Mann v. Berryhill

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE

         Plaintiff Marisa Arnetta Mae Mann ("Mann") seeks judicial review of the Acting Commissioner of the Social Security's ("Commissioner") decision denying her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Mann claims the Administrative Law Judge ("ALJ") erred by improperly analyzing medical evidence to find Mann was not disabled in an opinion issued April 12, 2017. In support of her claim in this court, Mann has submitted additional evidence that is not included in the administrative record. 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 Rule 72(b) of the Federal Rules of Civil Procedure. Because the ALJ did not err in evaluating Mann's impairments and the additional evidence does not justify remand under 42 U.S.C. § 405(g), the undersigned RECOMMENDS that final decisions of the Commissioner be affirmed by GRANTING the Commissioner's Motion (ECF No. 13) and DENYING Mann's Motion (ECF No. 12).

         I. PROCEDURAL BACKGROUND

         Mann filed an application for SSI and Disability Insurance Benefits ("DIB") on September 13, 2013, alleging a disability onset date of November 6, 2010. (R. 14, 119). The Social Security Administration ("SSA") denied Mann's DIB claim because she had not earned sufficient work credits to qualify, (R. 122, 128), and her SSI claim because she was not "disabled or blind" under their rules. (R. 126). Asserting that she was "unable to work, " Mann requested reconsideration of her SSI claim but did not seek further review of her DIB claim.^[1] (R. 131). The SSA affirmed the initial decision upon reconsideration, (R. 135), and Mann requested an administrative hearing, which occurred on March 7, 2017. (R. 14).

         The ALJ determined that Mann was not disabled within the meaning of the Social Security Act and denied her claim for benefits. (R. 29). The Appeals Council declined to review the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. (R. 1). Mann filed this action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). This case is now before the court in order to resolve the parties' cross-motions for summary judgment.

         II. FACTUAL BACKGROUND^[2]

         Mann was born in 1977, and was 33 years old at the alleged onset date of November 6, 2010, and 36 years old on the date of her application for benefits on September 13, 2013. (R. 87). She earned a GED, and is close to earning an associate's degree, but stopped taking courses due to trouble understanding math and financial issues. (R. 22, 40-41). Mann has not worked since 2006, and a prior ALJ found she had no past relevant work experience in a decision dated November 5, 2010, which was not appealed. (R. 27).

         A. Relevant Medical and Treatment History

         Mann complains of many medical conditions, but the record reflects major complaints of pain in her back and legs, chronic headaches, dizziness, and mental impairment, which she claims prevents her from working, sitting, or standing for any significant period. Pl.'s Mot. Summ. J. (ECF No. 3-1 at 1-2); (R. 21).

         1. Back and Spinal Treatment

         The record shows Mann has complained of back pain from at least February 9, 2010, which she treated with non-steroidal anti-inflammatory drugs (NSAIDs), stretching, and yoga. (See, e.g., R. 446). In October 2013, her treating physician ordered a lumbar spine x-ray and referred her to an orthopedist. (R. 413). The x-rays obtained five views of the lumbar spine, which showed degenerative disc disease at ¶ 5-S1 but "otherwise normal lumbar spine series with no acute findings." (R. 495). The orthopedist discussed surgery and epidural injections as treatment options, and referred Mann for further evaluation. (R. 700).

         Mann received that evaluation from Dr. Cohen, an orthopedic surgeon at VCU Medical Center, Richmond, Virginia, on February 28, 2014. Dr. Cohen suggested three options: Ms. Mann could continue to live with the pain, attempt steroid injections, or undergo surgery as a "last resort." (R. 725-26). Mann elected to have an MRI performed, and a follow-up MRI on March 18, 2014, before making a decision. (R. 725-28). The MRIs showed "mild degenerative changes in the L4-5 disc, and . . . moderate degenerative changes in the L5-S1 disc." (R. 728). Specifically, the doctor noted disc herniation at both L4-5 and L5-S1 and moderate spinal stenosis at ¶ 4-5. (Id.)

         Mann elected to have steroid injections, receiving one on April 16, 2014, and another on October 24, 2014. (R. 729, 731). Despite the injections, Mann continued to experience back pain, and Dr. Cohen discussed various surgical options on June 20 and September 19, 2014, as a result of severe degenerative changes, but Mann deferred any action. (R. 721, 723). Mann returned to Dr. Cohen on August 3, 2015, again complaining of back pain. Although she complained of persistent pain, Dr. Cohen noted she had 5/5 motor strength in her extremities, no sensory deficits, a negative straight leg raise test, and full range of motion in her hips without symptomatology. Dr. Cohen restated the original three options (do nothing, steroid injections, or surgery), and suggested an additional MRI to determine if her condition was worsening. (R. 719). Compared to the March 18, 2014, MRI, the new MRI had "not significantly changed." (R. 735).

         In addition to these visits, Mann frequently sought treatment for back pain at other locations during the same period. While she had a restricted range of motion in her lumbar spine due to pain, (see, e.g., R. 725), and a painful straight leg raise, (see, e.g., R. 700), Mann regularly showed full strength, no sensory deficit, symmetric reflexes, and ambulated with normal gait and station. (See R. 412, 434, 616, 682, 700, 719, 721, 723, 725, 777). On June 4, 2014, Mann's primary care physician, Dr. Robertson at the Lackey Free Clinic in Yorktown, Virginia, declined to write a letter for Ms. Mann stating she was unable to work because he did not believe her back symptoms were disabling. (R. 634-35).

         Over the years, Mann has treated her back pain with a variety of medications. In September 2013, she reported needing to take Naproxen twice a week, and her nurse practitioner prescribed Cyclobenzaprine, a muscle relaxant, in addition to the Naproxen. (R. 423, 425). On March 24, 2014, Mann reported she took Naproxen once or twice a month for her back pain. (R. 638). On April 16, 2014, she received a steroidal injection for her back pain. (R. 729). Mann reported that injection did not help her pain. (R. 723). Mann received a second steroid injection on October 24, 2014. (R. 651). She testified that the second injection "hit a nerve" and "it seemed like it worked for . . . an hour" before wearing off. (R. 21, 43). On January 8, 2015, Mann reported that Naproxen was controlling her back pain. (R. 682). Mann reported taking Ibuprofen for lower back pain in May and September 2016. (R. 312, 775). Ibuprofen was the only medication for Mann's back pain on the most recent medication list submitted at the hearing level. (R. 312). Mann also testified she was only treating her back pain with Ibuprofen at the time of her hearing. (R. 43).

         2. Headache and Dizziness Treatment

         On October 2, 2012, Mann reported daily headaches that were significant once or twice a year. (R. 436). She sought treatment for a headache at Mary Immaculate Hospital's emergency department on January 27, 2013. (R. 369). In September 2013, Mann complained of daily headaches and reported visiting the hospital due to headaches twice in the last six months. (R. 423-25). On March 24, 2014, she reported having headaches once or twice a month. (R. 638) Two days later, Mann returned to the emergency department of Mary Immaculate Hospital reporting dizziness, abdominal pain, and a headache. (R. 758). Dr. Robertson noted that Mann's headaches "seem to have resolved for the most part" in June 2014. (R. 635).

         In January 2015, Mann reported "having headaches 1-2 times per year since she was 17, " but that her headaches had declined after she changed her diet and stopped eating meat. (R. 681). A year later, Mann returned to Mary Immaculate Hospital's emergency department a third time, complaining of a headache. (R. 769-74). After taking a non-narcotic pain medications, her headache improved and she was discharged. (R. 772-73).

         Mann's first reports show she self-treated her headaches with Vicodin she "[got] from a friend" between October 2, 2012, and January 14, 2013. (R. 433, 436). On January 27, 2013, Mann refused a prescription for Imitrex to treat her headaches, fearing the side effects. (R. 423, 428-29). Mann reported taking Aspirin for her headaches in March 24, 2014, but her nurse practitioner suggested switching to Tylenol because Mann was experiencing abdominal pain. (R. 638, 640). When she sought treatment two days later, she was given Torador^[3] and Tylenol. On Mann's last visit to the emergency department, in January 2016, she requested stronger medication than those initially recommended by her treating physician's assistant but agreed to a "non-narcotic [headache] cocktail, " instead. (R. 769, 772-73). Upon discharge, she was given a prescription for Motrin. (R. 773). On the last medication list submitted for her hearing, Mann reported taking Topamax once a day for migraine prevention. (R. 312).

         3. Mental Health Treatment

         Mann sought mental health treatment from Catholic Charities of Hampton Roads between October 2008 and November 25, 2013. (R. 499, 515-516). In 2008, she was diagnosed with several learning issues and Major Depressive Disorder. (R. 499). Mann did not seek treatment for some diagnoses and received minimal treatment for depression when she resumed therapy in 2013. (See R. 568-80). In October 2013, she denied having depression, (see R. 411, 576; but see R. 573 (discussing her complaints of depressive symptoms)), and has not sought further medical treatment. (R. 45).

         The therapist for Mann's initial session in September 2013 noted her appearance, speech, behavior/activity, thought, and concentration as normal; her judgment was good, and her insight was fair. (R. 569). Mann regularly arrived to scheduled appointments on time with good hygiene, appropriate dress, and a cooperative mood. (See, e.g., R. 529-30).

         In 2008, Mann's Verbal IQ and full scale IQ were in the low average range, her performance IQ was average, and her Global Assessment of Function (GAF)^[4] score of 60 indicated moderate functional difficulties. (R. 319-20). Her other GAF scores were consistently in the 50s or 60s, including her scores of 55 in 2013. (R. 510, 569, 580).

         Despite Mann's limitations, she reported living with, and taking care of, her daughter, handling her personal care, and independently completing household chores. (R. 500).

         B. Medical Source Opinions and Administrative Hearing

         Medical source opinions from Agency consultants at both the initial and reconsideration level found that Mann had four medically determinable impairments: (1) Disorders of Muscle, Ligament and Fascia; (2) Affective Disorders; (3) Anxiety Disorders; and (4) Learning Disorder. (R. 92, 108). Both reports found that the first two impairments were "Severe, " while the last two were "Non Severe." (Id.). But both also "determined that [Mann's] condition is not severe enough to keep [her] from working." (Id.).

         In making this determination, the medical source opinions placed particular weight on Mann's activities of daily living (ADLs), precipitating and aggravating factors, and treatment other than medication. (R. 94, 110). Based on that evidence, the reports determined Mann's allegations were "Partially Credible." (Id.). The initial report found Mann's sustained exertional capability as medium, (R. 99), but the reconsideration report reduced her to light capability due to additional medical evidence. (R. 116). Specifically, the reconsideration report by Dr. Robert Weisberg concluded that Mann was capable of light work with some postural limitations. (R. 26, 111-15). Dr. Weisberg found Mann could occasionally lift and carry twenty pounds, sit or stand for six hours in an eight-hour workday, but was limited in stooping, climbing, crawling, and pushing and pulling due to her back pain. (R. 111-12).

         At the hearing before the ALJ, Mann testified that she had not worked since 2006 and was not seeking work because of her "severe pain" and migraines. (R. 42). She alleged the severity of the pain prevented her from grocery shopping, and when she did attempt to shop, she needed "three or four days" to recover. (Id.). To treat the pain, she took 800-milligram Ibuprofen, which she "double[d] up." (R. 43). She previously treated the back pain with Vicodin, but her clinic no longer prescribed that medication. (Id.). She also tried physical therapy, but stopped when it exacerbated her back pain. (Id.).

         Over the course of her treatment, Mann received two steroid injections for her back pain. (Id.). She testified that the first steroid injection "didn't help at all, " and the second "seemed like it worked for ... an hour ... but after that... it didn't relieve any of the pain." (Id.). Mann testified that surgery was her only other option, and that her physician told her "at some point [she would] not be able to put it off due to the progression of her degenerative disc disease. (R. 44). Because of her back pain, she claimed to have a limited ability to bend, rotate, walk, twist, or lift more than six pounds. (R. 45). She claimed that limited her ability to clean and shop for groceries, but admitted to performing both of those tasks regularly. (R. 44-47).

         Mann also testified she occasionally experienced headaches severe enough that she sought treatment at the emergency room, and headaches that would prevent her from working once or twice a month. (R. 44-45). Finally, Mann testified that her learning disabilities were a factor in not completing her associate's degree, (R. 48), that she felt depressed because of how young she developed degenerative disc disease and the social isolation her pain caused, (R. 51), and that she had a limited ability to be around other people, including family, because of decreased tolerance when she is in pain. (R. 53).

         Mann's mother, Betty Mann, also testified at the hearing. Mann's mother testified that Mann came to visit a couple of times each week, during which she would spend the majority of the time propped up in a second bedroom. (R. 57-58). During those visits, Mann would look like she was in pain and would verbally express her pain. (R. 58). Mann's mother supported Mann's testimony that her pain made her irritable and affected her relationship with others. (R. 59). She also ...