United States District Court, N.D. Oklahoma
OPINION AND ORDER TO GRANT PLAINTIFF'S
B. Cohn United States Magistrate Judge.
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,  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).
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.
Facts in the Record
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).
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. (Tr. 52).
reports demonstrate that Plaintiff: (1) did not meet the
earning threshold for any quarters of coverage 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).
Treatment History and Medical Opinions
Mercy St. John Neurology: Nitin K. Sharma, M.D.
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.
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).
Psychiatric Review Technique: G.R.L.,  Ph.D.; L.M.L.,
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).
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.”
Physical Residual Functional Capacity Assessment: J.S.,
D.O.; Karl Boatman, M.D.
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.
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).
Grand Lake Family Medicine: Aunna Herbst, D.O.
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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