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Nunn v. Berryhill

United States District Court, D. Oregon

May 16, 2018

JANET BETH NUNN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.

         Janet Beth Nunn (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f.[1] The Court has jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court reverses the Commissioner's decision and remands to the agency for the calculation and award of benefits.

         BACKGROUND

         Plaintiff was born in late July 1972, making her twenty-nine years old on July 1, 2002, the alleged disability onset date. (Tr. 15, 28.) She has “at least a high school education” and “no past relevant work.” (Tr. 28.) In her applications for benefits, Plaintiff alleges disability due to fibromyalgia, depression, anxiety, posttraumatic stress disorder (“PTSD”), and high cholesterol. (Tr. 46, 60, 418.)

         On May 10, 2002, approximately two months before the alleged onset date, Plaintiff visited the emergency room complaining of a headache and neck pain. Plaintiff reported that “[s]he was the restrained driver of a vehicle at a stop when a truck went in reverse and backed into her.” (Tr. 557.) Plaintiff was diagnosed with a cervical stain and given a prescription for hydrocodone.

         On April 28, 2003, Dr. Leonard Marcel (“Dr. Marcel”), a psychiatrist, noted that Plaintiff had been diagnosed with depression, that Plaintiff “continued to do well” on her dosage of Zoloft, that Plaintiff is the primary caregiver for two children because her husband was working a lot, that Plaintiff shows no objective signs of depression, and that Plaintiff's ten-year-old son “remains in residential [treatment] at Parry Center for psychosis-NOS, ADHD, and ODD.” (Tr. 555.)

         On October 19, 2004, Plaintiff visited Dr. Peter de Schweinitz (“Dr. de Schweinitz”), complaining of numbness and worsening bilateral wrist and hand pain. Dr. de Schweinitz diagnosed Plaintiff with bilateral carpal tunnel syndrome and advised Plaintiff that “she may end up needing to go to the orthopedic surgeon for a procedure if she does not rest her wrists.” (Tr. 566.)

         In a progress note dated July 17, 2006, Dr. Erling Oksenholt (“Dr. Oksenholt”) stated that Plaintiff has a history of suffering from pain in her feet and “here and there over her body.” (Tr. 590.) Dr. Oksenholt assessed that Plaintiff was suffering from “[p]ossible fibromyalgia” and obesity. (Tr. 591.)

         In a progress note dated May 14, 2007, Dr. Oksenholt stated that Plaintiff suffers from “generalized aching all over, ” and she “feels pain to palpation suggestive of fibromyalgia.” (Tr. 577.)

         On May 22, 2007, Plaintiff appeared for a counseling session with Sheila Crandles (“Crandles”), a licensed clinical social worker. Crandles noted that Plaintiff was “feeling better” after being prescribed medication for pain, “lim[p]ing less, ” and no longer using a cane. (Tr. 602.) Around that time, Crandles also noted that Plaintiff complained of pain that significantly impaired her ability to sleep and function, and expressed “frustration not having a clear medical diagnosis.” (Tr. 603.)

         On September 4, 2007, Dr. Paul Rethinger (“Dr. Rethinger”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 643-56.) Dr. Rethinger concluded that Plaintiff's impairments failed to meet or equal listing 12.04 (affective disorders).

         In a Physical Summary dated September 6, 2007, Dr. J. Scott Pritchard (“Dr. Pritchard”), a non-examining state agency physician, noted that he reviewed Plaintiff's medical records and found no evidence that Plaintiff was suffering from a severe medically determinable impairment between the alleged onset date (July 1, 2002) and the date last insured (December 31, 2006).[2](Tr. 657.)

         On December 16, 2007, Plaintiff visited the emergency room complaining of chronic pain. Plaintiff reported “a history of fibromyalgia” and stated that she did “not know what to do about the discomfort, ” her pain interfered with her ability to sleep, and she was under “a lot of stress lately, which often exacerbates her pain.” (Tr. 672.) Dr. Michael Halferty (“Dr. Halferty”) noted that stress “frequently worsens” Plaintiff's “symptoms of fibromyalgia, ” that Plaintiff's diagnoses include fibromyalgia, and that Plaintiff “was given instructions about fibromyalgia[.]” (Tr. 673; see also Tr. 693, noting on December 17, 2007, that Plaintiff suffers from “[l]ikely fibromyalgia” and a referral to “rheumatology or physiatry” would be considered “when she gets insurance again”).

         In a Physical Summary dated March 7, 2008, Dr. Mary Ann Westfall (“Dr. Westfall”), a non-examining state agency physician, found that there was insufficient evidence in the record to evaluate Plaintiff's disability claim between the alleged onset date and date last insured. (Tr. 660.)

         In a Mental Summary dated March 10, 2008, Dr. Bill Hennings (“Dr. Hennings”), a non-examining state agency psychologist, found that there was insufficient evidence in the record to evaluate Plaintiff's disability claim between the alleged onset date and date last insured. (Tr. 661.)

         On July 9, 2008, Plaintiff was referred to Dr. Laura Rung (“Dr. Rung”), a doctor of physical medicine at The Corvallis Clinic, regarding Plaintiff's chief complaints of “[c]hronic pain all over, [but in her] right hip mostly.” (Tr. 774.) Plaintiff reported that it had “been over 10 years since she was without pain, ” “[s]he does some limited housework” and “most of the cooking, ” and she had “only purchased groceries herself one time in the last 6 months” and “her pain exacerbated for the following 3 days.” (Tr. 774.) Dr. Rung's musculoskeletal examination revealed that Plaintiff tested positive for thirteen of eighteen fibromyalgia tender points, which caused Dr. Rung to opine that Plaintiff had been suffering from “[p]robable fibromyalgia.” (Tr. 775.)

         On July 23, 2008, Plaintiff visited Edward Taylor (“Taylor”), a physician's assistant, complaining of “a bad last few weeks” due to stress, sleeping poorly, and feeling “‘exhausted and miserable.'” (Tr. 685.) Taylor noted that he reviewed Dr. Rung's report, which indicated that Plaintiff suffers from “[p]robable fibromyalgia” and could benefit from, among other things, taking Doxepin, participating in “aerobic exercise” in a “warm pool, ” and losing weight. (Tr. 686.)

         On September 23, 2008, Plaintiff visited Scott Johnson (“Johnson”), a physician's assistant, complaining of back pain. Plaintiff denied “any incident of injury” and reported “a long history of fibromyalgia which [s]he believe[d] [her] pain [was] related to.” (Tr. 665.) Johnson prescribed tramadol because Plaintiff reported that she was allergic “to hydrocodone and oxycodone, ” and that in the past, tramadol helped “control her pain secondary to fibromyalgia.” (Tr. 666.)

         On October 13, 2010, Plaintiff “protectively filed an application” for SSI benefits.[3] (Tr. 12, 58.)

         On December 31, 2010, Plaintiff was referred to Dr. Brian Daskivich (“Dr. Daskivich”), a psychologist, for a consultative evaluation. (Tr. 819-24.) Based on his clinical interview, mental status examination, and review of limited records, Dr. Daskivich's primary diagnoses were somatoform disorder, anxiety disorder, depressive disorder “by history, ” and nicotine dependence, and he assigned a Global Assessment of Functioning (“GAF”) score of forty-five.[4](Tr. 824.)

         In his report, Dr. Daskivich also stated that (1) Plaintiff “described continuing to experience subjective pain but added, ‘it is now manageable-tolerable-but annoying-not completely consuming, '” (2) Plaintiff reported that her “favorite activities include reading, playing games, camping, and trail hiking, with some recent improvement in her enjoyment of these given that she described being in . . . less subjective pain since discontinuing [Simvastatin] in November 2010, ” which she felt “contributed to ‘overwhelming pain-all-consuming' that stopped about a week after she stopped taking Simvastatin, ” (3) “[t]here was nothing in [Plaintiff's] behavior today to suggest prominent anxiety or depression, ” and (4) “[t]here was nothing in [Plaintiff's] report to suggest a current or historical manic episode.” (Tr. 820-24.) Dr. Daskivich added that in terms of “reliability, a tendency towards symptom exaggeration is suspected in the context of somatization with poor insight, ” the “severity and chronicity of [Plaintiff's] limitations as reported by [her] and by her spouse appear to be well in excess of what would be expected given the information reviewed in medical records that accompanied the referral, ” “[t]here was nothing in [Plaintiff's] presentation today to suggest she is suffering from a major depressive episode, ” nicotine dependence is “a part of the diagnostic picture, ” Plaintiff is “preoccupied with an array of somatic complaints, ” Plaintiff is the “primary caregiver for [a] son with [a] disability, ” and Plaintiff's “primary limitation is that [she] seems to have fully embraced the sick role and has a steadfast belief that she is unable to reliably work due to her array of somatic complaints, ” which also limits her ability to engage in effective personal and social functioning. (Tr. 820-24.)

         On January 14, 2011, Dr. Kordell Kennemer (“Dr. Kennemer”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 51.) Based on his review of the medical record, Dr. Kennemer determined that Plaintiff's mental impairments did not meet or equal listings 12.06 (anxiety-related disorders) or 12.07 (somatoform disorders).

         Also on January 14, 2011, Dr. Kennemer completed a mental residual functional capacity assessment form, in which he rated Plaintiff's limitations in each of sixteen categories of mental ability. (Tr. 53-55.) Dr. Kennemer rated Plaintiff to be “[n]ot significantly limited” in twelve categories and “[m]oderately limited” in four categories. (Tr. 54-55.) Dr. Kennemer added that Plaintiff is capable of understanding, remembering, and carrying out short, simple, routine tasks and instructions, and working in the vicinity of others without exhibiting behavioral extremes. He also stated that somatization precludes working with the public or in one-on-one settings with co-workers.

         On January 25, 2011, Dr. Neal Berner (“Dr. Berner”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 52-53.) Based on his review of the record, Dr. Berner 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; and push and pull in accordance with her lifting and carrying restrictions. He also found no evidence of any postural, manipulative, visual, communicative, or environmental limitations.

         On August 10, 2011, Dr. Hennings completed a psychiatric review technique assessment, agreeing with Dr. Kennemer's finding that Plaintiff's mental impairments failed to satisfy listings 12.06 and 12.07. (Tr. 66-67.) That same day, Dr. Hennings completed a mental residual functional capacity assessment, agreeing with Dr. Kennemer's findings in all relevant respects. (Tr. 69-70.)

         Also on August 10, 2011, Dr. Martin Kehrli (“Dr. Kehrli”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 68-69.) Based on his review of the medical record, Dr. Kehrli agreed with Dr. Berner's findings in all relevant respects.

         On September 27, 2011, Dr. Tinko Zlatev (“Dr. Zlatev”), a radiologist, noted that a computed tomography (“CT”) scan of Plaintiff's pelvis and abdomen revealed, inter alia, “severe degenerative central spinal stenosis in the lumbar spine, worse at the level of L4-LR.” (Tr. 1078; see also Tr. 1028, “Spinal stenosis-severe noted on CT of Abd[omen] and Pelvis recently”).

         On July 23, 2012, Plaintiff visited Dr. Robert Kaye (“Dr. Kaye”) complaining of back pain. Plaintiff reported that she vomited due to the severity of her pain. Dr. Kaye observed that “[t]here is no one trigger point that could be injected that would help” Plaintiff's chronic pain. (Tr. 979.)

         On August 31, 2012, a magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine revealed “[m]ild degenerative disease at ¶ 5-S1 with mild disc bulging, ” “small contour abnormalities, probably representing small herniations, ” and “[m]ild degenerative changes at other levels.” (Tr. 974.)

         On September 21, 2012, Plaintiff presented for a follow-up visit with Dr. Kaye regarding her back pain. Plaintiff reported that prednisone had helped with pain in her upper back and shoulders, but she was still “having a difficult time [with] function[ing] and be[ing] mobile.” (Tr. 954.)

         On October 29, 2012, images of Plaintiff's cervical spine revealed “[m]ild degenerative discogenic changes at ¶ 5-C6 and C6-C7” and “a bridging anterior osteophyte at ¶ 5-C6.” (Tr. 937.)

         On March 18, 2013, Dr. Kaye noted that Plaintiff continued to suffer from back pain and was “using a cane for support” because she was having difficulty walking and raising her right leg. (Tr. 881.)

         In a letter dated April 10, 2013, Dr. Kaye noted that Plaintiff “was first seen in [his] clinic in March 2006, ” and he began treating Plaintiff in 2010 and has “seen her since then.” (Tr. 1074.) Dr. Kaye also stated that he is familiar with Plaintiff's “records . . . dating back to when she was first seen” in his clinic; Plaintiff had been diagnosed with chronic back pain and muscle spasm due to a lumbar strain at ¶ 5-S1, morbid obesity, anxiety, major depressive disorder, asthma, fatigue, “[f]ibromyalgia (diagnosed by Dr. Laura Rung, M.D. Corvallis Clinic on 7/9/08), ” and insomnia; Plaintiff's pain and fatigue “makes it difficult for her to function at home or in the workplace on a reliable basis”; Plaintiff “cannot work in a setting in which she would be exposed to any respiratory irritants”; and in his “medical opinion, ” Plaintiff would miss at least two days of work per month “or the equivalent [amount of time] either in additional breaks or reduced pace.” (Tr. 1074.) Dr. Kaye added that his “chart notes are not intended to explain [Plaintiff's] functional limitations, ” but his letter “has been developed for the express purpose of delineating functional limitations” and it is based on his “notes in combination with [his] overall diagnostic impression of [Plaintiff, ] as well as [his] objective clinic observations and, to the extent that they provide additional information, [Plaintiff's] subjective reports of symptoms.” (Tr. 1075.)

         On April 26, 2013, Plaintiff underwent a cardiac catheterization procedure, which revealed “[n]o significant coronary artery disease, ” “[m]ild-to-moderate pulmonary hypertension, ” and “[m]ild right-sided heart failure secondary to diastolic dysfunction.” (Tr. 1097.)

         In a treatment noted dated February 10, 2014, Dr. Kaye noted that Plaintiff's physical examination revealed that she tested positive for fourteen of eighteen fibromyalgia tender points. (Tr. 1125.)

         In a treatment note dated January 14, 2015, Dr. Stephen Dechter (“Dr. Dechter”), a doctor of osteopathic medicine at Corvallis Pain Management Clinic, noted that Plaintiff “was seen at the request of Dr. Kaye for a new patient consultation, ” Plaintiff stated that she has “had pain for many years, ” Plaintiff complained of “incapacitating pain” in her “low back, neck shoulder, hip, and leg, ” Plaintiff tested positive for eighteen of eighteen fibromyalgia tender points, and Plaintiff's exam was “consistent with fibromyalgia as [her] primary pain generator.” (Tr. 1189-91; see also Tr. 1186, noting in February 2015 that Plaintiff exhibited “greater than 12 trigger points to palpation, ” Tr. 1173, noting in May 2015 that Plaintiff exhibited “[g]reater than 12 trigger ...


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