McGinnis v. Colvin

BETH ANN McGINNIS, Plaintiff, v. CAROLYN W. COLVIN,Acting Commissioner of Social Security Administration Defendant.

Civil Action No. 1:14CV151

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

November 10, 2015

(The Honorable Irene M. Keeley)

REPORT AND RECOMMENDATION/OPINION

Beth Ann McGinnis ("Plaintiff") brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review of a final decision of the Commissioner of Social Security ("Defendant," and sometimes "Commissioner") denying her claims for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433, 1381-1383f. The matter is awaiting decision on cross motions for summary judgment and has been referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and recommended disposition. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b); L.R. Civ. P. 9.02.

I. Procedural History

Plaintiff filed an application for DIB on May 24, 2011, and application for SSI on June 2, 2011, alleging disability beginning December 22, 2008, due to thyroid cancer, depression, and anxiety (R. 232-36, 237-43, 265). Plaintiff's applications were denied at the initial and reconsideration levels (R. 102-05 ). Plaintiff requested a hearing, which Administrative Law Judge Mary C. Peltzer ("ALJ") held in Charlottesville, Virginia, on April 30, 2013 (R. 49). Plaintiff, represented by counsel, testified on her own behalf (R. 54-80). Also testifying was Vocational Expert Larry Ostrowski ("VE") (R. 80-88). On May 30, 2013, the ALJ entered a decision finding Plaintiff was not disabled (R. 18-40). Plaintiff filed a timely appeal with the Appeals Council (R. 12-13). On July 8, 2014, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner (R. 1-4).

II. Statement of Facts

Plaintiff was born on January 27, 1976, and was thirty-two (32) years old on her alleged onset date (R. 54). Plaintiff has a high school education and a B.A. in elementary education (R. 55). Plaintiff's past relevant work included bank teller, case manager, group home manager, and part-time hostess (R. 64, 244-260).

Plaintiff's August 8, 2006, lumbar spine MRI showed mild decreased disc space height and a mild bulging annulus fibrosus of L1-L2; decreased disc space height at L2-L3; decreased intervertebral disc space height, osteophytic overgrowth, annulus fibrosus bulging, small ventral epidural impression of disc space level, mild indentation of the ventral aspect of the spinal canal, mild central canal stenosis, small osteophyte and disc herniation complex associated with flattening of the ventral aspect of the thecal sac with minimal narrowing of the spinal canal at L3-L4; mild bilateral faced fluid, normal disc height and signal at L4-L5; and mild bulging, mild narrowing of the ventral aspect of the epidural fat, osteophytic overgrowth, and bulging at L5-S1 (R. 495).

Dr. Chandrasekhar treated Plaintiff for the following: May 4, 2006, dizziness, migraine headache; May 30, 2006, migraine headache, dizziness, low back pain; August 1, 2006, low back pain, migraine headache; August 22, 2006, disc herniation; March 21, 2007, nasal swelling and bleeding; April 18, 2007, urinary tract infection; April 20, 2007, wheezing and poor sleep; August14, 2007 migraine headaches, asthma, allergies, disc herniation; November 12, 2007, heart palpitations and a lump on the right side of her neck; January 10, 2008, sinus infection, blockage in ears, and fever (R 470-77, 468-69).

Plaintiff's November 11, 2007, chest x-ray was normal (R. 492).

Plaintiff's November 26, 2007, thyroid ultrasound showed three solid nodules on the right (R. 491). Her November 29, 2007, thyroid uptake and scan showed a "cold nodule related to the right lobe which [was] mildly enlarged" and "raise[d] the possibility of a malignancy. The left thyroid lobe [was] normal size and show[ed] uniform activity" (R. 490).

Plaintiff was diagnosed with thyroid cancer on December 12, 2007, and underwent a total thyroidectomy on December 21, 2007 (R. 423-33 434-57, 458-59, 460-67, 503-04).

Dr. Pollock conducted a consultative examination of Plaintiff on January 3, 2008, relative to her diagnosis of stage one (1) thyroid cancer. Plaintiff reported she had undergone gastric bypass surgery in June, 2007, and lost in excess of one-hundred (100) pounds. She then discovered a lump in her neck, which was diagnosed as cancer. She underwent surgery. Her post operation course of treatment had been uneventful; she medicated with Levothyroxine. Plaintiff reported she medicated with Vistaril, Effexor, Levothyroxine, vitamin C, and prenatal vitamins (R. 497, 532). Plaintiff worked as a case manager; she drank socially; she did not smoke; she lived alone. Upon examination, Dr. Pollock noted Plaintiff's vital signs were stable; she weighted two-hundred, fifty-one (251) pounds; her examination was normal. Dr. Pollock described Plaintiff as a "vigorous and otherwise healthy 31 year old woman . . . ." Dr. Pollock recommended Plaintiff cease medicating with Levothyroxine and initiate a low iodine diet (R. 498, 533, 679-81).

Dr. Pollock conducted a I-131 ablation of Plaintiff on February 12, 2008, for elevated levelsof "18.1ng/ml in the absence of antithyroglobulin antibody values." She was treated with 10mg of Compazine. She was instructed to resume her normal iodized diet and Levothyroxine (R. 535, 682).

Dr. Gajendragadkar completed a Physical Residual Functional Capacity Assessment of Plaintiff on March 12, 2008. Dr. Gajendragadkar found Plaintiff could occasionally lift and/or carry up to twenty (20) pounds; frequently lift and/or carry up to ten (10) pounds; stand and/or walk for a total of about six (6) hours in an eight (8) hour workday; sit for a total of about six (6) hours in an eight (8) hour workday; and push/pull unlimited (R. 507). Dr. Gajendragadkar found Plaintiff could never climb ladders, ropes, and scaffolds. She could occasionally climb ramps and stairs, stoop, balance, kneel, crouch, and crawl (R. 508). Dr. Gajendragadkar found Plaintiff had no manipulative, visual, or communicative limitations (R. 509-10). Dr. Gajendragadkar found Plaintiff could be exposed to extreme heat, wetness, humidity, and noise on an unlimited basis; she should avoid concentrated exposure to extreme cold, vibration, fumes, odors, dusts, gases, and poor ventilation; she should avoid even moderate exposure to hazards (R. 510). Dr. Gajendragadkar found Plaintiff partially credible because the Dr. Mohareb "said she is able to return to work" (R. 511-12).

Jim Capage, Ph.D., completed a Psychiatric Review Technique of Plaintiff on March 14, 2008, and found her positive for depression and anxiety (R. 514-19). Dr. Capage found Plaintiff had mild limitations in her activities of daily living and in her ability to maintain concentration, persistence, and pace. She had no limitations in maintaining social functioning (R. 524).

Plaintiff was examined by Dr. Pollock on August 26, 2008, relative to her thyroidectomy. She denied neck point tenderness, hoarseness, dysphagia, odynophagia, dysarthria, otalgia, lid lag, eyelid ptosis, bradykinesia, muscular fasciculation, or seizures. Dr. Pollock found Plaintiff was in no acute distress; her examination was normal; she was "quite stable" (R. 536, 683).Plaintiff's TSH level was normal on January 19, 2009, and high on January 26, and February 2, 2009 (R. 633, 635, 637).

Plaintiff's February 10, 2009, whole-body scan for thyroid cancer showed, after "oral ingestion of 4.6 microcuries of I-131, . . . normal activity within the salivary glands, stomach, and urinary bladder. No other foci of abnormal uptake [were] identified that would suggest metastatic neoplasm" (R. 530).

Dr. Pollock conducted a second ablation of Plaintiff on February 17, 2009, due to elevated "17ng/ml in the absence of elevated thyroglobulin levels" and "absence of saturation of the iodine receptor." She was treated with "10mg of oral Compazine." She tolerated the treatment well and was instructed to resume her normal iodized diet and medicate with Levothyroxine (R. 538, 685).

Plaintiff presented to the emergency department of Wetzel County Hospital on March 12, 2009, with complaints of thoracic sprain/strain (R. 619). She participated in physical therapy on March 18, 20, and 24, 2009 (R. 620-22).

Plaintiff presented Wetzel County Hospital's emergency department on June 17, 2009, with complaints of abdominal and low back pain, urination urgency, and nausea (R. 613, 615). Her examinations were normal; she was provided information relative to abdominal pain and ovarian cysts (R. 614-17).

Plaintiff's June 18, 2009, x-ray of her abdomen was normal (R. 612).

Plaintiff's June 19, 2009, transabdominal and transvaginal pelvic ultrasound showed three (3) fibroids and minimally complex cyst on her right ovary (R. 607).

Plaintiff reported to the emergency department of Wheeling Hospital on June 30, 2009, with complaints of abdominal pain. She was medicated with morphine (R. 542). She was assessed with"3 tumors in uterus. Also[] has chronic pain and out of medication last month . . . ." (R. 547).

Plaintiff presented to Dr. Wade on July 22, 2009, with complaints of back pain. She had received two (2) radioactive iodine treatments for her thyroid condition. Her weight fluctuated. She medicated with Synthroid. Plaintiff's back pain caused headache and nausea. Her depression symptoms "seem[ed] to be under control." She medicated with Tranxene for panic attacks, "abruptly" stopped medicating with it, and the panic attacks returned. Except for a trigger point in her right trapezius muscle, her examination was normal. Dr. Wade diagnosed myofascial pain with trigger points, panic attacks, depression, and asthma. He injected her trigger point and instructed Plaintif...