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Murphy v. Colvin

United States District Court, Ninth Circuit

November 6, 2013

Erin K. Murphy, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BRIDGET S. BRADE, Magistrate Judge.

Plaintiff Erin K. Murphy seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits and supplemental security income benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the Court affirms the Commissioner's decision.

I. Procedural History

In July 2009, Plaintiff applied for disability insurance benefits, 42 U.S.C. § 401-34, and supplemental security income, 42 U.S.C. § 1381-83c, under Titles II and XVI of the Act. (Tr. 209-23.)[1] Plaintiff alleged that she became disabled on October 31, 2005 due to posttraumatic stress disorder (PTSD), fibromyalgia, and chronic fatigue. (Tr. 260-61.) After the Commissioner denied Plaintiff's claims at the initial and reconsideration levels, she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 108-09, 144-47, 110-43, 162-64.) The ALJ conducted a hearing and issued a decision on October 7, 2011 denying Plaintiff's claims. (Tr. 25-47.)

The ALJ's decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 5-11.); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council). Plaintiff exhausted the administrative review process and timely appealed the Commissioner's final determination pursuant to 42 U.S.C. § 405(g) by filing a Complaint with this Court.

II. Medical Record

The record includes the following evidence regarding Plaintiff's physical and mental impairments.

A. Physical Impairments

1. Michael J. Fairfax, D.O.

Michael J. Fairfax, D.O., a rheumatologist, treated Plaintiff between September 20, 2006 and November 27, 2006. (Tr. 337-55.) During his initial assessment of Plaintiff, Dr. Fairfax obtained a history of Plaintiff's musculoskeletal pain and conducted a physical examination. (Tr. 345-46.) Dr. Fairfax diagnosed fibromyalgia. (Tr. 346.) He found tender points "over multiple major muscle bursal and tendon groups." (Tr. 347.) On November 27, 2006, Dr. Fairfax again assessed fibromyalgia. (Tr. 349.)

2. Joe K. Gregory, D.O.

In July 19, 2007, Plaintiff began treating with Joe Gregory, D.O. (Tr. 440-42.) Dr. Gregory diagnosed chronic fibromyalgia and chronic fatigue syndrome. (Tr. 442.) On August 30, 2007, Dr. Gregory noted that Plaintiff's fibromyalgia had gotten worse. (Tr. 439.) On October 16, 2007, Dr. Gregory treated Plaintiff for "moderately severe" headaches that were aggravated by sitting, walking, and standing. (Tr. 436.) He assessed Plaintiff with chronic fibromyalgia and tension headaches. (Tr. 437.) On November 12, 2007, Dr. Gregory described the intensity of Plaintiff's headaches and muscle pain as "moderate-severe." (Tr. 434.) On December 18, 2007, Dr. Gregory saw Plaintiff for a follow-up regarding her muscle pain related to fibromyalgia. He noted that Lyrica relieved some of Plaintiff's pain. (Tr. 432.) Dr. Gregory reported that Plaintiff was also taking Oxycodone, MS Contin, Baclofen, Phenergan, Doxepin, Cymbalta, and Voltaren. ( Id. )

3. Karen Acevedo-Mogharbel, D.O.

Karen Acevedo-Mogharbel, D.O., a primary care physician, treated Plaintiff for fibromyalgia, asthma, chronic pain, kidney disease, chronic fatigue, hypothyroidism, cervicalgia, and a history of deep vein thrombosis from November 20, 2008 through 2011. (Tr. 513-25, 695-701, 1121-57.) In August 2010, she completed a "residual functional capacity form" indicating that Plaintiff could: (1) frequently lift and carry up to five pounds, and occasionally lift and carry up to twenty pounds; (2) sit for two hours total in an eight-hour workday; (3) stand for two hours total in an eight-hour workday; (4) walk for three hours total in an eight-hour workday; (5) occasionally climb stairs; (6) never bend, stoop, crouch, kneel, or crawl; and (7) never use her hands for grasping, pushing/pulling, or fine manipulations. (Tr. 808-09.) She found that Plaintiff could not be exposed to unprotected heights, moving machinery, and temperature extremes. (Tr. 809.) She also found that Plaintiff had "severe" pain, fatigue, inability to deal with stress, and cognitive problems. (Tr. 809.)

In October 2010, Dr. Acevedo-Mogharbel found that Plaintiff's severe pain and fatigue limited her to sitting, standing, and walking for no more than two to three hours in an eight-hour workday. (Tr. 1121.) Dr. Acevedo-Mogharbel sent a letter, dated September 2, 2011, to Plaintiff's attorney, Scott Davis, and opined that Plaintiff was unable "to sustain any kind of gainful employment presently or in the future." (Tr. 1117.)

4. Mesa Pain Management Center

On referral from Dr. Acevedo-Mogharbel, between January 8, 2009 and July 7, 2010, Plaintiff received treatment at the Mesa Pain Management Center (MPMC) for chronic fibromyalgia pain. (Tr. 541-634; 702-709.) As the ALJ noted, the records from MPMC indicate that Plaintiff received pain management, including epidural injections, to treat her pain. (Tr. 35.) The treatment notes indicate that Plaintiff had a decreased range of motion in her lumbar spine. (Tr. 543, 550, 557, 571, 578. 585, 705.) The majority of the MPMC treatment records indicate that Plaintiff had "adequate" pain control, could function "adequately" or "well, " and could perform all activities of daily living (ADL) and function independently.[2] (Tr. 544, 551, 562, 572, 579.) Plaintiff also reported that yoga, muscles relaxers, and pain medication reduced her pain. (Tr. 553, 574.)

On March 4, 2009, MPMC records indicate that Plaintiff's pain control was "barely adequate" and she was functioning "barely adequately." (Tr. 600.) However, she was able to perform ADLs and function independently. ( Id. ) On August 9, 2009, Plaintiff reported that her pain control was adequate, and that she was functioning "barely adequately" on her current regimen. (Tr. 558.) Plaintiff, however, could perform ADLs and function independently on that date. ( Id. )

5. Daniel Ryklin, M.D.

On referral from Dr. Acevedo-Mogharbel, Plaintiff also received treatment from Dr. Ryklin at the Arizona Pain and Spine Institute from July 2010 through 2011. (Tr. 795-96.) In July 2010, Dr. Ryklin found eleven out of eighteen fibromyalgia tender points. (Tr. 798.) He noted that Plaintiff could heel walk, toe walk, perform a full squat, and climb onto the examination table without difficulty. ( Id. ) In an August 2011 treatment note, nurse practitioner Linda Milam found myofascial trigger points. (Tr. 986.)

On September 8, 2011, Dr. Ryklin and Nurse Milam jointly completed a "residual functional capacity form" indicating that Plaintiff could: (1) occasionally lift and carry up to five pounds; (2) sit for two hours total in an eight-hour workday; (3) stand for one hour total in an eight hour workday; (4) walk for twenty minutes total in an eight-hour workday; (5) very seldom climb stairs; (6) occasionally bend; and (7) never to very seldom stoop, crouch, kneel, or crawl. (Tr. 1118.) They found that Plaintiff should avoid exposure to unprotected heights, moving machinery, and temperature extremes. (Tr. 1119.) They also noted that Plaintiff had "severe" pain, fatigue, and inability to deal with stress. ( Id. ) In the "remarks" section of the form, Dr. Ryklin and Nurse Milam noted that Plaintiff had recently been discharged from the hospital in August 2011 after "extensive blood clot treatment, which had further limited her functional activity tolerance." (Tr. 1120.)

On September 15, 2011, Nurse Milam wrote a letter to Plaintiff's attorney confirming the presence of generalized trigger points and opining that Plaintiff "could not tolerate activity to sustain full time work of any kind." (Tr. 1160.)

6. Manuel Abrante, M.D.

In late December 2010 and continuing to 2011, Manuel Abrante, M.D., treated Plaintiff for chronic kidney disease, stage III with related deep vein thrombosis and history of hospitalization for acute renal failure. (Tr. 1100-16.) In December 2010, Dr. Abrante noted Plaintiff's diagnoses of chronic fatigue syndrome and fibromyalgia. (Tr. 1100.) He noted that Plaintiff was "doing pretty well." (Tr. 1104.) In August 2011, Dr. Abrante noted that Plaintiff felt tired but was otherwise "well." (Tr. 1101-1102.)

7. Stephen Dickstein, M.D.

In February 2010, Stephen Dickstein, M.D., a State agency physician, reviewed the medical record and completed a physical residual functional capacity assessment. (Tr. 742-49.) Dr. Dickstein concluded that Plaintiff could: (1) occasionally lift and/or carry twenty pounds; (2) frequently lift and/or carry ten pounds; (3) sit for about six hours in an eight-hour workday, (4) stand and/or walk for about six hours in an eight-hour workday (Tr. 743); (5) Plaintiff could frequently climb ramps and stairs, balance, and stoop; and (6) occasionally climb ladders, ropes, or scaffolds, kneel, crouch, and crawl. (Tr. 744.) Dr. Dickstein found that Plaintiff had no manipulative, visual, or communicative limitations. (Tr. ...


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