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Krista W. v. Berryhill

United States District Court, D. Utah Central Division

June 18, 2018

KRISTA W., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND AFFIRMING DECISION OF THE COMMISSIONER

          Brooke C. Wells United States Magistrate Judge

         Judge Brooke Wells This case is before the undersigned following the parties consent under Federal Rule of Civil Procedure 73.[1] Plaintiff Krista W[2] alleges disability beginning on October 1, 2010[3] due to interstitial cystitis, [4] fibromyalgia, pain and fatigue.[5] Following her first hearing on March 13, 2013, the Administrative Law Judge (ALJ) rejected her claims and the Appeals Council remanded directing the ALJ to obtain updated evidence regarding Plaintiff's bladder and kidney issues, further evaluate her subjective complaints and consider her maximum residual functional capacity (RFC), obtain supplemental evidence from a vocational expert, consider new evidence, give Ms. W a new hearing and issue a new decision.

         Following an additional hearing held in September 2015, the ALJ issued a decision finding Plaintiff capable of performing her past work as a medical receptionist, order clerk and telephone clerk. Thus she was not disabled. This appeal followed. The court heard argument on Plaintiff's appeal and having further considered the relevant case law and record, affirms the decision of the Commissioner.

         BACKGROUND[6]

         Plaintiff applied for disability insurance benefits in 2011 alleging disability on October 1, 2010.[7] She alleges disability due to interstitial cystitis, [8] fibromyalgia, pain and fatigue.[9] Ms. W completed two years of college and has past relevant work as a medical receptionist, order clerk and telephone clerk.[10]

         The ALJ followed the standard five-step sequential evaluation process for disability claims.[11] The ALJ found Plaintiff had the severe impairments of fibromyalgia, disorders of the joints, obesity, interstitial cystitis and a history of renal stones.[12] The ALJ determined Ms. W had the RFC to perform light work with some limitations including avoiding certain hazards such as unprotected heights, machinery and dangerous work areas.[13] The analysis then proceeded to step four where the ALJ found Ms. Williams capable of performing her past work as a medical receptionist, order clerk and telephone clerk. Thus she was not disabled.

         STANDARD OF REVIEW

         Because the Appeals Council denied the claimant's requested review the ALJ's decision is considered the Commissioner's final decision for purposes of this appeal.[14] The court reviews the ALJ's decision to determine whether the correct legal standards were applied and whether the factual findings are supported by substantial evidence in the record.[15] “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[16]“A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.”[17] In considering claimant's appeal the court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.”[18]

         DISCUSSION

         On appeal Plaintiff raises two issues. First, the ALJ erred by failing to properly incorporate into the RFC all the limitations stemming from Plaintiff's interstitial cystitis (IC), which was found to be a severe impairment. Second, the ALJ erred by failing to properly evaluate the opinion of Plaintiff's treating physician consistent with the regulations and Tenth Circuit precedent.

         I. The RFC and limitations from Plaintiff's IC

         Plaintiff argues the ALJ failed to properly account for the limitations created by IC, an impairment found to be severe. In particular, the ALJ did not account for the “significant amount of time Plaintiff would miss from work in order to obtain the only possible treatment for her impairment.”[19] Plaintiff underwent a treatment called dimethyl sulfoxide (DMSO) for her IC. Plaintiff would have “severe symptomology in the days following DMSO treatments” which were not accounted for in the RFC. This was error, according to Ms. W, and it necessitates a remand.

         The ALJ noted Ms. W's DMSO treatment history in the decision. For example, in July 2011 Plaintiff told Dr. Stockdale, her primary treating physician for bladder pain, that her bladder was better with DMSO treatment.[20] Plaintiff eventually stopped DMSO treatment for six months and reported in April 2013 that her symptoms, such as bladder pain, frequent urination and an inability to sit, become worse.[21] In June 2013 she had another DMSO treatment, along with a treatment for kidney stones, and those treatments provided some relief. In 2015 Ms. W requested and received DMSO treatments.[22] The ALJ also noted the inconsistencies in side effects. In April 2013 Ms. W reported her “DSMO treatments bothered her for one week after, but she did not indicate that her symptoms were so severe as to prevent all work activity.”[23] In June 2013 Ms. W “did not mention DMSO side effects or complications.”[24] Later, in 2015, Plaintiff's DMSO treatments helped control her symptoms “and no side effects were reported that would prevent sustained work activity.”[25] Based on these statements it is clear to the court that the ALJ considered Plaintiff's DMSO treatments and the side effects such treatments created.

         The regulations provide that “Your residual functional capacity is the most you can still do despite your limitations. We will assess your residual functional capacity based on all the relevant evidence in your case record.”[26] Although the ALJ found Plaintiff's IC severe, the variations in side effects and complications in the record from DMSO treatments supports the ALJ's decision to not include side effects and complications from the treatments in the RFC. In short, the record contains support for both the idea that Plaintiff has limitations arising from the side effects of treatment, and the idea that they are not as severe as she alleges. The ALJ is entitled to resolve such evidentiary conflicts.[27] The court is not persuaded by Plaintiff's argument.

         II. Medical opinion evidence

         Ms. W next argues the ALJ erred by failing to evaluate the opinion of her treating physicians consistent with the regulations and Tenth Circuit precedent. An ALJ must “give consideration to all the medical opinions in the record [and] discuss the weight [she] assigns to such opinions.”[28] When assessing medical opinions, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c) and give good reasons for the weight she assigns to the opinion.[29] The opinions of physicians who have treated a patient over a long period are given greater weight than reports of physicians employed and paid by the government for purposes of defending against a disability claim.[30] An ALJ need not “apply expressly each of the six relevant factors in deciding what weight to give a medical opinion”[31] Rather the ALJ need only provide “good reasons in his decision for the weight he gave treating sources' opinions.”[32]

         Here the ALJ weighed the medical opinion evidence as follows. Dr. Karl Kale's, Plaintiff's treating physician's, opinion was given little weight. Dr. Kale opined Plaintiff could not work. In rejecting that opinion and giving little weight to Dr. Kale's opinion, the ALJ noted the inconsistencies in treatment notes and inconsistencies with the record as a whole. Specifically, the ALJ pointed to evidence indicating Plaintiff's bladder “was significantly better since ...


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