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Youness v. Berryhill

United States District Court, D. Minnesota

May 18, 2018

Tanya Renea Youness, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          James H. Greeman, Esq., Greeman Toomey PLLC, counsel for Plaintiff.

          Gregory G. Brooker, Esq., Pamela A. Marentette, Esq., United States Attorney's Office, counsel for Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE.

         Pursuant to 42 U.S.C. § 405(g), Plaintiff Tanya Renea Youness seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability insurance benefits. This matter is before the Court on the parties' cross-motions for summary judgment, in accordance with D. Minn. LR 7.2(c)(1). (Doc. Nos. 13, 16.) For the reasons stated below, the Court recommends that Plaintiff's Motion for Summary Judgment be granted and Defendant's Motion for Summary Judgment be denied.

         BACKGROUND

         I. Procedural History

         Plaintiff applied for Title II disability insurance benefits (“DIB”) on November 3, 2014, alleging a disability onset date of October 8, 2014. (Tr. 184.)[1] The Social Security Administration (“SSA”) denied Plaintiff's application on January 8, 2015, and again after reconsideration on March 18, 2015. (Tr. 123-27, 130-32.) At Plaintiff's request, a hearing was held before an Administrative Law Judge (“ALJ”) on June 16, 2016. (Tr. 44-97.) The ALJ denied Plaintiff's application on August 30, 2016, and the Social Security Appeals Council denied her request for review on July 17, 2017. (Tr. 8-32, 1-7.) The Appeals Council's denial of review made the ALJ's decision the final decision of the Commissioner. 20 C.F.R. § 404.981.

         On September 1, 2017, Plaintiff filed this action seeking judicial review pursuant to 42 U.S.C. § 405(g). (Doc. No. 1.) On November 24, 2017, Defendant filed an Answer along with a certified copy of the administrative record. (Doc. Nos. 8, 9.) The parties have now filed cross-motions for summary judgment pursuant to the Local Rules. (Doc. Nos. 13, 16.) In her motion, Plaintiff alleges two errors made by the ALJ. First Plaintiff argues that the ALJ improperly rejected subjective complaints that were consistent with the record as a whole. (Doc. No. 14, Pl.'s Mem. Supp. Mot. Summ. J. (“Pl.'s Mem.”) 13- 16.) Second, Plaintiff argues that the ALJ's Residual Functional Capacity (“RFC”) Assessment is inconsistent with objective evidence regarding limitations of severe impairments. (Id. at 16-18.) Defendant disagrees and requests that the Court affirm the Commissioner's decision because substantial evidence supported the ALJ's determinations regarding Plaintiff's credibility and RFC. (Doc. No. 17, Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s Mem.”) 4-13.)

         II. Factual Background

         A. Plaintiff's basic information

         Plaintiff was born on September 24, 1966, and at the time of her alleged onset date of October 8, 2014, she was 48 years old. (Tr. 52, 98, 235.) Plaintiff is single and currently lives with her mother. (Tr. 185, 282.) She has a high school degree and self-studied to become a nationally certified pharmacy technician. (Tr. 53, 208.) From 1998 to 2004, Plaintiff worked full-time as a consumer advocate for Blue Cross Blue Shield. (Tr. 208.) The main responsibilities of her job included helping consumers with coverage issues and serving consumer needs based on their policies. (Tr. 54-58.) From May 2005 to October 2014, Plaintiff worked full-time as a certified pharmacy technician. (Tr. 208.) Plaintiff stopped working on October 8, 2014, and on October 18, 2014, Plaintiff resigned from her pharmacy technician job, allegedly following the advice of her surgeon. (Tr. 59, 74, 337.)

         B. Plaintiff's medical records

         Plaintiff has had a history of diverticulitis since 2006 and had a surgery in 2011 where twenty-four centimeters of her colon was removed. (Tr. 475, 604.) Most of Plaintiff's relevant medical records, however, come from the 2014 to 2016 timeframe. Plaintiff was hospitalized from May 2 to May 4, 2014, for abdominal pain and was discharged with a diagnosis of recurrent diverticulitis and underlying depression with anxiety. (Tr. 292-93.) Plaintiff was hospitalized again from May 9 to May 11, 2014, with abdominal pain and diarrhea, reporting “approximately 12 very watery stools” within less than one day. (Tr. 314.) She was discharged with a diagnosis of clostridium difficile colitis, recent diverticulitis, and hypertension. (Tr. 306.) Plaintiff returned to the emergency room on May 21, 2014, with diarrhea, reporting four episodes on that day. (Tr. 320-21.)

         Plaintiff was again seen in the emergency room for abdominal pain on October 8, 2014. (Tr. 324.) She returned to the emergency room on October 12, 2014, with rectal bleeding, and was diagnosed with diverticulitis of colon. (Tr. 330.) She was hospitalized between October 13-17, 2014, for abdominal pain, and was discharged with a diagnosis of acute colonic diverticulitis. (Tr. 336-37.) At that time, Plaintiff's discharge notes indicated that the surgeon advised her that “she will need to go on disability, as her diverticulitis [f]lare, seems to be precipitated by stress from her work as a pharmacy tech.” (Tr. 337.) Plaintiff had a post-hospitalization follow-up on October 27, 2014, with April Fitzloff, PA.[2] (Tr. 523-25.) Plaintiff complained about abdominal pain and looser stools, and was given a diagnosis of diverticulitis. (Id.) Plaintiff visited Fitzloff again on October 29, 2014, for anxiety and was given an assessment of “anxiety and depression surrounding a chronic medical illness with recurrent diverticulitis.” (Tr. 519-21.)

         On November 25, 2014, Dr. Marc C. Osborne performed a colonoscopy on Plaintiff, which confirmed colon diverticulitis. (Tr. 441-42.) During a surgical consultation on December 5, 2014, Dr. Osborne further recommended a colectomy. (Tr. 445-47.) Following a visit with Dr. Osborne on January 26, 2015, which confirmed the diagnosis of colon diverticulitis, Plaintiff proceeded with a redo laparoscopic left colectomy and was hospitalized from January 28, 2015 to February 2, 2015. (Tr. 463-66.) Twenty-four centimeters of Plaintiff's rectum, sigmoid, and descending colon were removed. (Tr. 475.)

         On February 9, 2015, Plaintiff visited Physician Assistant Fitzloff for ongoing pain from the procedure. (Tr. 497.) Later that month, on February 20, 2015, Plaintiff was seen by Dr. Osborne for surgery follow-up. (Tr. 581.) Plaintiff stated during this visit that overall she was “doing pretty well. She is having regular bowel movements. She is minimizing her narcotic use.” (Id.) Approximately three weeks later, on March 18, 2015, Plaintiff reported having eight bowel movements daily and sixteen to twenty foaming white stools on that day. (Tr. 597.) The following day, Plaintiff reported to the emergency room with abdominal pain and was diagnosed with diarrhea. (Tr. 621-22.) On March 26, 2015, Plaintiff reported twelve to fifteen episodes of diarrhea with some bleeding within six hours. (Tr. 599.)

         On April 10, 2015, Plaintiff visited Dr. Osborne for follow-up. (Tr. 600.) She again reported diarrhea, having “up to three bowel movements per day.” (Id.) Dr. Osborne suggested that her ongoing symptoms could be the result of anxiety rather than complications from the surgery. (Tr. 602.) He advised Plaintiff to check in with him in a month, and if she was still having altered bowel habits, he would recommend a colonoscopy. (Id.) Five days later, Plaintiff visited Physician Assistant Fitzloff, reporting eight bowel movements on an average day and fourteen to thirty bowel movements on a worse day. (Tr. 614.) On April 27, 2015, Plaintiff met with Dr. Sarah Grohn, Dr. Osborn's colleague, reporting pain, frequent gas, and passing mucus with gas. (Tr. 604.) Plaintiff also reported having soft stool eight to ten times a day, and up to twenty times on a bad day, since the colectomy surgery on January 28, 2015, and up to twenty stools on a bad day, every couple of weeks. (Id.) Dr. Grohn noted in Plaintiff's “Assessment/Plan” that “[a]s expected, some stool frequency, urgency, and alteration in bowel function can occur” after a hemicolectomy. (Tr. 606.) Dr. Grohn also talked to Plaintiff about further treatment, but Plaintiff stated she “feels like things are getting better.” (Id.) Dr. Grohn advised Plaintiff to follow up in eight weeks, “sooner if she is having worsening symptoms.” (Id.)

         After the visit on April 27, 2015, Plaintiff's complaints during doctor visits changed rather dramatically. While abdominal pain and frequent bowel movements were her chief complaints in almost every hospital visit before April 27, 2015, they were not chief complaints after that and were only occasionally mentioned upon a review of all symptoms. Below is a summary of Plaintiff's chief complaints from May 2015 to May 2016:

• On May 15, 2015, Plaintiff visited Physician Assistant Fitzloff for depression and anxiety, and reported that she “had a really good visit and feels better about her gastrointestinal symptoms.” (Tr. 616-17.)
• On May 26 and June 10, 2015, Plaintiff visited Linda Smith, APRN, CNP, for the evaluation of hypothyroidism, with her chief complaint being a thyroid problem. (Tr. 743-44, 751-52.) In a list of possible conditions, Smith noted after the category “Diarrhea/Constipation, ” “Yes: frequent bowel movements, secondary to colon surgery.” (Tr. 744, 752.)
• On July 3, 2015, during a visit with Physician Assistant Fitzloff, Plaintiff expressed concern with ongoing symptoms including fatigue, anxiety, loss of appetite, weight gain, and skin and hair problems; Plaintiff did not mention abnormal bowel movements. (Tr. 695-97.)
• On July 28, 2015, Plaintiff sought medical attention from Hans C. Bengtson, MD, and Nicholas W. Krawczyk, MD, for an ankle sprained while on vacation. (Tr. 686-94.)
• On August 5, 2015, Plaintiff visited Physician Assistant Fitzloff for high blood pressure, skin related concerns, and anxiety. (Tr. 682-84.)
• On September 9, 2015, Plaintiff had a follow-up visit with Physician Assistant Fitzloff for blood pressure, anxiety and depression, and weight gain. (Tr. 677-81.) Plaintiff stated that “she cannot believe she cannot lose weight when she ...

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