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Pamela V. v. Commissioner, Social Security Administration

United States District Court, N.D. Georgia, Atlanta Division

March 11, 2019

PAMELA V., Plaintiff,

          ORDER A N D OPINION [1]


         Plaintiff Pamela V. (“Plaintiff”) brought this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) under the Social Security Act.[2] For the reasons below, the undersigned AFFIRMS the final decision of the Commissioner.


         Plaintiff filed an application for DIB on or about January 12, 2014, alleging disability commencing on March 30, 2012. [Record (hereinafter “R”) 187]. Plaintiff's application was denied initially and on reconsideration. [See R109-10]. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). [R153-54]. An evidentiary hearing was held on May 4, 2016, during which Plaintiff amended her onset date to March 6, 2011. [R59-77]. The ALJ issued a decision on August 1, 2016, denying Plaintiff's application on the ground that she had not been under a “disability” at any time from March 6, 2011, through March 31, 2016, the date Plaintiff was last insured. [R18-45]. Plaintiff sought review by the Appeals Council, and the Appeals Council denied Plaintiff's request for review on July 11, 2017, making the ALJ's decision the final decision of the Commissioner. [R13-17].

         Plaintiff then filed an action in this Court on October 27, 2017, seeking review of the Commissioner's decision. [Doc. 1]. The answer and transcript were filed on March 14, 2018. [See Docs. 5, 6]. On April 10, 2018, Plaintiff filed a brief in support of her petition for review of the Commissioner's decision, [Doc. 10]; on May 10, 2018, the Commissioner filed a response in support of the decision, [Doc. 11]; and on May 31, 2018, Plaintiff filed a reply brief in support of her petition for review, [Doc. 14]. The matter is now before the Court upon the administrative record, the parties' pleadings, and the parties' briefs, [3] and it is accordingly ripe for review pursuant to 42 U.S.C. § 405(g).


         An individual is considered disabled for purposes of disability benefits if he 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). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically accepted clinical or laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)-(3).

         The burden of proof in a Social Security disability case is divided between the claimant and the Commissioner. The claimant bears the primary burden of establishing the existence of a “disability” and therefore entitlement to disability benefits. See 20 C.F.R. § 404.1512(a). The Commissioner uses a five-step sequential process to determine whether the claimant has met the burden of proving disability. See 20 C.F.R. § 404.1520(a); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The claimant must prove at step one that he is not undertaking substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i). At step two, the claimant must prove that he is suffering from a severe impairment or combination of impairments that significantly limits his ability to perform basic work-related activities. See 20 C.F.R. § 404.1520(a)(4)(ii). At step three, if the impairment meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of Impairments), the claimant will be considered disabled without consideration of age, education, and work experience. See 20 C.F.R. § 404.1520(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a listed impairment, he must prove that his impairment prevents performance of past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). At step five, the regulations direct the Commissioner to consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can perform other work besides past relevant work. See 20 C.F.R. § 404.1520(a)(4)(v). The Commissioner must produce evidence that there is other work available in the national economy that the claimant has the capacity to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant must prove an inability to perform the jobs that the Commissioner lists. Id.

         If at any step in the sequence a claimant can be found disabled or not disabled, the sequential evaluation ceases and further inquiry ends. See 20 C.F.R. § 404.1520(a)(4). Despite the shifting of burdens at step five, the overall burden rests on the claimant to prove that he is unable to engage in any substantial gainful activity that exists in the national economy. Doughty, 245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983), superseded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).


         A limited scope of judicial review applies to a denial of Social Security benefits by the Commissioner. Judicial review of the administrative decision addresses three questions: (1) whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Washington v. Astrue, 558 F.Supp.2d 1287, 1296 (N.D.Ga. 2008); Fields v. Harris, 498 F.Supp. 478, 488 (N.D.Ga. 1980). This Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If substantial evidence supports the Commissioner's factual findings and the Commissioner applies the proper legal standards, the Commissioner's findings are conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam); Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         “Substantial evidence” means “more than a scintilla, but less than a preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court] must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary of the ALJ's findings, the ALJ decision will not be overturned where “there is substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ's application of legal principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker, 826 F.2d at 999.


         A. Background

         Plaintiff was 47 years old on her amended alleged onset date and 52 years old on her date last insured of March 31, 2016. [R63, 187, 193]. She has a college degree and previously worked as a claims examiner and an administrative assistant. [R71, 75, 219]. She also served in the Air Force Reserves until she was honorably discharged in 2011. [R64, 289, 438]. Plaintiff alleges she is unable to work because of degenerative disk disease, chest pain, fatigue, cardiomyopathy, [5] coronary artery disease, [6] sleep apnea, anxiety, depression, and hypertension. [R63, 65-66, 218].

         B. Lay Testimony

         In the hearing before the ALJ, Plaintiff testified that she was diagnosed with cardiomyopathy in 2009 and got a defibrillator in August 2010. [R65]. She stated that she lives with chest pain and increased fluid on her lungs, to the point where she chokes in her sleep and has daily wheezing. [R65]. She reported that her energy level is very low, she needs breaks when climbing as few as six stairs, and she has increasing fatigue. [R65]. She also testified that she has severe low blood pressure and that her heart medication has blood-pressure-lowering elements in it, so it is constantly pushing her blood pressure down in the “danger zone, ” which is more of a strain on her heart. [R65-66]. When asked about noncompliance with medication, she stated that she has periodically adjusted her medications depending on how she is feeling; for example, her heart medication causes her blood pressure to drop to very low levels, so she sometimes cuts back on it, and she sometimes takes her diuretics at night to avoid the need for frequent bathroom visits during the day. [R65, 67].

         Plaintiff also related that she had been diagnosed with sleep apnea and used a CPAP[7] device for sleeping, especially with all the wheezing she had. [R66]. She stated that when she sits, her chest starts to feel fatigued-like a “pulling” in her chest-and she has to lie down. [R66-67].

         Plaintiff additionally testified that her daily activities vary depending on her symptoms. [R67-68]. She lies down during the day with a variable frequency. [R67]. She reported that a lot of it has to do with excess fluid buildup: the fluid buildup in her lungs makes her fatigued, [R69], so she takes diuretics and is constantly going to the bathroom-four to five times an hour. [R67]. After sitting up she has to lie down for a couple hours until she gets some energy and starts feeling better, and then she can get up and do whatever she has to do for the day or around the house. [R67]. She stated that she does not cook much anymore, but she does household chores and errands. [R68]. She reported that some days she does not go out at all, and when she is out she tries to do whatever she has to do so that she does not have to go out for days at a time. [R67].

         C. Administrative Records

         In an adult function report dated February 19, 2014, Plaintiff reported that she drove, shopped for groceries, and did chores, although the chores took longer because of chest agitation and fatigue. [R227-28]. She also indicated that she needed no assistance in managing her activities of daily living, including personal hygiene, dress, and toilet use. [R227-31].

         D. Medical Records

         In 1999, Plaintiff was diagnosed with non-Hodgkin's lymphoma and was treated with chemotherapy. [R311, 317, 321, 328]. After chemotherapy, she developed secondary cardiomyopathy with an ejection fraction[8] of fifteen percent. [R525]. In January 2005, she had moderate cardiomyopathy with a left ventricular ejection fraction of thirty percent without significant valvular disease. [R318]. An echocardiogram in 2009 showed an ejection fraction of fifteen to twenty percent. [R318]. In August 2010, she had an automatic implantable cardiac defibrillator placed in her chest. [R318, 328]. In September 2011, it was noted that Plaintiff had no evidence of congestive heart failure or fluid overload at that time. [R318].

         Notes from a new patient examination taking place on August 24, 2012, with Karen Y. Luster, M.D., of Capstone Medical Group, indicate that Plaintiff complained of dizzy spells, joint pain, loud snoring, sleepiness, weight gain, wheezing, shortness of breath, palpitations, chest pain, back pain, nocturia, headache, insomnia, memory loss, blurry vision, leg edema, and fatigue. [R297-300]. Plaintiff's ejection fraction had improved to twenty-five percent. [R300].

         At an appointment with Dr. Luster taking place on October 3, 2012, Plaintiff reported that her equilibrium felt off, she had fallen from a stepladder, and she was having difficulty walking due to knee pain from the fall. [R301-02]. She was noted to be limping and was diagnosed with “pain and limb, ” and it was also noted that her congestive heart failure restricted medication options. [R302]. Dr. Luster prescribed tramadol.[9] [R302].

         Plaintiff presented to the VA Medical Center on January 8, 2013, with complaints of intermittent chest pain that was worse when she was overly tired. [R379]. She reported that her energy level fluctuated and that she had occasional shortness of breath and dizziness with lying down, sitting up, or driving, with an increase in events in the last year. [R379]. She also reported anxiety with stress. [R380].

         VA Medical Center mental-health evaluation notes from January 23, 2013, indicate that in the late 1980s, Plaintiff was in a car crash in which her car slid under a tractor-trailer, she suffered injuries, and she had to be cut from her vehicle. [R365]. She reported that since that time she has experienced flashbacks and extreme anxiety, particularly when driving. [R365]. She indicated that her anxiety became so great that she limited her driving and finally sought treatment in 2013. [R365].

         At a visit to the VA Medical Center taking place on January 24, 2013, Plaintiff reported that she was intermittently compliant with her medications and was not taking her statin. [R359]. She also stated that she had shortness of breath with one flight of stairs; intermittent sharp sub-sternal chest pain without provocation; intermittent palpitations; “fluttering”; and intermittent dizziness. [R359, 362]. Her examination showed normal heart and lung readings and no pedal edema. [R361]. She was switched to Toprol[10] and advised to be compliant with the rest of her medications, and her doctors considered increasing her losartan[11] and discontinuing digoxin.[12] [R361].

         A stress test taking place at the VA Medical Center on January 30, 2013, revealed no significant perfusion defects and normal wall motion, and the left ventricular ejection fraction was calculated at 58 percent. [R338-39, 390]. The test was characterized as a “normal myocardial perfusion study.” [R339, 390].

         Notes from April 29, 2013, indicate that Plaintiff was out of digoxin and called to reorder multiple medications through the VA with some difficulty. [R352-54].

         Plaintiff returned to the VA Medical Center cardiology clinic for follow-up on May 1, 2013. [R341]. Her problem list included New York Heart Association (“NYHA”) class III cardiomyopathy[13] and coronary atherosclerotic heart disease-one-vessel disease with left-heart catheterization in 2009.[14] [R336]. She said she was doing well and had recently been in New York, caring for an uncle, [R336], although she also reported chest pain that had been ongoing for four to five weeks and chronic problems of dizziness and shortness of breath when going up stairs, [R341, 345]. She indicated that she ran out of digoxin at that time but had no chest pain, shortness of breath, palpitations, orthopnea or PND (paroxysmal nocturnal dyspnea), and stated that she was otherwise compliant with her medications. [R336]. She had a normal examination, and because she was using furosemide (Lasix) daily, [15]supplemental potassium was recommended. [R347].

         On July 11, 2013, VA Medical Center cardiologist Brian Kaebnick, M.D., indicated that Plaintiff had two recent cardiac tests: a nuclear stress test on January 30, 2013, to evaluate her coronary arteries, and a repeat echocardiogram in June 2013. [R327]. The nuclear stress test indicated an ejection fraction of 58 percent and did not show any large areas of ischemia, and the repeat echocardiogram indicated an ejection fraction of 35 to 40 percent. [R327]. The doctor noted that ejection fractions measured during nuclear stress tests may be falsely elevated and stated that the echocardiogram more accurately reflected Plaintiff's current cardiac function and therefore would be used to grade her heart dysfunction. [R327].

         Cardiology progress notes dated July 11, 2013, indicate that Plaintiff had been started on Imdur[16] on her last visit but could not tolerate it due to headaches. [R328]. She reported that she continued to have angina symptoms with moderate activities like cleaning floors or raking leaves that abated with rest. [R328]. It was noted that although she continued to experience angina pain, she had some improvement in her ejection fraction after she started congestive heart failure medications, was stable, and did not want to try a new medication. [R331]. Sublingual nitroglycerine[17] was prescribed for use as needed. [R331].

         A DeKalb Community Service Board assessment dated September 27, 2013, indicates that Plaintiff reported being active but tiring easily from her heart condition. [R292].

         Plaintiff returned to Dr. Luster on December 11, 2013, with complaints of sharp chest pain with exertion and fatigue that had lasted for two weeks. [R304]. She reported that she had to sit for 30 minutes once before she could do much. [R304]. She also reported that she was “doing a cleanse” and therefore had stopped her medications. [R304]. Examination revealed that her lungs were clear, jugular venous distension was flat, [18] she had 2 edema in both her legs, [19] and she was tender to palpation from the right breast radiating from the sternum to 2 o'clock. [R304]. For her fatigue/malaise, she was directed to stop Cymbalta delayed release capsule[20] and start escitalopram, [21] [R304]; for her congestive heart failure, she was directed to continue digoxin, losartan, spironolactone, [22] and furosemide, [R305]; her chest pain was attributed to two possible components-post-surgical pain and anxiety-and she was to start Cymbalta, [R305]; and for her anxiety disorder, she was directed to attend counseling, use “sleepy time” tea, and use melatonin as needed, [R305].

         When Plaintiff returned to Dr. Luster on January 8, 2014, her chest pain symptoms had improved, she was sleeping better, and she felt rested. [R306]. Plaintiff reported that she had been told that she only had sleep apnea symptoms when she slept on her back. [R306]. Her examination was normal. [R306]. She was diagnosed with anxiety disorder, NOS; chest pain; and fatigue/malaise. [R306]. Proper positioning was encouraged for her positional obstructive sleep apnea. [R306].

         Sleep testing taking place on March 3, 2014, showed that Plaintiff had a good response to ...

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