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Steele v. Berryhill

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

December 7, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT



         The following recommended disposition has been sent to United States District Judge Kristine G. Baker. 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 Clerk within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.


         Plaintiff Jackie Lynn Steele (“Steele”), in her appeal of the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny her claim for Disability Insurance benefits (DIB), contends the Administrative Law Judge (“ALJ”) erred: (1) by failing to properly develop the evidence; (2) by failing to consider evidence which fairly detracted from his findings; (3) in assessing her credibility; (4) in discrediting the opinion of treating physician Dr. Andrew Monfee (“Monfee”); (5) in determining Steele's residual functional capacity (“RFC”); and (6) in assessing the RFC of Steele's past relevant work. The parties have ably summarized the medical records and the testimony given at the administrative hearing conducted on November 17, 2016. (Tr. 44-70). The Court has carefully reviewed the record to determine whether there is substantial evidence in the administrative record to support Berryhill's decision. 42 U.S.C. § 405(g). The relevant period under consideration is from September 8, 2015, Steele's alleged onset date, through March 16, 2017, the date of the ALJ's decision.

         The Administrative Hearing:

         Steele, who was 46 years old at the time of the administrative hearing, has a high school education, an associate's degree in business, and has taken additional online classes. She lived with her husband and nineteen year old son. Steele testified to past relevant work as an employee of Dow Chemical, working there from 2001 until September 2015. Steele described a history of back problems necessitating five surgeries, the fifth of which occurred in September 2015 and involved the removal of hardware placed in her back during the prior surgeries. Steele stated that Monfee had treated her since 2001, [1] and had prescribed medications for anxiety and pain. She also described taking over-the-counter medications such as Aleve and Excedrin Migraine. According to Steele, she takes the pain medication hydrocodone only when needed, which at that time was approximately three times a week. Steele had taken no pain medication, either prescription or over-the-counter, on the day of the hearing. Her prescription medication for high blood pressure was effective, according to Steele, who noted no side effects from the various medications except for unspecified side effects from hydrocodone.

         Steele summarized her daily activities and abilities as follows: her back pain prevented her from getting a good night's sleep, and she was getting six hours of sleep nightly; she always experienced some pain, and was stiff for about an hour after waking; her typical day included caring for her dog; she could tend to personal care, such as makeup and clothing, though she adjusted in some areas, such as wearing slip-on shoes; her daily pain was rated at around seven on a scale of 1-10; she could do dishes and laundry and cook light meals; she could stand, walk, sit, and ride in a vehicle for 15 minutes before pain and anxiety increased; she could lift no more than 10 pounds; she could go grocery shopping with her husband; she could drive; she had increased stress and lowered concentration due to pain; and she could do light activities, such as watering plants or taking the dog out, outside the house. Steele indicated she got relief from her back problems by lying flat, which she did twice daily for about an hour. (Tr. 45-65).

         Barbara Hubbard (“Hubbard”), a vocational expert, stated that Steele's past work was as an industrial hygiene engineer and secretary. The ALJ posed a hypothetical question to Hubbard, asking her to assume a worker of Steele's age, education, and experience, who could perform light work where the worker could occasionally climb ramps, stairs, never climb ladders, ropes, or scaffolds, could occasionally balance, stoop, kneel, crouch, or crawl, and that the worker must avoid concentrated exposure to hazards including no driving as part of work. According to Hubbard, such a hypothetical worker could perform Steele's past relevant jobs. (Tr. 65-66).

         ALJ's Decision:

         In his March 16, 2017 decision, the ALJ determined that Steele had the following severe impairments: degenerative disc disease and dextroscoliosis and levoscoliosis of the thoracolumbar spine status-post multiple surgeries. The ALJ further determined that Steele had the RFC to perform light work with the restrictions which mirrored those posed to Hubbard in the hypothetical question cited above. The ALJ, citing the appropriate factors, [2] assessed Steele's subjective allegations, finding her “allegations of severe and disabling pain and discomfort are not supported by the other evidence of record.” (Tr. 10). The ALJ thoroughly discussed the medical evidence, with particular emphasis on the findings of treating physicians Saer and Monfee.[3] The ALJ acknowledged Monfee's opinion that Steele was totally disabled and listed reasons why he assigned little weight to this opinion (e.g., Monfee's opinion was at odds with his own treatment records and at odds with other medical evidence in the record). The ALJ assigned significant weight to the opinions of the non-examining state agency physicians. Relying upon Hubbard's testimony that Steele could perform her past relevant work, the ALJ concluded Steele was not disabled. (Tr. 4-12).

         Medical Evidence During the Relevant Period:[4]

         In the months preceding the relevant period Steele was seen by Monfee on March 31, 2015 for elevated sedimentation rate, joint pain, and acne. She was given Viibryd samples. (Tr. 350). Pursuant to Monfee's request, Steele was seen at Arkansas Specialty Orthopaedics in April of 2015. Saer and APRN Nicholas Fazio agreed that the x-rays were not helpful in determining the source of Steele's pain. The examination reflected that Steele's upper extremities moved equally well and strong, her hips showed “slight positive Patrick's test for anterior lateral left hip pain, otherwise negative, ” negative straight leg raises bilaterally and no focal weakness or numbness with lower extremities, and stable gait. The plan was to further explore the source of the pain with a bone scan and lumbar CT. (Tr. Tr. 402-404).

         Still slightly before the onset of the relevant period, in June 2015, Steele saw Saer and had a nuclear medicine whole body bone scan with SPECT CT of the thoracolumbar spine. (Tr. 341). The impression was of dextroscoliosis in the thoracic spine and levoscoliosis in the lumbar spine; increased uptake of radiotracer at the L3-L4 level, consistent with degenerative disk disease; mild increased uptake in the thoracic spine extending from T5 through T7 from degenerative changes; and increased uptake of radiotracer within the right sternoclavicular joint from degenerative change. (Tr. 341). Saer reviewed the results and could find nothing to explain Steele's pain. (Tr. 401).

         Saer followed up with Steele in August 2015 after an iliac screw injection, and Steele reported her pain was significantly worse for a few days. Removal of hardware was discussed, and Saer noted that the ...

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