff reported experiencing a migraine for five days and experiencing fatigue. (Tr. 623, 625). Plaintiff reported arthralgias and pain in one or more joints and that tremors were stable, and she experienced no dizziness, lightheadedness, or confusion. (Tr. 625). Examination revealed no back tenderness, normal movement of all extremities, and normal musculoskeletal examination in general. (Tr. 626). It was noted that Divalproex Sodium was discontinued. (Tr. 623). Dr. Herbst noted that Plaintiff's remote and recent memory were not impaired, Plaintiff demonstrated a normal sensory examination, normal reflexes, no dysfunction during the motor examination, and walked with a normal gait. (Tr. 626).

         On August 19, 2014, Plaintiff sought treatment for extreme fatigue and headaches. (Tr. 627). Plaintiff reported experiencing headaches with greater frequency and duration. (Tr. 627). Plaintiff reported keeping a headache diary and that she saw Dr. Harden regarding the tremors and he prescribed medication and opined that the tremors were due to fatigue. (Tr. 627). As with the prior visit, Plaintiff reported that the tremors were stable, that she experienced no dizziness, no decrease in ability to concentrate, no fainting, no confusion, and no sensory disturbances. (Tr. 629). Dr. Herbst's observations were identical to the July 2014 examination noting that examination revealed no back tenderness, normal movement of all extremities, and normal musculoskeletal examination in general, that Plaintiff's remote and recent memory were not impaired, that Plaintiff demonstrated a normal sensory examination, normal reflexes, no dysfunction during the motor examination, and walked with a normal gait. (Tr. 630). Dr. Herbst recommended increasing the dosage of her current medication in hopes to decrease the headaches. (Tr. 630).

         On September 9, 2014, Plaintiff sought treatment for reccurring headaches and brought in her migraine log. (Tr. 632). Plaintiff was unsure whether she should take the medication daily, or just on the days that she experienced the migraines. (Tr. 632). Plaintiff reported feeling disoriented before the migraines start and that she experienced fatigue and depression. (Tr. 632). As with the prior visit, Plaintiff reported that no dizziness, no fainting, no confusion, and no sensory disturbances. (Tr. 634). Dr. Herbst observed normal movement of all extremities. (Tr. 634). Dr. Herbst instructed Plaintiff to take medication every night. (Tr. 635).

         On October 7, 2014, Plaintiff reported seeking emergency department treatment for a severe migraine which caused her to feel dizzy and fall. (Tr. 636), (Tr. 772- (Emergency Hospital Records)). Dr. Herbst reviewed Plaintiff's migraine log. (Tr. 638).

         On November 4, 2014, Plaintiff reported that she had a migraine on October 31, 2014, that lasted for twenty-four hours, she reported that it started when she was driving, causing her to pull out in front of people, and hit the railing of her porch without being aware of what happened. (Tr. 640). Plaintiff speculated that the headache from the day before caused that “foggy spell” during driving and denied any other foggy spells, for example during cooking, cleaning, or other household chores. (Tr. 640). Plaintiff reported that time and rest in a quiet place was the best way to alleviate her headaches. (Tr. 640). Upon review of symptoms, Plaintiff was not fatigued, did not experience visual problems, did not report any musculoskeletal symptoms, and did not experience dizziness. (Tr. 642). Dr. Herbst reviewed Plaintiff's migraine log and instructed Plaintiff “not to drive on days that she has had a headache or a day after if she is feeling foggy.” (Tr. 643). Dr. Herbst continued Plaintiff's medication of 25 mg of Sumatriptan daily for normal headaches and increasing the dosage for major headaches that last a day. (Tr. 643).

         On December 8, 2014, Plaintiff reported currently experiencing a migraine that has lasted three days and reported that she had a bad migraine for two days and went a week without one. (Tr. 644). Plaintiff reported that her headaches are not lasting as long as they have before. (Tr. 644). Plaintiff reported that her headaches were triggered by weather change and lights when traveling, her main concern is that she cannot sleep, and she reported feeling very stressed with her headaches and caring for her husband. (Tr. 644). Upon examination, Dr. Herbst noted that notwithstanding the headache, Plaintiff had no vision problems, no nausea, no dizziness, no impairment of the remote memory and recent ...


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