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Fox v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

June 22, 2015

KATHERINE R. FOX, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner Social Security Administration, Defendant.

MAGISTRATE JUDGE'S REPORT & RECOMMENDATION

ERIN L. SETSER, Magistrate Judge.

Plaintiff, Katherine Fox, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for supplemental security income (SSI) under the provisions of Title XVI of the Social Security Act (Act). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).

I. Procedural Background

Plaintiff protectively filed her application for SSI on July 11, 2011, alleging disability since January 1, 2005, due to depression, high blood pressure, panic disorder, a right foot injury, and being a slow learner. (Tr. 43, 228). The relevant time period in Plaintiff's case is from July 11, 2011, to December 14, 2012. An administrative hearing was held on October 19, 2012, at which Plaintiff appeared with counsel and testified. (Tr. 57-82).

By a written decision dated December 14, 2012, the ALJ found Plaintiff's hypertension, Meniere's disease, obesity, borderline intellectual functioning, and personality disorder were severe impairments. (Tr. 43). After reviewing all of the evidence presented, the ALJ determined Plaintiff's impairments did not meet or equal the level of severity of any impairment in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 44-46). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform sedentary work except:

the claimant can frequently lift and/or carry less than ten pounds, and occasionally ten pounds, sit for a total of six hours in an eight hour work day, and stand and/or walk for at least two hours in an eight hour work day. The claimant should not be exposed to workplace hazards such as exposure to heights or dangerous machinery. The claimant is able to perform work where interpersonal contact is incidental to the work performed such as assembly work where the complexity of tasks is learned and performed by rote, there are few variables, little judgment is required, and the supervision is simple, direct, and concrete.

(Tr. 46).

With the help of a vocational expert (VE), the ALJ determined Plaintiff was unable to perform her past relevant work (PRW), but could perform the representative occupations of fishing reel assembler, dowel inspector, and addressing clerk. (Tr. 50-51). The ALJ then found Plaintiff had not been under a disability as defined by the Act during the relevant time period. (Tr. 51).

Plaintiff next requested a review of the hearing decision by the Appeals Council, which denied the request on April 7, 2014. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc. 1). Both parties have filed appeal briefs, and the case is before the undersigned for report and recommendation. (Docs. 10, 12).

II. Evidence Presented

Evidence before the relevant time period, in relevant part, shows Plaintiff was diagnosed with Bell's palsy and Meniere's disease, and she underwent a nerve compression to treat her Bell's palsy condition in 1997. (Tr. 309-310). Plaintiff also has a history of headaches, and a surgeon repaired her right foot as a child. (Tr. 335-341). In 2006, Plaintiff scored a 76 on an IQ test administered by Dr. Steve Shry placing her in the borderline range of intellectual functioning. (Tr. 417). Dr. Shry administered a second IQ test in 2008 and Plaintiff scored a 69, which suggested she was "mildly mentally retarded." (Tr. 486). In his evaluation report, Dr. Shry stated Plaintiff only scored low because she gave selective effort on subtests and opined her scattered scoring instead was evidence of a learning disability. (Tr. 487). Plaintiff was also diagnosed with hypertension, anxiety, depression, migraines, and back pain by Dr. Joe Dunaway, who prescribed lorazepam, Paxil, and metoprolol at a visit in September 2008 and Paxil, Ativan, a headache medication, and metoprolol at a follow-up visit in May 2010. (Tr. 513-514).

Dr. Don Ott, a State psychiatrist, examined Plaintiff in July 2010. (Tr. 490-496). Plaintiff reported regular daily activities and stated she did not have problem getting along with people. (Tr. 495). Dr. Ott noted antidepressants had been prescribed since 2006 and Plaintiff smoked one pack per day. (Tr. 491). He assessed Plaintiff with a mood disorder and assigned a Global Assessment of Functioning score of 50-60. (Tr. 494). He opined Plaintiff could cope with demands, although she possessed below average cognitive skills, and had no observable problems with concentration or persistence, but demonstrated delayed pace on answering questions. (Tr. 495). Dr. Garry Stewart, a State physician, examined Plaintiff on July 19, 2010, and determined Plaintiff had normal range of motion in all categories, normal gait, normal reflexes, normal grip and finger manipulation, could squat and rise, and was able to walk on her heels and toes. (Tr. 500-501). Dr. Stewart assessed Plaintiff with obesity and tobacco abuse, and opined she had no physical limitations. (Tr. 502).[1]

Plaintiff saw Dr. Dunaway on January 14, 2011, and reported increased anxiety, weight gain, and new foot pain. (Tr. 504). He assessed Plaintiff with hypertension, obesity, depression/anxiety, and foot pain (Tr. 504). Dr. Dunaway prescribed Paxil, metoprolol, Ativan, Tenuate, and Tramadol, and noted he filled out Plaintiff's "papers for leave." (Tr. 504). Dr. Dunaway completed a Medical Source Statement dated the same day.[2]

The evidence during the relevant time period is the following. Dr. Bill Payne, a State non-examining physician, submitted a physical RFC assessment dated August 23, 2011, and opined Plaintiff could occasionally lift ten pounds; sit about six hours and stand or walk about six hours in an eight hour workday; and had no push/pull, environmental, manipulative, visual, or communicative limitations. (Tr. 524-526). Dr. Payne noted Plaintiff's average daily activities indicated some limitations, but her most recent consultative exam showed no limitations, and her most recent treatment was for foot pain from her injury in the remote past. (Tr. 529). He opined Plaintiff could perform sedentary work. (Tr. 529).

On October 3, 2011, Plaintiff had new mental examination with Dr. Shry. (Tr. 530-533). Plaintiff reported problems interacting with others, social anxiety, and mood swings, but shared she had never sought mental health treatment other than one counseling session many years ago. (Tr. 530). Dr. Shry noted Plaintiff's current medications were lorazepam, Zoloft, and metoprolol, and she denied side effects. (Tr. 530). According to Dr. Shry, Plaintiff was pleasant and "very relaxed, " had a normal mood and affect, and demonstrated appropriate thought process, but referenced ideation and the rapid idealization and devaluation of those around her. (Tr. 531). Plaintiff also "did not cite difficulties performing most daily adaptive functioning tasks, " and "denied mental difficulty in performance of household chores, but reported physical difficulty." (Tr. 532-533).

Dr. Shry determined Plaintiff was in the upper end of the borderline range intellectually and met the criteria for borderline personality disorder, but noted, based on Plaintiff's self-report, she did not have problems performing most daily adaptive functioning tasks. (Tr. 532). Dr. Shry assigned Plaintiff a GAF of 60 and found she was able to communicate and interact in a socially adequate manner, capable of comprehending and carrying out simple instructions, but might be mildly impaired in her ability to cope with the mental demands of basic work tasks. (Tr. 533). He opined Plaintiff showed good mental attention and an ability to sustain concentration on basic tasks, although she did not appear to tolerate frustrations well for motivational reasons. (Tr. 533). Dr. Shry determined Plaintiff was not impaired in her ability to complete basic work like tasks within an acceptable time frame. (Tr. 533). Dr. Shry also noted Plaintiff's motivation was ...


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