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Drown v. Colvin

United States District Court, D. South Dakota, Southern Division

May 8, 2015

ROBERTA R. DROWN, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMM'R OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER AFFIRMING COMMISSIONER'S DECISION

ROBERTO A. LANGE, District Judge.

Plaintiff Roberta R. Drown (Drown) seeks reversal of the Commissioner of Social Security's decision denying Drown's application for Social Security Disability Insurance (SSDI) benefits. For the reasons explained below, this Court affirms the Commissioner's decision denying benefits.

I. Procedural Background

Drown filed for supplemental security income and attendant Medicare and Medicaid benefits on March 15, 2011, alleging a disability onset date of December 14, 2010. AR[1] 160-70. Drown's claim initially was disapproved on May 11, 2011. AR 97-99. Drown then filed for disability insurance benefits on May 12, 2011, AR 160-61, and requested reconsideration of the initial denial of the benefits on June 27, 2011, AR 100-03. The regional commissioner denied disability benefits and supplemental security income to Drown on October 5, 2011. AR 107-11. Drown then requested an administrative hearing on her claims. AR 112-13.

Drown received a hearing on October 4, 2012, before Administrative Law Judge (ALJ) Denzel R. Busick. AR 29-58. The only witnesses who testified were Drown and vocational expert Thomas Audet. AR 33-56. On December 7, 2012, ALJ Busick issued his written decision denying benefits sought by Drown. AR 12-20. The ALJ applied the five-step sequential evaluation, finding in steps one and two that Drown met the insured status requirements of the Social Security Act and that Drown had not engaged in substantial gainful activities since the alleged onset date of December 14, 2010. AR 14. The ALJ then concluded that Drown had severe impairments of rheumatoid arthritis (RA), bilateral trochanteric and anserine bursitis, and fibromyalgia. AR 14. The All characterized as non-severe impairment Drown's history of hyperthyroidism, hypertension, dyspnea, menorrhagia, anemia, and laryngopharyngeal reflux and vocal cord spasm. AR 15. The All then determined in step three that Drown did not have any impairment meeting or medically equaling the severity of listed impairments in Social Security regulations. AR 15-16. Next, the ALJ determined that Drown had the residual functional capacity to perform sedentary work within certain parameters, but was not able to perform her past relevant work. AR 16-19. Finally, at step five, the ALJ deteiniined-based on a hypothetical question posed to vocational expert Audet and based on the ALJ's consideration of Drown's age, education, work experience, and RFC-that there were jobs existing in significant numbers in the national economy, such that Drown would not be considered "disabled." AR 19-20, 54-56, 240-46.

Drown requested review by the appeals council. AR 7-8. On December 13, 2013, the appeals council denied Drown's request. AR 1-3. Drown now challenges the Commissioner's denial of benefits, raising three separate issues:

I. Did the All correctly determine whether Plaintiff s combined impairments equaled a listing-level impairment?
II. Did the ALJ assess credibility in accordance with legal criteria and substantial evidence on the record as a whole?
III. Did the ALJ assess "residual functional capacity" in compliance with legal criteria and based upon substantial evidence on the record as a whole?

Doc. 17 at 33.

II. Factual Background

Drown was born in October of 1964. AR 162. She married Lonny Drown in 1984, earned a GED in 1985, and lives in Howard, South Dakota. AR 161-63, 193. The Drowns had three daughters, one of whom was living at home at the time Drown applied for disability benefits. AR 209, 256. Drown worked in various jobs until her alleged onset of disability date of December 14, 2010. AR 178-80. Since 2000, those jobs have included being an assistant daycare provider for Children's Care Corner, a custodian at Bethany Lutheran Church, a secretary for the Miner County Community Health nurse, a substitute teacher and teacher's aide for the Howard School District, an assistant care provider at an afterschool program, and various duties (assistant cook, dishwasher, waitress, and caterer) at a restaurant. AR 175-87, 200-07. Drown's most recent job, held from August of 2006 until December 14, 2010, was as a teacher's aide for the Howard School District. AR 200.

Drown had been in good health until November of 2010. On November 16, 2010, Drown went to Avera St. Joseph Clinic in Howard for an evaluation of upper respiratory symptoms, cough, congestion, and bilateral ear discomfort. AR 281. Drown recalled having these symptoms for the prior three weeks, was not getting better, and reported having been exposed to mycoplasma pneumonia earlier in the year through her daughter. AR 281. A blood test revealed a positive result for mycoplasma IgM[2] at that time. AR 309. Drown received an albuterol[3] metered dose inhaler and a prescription for cough control. AR 281. Around the first of December, Drown called Avera St. Joseph Clinic reporting that her ears were still feeling full and that she remained somewhat short of breath, but was not having any fevers. AR 278, 281. Drown was advised to try over-the-counter medications such as Claritin-D or Zyrtec. AR 278.

On December 14, 2010, the date Drown chose as the onset of her claimed disability, Drown returned to Avera St. Joseph Clinic for a checkup on her condition. AR 278. On examination, a physician's assistant (PA) recorded that Drown appeared quite tired, had easy and unlabored respirations with adequate air exchange, had no rales or wheezing, and had normal heartrate and rhythm. Drown's tympanic membranes seemed congested, but nasal mucosa was unremarkable as was the oropharyngeal examination. AR 278. A repeat test for mycoplasma pneumonia was ordered, AR 278, which again resulted in a positive outcome for mycoplasma IgM. AR 307. The PA changed Drown's medications to the antibiotic Levaquin[4] and wrote a note to have Drown remain off work until a follow-up visit the following Friday, December 17, 2010. AR 278-79.

When Drown returned to Avera St. Joseph Clinic on December 17, 2010, she had some shortness of breath and fatigue, "but definitely [was] not getting any worse since starting the Levaquin." AR 277. Her chest x-ray revealed no definite acute process. AR 277. Her white blood cell count was within a normal range and improving. The PA continued Drown on Levaquin and instructed her not to return to work until after the holidays "as she works at school and there are only 3 days of work next week." AR 277. Over the next two weeks, Drown called on three separate occasions, each time reporting that she was feeling better, although in her final call she reported achiness in her muscles and joints and difficulty sleeping. AR 276.

On December 30, 2010, Drown reported to Avera St. Joseph Clinic with complaints of generalized body aches, muscle aches, and joint discomfort which had intensified over the previous four days. AR 274. Drown last had taken Levaquin on December 23, 2010. AR 274. The PA ordered a blood draw, which later showed an elevated rheumatoid factor.[5] AR 298. Drown received a prescription for Cataflam.[6] AR 274. Avera St. Joseph Clinic then scheduled Drown to be seen by an Avera rheumatologist. AR 275.

On January 10, 2011, Drown returned to Avera St. Joseph Clinic on a follow-up check for rheumatoid arthritis. AR 273. Drown reported that her mornings were most difficult, particularly when the effects of the Cataflam prescription wore off. Drown stated that she felt unable to return to work at that point because of her pain level. AR 273. On examination, the PA described Drown as being "in no acute distress" and without having any red or inflamed joints at the time. AR 273. Drown's complaints of greatest tenderness were in her knees, hips, elbows, and shoulders. The laboratory studies showed a high rheumatoid factor at 165, but the remainder of her tests were relatively normal. AR 273. Her assessment at the time was "acute onset rheumatoid arthritis, " without any other condition mentioned. AR 273. The PA added tramadol[7] and methylprednisolone[8] to her prescriptions of Cataflam and her inhaler, with the option of taking Synthroid[9] and albuterol as needed and with Drown to check back in a week or sooner if she had any difficulty. AR 273. The PA advised that "after she starts the Methylprednisolone she may feel more like returning to work sooner." AR 273.

On January 18, 2011, Drown returned to Avera St. Joseph Clinic for a follow-up check for rheumatoid arthritis. By that point, she had been on steroidal medication for two weeks. AR 271. Drown had been using tramadol with Tylenol in between the doses of Cataflam, which seemed to control her pain fairly well. Drown reported that her symptoms were about the same; she was sleeping well at night, although some nights she would awaken because of the pain. AR 271. Drown appeared to be "in no acute distress, " and her physical examination was normal. AR 271. Although Drown's assessment remained solely rheumatoid arthritis, AR 271, the PA ordered a chest x-ray, the result of which was consistent with resolving mycoplasma pneumonia, AR 312.

On February 3, 2011, Drown began a course of treatment with Dr. Kara Petersen of Avera Rheumatology in Sioux Falls. Dr. Petersen recounted in her initial medical record Drown's history with mycoplasma pneumonia in November and December of 2010 and generalized joint and muscle pain beginning suddenly in December of 2010. AR 386. Drown described to Dr. Petersen difficulty performing routine activities of daily living and feeling pain and weakness. AR 386. Dr. Petersen did what appears to be a thorough workup. AR 382-86. Dr. Petersen noted the positive rheumatoid factor potentially suggestive of rheumatoid arthritis, but was reluctant to make that diagnosis because her physical examination of Drown revealed no objective findings of inflammation or synovitis[10] and was essentially normal. AR 383. Dr. Petersen noted that infections can be associated with elevated rheumatoid factors and that polyarthritis[11] can develop as a result of mycoplasmic infections. AR 383. Dr. Petersen ordered certain labs and placed Drown on prednisone[12] until seen in follow-up. AR 383.

Drown returned to see Dr. Petersen on February 11, 2011, and reported being no worse but no better. AR 378-81. Drown complained of significant dyspnea.[13] AR 380. Drown nonetheless had an essentially normal physical examination, including lung examination. The range of motion assessments of all of her peripheral joints were normal, she had a normal gait for her age and body type, and again had no objective findings of joint inflammation or synovitis. AR 379-80. Her lab results included a high-titer antibody suggestive of and consistent with rheumatoid arthritis. AR 379.

Because of Drown's ongoing dyspnea and cough, Dr. Petersen arranged for Drown to see Dr. Fady Jamous for a pulmonary consultation on the same day. AR 378-79. Thus, on February 11, 2011, Drown underwent a pulmonary consultation with Dr. Jamous for dyspnea on exertion, dysphonia, [14] diffuse pain, and fatigue with cough. AR 255-58. Dr. Jamous included in Drown's history that Drown lived in a house where she was exposed to pets and mold in her bathroom and that her weight had increased significantly in the past three years. AR 255-56. Drown stated that she was unable to go back to work because of pain. AR 255. Dr. Jamous ordered a CAT scan of Drown's chest via angiogram protocol, reviewed blood tests, and did a function test and echocardiogram. Drown's serology continued to be abnormal, but her lung function was within normal limits with a possible mid flow obstruction. AR 256-57. Dr. Jamous assessed Drown as having chronic fatigue secondary to a viral infection, underlying reactive airway disease post infectious in nature, abnormal serologic marker for possible rheumatoid disorder, chronic elevation of the IgM mycoplasma, and no pulmonary embolism. AR 257.

On March 2, 2011, Drown had a routine follow-up visit with Dr. Petersen. Dr. Petersen recounted the recent history of the evaluations of Drown as follows: "When seen here, she had a normal lung and joint exam. The rest of her exam was unremarkable." AR 361. Dr. Petersen noted that the serology continued to be unremarkable, except for a rheumatoid factor that was positive, a strongly positive cyclic citrullinated peptide (CCP)[15] antibody test, and a continued positive IgM mycoplasma with negative IgG[16] antibody. AR 361. Drown had undergone a six minute walk test which was reported as normal, but still complained of feeling short of breath even while at rest. AR 361. As is the case throughout Dr. Petersen's physical examinations, Drown appeared to be "in no apparent distress." AR 360. Dr. Petersen recommended initiation of Plaquenil[17] for the joint symptoms and fatigue, but was "hesitant to pursue any more aggressive immunosuppressive therapy without any objective findings of either musculoskeletal or lung inflammation or other findings of internal organ involvement." AR 358-59. Dr. Petersen referred Drown to an ear nose and throat (ENT) doctor for further evaluation of the dysphonia and decided to see her back within four to six weeks for reassessment. AR 358. Drown felt herself unable to work with her breathlessness and joint symptoms, and Dr. Petersen gave Drown a note to excuse her work absence until seen in follow-up. AR 358.

Drown also underwent a sleep diagnostic study in March of 2011. AR 400-01. The study was normal, and concluded: "Fatigue and excessive daytime somnolence not readily explained by this good quality study with otherwise minimally reduced sleep efficiency and adequate time spent in REM." AR 401. In short, there were no significant findings in the sleep study. AR 400-08.

On March 9, 2011, Drown saw Dr. Peter Kasznica, an ENT specialist, on a referral from Dr. Petersen for her breathlessness and hoarseness. AR 316-19. Drown underwent a flexible laryngoscopy, [18] which revealed a bulge on the right lateral pharynx and possible subglottic narrowing. AR 319. Dr. Kasznica prescribed omeprazole[19] to Drown for laryngopharyngeal reflux[20] issues. AR 319. Drown also had a mouth ulcer, apparently from poor-fitting dentures. AR 319. Drown underwent a CT scan of her neck as ordered by Dr. Kasznica on March 14, 2011, which was largely normal. AR 320-21. Drown had further visits to Dr. Kasznica on May 27, 2011, AR 322-25, and June 9, 2011, AR 326-29, and finally on September 15, 2011, AR 330-31, all for follow-up of the laryngopharyngeal reflux. By September of 2011, Drown's hoarseness had become much less severe, her response to the omeprazole had been excellent with her symptoms greatly improved, and her reflux was under control as long as she took the omeprazole. AR 330.

Drown's issues with joint pain did not similarly resolve. On April 7, 2011, Drown had a routine follow-up visit with Dr. Petersen. AR 353-57. Dr. Petersen recorded that she had spoken with Dr. Aris Assimacopoulos, an infectious disease physician then at Avera, about Drown's mycoplasma IgM having remained positive with a negative IgG. Dr. Assimacopoulos felt that it was likely a false positive mycoplasma titer, which confirmed Dr. Petersen's suspicion based on some other autoantibody production and immune stimulation. AR 354. In short, Drown has some auto-immune deficiency with susceptibility to pneumonia and joint pain, but the etiology of those problems appear to be somewhat mysterious. Dr. Petersen noted that Drown was tolerating Plaquenil well, continued her on Plaquenil, and had her continue the omeprazole as prescribed by the ENT doctor. AR 354.

Drown returned to Dr. Petersen on May 27, 2011. AR 349-52. Drown continued to complain of significant joint pain primarily in her hands, elbows, shoulders, hips, and knees. AR 351. Although Drown rated her pain as being nine on a ten-point scale, Drown's physical examination was normal, with Drown again being "in no apparent distress." AR 351. Drown was tender across her wrists, elbows, shoulders, knees, and ankles on examination, but had no obvious synovitis or swelling, no rheumatoid nodules, [21] and no deformities. AR 350. Dr. Petersen noted that Drown had no significant synovitis on exam to confirm rheumatoid arthritis, but her clinical presentation and multiple positive serologies were indicative of an underlying connective tissue disorder. AR 349. Dr. Petersen, based on the CCP antibodies and reported symptoms, opined that Drown likely had an "onset of clinical RA." AR 349. Dr. Petersen discussed alternatives with Drown for trying to get better relief from the joint pain, and ultimately chose to continue Plaquenil, and refill the Cataflam, tramadol, and omeprazole. AR 349.

Due to the prescribed Plaquenil and the possible side effects, Dr. Petersen had Drown see Dr. Ryan Ellwein for an eye examination, which took place on July 23, 2011, and resulted in multi-focal spectacles being prescribed. AR 314-15. The Plaquenil did not appear to be adversely affecting Drown's vision. AR 314-15.

Drown returned for a routine follow-up with Dr. Petersen on September 14, 2011. AR 362-65. By this point, Drown had been on Enbre1[22] for approximately three months and reported that "maybe it was helping." AR 363. Drown advised that the pain medications seemed to be working longer and she was having some days where the pain was more tolerable. AR 363. Drown's main reports of pain were from her hips down, with diffuse pain throughout her legs. AR 363. Again, on physical examination, Dr. Petersen found Drown to be in no apparent distress. AR 363. Drown was tender across various joints, but still had no synovitis in any of her joints. AR 364. She was tender over the anserine bursa[23] areas and diffusely tender along the lower extremities, but had no deformities or loss of mobility. AR 364. Drown also had a "few scattered fibromyalgia[24] tender points but not enough for [formal] ...


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