United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE.
filed her application for disability insurance benefits
(“DIB”) on February 9, 2015, due to facial
numbness which caused headaches and nausea, restroom issues,
memory loss, fatigue, two bulging discs in her lower back,
and severe degenerative bones. (ECF No. 13, pp. 14, 197).
Plaintiff alleged an onset date of November 28, 2014.
(Id., p. 194). Her claim was denied initially on
October 26, 2015, and upon reconsideration on January 14,
2016. (Id., pp. 14, 112-14, 116-17). An
administrative hearing was held on August 24, 2016, in Fort
Smith, Arkansas, before the Hon. Glenn A. Neel,
Administrative Law Judge (“ALJ”). (Id.,
pp. 35-78). Plaintiff was present and represented by counsel,
Susan Brockett, at the hearing. (Id.). Jim Spragins,
a vocational expert, also testified at the hearing.
written decision dated September 20, 2017, the ALJ found
Plaintiff's lumbago, peripheral neuropathy, headaches,
obesity, history of double mastectomy and chemotherapy, major
depressive disorder/unspecified depressive disorder, and
unspecified anxiety disorder to be severe, but that
Plaintiff's impairments did not meet or equal the level
of severity of any impairment listed in the Listing of
Impairments. (Id., pp. 16-17). The ALJ found that
Plaintiff retained the residual functional capacity
[P]erform light work as defined in 20 CFR 404.1567(b) except
she can occasionally climb ramps and stairs, she can never
climb ladders, ropes or scaffolds, she can occasionally
balance, stoop, kneel, crouch and crawl, she can frequently
handle and finger bilaterally, and she must avoid
concentrated exposure to hazards including no driving as part
of work. She is able to perform work where interpersonal
contact is incidental to the work performed, the complexity
of tasks is learned and performed by rote, with few variables
and little use of judgment, and the supervision required is
simple, direct and concrete. (Id., pp. 19-25).
the assistance of a vocational expert (“VE”), the
ALJ then determined Plaintiff would be unable to perform any
past relevant work. (Id., p. 25); however, the ALJ
found Plaintiff could perform the requirements of the
representative occupations of: Price Marker (DOT No.
209.587-034), 496, 000 jobs in the national economy;
Housekeeping Cleaner (DOT No. 323.687-014), with 231, 000
jobs in the national economy; or, Routing Clerk (DOT No.
222.587-038), with 76, 000 jobs in the national economy.
(Id., p. 26). The ALJ found Plaintiff had not been
disabled under the definition of the Act from November 28,
2014, through the date of his decision. (Id., p.
16, 2018, the Appeals Council denied Plaintiff's request
for review. (Id., pp. 5-9). Plaintiff then filed
this action on June 25, 2018. (ECF No. 1). This matter is
before the undersigned for report and recommendation. Both
parties have filed appeal briefs. (ECF Nos. 16, 17). The case
is ready for decision.
undersigned has conducted a thorough review of the entire
record in this case. The complete sets of facts and arguments
are presented in the parties' briefs and are repeated
here only to the extent necessary.
administrative hearing held on August 24, 2016, Plaintiff
testified that she lived with her husband, son and
daughter-in-law. (ECF No. 13, pp. 38, 41). She testified that
her son and daughter-in-law had moved in with her and her
husband for some time after her husband had a stroke, and she
had to ask them to move back in again as her condition
worsened. (Id.). Plaintiff testified she did not
take much time off work at first after receiving her breast
cancer diagnosis. (Id., p. 50). She took two weeks
off after her double mastectomy and continued working for
about three months after starting chemotherapy.
(Id.). She related that after she started
chemotherapy, she began making serious errors at work, was
having problems with vomiting and then sinus infections, and
she no longer felt able to do her job. (Id., pp.
50-52). Plaintiff testified that she had neuropathy in her
hands and legs, for which she was being treated for with
Lyrica. (Id., pp. 53-56). Her neuropathy caused her
to lose her balance, led to her cutting herself and not
noticing for extended periods of time, as well as pain in her
feet. (Id.). She explained that the neuropathy in
her hands was constant, but she had been told that she needed
to keep using her hands, so she tried using colored pencils
and could not hold them for more than five minutes at a time.
(Id., pp. 63-64). Plaintiff also said she was unable
to use the mouse on a computer for very long due to her
neuropathy. (Id.). Plaintiff testified that despite
having operations to repair her nose, she continued to have
headaches as well as constant nausea. (Id., p. 59).
evidence of record shows:
On June 3, 2014, Plaintiff underwent a routine mammogram
which revealed a small nodule in her right breast.
(Id., p. 323). The next day an ultrasound and a
biopsy were taken. (Id. pp. 321-22).
was seen at the Arkansas Surgical Group for a post-mastectomy
follow up on September 8, 2014. She reported beginning
chemotherapy on August 28, 2014, having mild nausea but
tolerating it well. (Id., p. 298).
April 7, 2015, Plaintiff was seen by Dr. Varant Arzoumanian
for stage I grade 3 triple negative breast cancer.
(Id., p. 334-38). Plaintiff reported fatigue, night
sweats, decreased appetite, sleep disturbances, insomnia,
back pain, dry skin, dizziness, frequent and severe
headaches, and easy bruising. (Id.). Dr.
Arozoumanian provided the diagnoses of: primary malignant
neoplasm of female breast, no recurrence; nausea and vomiting
- not completely well controlled; leukopenia; neuropathy;
hypomagnesemia; hypokalemia; numbness of face; abnormal
weight loss; and, depressive disorder. (Id.).
Plaintiff was seen again on April 21, 2015 with similar
findings. (Id., pp. 330-34).
September 15, 2015, Plaintiff was seen by Kristen Eckelhoff,
Psy.D., for a Mental Diagnostic Evaluation. (Id.,
pp. 430-33). Plaintiff reported headaches, facial numbness,
nausea, memory loss, last of brain function, fatigue, bulging
disc in lower back, and degenerative bones. (Id., p.
430). She related that she had never been hospitalized for
psychiatric reasons, nor was she then in any kind of mental
health treatment, but she had seen an outpatient therapist in
the past and found it to be helpful. (Id.).
Plaintiff reported she had a C or D average in school and had
always had difficulty with concentration and focus.
(Id.). Plaintiff assumed she had ADHD, but she had
never been tested or treated for it. She dropped out of
school after the ninth grade and later attained a GED in
1999. (Id.). Plaintiff said she began making
mistakes at her job after beginning chemotherapy for breast
cancer the previous year. (Id.). Dr. Eckelhoff
provided the diagnoses of an unspecified anxiety disorder and
an unspecified depressive disorder. (Id., p. 432).
Regarding Plaintiff's day-to-day adaptive functioning,
Dr. Eckelhoff opined that Plaintiff was able to complete all
activities of daily living (ADL's) without assistance;
that she has vast experience with handling money and has no
difficulties with financial matters; that she is able to
drive and go to the store alone; she has lunch with friends
monthly; and, she manages medications for both herself and
her husband. (Id.). Dr. Eckelhoff found no
indication that Plaintiff had difficulties communicating and
interacting in a socially adequate manner, and she was able
to communicate in an intelligible manner. (Id.).
Plaintiff would likely be effective in sustaining persistence
in completing tasks. (Id.). Dr. Eckelhoff opined
that Plaintiff would likely have difficulties with
concentration, lack of focus, and memory problems if she
pursued skilled work, and this may cause her to be less
productive at certain types of skilled jobs. (Id.,
December 21, 2015, Plaintiff saw Brandi Guthrey, M.D. for
depression and headaches. (Id., pp. 525-28).
Plaintiff reported taking 2-3 Lortab per day for pain -
headache mostly. (Id., p. 527). Dr. Guthrey started
Plaintiff on a trial of Fioricet and informed her that she
needed to wean off of Lortab as it was likely contributing to
the majority of her headaches. (Id., p. 528).
February 9, 2016, Plaintiff was seen by Humdum Pasha Durrani,
M.D. for consultation regarding her history of breast cancer.
(Id., pp. 452-55). Dr. Durrani referred Plaintiff to
a neurologist for evaluation of her neuropathy and migraine
problems. (Id., p. 455).
February 16, 2016, Plaintiff went to William A. Knubley, M.D.
for evaluation of her headaches and facial numbness.
(Id., pp. 473-79). Plaintiff reported experiencing
chemotherapy related neuropathy, but also memory problems,
ringing in her ears, chronic nausea, headaches, and facial
numbness all in the past year or so. (Id., p. 473).
Plaintiff reported she did not have a history of migraines,
but she developed progressive headaches that became daily
headaches over the past year. (Id.). Plaintiff
reported taking half a Lortab and one Fiorcet twice daily for
those headaches, which relieved them slightly.
(Id.). She reported occasional visual changes, but
never any obvious chronic migraines with light and noise
intolerance or nausea and vomiting. (Id.). On
neurological exam, Plaintiff's cranial nerves were
intact, motor skills were normal, she had reduced light touch
sensation, and a normal gait. (Id.). Dr. Knubley
diagnosed Plaintiff with: peripheral neuropathy associated
with discomfort, likely chemotherapy induced; persistent
daily headache without typical migraine features or
migrainous history, and he noted Bruxism or TMJ myofascial
symptoms associated with medication overuse/rebound phenomena
may be contributing to this problem; subjective facial
numbness without obvious trigeminal neuropathy; persistent
tinnitus possibly due to bruxism rather than chemotherapy,
also medication induced effects may be a fault; possible
hypertension contributing to some symptoms; and, persistent
depression and anxiety related to her medical issues that he
opined may contribute to some of her problems. (Id.,
March 7, 2016, Plaintiff was seen by Dr. Guthrey for follow
up. (Id., pp. 511-13). Dr. Guthrey gave Plaintiff
samples of Lyrica and asked her to wean herself off Fioricet
and Lorcet. (Id., p. 513).
Guthrey filled out a physical medical source statement form
on March 9, 2016. (Id., pp. 507-08). Dr. Guthrey
listed Plaintiff's diagnoses as neuropathy and breast
cancer. (Id.). Dr. Guthrey checked several
restrictions, including: Plaintiff was likely to be absent
four or more days per month; she would need to recline or lie
down in excess of typical breaks during an 8hour work day;
she would require a sit/stand/walk option at will if
employed; she could never crawl, climb, stoop, crouch or
kneel; she could not use repetitive foot controls; she could
never lift or carry more than 10 pounds; and, she could not
use either hand for reaching, simple grasping, pushing and
pulling, and fine manipulation. (Id.). Dr. Guthrey
did not, however, indicate whether Plaintiff's ...