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Bennett v. Berryhill

United States District Court, W.D. Michigan, Northern Division

August 22, 2017

WENDY S. BENNETT, Plaintiff,



         Plaintiff Wendy S. Bennett brought this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision by the Commissioner of the Social Security Administration (Commissioner).[1] In support of her request to reverse the Commissioner's decision, Plaintiff argues that (1) the ALJ failed to properly weigh the medical opinions from two treating physicians-Dr. Raghu Rao and Dr. Charlene Sweeney; and (2) the ALJ failed to properly evaluate Plaintiff's credibility. (ECF No. 10.) Defendant has responded. (ECF No. 11.) Both parties have consented to proceed before a Magistrate Judge. (ECF No. 9.) For the reasons stated below, the Court affirms the Commissioner's decision.

         On May 10, 2013, Plaintiff applied for disability insurance benefits. (PageID.212-221.) In her application, Plaintiff asserted that she was disabled due to her cervical and lumbar spine impairments, degenerative disc disease, back pain, headaches, and joint arthritis. (PageID.216.) The alleged onset date was July 18, 2010, and her last insured date was September 30, 2014. (PageID.213.) After Plaintiff's application was denied, she filed a written request for an administrative hearing before an Administrative Law Judge (ALJ). (PageID.122-138.)

         The ALJ held an administrative hearing on June 2, 2015, in which Plaintiff was represented by Attorney Barry O'Lynnger. (PageID.66-112.) At the hearing, Plaintiff amended the alleged onset date of disability to April 27, 2012. (PageID.70.) Plaintiff and Vocational Expert William Dingess testified during the hearing. (PageID.66-112.) Plaintiff stated that she has a high school education and has previously worked as a material handler, a machine cutter, and a production assembler. (PageID.76-80.) She last worked in July 2010 as a part-time cashier at a grocery store, which she quit because of pain in her right knee. (PageID.75-76, 86.) Although Plaintiff has experienced back pain her entire life, the “real” back pain started in 2012 after she slipped while mopping her kitchen floor. (PageID.80-81.) She has had physical therapy and taken various pain medications for her back pain. (PageID.81-82.) The neurologist told her that she was not a candidate for cortisone shots because there were too many spots in her back that would need to be injected. (PageID.81-82.) Although she has neck pain, Plaintiff said her back pain is the “main issue.” (PageID.82.) Plaintiff said that the crippling migraines began in 2012, shortly after her back went out. (PageID.84.) She took Imitrex in 2010, and Topamax in 2014.[2] (PageID.84, 98-99.) Her daily activities include sewing, knitting, reading, cooking simple meals, dishes, laundry, light vacuuming, and playing cards with her friends. (PageID.88.) Plaintiff said she has had to cut back on driving long distances and going out with her friends because of her pain. (PageID.88-89.) She said she could walk maybe a city block without stopping, she could only stand five or ten minutes before “completely moving, ” she could only sit in a chair for twenty to twenty-five minutes on a “typical day, ” and she could not lift more than five to ten pounds. (PageID.94-96.) However, Plaintiff said that she could sit on her sun deck, listening to country music and knitting, for six to eight hours on a beautiful day. (PageID.90.)

         On July 9, 2015, the ALJ issued a written decision denying Plaintiff's claim for DIB. (PageID.49-58). On June 20, 2016, the ALJ's decision became the agency's final decision when the Appeals Council denied Plaintiff's request for review. (PageID.30-35.)

         Before addressing the ALJ's opinion and Plaintiff's arguments, the Court will summarize the relevant medical records. On December 1, 2010, Plaintiff had a two-week follow-up appointment with by Dr. Raghu Rao, in which she complained of knee pain and migraines.[3](PageID.309-310.) Dr. Rao noted that Plaintiff's migraines were “much improved” since starting Inderal.[4] The next medical record is from an appointment with Dr. Rao that occurred on April 27, 2012. (PageID.307-308.) During this appointment, Dr. Rao examined Plaintiff following her complaints of pain in her lower back, buttocks, and right leg. Plaintiff was on crutches and rated her pain at 8/10. Dr. Rao noted sensation to light touch in the right ankle, motor deficits measured at 4/5 with flexion and hip flexion, and positive straight leg raises on the right. Dr. Rao's initial diagnosis was “[right] low back pain with Radiculopathy, possible disc herniation with motor and sensory deficit.” (PageID.308.) He recommended physical therapy and prescribed Vicodin and Flexeril. An MRI later revealed “mild degenerative disc and facet joint findings with a small central disc protrusion at the L4-5 level and a small central disc protrusion at the L5-S1 level.” (PageID.316.)

         On May 11, 2012, Plaintiff reported similar symptoms to Dr. Rao during a follow-up appointment. (PageID.305-306.) Plaintiff rated the pain in her lower back at 4/10 in part because the Vicodin was effective. In addition to continuing the pain medication, Dr. Rao prescribed a Medrol Dosepak, which is a steroid to treat inflammation. Plaintiff had another follow-up appointment with Dr. Rao on July 16, 2012. (PageID.303-304.) At this appointment, Plaintiff told Dr. Rao that her symptoms had improved. She rated her pain at 5/10 in the morning and 1/10 during all other times. She complained of some numbness in her left thigh and feet but also informed Dr. Rao that she was back to normal activity and walking. Dr. Rao subsequently prescribed Neurontin to treat Plaintiff's nerve pain.

         On August 9, 2012, Plaintiff complained to Dr. Rao that she was experiencing pain in her right leg. (PageID.301-302.) She rated the pain at 5/10. Dr. Rao's initial diagnosis was a possible posterior cruciate ligament tear. Dr. Rao again prescribed Plaintiff Vicodin for the pain. An MRI later revealed “small joint effusion.” (PageID.313.) Plaintiff reported some improvement in her right knee pain during a follow-up appointment on September 26, 2012. (PageID.278-279.) On December 12, 2012, Plaintiff reported that the pain in her right knee and back had worsened. (PageID.276-277.) During this appointment, Plaintiff told Dr. Rao that she had been experiencing knee pain for the last three years. Dr. Rao's initial impression was knee pain, back pain, degenerative disc disease with radiculopathy, and fibromyalgia. Dr. Rao subsequently recommended that Plaintiff see an orthopedic specialist. On February 12, 2013, Plaintiff complained to Dr. Rao that she had pain in her neck and lower back, as well as numbness and weakness in her left arm and fingers. (PageID.274-273.) Dr. Rao noted that Plaintiff exhibited weakness and sensory loss in her hand. Dr. Rao again prescribed Vicodin. An MRI later revealed “mild cervical disc degeneration with some disc annulus bulging at the C2-3, C3-4 and C4-5 levels.” (PageID.311.)

         On March 25, 2013, Plaintiff had a consultation with an orthopedist-Dr. Matthew Songer. (PageID.268-269.) After reviewing Plaintiff's x-rays and MRIs, Dr. Songer determined that Plaintiff had degenerative disc changes at both L4-5 and L5-S1 and a prolapsed disc centrally at ¶ 5-S1 with some relative stenosis. Dr. Songer indicated that he did not notice any severe compression or “clear evidence of radiculopathy.” (PageID.269.) He recommended that Plaintiff be put on a long-term anti-inflammatory, begin a physical therapy program that focused on core-strengthening and stretching, and try to lose 60-70 pounds. On April 17, 2013, Plaintiff had another follow-up appointment with Dr. Rao. (PageID.327-328.) During this appointment, Plaintiff complained of lower back pain and left wrist pain, but she did not report any neck pain. Based on the consult with the orthopedist, Dr. Rao noted that Plaintiff was not a candidate for surgery or steroid injections. On June 19, 2013, Plaintiff met with Dr. Rao to request “disability paperwork.” (PageID.418-419.) She rated her pain at ¶ 8/10.

         On August 1, 2013, Plaintiff complained to Dr. Rao that she had been suffering from a migraine for the past three days. (PageID.415-416.) To treat the migraines, Dr. Rao prescribed Inderal and Maxalt. During a follow-up appointment on October 3, 2013; Plaintiff told Dr. Rao that she had not had a migraine in the last three weeks. (PageID.408-409.) Although Dr. Rao noted that Plaintiff's chronic lower back pain was “fairly well controlled, ” Plaintiff again complained of pain in her hip, right buttocks, and right leg. Dr. Rao prescribed Lyrica, which is used to treat neuropathic pain. An x-ray conducted the following day found that Plaintiff's right hip was “normal.” (PageID.413.) On November 13, 2013, Plaintiff again complained of migraines, lower back pain, and right leg pain. (PageID.423-424.) Dr. Rao's initial impressions were chronic lower back pain with radiculopathy involving the right leg. Dr. Rao increased Plaintiff's dosage of Lyrica. Again, on January 17, 2014, Dr. Rao noted no change in Plaintiff's back pain or migraines. (PageID.432-433.) On March 24, 2014, Dr. Rao noted that Plaintiff's chronic lower back pain was fairly well controlled, but the migraines were not controlled. (PageID.428-429.) Because Plaintiff was still experiencing migraines, Dr. Rao referred Plaintiff to a neurologist.

         On April 16, 2014, Plaintiff met with a neurologist-Dr. Charlene Sweeney. (PageID.435-437.) Plaintiff told Dr. Sweeney that she has a history of headaches dating back to childhood and currently has 2-3 migraines per week. The headaches make Plaintiff nauseous and sensitive to light. During this appointment, Plaintiff did not mention any issues with her back and told Dr. Sweeney that she walked for exercise. Dr. Sweeney noted that Plaintiff had normal sensation to all modalities, exhibited full strength, a negative Romberg test, and her gait was stable. Dr. Sweeney diagnosed Plaintiff with “migraine without aura with intractable migraine without STA.” (PageID.437.) Dr. Sweeney prescribed Topamax to treat the migraines. On May 29, 2014, Plaintiff told Dr. Rao that the Topamax had led to a 50% improvement in her migraines. (PageID.426-427.) On July 31, 2014, Plaintiff had a follow-up appointment with Dr. Sweeney. (PageID.438-439.) Plaintiff told Dr. Sweeney that the Topamax was helping but that she still suffered two to three disabling headaches per week. Dr. Sweeney subsequently increased the Topamax dosage. On August 14, 2014, Plaintiff reported that her back pain was between 6/10 at the minimum and 8/10 at the maximum. (PageID.454-455). Dr. Rao noted that Plaintiff's migraines were “controlled” and her chronic lower back pain was “fairly well controlled.” (PageID.455.)

         “Our review of the ALJ's decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” Winslow v. Comm'r of Soc. Sec., 566 Fed. App'x 418, 420 (6th Cir. 2014) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); see also Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).

         Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec'y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever evidence in the record fairly detracts from its weight. See Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); Mullen, 800 F.2d at 545.

         The ALJ must employ a five-step sequential analysis to determine whether the claimant is disabled as defined by the Social Security Act. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f); Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). At step one, the ALJ determines whether the claimant can still perform substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant's impairments are considered “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the ALJ determines whether the claimant's impairments meet or equal a listing in 20 C.F.R. part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). At step four, the ALJ determines whether the claimant has the residual functional capacity (“RFC”) to still perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). At step five, after considering the claimant's residual functional capacity, age, education, and work experience, the ALJ determines whether a significant number of other jobs exist in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(a)(4)(v). If the ALJ determines Plaintiff is not disabled under any step, the analysis ceases and Plaintiff is declared as such. 20 C.F.R § 404.1520(a). If the ALJ can make a dispositive finding at any point in the review, no further finding is required. 20 C.F.R. §§ 404.1520(a).

         Plaintiff has the burden of proving the existence and severity of limitations caused by her impairments and that she is precluded from performing past relevant work through step four. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the Commissioner's burden “to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile.” Id.

         Here, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date-April 27, 2012-to the date she was last insured- September 30, 2014. (PageID.51.) At step two, the ALJ found that Plaintiff suffered from the severe impairments of “disorders of the back and migraine headaches.”[5] (PageID.51-52.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (PageID.52.) At step four, the ALJ determined Plaintiff retained the RFC based on all the impairments:

to perform light work as defined in 20 CFR 404.1567(b) except that she is further limited to work involving frequent climbing of ramps and stairs, no climbing of ladders, ropes or scaffolds, frequent balancing and kneeling, occasional stooping, crouching and crawling, and frequent overhead reaching with both upper extremities. The claimant is limited to frequent (not constant) handling and fingering with the left upper extremity, and she must avoid more than ...

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