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Mercer v. Colvin

United States District Court, S.D. Iowa, Central Division

January 9, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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For Lynda Mercer, Plaintiff: Gretchen R Jensen, LEAD ATTORNEY, SCHOTT MAUSS & ASSOCIATES, DES MOINES, IA.

For Commissioner of Social Security, Commissioner Carolyn W Colvin, Defendant: Mary C Luxa, LEAD ATTORNEY, U S Attorney's Office, Des Moines, IA.

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Plaintiff, Linda Darlene Mercer, filed a Complaint in this Court on December 27, 2013, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II of the Social Security Act, 42 U.S.C. § § 401 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).

Plaintiff filed an application for benefits July 22, 2010. Tr. at 123-31. Plaintiff, whose date of birth is January 28, 1962, (Tr. at 125) was 50 years old at the time of the hearing on July 3, 2012, before Administrative Law Judge Jo Ann Draper (ALJ). Tr. at 28-63. The ALJ issued a second Notice of Decision -- Unfavorable on July 26, 2012. Tr. at 7-22. The Appeals Council declined to review the ALJ's decision on October 18, 2013. Tr. at 1-3. Thereafter, Plaintiff commenced this action.

The ALJ found that Plaintiff was last insured for Title II benefits on December 31, 2011. At the first step of the sequential evaluation, the ALJ found that Plaintiff has not engaged in substantial gainful activity after August 16, 2007, the amended alleged disability onset date. At the second step, the ALJ found Plaintiff has the following severe impairments: obesity; knee osteoarthritis; asthma; histrionic personality disorder; and a somatoform disorder. Tr. at 12. The ALJ found that none of the severe impairments were, alone or in combination, severe enough to qualify for benefits at step three of the sequential evaluation. Tr. at 12-13. At the fourth step, that ALJ found:

After careful consideration of the entire record, the undersigned finds that through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a), lifting and carrying 10 pounds occasionally and five pounds frequently, standing or walking two hours of an eight hour work day, and sitting six to eight hours of an eight-hour day. Additionally, she may only occasionally climb, balance, stoop, kneel, or crouch, but never crawl or climb ladders, ropes, or scaffolds. Furthermore, the claimant is precluded from exposure to hazards such as heights or moving machinery, and she may only occasionally interact with the public, co-workers, or supervisors. finally, the claimant is precluded from highly detailed, highly complex job tasks.

Tr. at 13-14. The ALJ found that Plaintiff is unable to perform her past relevant work. Tr. at 19. At the fifth step, the ALJ found that Plaintiff is able to do a significant number of jobs, examples of which include pricer, food checker, and

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circulation clerk. Tr. at 20-21. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 21-22.


On October 17, 2005, Plaintiff was seen by Theodore Lockard, M.D. for an exacerbation of asthma. Tr. at 255-56. Plaintiff's blood pressure was 110/70. Her height was recorded as five feet, five and a half inches, and her weight was 294. Tr. at 255. Plaintiff was given a prescription for Prednisone and instructed to return to the clinic eight days later. Tr. at 256.

Plaintiff returned to the clinic on October 27, 2005 at which time the asthma was noted to be improving. Plaintiff was instructed to taper the dosage of Prednisone and to restart an inhaler. Tr. at 254. Plaintiff's weight was 296. Tr. at 253. On January 16, 2006, Plaintiff saw Dr. Lockard with a dry, hacky cough of " questionable etiology." Tr. at 252.

On January 27, 2006, Plaintiff's cough had improved and Dr. Lockard noted a " history of asthma without evidence of flare-up." The doctor also noted improved control of hypertension. The plan was for Plaintiff to continue working on her diet, exercise and weight loss. Tr. at 250. Plaintiff's weight was 286 pounds. Tr. at 249. On February 24, 2006, Dr. Lockard's assessment was: 1) chronic asthma -- moderately good control; 2) chronic diarrhea -- status post cholecystectomy; 3) hypertension -- adequate control. Tr. at 248. Plaintiff's weight was 280. Tr. at 247.

April 19, 2006, Plaintiff was seen by Michael Fraizer, M.D. at an emergency room because of a 7 to 10 day history of constant left-sided chest pain. The pain had been accompanied by some nausea and shortness of breath. Tr. at 416. Medications included Dilantin, Depakote, Keppra, Hydrochlorothiazide, Norvasc and Benicar. Tr. at 416-17. On physical examination, Plaintiff appeared uncomfortable, but her heart had regular rhythm with no murmurs, gallops or rubs. Electrocardiogram and chest x-rays were normal. Tr. at 417. The doctor opined that Plaintiff's pain was musculoskeletal rather than coronary. Plaintiff was admitted for observation to rule out myocardial infarction. Tr. at 418. See also Tr. at 404-05, which is the discharge summary signed by Philip A. Bear, D.O.

On May 1, 2006, Dr. Lockard saw Plaintiff as a follow up after a hospitalization for chest pain. Plaintiff's weight was 285 pounds and her blood pressure was 144/102. The doctor also addressed the hypertension and superficial phlebitis of the left upper arm. The doctor noted that Plaintiff was working on stress reduction efforts. Consideration was given to counseling at Mercy Franklin. Tr. at 246.

On January 4, 2007, Plaintiff was seen in the Emergency Department of Mercy Hospital complaining of chest pain. Tr. at 290-312. A CT scan did not show evidence of pulmonary embolus. Tr. at 309. A chest x-ray showed mild cardiomegaly without acute cardiopulmonary pathology. Tr. at 310.

Dr. Lockard prescribed a portable nebulizer on January 5, 2007. Tr. at 380.

On March 5, 2007, Plaintiff saw Dr. Lockard with a complaint of difficulty swallowing. She felt as though food was hanging up in her throat. Plaintiff's weight was 300 pounds and her blood pressure was 180/110. Tr. at 487. The doctor diagnosed dysphagia and prescribed a Catapres patch, and Pervacid. The doctor also noted that Plaintiff's blood pressure was out of control and he prescribed medication. Tr. at 488.

On March 14, 2007, Dr. Lockard completed a family member certification of health care provider for the Family and

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Medical Leave Act. The form was completed on behalf of Plaintiff's husband. The doctor wrote that Plaintiff had a seizure disorder and that she would need assistance from her husband once a week. The doctor said that Plaintiff is unable to care for herself after seizures. Tr. at 375-76. Plaintiff's husband wrote that his wife had seizures as frequently as once a week, or that it could be every two or three weeks. Tr. at 376. Family and Medical Leave Act forms were also filled out February 26, 2009 (Tr. at 502-06) and August 3, 2009 (Tr. at 495-500).

On March 15, 2007, Plaintiff's dysphagia had not improved with medication. Dr. Lockard ordered upper GI encoscopy and possible esophageal dilation. Tr. at 486. Plaintiff's blood pressure was 160/120. Tr. at 485.

On August 16, 2007, Plaintiff saw Dr. Lockard who diagnosed: left arm symptoms -- questionable neuropathy; chronic diffuse muscle aches -- questionable fibromyalgia; history of seizure disorder; and, questionable history of MS remotely diagnosed. Plaintiff's blood pressure was 164/116 and her weight was 294 pounds. The doctor ordered lab work to follow-up on hypertension and ordered a renal artery doppler to rule out significant stenosis. The doctor said he would consider a consultation with cardiology before pursuing additional blood pressure treatment. Dr. Lockard also wrote: " We'll set up with neurology for EMG's as well as consultation concerning her multiple medical problems of seizure disorder [and] possible MS." Tr. at 483-84.

A study of Plaintiff's kidneys on August 22, 2007, was reported as normal with no evidence for renal artery stenosis. Tr. at 396. On August 23, 2007, Dr. Lockard noted the normal renal artery duplex and normal EMGs of the upper extremities. The doctor wrote: " She apparently has not been taking her seizure medicines at all and I wonder about compliance with her blood pressure medicines although she states she's still using them." Tr. at 484.

On August 29, 2007, Plaintiff, then 40 years old, saw Michael R.K. Jacoby, M.D. Dr. Lockard asked Dr. Jocoby to evaluate Plaintiff's pain and weakness. Four years earlier, Plaintiff had been involved in a motor vehicle accident after which she developed progressively worsening muscle pain. " At age 18 she flipped her car 'six times' and has been having seizures since. Her last seizure was about 3 weeks ago." Plaintiff reported having two or three seizures per week if not on medication, especially when she is under stress. Plaintiff said that she may go for a period of time without having a seizure. Tr. at 369. Plaintiff's medications included Dilantin, Keppra and Trileptal, which the doctor said were for seizure disorder. Plaintiff's weight was recorded at 291 pounds. After general and neurologic examinations, Dr. Jacoby opined that Plaintiff's pain was due to myofascial syndrome or even fibromyalgia, but that he could not find a neuroanatomic explanation. Tr. at 370.

On October 1, 2007, Dr. Lockard's diagnoses were: Hypertension with noncompliance on medication; chronic seizure disorder; asthma by history without current symptoms although using nebulizer frequently. Plaintiff said she would try to be more regular with her medication. Tr. at 482. Plaintiff's blood pressure was 198/100. Her weight was 291. Tr. at 481.

On October 12, 2007, Plaintiff saw Cory Pittman, M.D. at Mercy Clinics Arthritis and Osteoporosis Center. Plaintiff was described as a 40-year-old woman with joint pain and swelling for four to five years. The doctor wrote:

She says it hurts to bend her hands. It also hurts to wear clothes. It is hard to get up in the morning because of pain and stiffness. She feels needles in her

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legs especially the thighs and below her knees. It hurts to have shoes on her feet. She wakes up at night with pain in her legs. She also has pain in the shoulders and left arm, which is occasionally numb. there is occasional pain in the chest, and she did have that checked out in the emergency room and with a stress test, which she was told, was fine. She gets muscle spasms. Her sleep is not restful. Rarely she snores. Sometimes she wakes herself up at night trying to catch her breath and says that this improves with using a breathing treatment for her asthma.

Plaintiff reported being unemployed for two years due to pain. Tr. at 325. The doctor wrote that Plaintiff's last work was customer service, but she had too much pain to sit in the chair for 8 hours a day and had to quit. On physical examination, Plaintiff was noted to be 5 feet, 5 inches tall at a weight of 296.8 pounds -- " morbidly obese." X-rays of her knees showed mild medial joint compartment narrowing bilaterally. Tr. at 326. The doctor's impression was: Low back pain likely secondary to degenerative arthritis; knee pain secondary to osteoarthritis and obesity; chronic pain syndrome; and, myalgias and fatigue. The doctor recommended a multidimensional approach to treatment. He first recommended weight loss with diet and exercise. He gave Plaintiff a prescription for water exercise. The doctor said that a sleep study might be needed in the future. The doctor wrote that treatment of depression was critical if she became depressed. The doctor also prescribed medication and recommended topical rubs. Dr. Pittman wrote that physical therapy was ordered to evaluate and treat Plaintiff's knee osteoarthritis and low back pain. Tr. at 327.

Plaintiff saw Dr. Pittman on November 26, 2007. Plaintiff reported feeling about the same with pain in her legs, back and shoulders. On physical examination there was no synovitis in the joints. Range of motion was full with mild crepitus in the knees. The doctor noted tenderness to palpation over the trapezius and paraspinal muscles in the back and some mild lower back tenderness. Muscle strength was normal. The doctor reviewed the importance of exercise, weight loss and treatment of depression. The doctor recommended using a stationary bicycle as well as water exercises. Tr. at 323. A sleep study was ordered. Tr. at 324.

On February 26, 2008, Plaintiff's blood pressure was 210/110. Tr. at 478. Plaintiff reported a breast lump, so Dr. Lockard ordered a mammogram. The doctor noted that Plaintiff was non-compliant with her blood pressure medication. The doctor discussed the high risk of stroke or heart attack. Plaintiff said she would take her medication as prescribed. On March 7, 2008, Dr. Lockard noted that the mammogram showed a small nodule but not in the area where Plaintiff had noticed a lump. Tr. at 479.

Plaintiff saw Dr. Pittman again on April 4, 2008. The pain was about the same, although it had been worse during the cold months of December and January. Tr. at 321.

Plaintiff saw Dr. Lockard on April 8, 2008 with persistent cough and fevers -- probable cough variant asthma. Tr. at 477.

On April 17, 2008, Dr. Pittman wrote to Vanitha Singaram, M.D. The purpose of the letter was to refer Plaintiff for an evaluation of hyperparathyroidism with hypovitaminosis D. The doctor said that Plaintiff's other medical conditions include morbid obesity, low back pain, and osteoarthritis of the knees. Tr. at 320.

Plaintiff saw Dr. Singaram on June 26, 2008. Tr. at 347-52. The doctor noted that Plaintiff had taken 50,000 units of

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Vitamin D once a week for three weeks, but she did not follow with a maintenance dose of the vitamin. Plaintiff admitted drinking " a lot of soda" and said that she does not exercise much. The doctor also noted a history of depression as well as hypertension, acid reflux, asthma, arthritis, epilepsy, migraine headaches, miscarriage, and pneumonia. On Review of Systems, Plaintiff complained of fatigue, nosebleeds, dyspenea on exertion, coughing and wheezing, nausea, back pain, joint pain, muscle cramps, muscle weakness, stiffness, arthritis, seizures, headache, cold intolerance, and polydipsia. Tr. at 347-48. After a physical examination, Plaintiff was informed that her vitamin D levels had returned to normal. Tr. at 349.

Plaintiff also saw Dr. Lockard on June 26, 2008. Plaintiff's blood pressure was 188/116. Tr. at 474. The doctor noted that the blood pressure was " uncontrolled with ...

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