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Zachary v. Saul

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

November 18, 2019

PAULA MARIE ZACHARY PLAINTIFF
v.
ANDREW M. SAUL, Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Paula Marie Zachary, brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (Commissioner) denying her claim for a period of disability, disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social Security Act (hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g).

         I. Procedural Background

         Plaintiff filed her applications for DIB and SSI on September 1, 2016, due to back problems, back pain, fibromyalgia, a nervous breakdown, and neuropathy. (ECF No. 11, pp. 19, 215). Plaintiff alleged an onset date of May 1, 2016. (Id.). Her claims were denied initially on February 7, 2017, and upon reconsideration on June 9, 2017. (Id., pp. 19, 111-13, 128-30). An administrative hearing was held on February 13, 2018, in Fort Smith, Arkansas, before the Hon. Bill Jones, Administrative Law Judge (“ALJ”). (Id., pp. 39-57). Plaintiff was present and represented by counsel, Michael Hamby, at the hearing. (Id.). Larry Seifert, a vocational expert (“VE”), also testified at the hearing. (Id.).

         By written decision dated June 28, 2018, the ALJ found Plaintiff's disorder of her back, obesity, borderline personality disorder, chronic post-traumatic stress disorder, and early onset cyclothymia[1] to be severe, but that Plaintiff's impairments did not meet or equal the level of severity of any impairment in the Listing of Impairments. (Id., p. 22-26). The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to:

[P]erform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except she can occasionally climb, balance, stoop, kneel, crouch, and crawl. She is limited to jobs with simple, routine, and repetitive tasks involving only simple, work-related decisions, with few, if any, workplace changes. She can have no more than incidental contact with coworkers, supervisors and the general public and will need a cane to ambulate. (Id., pp. 26-32).

         With the assistance of a vocational expert (“VE”), the ALJ found Plaintiff would be unable to perform her past relevant work as actually or as generally performed, but she would be able to perform the representative occupations of: Compact Assembler (DOT No. 739.687-066), with 4, 685 jobs in the national economy; Ampoule Sealer (DOT No. 559.687-014), with 17, 391 jobs in the national economy; or, Dowel Checker (DOT No. 669.687-014), with 6, 215 jobs in the national economy. (Id., p. 32-33). The ALJ found Plaintiff had not been disabled under the definition of the Act from May 1, 2016 through the date of his decision. (Id., p. 33).

         On November 9, 2018, the Appeals Council denied Plaintiff's request for review. (Id., pp. 6-8). Plaintiff then filed this action on January 4, 2019. (ECF No. 1). This matter is before the undersigned for report and recommendation. Both parties have filed appeal briefs. (ECF Nos. 15, 16). 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 February 13, 2018, Plaintiff testified that she made it to the 10th grade in school but had learning difficulties so she was in special classes for both math and English. (ECF No. 11, pp. 43, 48). Although not discussed at the hearing, Plaintiff's disability report shows she later earned a GED. (Id., p. 216). Plaintiff testified she continued to have difficulties reading and writing. (Id., p. 43).

         Plaintiff testified that she had both anger outbursts and frequent crying episodes, and this had caused her to lose her last job. (Id., p. 44). At the time of the hearing, she said these incidents happened about once a week anytime she was in public - as she had issues dealing with people. (Id., pp. 44-45). When she had crying episodes, she would cry on and off all day, and when she had anger issues, she might punch a wall or self-harm. (Id.). Plaintiff testified that at her last job she was crying on and off all day, and this caused her supervisors to become concerned. (Id., p. 45). She also had two episodes at work where she “zoned out, ” had difficulties filling out paperwork, and near the end, she missed up to 10 days of work per month due to falling. (Id., pp. 48, 53-55).

         Plaintiff testified she had numbness and swelling in her feet and legs every day. (Id., pp. 59-50). She elevated her feet while she slept, which alleviated the swelling somewhat, and if she noticed swelling during the day, she would elevate them for two hours at a time, usually twice a day. (Id.). The numbness was constant. (Id.). Standing or walking more than 15 to 20 minutes worsened her swelling and numbness. (Id.).

         Plaintiff testified that she had back pain daily that was a 7 or 8 on a 10-point pain scale, but it would drop to a 4 or 5 with medication. (Id., p. 47). She had been discussing having a second back surgery, but her surgeon, Dr. Johnson, had recently had a heart attack and she did not have a surgery scheduled. (Id., pp. 46-47). Plaintiff also testified that her doctors had expressed an unwillingness to go forward with a needed back surgery until she lost some weight, but that she had put on about 30 pounds in the last few months. (Id., pp. 47-48).

         Plaintiff testified that her medications did alleviate her back pain, but made her drowsy, occasionally dizzy, and sometimes unable to function. (Id., p. 49). Her Clonazepam[2] and Hydrocodone[3] caused a lot of memory problems and difficulties sleeping. (Id., p. 46).

         Plaintiff testified that she could not lift more than 10 pounds, or climb stairs, ladders, and scaffolds, but she could go up ramps with her walker. (Id., pp. 52-53). Plaintiff testified that her walker and cane had been prescribed because she had suffered some falls, and she used her walker and cane all the time, including at home. (Id.). Her knees hurt daily and made it difficult for her to get up from a sitting position, but she would be okay once she started to walk. (Id., p. 51).

         Plaintiff testified there was very little she could do around the house. (Id., p. 57). She lived with her husband, her brother, and their friend. (Id., pp. 57-58). The friend who lived with them assisted her husband, who was also ...


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