United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN, UNITED STATES MAGISTRATE JUDGE
Sherry Lanelle Nipp, 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. §
living in Oklahoma, Plaintiff protectively filed applications
for DIB and SSI on February 22, 2011, alleging an inability
to work since June 15, 2010,  due to problems with her back,
esophageal problems, gastroesophageal reflux disease,
depression, and bipolar disorder. (Tr. 71, 75, 79, 161). For
DIB purposes, Plaintiff maintained insured status through
September 30, 2014. (Tr. 21, 208, 380). An administrative
video hearing was held from McAlester, Oklahoma, on December
6, 2012. (Tr. 39). Plaintiff and counsel appeared via video
conference from Fort Smith, Arkansas, and Bonnie M. Ward,
Vocational Expert (VE), was also present. (Tr. 39-67). Both
Plaintiff and Ms. Ward testified. (Tr. 39-67). The ALJ issued
a written opinion dated February 28, 2013, where he found
that the Plaintiff had not been under a disability within the
meaning of the Social Security Act. (Tr. 32). Plaintiff
subsequently appealed the decision to the Appeals Council,
who declined to reverse the decision. (Tr. 1-6). Plaintiff
then appealed the decision to the United States District
Court for the Eastern District of Oklahoma. While
Plaintiff's complaint was pending before the United
States District Court, Plaintiff filed subsequent
applications for DIB and SSI on September 26, 2014 and
October 10, 2014, respectively, both of which were denied by
hearing decision issued on November 13, 2015. (Tr. 1057).
Plaintiff appealed the decision to the Appeals Council, and
on March 24, 2016, the Appeals Council remanded for further
consideration of evidence in the record. (Tr. 1057). On
September 30, 2015, the United States District Court reversed
and remanded for further proceedings. (Tr. 1039-1054).
December 13, 2016, a hearing was held at which Plaintiff
appeared with counsel and testified. (Tr. 399-425). David
Elmore, Vocational Expert (VE), also testified. (Tr.
428-431). In a written opinion dated January 30, 2017, the
ALJ found that the Plaintiff had the following severe
impairments: obesity, degenerative disc disease, mood
disorder, anxiety disorder, post-traumatic stress disorder,
and a personality disorder. (Tr. 381). However, after
reviewing the evidence in its entirety, the ALJ determined
that the Plaintiff's impairments did not meet or equal
the level of severity of any listed impairments described in
Appendix 1 of the Regulations (20 CFR, Subpart P, Appendix
1). (Tr. 381-384). 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
Plaintiff can only occasionally stoop and/or crouch, and she
is limited to the performance of unskilled work with only
occasional contact with supervisors, coworkers, and the
general public. (Tr. 384). With the help of VE testimony, the
ALJ determined that Plaintiff was unable to perform her past
relevant work as a certified nurse's aide (CNA) and home
health aide. (Tr. 388). However, based on the Plaintiff's
age, education, work experience, and RFC, the ALJ determined
that Plaintiff was capable of work as a marker and a
cleaner/housekeeper. (Tr. 390). Ultimately, the ALJ concluded
that the Plaintiff had not been under a disability within the
meaning of the Social Security Act during the relevant time
period of June 15, 2010, the alleged onset date, through
January 30, 2017, the date of the ALJ's opinion. (Tr.
Plaintiff requested a review of the hearing decision by the
Appeals Council, and that request was denied on July 25,
2014. (Tr. 1-6). Plaintiff filed a Petition for Judicial
Review of the matter on April 5, 2017. (Doc. 1). Both parties
have submitted briefs, and this case is before the
undersigned for report and recommendation. (Docs. 12, 13).
Court has reviewed the transcript in its entirety. The
complete set of facts and arguments are presented in the
parties' briefs and are repeated here only to the extent
hearing before the ALJ on December 6, 2012, Plaintiff
testified that she was born in 1965 and had obtained a GED
and her certified nurse's aide certification. (Tr. 46).
Plaintiff's past relevant work consisted of work as a
certified nurse's aide as well as a home health aide.
to the relevant time period, Plaintiff was seen by various
healthcare providers for the following health issues:
bronchitis, sinusitis, headaches, chest pain, chronic back
pain, shoulder pain, leg pain and numbness, GERD, slow
digestion, constipation, and gastroparesis. Plaintiff was
treated conservatively with pain medication, and she
underwent an upper endoscopic procedure and imaging of her
back and shoulder.
evidence during the relevant time period reflects that on
October 29, 2010, Plaintiff presented at the East Texas
Gastroenterology Associates where she was diagnosed with GERD
and gastroparesis and provided medication refills. (Tr. 317).
March 30, 2011, Plaintiff was seen at the Family Medical
Clinic to establish care, to obtain prescription medication
for pain in her back and neck, as well as numbness in her
legs, and for an evaluation of her symptoms of acid reflux.
10, 2011, Plaintiff underwent a Consultative Examination by
Theresa Horton, Ph.D. Plaintiff reported back problems,
esophageal problems, depression, and bipolar disorder. (Tr.
326). Plaintiff reported that her health conditions began to
interfere with work in 2009. (Tr. 326). Plaintiff reported
crying uncontrollably and that she had only about two days a
week where she felt physically able to do anything around her
house. (Tr. 326). Plaintiff reported that she received
counseling during her previous marriage, but had not received
any other mental health treatment. Plaintiff reported being
able to care for her own personal hygiene and being able to
cook and clean with her daughter's help. (Tr. 327). She
stated that she spent a lot of time dealing with stressful
family events and stated that she experienced feelings of
guilt and shame. (Tr. 327). Dr. Horton observed that
Plaintiff was cooperative, walked into the appointment
without assistance but with a slow and awkward gait, appeared
to sit comfortably, and appeared to experience pain when
rising from a seated position. (Tr. 327). Dr. Horton opined
that her thought processes were logical, organized and goal
directed; her mood was predominately depressed; she was
oriented to time and place; and her judgment was appropriate.
(Tr. 327). She was diagnosed with major depressive disorder,
recurrent, moderate to severe, and anxiety disorder with
dependent personality traits. (Tr. 329). Dr. Horton concluded
that Plaintiff appeared to be capable of understanding,
remembering and managing simple and complex instructions and
tasks, and capable of adequate social and emotional
adjustment into occupational and social settings. (Tr. 329).
She would likely, however, benefit from counseling due to her
family situation. (Tr. 329).
3, 2011, Plaintiff underwent a Consultative Examination by
Patrice Wagner, D.O. Plaintiff reported chronic back pain,
possibly as the result of her work as a nurse's aide.
(Tr. 318). Plaintiff reported that she believed she suffered
from a nervous breakdown over the last year, that she was not
able to function normally, that she did minimal household
chores, that she was able to complete all ADL's
independently, and that she was able to drive. (Tr. 318). Dr.
Wagner observed that Plaintiff was cooperative, her speech
was intelligible, and her thought processes were normal. (Tr.
318). Plaintiff's physical examination was normal,
including a full ROM in her spine and a stable gait. (Tr.
319). Dr. Wagner assessed Plaintiff with chronic back pain,
GERD, gastroparesis, depression, and bipolar disorder. (Tr.
319). Dr. Jeffrey Watts interpreted Plaintiff's x-ray
views of her lumbar spine, which showed normal alignment,
preserved vertebral body heights, mild disc flattening and
endplate spurring at ¶ 4- 5, and minimal anterior
endplate spurring at ¶ 3. Overall, Plaintiff had mild
degenerative disc disease at ¶ 4-5. (Tr. 325).
18, 2011, Plaintiff presented at the Family Medical Clinic
for symptoms of depression and anxiety. (Tr. 367).
6, 2011, Dr. Joy Kelley, Ph.D., a non-examining medical
consultant, completed a Psychiatric Review Technique. (Tr.
331-343). Dr. Kelley opined that the medical evidence did not
support the level of limitations alleged and that Plaintiff
was capable of semiskilled work. (Tr. 343). In a Mental RFC
Assessment, also performed by Dr. Kelley, she opined that
Plaintiff could perform simple and some complex tasks, could
relate to others on a superficial work basis, and could adapt
to a work situation. (Tr. 345-347).
21, 2011, Dr. Walter W. Bell, a non-examining medical
consultant, completed a Physical RFC Assessment. (Tr.
348-356). Dr. Bell determined that Plaintiff was capable of
light work. (Tr. 350).
September 27, 2011, Dr. Sharon Ames-Dennard, Ph.D., affirmed
the Mental RFC Assessment by Dr. Kelley. (Tr. 359).
October 7, 2011, Dr. Carmen Bird affirmed the Physical RFC
assessment by Dr. Bell. (Tr. 360).
March 9, 2012, Plaintiff visited the Family Medical Clinic
for symptoms of social anxiety, for which she was treated
conservatively with medication. (Tr. 368).
presented to the Family Medical Clinic on April 4, 2012, for
a follow up after she sustained a fall. Dr. William Willis
suspected Plaintiff had a torn ligament in her knee and a
chipped bone in her ankle. (Tr. 363). Dr. Willis wanted to
see previous x-ray reports and recommended a possible
referral to orthopedics. (Tr. 363).
1, 2012, Plaintiff visited the Family Medical Clinic with
complaints of left foot pain. (Tr. 364). Plaintiff requested
stronger pain medication. Plaintiff was assessed with severe
arthritic changes and pain in the left knee, “possibly
bone to bone.” (Tr. 364). Clinic notes indicate that a
referral to orthopedics was necessary. (Tr. 364). Also on
that day, Plaintiff tested positive for THC. (Tr. 896).
August 31, 2012, Plaintiff visited Family Medical Clinic for
medication refills. (Tr. 370). Clinic notes indicate that
Plaintiff was doing well and that she had seen an
orthopedist. (Tr. 370). She was assessed with joint pain
secondary to severe knee disease. (Tr. 370).
September 10, 2012, Plaintiff visited the Family Medical
Clinic for problems with nightmares, for which she was given
medication. (Tr. 371).
December 19, 2012, Dr. Willis completed a Medical Source
Statement wherein he opined that Plaintiff could sit, stand,
and walk for fifteen minutes at a time during an eight-hour
day, could sit and stand for forty minutes total during an
eight-hour day, and could walk for twenty minutes total in an
eight-hour day. (Tr. 372). He opined that she could rarely
lift and/or carry ten pounds and never lift and/or carry more
than ten pounds. (Tr. 372-373). In addition, Plaintiff could
never push/pull, work in extended position, work above
shoulder level, work overhead, reach, grasp with either hand,
finger with either hand, squat, crawl, stoop, crouch, kneel,
balance, or climb, and could rarely bend. (Tr. 373-374). Dr.
Willis opined that Plaintiff had marked restriction on
unprotected heights and dangerous moving machinery and must
completely avoid handling vibrating tools. She was moderate
limitations in the following areas: exposure to extremes and
sudden or frequent changes in temperature and/or humidity,
exposure to respiratory irritants, driving/riding in
automotive equipment, exposure to high noise levels, and
limitation on fine visual acuity. (Tr. 374). Dr. Willis
stated that his objective basis for determining the
limitations described in his RFC evaluation was the evidence
of Plaintiff's bulging discs. (Tr. 374).
April 8, 2013, Dr. Robert Spray, Ph.D., completed a
Psychological Evaluation where Dr. Spray noted that Plaintiff
reported having done marijuana “all [her] life”
and was currently seeing a drug counselor. (Tr. 838-839).
During the mental status examination, Dr. Spray made the
following observations: that Plaintiff's speech was
spontaneous, but circumstantial, tangential, and pressed;
that her attitude was cooperative; that she saw “traces
- like you think you saw somebody walk by;” that she
had racing thoughts that often distracted her; that she would
cry on occasion as she awoke from sleep; that she had
episodes of anxiety; that she would avoid groups of people;
and that she would experience flashbacks from the abuse she
suffered as a child. (Tr. 839). Dr. Spray's Axis I
diagnostic impression was mood disorder, as well as anxiety
disorder with PTSD issues, and an Axis II diagnostic
impression of personality disorder, with dependent and
borderline features. (Tr. 839). Dr. Spray assessed Plaintiff
with a GAF score of 50. (Tr. 839).
April 22, 2013, Dr. Robert Spray, Ph.D., completed a Medical
Source Statement wherein he found moderate, marked, and
severe limitations in many areas. (Tr. 840-843).
2, 2013, Plaintiff presented at the Family Medical Clinic for
refills on her hydrocodone and Prozac. (Tr. 891).
September 4, 2013, Plaintiff presented at the Family Medical
Clinic with Dr. Willis for a refill of her medications for
her chronic back pain. (Tr. 889). She was assessed with
chronic pain, chronic obstructive pulmonary disease by
history, gastroesophageal reflux disease, and anxiety and
depression. (Tr. 889).
January 10, 2014, Plaintiff visited Poteau Health for a
breast exam and mammography referral. (Tr. 869). Clinic
records indicate that Plaintiff was a smoker. (Tr. 870).
Plaintiff was referred for a diagnostic mammogram due to a
breast lump or mass that was assessed. She was also
instructed to lose weight, to exercise at least three times
per week for twenty minutes, and to follow a low fat, low
sodium diet. (Tr. 872).
January 15, 2014, Plaintiff underwent a comparison mammogram
at Eastern Oklahoma Medical Center, where benign findings
resulted. (Tr. 867). The report also indicated that there was
no change in ...