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Jenny S. v. Berryhill

United States District Court, D. Oregon, Portland Division

November 4, 2019

JENNY S.[1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Jenny S. (“Plaintiff”) filed this action under section 205(g) of the Social Security Act (the “Act”) as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security (the “Commissioner”) who denied her applications for social security disability insurance benefits (“DIB”) and supplemental security income (“SSI”) (collectively “Benefits”). The court finds the fibromyalgia diagnosis did not meet the requisite criteria, and the ALJ's discounting of Plaintiff's testimony and the limitations identified by her treating provider was supported by substantial evidence and not in error. Accordingly, the Commissioner's final decision is affirmed.

         Procedural Background

         On or about September 17, 2014, Plaintiff filed applications for Benefits alleging an onset date of September 1, 2013. The applications were denied initially, on reconsideration, and by Barry Robinson, the Administrative Law Judge (the “ALJ”), after a hearing. The Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner.

         Factual Background

         Plaintiff is forty-three years old. She graduated from high school and completed some college courses. Her past relevant work experience includes child-care worker and general office clerk. Plaintiff has not been involved in a successful work attempt since June 2009. She originally alleged disability because of degenerative disc disease, posterior disc osteophyte complex, severe right and moderate left foraminal narrowing, TMJ arthritis, and insulin resistance and later added lumbar and knee osteoarthritis, lumbar stenosis, S1 radiculopathy, lumbosacral neuritis, lumbar bone spurs, degenerative pubic symphysis, fever of unknown origin, and fibromyalgia. Plaintiff last met the insured status requirements entitling her to DIB on December 31, 2014.

         I. Testimony

         At the time she filed for Benefits, Plaintiff lived with her husband (who was also applying for disability benefits based on pancreatic stones, chronic pancreatitis, and dumping syndrome), mother, two young children, and a dog. (Tr. of Social Security Administrative R., ECF No. 15 (“Admin. R.”), at 54, 251, 400.) Plaintiff complained of daily “moderate, severe, and excruciating” back pain, along with numbness, pain, and tingling in her legs, due to degenerative disc disease, bone spurs, and left neural foraminal narrowing at ¶ 5-S1. (Admin. R. at 251.) Plaintiff worked as a “secretary” until mid-2009 when she suffered an “emotional breakdown” and was terminated. (Admin. R. at 43.) Plaintiff unsuccessfully[2] searched for other employment until February 2011, when she gave birth to her first daughter and ceased seeking employment. (Admin. R. at 45.)

         In a Function Report Plaintiff completed on November 12, 2014, she described her daily activities as follows:

Usually wake up, go to bathroom, drink coffee, try to get room tidied, which I have to take frequent breaks and tends to take all day. As well as caring for my 2 daughters (with the help of my husband). Daughters are age 2½ and 3½ years old. Try to take shower on a daily basis. Take frequent rests. Try to get through each day. Try to go to sleep around 12:30 a.m. And usually takes a couple of hours to fall asleep.

(Admin. R. at 252.) She reported she was able to spend thirty minutes to an hour preparing meals for her family, but often reverted to frozen dinners due to pain. (Admin. R. at 253.) She did laundry, with assistance from her husband carrying the loads, and washed the dishes about four times a week. (Admin. R. at 254.) Her mother helped with the rest of the housework and yardwork. (Admin. R. at 254.)

         Plaintiff drove a car, shopped for food and toiletries two-to-three times a month using the shopping cart for support most of the time, and occasionally took her daughters to the park for brief periods. (Admin. R. at 254.) She could manage her personal care but sometimes needed help putting on underwear and pants and needed reminders to take her medications. (Admin. R. at 253.) It hurt to take a shower and shave her legs, and she had occasional incontinence. (Admin. R. at 253.) Plaintiff visited friends and family, and attended church twice a year, but was constantly irritable and angered easily as a result of her pain. (Admin. R. at 255-56.) She had difficulty sleeping, tossed and turned all night trying to find a comfortable position, and suffered from radiating pain, numbness, and burning “spots” in both legs. (Admin. R. at 252.)

         Plaintiff reported she was unable to lift more than a gallon of water, bend, squat, stand, reach, sit, walk, kneel, or climb stairs without pain. (Admin. R. at 256.) She occasionally tried to walk about half a mile but was in pain the whole time. (Admin. R. at 256.) She was easily distracted, could pay attention for only five minutes, frequently forgot, and did not handle stress well. (Admin. R. at 256.) Prior to her back issues, Plaintiff did housework and yardwork; rode horses and “quads”; hiked; and attended church regularly. (Admin. R. at 252.)

         In early 2015, Plaintiff reported additional limitations as of October 2014, which included “lumbar and knee osteoarthritis, lumbar stenosis, S1 radiculopathy, lumbosacral neuritis, lumbar bone spurs, degenerative pubic symphysis, fever of unknown origin, and fibromyalgia” to her claim. (Admin. R. at 273.) Plaintiff indicated she was unable to walk due to pain in her back and knees, had recently fallen when her knees “gave out, ” and needed to use a cane to climb stairs. (Admin. R. at 273-74.) She also stated she was unable to stand or sit for long periods of time, frequently needed to lie down and nap, had pain with exercise, and was unable to lift anything. (Admin. R. at 274, 77.) She subsequently reported that in June 2015, her knee and back pain worsened dramatically, she wore a knee brace at night to get some relief from her pain, and she had to use knee braces and a cane to walk long distances. (Admin. R. at 283, 286.)

         At the May 22, 2017 hearing, Plaintiff testified she lived in a fifth-wheel trailer with her disabled husband and her two children, ages five and six. (Admin. R. at 43.) She was normally at a pain level of six or seven and was able to reduce her pain by reclining, which took a “little bit of the pressure off.” (Admin. R. at 56.) Plaintiff said she needed to lie down three-to-seven times a day for twenty minutes to two hours. (Admin. R. at 56.) She suffered from low-grade fevers one to five days a week that resulted in extreme fatigue, but the cause of the fevers remained undiagnosed. (Admin. R. at 57-58.) Plaintiff identified Sarah Roberson, F.N.P. (“Roberson”), as a medical professional who understands Plaintiff's overall problems “very” well and provided referrals to assist Plaintiff in obtaining a diagnosis. (Admin. R. at 52-53.)

         Plaintiff stated she was able to do light housework, such as wash dishes, cook, clean, and do laundry, but regularly needed to sit or lie down due to pain and was “sometimes” unable to get everything done. (Admin. R. at 51, 54.) Her husband assisted with the housework “a little bit.” (Admin. R. at 54.) Plaintiff homeschooled her children for short periods totaling an hour a day because it was easier than having to get up and take them to school due to her fatigue and back issues. (Admin. R. at 43, 51.) She drove only once or twice a week as driving resulted in back pain and sciatic pain on her right side. (Admin. R. at 54.)

         Plaintiff reported she was unable to lift and carry more than five pounds and, as a result, had to give up lifting and carrying her children once they were able to walk. (Admin. R. at 54-55.) She was able to sit for twenty or thirty minutes before needing to stand but was constantly adjusting to alleviate the pain. (Admin. R. at 55.) Similarly, she was unable to stand more than twenty minutes without sitting. (Admin. R. at 55.) She could walk a block or two but used a cane for balance issues, back pain, and support. (Admin. R. at 55.) Plaintiff was 5' 6'' and weighed three-hundred pounds but did not believe her weight created any problem with bending over, moving, or otherwise functioning as she has been heavy all of her life and had only recently experienced back pain. (Admin. R. at 55, 59.)

         II. Medical Evidence

         Plaintiff initiated treatment with Rachel Orozco, M.D., on March 14, 2013, complaining of asthma and allergies. (Admin. R. at 327.) Plaintiff informed Dr. Orozco she had a history of fibromyalgia but discontinued prescribed medications due to negative side effects. (Admin. R. at 327.) Additionally, Plaintiff complained of severe tailbone pain which persisted after physical therapy the previous year, but denied exercise intolerance, leg numbness or weakness, or bowel/bladder incontinence. (Admin. R. at 328.) An x-ray revealed normal alignment of the sacrum and coccyx, no fractures or sublaxations, intact sacral neural foramina, and symmetric sacroiliac joints. (Admin. R. at 339.) Dr. Orozco noted as normal Plaintiff's ambulation, motor strength and tone, extremity movement, gait and station, and memory, and Plaintiff appeared active and alert with normal mood and effect and good judgment. (Admin. R. at 328.) Dr. Orozco included morbid obesity, disorders of the coccyx, and fibromyalgia in a list of Plaintiff's problems, the latter two apparently based solely on Plaintiff's reports. (Admin. R. at 326.) A stress test performed on April 4, 2013, revealed Plaintiff was able to exercise for slightly more than six minutes and stopped due to shortness of breath, which was characterized as “moderately below-average exercise capacity for both age and gender.” (Admin. R. at 332-33.)

         In the fall of 2013, Plaintiff sought additional care from Dr. Orozco on various occasions because she was “just not feeling good, ” had been running a mild fever for several months, and was suffering from fatigue, lethargy, hair loss, frequent urination, water retention, nausea, and decreased appetite, as well as occasional diarrhea and ear, throat, and abdominal pain. (Admin. R. at 316, 322, 324-25.) During this period, Plaintiff denied exercise intolerance and Dr. Orozco consistently reported Plaintiff's ambulation, motor strength and tone, extremity movement, and gait and station were normal. (Admin. R. at 316, 319, 322, 325.) Numerous lab tests ordered by Dr. Orozco and performed between August 6, 2013, and September 16, 2013, were inconclusive and failed to reveal a possible cause for Plaintiff's complaints. (Admin. R. 351-64.)

         In December 2013, Plaintiff began treatment with Roberson for intermittent fevers suffered during the prior year, fatigue over the previous five years, muscle aches, headaches, and difficulty sleeping. (Admin. R. at 413.) Plaintiff complained of joint pain and swelling, muscle pain, arthritis, weakness, and memory loss. (Admin. R. at 413.) Plaintiff informed Roberson she had been diagnosed with fibromyalgia and brain cysts in 2011 after the birth of her first child. (Admin. R. at 413.) On examination, Roberson found Plaintiff to have a stable, balanced gait, normal posture and range of movement in her upper and lower extremities, no major joint swelling or redness, and no gross abnormalities. (Admin. R. at 414.) Roberson ordered a variety of labs seeking to identify the cause for Plaintiff's fever and fatigue and evaluate a possible connection between Plaintiff's fibromyalgia and adrenal fatigue. (Admin. R. at 415.) The lab tests revealed slightly low Vitamin D and HDL levels, high levels of insulin, glucose and TG, and normal levels of LDL, AM cortisol, TSH, and free T3 and T4. (Admin. R. at 410.)

         On December 30, 2013, Plaintiff clarified her fevers generally run below 100 degrees, occur in the evening two-to-three times a week, and resolve during the night. (Admin. R. at 410.) Roberson prescribed Metformin to treat Plaintiff's insulin resistance and opined Plaintiff's fatigue could be related to a diseased gall bladder, fibromyalgia, or the fevers. (Admin. R. at 407, 409, 412.) Over the next four months, Roberson or one of her associates referred Plaintiff to an infectious disease specialist, an endocrinologist, and an ENT, and ordered an ultrasound of Plaintiff's head, neck, and thyroid to evaluate for a tonsillar abscess. (Admin. R. at 403, 404, 407, 409.) The CT imaging revealed “scattered cervical lymph nodes but no lymphadenopathy or mass” but failed to rule out a parathyroid adenoma. (Admin. R. at 424.)

         On May 8, 2014, Plaintiff returned to Roberson with complaints of nightly fevers of about ninety-nine degrees, with body pains, fatigue, and feeling sick throughout the day and worsening at night. (Admin. R. at 400.) Plaintiff reported she was under increased stress due to her husband's disability and a need to move into her mother's house. (Admin. R. at 400.) Plaintiff requested “paperwork” from Roberson recommending Plaintiff not work to aid Plaintiff in obtaining temporary cash assistance. (Admin. R. at 400.) Despite Plaintiff's representations she was suffering from joint pains and weakness, Roberson found Plaintiff's gait to be stable and balanced, and her posture and range of motion normal with no gross abnormalities or joint swelling or redness. (Admin. R. at 401.) Roberson directed Plaintiff to continue with her Metformin, reviewed Plaintiff's vitamins, encouraged her to engage in healthy eating and be as active as possible, and ordered a chest x-ray in addition to the CT scan ordered by the ENT. (Admin. R. at 402.)

         Plaintiff's primary complaints to Roberson on June 19, 2014, were “severe hip and pelvic/back pain all the time that she works through on a daily basis” with the assistance of a Norco prescription that helps her sleep when the pain is excessive. (Admin. R. at 396.) Plaintiff reported her stress was making her back and hip pain worse, and she was experiencing bad spasms in her right neck and back. (Admin. R. at 396.) Chiropractic treatment alleviated some of her issues, but she was unable to afford to continue such care. (Admin. R. at 396.) Roberson observed tenderness and tightness in Plaintiff's right upper shoulder and to the neck area of the trapezius, tenderness in her general lower back, and a palpable strip of spasm in the middle of her back on the right side. (Admin. R. at 397.) She refilled Plaintiff's Norco prescription and prescribed a muscle relaxant for her strained muscle as well as generalized joint aches and pains. (Admin. R. at 398.)

         On July 22, 2014, Roberson prescribed a commode “for use at bedside during intermittent flares of severe pelvic pain and lumbar muscle spasms” and bladder urgency. (Admin. R. at 389, 394.) Later that month, Roberson opined Plaintiff's fatigue, abdominal pain, back pain, and weakness could be caused by a Candida infection. (Admin. R. at 389.) Plaintiff reported she had previously been diagnosed with this condition but failed to follow the prescribed protocol. (Admin. R. at 389, 425.) Roberson placed Plaintiff on a restricted diet, and prescribed Diflucan. (Admin. R. at 384-87.) Plaintiff reported a slight improvement in her symptoms, particularly her fatigue, when she strictly followed the Candida cleanse diet and used her medication, but noted finances prevented her from doing this consistently. (Admin. R. at 371, 373, 381.)

         In late August 2014, Patrick R. Hungerford, M.D. diagnosed Plaintiff with mild hyperparathyroidism, confirming the possible parathyroid adenoma noted in the CT imaging, but did not believe “that most, if any, of her many symptoms noted above have any relationship to her parathyroid/calcium disorder and as such, I would not expect her to necessarily see any of them resolve after surgery.” (Admin. R. at 422, 429.) The symptoms Dr. Hungerford referred to were identified as “fever-like symptoms for the past 1.5 years” and “chronic back pain, numbness along neck and arms, ankle pain, chest pain, hair loss, [and] nausea.” (Admin. R. at 419.) X-rays taken on September 5, 2014, revealed “moderate degenerative changes at ¶ 5-S1 with a posterior disc osteophyte complex caused severe right and moderate left neural foraminal narrowing.” (Admin. R. at 308.)

         On September 30, 2014, Plaintiff reported pain in her right knee and ankle, continuing pain in her lumber spine radiating into her legs, and weakness which “is sometimes overwhelming and intolerable” causing Plaintiff to apply for Benefits. (Admin. R. at 384.) Roberson observed Plaintiff's gait to be stable and balanced and described her posture movements as “stiff and cautious, ” but found no gross abnormalities or major joint swelling or redness, and a normal range of movement of her upper and lower extremities. (Admin. R. at 384.) Roberson refilled Plaintiff's Norco prescription, cautioned her about overuse of the medication, and ordered an MRI of her lumbar spine. (Admin. R. at 387.)

         A month later, Plaintiff indicated she had a tight and sore neck with pain and numbness radiating into her arms, wrists, and hands resulting in difficulty handling and opening items. (Admin. R. at 377.) She also described hip pain and instability in her pelvis and related her chiropractor and physical therapist told her she had a “very unstable hip/pelvis.” (Admin. R. at 377.) She reported the weakness and pain in her back, hip, and legs nearly prevented her from walking on occasion, and her right leg was weaker and more painful. (Admin. R. at 377.) Upon examination, Roberson noted: “Gait stable and balanced. Slow cautious movements. Weakness against resistance to bilat LE. Could minimally raise legs in a SLR against resistance - Strength 2-3/5 bilat LE. Sitting: Knee raise against resistance 3/5. Normal heel-toe walk. Can squat but back up only with push up support on chair. Tenderness to moderate to deep palpation reported at 10/10 to sacrum, lower lumber, but less to upper lumbar although pain still 5/10.” (Admin. R. at 379.) Roberson opined the hip pain was “likely secondary to a hypermobility syndrome, fibromyalgia, obesity, and some degeneration.” (Admin. R. at 379.) As of December 3, 2014, Roberson again observed Plaintiff's gait to be stable and balanced, her posture and range of motion normal with no gross abnormalities, and no joint swelling or redness. (Admin. R. at 373.)

         In early 2015, Jeffrey A. Solomon, D. O., examined Plaintiff at the request of Roberson for evaluation of Plaintiff's reports of long-standing pain in her back, soreness in her neck, and radiating pain, numbness, and tingling in her extremities, particularly in her right leg. (Admin. R. at 439.) Plaintiff reported the symptoms were especially severe at night and prevented her from walking more than a quarter of a mile, and that she had fibromyalgia. (Admin. R. at 439, 441.) Dr. Solomon's examination notes provided:

Neck and back are inspected. No. abnormal deformities. ROM is present. Negative seated straight leg raising test. I did not perform tender point examination since she has fibromyalgia.
The upper limbs show full ROM of shoulder, elbows, wrists and hands. Negative tinsels and phalens at wrists. Normal tone and reflexes in both upper limbs. Full muscle bulk, power, sensation, and dexterity.
Lower limbs: No. visible or palpatory abnormalities. Full muscle bulk and power, tone and reflexes. Patellar and achilles reflex 2 and symmetric. No. clonus or pathologic reflexes.
She reports diminished sensation in the feet, especially the lateral aspect, bilaterally.
Gait is neurologically normal.
Straight leg raising test done in supine position is negative.
Full hip and knee ROM.

(Admin. R. at 441.)

         Dr. Solomon diagnosed Plaintiff with very mild bilateral carpal tunnel syndrome, hints of early diabetic polyneuropathy, and right S1 radiculopathy due to neuroforaminal stenosis but did not believe there was severe nerve damage based on her normal and symmetric S1 reflexes. (Admin. R. at 441.) He recommended injections combined with physical therapy, finding conservative treatment rather than surgery to be preferable. (Admin. R. at 441-42.) He also noted Plaintiff had underlying chronic pain, fibromyalgia, and morbid obesity. (Admin. R. at 441.)

         Plaintiff returned to Roberson on February 5, 2015, to follow-up on Dr. Solomon's testing and with seemingly new reports of foot pain, reporting she felt like she was walking on stones. (Admin. R. at 441.) Roberson noted Plaintiff had antalgic posture with a wide stance to her gait, tenderness over her right hip and SI joint, and slightly edematous wrists but otherwise no visible or palpable abnormalities. (Admin. R. at 463.) Roberson suspected rheumatoid arthritis could be causing Plaintiff's joint pain and fevers and referred her to a rheumatologist. (Admin. R. at 463.)

         On February 10, 2015, reviewing physician, Susan E. Moner, M.D., determined Plaintiff suffered from spine disorders, other arthropathies, diabetes mellitus, and parathyroid gland issues but found Plaintiff capable of lifting and/or carrying twenty pounds occasionally and ten pounds frequently; standing, walking, and/or sitting for six hours in an eight-hour workday; climbing ramps and stairs and balancing frequently; and climbing ladders/ropes/scaffolds, stooping, kneeling, crouching and crawling occasionally; but should avoid concentrated exposure to machinery and heights. (Admin. R. at 73-75.) Based on these limitations, which qualified Plaintiff for “light” work, Dr. Moner found Plaintiff not disabled through December 31, 2014. (Admin. R. at 66, 76-77.)

         On February 15, 2015, Roberson authored a letter seeking to excuse, or delay, Plaintiff's jury duty obligations. (Admin. R. at 599.) In the letter, Roberson stated:

         To Whom It May Concern:

[PLAINTIFF] is a patient in the Ventana Wellness practice. I see her on a regular basis and work with her as her primary care provider. She is currently struggling with multiple medical issues that are in the process of being worked up. Her medical issues are such that she cannot tolerate sitting or standing for any extended period of time. Please allow her to ...

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