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Spielbusch v. Berryhill

United States District Court, D. Kansas

October 5, 2017

MARY ANN SPIELBUSCH, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE.

         Plaintiff Mary Ann Spielbusch seeks review of a final decision by the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits under the Social Security Act.[1] Plaintiff alleges error with regard to the Administrative Law Judge's (“ALJ”) residual functional capacity (“RFC”) assessment. Finding no error, the Court affirms the Commissioner's decision.

         I. Factual and Procedural Background

         Plaintiff applied for disability insurance benefits on January 16, 2014, alleging an onset date of July 11, 2013, due to her fibromyalgia, arthritis, autonomic nervous system affected by unknown virus, dizziness, profuse sweating, racing heart, fluctuating blood pressure, chronic inflammation, chronic pain, hypothyroidism, headaches/migraines, fatigue, chronic orthostatic hypertension, limited mobility in neck, sensitive nerves, and gastroesophageal reflux disease (“GERD”).[2] The Commissioner denied Plaintiff's application upon initial review and upon consideration. Plaintiff timely requested a hearing before an ALJ. She appeared and testified at a hearing before ALJ Timothy G. Stueve on September 30, 2015.

         The ALJ issued an unfavorable decision against Plaintiff on November 19, 2015. He concluded that Plaintiff was not disabled within the meaning of the Act. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, and Plaintiff timely filed an appeal with this Court pursuant to 42 U.S.C. § 405(g).

         II. Standard for Judicial Review

         Judicial review under 42 U.S.C. § 405(g) is limited to whether the ALJ's decision is supported by substantial evidence in the record as a whole and whether the ALJ applied the correct legal standards.[3] The Tenth Circuit has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[4] In the course of its review, the Court may not re-weigh the evidence or substitute its judgment for that of the agency.[5]

         III. Legal Standards and Analytical Framework

         Under the Social Security Act, “disability” means the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.”[6] An individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”[7] The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled.[8] If the ALJ determines the claimant is disabled or not disabled at any step along the way, the evaluation ends.[9]

         The ALJ determined at step one that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. He determined at step two that Plaintiff has the following severe impairments: fibromyalgia, degenerative disc disease, sinusitis, obesity, and stress fracture of the metatarsals. He determined at step three that Plaintiff's impairments did not meet or equal the severity of one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. Continuing, he determined that Plaintiff has the RFC to perform light work, except:

the individual could occasionally lift 20 pounds and frequently lift or carry 10 pounds; the individual could sit for up to 6 hours, and stand or work for approximately 6 hours in an 8-hour day with normal breaks; the individual is frequently able to climb ramps or stairs; the individual should never climb ladders, ropes, or scaffolds; the individual is frequently able to balance, stoop, kneel, crouch, and crawl; the individual could occasionally tolerate exposure to extreme cold, to extreme heat, and to vibrations; the individual could never tolerate exposure to unprotected moving mechanical parts and unprotected heights.[10]

         He determined at step four that Plaintiff was able to perform her past relevant work as an underwriting technician or light semi-skilled work with a specific vocational rating of four. He then concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from July 11, 2013, until the date of his decision, November 19, 2015.[11] Because he determined Plaintiff was not disabled at step four, the ALJ did not proceed to step five.

         Plaintiff challenges the ALJ's RFC and step four findings, arguing that the ALJ erred by: 1) giving considerable weight to Dr. Trowbridge, a state agency physician; while giving little to no weight to her treating physicians' opinions; 2) discounting her treating doctors' opinion because their exam findings were “normal” when she suffers from fibromyalgia, a condition that commonly generates normal test results; 3) failing to re-contact Dr. Ponnuru contrary to Social Security Ruling (“SSR”) 96-5p; 4) failing to identify the basic work activities limited by her obesity; 5) failing to include mild restrictions from her anxiety in her RFC; 6) discounting her mother's statements because she is a layperson and related to Plaintiff; and 7) finding her not credible without providing an explanation supported by substantial evidence.

         IV. Analysis

         Plaintiff attacks the ALJ's RFC assessment on various grounds. “Residual functional capacity consists of those activities that a claimant can still perform on a regular and continuing basis despite his or her physical limitations.”[12] Under SSR 96-8p, an RFC assessment “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts ... and nonmedical evidence.”[13] The ALJ must also discuss the individual's ability to perform sustained work activities in an ordinary work setting on a “regular and continuing basis” and describe the maximum amount of work-related activity the individual can perform based on evidence contained in the case record.[14] The ALJ “must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.”[15] However, “there is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question.”[16]

         A. Evaluation of Medical Opinions

         1. Standard for Weighing Medical Opinions

         “Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s) including [claimant's] symptoms, diagnosis and prognosis.”[17] Such opinions may not be ignored and, unless a treating source opinion is given controlling weight, all medical opinions will be evaluated by the Commissioner in accordance with factors contained in the regulations.[18] Those factors are: (1) length of treatment relationship and frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.[19]

         “In general, the opinions of treating sources will be given the greatest weight, those of nontreating sources will be given lesser weight, and those of nonexamining sources will be given the least weight.”[20] A treating physician's opinion, however, may be rejected “if it is brief, conclusory, and unsupported by medical evidence.”[21]

         2. The Non-examining Physician's Opinion

         Defendant requested Denise R. Trowbridge, M.D., to review Plaintiff's medical records and provide an assessment of Plaintiff's RFC.[22] After reviewing extensive records, Dr. Trowbridge rated Plaintiff's exertional limitations as follows: occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for a total of about 6 hours in an 8-hour workday; and unlimited push/pull other than for lift/carry.[23] She said she can frequently climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; but she can never climb ladders, ropes, or scaffolds.[24] She recommended she avoid concentrated exposure to extreme cold, heat, and vibration.[25] She indicated she can withstand unlimited wetness, humidity, and noise.[26] She also said she should avoid all exposure to hazards such as machinery and heights.[27] She concluded that:

The degree of dysfunction alleged is not [consistent with] the [medical records] in file and would not be expected from the established [medically determinable impairments]. Her exams appear relatively normal, except for obesity and several of her treating physicians have encouraged her to exercise. Giving the claimant the benefit of some ongoing symptoms from these established [medically determinable impairments] and some medication effects, it appears she would be limited to lighter work on a sustained basis.
[Medical source opinion] given little weight, as it is lacking in objective support; a full [work-up] for orthostasis, including tilt table testing/echocardiography and Holter monitoring was negative.[28]

         The ALJ gave considerable weight to Dr. Trowbridge's opinion because “[she] is familiar with the definitions and evidentiary standards used by the agency and her opinion is consistent with the medical evidence as a whole.”[29] He adopted Dr. Trowbridge's RFC findings.

         Plaintiff argues that Dr. Trowbridge's opinions are not substantial evidence to support the ALJ's decision because: 1) she did not examine or treat Plaintiff, and 2) she is a radiologist with a specialty in oncology, a condition that Plaintiff does not have. The Court disagrees. First, the latter argument is simply specious. Being a specialist in oncology did not disqualify Dr. Trowbridge from giving a medical opinion.

         Second, a non-examining physician's opinion is an acceptable medical source that the ALJ must consider.[30] Indeed, in some instances, opinions from state agency medical consultants may be entitled to greater weight than the opinions of treating or examining sources.[31] Here, the ALJ did not err by assigning significant weight to Dr. Trowbridge's opinion because it was based on a comprehensive review of the record and it was consistent with the objective medical evidence of Plaintiff's treating and examining physicians.[32] Dr. Trowbridge's opinion was based upon the entire record, as opposed to Dr. Ponnuru's opinion, which appears to have been based only upon his interactions with Plaintiff.[33] Even when considering the stricter standard set forth in SSR 96-6p, the Court cannot find that the ALJ improperly weighed Dr. Trowbridge's opinion.

         3. Treating Physicians

         Plaintiff argues the ALJ improperly weighed her treating physicians' opinions; namely Drs. Ponnuru, Neustrom, Dennis, Bondi, Koenig, Williams, and Minocha. Again, the Court disagrees.

         a) Dr. Ponnuru

         Harrish Ponnuru, M.D., is one of Plaintiff's treating physicians. Plaintiff sought treatment from him for, inter alia, fatigue, racing heart, and near syncope (fainting).[34] On April 24, 2014, Dr. Ponnuru provided a RFC assessment that was significantly different from that of Dr. Trowbridge's.[35] He opined that Plaintiff could sit less than one hour at a time; she could sit less than one hour total in an eight-hour workday; she could stand/walk less than an hour at one time; she could stand/walk less than an hour total in an eight-hour workday; and she needed to lie down over four hours total in an eight-hour work day.[36] The ALJ gave little to no weight to Dr. Ponnuru's opinions because his examinations of Plaintiff were normal, Plaintiff's holter monitor and tilt tests were normal, and a cardiologist found no cardiac etiology for her impairments.[37]

         Plaintiff claims two errors with respect to Dr. Ponnuru's opinions: 1) the ALJ failed to re-contact him as required by SSR 96-5; and 2) the ALJ erroneously rejected his opinions for the stated reason that his examination findings were normal when they were not. The Court finds these arguments unpersuasive.

         As to the first error, Plaintiff argues that because Dr. Ponnuru opined that Plaintiff was not able to work presently, he trespassed on an issue reserved for the Commissioner, which triggered the ALJ's duty to re-contact Dr. Ponnuru, citing SSR 96-5.[38] Plaintiff, however, relies upon an outdated regulation.[39] That regulation was changed in 2012 and no longer requires that an ALJ first re-contact a treating source to resolve an inconsistency or insufficiency in the evidence that source provides to the Social Security Administration.[40] If the ALJ determined that the evidence was inconsistent or insufficient to permit him to determine whether Plaintiff was disabled, he could have taken several different actions to enhance the record, including re-contacting his medical sources.[41] But Plaintiff fails to show that inconsistent or insufficient evidence prevented the ALJ from determining whether she was disabled. The ALJ therefore did not have a duty to re-contact Dr. Ponnuru.

         As to the second error, Plaintiff points out that there are no tests for fibromyalgia and that normal test results are common for fibromyalgia sufferers. She thus argues that the ALJ's reliance upon “normal” exams and tests to discount Dr. Ponnuru's opinions was misplaced. She also claims that the ALJ ignored evidence of abnormal results such as the presence of a small nasal polyp, elevated eosinophils and immunoglobulin E, positive test result for infectious mononucleosis, visible greater girth in the right lower extremity than the left, varying blood pressure, and hypertensive throughout examination. The Court disagrees. The ALJ acknowledged the evidence regarding Plaintiff's fibromyalgia and these abnormal results. But a diagnosis of fibromyalgia does not mean Plaintiff's RFC is limited as Dr. Ponnuru opines. Moreover, Dr. Ponnuru's restrictions were based on his diagnosis for near syncope and autonomic nervous system dysfunction, not fibromyalgia.[42]

         Although there is some evidence which may support contrary findings, the Court will not displace the ALJ's choice between two fairly conflicting views, even though the Court could make a different choice had the matter been before it de novo.[43] In this case, two doctors opined directly on Plaintiff's RFC: Drs. Ponnuru and Trowbridge. Dr. Ponnuru's restrictions were inconsistent with his treatment notes. The ALJ essentially found that Dr. Ponnuru's restrictions were based primarily on Plaintiff's subjective complaints without support in his treatment notes. That finding is supported by substantial evidence in the record. Despite finding Plaintiff's cardiac functioning, respiratory functioning, and neurological functioning consistently normal, he gave extreme limitations.[44] And contrary to his opinions on near syncope, Plaintiff's holter monitor and tilt tests were normal. Moreover, Dr. Trowbridge's review of Dr. Ponnuru's records and explanation why he gave little weight to Dr. Ponnuru's opinion provided the ALJ an additional basis to assign Dr. Ponnuru's opinions little to no weight.[45] The Court finds substantial evidence supports the ALJ's decision to discount Dr. Ponnuru's opinions.

         b) Dr. Koenig

         Christopher Koenig, M.D., is a rheumatologist who treated Plaintiff's fibromyalgia. The ALJ discussed Dr. Koenig's records in three paragraphs:

The claimant treated with Christopher Koenig, M.D. at Rheumatology Consultants Chartered from December 2012 to January 2015 (Exhibits 5F, 30F). Dr. Koenig initially reported the claimant's variable widespread discomfort was related to fibromyalgia syndrome. Dr. Koenig also reported that while the claimant still had some left sided cervical pain, her neuropathic symptoms that extended into her right upper extremity had resolved. Additionally, Dr. Koenig reported the claimant's slow to heal insufficiency fraction of her right foot was fully healed and she could walk comfortably. He noted that while she had chronic fatigue, she tried to remain active and could swim without pain aggravation (Exhibit 5F, 8). Dr. Koenig assessed chronic cervical myofascial pain, osteopenia, and right lower extremity DVT [deep vein thrombosis].[46]
On a follow up visit over one year later, Dr. Koenig reported the claimant had recently been seen for an enigmatic illness and was diagnosed with fibromyalgia. The claimant was encouraged to exercise in addition to taking Flexeril, Gabapentin, Venlafaxine, and Tramadol. Dr. Koenig reported the labs performed at the Mayo Clinic were all normal, and there was no evidence of an underlying systemic inflammatory process. Despite advice to the contrary, she was not seen again for another 12 months (Exhibits 5F, 6, 30F, 1). Dr. Koenig noted fibromyalgia and cervical spondylosis were added to the claimant's previously assessed impairments.[47]
In 2015, Dr. Koenig reported the claimant was wearing an orthotic boot as needed for public walking. Dr. Koenig reported the claimant was no longer working, she stopped taking Venlafaxine due to the cost, and wanted to know if she could take Flexeril during episodes of anxiety, headaches, and chest tightness. Dr. Koenig noted the claimant could take Hydrocodone-Acetaminophen as needed for severe pain and Flexeril as needed for pain (Exhibit 30F, 1, 3). Dr. Koenig also noted she weighed between 215 and 234 pounds with a BMI between 29.36 and 31.96 (Exhibits 5F, 6, 30F, 3).[48]

         After the ALJ issued his decision, Dr. Koenig wrote a letter, stating, in pertinent part:

I have provided rheumatology care to Ms. Mary Spielbusch since September 2009. . . Mary was diagnosed with chronic neck pain and cervical myofascial pain. In January 2010, I expanded the diagnosis to include fibromyalgia syndrome (central pain sensitization) based on diffuse myalgias and expanding skeletal pain involving the neck, thoracic spine, and shoulder girdles. Later in 2010, she developed additional symptoms of central pain sensitization including daily headaches, worsening widespread pain to non-noxious stimuli, and nonrestorative sleep. From 2009-2011, management included medications for central pain sensitization (NSAIDS, Muscle Relaxers, and Anti-epileptics) and massage therapy.
In December 2011, Mary developed a stress fracture in her right foot complicated by a deep venous thrombosis from immobilization and the AFO [ankle foot orthosis]. Discontinuation of Meloxicam on anticoagulation caused worsening pain. She began using Hydrocodone or Tramadol to manage the pain off Meloxicam. Venlafaxine was also added for pain control. Her central pain sensitization remained symptomatic despite these measures.
Mary intermittently received care from pain management over several years. Interventions included trigger point injections, facet injections, and radiofrequency ablation. These interventions did not produce substantial or· enduring symptomatic benefit. Repeated C-spine imaging has remained normal.
Mary has received a medical evaluation through the Mayo Clinic. The Mayo Clinic doctors confirmed central pain sensitization and recommended continuation of standard therapies. No other problems existed that explained her chronic musculoskeletal symptoms.
* * *
. . . Mary recently presented for annual follow-up. Since her last appointment, she developed chronic regional pain syndrome involving the right foot. . . .
I do not believe Mary can work with the chronic regional pain syndrome affecting her right foot. She does need comprehensive multidisciplinary management including formal [physical therapy] and cognitive behavior therapy to improve this process. . . . I believe her diagnoses are correct.[49]

         The Appeals Council considered Dr. Koenig's letter and concluded that it, along with additional medical source statements, did not provide a basis for changing the ALJ's decision.[50] And because the diagnosis for chronic regional pain syndrome was assessed after the ALJ's decision, the Appeals Council said “it does not affect the decision about whether you were disabled beginning on or before November 19, 2015.”[51]

The Court sees no problems with the ALJ's evaluation of Dr. Koenig's records. Plaintiff has not specifically identified any issues other than arguing that his opinions should be given more weight given his treating physician status. But Dr. Koenig did not give an opinion as to Plaintiff's restrictions and limitations to work before the ALJ issued his decision. And Dr. Koenig's letter proves that a diagnosis of fibromyalgia does not automatically translate into an inability to work. He diagnosed Plaintiff with fibromyalgia in 2010, yet she worked until July 2013.[52] The Court finds no error with respect to Dr. Koenig's opinion.

         c) Dr. Neustrom

         Plaintiff saw Mark Neustrom, D.O., for her allergies from January 2013 to May 2014. Dr. Neustrom's records indicate that Plaintiff experienced sinus pressure and postnasal drainage after receiving allergy injections, but she had no sinus infection in the previous six months and her recurrent sinusitis and asthma were improved. In 2014, Dr. Neustrom noted Plaintiff stopped allergy injections due to arthralgia (joint pain), her symptoms were less pronounced during the winter, and she had mild seasonal allergies. After summarizing his treatment records, the ALJ wrote:

Dr. Neustrom provided a medical source statement in November 2013 (Exhibit 6F). Dr. Neustrom opined the claimant's current physical state made it difficult for her to work consistently without interruption. However, Dr. Neustrom also opined that with the claimant's current treatment of Budesonide, the claimant's symptoms should improve significantly in the next 2 weeks (Exhibit 6F, 26). The undersigned gives Dr. Neustrom's opinion no weight as his examination of the claimant was normal.[53]

         Plaintiff argues that Dr. Neustrom's findings were not normal as he found she had a small nasal polyp. But that single polyp does not warrant reversal because Dr. Neustrom opined that it would improve significantly in the next two weeks with Budesonide. Plaintiff's medical records indicate that her allergies, asthma, and sinusitis were controlled or improved by medication. And as the ALJ noted, “Dr. Neustrom had reported Plaintiff had no significant nasal congestion or sinus pressure, she took Nasonex and Allegra as needed, and her recurrent sinusitis and asthma were improved (Exhibit 6F, 37). By the end of 2013, Dr. Neustrom reported the claimant had only one or two treated sinus infections in the previous 12 months.”[54] These reported treatment and improvement are inconsistent with Plaintiff's statement regarding the severity of her symptoms. The Court finds no error with discounting Dr. Neustrom's opinion.

         d) Dr. Minocha

         Kiran Minocha, M.D., was Plaintiff's primary care physician. She treated Plaintiff for mononucleosis. The ALJ gave no weight to Dr. Minocha's opinions as she only provided temporary restrictions because of Plaintiff's mononucleosis.[55] Dr. Michoa opined that Plaintiff's condition was expected to last only two weeks to six months and estimated Plaintiff could return to work without restrictions in two months provided Plaintiff rest, hydrate, and maintain adequate nutrition.[56] Because the limitations were temporary, the Court finds no error with discounting Dr. Minocha's opinions.[57]

         e) Dr. Dennis

         Damon Dennis, D.C., is Plaintiff's chiropractor. After the ALJ issued his decision, Dr. Dennis submitted a letter indicating that he has provided back and joint care for Plaintiff over 15 years; she suffered from various problems that caused swelling throughout her body; she is in pain twenty-four hours a day causing her to be on bedrest for extended periods of time; she recently has been diagnosed with Complex Regional Pain Syndrome; she continues to be unable to work; and this will not change in the near future.[58] The Appeals Council considered Dr. Dennis' letter and concluded that it, along with additional medical source statements, did not provide a basis for changing the ALJ's decision.[59]

         Because Dr. Dennis' opinion is brief, conclusory, and unsupported in the record, the Appeals Council did not err in discounting or rejecting his opinion. Moreover, his opinion is inconsistent with Dr. Roberts', who noted that chiropractic management and epidural injections provided relief and helped Plaintiff's neck pain, while trigger point injections, facet blocks, and radiofrequency ablation helped with her fibromyalgia.[60] The Court finds no error with discounting Dr. Dennis' opinions.

         f) Dr. Bondi

         Plaintiff saw Laurel Bondi, DPM, for her right foot pain. The ALJ discussed Dr. Bondi's records in two paragraphs:

The claimant treated with Laurel Bondi, DPM from February 2012 to April 2015 (Exhibit 25F). The claimant stated her foot pain started in June 2011. She stated this pain was intermittent and located on the top of her right foot. While her pain was aggravated with standing, it was relieved with ice and rest. Dr. Bondi reported the claimant previously used a controlled ankle movement (CAM) walker and ice packs. The claimant underwent an MRI which was negative. However, she also underwent a bone scan which was positive for activity in the third metatarsal of the right foot (Exhibit 25F, 22). Dr. Bondi noted in March 2012 and May 2012 that the claimant received a bone stimulator and she was to continue her prescribed ...

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