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Wilson v. Commissioner of Social Security Administration

United States District Court, D. Arizona

August 27, 2019

Charissa Dawn Wilson, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Eric J. Markovich, United States Magistrate Judge.

         Plaintiff Charissa Dawn Wilson brought this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises four[1] issues on appeal: 1) the Administrative Law Judge (“ALJ”) erred by failing to include substantial evidence of Plaintiff's impairments at Step Two; 2) the Vocational Expert (“VE”) stated that Plaintiff could not maintain competitive employment; 3) the ALJ failed to adequately develop the record by not obtaining or properly submitting materially relevant evidence from Plaintiff's treating physicians that Plaintiff produced, therefore Plaintiff was prejudiced by an incomplete medical record; and 4) the ALJ failed to give adequate weight to the diagnostic findings of Plaintiff's treating physicians. (Doc. 26).

         Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 26, 28, & 29). The United States Magistrate Judge has received the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated below, the Court finds that the Commissioner's decision should be affirmed.

         I. Procedural History

         Plaintiff filed an application for social security disability benefits on September 3, 2014. (Administrative Record (“AR”) 129). Plaintiff alleged disability beginning on November 1, 2013 based on musculoskeletal disorder, depression, anxiety, PTSD, kidney disease, osteoarthritis, polyneuropathy, and Reynaud's. (AR 57). Plaintiff's application was denied upon initial review (AR 71) and on reconsideration (AR 91). A hearing was held on January 4, 2017 (AR 28), after which ALJ MaryAnn Lunderman found, at Step Five, that Plaintiff was not disabled because there were jobs existing in significant numbers in the national economy that Plaintiff could perform. (AR 22-23). On January 18, 2018 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).

         II. Factual History [2]

         Plaintiff was born on June 24, 1984, making her 29 years old at the alleged onset date of her disability. (AR 57). She received a GED and has worked a number of jobs including receptionist, busser, hostess, call center, cocktail waitress, front desk, and housekeeping. (AR 33-38, 148).

         A. Treating Physicians

         On May 2, 2009 Plaintiff was treated for pyelonephritis (a kidney infection). (AR 390).

         On September 10, 2013 Plaintiff reported urinary problems, mild to moderate and occurring rarely, and lower back pain, moderate to severe. (AR 209). She had a normal exam of the lumbar spine with no compression fracture or spondylolisthesis. (AR 208).

         On September 25, 2013 Plaintiff reported a history of kidney infection, bilateral hip pain from a short leg, popping joints, right wrist and knee swelling, chronic severe joint pain especially in neck and back, history of fainting and frequent migraines, and history of depression. (AR 238). Exercise helps but she had not exercised in a year. On exam she had normal movement of all extremities, no abnormalities, and no swelling, but complained of pain everywhere with palpation. (AR 240-41). The assessment was urethritis, arthritis, and depression, and Plaintiff was referred for lab work and x-rays. (AR 238-39).

         On September 26, 2013 an x-ray of the hips showed right femoral herniation pit raising concern for femoral acetabular impingement. (AR 236).

         On October 11, 2013 Plaintiff reported she was doing fantastic on Cymbalta and physically her pain improved substantially. (AR 234). The assessment was chronic pain and depression and exercise or yoga was recommended.

         On June 6, 2014 Plaintiff presented to SAMHC for a crisis consult for severe depression and anxiety attacks. (AR 214). Plaintiff reported struggling with depression, going home from work and crying, and not being able to keep a job. (AR 215). The impression was depressive disorder NOS and Plaintiff was referred to La Frontera. (AR 217).

         On August 6, 2014 Plaintiff had an assessment at La Frontera. (AR 275). Plaintiff reported leaving her last four jobs because of mental health issues and described uncontrollable crying, feeling down, hopeless, and sad, anxiety, and nightmares and flashbacks about past trauma. The diagnosis was major depressive disorder, recurrent moderate, and posttraumatic stress disorder, with a GAF score of 51. (AR 278).

         On August 19, 2014 an x-ray of the spine showed minimal degree scoliosis and bilateral transverse mega-apophysis at a transitional lumbosacral vertebral body. (AR 231). A scanogram of the legs showed age appropriate bone mineralization, synovial herniation pit in the right femoral neck, and the left leg length was longer. (AR 230).

         On August 21, 2014 Plaintiff reported flares of aches and pains in her joints and muscles. (AR 227). Imaging showed minimal scoliosis and right[3] leg was 1.1 cm longer than the left. The assessment was lumbago; there was no clear indicator of what was causing Plaintiff's pain and she was referred to rheumatology.

         On September 30, 2014 Plaintiff had a new client medication evaluation appointment at La Frontera. (AR 295). On exam she was pleasant and cooperative, tearful at times, normal gait and station, normal muscle strength and tone, good attention span and concentration, and appropriate affect. (AR 296). Plaintiff was prescribed Hydroxyzine for anxiety.

         On October 21, 2014 Plaintiff saw Dr. Yekta to establish a PCP and reported a history of recurrent pyelonephritis, Raynaud's, depression/anxiety, chronic back pain, and muscle pain. (AR 245). Plaintiff also reported left calf pain radiating to her hip and right wrist and shoulder pain. (AR 246). On exam she was tearful and anxious appearing, extremities nontender and full ROM without swelling of the joints, slight crepitus in right shoulder and knees, and full ROM and nontender spine. (AR 247).

         An ultrasound on November 10, 2014 showed no hydronephrosis. (AR 254).

         On November 10, 2014 Plaintiff saw Dr. Yekta for a follow-up. (AR 250). All lab work for kidneys and possible autoimmune issues was normal. (AR 250-251, 253). Plaintiff reported muscle and bone pain, pain causing her to wake up at night for 1-3 hours, low energy, tiredness, and unable to exercise due to pain. (AR 251). On exam she was tearful, anxious, and depressed, extremities full ROM without swelling of the joints, and slight crepitus in right shoulder. (AR 252). Plaintiff was referred to PT and sports medicine for her joint and muscle pain, and Dr. Yekta noted that her autoimmune workup was completely negative, but per the diagnostic criteria of fibromyalgia, there was a high possibility of diagnosis. (AR 253). Plaintiff was prescribed Amitriptyline.

         X-rays of the hands on November 20, 2014 were normal. (AR 256).

         On December 1, 2014 Plaintiff told La Frontera that everything was pretty good, that she stopped the healthy living group, was attending PT, and was prescribed Amitriptyline for nerve pain and it helped her depression. (AR 341).

         On January 22, 2015 Plaintiff saw Dr. Buchsbaum for leg problems, myalgia, and anxiety. (AR 369). The diagnosis was muscle pain, joint pain, depression, history of pyelonephritis, and Raynaud's. On exam she had normal muscle strength in all extremities with mild diffuse atrophy and weakness in the right leg. (AR 370). The impression was congenital hemiatrophy and anxiety.

         On February 26, 2015 Plaintiff saw Dr. Buchsbaum and had normal muscle strength in all extremities with mild diffuse atrophy and weakness in the right leg. (AR 368). The impression was hemiatrophy, anxiety, and multiple presyncopal episodes, and the plan was a scan of the spine to make sure the findings were static cord findings from early childhood.

         A March 23, 2015 MRI of the cervical spine showed mild degenerative disc disease at ¶ 6-C7 but was otherwise normal. (AR 383). A MRI of the thoracic spine was normal. (AR 385).

         On April 2, 2015 Dr. Buchsbaum noted there was no answer image wise for Plaintiff's hemiatrophy so they discussed it as congenital and would order electrical studies to prove it was not active or progressive. (AR 382).

         A May 22, 2015 nerve conduction study was normal with no evidence of mononeuropathy, LS radiculopathy, peripheral neuropathy, or myopathy. (AR 430).

         A June 11, 2015 MRI of the head showed: “Tiny curvilinear focus of signal hyperintensity in the left periventricular white matter. This may be related to small vessel ischemic change but is nonspecific. Appearance is not typical for demyelinating disease.” (AR 415). The remainder of the brain was unremarkable.

         An August 13, 2015 MRI of the lumbar spine showed sacralization of the L5 vertebral body and mild degenerative changes of the lumbar spine. (AR 411).

         On October 2, 2015 Plaintiff was referred to physical therapy and the pain clinic for her lower back pain. (AR 443-444).

         On October 2, 2015 Plaintiff's problem list included: muscle pain, joint pain, depression, history of pyelonephritis, Raynaud's phenomenon, muscle atrophy, weakness, muscle wasting and atrophy lower right leg, muscle spasticity, hyperreflexia, congenital hemihypertrophy, other congenital abnormality of the spine, and Bertolotti's syndrome. (AR 471-472).

         On November 5, 2015 Plaintiff saw Dr. Bamford and he noted the following:

Plaintiff has numerous exaggerated complaints. I had to speak to her and tell her that her complaints were unreasonable and unrealistic. She responded that she had to exaggerate to get the point across said that people were taken seriously [sic].
The patient claimed the following complaints: She has to call [sic] to swallow. She used to choke. She says that it takes 1 minute for her to hear what someone is saying. She says that both of her arms are symmetrically weak. She says that her legs are weak and the right leg is weaker . . . her legs go numb if she crosses her legs . . . She has constant low back pain [and] constant severe neck pain.

(AR 501). Dr. Bamford stated that Plaintiff had “[n]umerous subjective symptoms with relatively few objective signs, ” and that the severity of her problems was “unclear” with “probable exaggeration.” On exam she had normal strength of all extremities; tone slightly increased in right lower extremity and normal in the remaining three; normal sensation and coordination; and mild right hemiparetic gait. (AR 502). The impression was probable mild cerebral palsy; hypochondriasis, exaggeration, unreliable historian, and tangential; she wants to be believed but ...

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