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Curry v. Colvin

United States District Court, D. Nebraska

April 28, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration; Defendant.


LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on the denial, initially and on reconsideration, of the Plaintiff's disability insurance benefits ("DIB") and widow's benefits under the Social Security Act ("Act"), 42 U.S.C. §§ 401, et seq.


Plaintiff Mary Jolene Curry ("Plaintiff") filed her applications for disability benefits and widow's benefits under Title II on July 9, 2010. (Tr. 198-204.) Plaintiff's claims were denied initially on November 16, 2012 (Tr. 11, 64-65, 80-87), and on reconsideration on February 25, 2011 (Tr. 11, 67-68, 92-109.) A hearing was held before an Administrative Law Judge ("ALJ") on February 8, 2012. (Tr. 32.) On February 23, 2012, the ALJ found that Plaintiff was not under a "disability" as defined in the Act (Tr. 11-25.)

The ALJ found that Plaintiff had the following severe impairments: obesity; fibromyalgia; and history of fracture and internal fixation of the left ankle. (Tr. 14.) The ALJ also found that although Plaintiff's depression was a medically determinable impairment, it did not cause more than mild limitations and was therefore not a severe impairment. (Tr. 14-17.) The ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to one contained in, 20 C.F.R. part 404, subpart P, appendix 1. (Tr. 17.) The ALJ determined that Plaintiff retained the RFC to perform unskilled, [1] routine and repetitive light work as defined in 20 C.F.R. § 404.1567(b), with additional limitations. (Tr. 17.) The ALJ concluded that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently and stand, sit, or walk for 6 hours during an 8-hour workday. (Tr. 17.) Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. (Tr. 17.) The ALJ noted that Plaintiff was to avoid concentrated exposure to extreme cold, humidity, and vibration. (Tr. 17.) The ALJ found that Plaintiff's impairments would not preclude her from performing work that existed in significant numbers in the national economy, including work as a garment sorter, routing clerk, and cafeteria attendant. (Tr. 24.) Consequently, the ALJ found that Plaintiff was not disabled. (Tr. 25.)

On February 8, 2013, after reviewing additional evidence, the Appeals Council denied Plaintiff's request for review. (Tr. 1-4.) Thus, the ALJ's decision stands as the final decision of the Commissioner. Plaintiff asks the Court to review the decision of the ALJ and the new evidence submitted to the Appeals Council, and reverse and set aside the decision of the Commissioner denying Claimant a period of disability, remanding the matter to the ALJ for a determination of appropriate benefits under 42 U.S.C. § 405(g).


In her application for benefits, Plaintiff stated that she was born in 1957, and alleged that she became disabled beginning June 1, 2006. (Tr. 198.) In her Disability Report, Plaintiff alleged disability due to "fibromyalgia, left ankle, left wrist problems" (Tr. 240.)

I. Documentary Evidence Submitted to the ALJ

Plaintiff was diagnosed with fibromyalgia by a rheumatologist in 2002. (Tr. 403, 466.) Thereafter, she received care for her chronic conditions of major depressive disorder and fibromyalgia from general practitioner David Rutz, M.D., and physician's assistant Ann Moore, P.A. (Tr. 323-48, 444-504.) In May 2006, Plaintiff informed P.A. Moore that she had separated from her job and needed a letter for employment benefits. (Tr. 328.) P.A. Moore recommended that Plaintiff stay on Wellbutrin due to her memory and concentration issues. (Tr. 328.) Medication refills were called in during May, August, and September 2006. (Tr. 328.) P.A. Moore again evaluated Plaintiff in October 2006, after complaints of a cough. (Tr. 328.)

In March 2007, Plaintiff reported that she was frustrated with attempts to exercise that seemed to exacerbate her fibromyalgia. (Tr. 327.) P.A. Moore discussed diet and exercise and gave Plaintiff a suggested list of reading materials to learn more about diet changes to help her lose weight and reduce her fibromyalgia symptoms. (Tr. 327.) Plaintiff agreed to follow up if she had any further questions. (Tr. 327.) Medication refills were called in during March, June, August, and September 2007. (Tr. 327.)

Plaintiff's next office visit was in February 2008, when she was treated for pneumonia. (Tr. 326-27.) In March 2008, Plaintiff called P.A. Moore and reported that she pulled a muscle in her shoulder two weeks earlier. (Tr. 326.) P.A. Moore called in a pain reliever to the pharmacy and told Plaintiff to follow-up if the muscle did not improve. (Tr. 326.) Medication refills were called in during April 2008. (Tr. 326.)

In June 2008, Plaintiff was somewhat tearful as she complained to P.A. Moore that she was noticing memory problems despite taking Wellbutrin and Lexapro. (Tr. 326.) She stated she could not multi-task anymore and had trouble navigating from point A to point B. (Tr. 326.) She told P.A. Moore that she had tried to go back to work, but her difficulty multi-tasking and the memory problems were creating quite a bit of stress and insomnia. (Tr. 326.) She also continued to struggle with fibromyalgia pain and sometimes her feet hurt so much for months at a time that she could not stand for prolonged periods. (Tr. 326.) She asked P.A. Moore about Lyrica. (Tr. 326.) P.A. Moore examined Plaintiff for attention deficit hyperactivity disorder ("ADHD"), fibromyalgia, and allergic rhinitis. (Tr. 326.) She discussed possible psychological testing and prescribed methylphenidate with no refills. (Tr. 326.) She also recommended that Plaintiff take a magnesium supplement. (Tr. 326.) She told Plaintiff that due to cost and side effects, Lyrica might not be appropriate for her at that time. (Tr. 326.) In response to Plaintiff's complaints of insomnia, P.A. Moore recommended a sleep routine and changed a medication that Plaintiff was taking at bedtime that may have contributed to her insomnia. (Tr. 326.) She told Plaintiff to follow up in two weeks. (Tr. 326.)

Medication refills were called in during July, August, September, and October 2008 and January and February 2009. (Tr. 325-26.) Plaintiff was not seen again in the office until March 2009, when she complained to P.A. Moore of eight months of rightsided chest tightness that woke her up at night, and worsening heartburn. (Tr. 325.) She had been vomiting in the middle of the night for more than one month. (Tr. 325.) P.A. Moore noted that Plaintiff's cardiac work-up in 2005 was normal. (Tr. 325.) Her physical examination was normal. (Tr. 325.) At her annual physical the next week, Plaintiff complained to P.A. Moore that she was frustrated in her attempts to exercise regularly and lose weight. (Tr. 325.) Walking often worsened her fibromyalgia. (Tr. 325.) Her physical examination was normal. (Tr. 325.)

In April 2009, Plaintiff fractured her left ankle when she stepped awkwardly off of a curb. (Tr. 316-17.) Justin Harris, M.D., an orthopedic surgeon, performed an open reduction and fixation surgery the next week. (Tr. 314-15.) Post-operative x-rays indicated the surgery was successful. (Tr. 311-12.) Plaintiff could bear weight on the left ankle by May 2009, six weeks after her surgery. (Tr. 312.) In July 2009, Dr. Harris noted that Plaintiff was doing well. (Tr. 311.) She still had "some swelling, " which Dr. Harris stated was to be expected and would continue to improve with time. (Tr. 311.) He released her to full activity, as tolerated. (Tr. 311.)

In June 2010, P.A. Moore noted that Plaintiff had ongoing fibromyalgia pain and depression. (Tr. 324.) Plaintiff told P.A. Moore that she quit her job in 2006 because of difficulty concentrating and memory problems. (Tr. 324.) She reported that she continued to have problems sleeping at night, mostly because of fibromyalgia pain and arthritis pain in her hands. (Tr. 324.) P.A. Moore assessed insomnia, fibromyalgia, osteoarthritis, and major depressive disorder. (Tr. 324.) She noted that these conditions were managed with medication. (Tr. 324.) She told Plaintiff that menopause might be contributing to her insomnia. (Tr. 324.) P.A. Moore strongly recommended that Plaintiff get trained for a job that would allow her to stay home, such as medical transcriptionist. (Tr. 324.)

Plaintiff called P.A. Moore in July 2010 and reported some swelling in her left ankle. (Tr. 323.) P.A. Moore told her to follow up with Dr. Harris if her ankle continued to swell and called in a water pill to the pharmacy. (Tr. 323.) A medication refill was called in during September 2010. (Tr. 444.)

In October 2010, Barb Eckert, Psy.D., performed a psychological consultative examination of Plaintiff in connection with her disability application. (Tr. 350-54.) Dr. Eckert observed depressed mood and some psychomotor retardation. (Tr. 351.) Plaintiff showed no deficits in memory or cognition and maintained concentration and attention during the visit. (Tr. 351-52, 353.) Plaintiff told Dr. Eckert that she occasionally looked through the paper for jobs but had difficulty finding a job that she could do. (Tr. 350.) She stated she could get along with co-workers and supervisors. (Tr. 350.) Plaintiff had difficulty completing household chores because of pain and would complete them in stages. (Tr. 351.) Her daughter also helped with the chores. (Tr. 351.) Dr. Eckert diagnosed Plaintiff with major depressive disorder, recurrent, mild, and asserted that she appeared to be "limited in some areas however Plaintiff does not appear disabled at the current time in respect to her Axis I diagnosis." (Tr. 352, 353-54.) She stated that Plaintiff's mental status suggested some mild difficulty with concentration and attention, but appeared in the normal range. (Tr. 353.) Dr. Eckert stated that it appeared Plaintiff was able to manage fairly consistently in her day-to-day life and recommended that she continue to utilize medication management and counseling. (Tr. 353.)

Also in October 2010, Brendon Connealy, M.D., performed a physical consultative examination of Plaintiff. (Tr. 402-12.) Dr. Connealy noted that Plaintiff walked with a left-sided limp. (Tr. 409.) Upon physical examination, Plaintiff had mild edema in her lower extremities, positive straight-leg raising and some limitations in her range of motion about her hips, knees, shoulders, wrists and lumbar spine. (Tr. 408-09.) Dr. Connealy noted that Plaintiff's obesity contributed to these deficits. (Tr. 408, 410.) Plaintiff had minimally decreased dorsiflexion in her left wrist but retained normal grip strength and showed negative Tinel's and Phalen's tests. (Tr. 408, 411.) Plaintiff had no joint tenderness, aside from very minimal tenderness in her back and hips, and full strength in her upper and lower extremities. (Tr. 409, 411.) Dr. Connealy stated that due to Plaintiff's limitations, she ...

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