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Mayeux v. Commissioner of Social Security Administration

United States District Court, M.D. Louisiana

January 4, 2018

DEBORAH ANN MAYEUX
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

          RULING

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Deborah Ann Mayeux (“Plaintiff”), brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).[1] Plaintiff has filed a Memorandum in Support of Plaintiff's Appeal of the Commissioner's Denial of Social Security Benefits, [2] and the Commissioner has filed an Opposition Memorandum.[3] Based on the applicable standard of review under § 405(g) and the analysis which follows, the court AFFIRMS[4] the Commissioner's decision.

         I. Procedural History

         Plaintiff filed an application for SSI on February 26, 2014 and an application for DIB on July 3, 2014 alleging disability beginning April 1, 2009.[5] Plaintiff's claim was initially denied on July 3, 2014.[6] Thereafter Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).[7] A hearing was held on April 21, 2015 at which Plaintiff, represented by counsel, testified.[8] A vocational expert (“VE”), Christy McAfree, also appeared and testified.[9]

         On June 11, 2015, the ALJ issued a notice of unfavorable decision.[10] Thereafter, Plaintiff requested review by the Appeals Council.[11] On September 23, 2016, the Appeals Council denied Plaintiff's request for review.[12] On November 10, 2016, Plaintiff filed her Complaint.[13]Accordingly, Plaintiff exhausted her administrative remedies before timely filing this action for judicial review and the ALJ's decision is the Commissioner's final decision for purposes of judicial review.[14]

         II. Standard of Review

         Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). If the Commissioner fails to apply the correct legal standards, or provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981); Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).

         III. The ALJ's Decision

         A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity. 20 C.F.R. §§ 404.1505; 416.905. The regulations require the ALJ to apply a five-step sequential evaluation to each claim for benefits. 20 C.F.R. §§ 404.1520; 416.920. In the five-step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe medically determinable impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work. Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002).

         The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity (“RFC”), age, education and past work experience, that he or she is capable of performing other work. 20 C.F.R § 404.1520(g)(1). If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work. Muse, 925 F.2d at 789.

         Here, the ALJ made the following determinations:[15]

1. Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2013;
2. Plaintiff did not engage in substantial gainful activity since April 1, 2009, the alleged disability onset date;
3. Plaintiff had the following severe impairments: morbid obesity, status post panniculectomy, [16] lymphedema, Diabetes Mellitus, and neuropathy in the feet;
4. Plaintiff's fibromyalgia, pancreatitis, hypertension, and depression were “‘non-severe' because they are no more than slight abnormalities having such a minimal effect on the claimant that they would not have been expected to interfere with her ability to work;”[17]
5. Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
6. Plaintiff had the residual functional capacity (“RFC”) “to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can occasionally climb ramps, stairs, ladders, ropes and scaffolds; frequently balance; and occasionally stoop, kneel, crouch and crawl. Additionally, she uses a cane to ambulate and balance;”[18] and
7. Plaintiff was “capable of performing past relevant work as an accounts clerk, mortgage accounts clerk, data entry clerk and front desk receptionist”[19] and therefore Plaintiff was not disabled within the meaning of the Social Security Act.[20]

         IV. Plaintiff's Allegations of Error

         Plaintiff asserts five allegations of error. First, Plaintiff argues that the ALJ erred by failing to appropriately incorporate Plaintiff's use of a cane to ambulate and balance in the RFC. Second, Plaintiff complains that the ALJ's conclusion that Plaintiff's fibromyalgia was non-severe was not supported by substantial evidence. Third, Plaintiff asserts that the ALJ failed to follow social security rulings (“SSR”) 02-1p and/or 00-3p when evaluating the impact of Plaintiff's obesity on her ability to work. Fourth, Plaintiff argues that the ALJ failed to follow SSR 16-3p when evaluating Plaintiff's subjective symptoms. Finally, Plaintiff asserts that the ALJ failed to resolve a conflict between a conclusion reached by the vocational expert and the ALJ's own conclusion that Plaintiff could perform her past relevant work.

         V. Law and Analysis

         A. Substantial Evidence Supports the ALJ's Finding that Plaintiff's Fibromyalgia Was Non-Severe

         In his Decision, the ALJ found that Plaintiff's fibromyalgia was “non-severe.”[21] Although the ALJ recognized that “[a] diagnosis of Fibromyalgia appears in the record…, ” he explained that the “record lacks any clear documentation of at least 11 of the 18 trigger points, and does not specify which, if any, trigger points generated positive responses, nor the amount of pressure applied, as is required under the regulations. (SS 12-2p). Besides, the claimant has not had any targeted treatment for Fibromyalgia, or any consistent treatment with a rheumatologist.”[22] Based on the ALJ's Decision, the ALJ considered whether Plaintiff's fibromyalgia was a medically determinable impairment (a “MDI”) and found, based both on SSR 12-2p and Plaintiff's treatment history, that Plaintiff's fibromyalgia was non-severe.

         Pursuant to SSR 12-2p, fibromyalgia is a MDI “when it is established by appropriate medical evidence.” 2012 WL 3104869. The Ruling clarifies that a “physician's diagnosis alone” is insufficient, and that “[t]he evidence must document that the physician reviewed the person's medical history and conducted a physical exam.” Id. Under the Ruling, a claimant will be found to have a MDI of fibromyalgia when, in addition to a diagnosis, a physician provides evidence described in section II.A or II.B of the Ruling. See also, Tebyanian v. Colvin, Civil Action No. 14-1385, 2015 WL 4475762, at * 7 (N.D. Tex. July 22, 2015) (“Ruling 12-2p offers two tests for determining whether a claimant's fibromyalgia qualifies as a medically determinable impairment.”). Under either test, a claimant must show: (1) a history of widespread pain “in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back) - that has persisted (or that persisted) for at least 3 months;” and (2) evidence that other disorders that could cause symptoms and signs were excluded.[23] In addition to these two requirements, under the first test, the claimant must also show at least 11 positive tender points during a physical exam.[24] Under the second test, a claimant instead must show “[r]epeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (‘fibro fog'), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.”[25]

         Plaintiff argues that SSR 12-2p provides two independent bases for determining whether a claimant has a MDI of fibromyalgia, and that the ALJ erred in only considering the first approach for making this determination. Here, the ALJ's statement that “the record lacks any clear documentation of at least 11 of the 18 trigger points, ”[26] indicates that the ALJ considered whether Plaintiff has a MDI of fibromyalgia using the first test set forth in the Ruling. Significantly, the Ruling does not require consideration of both tests, and Plaintiff has not directed the court to any jurisprudence holding that the failure to explicitly consider both methods of analysis under 12-2p constitutes reversible error.[27] Moreover, while Plaintiff argues that the ALJ should have considered “the second alternative approach” and addressed “the six or more fibromyalgia symptoms, ” Plaintiff does not specifically explain the “six or more FM symptoms, signs, or co-occurring conditions” she contends are supported by her medical records.[28]

         “The burden of proving the existence of a medically determinable impairment, part of the analysis at the second step, is on the Plaintiff.” Rowe v. Colvin, Civil Action No. 16-204, 2017 WL 3821473, at * 8 (M.D. La. Aug. 31, 2017) (citing Laurent v. Astrue, 366 Fed.Appx. 559, 561 (5th Cir. 2010) (“The claimant carries the burden of proof in the first four steps of the analysis.”)); see also, Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (“The claimant has the burden of proving she has a medically determinable physical or mental impairment lasting at least twelve months that prevents her from engaging in substantial gainful activity.”). Here, Plaintiff does not explain how she meets the requirements of a MDI of fibromyalgia under the second test set forth in 12-2p. Without first showing the existence of a medically determinable impairment of fibromyalgia, it is difficult to understand how Plaintiff could establish that fibromyalgia is a severe impairment in the first instance. See, Rowe, 2017 WL 3821473, at * 12 (“substantial evidence supports the ALJ's finding that lupus is not a medically determinable impairment, and therefore, not a severe impairment.”).

         Moreover, assuming arguendo that Plaintiff could establish the existence of a MDI of fibromyalgia, substantial evidence supports the ALJ's determination that Plaintiff's fibromyalgia is “non-severe.” In the Fifth Circuit, an impairment is considered non-severe if it is “‘a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.'” Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (quoting Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir.1985)) (internal quotation omitted). “The burden rests on the Plaintiff at Step Two, but that burden is de minimus.” Rowe, 2017 WL 3821473, at * 11 (citing Calderwood v. Colvin, Civil Action No. 14-495, 2016 WL 1077956, at * 9 (E.D. Tex. Mar. 18, 2016)). While the burden placed on Plaintiff is low, substantial evidence supports the ALJ's finding that despite a diagnosis of fibromyalgia, there is no indication that Plaintiff had any limitations stemming from that condition that would interfere with Plaintiff's ability to work. Although Plaintiff contends that the ALJ's finding that Plaintiff “has not had any targeted treatment for Fibromyalgia, or any consistent treatment with a rheumatologist” “is simply wrong and not supported by substantial evidence, ”[29] Plaintiff's medical records do not include consistent treatment with a rheumatologist.[30] Further, while Plaintiff argues that the ALJ erred in not recognizing Plaintiff's “repeated treatments with Cymbalta, a widely respected/acceptable treatment” for fibromyalgia, [31] Plaintiff's medical records do not include any limitations resulting from fibromyalgia and her medical records indicate that Plaintiff's complaints of pain were controlled via her medication.[32] See, Parms v. Colvin, Civil Action 14-330, 2015 WL 5176860, at * 5 (M.D. La. Sept. 3, 2015) (“the record shows that its resulting limitations occur rarely and are otherwise controlled by medication-Oxybutynin and Ditropan. Therefore, the ALJ's finding that Plaintiff's stress urinary incontinence was not a severe impairment at step 2 is supported by substantial evidence, as the medical evidence suggests this condition is well controlled by medication and is not limiting.”) (citing Sellers v. Barnhart, Civil Action 00-1115, 246 F.Supp.2d 1201, 1211 (M.D. Al. Sept. 2, 2002) (“[S]everity ... must be measured in terms of its effect.... [S]ubstantial evidence supports the ALJ's conclusion that the plaintiff's [conditions] are not severe impairments despite the medications prescribed, ” where none of the medical records “indicate functional limitations” caused by the conditions)); see also, Cagle v. Colvin, Civil Action No. H-12-0296, 2013 WL 2105473, at * 5 (S.D. Tex. May 14, 2013) (explaining that although treatment records for depression and anxiety were found in claimant's record, “what is not in the record…is evidence that [claimant's] depression and anxiety have had any affect [sic] on her ability to perform basic work activities.”).

         B. Substantial Evidence Supports the ALJ's RFC Determination

         As noted above, the ALJ determined that Plaintiff had the RFC “to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can occasionally climb ramps, stairs, ladders, ropes and scaffolds; frequently balance; and occasionally stoop, kneel, crouch and crawl. Additionally, she uses a cane to ambulate and balance;”[33] Plaintiff raises two issues with respect to this RFC. First, that the RFC does not adequately account for Plaintiff's use of a cane and second, that the RFC does not adequately account for Plaintiff's obesity.

         i. Plaintiff's Use of a Cane

         Plaintiff argues that although the ALJ recognized Plaintiff's use of a cane to ambulate and balance, he did not “describe/explain how the use of the cane factor unto [sic] her functional limitations.”[34] Plaintiff contends that her medical records establish the existence of her “lower extremity problems justifying continued use of a [sic] assistive walking device” and that the ALJ erred in failing to consider how Plaintiff's use of a cane could limit her ability to lift or carry items or balance.

         During the April 21, 2015 hearing, Plaintiff testified that she does not walk without her cane because of balancing issues due to neuropathy in her toes.[35] Although she testified that she had fallen “many times, ”[36] she also testified that she had not fallen “since I've had my cane.”[37] A review of Plaintiff's medical records includes treatment for only one fall, [38] and multiple records indicate that Plaintiff was able to ambulate with and without a cane.[39] Plaintiff testified that she is able to “run a load of clothes through the laundry, ” “pick up after” herself, and “put dishes in the dishwasher.”[40] During ...


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