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Ebmeier v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

May 30, 2014

CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


ROBERT G. DOUMAR, Senior District Judge.

This matter comes before the court on the Plaintiffs Motion for Summary Judgment, filed September 16, 2013, and on the Defendant's Motion for Summary Judgment, filed October 16, 2013. The Plaintiff is seeking judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying the Plaintiffs claim for disability insurance benefits under the Social Security Act.

On October 28, 2013, the Motions were referred to United States Magistrate Judge Douglas E. Miller, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Federal Rule of Civil Procedure 72(b), for a report and recommendation for the disposition of the Motions.

The Report and Recommendation was filed on April 30, 2014. The Magistrate Judge recommended denying Plaintiffs Motion for Summary Judgment, granting the Defendant's Motion for Summary Judgment, and affirming the decision of the Commissioner. By copy of the Report and Recommendation, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. The Plaintiffs Objections to the Magistrate Judge's Report and Recommendation were filed on May 14, 2014, and the Defendant's Response to the Objections was filed on May 27, 2014.

The court, having examined the Objections and Response to the Objections to the Report and Recommendation and having made de novo findings with respect thereto, docs hereby adopt and approve the findings and recommendations set forth in the Report and Recommendation of the United Slates Magistrate Judge filed April 30, 2014. Accordingly, the Plaintiffs Motion for Summary Judgment is DENIED, the Defendant's Motion for Summary Judgment is GRANTED, and the Commissioner's decision is AFFIRMED.

The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.



Plaintiff Mary R. Ebmeier ("Ebmeier") seeks judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for disability insurance under Title II of the Social Security Act. 42 U.S.C. §§ 401-434. Specifically, Ebmeier claims the ALJ improperly evaluated the opinions of her treating physicians and erred in assessing the limitations imposed by her diagnosis of fibromyalgia. She also contends that post-hearing evidence submitted to the Appeals Council necessitates remand. (ECF No. 11 at 2-3). This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C), and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons stated below, this report recommends that the final decision of the Commissioner be affirmed.


On August 2, 2010, Ebmeier filed an application for disability benefits, alleging disability beginning September 29, 2006[1], due to fibromyalgia, chronic fatigue syndrome, sleep impairment, attention deficit hyper activity disorder and mood/anxiety disorder. (R. 16). The Commissioner denied her application initially on September 10, 2010 (R. 55), and upon reconsideration on February 18, 2011. (R. 62). Ebmeier requested an administrative hearing, which was conducted on January 9, 2012. (R. 27-47).

On February 8, 2012, an Administrative Law Judge ("ALJ") concluded that Ebmeier was not disabled within the meaning of the Social Security Act, and denied her claim for disability benefits. (R. 11-23). The Appeals Council denied review of the ALJ's decision on April 23, 2013 (R. 2-4), thereby making the ALJ's decision the final decision of the Commissioner. Pursuant to 42 U.S.C. § 405(g), on June 7, 2013, Ebmeier filed this action seeking judicial review of the Commissioner's final decision. This case is now before the Court to resolve the parties' cross-motions for summary judgment.


At the time of her date last insured in 2007, Ebmeier was 42 years old, a younger individual under Agency rules. 20 C.F.R. § 404.1563. She had a high school education, training in cosmetology, and past experience as a hair stylist, insurance biller, and entertainer.

Although Ebmeier filed her claim in August 2010, she alleged disability beginning September 2006, and her date last insured was September 30, 2007. Thus, to receive DIB Ebmeier had to establish disability at sometime between these two dates. The medical evidence reviewed by the ALJ spans years on both sides of her claimed period of disability.

Medical evidence in the record begins with Ebmeier's treatment by Dr. Samuel M. Shor in 2001. Dr. Shor diagnosed Ebmeier's fibromyalgia by use of trigger points, and followed her until 2005. (R. 168-89, 318-19). On January 17, 2003, Dr. Shor saw Ebmeier during a follow-up for her chronic fatigue, fibromyalgia, sleep disorder and depression. (R. 178). She reported missing work due to pain and disruptions in her sleep. On physical exam that day, Dr. Shor noted tenderness at 12 of 18 trigger points for fibromyalgia. He increased a prescribed dose of Flexeril, prescribed Vicodin for breakthrough pain, and ordered a follow-up in two to three weeks. (R. 178-80).

Ebmeier returned in less than a week complaining of a rash and no effect from the Flexeril. Her medications were adjusted and she was directed to return for a previously scheduled February visit. (R. 177). There is, however, no record of another follow-up until June 24, 2003, when Ebmeier consulted a physician's assistant at the practice for a sinus infection. (R. 173).

On January 8, 2004, Ebmeier again returned for "routine follow-up." She reported that the Adderall had helped her chronic fatigue, without making her jittery. She had stopped B-12 injections, stating she had not needed them. Her fibromyalgia was described as "generally okay it is there but I don't think about it all the time.'" (R. 171). Dr. Shor described her condition as "better" and continued her existing treatment. Her last documented visit with Dr. Shor was September 4, 2004 during which she described pain in her lower and mid back. Dr. Shor's exam found tenderness at 18 of 18 trigger points for fibromyalgia. He noted that it had worsened and prescribed Flexeril with direction to consider another medication modification. (R. 168-69). In a check-the-box questionnaire completed almost a year later on August 19, 2005, Dr. Shor stated that Ebmeier displayed the signs of fibromyalgia and that the effect of her pain and side effects of her medication would preclude even unskilled work-related tasks performed at the sedentary level. (R. 318-19).

The medical record between 2006 and 2007 primarily documents Ebmeier's treatment with her primary care physician, Dr. Steven Pearman. Ebmeier testified that she treated with Dr. Pearman for "everything, " and the records primarily relevant to her work-limiting conditions involved treatment for fibromyalgia, anxiety, ADHD and chronic fatigue. (R. 34). She also consulted with Dr. Pearman for a variety of transient conditions, including poison ivy (R. 244, 264), chest colds (R. 256), a sore throat (R. 252), and sinus congestion (R. 246).

During the relevant time period between 2006 and 2007 there are few medical records documenting the status of her alleged work-limiting impairments. The first, on December 8, 2006, records that Ebmeier complained of difficulty sleeping and increased anxiety and stress due to her son's autism. (R. 254). She also described feelings of fatigue related to her medications. Dr. Pearman reviewed her current prescriptions and directed a follow-up in three months. During that follow-up visit on March 30, 2007, the same condition was noted as "stable." Ebmeier again reported stress over her son's illness and the cost of care, and her feeling that her husband had ADHD as a result of an on-line test. (R. 249).

In total, only three visits with Dr. Pearman during the relevant time period between 2006-07 involved consultation for her allegedly debilitating conditions. Several of her consultations involved medication management. Throughout this time period, and through the date of the hearing, Ebmeier was prescribed Adderall, Vistaril, and Clonazepam. (R. 254, 244, 238). Although Ebmeier maintained the same diagnoses of fibromyalgia and ADHD, she was not referred for specialized treatment nor did her treating physician make significant changes to her medication during the relevant time period.

After her date last insured, at a visit to Dr. Pearman on September 4, 2008, he noted that Ebmeier was continued on Adderall once daily because, as she reported, she "would [otherwise] sleep all day." Dr. Pearman also noted that Ebmeier was "still up at night working as a private investigator... [and] with bounty hunter." He described her continuing back problems related to her breast implants and noted that she was working to lose weight and trying to get insurance approval for a breast reduction. He described her continued shoulder and neck pain but reviewed and continued all of her previous medications. In her physical exam that date she was oriented, developed, nourished and not distressed, negative for headaches, negative for dizziness, with a normal gait. She complained of excessive sleepiness in the afternoons and reported memory loss and depression, but denied being nervous or anxious. (R. 221-22).

Ebmeier returned to Dr. Pearman again on December 23, 2008 with a chief complaint of sore throat, upper respiratory infection and flu-like symptoms. On that date she complained of headaches, congestion and aching in her chest. A physical exam revealed a normal range of motion and no distress. She was prescribed Amoxicillin and diagnosed with a sinus infection. (R. 217-18).

On January 6, 2009, Ebmeier returned to Dr. Pearman with complaints of fibromyalgia, anxiety, chest, shoulder and back pain due to her breast condition. At the time, Dr. Pearman noted that a breast reduction surgery was scheduled for January 10, and prepared a letter of medical necessity. In the January 6, 2009 letter addressed "To Whom It May Concern, " Dr. Pearman described Ebmeier's medical treatment since June 2005. He described her diagnosis of fibromyalgia and stated that she suffered with ongoing neck, shoulder, and chest pain exacerbated by the weight of her breasts and the shifting of implants. He concluded that a breast reduction for Ebmeier would bemedically necessary.[2]

With regard to her other conditions, he noted that she was "positive for myalgias, neck pain, back pain and joint pain, but negative for dizziness. He described her as oriented with a normal range of motion and continued her on medications. (R. 215-16). At a May 6, 2009 follow-up, Dr. Pearman reported chief complaints of hyperlipidemia, itching and anxiety. He reported her symptoms as negative for weight loss and malaise and fatigue, negative for myalgias and joint pain, negative for dizziness and ...

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