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Eubanks v. Berryhill

United States District Court, S.D. Mississippi, Southern Division

July 20, 2018

DANA K. EUBANKS PLAINTIFF
v.
NANCY A. BERRYHILL DEFENDANT

          OPINION AND ORDER

          MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Dana K. Eubanks brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security Administration denying her claim for disability insurance benefits. Having reviewed the parties' submissions, the record, and the applicable law, the Court finds that the Commissioner's final decision should be AFFIRMED and this action should be DISMISSED.

         PROCEDURAL HISTORY

         On September 20, 2013, Plaintiff applied for disability insurance benefits, alleging disability due to obesity, fibromyalgia, diabetes, high blood pressure, joint and foot pain, herpes labialis (cold sores), menopause syndrome, psoriasis, anxiety, and depression. (Administrative Record [6] at 154-55; 192). After the agency denied Plaintiff's claim, an Administrative Law Judge (“ALJ”) held a hearing, and on March 28, 2016, the ALJ issued a decision finding that Plaintiff was not disabled. ([6] at 15-28; 71-104). Plaintiff appealed the ALJ's decision and submitted additional evidence to the Appeals Council. On March 29, 2017, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. ([6] at 5-8). Plaintiff now seeks judicial review in this Court under 42 U.S.C. § 405(g).

         ADMINISTRATIVE LAW JUDGE'S DECISION

         In her March 28, 2016, decision, the ALJ applied the five-step sequential analysis set forth in 20 C.F.R. § 404.1520(b)-(f)[1] and determined that Plaintiff was not disabled. At step one, the ALJ noted that the Plaintiff had worked after her alleged disability onset date-February 1, 2010. The ALJ specifically noted that Plaintiff, a licensed practical nurse, worked at a hospital in 2011, 2012, and 2013, but also noted that this work activity did not rise to the level of substantial gainful activity. Ultimately, the ALJ did not make “a finding as to whether or for what period, the claimant engaged in substantial gainful activity since the alleged onset date because a determination addressing the entire period at issue may be reached at a later step in the sequential evaluation process.” ([6] at 17).

         At step two, the ALJ found that Plaintiff had the following severe impairment: generalized osteoarthritis. The ALJ found that Plaintiff's other medically determinable impairments (diabetes mellitus, hypertension, obesity, and depression) were not severe. Additionally, the ALJ found that fibromyalgia was not one of Plaintiff's medically determinable impairments. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ([6] at 19-20).

         The ALJ then examined the record and determined that Plaintiff had the residual functional capacity (“RFC”)[2] to “perform sedentary work as defined in 20 CFR 404.1567(a)[3]except the claimant must be able to sit or stand alternatively at will every 45 minutes, provided she would not be off task more that 10% of the work period; should avoid kneeling or squatting; and should never be exposed to unprotected heights, hazardous machinery and uneven terrain.” ([6] at 20). At step four, the ALJ found that Plaintiff could not perform any past relevant work. At step five, however, the ALJ found that jobs existed in significant numbers in the national economy that Plaintiff could perform. Accordingly, the ALJ found that Plaintiff was not disabled. ([6] at 26-27).

         APPEALS COUNCIL'S DECISION

         Plaintiff appealed the ALJ's decision and submitted additional evidence to the Appeals Council, which had not been presented to the ALJ.[4] Specifically, Plaintiff submitted notes from a medical examination performed on April 4, 2016. ([6] at 540-43). The Appeals Council noted that the ALJ rendered a decision in Plaintiff's case on March 28, 2016. The Appeals Council held that the new evidence concerned a later time and did not affect the decision about whether Plaintiff was disabled prior to March 28, 2016. Accordingly, the Appeals Council denied Plaintiff's request for review.

         STANDARD OF REVIEW

         This Court's review of the Commissioner's decision is limited to determining whether there is substantial evidence to support the Commissioner's findings and whether the correct legal standards were applied in evaluating the evidence. Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is “more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). To be substantial, the evidence “must do more than create a suspicion of the existence of the fact to be established.” Id. (citations omitted).

         However, “[a] finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (internal citations and quotations omitted). Conflicts in the evidence are for the Commissioner, not the courts, to resolve. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). A court may not re-weigh the evidence, try the issues de novo, or substitute its judgment for the Commissioner's, “even if the evidence preponderates against” the Commissioner's decision. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). If the decision is supported by substantial evidence, it is conclusive and must be affirmed. Selders, 914 F.2d at 617. Moreover, “‘[p]rocedural perfection in administrative proceedings is not required' as long as ‘the substantial rights of a party have not been affected.'” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988)).

         ANALYSIS

         Plaintiff raises four issues for review: (1) whether the ALJ erred by failing to properly evaluate the claimant's fibromyalgia in conformity with SSR 12-2p; (2) whether the Appeals Council erred by failing to properly consider additional evidence; (3) whether the ALJ erred in evaluating opinion evidence, resulting in the residual functional capacity not being supported by substantial evidence; and (4) whether the ALJ erred in evaluating obesity.

         Issue 1: Whether the ALJ Erred by Failing to Properly Evaluate the Claimant's Fibromyalgia in Conformity with SSR 12-2p.

         Plaintiff argues that the ALJ failed to properly evaluate her fibromyalgia when the ALJ found that fibromyalgia was not one of Plaintiff's medically determinable impairments. A medically determinable impairment is defined as follows:

[A]n impairment which has demonstrable anatomical, physiological or psychological abnormalities. Such abnormalities are medically determinable if they manifest themselves through medical evidence consisting of symptoms, signs, and laboratory findings. Symptoms alone, however, do not constitute a basis for finding a medically determinable impairment.

SSR 82-58.

         The SSA regulations provide guidance for determining whether a claimant's fibromyalgia qualifies as a medically determinable impairment. A claimant must show: (1) a history of widespread pain that has persisted for more than three months; (2) at least eleven positive tender points during physical examination or repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and (3) evidence that other disorders that could have caused these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. See SSR 12-2p. Plaintiff bears the burden of establishing that she suffers from a medically determinable impairment that renders her disabled. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).

         In this case, the ALJ noted the requirements of SSR 12-2p and determined that Plaintiff “failed to submit medical evidence consisting of signs, symptoms, and laboratory findings to establish the existence of fibromyalgia as one of her medically determinable impairments.” The ALJ explained as follows:

Claimant testified she was diagnosed w[ith] fibromyalgia in 1995. There is no objective medical evidence of record to support or substantiate the diagnosis (See 1-13F). Contained in the medical evidence of record at 6F are lab results for an ANA Comprehensive Panel. This test is used to help determine whether someone has an autoimmune disorder, such as lupus or rheumatoid arthritis BUT the results alone cannot support a specific diagnosis. Fibromyalgia is not an autoimmune disorder. These results alone do not establish fibromyalgia as required by SSR 12-2p. Furthermore, the claimant worked at the SGA level for over ten years after her alleged diagnosis (See 3D).

([6] at 19-20).

         First, Plaintiff argues that the ALJ failed to properly develop the record. An ALJ has a duty “to develop the facts fully and fairly relating to an applicant's claim for disability benefits.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). This duty, however, can reasonably require only so much. “It is not unreasonable to require the claimant, who is in a better position to provide information about his medical condition, to do so.” Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). “It is axiomatic that the claimant bears the burden of supplying adequate records and evidence to prove their claim of disability.” Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004).

         The ALJ should further develop the record when there is insufficient evidence to make a disability determination. See Cook v. Astrue, 2010 WL 4628732, at *5 (N.D. Tex. Nov. 15, 2010); Nelson v. Comm'r of Soc. Sec., 2015 WL 8063850, at *6 (W.D. La. Sept. 2, 2015). However, “there must be insufficient evidence to make an informed determination, not a favorable one.” Oderbert v. Barnhart, 413 F.Supp.2d 800, 805 (E.D. Tex. 2006). In this case, the record contains sufficient evidence to support the ALJ's determination. The ALJ noted that Plaintiff's medical records “document twenty visits with her treating source, Dr. [Harilal] Patel between January 2012 and December 2013[, and] [a]t her visits, rarely were any abnormal musculoskeletal findings documented.” ([6] at 22). The ALJ stated that Plaintiff “has not received the type of medical care one would expect for an individual with her allegedly disabling pain and other symptoms.” ([6] at 23). The ALJ pointed out that the medical records do not show “muscle atrophy, which would be expected in an individual with pain so severe as to alter the use of muscle groups to avoid pain.” ([6] at 24). The ALJ also cited the findings of consultative examiner, Dr. Robert Cobb, who found only mild tenderness in Plaintiff's neck, trapezius, and back muscles. ([6] at 21, 402-03).

         Plaintiff also argues that she reported signs and symptoms of fibromyalgia and received treatment for fibromyalgia. Plaintiff points to records which list fibromyalgia in her medical history and show that she received treatment for fibromyalgia. An alleged diagnosis and limited treatment of fibromyalgia does not meet the requirements of SSR 12-2p. Although certain evidence supports Plaintiff's assertions, this Court does not resolve conflicts in the evidence, and substantial evidence supports the ALJ's decision. Tebyanian v. Colvin, 2015 WL 4475762, at *8 (N.D. Tex. July 22, 2015); Mayeux v. Comm'r of Soc. Sec., 2018 WL 297588, at *4 (M.D. La. Jan. 4, 2018).

         Additionally, even if the ALJ committed error by determining that fibromyalgia was not one of Plaintiff's medically determinable impairments, such error was harmless. After making her determination, the ALJ stated: “Nevertheless, should the impairment be deemed medically determinable, the placement of the claimant at he sedentary exertional demand level accommodates any possible limitations associated with her alleged fibromyalgia.” ([6] at 20). Because the ALJ considered Plaintiff's symptoms, including those associated with fibromyalgia, in formulating Plaintiff's RFC, any error committed at step two was harmless. See Enriquez v. Comm'r of Soc. Sec., 2018 WL 2293967, at *3 (W.D. Tex. May 18, 2018); Trego v. Berryhill, 2017 WL 9473083, at *3 (N.D. Tex. Apr. 24, 2017).

         Issue 2: Whether the Appeals Council Erred by Failing to Properly Consider Additional Evidence

         After the ALJ issued her decision, Plaintiff submitted additional evidence to the Appeals Council, which was not before the ALJ. The additional evidence consisted of notes from a medical examination performed on April 4, 2016. A registered nurse and a treating physician, Dr. Harilal Patel, completed this medical record. The medical record states that Plaintiff ...


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