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Blackston v. Berryhill

United States District Court, S.D. Alabama, Southern Division

June 6, 2017

VICTORIA M. BLACKSTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 19 & 21 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the administrative record, plaintiff's brief, the Commissioner's brief, and the arguments of counsel at the April 26, 2017 hearing before the Court, it is determined that the Commissioner's decision denying benefits should be reversed and remanded for further proceedings not inconsistent with this decision.[1]

         I. Procedural Background

         Plaintiff protectively filed an application for supplemental security income (“SSI”) benefits on June 27, 2013, alleging disability beginning on October 1, 2011. (See Tr. 142-47.) Her claim was initially denied on December 27, 2013 (Tr. 77 & 92-96) and, following Plaintiff's January 10, 2014 written request for a hearing before an Administrative Law Judge (see Tr. 97-99), a hearing was conducted before an ALJ on March 3, 2015 (Tr. 35-75). On April 17, 2015, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to supplemental security income benefits. (Tr. 18-30.) More specifically, the ALJ proceeded to the fifth step of the five-step sequential evaluation process and determined that Blackston retains the residual functional capacity to perform those sedentary jobs identified by the vocational expert (“VE”) during the administrative hearing (compare Id. at 29-30 with Tr. 66-68). On May 11, 2015, the Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council (Tr. 15); the Appeals Council denied Blackston's request for review on July 27, 2016 (Tr. 1-3). Thus, the hearing decision became the final decision of the Commissioner of Social Security.

         Plaintiff alleges disability due to anxiety, depression, hypertension, type 2 diabetes mellitus, diabetic neuropathy, and arthralgias. In light of the issues raised by Plaintiff in her brief (see Doc. 12, at 3 & 6), the Court sets forth all references in the decision to Drs. Paul Smith and John W. Davis, as well as the ALJ's critical residual functional capacity assessment.

2. The claimant has the following severe impairments: hypertension, diabetes, diabetic neuropathy with foot pain, obesity and anxiety disorders (20 CFR 416.920(c)).

         . . .

As to the diagnosis of depression, these are sporadic and associated with specific events and are not severe in that the depression does not last 12 continuous months. In terms of the claimant's depression, records from Springhill Medical Center include an emergency room visit on August 29, 2011, that identified emotional disturbance involving panic attack and chest pain that was related to claimant's sister having been diagnosed with cancer. The consultative report from John Davis, Ph.D., who examined the claimant on December 10, 2013, reference the claimant reported additional stress [with] the death of her mother and two sisters within the past two years, as well as her inability to work. The claimant denied any previous inpatient or outpatient mental health treatment; and reported current medications included metformin, Ativan, HCTZ, Tribenzor, Lortab, Lanitus, Phenergan, Clonidine, and Neurotin, prescribed by Dr. Smith with Franklin Clinic. The claimant reported that she had taken all of her medications the day of the evaluation, and acknowledged that while some medicines helped with anxiety, they did not relieve her depressive symptoms, nor relieve or regulate diabetes and blood pressure levels, or prevent numbness and burning in her feet. The examination yielded diagnostic impression of Major Depressive Disorder, NOS and Panic Disorder without Agoraphobia. The prognosis was guarded; however, Dr. Davis indicated it was reasonable to expect some improved mental health functioning with consistent treatment (e.g. psychotherapy and medication) within the next six to 12 months. Other comments indicate the claimant's ability to understand and remember complex instructions, carry out complex instructions, and make judgments on complex work-related decisions was moderately impaired at the time due to symptoms of anxiety and depression. Dr. Davis also commented that the claimant's ability to interact appropriately with the public, supervisors and co-workers, and to respond appropriately to usual work situations and changes in routine settings was moderately-to-markedly impaired due to symptoms of anxiety and depression. He concluded that the claimant appeared to have the ability to manage any benefits that were forthcoming.

         The most reliable records regarding depression was the absence of a depression diagnosis from the claimant's treating physician, Dr. Smith. Dr. Smith treats the claimant's anxiety and prescribes medication. He has not given a diagnosis for depression and I find that to be substantial evidence that depression is not severe in this case. Nevertheless, I still must consider even non-severe impairments.

. . .

         3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

. . .
The psychological consultative report provided by John Davis, Ph.D., on December 10, 2013, reference the history of anxiety-related disorders, and he included in the diagnoses, Major Depressive Disorder, NOS. The severity of the claimant's mental impairments, considered singly and in combination, does not meet or medically equal the criteria of listings 12.04 and 12.06. In making this finding, I have considered whether the “paragraph B” criteria are satisfied. To satisfy the “paragraph B” criteria, the mental impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. A marked limitation means more than moderate but less than extreme. Repeated episodes of decompensation, each of extended duration, means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks.
In activities of daily living, the claimant has mild restriction. This conclusion is consistent with the December 10, 2013 psychological consultative report of John Davis, Ph.D., which reference daily activities include rising at 6am, and spending the day reading, resting, and staying inside the house. Additionally, the report indicates the claimant performs some daily domestic chores, but gets help with these frequently. It is also generally consistent with the evidentiary record. The mild restriction in activities of daily living is also consistent with the rating of Joanna Koulianos, Ph.D., a State agency psychological consultant. Her assessment on December 11, 2013, also endorsed a mild limitation in this area.
In social functioning, the claimant has moderate difficulties. This conclusion is generally consistent with the bulk of the objective evidence, and in particular, with Dr. Davis'[s] consultative report that notes the claimant used to enjoy going places and socializing, but no longer engages in these activities. The claimant endorsed normal social relationships with family, but stated that she has no friends and preferred keeping to herself. Additionally, the PRT rating from Dr. Koulianos is consistent with Dr. Davis's conclusion, in that they both reflect moderate level of difficulties in the area of social functioning.
With regard to concentration, persistence or pace, the claimant has mild difficulties. This conclusion is largely consistent with Dr. Davis'[s] consultative report that notes the claimant spends the day reading and watching television. The PRT rating from Dr. Koulianos is slightly different, in that she assigned a moderate rating in this area, whereas I concluded the claimant only has mild difficulties.
As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended duration. This conclusion is consistent with the consultative report from Dr. Davis, and with the PRT assessment by the State agency psychological consultant.
. . .
4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a), except in function-by-function terms, the claimant is limited to lifting and/or carrying no more than 10 pounds occasionally and 5 pounds frequently; standing and/or walking at least 2 hours in an 8-hour day; has no restrictions for sitting in an 8-hour workday; would need to alternate sitting/standing by sitting no more than one hour at one time with the ability to stand and stretch for 5 minutes at one time but would not need to leave the workstation. The claimant would have additional restrictions that include never operating foot controls, bilaterally; no climbing ladders or scaffolds; bending occasionally; no exposure to unprotected heights; no exposure to dangerous equipment; and could never operate a commercial vehicle. The claimant can attend and concentrate for two hours at one time before needing a break, and is able to adapt to occasional changes in work settings and routines. The work should not require interaction with [the] public on the job.

. . .

On February 12, 2015, treating physician, Paul Smith, M.D., completed a Work Requirement form for the Food Stamp program, in which he opined that the medical conditions of uncontrollable blood pressure and neuropathy with foot pain, and damage from diabetes prevent the claimant from being able to work; and opined the condition(s) were permanent. He also gave the date of October 10, 2011 as onset for the described conditions.

         . . .

About 6 weeks after I held a hearing, the claimant submitted 2 opinions from Dr. Smith. Dr. Smith, according to the medical evidence as a whole, has been treating the claimant for many years. In fact, Dr. Smith also supported claimant's application for food stamps at Exhibit 13F. It follows then that he would also want to support claimant's Supplemental Security Income application as well. Although the evidence was not timely, it arrived in the “nick of time” and I very carefully considered all of his opinions together and compared them to his treatment notes.

         The claimant protectively filed this application on June 10, 2013. While outside of the relevant period, I reviewed 3F in its entirety as well as 8F and 12F. The evidence shows a long history of anxiety, diabetes mellitus, obesity and hypertension. In 2007, the claimant's weight was around 245-247 pounds. Her blood pressure was also high back then with various elevated ranges. In 2008, her blood pressure was still high even though she was taking Exforge 10/320. She was walking 2 miles per day. In 2009, her blood pressure was elevated because she had not taken her medication for 2 days. During this time[, ] from 2007 to 2009, she also experienced cramps and abdominal pain, lower back pain and insomnia/snoring. In 2010, her primary complaints were low back pain and in early 2011, she once complained of her feet feeling numb. During 2011, the medical records indicate she was generally feeling better but her diagnosis was malignant hypertension. In late 2011, she began to complain of lower back pain again. Enter 2012 when Dr. Smith noted “malignant hypertension improved” and “diabetic neuropathy-no meds for now.” However, Dr. Smith eventually prescribed Neurotin. The claimant was also in a motor vehicle accident in 2012 and complained of shoulder pain only once. During most of 2012, she complained of foot pain; her blood sugar was elevated as well.

Dr. Smith's records in 2013, right before the claimant filed the instant application, indicate the claimant had a stress test which was normal. Her blood sugars were much lower and overall she was about 20 pounds lighter. One week before she filed this application, Dr. Smith's notes indicate the claimant's diabetes was “ok, ” her hypertension was “ok” and she still had anxiety and low back pain. She had also gotten a nail in her foot. Over the next few visits, I noted Dr. Smith confirmed the claimant's anxiety, neuropathy and hypertension were improved. I also noted the claimant was living in Birmingham, exercising, eating well and lost 10 more pounds-she was down to 214 pounds.

         Exhibit 8F shows that in 2014, the claimant[‘s] anxiety and diabetes was “ok” and malignant hypertension was “improved” . . . . I also noted during this time, at least up to September 2014, there were no complaints of her feet for over a year. In September 2014, the claimant complained of foot pain. In January 2015, the claimant presented to Dr. Smith with a “foreign object” in her foot for 2 weeks and it was infected. Despite no complaints for well over a year about her feet, and considering the recent foreign object in her foot with infection, I still considered the neuropathy in her feet with foot pain and found it severe in Step 2 above.

I understand that Dr. Smith has been treating the claimant a long time and wants to assist her in obtaining food stamps and that is the reason for his opinion in 13F. However, it naturally follows that Dr. Smith's motivation in submitting opinions now to support her Supplemental Security Income application are also in order to assist her with benefits. Nevertheless, Dr. Smith's treatment records simply do not support the extreme opinions. For example, in 14F, Dr. Smith specifically endorses that the claimant has “no blackouts” but does have dizziness and numbness in her extremities. The records do show her complaints of numbness in the feet, but they are sporadic. There was a time when the complaints were more prolific, but not recently. There was one time the claimant reported having dizziness but that was all the way back to 2011 and no complaints of that symptom since then.

         Dr. Smith also checks the “yes” box when the pre-made form asks if the claimant will miss 2 days per month. Yet, Dr. Smith's treatment notes do not state anything about work activity, do not give any restriction and fail to indicate if he ever knew or asked her about work. Without any cogent medical rationale or explanation to explain this limitation or opinion, it is ...


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