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Foos v. Colvin

United States District Court, D. Arizona

March 31, 2016

Shirley Lorraine Foos, Plaintiff,
Carolyn W. Colvin, Defendant.


JOHN Z. BOYLE, Magistrate Judge.

Plaintiff Shirley Lorraine Foos seeks review of the Social Security Administration Commissioner's decision denying her application for supplemental security income benefits under the Social Security Act. (Doc. 1; Doc. 14.) For the reasons below, the Court will affirm the Commissioner's decision.

I. Background

On June 17, 2011, Plaintiff filed applications for disability insurance and supplemental security income benefits. (AR 187-91.)[1] Plaintiff alleged that she became unable to work on May 1, 2011. (AR 192-201.) Plaintiff's applications were initially denied on October 18, 2011, and denied upon reconsideration on April 24, 2012. (AR 100-03, 104-07, 113-15, 116-19.) In a decision dated June 7, 2013, the ALJ found that Plaintiff was not entitled to disability insurance or supplemental social security benefits.[2] (AR 12-21.) Plaintiff requested the Appeals Council review the decision, but by notice dated December 2, 2014, the Appeals Council declined to set aside the ALJ's decision. (AR 1-7.)

Having exhausted the administrative review process, on January 29, 2015, Plaintiff sought judicial review of the ALJ's decision by filing a Complaint in this Court pursuant to 42 U.S.C. ยง 405(g). (Doc. 1.) On June 8, 2015, Plaintiff filed an Opening Brief, seeking remand of this case to the Social Security Administration for an award of benefits, or, alternatively, seeking remand for a new hearing. (Doc. 14.) Plaintiff presented two issues in her Opening Brief: (1) "Whether the ALJ committed harmful legal error in granting little or no weight to the physical function assessments of Dr. [Keith] Shillito"; and (2) "Whether the ALJ provided clear and convincing reasons for discounting the credibility of [Plaintiff's] subjective complaints." (Doc. 14 at 2.) On July 8, 2015, Defendant filed a Response Brief in support of the Commissioner's decision. (Doc. 18.) Plaintiff did not submit a reply brief, and time to do so has expired. LRCiv 16.1(c).

II. Relevant Record Evidence

a. Summary of Relevant Medical Record Evidence

i. Treating Physician, Dr. Shillito

Plaintiff sought treatment for migraines, fibromyalgia, arthritis, and actinic keratosis from Dr. Shillito. (AR 343.) On April 15, 2010, Dr. Shillito performed blood tests that revealed a negative rheumatoid factor and negative ANA. (AR 408.) Dr. Shillito then diagnosed Plaintiff with fibromyalgia and left knee pain and renewed her prescription for a narcotic pain reliever. ( Id. ) On July 27, 2010, because of Plaintiff's migraines, fibromyalgia, and actinic keratosis, Dr. Shillito placed Plaintiff on an eight-week trial of Savella and renewed her Imitrex and Topiramate. (AR 403.) On November 5, 2010, Plaintiff reported continued migraines and fibromyalgia, but that she was unable to handle the higher dosage of Topiramte. (AR 396.) Dr. Shillito discussed being "in full support" of her application for disability because they "have had difficulty controlling her migraines and pain." (AR 397.) Dr. Shillito prescribed Plaintiff monthly B-12 injections for fatigue and follow up treatments with Dr. Shillito every three months. (AR 375, 397.) In May 2011, Plaintiff traveled to Oregon for two weeks. (AR 361.) On April 5, 2011, Plaintiff reported to Dr. Shillito that she was able to walk her dog every day and to ride a bicycle. (AR 389, 407.) On May 24, 2011, Plaintiff reported improvement since quitting her job. (AR 385.)

On December 13, 2011, Dr. Shillito completed a Multiple Impairment Questionnaire. (AR 364-71.) Dr. Shillito opined that in a regular eight-hour workday: (1) Plaintiff could sit for up to two hours a day; (2) she could stand and walk up to two hours a day; (3) she had the need to get up and move around every hour for 15 to 30 minutes; (4) she could lift and carry up to five pounds frequently and 10 pounds occasionally; and (5) "due to her migraines, fibromyalgia, and skin condition she would not be able [to] hold a competitive job without risking being let go." (AR 366-70.) In letters dated July 3, 2012 and April 26, 2013, Dr. Shillito affirmed the same diagnoses and functional limitations as set forth in his December 13, 2011 Questionnaire responses. (AR 420, 532.)

On April 15, 2013, Plaintiff, on referral from Dr. Shillito, was seen by neurologist Joshua Tobin for an evaluation of her migraines. (AR 507.) Examination revealed 18 of 18 tender points to palpation. (AR 508.) Dr. Tobin found that factors contributing to Plaintiff's migraines were pain medication overuse and the uncontrollable nature of her fibromyalgia. (AR 508-09.)

ii. Examining Physician, Dr. Glenn Kunsman

On September 20, 2011, Plaintiff underwent examination and evaluation by agency physician, Dr. Kunsman. (AR 338-42.) Dr. Kunsman found numerous 5 to 10-millimeter circular lesions, some with ulceration in various stages of healing; and radial and pedal pulse strength at 2 out of 4 bilaterally. ( Id. ) Dr. Kunsman endorsed the diagnoses of stable osteoarthritis of the hands, stable fibromyalgia with 18 tender points, an unspecified skin condition, and stable migraines. (AR 342.) However, Dr. Kunsman opined that none of the conditions has or will impose any limitations for 12 consecutive months. ( Id. )

iii. Non-Examining Physicians, Dr. Jean Goerss and Dr. Nadine Keer

On October 17, 2011, after conducting a review of the record, agency non-examining physician, Dr. Goerss, assessed Plaintiff's functional limitations. (AR 56-65, 66-75.) Dr. Goerss opined that each of Plaintiff's impairments are non-severe. (AR 71-73, 75.)

On April 20, 2012, Dr. Keer, an osteopathic doctor with the state agency, affirmed Dr. Goerss' conclusion that Plaintiff's conditions are non-severe. (AR 96.)

b. Summary of Plaintiff's Hearing Testimony

On May 16, 2013, the ALJ held a hearing on Plaintiff's applications for benefits, during which Plaintiff testified regarding her symptoms and limitations. Plaintiff testified that previously she worked in payroll but she was currently not working and had stopped on May 30, 2011. (AR 27, 31.) The migraines caused her to quit because they "were getting so bad that [she] was missing so much work and in that position you cannot miss a lot of work." (AR 32.) Plaintiff testified that she was still experiencing the migraines at the time of the testimony and the migraines can be "very, very severe." (AR 34.) Plaintiff claimed that when the migraines occur, she throws up for the first three days, and they last five to seven days. ( Id. ) During this time, she cannot take care of herself and needs to go into a bedroom and laydown to get away from light and noise. ( Id. ) Plaintiff testified these migraines occur once to twice a month. ( Id. ) She has additional migraines that last approximately one to three days, occurring four times per month. ( Id. ) Plaintiff testified she takes injections of Imitrex for her migraine pain, which "do help" the pain. (AR 35.)

Plaintiff testified that she continues to suffer from fibromyalgia that causes deep muscle pain throughout her body, starts her migraines, and prevents her from sitting for more than 15 minutes or standing for more than five to 10 minutes. (AR 35-36.)

Plaintiff testified that she experiences arthritis in her left knee and has a torn meniscus, which is painful all the time. ( Id. at 36.) She described activities that make the pain worse, such as walking, sitting, and standing. ( Id. ) She claimed she cannot walk further than from her front door to her car. (AR 37.) She asserted she lies down throughout the day because of pain, for approximately two hours. ( Id. ) She has arthritis in her hands, which are swollen and ache all the time. ( Id. ) The arthritis causes her to choose to pick up a half-a-gallon of milk instead of a full gallon, and she cannot lift anything greater than five pounds. (AR 38.)

Additionally, Plaintiff claimed she suffers from actinic keratosis, which causes open sores on her hands once per month. ( Id. ) She takes Aldara twice per ...

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