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Mackenzie D. W. v. Berryhill

United States District Court, N.D. Oklahoma

March 18, 2019

MACKENZIE D. W., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Mackenzie D. W. seeks judicial review of the decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i) and 423. In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge. For reasons explained below, the Court affirms the Commissioner's decision denying benefits. Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.

         I. Standard of Review

         In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). “A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). The Court must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan, 399 F.3d at 1261 (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). The Court may neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, the Commissioner's decision stands so long as it is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).

         II. Procedural History and ALJ's Decision

         Plaintiff, then a 46-year-old female, protectively applied for Title II benefits on July 20, 2012, alleging a disability onset date of January 1, 2009. R. 238-239. Plaintiff met the insured status requirements of the Act through December 31, 2015. R. 22. Plaintiff claimed she was unable to work due to fibromyalgia and related pain, cluster headaches, memory loss, osteopenia, poor eye sight, “unable to sit, stand, or walk for long periods of time, ” and “no heavy lifting.” R. 265. Plaintiff's claim for benefits was denied initially on December 19, 2012, and on reconsideration on March 27, 2013. R. 125-129; 131-133. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”), and the ALJ held an initial hearing on October 10, 2013. The ALJ then issued a decision, finding at step four that Plaintiff could return to her past relevant work as a court clerk and a waitress, and therefore was not disabled. R. 103-112. Plaintiff appealed, and the Appeals Council remanded that decision to the ALJ to resolve issues surrounding Plaintiff's residual functional capacity (“RFC”) and her past relevant work. R. 116-120. Plaintiff received a second hearing on November 24, 2015. R. 40-63. Due to reported work activity well after her January 1, 2009, alleged onset date, Plaintiff amended her alleged onset date to July 31, 2010, on the advice of her attorney.[1] R. 45-46.

         After Plaintiff's second hearing, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since her amended alleged onset date, July 31, 2010. R. 23. The ALJ found Plaintiff had the severe impairments of fibromyalgia and somatoform disorder. Id. Plaintiff's non-cardiac chest pain, intermittent bradycardia, degenerative joint disease in her hand, and depression were all medically determinable, non-severe impairments, and Plaintiff's complaints of headaches and memory loss were found to be non-medically determinable impairments “that appear[ed] to be symptoms of her fibromyalgia” instead of independent diagnoses. R. 24. Plaintiff's impairments did not meet or medically equal any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ discussed Social Security Ruling (“SSR”) 12-2p, Evaluation of Fibromyalgia, [2] and listing 12.07 for somatoform disorders, finding that Plaintiff had mild restriction in activities of daily living, no difficulties in social functioning, moderate difficulties regarding concentration, persistence, or pace, and no episodes of decompensation. R. 25.

         Prior to making a step four finding and after “careful consideration of the entire record, ” the ALJ found that Plaintiff retained the RFC to

perform light work as defined in 20 CFR 404.1567(b) that is: the claimant can occasionally lift/carry and push/pull 20 pounds occasionally. The claimant can lift/carry and push/pull 10 pounds frequently. She can stand/walk 6 hours in an 8hour workday with normal breaks and sit 6 hours in an 8-hour workday with normal breaks. She is limited to simple unskilled work. She can relate to coworkers, supervisors, and the general public. She would work primarily at the simple unskilled level. She has symptomology from a variety [of] sources to include mild to moderate to occasional and chronic pain that is sufficient severity to be noticeable to her but would remain attentive and responsive to carry out normal work assignments satisfactorily. The claimant is taking medication but it would not preclude her from remaining reasonably alert to perform functions presented in a work setting.

         R. 26. In making his RFC decision, the ALJ summarized Plaintiff's hearing testimony from both hearings. The ALJ noted that in 2013, Plaintiff stated she quit her job as a court clerk and worked as a disc jockey once a month for six months. R. 26. Plaintiff testified to short-term memory loss and sleep problems, and claimed to have low energy and needed to nap during the day. Plaintiff testified she could stand for thirty minutes, walk ten to fifteen minutes at a time, and lift approximately ten pounds. In 2015, Plaintiff testified that her most severe impairment was fibromyalgia and the resultant pain from it; however, she only used over-the-counter pain relievers such as Tylenol and Advil for the pain, and only took a generic form of Zoloft. R. 27. Plaintiff stated she was first diagnosed with fibromyalgia in 2009, continued to work as a court clerk until July 31, 2010, and stopped working due to medication side effects. Id. Plaintiff testified to painful fingers, problems gripping, difficulty with focus, and memory loss. Id. Plaintiff stated she “cannot rest at night” and is fatigued, napping two to two and a half hours daily. Id. She claimed she drove only two or three times a month, could lift twenty pounds, could sit in a reclined position, could stand twenty to thirty minutes, and could walk for thirty minutes. Id.

         In his RFC discussion, the ALJ discussed all of Plaintiff's medical records at length, ranging from June 15, 2009, to September 16, 2013, including records from Plaintiff's treating physicians, emergency treatment records, two agency consultative examinations, and non-examining agency opinions. R. 27-31; 85-92, 94-102, 356-438, 439-503, 504-512, 513-519, 524-526, 527-623. Records from Plaintiff's treating physician, Helen Franklin, M.D. of Omni Medical Group, dated July 1, 2010, noted multiple tender spots and a diagnosis of myalgia myositis. A subsequent visit to Dr. Franklin on August 18, 2010, revealed Plaintiff's report that “her fibromyalgia symptoms were much better on her medication regimen.” R. 27. Yet on September 2, 2010, Plaintiff requested new medication for fibromyalgia, stating that she was “self-medicating herself with THC and wanted to get some THC pills, ” and reportedly had an upcoming drug test for her job. R. 27-28. Plaintiff had multiple positive tender points, and Dr. Franklin again diagnosed fibromyalgia. R. 28. On March 17, 2011, Plaintiff requested a letter from Omni Medical Group documenting her fibromyalgia diagnosis for a workers' compensation claim on March 17, 2011. R. 28. Further notes from Dr. Franklin on January 18, 2012, reveal Plaintiff's claim of stable fibromyalgia symptoms, and that Plaintiff was “in the process of a building job and was working PRN as a DJ.” Id. Plaintiff was in no acute distress, and Dr. Franklin diagnosed tobacco use disorder, fibromyalgia, insomnia, and osteopenia. Id.

         The ALJ next discussed Plaintiff's physical and mental CEs with Johnson Gourd, M.D., and Timothy Doty, Ph.D. R. 28-29; 504-511, 513-517. Dr. Gourd performed a physical CE of Plaintiff on November 5, 2012. R. 504-511. Plaintiff complained of fibromyalgia, headaches, anxiety, and problems with her hearing and memory. She denied any history of alcohol or recreational drug use. R. 28; 504. Dr. Gourd's examination revealed that Plaintiff had “5/5 graded strength in all of her extremities and full painless range of motion in all extremities.” R. 28; 505. Plaintiff could oppose her thumb and fingertips, manipulate small objects, and grasp tools such as a hammer. R. 28; 510. Plaintiff's straight leg raise test was negative bilaterally, and she could heel toe walk without difficulty. R. 28; 505. Plaintiff's gait was stable without any assistive devices and she walked at an appropriate speed, and she could stand from a seated position without difficulty. R. 28; 505. Dr. Gourd assessed Plaintiff with 18/18 tender fibromyalgia points “per history” “on subjective testing.” R. 28; 505.

         The ALJ gave great weight to the majority of Dr. Gourd's opinion, only discounting his finding of 18/18 tender fibromyalgia points. R. 28. The ALJ explained that such finding was “inconsistent with [Plaintiff's] treatment records by her primary care physician [Dr. Franklin]” who found multiple, but not all, tender points. Id. Further, that finding was also inconsistent with Dr. Gourd's other findings of no limitations with Plaintiff's extremities on testing. Id. Finally, the ALJ discounted that particular finding by Dr. Gourd, because it rested solely on Plaintiff's recounted history and her subjective complaints. Id. The ALJ found Plaintiff's “record has included multiple inconsistencies, which [left] her with very little credibility with subjective complaints.” Id.

         The ALJ next turned to Dr. Doty's December 2, 2012, mental CE. R. 28-29; 513-517. Plaintiff presented to the examination with complaints of fibromyalgia and told Dr. Doty she was prescribed Paroxetine (Paxil) “for her depressed mood and only attended three therapy sessions after it was recommended she seek therapy to help her mood.” Id. Plaintiff ambulated without issue, was pleasant, cooperative, and euthymic during her examination. Id. Dr. Doty administered a Montreal Cognitive Assessment (MoCA) test, and Plaintiff earned 29 of 30 possible points, only missing one point on delayed recall.[3] Plaintiff's fund of knowledge was average, her associations were relevant, and her memory and concentration were unimpaired. R. 28; 514. Plaintiff's affective range was within normal limits and her mood was euthymic. Dr. Doty assessed Plaintiff with pain disorder associated with psychological factors, fibromyalgia, and assigned Plaintiff a GAF score of 68. R. 29; 514. Dr. Doty opined that Plaintiff's ability to engage in work related mental tasks was “unimpaired, ” her memory performance was “unproblematic, ” but that Plaintiff's “ability to sustain concentration in a real-world situation appeared hindered by physical pain.” R. 29; 514. Dr. Doty further opined that Plaintiff's “ability to persist in work related tasks appears reduced by reported physical limitations.” R. 29; 514. Plaintiff's ability to “socially interact and adapt to the demands of work situations was within normal limits.” R. 29; 514.

         The ALJ afforded great weight to Dr. Doty's opinion that Plaintiff's ability to understand and remember work related mental tasks was “unproblematic.” However, the ALJ afforded little weight to Dr. Doty's opinions of Plaintiff's concentration and her ability to persist in work related tasks. R. 29. The ALJ explained, stating:

[Dr. Doty's] finding the claimant's ability to sustain concentration in a real-world situation appeared hindered by physical pain is given little weight because it is not consistent with her almost perfect score on her MoCA, his GAF of 68, and his opinion that her ability to engage in work related mental activities appeared un-concerning is not consistent. This was considered in her RFC as evidenced by limiting her to simple work. In addition, his opinion that claimant's ability to persist in work related task[s] because of her reported pain would be reduced is given little weight because Dr. ...

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