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Goseland v. Berryhill

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

June 14, 2019

BETTY GOSELAND PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE.

         I. Procedural Background

         Plaintiff 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. (Id.).

         By 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 (“RFC”) to:

[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).

         With 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. 27).

         On May 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.

         II. Relevant Evidence

         The 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.

         At the 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).

         Medical 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).

         Plaintiff 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).

         On 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).

         On 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., pp. 432-33).

         On 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).

         On 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).

         On 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., p. 479).

         On 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).

         Dr. 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 ...


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