United States District Court, W.D. Arkansas, Fort Smith Division
WENDY D. ROYCE PLAINTIFF
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT
MAGISTRATE JUDGE'S REPORT AND
ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE
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. §
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).
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.
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.
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).
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.
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).
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.
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.
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).
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.
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).
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).
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.
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).
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.
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).
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.
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).
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.
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.
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.
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.
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).
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.
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. (Tr. 485).
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 ...