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Wittmer v. Colvin

United States District Court, S.D. Indiana, New Albany Division

October 19, 2016

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



         Plaintiff Laurene M. Wittmer (“Wittmer”) requests judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), denying her applications for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), and Supplemental Security Income (“SSI”) under Title XVI of the Act.[1]For the following reasons, the Court AFFIRMS the decision of the Commissioner.

         I. BACKGROUND

         A. Procedural History

         On December 28, 2011, Wittmer protectively filed an application for DIB, alleging a disability onset date of November 1, 2010, due to fibromyalgia, irritable bowel syndrome, and allergies. She filed an application for SSI on July 13, 2012, alleging the same disability onset date of November 1, 2010. Her claims were initially denied on June 25, 2012, and again on reconsideration on September 10, 2012. Wittmer filed a written request for a hearing on September 13, 2012. On January 22, 2014, a hearing was held via video conference before Administrative Law Judge Larry A. Temin (the “ALJ”). Wittmer was present and represented by counsel. A vocational expert, George E. Parsons, appeared and testified at the hearing. On February 27, 2014, the ALJ denied Wittmer's applications for DIB and SSI. Following this decision, Wittmer timely requested review by the Appeals Council which later denied her request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. On September 16, 2015, Wittmer filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         B. Factual Background

         At the time of her alleged disability onset date, Wittmer was thirty-five years old, and she was thirty-eight years old at the time of the ALJ's decision. Wittmer has a bachelor's degree from Hanover College with a double major in elementary education and Spanish. She has a fairly good work history. Wittmer was employed as a full-time elementary school teacher from August 1998 through May 2003. She stopped working as a school teacher because she could not tolerate working under the fluorescent lights in the classrooms. Prior to the November 2010 onset of her alleged disability, she had a short-term front desk job at a motel and seasonal work at a state park as a front gate attendant. For about seven months, she worked as an officer manager at an automotive shop.

         A progress note for a wellness check on December 18, 2009, noted that Wittmer had “active problems” of fibromyalgia, irritable bowel syndrome, abdominal pain, and “taking blood thinners for a long time.” (Filing No. 14-9 at 71-72.) The progress note indicated that Wittmer was taking Cymbalta for fibromyalgia, and she was taking medications to manage her allergies. Id.

         In January 2010, Wittmer went to the hospital because she was experiencing abdominal pain. (Filing No. 14-10 at 2.) A CT scan revealed findings consistent with appendicitis. Wittmer underwent surgery to have her appendix removed. (Filing No. 14-9 at 200.) Throughout 2010 and 2011, she met with medical providers, complaining of abdominal pain, nausea, and vomiting, and she had x-rays, CT scans, and ultrasounds performed. These tests generally revealed normal findings. Some of Wittmer's treatment notes indicated that she had reflux, and many of the notes indicated continued problems with fibromyalgia and irritable bowel syndrome. (Filing No. 14-9 at 190.) During this time period, much of Wittmer's medical care was provided by nurse practitioner Heidi Frey (“Ms. Frey”).

         In August 2010, Wittmer was seen for chest pressure and shortness of breath. (Filing No. 14-9 at 66.) It was determined that Wittmer had bronchitis, and she was prescribed medication. More than a year later, in October 2011, Wittmer again complained of chest pain and shortness of breath. She had a chest x-ray performed, which revealed normal findings. (Filing No. 14-9 at 186.)

         In April 2012, Wittmer had a chest x-ray and blood work completed because of a fever and cough. (Filing No. 14-8 at 17.) The chest x-ray revealed normal findings. A few days later, she was hospitalized because of abdominal pain, fever, and dehydration. Tests indicated a small hiatal hernia with reflux as well as gastritis. Irritable bowel syndrome also was noted. Some of her blood work was elevated and chest x-rays were normal. She did have a fever. The hospital notes indicated that “[i]t is unclear if she could have lupus.” (Filing No. 14-8 at 2-3, 19, 24.)

         On May 18, 2012, Wittmer presented to Steven Neucks, M.D. (“Dr. Neucks”), a rheumatologist, because of a referral from Ms. Frey. (Filing No. 14-10 at 20.) Dr. Neucks noted Wittmer's prior diagnoses of fibromyalgia, irritable bowel syndrome, and blood clots. He noted her pain, stiffness, and fatigue as well as her various medications. Dr. Neucks recorded Wittmer's complaints of headaches, rashes and other symptoms. He noted her family history of rheumatoid arthritis, and when Wittmer had been recently tested at the hospital, she had a positive antinuclear antibody “ANA” test. She also had a fever with no known underlying cause. In connection with her blood clots, she was found to have a lupus anticoagulant.

         Dr. Neucks' physical examination of Wittmer revealed normal findings. However, Dr. Neucks indicated that Wittmer had Raynaud's phenomenon, a sign of lupus. Id. at 21. Dr. Neucks' joint examination of Wittmer revealed tender points, swelling in the knee and wrist joints, DIPs 1 bony enlargement, and knees 1 bony enlargement, but otherwise good range of motion, good alignment, and normal findings. Id. at 20-21. His impression was to strongly consider a diagnosis of systemic lupus erythematosus. He noted that Wittmer's fibromyalgia was “well documented” and that he believed Wittmer is “a candidate for disability.” Id. at 22. He recommended that Wittmer increase her Cymbalta to treat the fibromyalgia, and he started her on Plaquenil to treat lupus.

         Wittmer returned to Dr. Neucks for a follow-up appointment on July 16, 2012, for her pain and stiffness. Dr. Neucks noted Wittmer's achy and stiff joints, fever, and malar rash. Dr. Neucks gave a diagnosis of systemic lupus erythematosus and noted that his impression and treatment plan remained unchanged. (Filing No. 14-10 at 19.)

         At her next follow-up appointment with Dr. Neucks on October 11, 2012, Wittmer had trigger points on her neck and back and had moderately stiff and achy joints. She had a malar rash and continued having occasional fevers. Dr. Neucks noted that Wittmer's disability applications had been denied, and he also noted that he believed her condition had worsened since her visit in July. He continued to diagnose Wittmer with lupus. (Filing No. 14-13 at 10.)

         At Wittmer's follow-up appointment on January 15, 2013, Dr. Neucks noted that her joints were mildly achy and stiff, and she still had a rash and occasional fever. His impression remained unchanged from the October 2012 visit. Id. at 9. Wittmer had additional follow-up appointments with Dr. Neucks on April 15 and July 16, 2013, which were generally unchanged from the previous visits with the continued diagnosis of lupus. Id. at 7-8.

         On October 24, 2013, Wittmer went to Dr. Neucks for a “lupus follow-up.” Dr. Neucks indicated that Wittmer's lupus led to fatigue, weakness, numbness, and nausea, and was exacerbated by walking and weather. He noted that her symptoms were relieved with rest. He also noted that Wittmer reported her pain was constant and was usually an eight on a scale up to ten. Dr. Neucks recorded Wittmer's medical history of lupus, fibromyalgia, irritable bowel syndrome, blood clots, and rash among other things. In reviewing Wittmer's symptoms, Dr. Neucks noted her fatigue, joint pain, swollen joints, stiffness, abdominal pain, nausea, vomiting, headaches, and dizziness. Upon physical examination, most of Wittmer's joints were within normal limits, but she did have trigger points in her neck and back and a tender, swollen right knee with decreased range of motion. She also still had a malar rash. Dr. Neucks' diagnosis of lupus remained unchanged. (Filing No. 14-13 at 3-6.)

         Approximately two months before this last follow-up appointment, Dr. Neucks completed a medical and work functioning assessment of Wittmer for an Indiana state agency. In his September 3, 2013 assessment, Dr. Neucks opined that Wittmer was totally unable to participate in employment and training activities based on her primary diagnoses of lupus and fibromyalgia. He opined ...

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