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Nipp v. Berryhill

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

July 2, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration DEFENDANT



         Plaintiff, 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. § 405(g).

         I. Procedural Background:

         While living in Oklahoma, Plaintiff protectively filed applications for DIB and SSI on February 22, 2011, alleging an inability to work since June 15, 2010, [2] 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).

         On 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. 390).

         Subsequently, 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).

         The 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 necessary.

         II. Evidence Submitted:

         At the 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. (Tr. 388).

         Prior 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.

         Medical 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).

         On 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. (Tr. 361).

         On May 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).

         On May 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).

         On May 18, 2011, Plaintiff presented at the Family Medical Clinic for symptoms of depression and anxiety. (Tr. 367).

         On June 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).

         On June 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).

         On September 27, 2011, Dr. Sharon Ames-Dennard, Ph.D., affirmed the Mental RFC Assessment by Dr. Kelley. (Tr. 359).

         On October 7, 2011, Dr. Carmen Bird affirmed the Physical RFC assessment by Dr. Bell. (Tr. 360).

         On March 9, 2012, Plaintiff visited the Family Medical Clinic for symptoms of social anxiety, for which she was treated conservatively with medication. (Tr. 368).

         Plaintiff 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).

         On June 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).

         On 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).

         On September 10, 2012, Plaintiff visited the Family Medical Clinic for problems with nightmares, for which she was given medication. (Tr. 371).

         On 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).

         On 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).

         On 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).

         On May 2, 2013, Plaintiff presented at the Family Medical Clinic for refills on her hydrocodone and Prozac. (Tr. 891).

         On 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).

         On 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).

         On 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 ...

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