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Tena W. v. Berryhill

United States District Court, W.D. Virginia, Roanoke Division

January 7, 2019

TENA W., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          ROBERT S. BALLOU UNITED STATES MAGISTRATE JUDGE

         Plaintiff Tena W. (“Tena”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) finding her not disabled and therefore ineligible for supplemental security income (“SSI”) and disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433, 1381-1383f. Tena alleges that the Administrative Law Judge (“ALJ”) erred by: (1) relying on vocational expert testimony to fulfill his “step 5” burden without properly addressing post-hearing objections to that testimony; and (2) failing to properly analyze the opinion evidence of Tena's treating therapist, Andrew G. Burns, L.P.C., in accordance with Agency regulations and Fourth Circuit precedent.

         I conclude that substantial evidence supports the Commissioner's decision in all respects. Accordingly, I RECOMMEND GRANTING the Commissioner's Motion for Summary Judgment (Dkt. 16).

         STANDARD OF REVIEW

         This Court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Tena failed to demonstrate that she was disabled under the Act.[2] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         CLAIM HISTORY

         Tena filed for DIB in December 2013, and SSI in January 2014, claiming that her disability due to depression, anxiety, and all-over body pain began on February 2, 2011. R. 273, 277. Tena's date last insured was December 30, 2013; thus, she must show that her disability began on or before this date and existed for twelve continuous months to receive DIB. R. 273; 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B), (d)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a). The state agency denied Tena's applications at the initial and reconsideration levels of administrative review. R. 82-90, 91-99, 102-111, 112-123. On March 30, 2016, ALJ David S. Lewandowski held a hearing to consider Tena's claims for SSI and DIB. R. 44-81. Counsel represented Tena at the hearing, which included testimony from vocational expert Robert W. Jackson. On June 9, 2016, the ALJ entered his decision analyzing Tena's claims under the familiar five-step process[3]and denying her claim for benefits. R. 18-38.

         The ALJ found that Tena was insured at the time of the alleged disability onset through December 30, 2013, and that she suffered from the severe impairments of fibromyalgia, obesity, major depressive disorder, and anxiety disorder.[4] R. 22-23. The ALJ determined that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 23-25. The ALJ recognized that fibromyalgia is not a listed impairment, but considered whether it medically equals a listing alone or in combination with at least one other medically determinable impairment. R. 23. Here, the ALJ found that her fibromyalgia did not meet a listing in either capacity. Id. Additionally, obesity is considered at each step of the evaluation process in conjunction with the claimant's other impairments. R. 23-24. The ALJ determined at this step that Tena's obesity had not reached a level that would cause other impairments to meet or medically equal a listed impairment. R. 24. For the latter conditions, the ALJ specifically considered listing 12.04 (depressive, bipolar and related disorders) and listing 12.06 (anxiety and obsessive-compulsive disorders). Id. The ALJ found that, regarding her mental impairments, Tena had mild restriction in activities of daily living, moderate difficulties in social functioning, mild difficulties with regard to concentration, persistence, or pace, and no episodes of decompensation. R. 24-25.

         The ALJ concluded that Tena retained the residual functional capacity (“RFC”) to perform medium work. R. 25. Specifically, the ALJ found that Tena can: frequently perform postural activities but can only occasionally climb; have occasional interaction with coworkers and supervisors; and have no interaction with the general public. Id. The ALJ determined that Tena is unable to perform her past relevant work as a receptionist and child monitor, but that she could perform jobs that exist in significant numbers in the national economy, such as packer, cleaner, and laundry worker. R. 35-37. Thus, the ALJ concluded that Tena was not disabled. R. 38. Tena appealed the ALJ's decision and the Appeals Council denied her request for review on June 6, 2017. R. 1-4.

         ANALYSIS

         Tena alleges that the ALJ erred by: (1) relying on vocational expert testimony to fulfill his “step 5” burden without properly addressing post-hearing objections to that testimony, particularly his failure to properly discuss outcome-determinative rebuttal evidence; and (2) failing to properly analyze the opinion evidence of Tena's treating therapist, Andrew G. Burns, L.P.C., in accordance with Agency regulations and Fourth Circuit precedent.

         A. Medical History

         1. Physical Impairments

         Tena claimed generalized body pain in her initial disability report, with an onset date of February 2, 2011. R. 82, 84. Tena stated that she was formally diagnosed with fibromyalgia in 2014, and began taking Lyrica that same year.[5] R. 448. Tena continued to complain consistently of all-over body pain and ongoing issues with fatigue. R. 84, 93, 103, 106-07, 113, 277, 285, 297-304, 308-11, 314-16, 318-19. She claims the pain keeps her from sleeping well, dressing quickly, bathing, and cooking; it takes her two days to do laundry and three days to clean the house; and she has difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, and concentrating. R. 297-304. Tena testified that the fibromyalgia makes her very sore and makes her skin feel like it is on fire; causes sharp pains and muscle spasms; and makes her stiff after sitting for too long. R. 59-60, 62. She testified that she has to rest forty-five minutes after showering before she can move on with her day because of the fibromyalgia pain. Id. Tena told the medical consultant that Lyrica does not control her symptoms and makes it difficult for her to concentrate. R. 61, 448. On the other hand, her records from Christianburg Family Medicine show that an increased dose of Lyrica works for her pain and does not cause side effects. R. 386. Tena also experienced improvement in her fibromyalgia symptoms with Cymbalta and gabapentin in late 2015. R. 559-60, 570-71.

         2. Mental Impairments

         Tena's history of depression begins in her earliest provided medical records from Christianburg Family Medicine in September 2008. R. 428-29. She re-started medication for depression in February 2012 after reporting that her depression “comes and goes.” R. 421-22. Since 2012, Tena's anxiety and depression has continued to fluctuate and has been accompanied by numerous medication changes and adjustments. R. 388, 391-92, 396, 400, 402-04, 406, 408, 410, 412-13, 415, 418, 420, 559, 570, 579, 587, 590-91, 593, 595, 602-03, 608-09, 615-16. She was later diagnosed with bipolar disorder in February 2016. R. 455. As a result of her mental health issues, Tena testified that she is scared to go out in public, interact with people, and drive on roads; she is short and sharp with other people; and she wants to be left alone, so she refuses to answer the phone or get out of bed. R. 58-59. Tena first began seeing her therapist, Andrew Burns, L.P.C. (licensed professional counselor), in April 2015, at which time her initial assessment was for bipolar and social anxiety disorders. R. 457. Mr. Burns indicated that from November 2015 to January 2016, Tena had shown much improvement since her intake. R. 466. In December 2015, Tena also told her primary care provider that her anxiety and depression felt stabilized, although insurance no longer covered Mr. Burns and she was going to find a new therapist. R. 559.

         3. Medical Opinion Evidence

         In April 2014, as part of the state agency's initial disability determination, Thomas M. Phillips, M.D., reviewed the record and found that Tena could occasionally lift or carry fifty pounds; frequently lift or carry twenty-five pounds; stand or walk for six hours and sit for six hours in an eight-hour day; occasionally climb ramps and ladders; frequently kneel, crouch, and crawl; and had no manipulative, visual, communicative, or environmental limitations. R. 87-88. He made these findings based on Tena's fibromyalgia. Id.

         In April 2014, in the same initial disability determination, Howard S. Leizer, Ph. D., reviewed Tena's record and completed a psychiatric review technique form. He found that Tena had severe fibromyalgia and non-severe affective disorders. R. 85. The affective disorders resulted in mild restrictions in daily living; no difficulties in maintaining social functioning; no difficulties maintaining concentration or completing tasks; and no repeated episodes of decompensation. R. 86. He explained that Tena's depression has been controlled for many years with medication and treatment, and there was no evidence of psychological factors causing significant functional limitations. Id.

         In September 2014, Salman Gohar, M.D., performed a consultative examination for the state agency. R. 447. Dr. Gohar diagnosed depression, anxiety, fibromyalgia, and obesity.[6]R. 450. In his functional assessment, Dr. Gohar stated Tena: could stand, walk, and sit, each for six hours, in an eight-hour work day; could lift and carry less than twenty-five pounds occasionally and ten pounds frequently; did not have any manipulative, postural, visual, or communicative limitations; and did not need an assistive device to move. R. 450-51. Dr. Gohar specifically observed that Tena appeared comfortable and could move around without difficulty. R. 449. She had normal coordination, could walk without difficulty, her range of motion was within normal limits, and she had full strength. R. 450-51. At the time of the examination, Tena was not feeling depressed, ...


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