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Miracle-Adams v. Berryhill

United States District Court, D. Oregon

April 9, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Christina Miracle-Adams (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons explained below, the Court affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.


         Plaintiff was born in March 1977, making her thirty-five years old on January 30, 2013, the day she filed her protective application.[1] (Tr. 30, 110.) Plaintiff has “at least a high school education” and no past relevant work. (Tr. 30.) In her application, Plaintiff alleged disability due to lupus, arthritis in her spine, hips, knees, and hands, nerve and back pain, and kidney problems. (Tr. 110.)

         On June 28, 2012, roughly six months before the protective filing date, Plaintiff visited Ineke Glavor (“Glavor”), a certified physician's assistant at Gladstone Primary Care. Plaintiff complained primarily about lower back pain. Glavor noted that Plaintiff “tested positive for cannabis prior to her app[ointment] with pain management, ” that Plaintiff received a copy of Glavor's office's “pain policy” and understood that Glavor was “unable to give her opioids, ” that Plaintiff “decline[d]” Glavor's offer to participate in physical therapy, and that Plaintiff was “unhappy that she will not be able to received opioids” from Gladstone Primary Care. (Tr. 881-82.)

         On March 15, 2013, Plaintiff visited Dr. Yen Nguyen (“Dr. Nguyen”), a doctor of osteopathic medicine at Kaiser Permanente. Plaintiff complained primarily about lower back pain that radiates down her legs, “esp[ecially] on the [right] side.” (Tr. 903.) Plaintiff reported that her pain worsened in recent months after she “missed 2 steps while getting out of [a] trailer” and lifted a twenty-five pound bag of potatoes “around Thanksgiving.” (Tr. 903.) Plaintiff also reported that Dilaudid, Vicodin, Percocet, and fentanyl patches had “worked well” in the past, and that Tylenol, Naproxen, ibuprofen, steroid injections, oral steroids, and physical therapy were not effective in treating her pain and/or caused unpleasant side effects. (Tr. 903.) Dr. Nguyen noted that Plaintiff exhibited full strength in her upper and lower extremities, that Plaintiff was “[a]ble to walk on tiptoes and heels but very slow, ” that straight leg tests were negative, that Plaintiff “refuse[d] to extend her back due to pain, ” but her range of motion was “otherwise full, ” and that Plaintiff “want[ed] some pain medication.” (Tr. 904.) Dr. Nguyen prescribed Meloxicam and Vicodin, but advised Plaintiff to use only Vicodin to treat severe pain. (Tr. 904.)

         On March 19, 2013, Plaintiff established care with Dr. Timothy Lan (“Dr. Lan”), a medical doctor at Kaiser Permanente. Plaintiff reported that she had a history of lupus and Crohn's disease, she suffers from lower back pain and “[g]ets shocks when she runs or walks, ” she did not “want to be on narcotics again” because they “were nasty, ” and she “does yoga.” (Tr. 908-09.) Dr. Lan noted that Plaintiff “has normal strength and reflexes, ” an MRI of Plaintiff's thoracic and lumbar spine revealed “nothing more than mild disc issues and degenerative changes, ” Plaintiff “possibly has a psychosomatic component to her discomfort, ” the etiology of Plaintiff's lower back pain and muscle spasms was “unclear, ” Plaintiff “likely does experience chronic, recurrent muscle strain/spasms leading to her back discomfort, ” and Plaintiff's joint aches and right hip discomfort “may be related” to her history of lupus and being obese. (Tr. 910-11.)

         Plaintiff returned to Kaiser Permanente on March 29, 2013, complaining about pain in her left “hip area.” (Tr. 913.) Dr. Christopher Calawa (“Calawa”) noted that “no labs” had confirmed Plaintiff's reported diagnosis of lupus, Plaintiff reportedly injured her hip “getting out of a bus” and walking “into a door handle at home, ” Meloxicam and hydrocodone provided only “marginal relief, ” Plaintiff reportedly “tolerated” Dilaudid and Percocet in the past, and Plaintiff felt that she needed a “stronger” pain medication. (Tr. 913.) Dr. Calawa prescribed Plaintiff Dilaudid to treat her pain, ordered lab tests, and provided a referral to physical therapy. (Tr. 914-15.)

         On April 7, 2013, Plaintiff visited Michael Hibbs (“Hibbs”), a physician's assistant at Kaiser Permanente. Plaintiff complained about “right hip and groin pain after she apparently misstepped off a small step stool earlier today, ” and she requested “more pain medication.” (Tr. 918.) Hibbs noted that x-rays of Plaintiff's pelvis and right hip showed “no bony abnormalities, ” and she was “able to do a straight leg raise.” (Tr. 918.) Hibbs also stated: “I gave her a small prescription for more Dilaudid, but she does need to follow up with her primary care doctor. Given the fact that she is new to our system, she has already received several narcotic medications. I would be somewhat cognizant of the fact that she might be a narcotic seeker in the future.” (Tr. 918.)

         On June 27, 2013, Plaintiff presented for a follow-up visit with Dr. Richard Varan (“Dr. Varan”), a medical doctor at Kaiser Permanente, regarding a recent injury to her “right shoulder and right chest wall area.” (Tr. 992.) Plaintiff reportedly suffered the injury while attempting “to move an entertainment center at her home.” (Tr. 992.) Dr. Varan noted that Plaintiff's x-rays were negative and her pulmonary exams were normal, that the reported “intensity” of Plaintiff's “pain is striking and difficult to explain, ” that Plaintiff “has demonstrated both unexpectedly intense pain from soft tissue injuries in the past as well as a strikingly poor response to strong narcotics, ” that Dr. Varan “agree[d] to even stronger use of Dilaudid at this time since [Plaintiff was] reporting incapacitating pain and ha[d] tolerated even more aggressive use of narcotics in the past, ” and that Plaintiff is “demonstrating a pattern that would make her a bad candidate for long-term chronic [narcotic] use and in fact she has tried this in the past for other pain issues without great benefit and [Plaintiff agreed] that we do not want to use narcotic long-term.” (Tr. 992.)

         In a treatment note dated August 8, 2013, Dr. Peggy Eurman (“Dr. Eurman”), a medical doctor at Kaiser Permanente, stated that she was “concerned” that Plaintiff's “complaints” are not consistent with “findings on exam, ” and that she “must consider drug seeking behavior[.]” (Tr. 1003.)

         On September 5, 2013, Plaintiff visited Dr. Christina Lee (“Dr. Lee”), a medical doctor at Kaiser Permanente, complaining of left ankle and foot pain that “began 2 years ago when she injured her ankle.” (Tr. 1016-17.) Plaintiff reported that her lupus had “been under good control” and that there was “no sign of active disease currently.” (Tr. 1016.) Plaintiff added that “she has a history of chronic low back pain which waxes and wanes, ” but had “been fairly stable.” (Tr. 1016.) Dr. Lee referred Plaintiff to a podiatrist and recommended that she increase her dose of gabapentin.

         On October 15, 2013, Plaintiff visited Dr. Gary Martel (“Dr. Martel”), a dentist at Kaiser Permanente, complaining of temporomandibular joint pain. Dr. Martel diagnosed Plaintiff with “[c]hronic and severe” temporomandibular “derangement” and a “[p]robable disc disorder.” (Tr. 1033.)

         On October 18, 2013, Plaintiff visited Dr. Eurman and reported that on October 9, 2013, “she walking into [a] playhouse after yard work and hit the top of her head on a low door frame and hyperextended her neck.” (Tr. 1035.) Dr. Eurman provided Plaintiff with Vicodin, discussed physical therapy, and noted that she would consider an MRI if Plaintiff's symptoms worsened. (Tr. 1035.)

         On October 29, 2013, Plaintiff visited Dr. Varan and reported that “she fell in the shower about a week ago and since then she has had very intense left-sided neck pain[.]” (Tr. 1049.) Dr. Varan noted that Plaintiff's examination “seemed pretty reassuring but she had significant limitation of range of motion testing from pain, ” and that the reported intensity of Plaintiff “pain is striking and conspicuous.” (Tr. 1049.) Dr. Varan also stated that Plaintiff's “current neck pain episode is in many respects similar to past episodes” of intense pain in “the aftermath of relatively modest injuries, ” he does not believe that Plaintiff is “a malingering or drug-seeking patient, ” but he does believe Plaintiff “suffers from some sort of centrally mediated neuropathic syndrome that intensifies pain in the aftermath of injury, ” “[i]n general, imaging has not identified significant local pathology, ” and the podiatry department also “seem[ed]” to believe Plaintiff's left foot pain is related to “centrally mediated pain and a neuropathic syndrome[.]” (Tr. 1050.)

         On November 18, 2013, Plaintiff visited Dr. Gary Martel (“Dr. Martel”), a doctor of dentistry surgery, complaining of “moderate to severe” temporomandibular joint pain. (Tr. 1717.) Dr. Martel refilled a prescription for Soma, advised Plaintiff to ice, set up an oral surgery consultation “in one week, ” and told Plaintiff that it was “important” to “keep this appointment.” (Tr. 1717.)

         In an Emergency Department note dated November 21, 2013, Dr. Mary Eschbach (“Dr. Eschbach”), an emergency room doctor at Kaiser, noted that she reviewed Plaintiff's prescription history on the Oregon Prescription Drug Monitoring Program (“OPDMP”) portal and it showed “at least 586 tablets of narcotic pain pills alone (not including sedatives, etc.) since 1/13.” (Tr. 1721.) Dr. Eschbach also noted “[m]ultiple providers” had “raised question[s]” about Plaintiff's “excessive use of narcotics, ” that Plaintiff reported suffering from Crohn's disease and lupus, but her records revealed that Kaiser specialists were not able to confirm these diagnoses, that Plaintiff's mandible “reduce[d] spontaneously without manipulation” when “she relaxed, ” and that Plaintiff and her husband “stormed out” of the emergency room “swearing” when Dr. Eschbach stated that Plaintiff's preliminary urine drug screen showed signs of THC. (Tr. 1721-22; see also Tr. 1726, indicating that Plaintiff spoke with Dr. Varan on November 27, 2013, reported that she “had a medical marijuana card for a long time” and “finds marijuana helpful for pain, ” and agreed to “stop using marijuana” after Dr. Varan informed Plaintiff that “DEA regulations specify [that] patients prescribed controlled substances such as narcotics should not use illegal drugs such as marijuana even in states with regulations permitting marijuana for medical use”).

         On November 27, 2013, Dr. William Backlund (“Dr. Backlund”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 116-18.) Based on his review of the record, Dr. Backlund concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk about six hours in an eight-hour workday; push and pull in accordance with her lifting and carrying restrictions; frequently balance and stoop; and occasionally crawl, crouch, kneel, and climb. Dr. Backlund also found that Plaintiff does not suffer from manipulative, visual, communicative, or environmental limitations.

         On January 3, 2014, Dr. Varan informed Plaintiff that she was “overdue for a repeat of her urine drug screen.” (Tr. 1728.)

         On January 29, 2014, Plaintiff visited the Providence Portland Medical Center Emergency Department, complaining of jaw pain and dislocation. Plaintiff reported that “she has chronic, recurrent dislocations for the past 17 years after a traumatic injury, ” her jaw dislocates “about every 2 months, ” and “[t]onight she was yelling at her daughter when it occurred.” (Tr. 1147.) Dr. Heather Prouty (“Dr. Prouty”) noted that Plaintiff “underwent deep sedation” and she “was able to easily reduce the jaw, ” and Plaintiff was prescribed a narcotic pain medication. (Tr. 1148-49.)

         On February 3, 2014, Dr. Varan and Plaintiff discussed the fact that she “must choose between marijuana or narcotics for the management of her chronic health conditions.” (Tr. 1729.) Plaintiff told Dr. Varan “narcotics were never terribly helpful for her in her opinion and she would rather continue marijuana at this point.” (Tr. 1729; but cf. Tr. 1738, reporting on June 17, 2015, that Plaintiff's back pain “is impossible to treat without narcotics”). Dr. Varan noted that Kaiser would “not be planning further narcotic therapy for non-acute management of pain.” (Tr. 1729.)

         On February 6, 2014, Plaintiff visited the Providence Portland Medical Center Emergency Department, complaining of jaw pain. Plaintiff reported that she “sneezed this evening and subsequently dislocated her jaw.” (Tr. 1119.) In his treatment note, Dr. Jackson Smood (“Dr. Smood”) stated that Plaintiff “was sedated with intravenous propofol and her jaw dislocation easily reduced, ” and she was provided with a prescription for oxycodone. (Tr. 1120-21.)

         On March 4, 2014, Plaintiff visited the Providence Portland Medical Center Emergency Department, complaining of jaw pain. Plaintiff reported that her jaw dislocated “when she sneezed” during an evaluation with her primary care physician at Providence Gateway. (Tr. 1305, 1307.) Dr. Ryan Brevard (“Dr. Brevard”) noted that Plaintiff was sedated with propofol and “her jaw reduced without any manipulation for the most part, ” and that Plaintiff was “given IV Dilaudid to help her with discomfort.” (Tr. 1307-08.) Dr. Brevard also noted that Plaintiff complained that “her jaw was not reduced” immediately following the procedure, but she refused Dr. Brevard's request to obtain an x-ray, stating “‘I'll just fucking go home and it'll just go back in [and] come out as it always does.'” (Tr. 1308.) Dr. Brevard found Plaintiff's response “perplex[ing], ” which “raise[d] concern[s] that maybe [Plaintiff] is manipulating [her providers] and that [her jaw] wasn't dislocated.” (Tr. 1308.) Dr. Brevard added that Plaintiff later apologized for her behavior and agreed to an x-ray, but “stated that she feels like her jaw went back into place spontaneously.” (Tr. 1308.) The x-ray revealed “no obvious dislocation.” (Tr. 1308.)

         On March 17, 2014, Plaintiff visited the Providence Portland Medical Center Emergency Department, complaining of jaw pain. Plaintiff reported that she had a “nontraumatic dislocation [one] hour prior to arrival.” (Tr. 1277.) Dr. Aaron Burchfield (“Dr. Burchfield”) noted that he reviewed Plaintiff's medical records, that there was “a question of secondary gain, ” that “[c]linically [it was] questionable whether she had a dislocation, ” that an x-ray showed “a questionable dislocation/subluxation of the left, ” that Plaintiff was sedated and her jaw reduced, that Plaintiff “did request pain medication, ” and that Dr. Burchfield did not treat Plaintiff with pain medication because her physician “was reluctant to give [her] opioids[.]” (Tr. 1279.) Dr. Burchfield added that Plaintiff's “behavior is strongly suspicious for secondary gain/drug-seeking, ” and that Plaintiff provided an inaccurate report about following up with a “Dr. Bell.” (Tr. 1279; see also Tr. 1308, stating that Dr. Bell works in an “oromaxillofacial surgery” department).

         On April 10, 2014, Plaintiff underwent temporomandibular joint arthroplasty. (Tr. 1362, 1447.) In a Discharge Summary dated April 11, 2014, Dr. Michael Han (“Dr. Han”), a doctor of medical dentistry, stated that Plaintiff had been diagnosed with bilateral temporomandibular joint “derangement and myofascial pain, ” underwent temporomandibular joint “disc repositioning and Botox injections, ” and was discharged in good condition. (Tr. 1447-48; see also Tr. 1463, “Operative intervention was deemed . . . to improve mandibular range of motion and overall function.”).

         In an Emergency Department note dated August 17, 2014, Dr. Rodney Thompson (“Dr. Thompson”) stated that he “received a phone call from an outpatient pharmacy” about Plaintiff, that Plaintiff had received an oxycodone prescription on August 15, even though she informed Dr. Thompson the next day that she had “been taking only ibuprofen and Tylenol for pain, ” that Plaintiff “became quite upset and hostile” when Dr. Thompson “pointed out the frequency of her ER visits and concerns regarding narcotic usage” and “left a hostile message on the dry erase board, ” and that Dr. Thompson instructed the pharmacy to cancel “the hydrocodone prescription provided yesterday, ” given the “irregularities regarding” Plaintiff's “reporting of narcotic usage.” (Tr. 1672.)

         On January 4, 2015, Plaintiff visited the Providence Portland Medical Center Emergency Department, complaining of right shoulder and upper back pain. Plaintiff reported that “she was helping to move some heavy wood 2 and [a] half weeks ago” when “[s]omebody that was helping lift lost control and most weight went to [Plaintiff] causing pain in her right shoulder.” (Tr. 1621.) Tracy Shultz (“Shultz”), a family nurse practitioner, noted that there were “no clinical signs of infection, deformity, or dislocation, ” that Plaintiff “has had multiple prescriptions through the Oregon prescription drug monitoring site, ” that Plaintiff's exam was consistent with “muscle strain, ” that Plaintiff was advised that Shultz “could give her some pain medication here, ” but Shultz “recommended she continue with ibuprofen at home, ” and that Plaintiff responded by “elop[ing] from the department” without pain medication or discharge instructions. (Tr. 1623.)

         On October 6, 2015, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 51-76.) Plaintiff testified that she has a General Equivalency Diploma, worked as a Certified Nursing Assistant as a teenager, lives with her husband and four children, injured her jaw in 2001 or 2002 while playing with her daughter, suffers from chronic jaw dislocations, first underwent jaw surgery “in early . . . 2002, ” and continues to experience pain when speaking, “shocks into the side of [her] face, ” and constant headaches. (Tr. 61-68.) Plaintiff also testified that she needs to use a power wheelchair “at times” because she ruptured “some of the tendons” and/or ligaments in her left foot in 2006, that she suffers from lower back pain that causes tingling and numbness in her legs after sitting for extended periods of time, that her carpal tunnel syndrome impacts her ability to ...

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