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Renee H. v. Commissioner, Social Security Administration

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

August 28, 2019

RENEE H., Plaintiff,



         Plaintiff in the above-styled case brings this action pursuant to § 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 (“SSA”) which denied her applications for disability insurance benefits. For the reasons set forth below, the Court AFFIRMS the decision of the Commissioner.

         I. Factual Background & Procedural History

         On May 22, 2014, the claimant filed an application for disability insurance benefits (“DIB”), alleging that she became disabled on July 29, 2009.[1] [Record (“R.”) 167-68 / Exhibit 1D]. After Plaintiff's application was denied initially and on reconsideration, an administrative hearing was held via video conference on February 27, 2017. [R. 31-57, 82-100]. The Administrative Law Judge (“ALJ”) issued a decision denying Plaintiff's application on June 8, 2017. [R. 7-29]. The Appeals Council denied Plaintiff's request for review on February 21, 2018. [R. 1-6]. Having exhausted her administrative remedies, Plaintiff filed a complaint in this Court on March 30, 2018, seeking judicial review of the final decision of the Commissioner. [Doc. 5]. The parties have consented to proceed before the undersigned Magistrate Judge.

         The decision of the ALJ [R. 12-25] states the relevant facts of this case as modified herein as follows:

         Plaintiff, born on February 7, 1967, has a high school education and last worked as an administrative clerk in 2009. At the hearing, the claimant testified that she was 50 years old and that she was 5 feet, 9 inches tall and weighed 230 pounds.[2] She is married with a 13-year old child. The claimant had back surgery in 2001and returned to work for a number of years. The claimant stopped working in 2009 to stay at home with her daughter. While the claimant reported that she was experiencing back issues at that time, her husband's earnings allowed the claimant to stay at home. [R. 21 (claimant's husband was making “good money”)].

         Medical Evidence Prior To Date Last Insured

         As previously noted, the relevant time period for the instant application for DIB is from October 19, 2011, through December 31, 2014. [R. 10]. A review of the medical evidence of record reveals that the claimant has a history of degenerative disc disease of the lumbar spine dating back to at least 2008. However, there are no records of Plaintiff receiving medical treatment between October 19, 2011, and April 1, 2012.[3]

         On April 2, 2012, Laurie M. Staub, CFNP (“Staub”), noted within treatment records that the claimant had a history of back surgery in 2001 and that she was taking chronic pain medication. Her depression and anxiety were controlled with Xanax. [Exhibit 5F at 33]. On physical examination, the claimant had diminished lung sounds but did not use accessory muscles for respiratory effort. Her judgment and insight were intact; she was oriented times three; her memory was intact; and she had no depression or anxiety. [Exhibit 5F at 34]. The claimant's prescribed medications were Amitriptyline, Effexor, Xanax, Lyrica, and Ultram. Staub ordered lumbar x-rays and referred the claimant to pain management. [Exhibit 5F at 35].

         On July 9, 2012, the treatment note of Jack Cheng, M.D. (“Dr. Cheng”), indicated that the claimant presented to establish care and request medication refills. [Exhibit 6F at 26]. On physical examination, Dr. Cheng reported normal respiratory and cervical examinations. The claimant had tenderness elicited in the lumbar region with a shocking sensation down to the knee produced on deep palpations of her right buttock. The claimant had normal muscle tone, normal strength and normal sensation; her memory was not impaired; and she had a mildly antalgic gait and an euthymic mood with normal affect. [Exhibit 6F at 27-28]. By August 6, 2012, the claimant reported that Clonazepam was working very well. [Exhibit 6F at 24]. Dr. Cheng reported that he would not continue narcotics if the claimant did not get her magnetic resonance imaging (“MRI”). [Exhibit 6F at 25].

         On August 29, 2012, a chest x-ray showed improvement of pneumonia. [Exhibit 6F at 66]. A computed axial tomography (“CT”) scan of the chest of October 10, 2012, demonstrated left pleural effusion which infiltrated both lungs, most of which have a ground-glass appearance and were seen in the right upper, middle, and lower lung and left upper lung.[4] There appeared to be some atelectasis (collapsed lung) in the lingual and, to a lesser extent, in the left lung base, potentially representing inflammatory processes. There were mediastanial and hilar nodes, the most prominent of which were in the right para-tracheal precarinal region. They might represent reactive nodes. [Exhibit 6F at 32-33, 64-65]. An MRI on October 10, 2012, revealed multilevel central canal, lateral recess, and neural foraminal narrowing most pronounced at ¶ 2-3 and to a lesser extent at ¶ 1-2 and L3-4 related to small disc and osteophyte complex, ligamentum flavum, and facet hypertrophy. The MRI also revealed right lateral recess and neural foraminal stenosis at ¶ 4-5 related to rightward paracentral disc and osteophyte complex and facet hypertrophy and bilateral neural foraminal narrowing at ¶ 5-S1 related to disc and osteophyte complex and facet hypertrophy. [Exhibit 6F at 30-31, 63-64].

         On September 4, 2012, Dr. Cheng's treatment notes report that the claimant presented for an emergency department (“ER”) follow-up where she was found to have bilateral pneumonia. The claimant was using an inhaler as needed and reportedly began smoking again the moment she got in the car on discharge. [Exhibit 6F at 22]. Dr. Cheng noted that the claimant's pneumonia was resolving. [Exhibit 6F at 23].

         A Pulmonary Function Test on October 16, 2012, revealed an FEV1 of 1.68 [Exhibit 6F at 42]. On October 31, 2012, Awungjia Leke-Tambo, M.D. (“Dr. Leke-Tambo”), reported that the claimant was using supplemental oxygen and was hypoxic on room air. She had expiratory wheezing on examination. [Exhibit 6F at 55]. She was smoking one pack per day and walked three to four times per week. [Exhibit 6F at 56]. Dr. Leke-Tambo reported a normal physical examination, including a normal gait and station. [Exhibit 6F at 57]. Dr. Leke-Tambo assessed pneumonia. [Exhibit 6F at 58]. A laboratory note of Dr. Cheng reported that the claimant had not refilled her Clonazepam in a month. [Exhibit 6F at 29]. In November 2012, Dr. Cheng reiterated the importance of smoking cessation. [Exhibit 6F at 16].

         On November 28, 2012, the claimant consulted with neurosurgeon John Gorecki, M.D. (“Dr. Gorecki”). Dr. Gorecki indicated that the claimant reported her back pain severity level to be an eight out of ten, with ten being the most severe pain. [Exhibit 6F at 8]. Dr. Gorecki conducted a thorough examination and reported a completely normal mental status examination. Dr. Gorecki reported a decreased range of motion of the lumbar spine and straight leg raise of the right leg was limited by stiffness. The claimant was observed to have normal muscle strength and tone; Romberg's sign[5] was present; and she had an abnormal tandem gait. No. assistive devices for ambulation were reported, and she had no generalized erythema. Dr. Gorecki recommended physical therapy. [Exhibit 6F at 11-13].

         On November 28, 2012, Dr. Cheng noted that the claimant was to attend physical therapy. [Exhibit 6F at 6]. Dr. Cheng referred the claimant to pain management. [Exhibit 6F at 7]. On December 26, 2012, the claimant reported using oxygen although mainly at night. [Exhibit 6F at 4]. Dr. Cheng reported that the claimant was obese and appeared well though she smelled of smoke. According to Dr. Cheng, the claimant's mood was euthymic and her affect was normal. [Exhibit 6F at 5].

         On April 16, 2013, Dr. Cheng's office notes indicated that NEGA Physician's Group (“NEGA”) checked with the claimant's reported pulmonology group and learned that the claimant had only been seen by pulmonology twice with the last visit on October 31, 2012. NEGA staff noted that the claimant “is lying to us and prolonging her use of Percocet narcotic pills.” [Exhibit 6F at 60]. In a letter dated April 19, 2013, NEGA informed the claimant that they would no longer treat her. [Exhibit 6F at 3]. On May 28, 2013, the claimant called NEGA requesting a prescription for Oxycodone. [Exhibit 6F at 59].

         On June 5, 2014, a behavioral health note indicated that the claimant presented with complaints of withdrawal symptoms. [Exhibit 2F]. The claimant reported excessive pain because she ran out of medication. She had some depressive episodes, but she was improving. The claimant was assessed with generalized anxiety disorder, opioid dependence, depressive disorder, NOS (not otherwise specified), and a Global Assessment of Functioning (“GAF”) value of 65.[6] [Exhibit 2F at 9-10].

         On October 2, 2014, a behavioral note of Ganiat Jaiyesinmi Ajayi, M.D. (“Dr. Ajayi”), indicated that the claimant reported increased anxiety and panic attacks. The claimant reported that she was struggling to get back to baseline and was experiencing difficulty sleeping. She denied suicidal ideation, hallucinations, and paranoia. She was cooperative with eye contact and exhibited normal speech and logical thought. Dr. Ajayi observed anxious mood. The claimant was alert and oriented times four and exhibited fair concentration and judgment with poor memory. Dr. Ajayi assessed generalized anxiety disorder, major depressive disorder without psychosis, opioid dependence, and a GAF value of 65. [Exhibit 4F at l].

         Medical Treatment After Date Last Insured

         On January 16, 2015, the claimant presented to the ER with complaints of difficulty breathing. [Exhibit 3F at 21]. She reported dyspnea for several days and use of oxygen as needed. [Exhibit 3F at 8]. A chest x-ray showed no acute disease. [Exhibit 3F at 29]. The claimant received a breathing treatment, and there was no distress noted. [Exhibit 3F at 19]. She had wheezes but no pleuritic chest pain and no respiratory distress. [Exhibit 3F at 11]. ER records note that the claimant continued to smoke.

         By January 28, 2015, the claimant reported that she was not experiencing panic attacks. The claimant relayed that she had some stress at home with money issues and car trouble. [Exhibit 4F at 4]. A chest x-ray of February 27, 2015, revealed patchy opacities at the left lung base possibly related to aspiration / pneumonia, trace bilateral pleural effusions, right greater than left, with bibasilar atelectasis, and linear opacity within the right mid-lung possibly related to atelectasis or scarring. [Exhibit 5F at 32].

         Dr. Ajayi's March 3, 2015, behavioral notes indicate that the claimant's reported drug of choice was any opiate. The claimant represented that she had been sober for a year. She was doing okay with depression. The claimant stated that her only stressor was money and that her husband was out on Worker's Compensation for a year due to a neck injury. Dr. Ajayi assessed the claimant with a GAF value of 80. [Exhibit 4F at 5].

         On August 26, 2015, a treatment note of Bethany R. Norwood, FNP (“Norwood”), indicated that the claimant reported no hospitalizations or health care treatment outside of the clinic since her last visit. According to the medical evidence of record, the claimant's last treatment was on April 2, 2012. It was also noted for the first time that the claimant had a history of chronic obstructive pulmonary disease (“COPD”). The claimant presented for medication refills. Norwood reported a normal physical examination. Norwood assessed tobacco abuse, anxiety state, NOS, depression, and insomnia. Ventolin for wheezing was prescribed. [Exhibit 5F at 27, 29-31]. On September 25, 2015, and December 9, 2015, Norwood again reported completely normal physical and psychiatric examinations. [Exhibit 5F at 10-11, 23-25].

         On June 10, 2016, Staub indicated that the claimant presented with complaints of urinary problems. The claimant reported using oxygen at home, although mostly at night, and she continued to smoke. [Exhibit 5F at 2]. The claimant ambulated without difficulty and had no problems with meal preparation or eating. [Exhibit 5F at 3]. On physical examination, Staub reported that the claimant had scattered wheezing with diminished lung sounds, that the claimant did not use accessory muscles, and that she had no depression or anxiety. [Exhibit 5F at 4].

         On September 29, 2015, approximately nine months after the date last insured, Plaintiff saw Dr. Gorecki again for evaluation. [Exhibit 8F]. Dr. Gorecki recalled his original consultation with Plaintiff in 2012 for possible surgical solutions as well as the October 2012 MRI of her lumbar area and explained that his previous, more conservative intervention was due largely to Plaintiff's “oxygen dependent COPD.” [Exhibit 8F at 2, 6]. Dr. Gorecki described Plaintiff's back pain as “incapacitating pain radiating into the right lower extremity” and recognized that Plaintiff's symptoms “have gradually worsened” and “are made worse by prolonged standing or walking.” [Exhibit 8F at 2]. Dr. Gorecki observed that Plaintiff uses a cane and that she is “stooped forward and leans to the right.” [Exhibit 8F at 2]. Dr. Gorecki opined (in an undated letter) that Plaintiff was “clearly disabled by severe ongoing back and right leg pain with foot drop[.]” [Exhibit 8F at 2]. Nonetheless, Dr. Gorecki did not identify any specific functional limitations. [Exhibit 8F at 2]. Dr. Gorecki's treatment note indicated that the claimant presented using a cane and reported being treated for depression by her psychiatrist and being followed by Athens Pulmonology.[7]There are no further treatment notes with Dr. Gorecki.

         On October 9, 2015, the treatment notes of Angela Calvert (“Calvert”) indicated that the claimant presented with complaints of leg swelling for a couple of months, improved with elevation. The claimant was ambulating with a cane. [Exhibit 7F at 6]. The claimant had bilateral 1 pedal edema, and she had no focal deficits and was alert, cooperative with normal mood and affect, and normal attention span and concentration. She had a decreased range of motion with an abnormal gait and observed to be leaning to the right and bent forward during ambulation. She had decreased breath sounds bilaterally smelling of smoke. She was not in acute distress and had poor dentition. [Exhibit 7F at 8]. A Bilateral Lower Extremity Venous Duplex showed right galvanic vestibular stimulation (“GSV”) measured at 10 mm at the junction and demonstrated reflux lasting longer than five seconds. The left GSV was normal. [Exhibit 7F at 10]. The recommended treatment was for the claimant to wear compression hose. [Exhibit 7F at 9].

         On February 9, 2017, the claimant had an MRI of the lumbar spine, which demonstrated post-surgical changes at ¶ 4-5 and L5-S1. At ¶ 4-5, there was an asymmetric degenerative endplate change present encroaching on the right lateral recess and proximal right neural foramen. The record states that a portion of this fining might represent granulation tissue and that there appears to be compromise of the right lateral recess and right neural foramen. Other observations include central disc herniation at ¶ 1-2 contributing to canal compromise and displacement of multiple nerve roots but no definite mass effect seen, plus additional levels of degenerative disc disease, facet arthropathy, and superimposed on degenerative change was levoconvex scoliosis. [Exhibit 9F at 2-3]. Staub's treatment notes dated January 18, 2017, indicate that the claimant continued to smoke and that she had scattered wheezing throughout and lumbar spine tenderness. [Exhibit 9F at 8-13].

         Plaintiff's Hearing Testimony

         During the hearing before the ALJ, the claimant acknowledged that her back symptoms have worsened since 2009. The claimant described her consultation with the neurosurgeon in 2012 and the fact that surgery was not recommended because surgery could potentially make the claimant's symptoms worse. The claimant reported being given a couple of injections to alleviate back pain in addition to physical therapy. The claimant also reported using a cane for the last three years for walking and getting up and down. The claimant represented that she was starting to have walking issues while she was working and that she has fallen on occasion. The claimant further stated that she gets stiff when sitting. The claimant, admittedly still a smoker, testified that she has used supplemental oxygen since 2012, primarily at night but sometimes during the day. The claimant represented that ...

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