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Simms v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

February 26, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT


         Plaintiff Melissa Simms (“Simms”), in her appeal of the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny her claim for Disability Insurance benefits (DIB), contends the Administrative Law Judge (“ALJ”) erred: (1) in determining her residual functional capacity (“RFC”), primarily by improperly evaluating the opinion of treating physician Dr. Vellozo; and (2) by improperly evaluating her subjective complaints. The parties have ably summarized the medical records and the testimony given at the administrative hearing conducted on June 16, 2016. (Tr. 33-55). The Court has carefully reviewed the record to determine whether there is substantial evidence in the administrative record to support Berryhill's decision. 42 U.S.C. § 405(g). The relevant period under consideration is from September 12, 2014, through August 17, 2016, when the ALJ ruled against Simms. Although Simms alleged an earlier onset date, the pertinent starting date for this case is September 12, 2014, because a prior decision was issued on September 11, 2014. Res judicata precludes consideration of the claim through the date of the prior decision.

         The Administrative Hearing:

         Simms, who was 46 years old at the time of the administrative hearing, attended school through the tenth grade, later earning a GED. She has past relevant work experience as a certified nurse's aide, and worked until 2012. According to Simms, her disabling problems include back pain, leg numbness, ankle and knee problems, wrist pain, carpal tunnel syndrome (“CTS”) in both hands, sleep problems, and hearing loss. As a result of her impairments, Simms indicated she could stand for 20-25 minutes before needing a 30 minute rest period, could peel potatoes for 10-15 minutes before needing a 5-10 minute recovery period, could lift 5 pounds, and could not sit and focus for very long.[1] She described very limited daily activities. According to Simms, she has trouble going to sleep at night, often falling asleep at 1 or 2 a.m. She stated she wakes up at 7 or 8 am but does not feel rested. After making coffee and watching television, Simms typically sleeps on her couch until early afternoon. Then, she stated she does housework in small doses. Although she can drive, she does not like to do so because it is painful. Other than occasionally going shopping with her husband, Simms stated she only visits her mother and her grandchildren. Simms deals with her impairments by taking prescription pain medication, a muscle relaxer, over-the-counter medication, and by limiting her activity. Simms acknowledged that her treating physician had not taken any recent MRIs or x-rays, had not referred her to an orthopedist or surgeon, and had not referred her for physical therapy. She also conceded that Dr. Woloszyn recommended she have CTS release in 2015 but she declined to do so because others, including her sister, told her the surgery would not be effective. (Tr. 36-51).

         Dianne Smith (“Smith”), a vocational expert, stated Simms' past work as a certified nurse's aide was semi-skilled work, often performed at the heavy exertional level. The ALJ posed a hypothetical question to Smith, asking her to assume a worker of Simms' age, education, and experience, who could perform light work but only occasionally stoop, kneel, crouch, or crawl, could perform frequent but not constant fingering and grasping with the bilateral upper extremities, is limited to communicating and hearing simple instructions due to hearing issues, and who should not be in a noise environment above the moderate level as defined in the Dictionary of Occupational Titles. Smith responded that such a worker could not perform Simms' past relevant job but could perform other jobs, such as marking clerk or production assembler. A second hypothetical question was posed, assuming the same parameters as in the first hypothetical but adding the restrictions that the worker would be off task 20% of the work day and would miss at least 3 days per month on an unscheduled basis. Smith identified no jobs for the worker described in the ALJ's second hypothetical question. (Tr. 52-55).

         ALJ's Decision:

         In his August 17, 2016, decision, the ALJ determined Simms had the following severe impairments: degenerative disc disease; osteoarthritis of the knee, hypertension, CTS, obstructive sleep apnea, and bilateral hearing loss. The ALJ further determined Simms had the RFC to perform light work with the restrictions which mirrored those posed to Smith in the ALJ's first hypothetical question. The ALJ, citing the appropriate factors, assessed Simms' subjective allegations, finding that her statements “concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record. . .” (Tr. 23). In reaching this conclusion, the ALJ considered the testimony at the administrative hearing, the responses submitted by Simms in a Function Report dated March 2015, as well as the medical history and records, with a focus on the records generated during the relevant period. The ALJ considered the opinion of treating physician Vellozo, finding it was not consistent with the record as a whole, and assigning it “little weight.” (Tr. 23). The ALJ also evaluated the findings of state agency physicians Jerry Thomas and Robert Redd. These physicians were accorded “partial weight” because the ALJ found their conclusion that Simms' hearing issues were nonsevere was not supported by the record. The ALJ also cited the absence of any back surgery to support his finding that Simms' back problems were not as severe as suggested by her testimony. Relying upon Smith's testimony that Simms could perform the jobs of marking clerk and production assembler, the ALJ concluded Simms was not disabled. (Tr. 16-26).

         Medical Evidence During the Relevant Period:

         The ALJ acknowledged significant treatment records for Simms from 2002 through September 2014, the date of the decision in her prior case. Following is a summary of her treatment during the relevant period, from September 12, 2014, through August 17, 2016, the date of the ALJ's decision:

01/22/2015 Simms is seen at Lawrence Health Services, complaining of pain in all of her body, worse in her hands and feet, elevated blood pressure, dizziness, and sleep issues. Diagnosis was diabetes, chronic pain, degenerative joint disease, peripheral neuropathy, and hypercholesterolemia. She was prescribed Tramadol, Doxepin, and Lisinopril. (Her most recent medical care prior to this visit was a nerve conduction study performed in August 2014.) (Tr. 462-463).
02/26/2015 Returning to Lawrence Health Services, Simms complained of increased pain in her back and hands. Diagnosis was diabetes, insomnia, and severe hypercholesterolemia. Prescriptions were refilled. (Tr. 460-461).
05/26/2015 Simms returned to Lawrence Health Services for lab work. She complained of a spot on her left hand, and indicated she snored. The care plan for this visit called for a topical cream, Topomax, and a sleep study to be done. (Tr. 565-566).
06/23/2015 Dr. John Jiu evaluated Simms' hearing for the social security administration, diagnosing mixed hearing loss, bilateral, and Eustachian tube dysfunction, bilateral. Dr. Jiu prescribed Prednisone. (Tr. 593-596).
06/29/2015 Simms was seen at Family Medical Clinic for “1 mo. ck. up.” (Tr. 602). A comparison of signatures shows that Dr. Vellozo (“Vellozo”) was her physician at Family Medical Clinic. (Tr. 603, 682, 689). Simms told Vellozo the Tramadol was not working and an upcoming sleep study was noted. (Tr. 602-603).
07/28/2015 Dr. John Woloszyn, an orthopedist, saw Simms for hand pain and numbness, and recommended surgery, explaining “in detail” why she “absolutely needs to have this done.” Without the surgery, he explained that the “median ...

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