United States District Court, D. Nebraska
PAMELA L. JONES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration; Defendant.
MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
WARREN K. URBOM, Senior District Judge.
Pamela L. Jones filed a complaint on October 24, 2012, against Michael J. Astrue, who was then serving as Commissioner of the Social Security Administration. (ECF No. 1.) Jones seeks a review of the Commissioner's decision to deny her application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq. The defendant has responded to the plaintiff's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 15, 35-36). In addition, pursuant to the order of Judge Joseph F. Bataillon, dated March 18, 2013, (ECF No. 19), each of the parties has submitted briefs in support of her position. (See generally Pl.'s Br., ECF No. 21; Def.'s Br., ECF No. 31; Pl.'s Reply Br., ECF No. 38). After carefully reviewing these materials, I find that the Commissioner's decision must be affirmed.
Jones initially applied for disability benefits on May 16, 2008, alleging an onset date of July 30, 2003. (See ECF No. 35, Transcript of Social Security Proceedings (hereinafter "Tr.") at 166). The record does not include the disposition of this application. On April 14, 2009, Jones protectively filed an application for disability insurance benefits under Title II of the Act. (Tr. at 173-76). After her applications were denied initially and on reconsideration, (id. at 68-71, 76-79) the plaintiff requested a hearing before an administrative law judge (hereinafter "ALJ"). (Id. at 85-86). This hearing was conducted on January 11, 2011. (Id. at 24-63.) In a decision dated January 28, 2011, the ALJ concluded that Jones was not entitled to disability insurance benefits. (Id. at 6-22). The Appeals Council of the Social Security Administration denied Jones' request for review. (Id. at 1-5.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Jones seeks judicial review.
II. SUMMARY OF THE RECORD
Jones was born on September 15, 1955. (Id. at 173). She has a 12th grade education (id. at 26) and was last insured for social security disability benefits on March 31, 2009. (Id. at 10). In the application at issue here, Jones alleged an onset date of September 1, 2005. (Id. at 173). At the hearing, Jones requested to amend the alleged onset date to July 30, 2003. (Id. at 26). On a disability report form, Jones asked to amend the onset date to September 16, 2003. (Id. at 233). The ALJ found it inappropriate to allow any amendment, finding that the evidence about Jones' medical condition and functional capacity between July 30, 2003, and September 1, 2005, had not been evaluated by the state agency. The determinations at the initial and reconsideration level of the claim considered Jones' condition between September 1, 2005, and March 31, 2009, the date Jones was last insured. (Id. at 9). The ALJ determined that, pursuant to 20 C.F.R. § 404.946, the issue of Jones' status prior to September 1, 2005, involved a medical determination that should not be addressed for the first time at the hearing level, and therefore, was not properly before the ALJ. (Tr. at 9).
The regulation cited by the ALJ provides that an ALJ or any party may raise a new issue at a hearing, but "it may not be raised if it involves a claim that is within the jurisdiction of a State agency under a Federal-State agreement concerning the determination of disability." 20 C.F.R. § 404.946(b)(1). Jones does not assign as error the ALJ's determination as to the onset date. I agree with the ALJ and will evaluate the record in relation to an onset date of September 1, 2005.
On a disability report form completed on April 14, 2009, (id. at 201) Jones listed her conditions as fibromyalgia, back problems, depression, problems concentrating and remembering, and dizzy spells. (Id. at 203). She stated that she uses a cane to walk and uses a motorized cart in a store. Jones said she can walk five minutes and then needs to rest. (Id.). Jones said she stopped working on August 15, 2007. (Id.). On a disability report form completed on October 1, 2009, Jones said she is barely able to use her leg and is limited in walking. She also said she has anxiety and dizzy spells. (Id. at 240).
On April 4, 2009, Jones completed a report of her daily activities and symptoms. (Id. at 250). Jones stated that in a typical day, she gets up, has breakfast, and dresses. She showers with the assistance of her husband. Jones stated that she reads the newspaper and cares for herself during the day. She wears a wig because she cannot fix her hair every day. Her husband helps with cooking because she cannot lift pots of water. She said she has pain in her hands and arms and has to be careful in gripping items. She said she does not carry or lift anything heavier than one pound. Her husband carries the clothes for the laundry and then folds the clothes and puts them away. She said she performed no outside chores. Jones said she has motion sickness and dizzy spells when she drives a car. (Id.). She said she watched two hours of television each day. (Id. at 251). She no longer attended church because dressing is such an effort. Jones said she takes a sleep aid every night. She can walk for one minute and then the pain starts. (Id.). She can only stand for four minutes and then needs to sit, but sitting too long causes numbness in her legs. (Id.). Jones said she has fibromyalgia which causes pain all over every day. Her pain level is 10. (Id. at 252).
In interrogatories dated November 15, 2010, Jones listed her conditions as fibromyalgia, knee problems, inflammatory arthritis, osteoarthritis, dizziness, feet problems, memory problems, depression, anxiety, and irritable bowel syndrome. (Id. at 257). She said she has pain, difficulty remembering dates and messages, difficulty with mobility, and has anxiety attacks, fatigue, and dizziness. (Id.). She said she must lay down three times each day for about one to two hours each time for constant pain. (Id. at 258). She said she had previously taken part in aquatherapy but she could no longer afford it. (Id. at 260). Jones said she cannot watch television for more than 25 minutes at a time because she cannot concentrate. (Id. at 263). Jones said she had been told by her doctor to sleep for 12 to 14 hours per day. (Id.).
A. Medical Evidence
Jones began treatment with Kathryn Wildy, M.D., a rheumatologist, on November 8, 2007. (Id. at 303). Wildy noted that Jones reported she had bilateral low back pain in 2005. (Id. at 304). Jones was able to ambulate in Wildy's office without distress. (Id.). Wildy determined that Jones had probable inflammatory arthritis and fibromyalgia. Wildy prescribed prednisone and injected steroids into both knees. Wildy recommended a combination of medications and aquatherapy for fibromyalgia. (Id. at 305).
X-rays of Jones taken on November 8, 2007, showed moderate to severe bicompartmental osteoarthritic changes in the left knee, unicompartmental changes in the right knee specifically affecting the patellofemoral joint, and chondrocalcinosis. Bilateral hip x-rays showed osteoarthritic changes about the superior acetabulum on the left, with similar findings on the right with mild joint space narrowing bilaterally. (Id. at 321). X-rays of the sacroiliac joints showed some sclerotic changes and rather significant degenerative changes at the L5-S1 level with hypotrophic zygapophysial joint disease most pronounced on the right. (Id. at 329). A radiologic report on November 16, 2007, showed that Jones has grade 1 degenerative anterolisthesis of L4-5 and L5 on S1. (Id. at 275, 322).
When Jones began physical therapy on December 5, 2007, she reported that in early November she was dancing at her husband's birthday party, and since that time, she noticed increased neck, shoulder, and back pain. (Id. at 270). For the previous two years, Jones said she had been in pain all the time and rated the pain at 10 on a scale of 1 to 10. She reported radiating pain into both upper arms and tingling in her hands. Jones told the physical therapist that, as recently as October 2007, she had been doing aquatic exercise and an exercise video at home. She said she was independent with cooking and activities of daily living, but her husband had to carry laundry up and down the stairs. She said she sometimes uses a single point cane, but she was noted to have normal sequencing and timing throughout the gait cycle. (Id.). Jones noted tenderness throughout her cervical spine, upper trapezius, bilateral subacromial spaces, and bilateral greater trochanter. (Id. at 270-71). The physical therapist noted that Jones would benefit from aquatic physical therapy as well as a home exercise program, additional relaxation techniques, and activity modification for her diagnosis of fibromyalgia. (Id. at 272). The plan was for Jones to take part in aquatic physical therapy two to three times each week for four to eight weeks. (Id.).
As of January 4, 2008, Jones had attended aquatic physical therapy eight times, but she had missed four visits due to "increased pain, busy schedule, " and she failed to show up for one visit. She had been able to tolerate a 48-minute treatment session. (Id. at 273). She called the clinic to cancel her remaining physical therapy visits, stating that she would like to be discharged from aquatic therapy due to financial constraints, but she would like to continue with independent aquatic exercise. (Id. at 273, 306). Jones had noted the ability to modify her activity to manage pain, such as carrying lighter grocery bags and using an electric cart. She told the therapist that she had stopped her medications without physician or pharmacist recommendation, but she started them about one week later. The therapist stated that Jones had difficulty managing pain due to subjective information regarding management of stress as well as medications. (Id. at 274).
Wildy noted on January 16, 2008, that Jones' inflammatory arthritis was unresponsive to prednisone. (Id. at 300). She was also diagnosed with fibromyalgia with significant myofascial syndrome and allodynia; significant diffuse osteoarthritis; and recent onset of significant dizziness and motion sickness. (Id.). Wildy noted that the bilateral steroid injections she gave Jones on November 8, 2007, were not extremely helpful. Jones had also been prescribed Neurontin, which caused some side effects. She was directed to begin aquatherapy, but Jones reported that her insurance would not cover formal aquatherapy, so she was directed to use the pool at Immanuel Hospital, using exercise instructions from a physical therapist. (Id.). She said her maximum pain is 10 out of 10 and her most difficult activities are doing her hair, taking showers, and walking. (Id. at 301). She also noted fatigue, hair loss, vision changes, intermittent difficulty swallowing, stomach problems, intermittent muscle weakness, and intermittent tingling and numbness in the lower extremities. (Id.). Wildy noted that Jones presented with a number of perplexing symptoms. (Id. at 302).
Wildy referred Jones to Britt Thedinger, M.D., to address her complaints of motion sickness. (Id. at 294). On February 4, 2008, Thedinger reported that Jones' otologic examination was normal. Thedinger diagnosed Jones as having a classic case of motion intolerance. She recommended medication for the days when Jones was engaging in activities that make her feel ill. (Id.). On May 28, 2009, Thedinger prescribed medication for several weeks to help suppress Jones' vestibular system. However, Thedinger did not hear back from Jones, so she could not assign any type of disability. (Id. at 519).
Wildy told Jones on April 23, 2008, that treatment for fibromyalgia involved improvement of sleep efficacy and control of any concomitant psychologic/psychiatric irritability. (Id. at 294, 298). Wildy also told Jones that generalized osteoarthritis exacerbates the fibromyalgia, as does depression. (Id. at 298). Wildy asked Jones to continue with aquatherapy. (Id. at 299). Wildy prescribed several medications and directed Jones to return to aquatherapy and to start glucosamine/chondroitin sulfate. Wildy stated that Jones had signs and symptoms of inflammatory arthritis, but it was perplexing given Jones' unresponsiveness to steroids. (Id. at 299).
On July 23, 2008, Jones went to Wildy complaining of bilateral knee pain and left wrist discomfort. (Id. at 422). Wildy noted that Jones was able to ambulate in the room without distress and that she had normal range of motion in the upper extremities. The lower extremities showed bilateral pes anserine bursal irritability. Her knees were cool without bulge sign with normal range of motion. Wildy gave Jones injections in both knees. She was also diagnosed with vitamin D deficiency which could be contributing to aches and pains. Wildy adjusted Jones' medications for probable seronegative inflammatory arthritis. (Id. at 423). Jones was advised to wear wrist splints at night for her left wrist irritability. (Id.).
By February 2009, Jones reported increasing problems with all-day morning stiffness in the knees, fear and anxiety, and dizzy spells. (Id. at 732). She was given steroid injections in both knees and Lidoderm patches to use for bilateral bursitis in the arms. (Id. at 732-33). Jones had more bilateral knee injections about two weeks later. (Id. at 730).
On May 14, 2009, Jones reported to Wildy that she had increased her methylprednisolone without contacting the office because she was in more pain. (Id. at 575). Jones reported that the medication had helped, but she was still having problems with sleep disturbance. Wildy told Jones that better sleep would help her arthritis and fibromyalgia pain. (Id.). Wildy adjusted Jones' medications and again recommended aquatherapy. (Id. at 576).
In an MRI on May 22, 2009, Jones had a trace of anterior spondylolisthesis of L4 on L5 and L5 on S1. At L5-S1 there was disk space desiccation and minimal disk bulge. The MRI showed degenerative disk changes at L4-5 and L5-S1 with stable appearance since 2007. (Id. at 508).
Jones continued to see Wildy, but in June 2009, Jones had not yet been to see a psychologist and had not returned to aquatherapy. (Id. at 571). By July 2009, Jones reported that her concentration had improved with medication. Her main complaint was bilateral burning in the arms and hips as well as tingling and numbness in the upper extremities. (Id. at 567). Jones reported that she had not attended aquatherapy, and Jones said she is frustrated and has too much anxiety to pursue necessary treatment. Jones said she was aware that this was halting her progress toward feeling better. (Id.). Wildy adjusted the medication for inflammatory arthritis and sleep disturbance. (Id. at 568). Wildy referred Jones for an MRI of the cervical spine, which showed that she had degenerative cervical spondylosis, most pronounced at the C5-C6 level on the right. (Id. at 580).
Wildy also referred Jones to Mark E. Shirley, D.O., who completed an osteopathic manipulation. (Id. at 593). Shirley noted that Jones was able to transition on the examination table normally and with no pain, and from sitting to standing with no pain. (Id. at 592). Her gait was normal and unassisted. She was diagnosed with fibromyalgia syndrome, mechanical low back pain, and sacroiliac dysfunction. She was also referred for myofascial/visceral therapy. (Id. at 593).
Jones was given bilateral knee steroid injections again on October 2, 2009. (Id. at 689). Wildy again recommended aquatherapy for fibromyalgia. Jones also complained of dysesthesias, and Wildy recommended another spine MRI, but Jones was unwilling to undergo it. Jones had an appointment with her primary care physician the next week and she was scheduled to ask him about the MRI. However, in a follow-up note, ...