Bohannon v. Astrue

DEBRA BOHANNON Plaintiff,

v.MICHAEL J. ASTRUE Commissioner of Social Security Defendant.

Case No. 1:12-CV-2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

Dated: February 7, 2013

Collier/Lee

MEMORANDUM

Plaintiff Deborah Bohannon ("Plaintiff") brought this action on January 4, 2012, seeking judicial review of the final decision of the Commissioner of Social Security ("Defendant") denying Plaintiff a period of disability, disability insurance benefits ("DIB"), and Supplemental Security Income ("SSI") under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1382. The Court referred the matter to United States Magistrate Judge Susan K. Lee, pursuant to 28 U.S.C. § 636(b) and in accordance with Rule 72(b) of the Federal Rules of Civil Procedure for a report and recommendation ("R&R") regarding the disposition of Plaintiff's motion for judgment on the pleadings (Court File No. 12) and Defendant's motion for summary judgment (Court File No. 14). The magistrate judge filed an R&R (Court File No. 20) recommending the decision of the Commissioner be affirmed, Plaintiff's motion for judgment on the pleadings be denied (Court File No. 12), Defendant's motion for summary judgment be granted (Court File No. 14), and the case be dismissed. Plaintiff timely filed an objection to the R&R (Court File No. 21). For the following reasons, the Court will ACCEPT and ADOPT the magistrate judge's R&R (Court File No. 20).

I. FACTUAL AND PROCEDURAL BACKGROUND¹

A. Medical History

Plaintiff was a thirty-three-year-old woman at the time of the hearing. In 2005 she was involved in a car accident, which she claims left her disabled by 2007. Plaintiff was not hospitalized after the wreck, but stated her injuries worsened over time. Before her injuries, Plaintiff worked as a waitress, cook, cashier, and warehouse employee. Plaintiff has a daughter, who was eight-years-old at the time of the hearing, and lives with a roommate who was primarily responsible for the household chores.

Plaintiff claimed disability due to fibromyalgia, eczema on her hands, nerve damage due to bulging discs in her neck and back, and bipolar disorder. She also had difficulties with Chronic Obstructive Pulmonary Disease ("COPD"). Some of the medication she takes for these disorders causes migraine headaches about twice a week. She had been seeing Dr. Nabil Cyleman for nearly three years at the time of the hearing. Shortly after she started seeing Dr. Cyleman, he referred her to Dr. Thomas Miller. She began seeing Drs. Miller and Donald Chipman with Specialists in Pain Management in April 2008, who ordered an MRI. The MRI showed minimal bulges in her posterior discs. Over the summer of 2008, Plaintiff received injections to relieve her pain. Her treatment was subsequently discontinued at Specialists in Pain Management because she tested positive for Darvocet, which they had not prescribed.

Plaintiff then began seeing Dr. Cyleman again, and was still complaining of pain in her back and neck. Dr. Cyleman referred her to another doctor, this time to Dr. Dennis Ford. Before shebegan seeing Dr. Ford, Dr. Joe Allison completed a Physical Residual Functional Capacity Assessment ("PRFC"). He concluded she could occasionally lift or carry fifty pounds and could frequently lift or carry twenty-five pounds. He also noted she could stand, walk, or sit for up to six hours in an eight-hour day, and was otherwise unlimited. He stated Plaintiff's complaints were only partially credible because the severity of pain she alleged was not consistent with the minimal disc bulges shown in her MRI.

In September 2008, Plaintiff was examined by Dr. William Holland, who noted her gait and station testing were performed normally. In October 2008, Plaintiff began seeing Dr. Ford on Dr. Cyleman's referral. Plaintiff complained of pain consistently, and Dr. Ford changed her medicine regularly in an attempt to better relieve her symptoms. He prescribed Diclofenac, Tramadol, Gabapentin, Axert, and propoxyphene napsylate at various times in addition to other drugs. He diagnosed Plaintiff with asthma, endometriosis, osteoarthritis, migraines, allergies, and eczema. In February 2009, a lumbar nerve study was performed, which showed impairment in some of Plaintiff's nerves. She received steroid injections in March and April 2009. Plaintiff reported to Dr. Ford the injections did not help, and further adjustment was made to her medicine. This pattern continued throughout much of 2009 and into 2010. By February 2010, after months of varying medications, Dr. Ford added fibromyalgia to his assessment.

In January 2009, Dr. Reeta Misra completed a PRFC assessment similar to Dr. Allison's assessment. Dr. Misra similarly concluded Plaintiff could lift, carry, stand, or walk under the same conditions Dr. Allison noted, but also concluded Plaintiff should only occasionally climb ladders, stairs, ropes, or scaffolds, and only occasionally stoop, kneel, crouch, or crawl. Dr. Misra also stated Plaintiff's complaints were only partially credible.

In August 2009, Plaintiff returned to Dr. Cyleman for COPD as well as chronic pain and panic attacks. She was prescribed Klonopin. In October, she complained about the effects of Klonopin and her medication was changed.

In September 2009, Dr. Allison completed another PRFC assessment. His assessment was essentially unchanged, however, he agreed with Dr. Misra's conclusion Plaintiff should not climb or kneel. He also noted Plaintiff claimed fibromyalgia, and again concluded her complaints and evidence of her condition were in conflict. Dr. Allison's assessment was affirmed by Dr. Christopher Fletcher.

Throughout 2010, Plaintiff continued to seek care from Drs. Cyleman and Ford. Her medication was routinely changed as she continued to complain of symptoms associated with COPD, anxiety, and chronic pain. By September 2010 eczema was added to her assessment by Dr. Cyleman, and by November 2010 he added fibromyalgia. In November, Dr. Cyleman also completed a medical opinion form in which he stated Plaintiff suffered from chronic back and leg pain, fibromyalgia, bipolar disorder, and chronic eczema. He stated Plaintiff could sit for six hours a day, but for only thirty minutes at a time, could only infrequently lift or carry at most twenty pounds, and requires two hours of bed rest during a workday. She would also need to take an hour break for every three hours of work, and would suffer lapses in concentration or memory. He stated Plaintiff could never perform typing or fine manipulation due to her eczema and would be absent from work five days per month. He noted her complaints were consistent with her diagnoses.

B. Procedural Background

Plaintiff filed an application for SSI and DIB in August 2009, and alleged she had been disabled since September 28, 2007. Her claim was denied, and she sought a hearing before anAdministrative Law Judge ("ALJ"). A hearing was held on January 20, 2011. At the hearing a vocational expert ("VE") testified no jobs would be available to Plaintiff if her testimony regarding her ailments was supported and reasonable, or if the ALJ fully credited Dr. Cyleman's opinion. The ALJ then asked the VE if jobs were available for an individual who could perform medium work but had moderate mental impairment. The VE noted Plaintiff's past relevant work in a warehouse and that unskilled, medium warehouse work would be possible for such an individual. He testified to a number of available jobs both in Tennessee and nationally. During the course of the hearing, Plaintiff argues the ALJ was hostile to both Plaintiff and her attorney. He made offhand remarks disparaging Plaintiff's doctors and belittling Plaintiff's complaints.

On January 27, 2011, the ALJ determined Plaintiff was not disabled. The ALJ analyzed Plaintiff's claim under the five-step framework outlined in 20 C.F.R § 404.1520(a)(4):

1. If claimant is doing substantial gainful activity, he is not disabled.

2. If claimant is not doing substantial gainful activity, his impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, claimant is presumed disabled without further inquiry.

4. If claimant's impairment does not prevent him from doing his past relevant work, he is not disabled.

5. Even if claimant's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that accommodates his residual functional capacity and vocational factors (age, education, skills, etc.), he is not disabled.

Nejat v. Commissioner of Soc. Sec., 359 F. App'x 574, 576 (6th Cir. 2009) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997)). At steps one through four, the claimant bears the burden of proof. Id. However, at step five, the burden shifts to the Commissioner to identify jobs in the economy that the claimant could perform considering her impairments. Id.

The ALJ found Plaintiff had not engaged in any gainful activity since the alleged date of disability. He found she had severe impairments, including obesity; degenerative disc disease of lumbar spine and cervical spine; major depressive disorder recurrent, moderate; panic disorder with agoraphobia; history of substance abuse; and migraine headaches. The ALJ did not include Plaintiff's eczema, fibromyalgia, or COPD in this list because he concluded they were nonsevere. The ALJ noted these conditions either "resolved with no credible allegations of continued limitation" or produced "either minor or infrequent limitations" (Tr. 32). Plaintiff's eczema was never diagnosed as severe, and the COPD and fibromyalgia were never "properly diagnosed or treated" (id.). The ALJ then found Plaintiff did not have an impairment or...