Atkins v. Saul

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Pauline Atkins, 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 supplemental security income (SSI) benefits under the provisions of Title XVI 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 SSI on April 28, 2015, alleging an inability to work due to mental retardation and cirrhosis of the liver. (Tr. 67, 201). An administrative hearing was held on December 4, 2017, at which Plaintiff appeared with counsel and testified. (Tr. 40-65).

         By written decision dated January 18, 2018, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 23). Specifically, the ALJ found Plaintiff had the following severe impairments: cirrhosis of the liver, hepatitis C, borderline intellectual functioning and major depressive disorder. However, after reviewing all of the evidence presented, the ALJ determined that 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. 24). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:

lift and carry 10 pounds occasionally and less than 10 pounds frequently; stand and/or walk 2 hours in an 8-hour workday; sit, for 6 hours in an 8 hour work day; and push and/or pull 10 pounds occasionally and less than 10 pounds frequently. In addition, the claimant retains the ability to understand, remember and carry our (sic) simple jobs (sic) instructions and to make decisions/judgments in simple work related situations. The claimant is also able to respond appropriately with co-workers, supervisors and the public and has the ability to respond appropriately to minor changes in the usual work routine.

(Tr. 27). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as a circuit board assembler and a toy stuffer. (Tr. 32).

         Plaintiff then requested a review of the hearing decision by the Appeals Council, which after reviewing additional evidence submitted by Plaintiff, denied that request on June 21, 2018. (Tr. 1-6). 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. 17, 18).

         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 time of the administrative hearing held on December 4, 2017, Plaintiff, who was forty-four years of age, testified that she had an eighth grade education. (Tr. 44). The record revealed Plaintiff had no past relevant work. (Tr. 43).

         The pertinent medical evidence before the ALJ during the relevant time period reflects the following. On May 15, 2015, Plaintiff was seen by Judith K. Lane, APRN, CNP, to establish care. (Tr. 309-318, 338-341). Nurse Lane noted Plaintiff was recently released from prison and was living in a drug rehab. Plaintiff was imprisoned for about three years. Prior to her imprisonment, Plaintiff reported she drank twelve beers a day and used IV meth. Plaintiff reported she had Hepatitis C with known cirrhosis. Plaintiff reported that prior to her imprisonment, she worked as a farmhand. Plaintiff reported right elbow pain for the past two years. Plaintiff also had a long history of gastroesophageal reflux disease (GERD). Upon examination, Nurse Lane noted no erythema or swelling of the right elbow with full range of motion with tenderness along the epicondyle. Plaintiff was noted to have a normal mood and affect with normal thought content. Plaintiff was assessed with Hepatitis C, right elbow pain, a rash, hematuria and GERD.

         On June 6, 2015, Plaintiff was seen in the emergency room complaining of vaginal bleeding for two years and right flank pain with burning with urination for one month. (Tr. 319-338, 341-347). Plaintiff also reported dyspnea. Plaintiff was assessed with a urinary tract infection and right lower quadrant pain. Plaintiff was noted to have a normal mood and affect, and normal judgment and thought content. Plaintiff was admitted and underwent testing. Plaintiff was prescribed medication and discharged home on June 7^th.

         On July 2, 2015, Plaintiff underwent a consultative mental diagnostic evaluation and intellectual assessment performed by Dr. Cynthia W. Dupuis. (Tr. 349-356). Plaintiff arrived alone by way of public transportation. Plaintiff reported an inability to work because she did not comprehend well. Plaintiff reported she also worked too slowly. Plaintiff denied symptoms of depressed mood, anxiety, hallucinations or delusions. Plaintiff reported she went to school through the sixth grade, noting she repeated the sixth grade three times. Plaintiff reported that she began using illegal substances at a very early age. Plaintiff was jailed in July of 2012, and remained incarcerated until April of 2015. Dr. Dupuis noted Plaintiff presented with a normal mood and affect and logical and goal directed thought processes. Plaintiff spoke extremely slowly at times but exhibited an average work pace. Plaintiff exhibited no difficulty following directions and evidenced concentration, persistence and focus on all tasks. Dr. Dupuis noted Plaintiff completed the Wechsler Adult Intelligence Scale - Fourth Edition and received a Full Scale IQ of 74, Verbal of 72, and Perceptual Reasoning of 82. Dr. Dupuis noted Plaintiff's ability to sustain attention, concentrate and exert mental control was in the borderline range. Dr. Dupuis noted Plaintiff's report that she could complete chores, cook meals, manage money and obtain a driver's license. Dr. Dupuis noted Plaintiff reported a slow work pace led to an employment termination, but Plaintiff also reported she was also using methamphetamines at that time. Dr. Dupuis opined that Plaintiff had the ability to cope with the typical mental/cognitive demands of skill-appropriate work if she remained substance free. With respect to adaptive functioning, Plaintiff reported the ability to drive, prepare simple meals, clean her room, participate in karaoke at the drug rehabilitation center, and sit in groups to talk. Dr. Dupuis reported no evidence that Plaintiff had difficulty understanding instructions given by the examiner. Dr. Dupuis indicated no limitations were observed in Plaintiff's ability to attend and sustain concentration on basic work-like tasks. Dr. Dupuis opined Plaintiff was also able to persist and work at a normal and steady pace.

         On July 2, 2015, Plaintiff was also seen by Dr. Shaletha D. Jones for a follow-up for chronic issues. (Tr. 362-384, 404-420). Dr. Jones noted Plaintiff was recently released from prison after being incarcerated for three years. Prior to her incarceration, Plaintiff had a history of alcoholism and IV drug use. Plaintiff reported she had been clean for three years. Plaintiff reported dyspnea on exertion, and bilateral leg swelling for the past four years that had worsened over the past three to four months. Plaintiff reported she was unable to walk across the street without becoming short of breath. Plaintiff reported she saw a cardiologist before she went into prison but did not remember the diagnosis. While incarcerated, Plaintiff reported she had started spironolactone and Lasix but stopped taking the medication as she felt it was not working. Plaintiff reported back pain. Plaintiff had not tried physical therapy. Plaintiff denied numbness, tingling or weakness. Plaintiff reported she had recently been treated for a urinary tract infection. Plaintiff indicated her gastroesophageal reflux was controlled with medication. A musculoskeletal examination revealed edema and tenderness. Plaintiff had a normal mood, affect, behavior, judgment and thought content. Plaintiff was assessed with Hepatitis C, unspecified hematuria, GERD, dyspnea with exertion, and lumbar back pain. Plaintiff was prescribed medication and referred for physical therapy.

         On July 9, 2015, Plaintiff underwent an echocardiogram that revealed normal systolic function and an ejection fraction estimated at sixty percent. (Tr. 391-397, 421-428).

         On July 17, 2015, Plaintiff was seen by Laroya Jenkins, PT, for a physical therapy evaluation. (Tr. 429-461). After an evaluation, Plaintiff's goals were set. It was recommended Plaintiff attend one to two weeks of therapy for twelve weeks.

         Physical therapy treatment notes dated July 22, 2015, indicate Plaintiff reported no back pain but she had left foot/ankle burning after working at a car wash all day. (Tr. 462-465). Plaintiff also reported a mild rash in the same area as where she felt burning. Plaintiff tolerated the session well and was able to demonstrate the exercise program.

         On July 23, 2015, Dr. Jerry Thomas, a non-examining medical consultant, opined Plaintiff did not have a severe physical impairment. (Tr. 71-72). On September 24, 2015, after reviewing the records, Dr. ...