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Little v. Berryhill

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

September 28, 2018

CYNTHIA R. LITTLE PLAINTIFF
v.
NANCY A. BARRYHILL, Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Cynthia R. Little, 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 disability insurance benefits and a period of disability (DIB) and for supplemental security income (SSI) under Titles II and XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1383(c)(3). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See U.S.C. § 405(g).

         I. Procedural Background

         Plaintiff filed her applications for DIB and SSI on November 23, 2012, alleging disability since August 4, 2014, due to back, chronic depression, degenerative disc disease, spinal stenosis, arthritis, anxiety, and neck issues. (ECF No. 9, pp. 12, 222-236, 257, 286).

         Plaintiff's application was denied initially and upon reconsideration. (ECF No. 9, pp. 147, 150, 156-159). An administrative hearing was held on March 10, 2016, before the Hon. Harold D. Davis. (ECF No. 9, pp. 36-70). Plaintiff and her mother, Alice Fay Shannon, and a vocational expert (“VE”), Zachariah R. Langley, testified. (ECF No. 9, pp. 36, 62). Plaintiff was represented by counsel, James O'Hern. (ECF No. 9, p. 35).

         By written decision dated April 22, 2016, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the cervical, thoracic and lumbar spine with cervical spondylosis, status-post lumbar disc fusion; osteoarthritis; carpal tunnel syndrome; obesity; affective disorder; and, anxiety disorder. (ECF No. 9, p. 14). The ALJ next determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of any impairment in the Listing of Impairments. (ECF No. 9, p. 14). After discounting Plaintiff's credibility, the ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except with the following limitations: the claimant could perform simple tasks and follow simple instructions, and she could have only incidental contact with the public. (ECF No. 9, p. 21).

         With the assistance of a vocational expert, the ALJ determined Plaintiff could not perform her past relevant work (“PRW”), but she could perform the requirements of the representative occupations of Asphalt Distributor Tender (DOT # 853.665-010), with 300 jobs in Arkansas and 41, 000 jobs in the national economy; Coin-Machine Collector (DOT # 292.687-010), with 1, 100 jobs in Arkansas and 96, 000 jobs in the national economy; and, Cleaner, Housekeeping (DOT # 323.687-014) with 1, 000 jobs in Arkansas and 125, 000 jobs in the national economy. (ECF No. 9, p. 28). The ALJ then found Plaintiff had not been under a disability as defined by the Act during the relevant period. (ECF No. 9, p. 24).

         On November 14, 2016, attorney James O'Hern withdrew from the case. (ECF No. 9, p. 11). On June 20, 2017, the Appeals Council denied Plaintiff's request for review. (ECF No. 9, p. 5). Plaintiff subsequently filed this action on August 22, 2017. (ECF No. 1). This matter is before the undersigned for report and recommendation. Both parties have filed appeal briefs (ECF Nos. 13, 14), and the case is now ready for decision.

         II. Relevant Evidence

         The undersigned has conducted a thorough review of the entire record in this case. Because the Plaintiff's appeal concerns the limitations resulting from her back problems, pain, and mental impairments, the undersigned will only recount the evidence relevant to her claim.

         On December 26, 2013, Plaintiff had a new patient appointment with Dr. Kradel. Plaintiff complained of pain in her left shoulder for the past month, primarily with internal rotation, and no recent injury. (ECF No. 9, p. 454). Dr. Kradel's physical findings included no decrease in suppleness in Plaintiff's neck, normal findings with no costovertebral angle tenderness, and only full range of motion at shoulder under musculoskeletal findings. (ECF No. 9, p. 456). Dr. Kradel opined the shoulder pain may be a C-spine issue but more likely bursitis or rotator cuff injury. (ECF No. 9, 457).

         On January 30, 2014, Plaintiff was seen by Dr. Kradel and reported left shoulder pain, which he opined was suggestive of a transient ischemic attack. (ECF No. 9, p. 452).

         On February 28, 2014, Plaintiff had a follow up appointment with Dr. Kradell to go over her doppler results. (ECF No. 9, p. 447). He opined that her central problem was likely depression, and that the treatment plan would be to control her depression and then address other issues. (ECF No. 9, p. 445). He also noted that her carotid Doppler and Holter monitor results looked okay. (ECF No. 9, p. 445).

         On April 4, 2014, Plaintiff had a follow up appointment with Dr. Kraddel for her depression, which was noted as improving. (ECF No. 9, p. 444).

         On June 6, 2014, Plaintiff had a follow up appointment with Dr. Kradel who noted that: she was handling her depression well and there had been no change; that they needed to start treatment on her hyperlipidemia; and, that menopause was a likely cause of her other symptoms, and they would consider hormone replacement therapy after checking her thyroid stimulating hormone (TSH) levels. (ECF No. 9, pp. 441-443).

         On July 17, 2014, Plaintiff had a follow-up appointment and saw Dana L. Hale, ARPN. (ECF No. 9, p. 425). Her active problems were listed as carotid atherosclerosis, depression, hyperlipidemia, menopause symptomatic, and obesity. Id. She reported pain in the upper/mid back for three days with a history of degenerative disc disease. Id. She reported the pain was in her left anterior chest going through the back, and the pain is at a constant 7 of 10 when she breaths in, with increased pain when turning her trunk to left. Id. Nurse Hale recommended heat therapy for a thoracic sprain and refilled Plaintiff's muscle relaxers. (ECF No. 9, p. 432).

         On January 6, 2015, Plaintiff underwent X-rays of her ankles, hands, feet and chest. (ECF No. 9, p. 728-732). The images were read by Dr. Eric Sale who found them to be unremarkable. (ECF No. 9, p. 729-732).

         On January 12, 2015, Plaintiff had a CT scan of the lumbar region of her spine. The scan was read by Dr. Deland Burks who found: postsurgical laminectomy L4 and posterior fusion spanning L4-5, with inferior set of transpedicle screws extending beyond the anterior cortex of L5; multilevel degenerative facet arthropathy most pronounced at ¶ 3-4, and multilevel degenerative disc disease at ¶ 4-5, L1-2, and T11-12, with mild bony ridging at ¶ 11-12 without canal stenosis. (ECF No. 9, pp. 539-540).

         On January 14, 2015, Plaintiff was seen by Laura A. Henson, APRN, with complaints of multi-joint pain as well as continued low back pain, and she was requesting a CT scan or MRI. (ECF No. 9, p. 528).

         On March 13, 2015, Plaintiff had an MRI on the cervical region of her spine. (ECF No. 9, p. 536). Dr. David Diment read the MRI and found spondylitic ridging and multilevel disc protrusions at the C3-4, C4-5, C5-6 and C6-7 levels, with impression on the left ventral cord at ¶ 6-7, right ventral aspect of the cord at ¶ 5-6 centrally, and right posterolaterally at ¶ 4-5 with borderline to mild canal stenosis, particularly at ¶ 4-5 and to a slightly lesser degree at ¶ 5-6. Id.

         On March 13, 2015, Plaintiff had an MRI on the lumbar region of her spine. (ECF No. 9, p. 537). Dr. David Diment read the MRI and found: laminotomy changed L4-5 with some ligamentum flava hypertrophy on the right with mild thecal sac compression; diffuse bulge at ¶ 3-4 and facet and ligamentum flava hypertrophy; small left ...


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