United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
Melissa Michele Jones,  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 claims for a period of disability
and disability insurance benefits (DIB) and supplemental
security income (SSI) under the provisions of Titles II and
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.
filed her applications for DIB and SSI on April 10, 2014,
alleging disability since April 10, 2009, due to lipoma,
hypertension, diabetes mellitus, osteoarthritis, and bone
spurs. (Tr. 94, 103, 115, 128, 150, 153, 159, 162, 237-249).
An administrative hearing was held on February 18, 2015, at
which Plaintiff appeared with counsel and testified. (Tr.
34-87). By written decision dated July 13, 2016, the ALJ
found that during the relevant time period, Plaintiff had an
impairment or combination of impairments that were severe.
(Tr. 11). Specifically, the ALJ found Plaintiff had the
following severe impairments: diabetes, hypertension,
cervical lipoma, degenerative disc disease, obesity and
reading problems. (Tr. 11). However, after reviewing all of
the evidence presented, the ALJ determined that
Plaintiff's impairments did not meet or equal the level
of severity of any impairment listed in the Listing of
Impairments found in Appendix I, Subpart P, Regulation No. 4.
(Tr. 14). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that she can frequently rotate, flex and
extend her neck, frequently reach bilaterally, including
reaching overhead, and frequently operate foot controls with
her right lower extremity. In addition, she is limited to
jobs that do not require complex written communication.
the help of the vocational expert (VE), the ALJ determined
that during the relevant time period, Plaintiff did not have
any past relevant work, but that there were other jobs
Plaintiff would be able to perform, such as production
assembler and newspaper deliverer. (Tr. 24-25).
then requested a review of the hearing decision by the
Appeals Council, which denied that request on August 26,
2016. (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. 11, 13).
time of the administrative hearing held on February 18, 2015,
Plaintiff was forty-seven years of age and had completed the
eleventh grade, but did not obtain a General Equivalency
Diploma (GED). (Tr. 44). The ALJ determined that
Plaintiff's work experience did not constitute past
relevant work. (Tr. 24-25).
review of the pertinent medical evidence reflects the
following. On February 26, 2009, Plaintiff went to the
emergency department of Siloam Springs Memorial Hospital
(SSMH) reporting symptoms of a panic attack with chest pain
and midsternal chest pressure. (Tr. 621-626). A chest X-ray
revealed no evidence of acute disease. (Tr. 625). Dr. Robert
Maul, Jr. diagnosed her with costochondritis and prescribed
Norco. (Tr. 622-624).
medical evidence continues after the alleged onset date of
April 10, 2009. On July 27, 2009, she went to the emergency
department of SSMH complaining of left knee pain. (Tr.
604-613). A left knee X-ray revealed moderate joint effusion
in association with mild irregularity posterior medial aspect
of the tibial plateau. (Tr. 611). She was diagnosed with left
knee strain and instructed to follow up with an orthopedic
evaluation. (Tr. 606, 608).
December 15, 2009, Plaintiff went to the emergency department
of SSMH and complained of chest pain that worsened with deep
breaths. (Tr. 628-640). An electrocardiogram (EKG) was normal
with ST elevation. (Tr. 632). A chest X-ray showed a normal
size heart and clear lungs. (Tr. 638). Dr. Robin McAlister
diagnosed her with acute chest pain, pleuritis, reactive
airways, and hyperglycemia. (Tr. 632).
3, 2010, Plaintiff returned to the emergency department of
SSMH, and she complained of radiating pain after the return
of a lipoma on the posterior neck. (Tr. 642-644, 652).
Plaintiff had not been taking hypertension or diabetes
medications because she reportedly could not afford the
medications. (Tr. 643). A computerized tomography (CT) scan
of her neck revealed mild thyromegaly and no mass or abscess.
(Tr. 644, 652). She was diagnosed with neck pain and
cellulitis of the posterior neck. (Tr. 644).
19, 2010 and June 9, 2010, Plaintiff went to the emergency
department of SSMH complaining of chest pain and was
diagnosed both times with chest pain. (Tr. 653-675).
Plaintiff again reported that she was not taking her diabetes
and hypertension medications due to lack of funds. (Tr. 654).
27, 2010, Plaintiff presented to the emergency department of
SSMH complaining of anxiety after witnessing a family fight.
(Tr. 676-682). Again, she was noncompliant with her
medications. (Tr. 677). Plaintiff was diagnosed with anxiety,
hypertension, and diabetes. (Tr. 680).
first physical consultative examination was performed on July
7, 2010 by Dr. Tad M. Morgan. (Tr. 436-440). Plaintiff
reported smoking eight cigarettes a day and was attempting
smoking cessation. (Tr. 436). She stated to Dr. Morgan that
her left knee felt unstable on occasion. (Tr. 437). Plaintiff
reportedly could walk one block continuously, but then she
had to stop and rest for ten minutes. (Tr. 437). An
examination showed that she was 71.75 inches tall, weighed
321.25 pounds, and her blood pressure was 140/90. (Tr. 437).
Plaintiff had a supple soft tissue mass on her neck, a normal
range of motion in her extremities and spine, and a negative
straight leg raising exam bilaterally. (Tr. 438-439). Dr.
Morgan noted that she had normal reflexes, no muscle weakness
or atrophy, and normal gait or coordination. (Tr. 439).
Plaintiff could not walk on heel and toes because it made her
feet hurt, and she could not squat or arise from a squatting
position due to her left knee. (Tr. 439).
Morgan diagnosed her with non-insulin dependent diabetes
mellitus, recent onset by history; soft tissue mass on the
posterior of neck, clinical significance; knee pain with
unknown etiology; and chest pain that was non-cardiac by
history. (Tr. 440). Dr. Morgan assessed that Plaintiff had
mild limitations to walk, stand, lift, or carry. (Tr. 440).
began going to the Community Clinic in Siloam Springs for
medical care. On July 8, 2010, she went to the clinic for
diabetes medications and a follow up regarding smoking
cessation. (Tr. 569-572). Plaintiff reported she was down to
ten cigarettes per day and planned to reduce it to six the
next day. (Tr. 569). Plaintiff stopped taking Lorazepam
because she stated it made her mean. (Tr. 569). She was not
taking any medications because she reportedly could not
afford them. (Tr. 569). Her glucose was 276 at the office
visit. (Tr. 569). Ms. Vicki Moore, A.P.N. diagnosed her with
uncontrolled diabetes and depression with anxiety. (Tr. 569).
Ms. Moore prescribed Metformin, Paxil, and Atenolol. (Tr.
15, 2010, Plaintiff returned to the Community Clinic. (Tr.
567-568). Plaintiff reported Paxil was helping. (Tr. 567).
She reported having trouble sleeping and would still get
dizzy at times. (Tr. 567). Ms. Moore referred the Plaintiff
to diabetes education and started Doxepin. (Tr. 568).
22, 2010, Plaintiff went to the Community Clinic for an
initial diabetes education visit. (Tr. 565-566). Ms. Bettie
Skelton, R.N., C.D.E. noted that Plaintiff cared for small
children, did housework, and was up to walking ten minutes a
day. (Tr. 565). Plaintiff reported Doxepin was not helpful,
but she had been getting four hours of sleep at night rather
than just two hours. (Tr. 565). Plaintiff was instructed to
monitor capillary blood glucose (CBG) twice a day and record
the results, continue the exercise plan, and stop drinking
sugared sodas. (Tr. 566).
29, 2010, Plaintiff returned to the Community Clinic. (Tr.
563-564). Plaintiff reported she was feeling good, food was
beginning to taste better, her exercise was up to 15 minutes,
and she was pleased with her weight loss. (Tr. 563). Ms.
Skelton wrote that Plaintiff's CBG was uncontrolled, but
during the office visit it was down to 205. (Tr. 563). The
interim goal for the Plaintiff was a five percent weight loss
in 8-16 weeks and to increase activity to 30 minutes a day.
August 17, 2010, non-examining consultant, Dr. Patricia
McCarron completed a Physical Residual Functional Capacity
Assessment. (Tr. 441-448). Dr. McCarron found that Plaintiff
could occasionally lift and/or carry, including upward
pulling, ten pounds. (Tr. 442). Dr. McCarron found Plaintiff
could frequently lift and/or carry, including upward pulling,
less than ten pounds. (Tr. 442). Dr. McCarron assessed
Plaintiff could stand at least two hours in an eight-hour
workday, sit six hours in an eight-hour workday, and her push
and/or pull abilities were unlimited. (Tr. 442). Dr. McCarron
found she had no postural, manipulative, visual, or
communicative limitations. (Tr. 443-445). Plaintiff's
environmental limitations were all unlimited with the
exception that she should avoid even moderate exposure to
dust, fumes, gases, and etcetera due to a history of chronic
smoking. (Tr. 445). Dr. McCarron assessed that the medical
evidence records supported a sedentary residual functional
capacity with avoidance of even moderate exposure to dust and
fumes. (Tr. 448).
November 1, 2010, Plaintiff went to the emergency department
of SSMH due to complaints of chest pain. (Tr. 481-503,
685-700). Upon examination, she had moderate reproducible
chest wall tenderness. (Tr. 484). A chest X-ray revealed no
acute disease. (Tr. 484). Her glucose was 392, aspartate
aminotransferase (AST) was 71, and alanine aminotransferase
(ALT) was 189. (Tr. 484). Dr. Matthew Walter stressed the
need for Plaintiff to recheck sugar levels with her primary
care physician. (Tr. 484). Dr. Walter diagnosed Plaintiff
with chest wall pain, and she reported feeling better upon
discharge. (Tr. 484-485).
November 26, 2010, Plaintiff returned to the emergency
department of SSMH complaining of hyperglycemia due to
diabetes. (Tr. 463-480, 701-716). Her glucose level was 534.
(Tr. 465). She was diagnosed with uncontrolled diabetes
mellitus and acute cephalgia. (Tr. 465). The next day, Dr.
Jeffrey Hamby discharged her and prescribed Metformin and
Glipizide. (Tr. 466).
December 2, 2010, Plaintiff presented herself to Ozark
Guidance for mental health treatment. (Tr. 538-542). Ms.
Donna Copeland, L.P.C. found Plaintiff had an Axis I
diagnosis of major depressive disorder that was recurrent,
severe without psychotic features, and full interepisode
recovery. (Tr. 542). Notably, Plaintiff was grieving the
passing of her mother and other family members. (Tr. 542).
Plaintiff had an additional Axis I diagnosis of alcohol
abuse, panic disorder with agoraphobia, amphetamine
dependence in early full remission, and bereavement. (Tr.
542). The Axis II diagnosis was deferred to Axis I and
cluster B traits. (Tr. 542). At Axis III she was found to
have diabetes with unspecified complication type II, neck
pain, knee pain, and obesity. (Tr. 542). Her global
assessment of functioning (GAF) score was 45. (Tr. 542). Ms.
Copeland found Plaintiff had social environment, education,
access to health care, occupational, and economic problems.
(Tr. 542). Plaintiff reported that she had not worked since
her mother passed away in 1998. (Tr. 542). The recommended
treatment was crisis stabilization, family and individual
therapy or counseling, intervention, and medication
management. (Tr. 542).
December 21, 2010, Plaintiff went to the emergency department
of SSMH requesting medication after becoming upset when her
children began fighting. (450-462, 717-727). A psychological
review of her symptoms showed she was agitated, anxious, and
frustrated. Her glucose level was at 430. (Tr. 453).
Plaintiff was diagnosed with acute anxiety, uncontrolled
diabetes mellitus, and noncompliance with medication. (Tr.
453). Dr. Hamby prescribed her Paroxetine and Glucophage.
January 4, 2011, Plaintiff returned to Ozark Guidance to
complete a master treatment plan with Ms. Copeland and Dr.
Ford. (Tr. 549-553). Her diagnosis remained the same from the
December 2, 2010 assessment, and Dr. Ford confirmed Plaintiff
had depression and anxiety. (Tr. 550-551). The possible need
for Plaintiff to take medication was noted. (Tr. 551). The
initial plan was for individual therapy or counseling every
three weeks, a psychiatric consultation, monthly medication
management if needed, and monthly intervention including
nursing and nutritional consultations. (Tr.551-552). The
long-term goal target date was set for April 4, 2011. (Tr.
January 25, 2011, Plaintiff underwent a mental consultative
examination conducted by Dr. Terry L. Efird. (Tr. 505-509).
Plaintiff reported having a history of depression and anxiety
symptoms since her mother's death in 1998, anxiety
attacks twice a week, crying frequently, and a recognition
that her symptoms have become more severe. (Tr. 505).
Paroxetine was prescribed through the Community Clinic with
no reported side effects. (Tr. 506). She reportedly has been
prescribed psychiatric medications for about ten years, and
the current medications had been a little helpful. (Tr. 506).
Plaintiff reported suicidal ideations on occasion. (Tr. 505).
Plaintiff had a history of drug use, but she denied current
illegal substance use. (Tr. 506). Dr. Efird noted that her
affect was appropriate, mood was generally dysphoric, and an
undercurrent of anger or irritability was indicated. (Tr.
506-507). Fund of general information suggested probably
average intellectual functioning, she recalled five digits
forward and backward, and she performed serial threes at an
adequate pace. (Tr. 507).
Efird diagnosed Plaintiff with major depressive disorder,
moderate; pain disorder without agoraphobia; and her GAF
score was 55-65. (Tr. 508). Dr. Efird wrote that Plaintiff
endorsed the ability to shop independently, handle personal
finances, and perform most activities of daily living
adequately, but she was impaired to some extent due to
physical pain. (Tr. 508). She reported interacting socially
with her friend that lives next door every day and text
messaging others daily. (Tr. 508). Dr. Efird found she
communicated and interacted in a reasonably socially
adequate, intelligible, and effective manner. (Tr. 508). Dr.
Efird assessed that she had the capacity to perform basic
cognitive tasks required for basic work-like activities. (Tr.
508). No remarkable problems with attention or concentration
were noted during the evaluation. (Tr. 508). Dr. Efird noted
she generally completed most tasks during the evaluation, had
no remarkable problems with persistence, and appeared to have
the mental capacity to persist with tasks if desired. (Tr.
508). Plaintiff completed most tasks within an adequate time
frame, and no remarkable problems with mental pace of
performance were found. (Tr. 508). She could also manage
funds without assistance. (Tr. 509). No evidence of
malingering was present. (Tr. 508-509).
January 31, 2011, non-examining consultant, Dr. Christal
Janssen completed a Psychiatric Review Technique and Mental
Residual Functional Capacity Assessment. (Tr. 510-526). Dr.
Janssen cited Listings 12.04, 12.06, and 12.09 as the
categories upon which the disposition was based. (Tr. 510).
Listing 12.04 regarded affective disorders, and Dr. Janssen
noted Plaintiff had disturbance of mood, accompanied by a
full or partial manic or depressive syndrome as evidenced by
depressive syndrome. (Tr. 513). Listing 12.06 regarded
anxiety-related disorders, and Dr. Janssen noted Plaintiff
had anxiety as the predominant disturbance or anxiety
experienced in the attempt to master symptoms. (Tr. 515).
Plaintiff's anxiety was evidenced by recurrent, severe
panic attacks occurring on the average of at least once a
week. (Tr. 515). Listing 12.09 regarded substance addiction
disorders, and Dr. Janssen noted Plaintiff had behavioral or
physical changes associated with the regular use of
substances that affected the central nervous system. (Tr.
518). Dr. Janssen assessed that Plaintiff had mild
limitations with activities of daily living; mild limitations
with social functioning; and moderate limitations maintaining
concentration, persistence, or pace. (Tr. 520). No episodes
of decompensation were noted. (Tr. 520).
ability to maintain attention and concentration for extended
periods was moderately limited. (Tr. 524). Dr. Janssen also
found she was moderately limited in her 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. (Tr. 525). Plaintiff's ability to respond
appropriately to changes in the work setting and to set
realistic goals to make plans independently of others was
also moderately limited. (Tr. 525). Dr. Janssen assessed that
Plaintiff appeared able to perform semi-skilled work, meaning
work where interpersonal contact is ...