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McDowell v. Colvin

United States District Court, N.D. Indiana, South Bend Division

March 18, 2014

ROBIN R. McDOWELL, Plaintiff,


JON E. DEGUILIO, District Judge.

Plaintiff, Robin McDowell (McDowell), filed a complaint on November 13, 2012 seeking review of the final decision of the Defendant, Commissioner of Social Security (Commissioner). (DE 1) With the filing of the opening brief (DE 17), response brief (DE 23), and reply brief (DE 26), this matter is ripe for ruling. Jurisdiction is established pursuant to 42 U.S.C. ยง 405(g).


McDowell filed for Supplemental Security Income on July 1, 2008, claiming she became disabled on April 12, 2008 on account of numerous problems including multiple sclerosis or lupus, arthritis/muscle/joint/back/leg pain, depression, loss of grip and shaking of the hands, and difficulty walking. (R. 178, 205) McDowell's application for benefits was denied on November 21, 2008. (R. 75) After reconsideration, the application was again denied on March 10, 2009. (R. 80) On April 23, 2009, McDowell filed a request for an administrative hearing seeking a finding of disability due to fibromyalgia, chronic pain syndrome, asthma, chronic obstructive pulmonary disease (COPD), arthritis, restless leg syndrome, major depressive disorder with psychotic features, and generalized anxiety disorder. (R. 84, 299-300) A hearing was held on June 24, 2011, in front of Administrative Law Judge Monica Lapolt (ALJ). (R. 40-72) McDowell testified at the hearing, as did vocational expert Gail Franklin (VE). Id. On July 15, 2011, the ALJ rendered a decision in which she concluded that McDowell was not disabled under the meaning of the Social Security Act because she retained the residual functional capacity (RFC)[2] to perform jobs that exist in significant numbers in the national economy. (R. 21-33). McDowell filed a request for review which was denied by the Appeals Council on September 25, 2012. (R. 1, 15) On November 13, 2012, McDowell filed a complaint with this Court requesting a review of the Commissioner's final decision. (DE 1)


McDowell was born on January 19, 1972 and has completed the 10th grade. (R. 44) She previously worked as a cashier, bartender, and fast food worker. (R. 31, 206) She was 36 years old when she filed for disability benefits and 38 years old at the time of the ALJ's decision. (R. 33, 44, 178)

A. Impairments

The record reflects a history of treatment for anxiety and pain dating back to 2001, and thereafter, the extensive medical evidence submitted by McDowell covers numerous impairments. (R. 302-697)

1. Medical Evidence from 2001-2004

On January 12, 2001, McDowell first reported to Dr. Knapp concerns about having anxiety attacks, sometimes as many as two a day, and crying/shaking spells. (R. 548) Dr. Knapp concluded McDowell was suffering from stress, acute anxiety, and depression, and as a result, prescribed Valium, Zoloft, Trazodone, and Lorazepam for the short term only. (R. 549) On November 17, 2001, McDowell reported to the emergency room due to anxiety, chest pains, light headedness, and stomach spasms. (R. 544) McDowell followed up with Dr. Knapp twice following the ER visit. (R. 542-5) By July of 2002, Dr. Knapp stated that McDowell was still dealing with anxiety and depression, and still taking Zoloft. (R. 523)

Due to suffering from joint pain, McDowell presented to Dr. Ulker Tok for a rheumatology consultation on February 6, 2004. (R. 468-70) McDowell described occasional diffuse swelling of her hands. (R. 468) Dr. Tok noted that McDowell appeared anxious, tearful, and irritable. (R. 468) Further, Dr. Tok observed tenderness on the joint margins of her shoulders with "active resistance and rigidity to passive range of motion" and he documented "a fine resting tremor of the upper extremities and some cogwheel rigidity of the arms." (R. 469) Dr. Tok ordered diagnostic testing and referred McDowell for a neurology evaluation. (R. 470) Dr. Tok concluded that McDowell did not seem to have an inflammatory rheumatic disease, muscle weakness, or any focal neurological deficit, and noted that McDowell's musculoskeletal exam was normal. (R. 470) Dr. Tok also noted McDowell's significant emotional irritability and believed McDowell likely had an anxiety disorder, and therefore he recommended a psychiatric evaluation. (R. 469-70)

On March 23, 2004, McDowell visited neurologist Dr. Cary reporting intermittent numbness, tingling, and pain in her hands and arms. (R. 315) McDowell described pain that was "cramping, dull, aching, numbing, gnawing, shooting and stabbing" which "comes and goes." (R. 315) Dr. Cary ordered MRIs of her brain to rule out a demyelinating disorder and he ordered an electromyography (EMG) of her limbs to rule out radiculopathy. (R. 317) Additionally, Dr. Cary recommended neck exercises, physical therapy, and applying heat to her neck, shoulders, and low back. (R. 317) Ultimately, the tests returned unremarkable results. (R. 303, 305, 467) An electrophysiological exam conducted by Dr. Cary was also normal. (R. 305) McDowell continued to complain of weakness in her arms and joints through April of 2004. (R. 503)

At a follow-up with Dr. Cary on June 25, 2004, McDowell complained of deep aching in her arms and right posterior chest. (R. 465) McDowell also described intermittent weakness of her right arm. (R. 465) Dr. Cary noted that the nerve conduction studies were negative and posited that she had "intermittent ill-defined myalgias of the right upper extremity and right posterior chest wall." (R. 466) On August 4, 2004, a pulmonary function test by Sierra Vista Regional Health Center showed that McDowell had minimal airway obstruction and a response to bronchodilators indicating asthma. (R. 502) The test indicated a normal gas volume result and a normal DLCO diffusion capacity.[3] (R. 502)

2. Medical Evidence from 2008-2009

On October 30, 2008, state agent Stephen Bailey performed a psychiatric review technique assessment and opined McDowell had no medically determinable psychiatric impairment. (R. 370-382). Stephen Bailey noted that while McDowell is very detailed about her physical problems, she did not mention any mental symptoms except to say that her physical inability to do things she once did was depressing. Id.

On November 14, 2008, McDowell was examined by Dr. Jerome Rothbaum of the Arizona Disability Determination Services. (R. 384-96) Dr. Rothbaum noted that McDowell appeared anxious and had bilateral hand tremors, more on the right hand than the left. (R. 386) Rothbaum concluded that McDowell was suffering from asthma, noncardiac chest pain, anxiety, restless leg syndrome, athralgia ("etiology undetermined") and tremors, but did not believe the conditions warranted any work limitations for twelve continuous months. (R. 388)

On November 20, 2008, Dr. Estes reviewed the evidence of record and concluded that any somatic impairment was non-severe. (R. 397-8) On January 27, 2009, Dr. Fahlberg reviewed the evidence and also concluded that "[n]o somatic MDI [medically determinable impairment] is established." (R. 401-2)

On February 18, 2009, McDowell presented to Dr. Hoffman for a psychiatric consultation regarding her pending claim. (R. 405-408) McDowell complained of pain, difficulty sleeping, diminished energy and appetite, difficulty concentrating, loss of interest, and suicidal ideation. (R. 405) Dr. Hoffman noted McDowell went out to eat with her family about once a month and also played in a billiards league but generally avoided social events as much as possible. (R. 406) Dr. Hoffman documented that McDowell "frequently moved her legs during the exam secondary to pain.' She cried/teared up continually during the exam... presented [with] what appeared to be both a mildly dysthymic and mildly anxious mood. Affect was congruent with both mood and thought content." (R. 407) Noting McDowell's son died in a motor vehicle accident approximately one year beforehand, which McDowell continued to experience nightmares from, Dr. Hoffman diagnosed McDowell with major depressive disorder with a need to rule out post-traumatic stress disorder. (R. 407-408) Dr. Hoffman also noted that she suffered from chronic pain in her wrists, shoulders, arms, and legs, numbness in her hands, and decreased coordination. Id.

On March 10, 2009, Dr. Garland, a psychological consultant, completed a mental RFC assessment and psychiatric review technique assessment. (R. 410-28) Dr. Garland believed that McDowell suffered from major depressive disorder resulting in moderate limitations with activities of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace, but found that she did not suffer from any episodes of decompensation or evidence establishing the presence of "C" criteria. (R. 415-28) In the RFC assessment, Dr. Garland determined McDowell was moderately limited with regard to: the ability to understand and remember detailed instructions; the ability to carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; the ability to interact appropriately with the general public; the ability to accept instructions and respond appropriately to criticism from supervisors; the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and the ability to respond appropriately to changes in the work setting. (R. 410-2) Ultimately, Dr. Garland concluded that McDowell was able to meet the mental demands of "competitive remunerative, unskilled work on a sustained basis... in settings of low social contact" including the ability to understand, remember and carry out simple instructions, make judgments commensurate with unskilled work, respond appropriately to supervision and co-workers, and deal with changes in a routine work setting. (R. 413)

On July 22, 2009, McDowell presented to Dr. Cahn for a neurology examination and consultation. (R. 449-51) McDowell complained of occasional numbness and tingling in all of her fingertips, occasional tremors in both hands, and sporadic episodes of diminished coordination affecting her hands and feet. (R. 449) After an unremarkable examination, Dr. Cahn concluded the claimant's symptoms presented no pattern and her history "suggest[ed] possible fibromyalgia plus restless leg symptoms." (R. 451) Dr. Cahn wrote that EMG testing might be warranted if her numbness and paresthesia should worsen or persist. (R. 451)

On September 11, 2009, McDowell was seen for the first time at Four County Counseling Center where an intake report was completed. (R. 623-29) McDowell was suffering from severe depressive symptoms due to the loss of her son in a motor vehicle accident on April 23, 2008. (R. 625) McDowell reported having hallucinations since his death, both hearing his voice and seeing his shadow. (R. 625) McDowell described having anxiety attacks in public including shaking and heart palpitations. (R. 625) McDowell reported she had considered suicide in order to be with her son and had formulated a plan. (R. 626) Additionally, McDowell indicated that due to the symptoms she was unable to work. (R. 625) McDowell was assigned a Global Assessment of Functioning (GAF) score of 49.[4] (R. 628) The reported diagnostic impressions were severe major depressive disorder with psychotic features and anxiety disorder. (R. 625)

On October 1, 2009, McDowell went to Four County Counseling Center and reported suffering from a depressed mood, feelings of hopelessness and worthlessness, diminished energy, poor appetite, difficulty sleeping, and anxiety. (R. 429-35) McDowell again reported being overwhelmed by the symptoms caused by the loss of her son. (R. 430) McDowell was diagnosed with major depressive disorder (recurrent, severe) with psychotic features, generalized anxiety disorder, and bereavement, and was assigned a GAF score of 29.[5] (R. 434-35)

During a follow up on November 9, 2009 with Dr. Cahn, McDowell reported feeling "wobbly" and exhausted and she reported joint pain. (R. 447) Dr. Cahn wrote the "[e]xam was somewhat limited at the proximal upper and lower extremities [due] to antalgic guarding, also with some mild give-way weakness at the more distal upper extremities." (R. 448) Dr. Cahn concluded, "I believe she has restless leg syndrome and fibromyalgia, possibly exacerbated by anxiety" and prescribed Meclizine for her vertigo, quinine water for her restless leg symptoms, and recommended a sleep study. (R. 448)

3. Medical Evidence from 2010

During another follow up with Dr. Cahn on January 6, 2010, McDowell reported episodes of vertigo, persistent joint pain, and diminished motion. (R. 444) Dr. Cahn documented "multifocal tenderness to light pressure over multiple joints diffusely and bilaterally" as well as "mild give-way weakness and antalgic hesitation" upon examination. (R. 445) Dr. Cahn observed "some mild patchy sensory changes to multiple modalities which do not follow any dermatomal distribution." (R. 445) Dr. Cahn wrote, "She may have a very early rheumatoid arthritis versus fibromyalgia syndrome, though I suspect many of her symptoms appear related at least in part to some psychogenic overlay." (R. 444-5) Dr. Cahn noted that McDowell had previously not followed through on recommended treatments for her restless leg syndrome. (R. 445)

On February 16, 2010, McDowell underwent a sleep study, which revealed evidence of severe periodic limb movements with some arousals and "minimal sleep disorder breathing." (R. 453) On March 17, McDowell complained to Dr. Cahn of getting poor sleep and having diffuse pain throughout her lower extremities and feet. (R. 442) Dr. Cahn documented "diffuse mild tenderness and palpable mild spasm over the cervical paraspinals and trapezius bilaterally." (R. 443) He further observed that she had a limited range of motion with antalgic guarding. (R. 443) Dr. Cahn started McDowell on a titrating dose of Savella for her pain. (R. 443) On March 31, Dr. Cahn administered occipital nerve block and trigger point injections for her headaches, neck and shoulder pain, and occipital neuralgia. Before doing so, he wrote as follows:

The patient was evaluated and was found to have tenderness to palpation and light pressure over the right occipital prominence and occipital nerve insertion point, with light pressure eliciting discomfort and parethesias along the ipsilateral occipital nerve territory. She was found to have an additional eight trigger points identified by tenderness and palpable muscle spasm at: The right upper cervical paraspinals (C3); the bilateral mid cervical paraspinals (C5); the bilateral lower cervical paraspinals (C6-C7); the bilateral medial trapezius ridge, and the right lateral trapezius ridge. (R. 441)

At a follow up on April 28, 2010, McDowell reported obtaining some relief from her headaches, neck pain, and muscle pain from the injections, but complained that the pain and muscle tightness were "starting to creep back." (R. 439) Dr. Cahn observed that she had limited motion in the cervical spine due to antalgic guarding, as well as "some ...

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