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Burcham v. Berryhill

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

March 8, 2019

DELORES J. BURCHAM PLAINTIFF
v.
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Deloris J. Burcham, 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 42 U.S.C. § 405(g).

         I. Procedural Background:

         Plaintiff protectively filed her current application for DIB on July 23, 2015, alleging an inability to work since May 31, 2009, due to high blood pressure, anxiety, panic attacks, bone thinning (osteoporosis), muscle weakness and blackouts. (Tr. 57, 131). For DIB purposes, Plaintiff maintained insured status through December 31, 2014. (Tr. 11, 138). An administrative hearing was held on August 2, 2016, at which Plaintiff, after being informed of her right to representation, testified without the assistance of a representative. (Tr. 25-55).

         By written decision dated January 10, 2017, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.13). Specifically, the ALJ found Plaintiff had the following severe impairments prior to her date last insured: anxiety. However, after reviewing all of the evidence presented, the ALJ determined that before the expiration of her insured status 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. 14). The ALJ found prior to the expiration of her insured status Plaintiff retained the residual functional capacity (RFC) to:

perform a full range of work at all exertional level but with the following nonexertional limitations: the claimant can perform simple, routine, repetitive tasks in a setting where interpersonal contact is incidental to the work performed. The Claimant can respond to supervision that is simple, direct and concrete.

(Tr. 15). With the help of a vocational expert, the ALJ determined that through her date last insured Plaintiff could perform her past relevant work as a farm laborer and a hotel housekeeper. (Tr. 17). The ALJ further found that Plaintiff could also perform other work as a hand packager, a merchandise marker and a compact assembler. (Tr. 18).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on January 8, 2018. (Tr. 1-5). Subsequently, Plaintiff filed this action. (Doc. 1). Both parties have filed appeal briefs, and the case is before the undersigned for report and recommendation. (Docs. 10, 11).

         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 an administrative hearing held before the ALJ on August 2, 2016, Plaintiff, who was fifty-nine years of age, testified that she obtained a high school education. (Tr. 28). Plaintiff's past relevant work consists of work as a farm laborer, a hotel housekeeper and a home health aide. (Tr. 238).

         The pertinent medical evidence before the ALJ during the relevant time period reflects the following. On June 4, 2009, Plaintiff was seen by Dr. John R. Williams for a follow up for her anxiety. (Tr. 349). Plaintiff reported she had been fired from her job the previous day. Plaintiff reported she was fired for not agreeing with her evaluation. Plaintiff reported experiencing stress with her work arrangement. Plaintiff was noted to be taking Prozac. After examining Plaintiff, Dr. Williams assessed Plaintiff with acute bronchitis and depression. Dr. Williams opined that much of Plaintiff's depression was situational but her medication needed to be increased.

         On June 15, 2009, Plaintiff was seen in the Cooper Clinic due to back and knee pain. (Tr. 257-261, 270-272). Plaintiff reported that she was cleaning a jacuzzi at work on June 2nd, and fell. Plaintiff reported that she had since been fired but was in for a workman's compensation evaluation. Upon examination, Plaintiff was found to have full range of motion of the neck and moved all extremities well. Plaintiff was able to squat with minimal difficulty with the left knee. Plaintiff was assessed with left knee pain, thoracic back pain and low back pain. Dr. Jason D. Richey recommended Plaintiff use anti-inflammatories and return in two weeks.

         On June 30, 2009, Plaintiff was seen in the Cooper Clinic on a workman's compensation visit. (Tr. 256). Treatment notes indicated Plaintiff fell in the lodge while cleaning and complained of back and knee pain. Upon examination, Dr. Richey noted that Plaintiff moved all extremities well. Plaintiff was assessed with thoracic back pain and left knee pain. Plaintiff was to undergo physical therapy and return in three weeks. Plaintiff participated in physical therapy from July 1, 2009, through July 29, 2009. (Tr. 266-269).

         On November 21, 2011, Plaintiff was seen by Dr. Thinh D. Nguyen for mental health treatment and her blood pressure. (Tr. 347-348). Plaintiff reported that she went to the emergency room two weeks ago after feeling dizzy upon standing. Plaintiff reported that her blood pressure was found to be high and she was placed on Ativan. Plaintiff reported that she did not feel more stress in her life but admitted she was an anxious person. Plaintiff reported she liked being on Ativan. Plaintiff also wanted to stop smoking. After examining Plaintiff, Dr. Nguyen assessed Plaintiff with depression with anxiety, current every day smoker and benign essential hypertension.

         On December 5, 2011, Plaintiff was seen by Dr. Nguyen for a follow up appointment. (Tr. 346-347). Dr. Nguyen noted Plaintiff's blood pressure was asymptomatic and improved and her anxiety had decreased. Plaintiff's mood was improved and she was sleeping better.

         On December 28, 2011, Plaintiff was seen by Dr. Nguyen for a medication follow up appointment. (Tr. 345-346). Plaintiff reported her anxiety had been stable on Ativan. After examining Plaintiff, Dr. Nguyen assessed Plaintiff with anxiety. Plaintiff was noted to have ...


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