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Petty v. Colvin

United States District Court, D. Arizona

March 17, 2014

Penny A. Petty, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


BRIDGET S. BADE, Magistrate Judge.

Penny A. Petty (Plaintiff) seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance 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.[1] For the following reasons, the Court affirms the Commissioner's decision.

I. Procedural Background

In October 2008, Plaintiff applied for disability insurance benefits under Title II of the Act. 42 U.S.C. § 401-34. (Tr. 109-11.)[2] Plaintiff alleged that she had been disabled since October 1, 2004. ( Id. ) Based on Plaintiff's employment history, her date last insured was in December 2009. (Tr. 113.) After the Social Security Administration (SSA) denied Plaintiff's initial application and her request for reconsideration, she requested a hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 14-24.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Medical Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff's health. The record also includes opinions from State Agency Physicians who either examined Plaintiff or reviewed the records related to her health, but who did not provide treatment.

A. Mahesh S. Mokhashi, M.D.

In October 2004, Plaintiff sought treatment from digestive health specialist, Mahesh S. Mokhashi, M.D., complaining of Barrett's esophagus, acid reflux, and post-traumatic stress disorder. (Tr. 280.) On October 13, 2004, Dr. Mokhashi noted that he treated Plaintiff for Barrett's esophagus, gastroesophageal reflux disease (GERD), obesity, and irritable bowel syndrome (IBS), among other issues. (Tr. 224.) He noted that Plaintiff was doing well on Nexium and that she denied any acid reflux symptoms. ( Id. ) He also found that Plaintiff was "doing really well" with her IBS and her symptoms were largely under control. ( Id. ) The next month, on November 24, 2004, Dr. Mokhashi noted that "[f]or the past few days" Plaintiff's IBS had flared up and she was "having some nausea and diarrhea." (Tr. 222.) He gave her samples of Robinul and asked Plaintiff to call and let him know how she responded to the medication. ( Id. )

Plaintiff returned to Dr. Mokhashi two years later, in November 2006. (Tr. 220.) He noted that Plaintiff was under a lot of stress due to family issues, but was "doing very well." ( Id. ) Her acid reflux symptoms were "much controlled" with Nexium. (Tr. 220.) The following year, in July 2007, Dr. Mokhashi noted that recent diagnostic tests revealed a hiatal hernia and a mass suggestive of Barrett's esophagus. (Tr. 219.) Although Plaintiff had "proven Barrett's twice in the past, " testing was negative for Barrett's esophagus. (Tr. 219, 226.) He again noted that Plaintiff's reflux symptoms were well controlled with Nexium and recommended that she take it on a long-term basis. ( Id. )

Plaintiff returned Dr. Mokhashi more than a year later, on October 17, 2008. (Tr. 218.) She reported that she was under "tremendous distress at home" because she was separated from her husband, she was having financial difficulties, her son was in prison, and she was raising her grandchildren. ( Id. ) She complained of increasing nausea, abdominal pain, and diarrhea and cramping after meals. ( Id. ) Dr. Mokhashi "suspect[ed] she [was] noticing a flare of her [IBS] due to her severe stress." ( Id. ) He offered Plaintiff anticholinergics, but because "she would rather not take medications, " Dr. Mokhashi asked her to take Benefiber nightly and to follow up with him in four weeks. ( Id. ) He also ordered an abdominal ultrasound, which revealed a small polyp or stone in her gallbladder. (Tr. 218, 214.)

Plaintiff next saw Dr. Mokhashi a month later, on November 14, 2008. (Tr. 261.) She reported a burning sensation in her upper abdomen. ( Id. ) Dr. Mokhashi noted that medication prescribed by Dr. Jeffrey Morgan, M.D., her primary care doctor, had helped Plaintiff's nausea. He also noted that Plaintiff should continue taking Benefiber and return in a few months. ( Id. ) In January 2009, Dr. Mokhashi noted that Plaintiff continued to be under "severe stress at home, " but was feeling somewhat better since Dr. Morgan had prescribed an anti-depressant. (Tr. 260.) Plaintiff also reported epigastric discomfort caused by asthma-related coughing. ( Id. ) Dr. Mokhashi suspected her epigastric discomfort was musculoskeletal because all diagnostic tests were negative. ( Id. )

Plaintiff followed up with Dr. Mokhashi on April 14, 2009. (Tr. 366.) She continued to complain of epigastric and abdominal pain. ( Id. ) She also reported nausea, vomiting, and diarrhea "due to her diarrhea predominant [IBS]." ( Id. ) Dr. Mokhashi opined that Plaintiff's symptoms were "most likely" due to extreme stress and anxiety. (Tr. 366.) He prescribed Phenergan for nausea and vomiting and noted that Plaintiff's reflux symptoms were "reasonably well controlled on Nexium." ( Id. ) Dr. Mokhashi ordered a follow-up endoscopy that revealed a small hernia, but showed that Plaintiff did not have Barrett's esophagus. (Tr. 366, 369.)

B. Jeffrey W. Morgan, D.O.

On May 15, 2008, Plaintiff began treatment at the office of primary care physician Jeffrey W. Morgan, D.O., complaining of congestion. (Tr. 246-47.) Physician Assistant Rebecca Reedy noted Plaintiff's history of GERD and IBS. Plaintiff reported a history of "spastic colon that she controls with her diet." (Tr. 246.) Plaintiff reported being under stress due to family issues. ( Id. ) The physician assistant recommended that Plaintiff stop smoking and take Symbicort for her asthma. (Tr. 247.)

A June 16, 2008 treatment note states that Plaintiff experienced low back pain, nausea and vomiting, and a history of a "spastic colon."[3] (Tr. 244.) Plaintiff reported that she had eaten shrimp for dinner that had tasted "funny." ( Id. ) The treatment note also indicates that Plaintiff's asthma was better with Symbicort. ( Id. ) On October 27, 2008, Plaintiff saw physician assistant Reedy and Dr. Morgan complaining of numbness and tingling on the left side of her face and in both arms. (Tr. 242.) Diagnostic tests were negative. (Tr. 242-43, 249.) Plaintiff also complained of persistent nausea due to her IBS, but denied vomiting. (Tr. 242.) A November 7, 2008 treatment noted indicates that Plaintiff had constant dull and achy abdominal pain and burning in her chest. (Tr. 241.) The treatment note states that medication, Zofran, was helping Plaintiff's nausea. ( Id. )

A January 9, 2009 treatment note indicates that Plaintiff had experienced problems with her asthma for the last few days. (Tr. 356.) It also notes that Plaintiff had "soft stools" and that her nausea had not improved. ( Id. ) A January 30, 2009 treatment note indicates that Plaintiff's moods were better on Lexapro, and that Symbicort had helped her asthma. (Tr. 355.) Plaintiff reported that she had experienced two "episodes of diarrhea severe since her last visit" and had "diarrhea in her underwear." ( Id. ) In March 2009, Plaintiff reported diffuse wheezing, nasal congestion, and aching all over. (Tr. 354.)

An April 8, 2009 treatment note indicates that Plaintiff had diffuse abdominal pain and nausea. (Tr. 397.) She reported "bloody black stools worse [with] eating fatty foods." ( Id. ) On April 23, 2009, Plaintiff reported that her stomach was doing better and that her pain was improved "taking Nexium." (Tr. 396.) She reported no "bloody/black stools." ( Id. ) A few months later, on July 24, 2009, Plaintiff reported that her "GI problems (vomiting and diarrhea) had worsened over the last few weeks." (Tr. 395.) Plaintiff reported that she "was now keeping [a] log of symptoms for SS disability. Has diarrhea 7-17 times/d[ay]." ( Id. ) Plaintiff reported that Lexapro was not helping her mood as much, and her dosage of Lexapro was increased. Plaintiff complained of coughing "a lot" and was again advised to quit smoking. ( Id. )

On September 10, 2009, Dr. Morgan saw Plaintiff to complete a medical assessment of Plaintiff's ability to do work-related physical activities for her claim for social security disability benefits. (Tr. 394, 378-79.) Dr. Morgan opined that, during an eight-hour day, Plaintiff could sit for up to two hours or less, stand/walk for up to two hours or less, and lift and carry less than ten pounds. He also opined that she could continuously use her hands and feet, reach, balance, and occasionally bend, but that she could never crawl, climb, stoop, crouch, kneel, be exposed to unprotected heights, marked changes in temperature, or dust, fumes, and gases. (Tr. 378-79.) He noted that Plaintiff's complaints of IBS with "frequent/up to 20 bowel movements, " "loose watery stools, extreme nausea, fatigue, [illegible]" affected Plaintiff's ability to function. (Tr. 378.) Finally, he noted that "most of the gastrointestinal related [illegible] meds resulted in mod[erate] severe S/E [side effects] of headaches, dizziness, [and] worsening [illegible]." (Tr. 379.)

A February 18, 2010 treatment note, signed by Physician Assistant Reedy and Dr. Morgan, indicates that Plaintiff complained of pain at a level ten out of ten related to passing kidney stones. (Tr. 392.) Plaintiff was advised to go to the emergency room due to her pain, but she declined stating that she did not want to wait there. (Tr. 392-93.) Plaintiff also reported nausea and that she had vomited four to five times a day for the past six days. (Tr. 392.)

In March 2010, Plaintiff saw Dr. Morgan "requesting assistance in completing a work-related activities form from Slepian Law Office... She states she is still unable to work." (Tr. 391.) Dr. Morgan reported that Plaintiff's physical examination was normal. ( Id. ) He also reported that Plaintiff's symptoms (chronic pain, chronic nausea, bruising, IBS, urinary incontinence, and urinary symptoms) were slightly worse. ( Id. ) Dr. Morgan completed a medical assessment of ability to do work-related physical activities assessing the same limitations as he had on the assessment form he completed in September 2009. ( Compare Tr. 381-82 with Tr. 378-79.) Unlike the 2009 form, the 2010 form did not include any notes regarding the frequency of Plaintiff's diarrhea or other symptoms. (Tr. 381-82.)

C. Quirino Valeros, M.D.

On December 30, 2008, Quirino Valeros, M.D. examined Plaintiff in connection with her application for disability benefits. (Tr. 296.) Plaintiff reported that she did not take any medication for diarrhea or cramping pain associated with her IBS. (Tr. 296.) Dr. Valeros reported that Plaintiff's physical examination was normal. (Tr. 297.) He opined that she could occasionally lift thirty to forty pounds, frequently lift ten pounds, had no limitations regarding sitting, seeing, hearing, or speaking, and could frequently climb ramps/stairs, stoop, kneel, crouch, crawl, reach, handle, finger, and feel. (Tr. 362-64.)

D. Sharon Steingard, D.O.

On January 8, 2009, Plaintiff had a psychiatric consultative examination with Sharon Steingard, D.O., in connection with her application for disability benefits. (Tr. 344.) Plaintiff stated she did not believe she had depression, but she did have some life stressors. (Tr. 345.) Dr. Steingard noted that the Plaintiff's self-reported history suggested she previously had PTSD and conversion disorder, both of which were in remission. (Tr. 348.) She opined that Plaintiff's understanding and memory were grossly intact, that she had no difficulty with sustained concentration and persistence, that she had no problem with social interaction, although she negatively responded to stress, and that she was capable of a variety of simple tasks and tasks requiring more than one or two steps. (Tr. 349.)

E. Rosalia Pereyra, Psy.D., and Adrianne Gallucci, Psy.D.

On January 14, 2009, state agency psychologist, Rosalia Pereyra, Psy.D., opined that Plaintiff had no severe psychological impairments. (Tr. 320-33.) This opinion was later affirmed by reviewing state agency psychologist, Adrianne Gallucci, Psy.D. (Tr. 358-59.)

F. H. Horsley, M.D., and Robert Quinones, D.O.

On January 14, 2009, state agency physician H. Horsley, M.D., reviewed the medical record and completed a Physical Functional Capacity Assessment. (Tr. 335.) He determined that Plaintiff was capable of functioning at a level consistent with the demands of medium exertional work. (Tr. 334-42.) He suspected Plaintiff of symptom magnification. (Tr. 340.)

On May 20, 2009, state agency physician Robert Quinones, D.O., reviewed the record, including treatment notes from Dr. Mokhashi and from Dr. Morgan's office. (Tr. 360-61.) He concluded that the medical record supported Dr. Horsley's residual functional capacity (RFC) opinion and adopted that opinion. ( Id. )

G. Additional Medical Treatment

In October 2009, Plaintiff sought care from endocrinologist, C. Meera Menon, M.D., for significant weight gain over the previous year. (Tr. 458-59.) Plaintiff thought she had Cushing's disease, but Dr. Menon concluded that was very unlikely. (Tr. 459.) In follow-up, Dr. Menon again reassured Plaintiff that she did not have Cushing's disease, and informed her that her cortisol levels and thyroid function were normal. (Tr. 457).

From January 2010 through January 2011, Plaintiff sought care from Josh Baldwin, D.C. (Tr. 463-506.) Dr. Baldwin noted that Plaintiff made steady progress. (Tr. 463-506.) In February 2011, he opined that Plaintiff had impairments that limited her ability to work. (Tr. 533-34.)

In April and May 2010, Plaintiff obtained care from urologist, Paul Block, M.D., for incontinence associated with coughing, which she believed had worsened since she reportedly passed eight kidney stones in February 2010. (Tr. 413.) Her physical examinations and diagnostic tests were normal. (Tr. 413-33.)

In April 2010, Plaintiff sought care from allergist Kevin M. Boesel, M.D. He noted the results of an allergy skin test and asthma test and made recommendations to reduce allergies. (Tr. 443-48.) He advised Plaintiff to avoid penicillin and macrolides. (Tr. 444.) In April and June, Plaintiff followed up with Dr. Boesel and at these appointments her physical examinations were normal. (Tr. 436-37, 440-41.)

In August and October 2010, Plaintiff sought care from urologist, Paul Marshburn, M.D. (Tr. 451.) He noted that Plaintiff had "symptoms of mixed urinary incontinence with urodynamic stress incontinence demonstrated." (Tr. 449.) He suggested Kegel exercises, pelvic floor physiotherapy, and a suburethral sling surgery to be scheduled later. ( Id. ) He noted that Plaintiff understood that "her component of frequency, urgency, and urge incontinence would not be addressed by any surgical treatment." ( Id. ) Plaintiff stated that she was most concerned with "stress incontinence and wanted to proceed with a suburethral sling." ( Id. )

III. Administrative Hearing Testimony

Plaintiff appeared with counsel at the administrative hearing. Plaintiff was in her late forties in December 2009 when her insured status expired. (Tr. 109, 113.) She had a high school education and had attended but not completed college. Her past relevant work included waitress, administrative assistance, collection worker, and teller. (Tr. 23, 132-145.)

Plaintiff testified at the administrative hearing that she was unable to work due to IBS, acid reflux/GERD, fibromyalgia, anxiety, and depression. (Tr. 36, 39.) She testified that she experienced pain, fatigue, nausea, diarrhea, and vomiting. (Tr. 39.) She stated that she could have up to thirty bowel movements a day, and could be in the restroom for up to thirty minutes at a time. (Tr. 40.) Plaintiff further stated that she had urinary incontinence and used protective pads. (Tr. 41.) Plaintiff stated that she avoided leaving her home because she was afraid of having an accident in public. ( Id. ) She stated that she had to lie down during the day due to severe abdominal pain. (Tr. 42.) Vocational expert Sanrda Richter also testified at the administrative hearing in response to hypothetical questions from the ALJ and Plaintiff's counsel. (Tr. 49-52.)

IV. The ALJ's Decision

A claimant is considered disabled under the Social Security Act if she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for supplemental security income disability insurance benefits). To ...

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