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Ethridge v. Berryhill

United States District Court, E.D. Arkansas, Little Rock Division

July 25, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security DEFENDANT




         The following Findings and Recommendation (“Recommendation”) has been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.


         Rebecca Ethridge (“Ethridge”) applied for social security disability benefits with an alleged disability onset date of May 2, 2013. (R. at 105). After a hearing, the administrative law judge (ALJ) denied her application. (R. at 29). The Appeals Council denied Ethridge's request for review. (R. at 1). The ALJ's decision now stands as the Commissioner's final decision, and Ethridge has requested judicial review.

         For the reasons stated below, the Court recommends reversing and remanding the Commissioner's decision.

         I. The Commissioner's Decision

         The ALJ found that Ethridge had the severe impairment of fibromyalgia. (R. at 21). The ALJ found that Ethridge had the residual functional capacity (RFC) to perform sedentary work except that she could lift and carry up to ten pounds occasionally; sit a total of six hours in an eight-hour workday; stand and walk a total of two hours in an eight-hour workday; occasionally stoop, crouch, bend, kneel, crawl, and balance; would require an option to stand after sitting more than one hour, which would last no more than ten minutes, be performed in the immediate workplace area, and would not interrupt to the work process; and could understand, remember and carry out complex instructions and respond to changes in the workplace. (R. at 23). The ALJ took testimony from a vocational expert, William Elmore (Elmore”), that Ethridge could perform her past relevant work as a corporate recruiter/trainer. (R. at 29). Elmore explicitly described Ethridge's past work as a skilled job requiring the worker to remember and understand complex work instructions. Therefore, the ALJ held that Ethridge was not disabled. (R. at 29).

         II. Summary of Medical Evidence During the Relevant Period

         Ethridge first presented to Dr. Byron Curtner (“Curtner”) in October 2012, several months prior to the alleged onset date of May 2, 2103. She described a history of fibromyalgia. During a November 14, 2013 visit with Dr. Curtner, Ethridge was taking tramadol, Ambien, and skelaxin, as well as Motrin. (R. at 416). She said she still hurt but was getting by okay. (R. at 416). On January 16, 2014, she was “getting by ok” with her fibromyalgia and was taking tramadol three times a day and Ambien nightly. (R. at 526). She visited Curtner for follow-up on April 3, 2014, where her earlier diagnosis of fibromyalgia was noted. (R. at 523). Curtner encouraged exercise for the fibromyalgia. (R. at 524).

         Nicolas Rios, Psy. D., (“Rios”), performed a consultative mental examination on May 14, 2014. (R. at 443). He diagnosed depressive disorder, NOS and rule-out panic disorder. (R. at 445). He assessed Ethridge's Global Assessment of Functioning (GAF) score as 51-60. (R. at 445). Rios observed Ethridge to have average intellectual abilities, reasoning skills, and general fund of information, but that her “attention and recall skills seemed low average.” (R. At 444). Rios also found her impairments interfered at least mildly with her day-to-day adaptive functioning, she had mild difficulties interacting and communicating in a socially acceptable manner, she might have mild difficulties coping with the typical cognitive demands of basic work tasks, she had lower than average attention, and was mildly to moderately limited in her ability to complete work-related tasks in an acceptable timeframe. (R. at 445-6). Rios specifically cited Ethridge's “brain fog”[1] as contributing to her ability to recall and maintain attention. (R. at 446).

         According to a 2014 medical source statement executed by Curtner, Ethridge had severe symptoms of fibromyalgia, with eighteen positive tender points and constant pain. (R. at 447-48). He further opined that Ethridge would miss several days per week of work due to pain, that she could not walk a city block without rest or severe pain, that she could sit for thirty minutes and stand for ten to fifteen minutes at a time for a total of less than two hours in an eight hour work day, and that she would need to shift positions every fifteen minutes for ten to fifteen minutes at a time. (R. at 449-50). He also indicated that she should not lift even weights of less than ten pounds; she should never stoop, bend, crouch, crawl, kneel, climb ladders, climb stairs, look down, turn her head left or right, look up, hold her head in a static position, handle, finger, reach, or reach overhead. (R. at 452). His opinion further states that she has difficulty with memory, adjusting to work changes, distractibility, and other mental impairments as a result of her fibromyalgia and that she would be off task 25% of the time and could not tolerate even “low stress” work. (R. at 452-53).

         III. Discussion

         The Court reviews to determine whether substantial evidence on the record as a whole exists to support the ALJ's denial of benefits. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997). “Substantial evidence” exists where a reasonable mind would find the evidence adequate to support the ALJ's decision. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009). The Court will ...

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