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New v. Berryhill

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

April 23, 2018

CHARLOTTE NEW PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION AND ORDER

         Plaintiff Charlotte New (“New”) began this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, she challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon the findings of an Administrative Law Judge (“ALJ”).

         New maintains that the ALJ's findings are not supported by substantial evidence on the record as a whole.[1] New first maintains that her residual functional capacity was erroneously assessed, in part, because the ALJ improperly rejected the opinions of Dr. Rolland Hollis, M.D., (“Hollis”). New also alleges the following: “[t]he vocational expert failed to address whether the jobs he identified could be performed with a sit-stand option, ” and “[t]he ALJ[] failed to include any limitation ... that accounts for New's borderline intellectual functioning, ” see Docket Entry 13 at CM/ECF 32.

         New filed her application for supplemental security income payments on August 20, 2014. At the beginning of the administrative hearing, she amended her onset date. The amended onset date was August 20, 2014, or the date she filed her application. The ALJ denied the application on April 8, 2016. The relevant period in this case is thus from August 20, 2014, through April 8, 2016. Evidence prior to August 20, 2014, will nevertheless be considered in order to place her impairments in an historical context.

         New has ably summarized the evidence in the record, and the Commissioner has not challenged the summary. It will not be reproduced, except to note several matters germane to the issues raised in the parties' briefs.

         The record reflects that prior to August 20, 2014, New sought medical care for chronic obstructive pulmonary disease (“COPD”) and acute bronchitis. See Transcript at 655-657 (12/05/2013), 647-648 (02/07/2014), 506-517 (02/12/2014), 444-505 (02/15/2014), 421-443 (02/25/2014), 407-420 (03/04/2014), 645-647 (03/07/2014), 394-406 (03/13/2014), 375-387 (04/22/2014), 363-374 (05/26/2014), 636-637 (08/16/2014), 337-360 (08/17/2014).[2] She reported difficulties breathing, shortness of breath, coughing, and wheezing. A February 12, 2014, chest x-ray showed haziness in her left lung. See Transcript at 510. A May 26, 2014, chest x-ray, though, showed that her chest was “stable.” See Transcript at 369. She received supplemental oxygen and breathing treatments for her symptoms and was prescribed treatment that included a Pro-Air inhaler.

         New sought medical care for chest pain and/or heart-related issues prior to August 20, 2014. See Transcript at 326-327, 568-569 (11/04/2013); 518-542 (01/26/2014). She presented to an emergency room on November 4, 2013, complaining of chest pain and angina. Following testing, she underwent a percutaneous coronary intervention.[3] Upon her discharge, she was diagnosed with, inter alia, coronary artery disease secondary to atherosclerotis heart disease and prescribed medication. She presented to an emergency room on January 26, 2014, complaining of exertional chest pain. An EKG showed normal sinus rhythm, and a troponin test was negative. A stress echocardiogram was negative for myocardial ischemia and low probability for coronary artery disease. She was diagnosed with, inter alia, coronary artery disease secondary to atherosclerotis heart disease and continued on her medication.

         New sought medical care for back and joint pain prior to August 20, 2014. See Transcript at 664-665 (09/24/2013), 662-663 (10/02/2013), 654-655 (12/11/2013), 642-644 (05/05/2014), 638-640 (06/30/2014), 637-638 (07/09/2014), 331-335 (08/07/2014). Tenderness was noted in her back, and she had a reduced range of motion in her leg joints. She was prescribed medications that included Gabapentin.

         New also sought medical care for depression and anxiety prior to August 20, 2014. See Transcript at 661-662 (10/28/2013), 652-654 (12/20/2013), 650-652 (01/09/2014), 649-650 (01/17/2014), 640-641 (06/12/2014). She reported that she oftentimes felt on edge, feared losing control, and had difficulty sleeping. She was prescribed medication that included Xanax.

         The record reflects that after August 20, 2014, New continued to seek medical care for COPD and acute bronchitis. See Transcript at 634-636 (08/29/2014), 741-750 (09/17/2014), 727-740 (09/21/2014), 632-634 (10/03/2014), 702-714 (11/16/2014), 672-701 (12/02/2014), 846-857 (03/07/2015), 817-831 (06/15/2015), 859-895 (09/05/2015). She continued to report difficulties breathing and shortness of breath. She reported on at least one occasion that her difficulties breathing were not relieved with the use of supplemental oxygen or breathing treatments. Chest x-rays, though, showed nothing acute and were unremarkable for any significant abnormality. A pulmonary function study was performed on October 22, 2014, and it produced unremarkable results. See Transcript at 617-623. She was continued on supplemental oxygen and breathing treatments and prescribed medications.

         Beginning on October 30, 2014, and continuing through September 16, 2015, New saw Hollis on what appears to have been eight occasions for several complaints. See Transcript at 761 (10/30/2014), 760 (11/26/2014), 759 (12/22/2014), 757-758 (01/26/2015), 767 (03/17/2015), 766 (04/21/2015), 765 (06/22/2015), 905 (09/16/2015). His progress notes reflects that during the period, her blood pressure was oftentimes elevated, she experienced shortness of breath and coughing, and she suffered bouts of anxiety. An x-ray during the period revealed moderate degenerative changes in her right knee joint and minimal osteoarthritis in her left knee joint. He repeatedly diagnosed hypertension; arteriosclerotic heart disease (“ASHD”), status post stent; COPD; congestive heart failure; osteoarthritis of the knees; depression; and a generalized anxiety disorder. He prescribed medication, injections of Depomedrol, continued use of inhalers, and encouraged her to stop smoking.

         After August 20, 2014, New continued to seek medical care for pain in her back, chest, abdomen, legs, and knees. See Transcript at 716-717 (11/11/2014); 846-857 (03/07/2015); 832-845 (05/05/2015); 769-777 (05/10/2015); 780-810 (07/13/2015); 896-903 (08/14/2015); 911-913 (12/11/2015); 46, 48-49 (06/27/2016, or outside the relevant period). Medical testing on November 11, 2014, showed degenerative disc space narrowing and osteophytosis of the lumbar spine at ¶ 2-L3 and L3-L4. EKGs and chest x-rays were unremarkable, as was an x-ray of her knee. On June 27, 2016, a MRI of her lumbar spine showed scoliosis with mild degenerative changes in her lumbar spine, and a CT scan of her chest showed evidence of possible inflammation and nodules. She was diagnosed with impairments that included chronic low back pain and neuropathic pain.

         New sought medical care specifically for depression and anxiety on what appears to have been one occasion after August 20, 2014, see Transcript at 596-608 (02/02/2014), although she complained of depressive symptoms during examinations that were primarily for other impairments. Her symptoms appear to have been brought on by the deaths of people close to her. She reported, inter alia, a sad mood, loss of interest, decreased appetite, insomnia, restlessness and agitation, difficulties concentrating, and panic attacks. A depressive disorder and anxiety were diagnosed. Individual therapy was recommended.

         On July 12, 2016, or outside the relevant period, New underwent an intellectual assessment performed by Amy Flaherty, LPE-I (“Flaherty”). See Transcript at 40-42. Testing showed that New had, inter alia, a full scale IQ score of seventy-one. Flaherty's conclusions were as follows:

Results are not consistent with a diagnosis of Intellectual Disability. It seems that [New's] physical and mental health problems have likely taken a toll on her cognitive ability, although it is not severe enough at this time to warrant an intellectual disability diagnosis.
Is the individual's education and developmental history consistent with a diagnosis of Intellectual Disability? NO.
Are the deficits in adaptive functioning consistent with Intellectual ...

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