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Denton v. Berryhill

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

August 24, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         Plaintiff Kristina M. Denton brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying her claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act") and for Supplemental Security Income ("SSI"), based on disability, under Title XVI of the Act. 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. (Doc. 24 ("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.")) (See also Doc. 25). Upon consideration of the administrative record, Denton's brief, the Commissioner's brief, and oral argument presented at the August 15, 2017 hearing before the undersigned Magistrate Judge, it is determined that the Commissioner's decision denying benefits should be affirmed.[2]


         Denton applied for DIB, under Title II of the Act, 42 U.S.C. §§ 423 - 425, and for SSI, based on disability, under Title XVI of the Act, 42 U.S.C. §§ 1381 -1383d, on August 19, 2013, alleging disability beginning on May 1, 2012. (Tr. 165-69, 170-75). Her application was denied at the initial level of administrative review on October 7, 2013. (Tr. 87-92). On October 24, 2013, Denton requested a hearing by an Administrative Law Judge (ALJ). (Tr. 103-04). After a hearing was held on December 10, 2014, the ALJ issued an unfavorable decision finding that Denton was not under a disability from the date the application was filed through the date of the decision, February 23, 2015. (Tr.18-29). Denton appealed the ALJ's decision to the Appeals Council, and, on June 29, 2016, the Appeals Council denied her request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3, 9).

         After exhausting her administrative remedies, Denton sought judicial review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The Commissioner filed an answer and the social security transcript on November 7, 2016. (Docs. 11, 12). Both parties filed briefs setting forth their respective positions. (Docs. 13, 21). Oral argument was held before the undersigned Magistrate Judge on August 15, 2017. The case is now ripe for decision.


         Denton alleges that the ALJ's decision to deny her benefits is in error for the following reasons:

1. The ALJ erroneously concluded that Denton's ankle strain and right middle trigger finger were not severe impairments;
2. The ALJ erred in finding that the Commissioner proved that there is other work in significant numbers in the national economy that Denton can perform given the assigned residual functional capacity (RFC); and
3. The ALJ erroneously relied upon a non-examining reviewing physician's opinion to support the RFC assigned to Denton.

(Doc. 13 at p. 2).


         Denton was born on September 4, 1981, and was almost 32 years old at the time she filed her claim for benefits. (Tr. 165). Denton alleged disability due to right shoulder bursitis, right wrist tendonitis, bursitis of the hips, bilateral ankle strain, trigger finger on her right middle finger, fibromyalgia, GERD, bipolar disorder, and personality disorder. (Tr. 20-21). She graduated from high school and took courses towards an associate's degree. (Tr. 40). She worked as a petroleum supply specialist in the fuel and aviation unit when she was in the military from 2005 until 2009. (Tr. 40). In addition to that work, she has worked as a server, cook, and manager at various restaurants. (Tr. 40-41). Denton last worked on May 1, 2012. (Tr. 40). Denton testified that she has good days and bad days. On her good days, Denton engages in normal life activities; such as, handling her personal care, taking care of her five-year old twins, cleaning her house, baking, running errands, socializing with family, taking her twins to the park or other activities, and practicing ball with her twins. (Tr. 47). On her bad days, she has to have help with her children and cannot do all of these activities. (Tr. 41, 48). After conducting a hearing, the ALJ made a determination that Denton had not been under a disability during the relevant time period, and thus, was not entitled to benefits. (Tr. 16-41).


         After considering all of the evidence, the ALJ made the following findings that are relevant to the issues presented in his March 23, 2015 decision:

3. The claimant has the following severe impairments: bipolar disorder; personality disorder; fibromyalgia; right shoulder bursitis; right wrist tendonitis; and bursitis of the hips (20 CFR 404.1520(c) and 416.920(c)).
These impairments are established by the material evidence, which will be discussed in more detail below, and impose more than minimal limitations on the claimant's ability to perform basic work-related activities. Therefore, these impairments are considered to be severe within the meaning of the Regulations.
The claimant also has the following non-severe impairments, which when considered singly and in combination, do not cause more than a minimal limitation in the ability to perform basic work activity: right middle trigger finger; history of bilateral ankle injuries; and gastroesophogeal reflux disease (GERD).
At the hearing, the claimant testified that the Department of Veterans Affairs (VA) was referring her for treatment for trigger finger on her right middle finger. Records also show that she was given a splint. (Exhibit 3F, page 33) However, x-rays taken in November 2012 are negative, and the record does not show ongoing complaints related to this condition. (Exhibit 3F, page 10) Therefore, the claimant's alleged trigger finger does not affect her ability to perform basic work activity and is non-severe.
The claimant also testified to a 10% VA disability rating for both of her ankles secondary to stress fractures. In August 2013, the claimant underwent a Compensation and Pension (C&P) Examination at the VA Medical Center in Birmingham. Examination findings were grossly normal, and x-rays were unremarkable. The report shows a diagnosis of ankle strain and concludes that her ankle condition does not impact her ability to work. (Exhibit 3F, page 2, 44-51) Therefore, the claimant's alleged bilateral ankle impairments are non-severe.
Records also show that the claimant has been diagnosed with GERD. Nevertheless, the record does not show any ongoing treatment for this condition and the August 2013 C&P evaluation finds that this impairment does not have any impact on the claimant's ability to work. (Exhibit 3F, page 40-44) Accordingly, the undersigned finds the claimant's GERD non-severe.
* * *
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs. She should not work at unprotected heights, around hazardous machinery, or operate automotive equipment and should never climb ladders, ropes, or scaffolds. She should never reach overhead with the right upper extremity, but can occasionally push/pull arm controls with the right upper extremity and can occasionally handle with the dominant right hand. The claimant is able to understand and carry out detailed, but uninvolved, written or oral instructions involving a few concrete variables in or from standardized situations. She can tolerate occasional contact with the general public and can occasionally adapt to minimal changes in the work setting or routine. She is able to maintain attention and concentration for up to two hours at a time and can perform goal oriented work, rather than production pace work. In making this finding, the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
* * *
At the hearing, the claimant testified to ongoing right shoulder and wrist pain. She reported that physical therapy has been recommended for her shoulder, and that she must use her left non-dominant hand to lift a gallon of milk. She also testified that she has difficulty grasping the steering wheel or holding a video game controller. Regarding her recent diagnosis with fibromyalgia, the claimant testified to having good days and bad days. She states that on a bad day, she is bedridden and needs her neighbors to help care for her children. She reports taking multiple medications to control her pain. Otherwise, the claimant alleges disability due to bipolar disorder, and testified to manic episodes and panic attacks.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.
In terms of the claimant's alleged right shoulder pain, a May 2013 MRI shows mild subacromial- subdeltoid bursal complex fluid, with a clinical correlation for bursitis, and mild cuff tendinosis. At the August 2013 C&P examination, the claimant reported chronic shoulder pain and limited range of motion. Examination findings revealed tenderness to palpation and guarding with decreased strength of 4/5 on abduction and forward flexion. Furthermore, the claimant's posterior shoulder joint musculature showed some localized atrophy with slight downsloping. Accordingly, the VA concluded that the claimant should be limited to no heavy lifting. (Exhibit 3F, page 3, 59-68)
The claimant has also been diagnosed with tendonitis in the right wrist. The August 2013 C&P examination showed some crepitations, but findings were otherwise mild. The claimant demonstrated 4/5 strength and a full range of motion with pain noted only at 60 degrees of dorsiflextion. Diagnostic imaging of the claimant's wrist was also unremarkable. Based on these findings, the VA found that the claimant's wrist condition does not impact her ability to work. (Exhibit 3F, page 3, 69-74)
The undersigned accounts for the claimant's shoulder pain and wrist tendonitis with a residual functional capacity for a reduced range of light work, lifting no more than 20 pounds. Furthermore, in giving full credit to the claimant's complaints of pain, she should not lift overhead on the right, should only occasionally push/pull with the right upper extremity, and only occasionally handle with the dominant right hand. However, greater limitations are not warranted as examination findings are for the most ...

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