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Royce v. Berryhill

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

January 29, 2019

NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT



         Plaintiff, Wendy D. Royce, 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) under the provisions of Title II 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 U.S.C. § 405(g).

         I. Procedural Background:

         Plaintiff protectively filed her current application for DIB on June 8, 2015, alleging an inability to work since February 1, 2012, due to bipolar disorder, anxiety, post-traumatic stress disorder, depression, and back pain. (Tr. 15, 304). An administrative hearing was held on May 10, 2016. (Tr. 52-80). At the hearing, the ALJ ordered that the record be left open for thirty days to allow Plaintiff to submit updated medical records regarding bladder issues that were discussed in the hearing. (Tr. 75). The ALJ also sent Plaintiff to a consultative examination following the hearing and Plaintiff requested a supplemental hearing. (Tr. 15). A supplemental hearing was held on February 22, 2017. (Tr. 38, 51).

         By written decision dated May 19, 2017, the ALJ that Plaintiff had an impairment or combination of impairments that were severe. (Tr. 18). Specifically, the ALJ found that Plaintiff had the following severe impairments: unspecified mood disorder, and dependent personality traits. (Tr. 18). The ALJ found Plaintiff had the following non-severe impairments: migraines caused by a Chiari malformation, diabetes, carpal tunnel syndrome in the right arm, sensory neuropathy of the upper extremities, and ulnar motor neuropathy on the right, obstructive sleep apnea, incontinence, chronic back, neck and hip pain, and foot pain. (Tr. 18-19). However, after reviewing all evidence presented, the ALJ determined that through the date last insured, Plaintiff's impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 160-161). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can perform work where interpersonal contact is incidental to the work performed, e.g. assembly work; where the complexity of tasks is learned and performed by rote, with few variables and little judgment; and where the supervision required is simple, direct, and concrete.

         (Tr. 21). With the help of a vocational expert, the ALJ determined that Plaintiff could not perform any of her past relevant work. (Tr. 26). However, the ALJ found Plaintiff could perform the duties of the representative occupations of hand packager, marking clerk, and document preparation clerk. (Tr. 27).

         On May 24, 2017, Plaintiff requested a review of the hearing decision by the Appeals Council. (Tr. 1, 247). The Appeals Council denied Plaintiff's request for review. (Tr. 1-4).

         Subsequently, Plaintiff filed this action. (Doc. 1). The parties have filed appeal briefs and this case is before the undersigned for report and recommendation. (Docs. 16, 17). The Court has reviewed the entire transcript. The complete set of facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         II. Evidence Presented:

         At the initial hearing held May 10, 2016, Plaintiff was represented by Michael Hamby. (Tr. 54). Plaintiff testified that she had recently turned forty, had a high school diploma, and was working as a substitute teacher for two days per week. (Tr. 55). She testified that the school asked she only work two days a week because of her bladder issues. (Tr. 55-56). Plaintiff testified she had been working as a substitute teacher since 2014 and used to work full time but, as her health declined, she had begun to work less. (Tr. 56). Plaintiff testified that she worked as a cashier in the Starbuck's Department at Target in 2013, but that she lost that job after she yelled at a manager when he asked her to do something when she was already too busy. Id. Plaintiff testified that she had worked at North Arkansas Regional Medical as a physical therapy tech. (Tr. 56-57). Plaintiff testified that she helped patients with rehab, which included lifting patients, bathing them, walking them, and exercising them and required her to be on her feet for between eight and fourteen hours per day. (Tr. 58). Plaintiff testified that she lost that job due to her bipolar and anxiety, specifically when some changes were going on she would yell at patients and also yelled at her boss, which led to her termination. (Tr. 58).

         Plaintiff testified that she had migraine headaches two to three times a week and some of them are severe enough that she would lie in bed with the curtains shut and want to be left alone. (Tr. 59). Plaintiff testified that sometimes her migraine medication could make them go away in two to three hours, but the week prior to the hearing, she had one for four days straight that kept her from sleeping. (Tr. 63). Plaintiff testified that she had a Chiari malformation and because of that her neck hurt ninety-five percent of the time, and it also caused numbness in her right arm and hand to the point that at times she could not hold even a pen. Id. Plaintiff testified that her right-hand numbness occurred multiple times per day and that sometimes her left arm felt like it was just dead weight. (Tr. 63-64). Plaintiff testified she had also been told that her back pain and right hip pain was a symptom of her Chiari's malformation. Id.

         Plaintiff testified she had surgery on her right ankle in 2002 or 2003, that she could not walk on it or it would swell at night and could only stand for fifteen or twenty minutes at a time. Id. Plaintiff testified she also had anxiety and bipolar and both were exacerbated by her pain. Id. Plaintiff testified that, due to her Chiari malformation, Nurse Janice Bishop had put her under a lifting restriction of no more than five pounds. (Tr. 60). Plaintiff testified that she had a bladder suspension in 2014 and her frequent need to use the restroom had progressively worsened since then, giving as examples that, while waiting for 45 minutes for her hearing, she had used the bathroom twice and that she had to start taking a change of clothes to school in preparation for the possibility of incontinence. Id.

         Plaintiff testified she was also diagnosed with asthma, which she took daily medication for, and could not be around fumes, smells, heat or cold because of asthma attacks and pneumonia. (Tr. 62). Plaintiff testified she had pneumonia three times in the last two winters. (Tr. 62). Plaintiff testified that her bipolar disorder would flare up regularly and that she was being treated by Perspectives and, before that, had been treated at a clinic in Harrison. (Tr. 62-63). Plaintiff testified that despite taking Lithium, Prozac and Zyprexa, and her treatment providers trying to find more effective dosing, she was still symptomatic. (Tr. 66-67). Plaintiff testified that these medications had no side effects, but that sometimes due to her anxiety she would get heartburn that felt like chest pain. (Tr. 67). She would also throw up due to anxiety, so she was prescribed Ranitidine to keep her stomach settled. (Tr. 67). Plaintiff testified that she was also prescribed Ambien by Perspectives, and that she expected it would be changed when she went in at the end of the month because she was still having problems with her mind racing and keeping her awake, or seeing things crawling across the floor or wall. (Tr. 68). At times she had heard voices, but she was not hearing them as often as she used to. (Tr. 68). Plaintiff testified that she had diabetes and had recently started taking Metformin and watching what she ate to try and control her blood sugar. (Tr. 69). Plaintiff also reported taking Cyclobenzaprine, a muscle relaxer, for her neck, back, and hip. (Tr. 69). Plaintiff testified that her muscle relaxer and her bladder control medications had warnings against operating heavy machinery or being around heights or hazards. (Tr. 71-72).

         Plaintiff testified that she could sweep, but if she wanted to sweep her kitchen, it would take three hours because she would have to sit down and rest often and that vacuuming was difficult for the same reasons. (Tr. 70). She testified that she could not mop or clean toilets because it was too hard to bend over, and that she did not have the strength to wring out the mop. (Tr. 70). Plaintiff testified that she did help make her bed or flip the cushions in the couch and some things like that. (Tr. 70). Plaintiff testified that she was able to drive but very little because of her anxiety, stating that she had a bad panic attack and nearly had a wreck, so she might drive to her son's school, which was about five miles away or to work at a school. (Tr. 70). However, Plaintiff testified that in the afternoon, sometimes she would wait until all the traffic had left the school before she would leave. Id.

         Plaintiff's mother, Ann Thomson, also testified. (Tr. 76). Ms. Thomson testified that she talked to Plaintiff every other day and saw her at least ten days per month, and that she had noticed a change in her over the past few years. (Tr. 76). She testified that Plaintiff would get upset easily if she got tired or something did not go her way; that she got headaches causing her to stay underneath the covers; and that she had back and leg pain, and pain from where she had surgery on her ankle, as well as something wrong with the back of her neck. (Tr. 76-77). Ms. Thomson testified that Plaintiff's headaches happened roughly every five days. (Tr. 79). Ms. Thomson testified that when she saw Plaintiff in person, usually she would drive to her daughter unless Plaintiff's boyfriend could drive her, as she did not feel comfortable letting Plaintiff drive her car and Plaintiff did not have her own car. (Tr. 77). Ms. Thomson testified she would not allow Plaintiff to drive her car because if someone got in front of her or was closing in, Plaintiff would get upset and cut in front of that car and, although Plaintiff had never had a wreck, Ms. Thomson did not want Plaintiff driving her car or with Ms. Thomson's grandchildren or great-granddaughter in the car. (Tr. 78). Ms. Thomson testified that when Plaintiff got upset she would kick the furniture, slam a door, break a window, or leave for an hour or two. (Tr. 78). Ms. Thomson testified that these episodes happened every three or four days a week and sometimes more often if Plaintiff was upset, and that she had not always been like that; it was something that had developed. (Tr. 78-79). Ms. Thomson testified that Plaintiff had lost two jobs in the past few years over her anger issues. (Tr. 79).

         At the supplemental hearing held February 22, 2017, Plaintiff testified that she was caring for her eleven-month-old grandchild a few hours per day a couple days per week, and that she was not being paid to do so. (Tr. 41-43). She testified that she was still substitute teaching one or two days per week, which was kind of rough on her to do both, so she was not substituting as much as she had before. (Tr. 42-43). Plaintiff testified that she was prescribed Topamax and Prednisone for her headaches and back pain, but that her doctors were not planning to do surgery to correct her Chiari malformation unless it got worse. (Tr. 44). Plaintiff also testified that she had a nerve conduction test with abnormal results, but no surgery had been scheduled and she would be re-tested in six months. (Tr. 44).

         Plaintiff testified that when she went to see Dr. Honghiran (spelled phonetically in transcript as Hannah Ram) in Russellville, she found the way in blocked, and when she called the office, she was told she had to go around to the back and climb up some stairs. Plaintiff told them she was unable to climb stairs due to her pain and was told if she could not climb the stairs, she would have to reschedule. (Tr. 45-46). Plaintiff testified that she did climb the stairs to go in, and was in pain by the time she got into the office. (Tr. 46). She testified that Dr. Honghiran stayed less than five minutes with her, and simply had her bend over and touch her toes. (Tr. 46). He then took a phone call, and after he hung up he told her he had to go and ended the appointment. (Tr. 46). Plaintiff testified that she immediately called her lawyer to tell him she had not been examined, as all Dr. Honghiran did was have her walk three feet, bend over to touch her toes, and walk back. (Tr. 46-47). Plaintiff testified that Dr. Honghiran's nurse did take her MRI reports, but she was unsure if he ever looked at them and he never examined her neck where her Chiari malformation was. (Tr. 47).

         Plaintiff's boyfriend, James Walls, also testified at this hearing. (Tr. 48). During Mr. Walls' testimony, the ALJ reprimanded Plaintiff for communicating with Mr. Walls and ended his line of questioning. (Tr. 49). The ALJ noted on the record that when he began asking how many days per week they had the grandchild, Plaintiff held up two fingers to the side of the Kleenex box and then while looking at Mr. Walls moved them so he could see them, but the ALJ saw them before Mr. Walls did. (Tr. 49). The ALJ gave Plaintiff an opportunity to respond and she testified that they sometimes had the granddaughter every day, but that they did not keep her all day but would take her to the babysitter during the day even though they would have her at night. (Tr. 49-50).

         A review of the pertinent medical evidence reflects the following. On February 1, 2012, Plaintiff was seen in the Emergency Department by Dr. Timothy Costello for syncope. (Tr. 456). Dr. Costello noted Plaintiff reported a brief syncopal episode when she was working at Dollar Tree that morning, and that she had been hospitalized the year prior with an electrolyte imbalance. (Tr. 457). A physical exam was performed, and no abnormalities were found. (Tr. 458). Dr. Costello found Plaintiff had symptoms consistent with peripheral vertigo and advised her to take meclizine as directed and follow up if her condition did not improve. (Tr. 460). Dr. Costello ordered a CT scan of Plaintiff's brain, which was interpreted by Dr. Robert Brand. (Tr. 467). Dr. Brand found no acute intracranial abnormalities, but suspected mastoiditis on the right. Id.

         On January 17, 2013, Plaintiff was seen by Samuel B. Hester, Ph.D., for a Mental Diagnostic Evaluation. (Tr. 404-412). Dr. Hester noted Plaintiff reported having been treated for bipolar disorder in the past but had not had treatment or medications for six months due to lack of resources and was experiencing short frustration tolerance, irritability, sadness, isolation, and loss of motivation. (Tr. 404, 405). Plaintiff reported no childhood trauma, but that she was in an abusive marriage years ago. Id. Plaintiff reported suicidal ideations with no intent but a history of two prior gestures. Id. Dr. Hester noted Plaintiff reported she was in treatment for a single visit with a mental health professional, at which she “states she was told that she was bipolar??” and was prescribed lithium and Seroquel which helped her to be more stable, but still did not allow her to work. (Tr. 405). Plaintiff reported she had quit many jobs due to feeling stressed and been fired due to not being able to complete tasks efficiently. (Tr. 406). Plaintiff reported difficulty getting along with coworkers and being told she had control issues, and that she had been fired due to anger outbursts. Id. Plaintiff reported she last worked in 2010 and quit to avoid being fired. Id. Dr. Hester noted Plaintiff was appropriately dressed and groomed with good hygiene and no pain indicators noted. (Tr. 406). Dr. Hester observed Plaintiff was cooperative, her mood did not appear to be depressed or anxious, her affect was appropriate, she had no speech abnormalities, her thought process was logical, she did not have any perceptual abnormalities and her thought content was normal except for reported suicidal ideation. (Tr. 406-407). Dr. Hester performed a cognitive exam and opined that Plaintiff did not appear to be functioning within or near the mentally retarded range. (Tr. 408). Dr. Hester opined that Plaintiff appeared to have some male dependency issues. (Tr. 409). Dr. Hester also noted with surprise that Plaintiff had only seen a mental health professional once but was put on Seroquel and lithium and then kept on it for about twelve months by her primary care physician. (Tr. 409). Dr. Hester diagnosed Plaintiff with an unspecified mood disorder, dependent personality traits, and insomnia. (Tr. 409). Dr. Hester opined Plaintiff would have no difficulties in the areas of pace, persistence, communicating in an intelligible manner, and concentration. (Tr. 410-411). Dr. Hester opined that Plaintiff had a limited capacity to communicate and interact in a socially adequate manner, and that while she could cope with the mental demands of work tasks she may do best in an environment that reduces human contact. (Tr. 410).

         On October 11, 2013 plaintiff had an in-person assessment at Life Help Mental Health Center. (ECF No. 12, p. 428). Plaintiff had been referred by Dr. Dowell from the Indiana Family Medical Group and reported she had been sent because she needed to get back on her medication. Id. Her speech was observed to be appropriate but rapid, with appropriate behavior, appearance, mood, affect, thought content, memory, and judgement/insight. (Tr. 428-429). Plaintiff reported she had been prescribed Lexapro and Lithium and that she slept better at night and felt better. (Tr. 428). Plaintiff reported she had no suicidal or homicidal ideations, and no alcohol or drug use. Id. An individual treatment plan was developed for Plaintiff and signed by two staff members whose signatures were illegible. (Tr. 426-427). The form shows Plaintiff's diagnosis as dysthymic disorder, bipolar disorder, and depression which had lasted five years or longer. Id. Plaintiff's long-term goal was that she needed help after having gone off of her medication for a year. Id. Plaintiff's short-term goal was to get her medication and therapy. Id.

         On November 7, 2013, Plaintiff was seen at Life Help Mental Health Center for her first follow-up therapy appointment after her emergency intake on October 11, 2013. (Tr. 422). Plaintiff reported she felt she had neglected her health but was back on track. Id. A mental status exam was performed, and the examiner noted Plaintiff appeared disheveled, with agitated motor activity, an anxious affect, rapid and pressured speech, and her attention span was impaired. (Tr. 424-425).

         On December 5, 2013, Plaintiff was seen at Life Help Mental Health Center for a follow-up therapy appointment. (Tr. 419). Plaintiff reported fears about an upcoming exploratory surgery for cancer cells in her uterus and concerns about her son and boyfriend. Id. A mental status exam was performed with normal results except for an anxious mood, rapid speech, suicidal and homicidal ideations with plans, and reduced judgement/insight and fund of knowledge. (Tr. 421).

         On January 1, 2014, Plaintiff was seen at Life Help for a follow up therapy session. (Tr. 416). Treatment notes show Plaintiff reported her D&C revealed further complications with more medical and possible surgical procedures required with some concern that she may have cervical cancer. Id. Plaintiff reported that her boyfriend had asked her and her son to leave his home and she planned to go back to her parents' home in Arkansas. Id.

         On January 8, 2014, Plaintiff was seen at Life Help for depression. (Tr. 417). A mental status exam was performed with normal results, except for reduced judgment/insight and fund of knowledge. (Tr. 418). Plaintiff's medications were listed as lithium and Seroquel. Id.

         On February 6, 2014 Plaintiff was seen at Life Help. (Tr. 415). Treatment notes show Plaintiff reported she was concerned about moving back to Arkansas as she had Medicaid/Disability and was worried about services being transferred. Id.

         On March 11, 2014, Plaintiff had an initial psychological assessment at Dayspring Behavioral Health. (Tr. 523). Plaintiff's diagnoses were listed as: bipolar I disorder with current episode of depression, an unspecified episodic mood disorder, and restless leg syndrome. (Tr. 530). Plaintiff was observed to be motivated for treatment and it was noted that her prognosis was good with treatment compliance. (Tr. 531). Plaintiff reported her motivation for seeking treatment was not feeling like the same person or mother she used to be, that she could not stand herself most of the time, and that things made her angry most of the time. Id. Plaintiff reported difficulties with depression, sleeplessness, social withdrawal, unresolved grief, anger and verbal aggression. Plaintiff also reported symptoms of post-traumatic stress, including flashbacks, avoidance of people and places, and distressing recollections and dreams. (Tr. 523-524). Plaintiff reported difficulties with grief since March 9, 2011, when she found a friend who intentionally overdosed and died. (Tr. 524). Plaintiff reported the friend's family blamed her for his death and that she blamed herself and pinpointed that day as the start of her mental health issues. Id. Plaintiff reported daily visual hallucinations which sometimes included auditory hallucinations, which she described as people passing by, people hurting others, her grandmother, her friend who died, and people from the past. Id. She reported that they spoke to her sometimes and sometimes they encouraged her to keep going and sometimes they recalled bad things from the past. Id. The examiner noted Plaintiff was cooperative, her speech was clear, her memory and orientation were clear and her intelligence was estimated to be average. (Tr. 524). Her insight/judgment into illness/life situation was described as limited. Id. In Plaintiff's history she reported a history of physical and emotional abuse, specifically that her first husband strangled her, put guns to her head, was controlling and engaged in name calling. (Tr. 528).

         On April 3, 2014, Plaintiff was seen by Dr. Chitsey to establish primary physician care. (Tr. 503). Plaintiff reported feeling down, loss of interest, low energy, feeling like a failure, trouble concentrating and having suicidal thoughts. Id. Dr. Chitsey performed a depression screening and found Plaintiff was suffering from severe depression. Id. Dr. Chistsey assessed Plaintiff as suffering from esophageal reflux and bipolar disorder. (Tr. 504). He continued her prescriptions for Seroquel and Lithium for her bipolar disorder and added Ranitidine for esophageal reflux. Id.

         On April 22, 2014, Plaintiff was seen by Dr. Chris Taylor for stress urinary incontinence. (Tr. 482). Dr. Taylor noted Plaintiff wished to proceed with surgical intervention. Id. Dr. Taylor performed a physical examination and noted no abnormal findings. (Tr. 483). Dr. Taylor performed a Burch urethropexy[1]. (Tr. 485).

         On April 20, 2014, Plaintiff was seen by Dr. Chitsey and reported she had been doing well after the bladder suspension performed by Dr. Taylor, but had developed nausea and vomiting, a low-grade fever, and diarrhea. (Tr. 487). Dr. Chitsey noted Plaintiff had a white blood cell count of 20, 000 and he admitted her for evaluation and treatment. Id. Dr. Chitsey performed a physical examination and noted normal results in all areas except that Plaintiff had dry mucus membranes, her skin had decreased texture and turgor, and that her white blood cell count was 20 but was reduced to 14 the next day. Id. Dr. Chitsey noted Plaintiff was admitted, volume ...

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