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Nathan v. Berryhill

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

March 30, 2018

RUTH NATHAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Ruth Nathan 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”), and Supplemental Security Income (“SSI”), based on disability. 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. 25 (“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. 26. Upon consideration of the administrative record, Nathan's brief, the Commissioner's brief, and all other documents of record, [1] it is determined that the Commissioner's decision denying benefits should be affirmed.[2]

         I. PROCEDURAL HISTORY

         Nathan applied for a Period of Disability and DIB, under Title II of the Social Security Act, on July 3, 2012, and applied for SSI, based on disability, under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383d, on the same date, alleging disability beginning on June 26, 2012. (Tr. 287-99). After her application was denied at the initial level of administrative review on September 27, 2012, Nathan requested a hearing by an Administrative Law Judge (ALJ). (Tr. 172-83, 186-87). After a hearing was held on January 14, 2014, ALJ L.K. Cooper, Jr. issued an unfavorable decision finding that Nathan was not under a disability from the date the application was filed through the date of the decision, September 2, 2014. (Tr. 149-61). Nathan appealed the ALJ's decision to the Appeals Council, and, on February 22, 2016, the Appeals Council vacated the final decision of the Commissioner and remanded the case under sentence four of 42 U.S.C. § 405(g). (Tr. 167-70). A second hearing was held before ALJ Renee Blackmon Hagler on June 15, 2016. (Tr. 51-77). On August 12, 2016, the ALJ found that Nathan was not under a disability from June 26, 2012 through the date of the decision. (Tr. 26-39). Nathan again appealed the decision to the Appeals Council, which denied her request for review on November 25, 2016. (Tr. 1-6).

         After exhausting her administrative remedies, Nathan 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 April 28, 2017. (Docs. 13, 14). On May 24, 2017, Nathan filed a brief in support of her claim. (Doc. 16). The Commissioner filed her brief on August 8, 2017. (Doc. 19). The parties waived oral argument. (Docs. 23, 24). The case is now ripe for decision.

         II. CLAIMS ON APPEAL

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

1. The ALJ's finding that Nathan's depression and migraines were non-severe impairments is not supported by substantial evidence; and
2. The ALJ failed to correctly apply the Eleventh Circuit's pain standard; thus, the RFC is not supported by substantial evidence.

(Doc. 16 at p. 2).

         III. BACKGROUND FACTS

         Nathan was born on June 19, 1970 and was 42 years old at the time she filed her claim for benefits. (Tr. 287). Nathan originally alleged disability due to Irritable Bowel Syndrome (IBS), acid reflux, migraines, right shoulder problems, and depression. (Tr. 322). At the hearing on June 15, 2016, she testified that she cannot work because of pain in both shoulders, carpal tunnel syndrome in the right wrist, lower back problems, and headaches. (Tr. 58-61). She testified that she takes medication for depression, and it is controlled with the medication. (Tr. 60-61). She graduated from high school in 1989, attending regular education classes. (Tr. 322-23). She has worked as an industrial cleaner, a food packer, and an overnight retail stocker during the past fifteen years. (Tr. 56-57). In the Function Report that she completed on August 24, 2012, she indicated that she was engaging in normal daily activities at that time; such as driving her daughter to school, light cooking for family members, light cleaning, shopping, sleeping, watching television, reading, helping take care of the family dog, and helping take care of her disabled mother. (Tr. 331-35). She stated that she could take care of her personal needs, although slower and with some difficulty post her shoulder surgery. (Tr. 332). However, at the June 15, 2016 hearing, she testified that she needs assistance shopping, dressing, and combing her hair. (Tr. 63-64). She further testified at the hearing that she does no cooking or housework and spends her days at home in bed watching television. (Tr. 63-64). She can pay bills, count change, handle a savings account, and use a checkbook. (Tr. 334). She can and does drive. (Tr. 62, 334). After conducting the June 15, 2016 hearing, the ALJ made a determination that Nathan had not been under a disability during the relevant time period, and thus, was not entitled to benefits. (Tr. 26-39).

         IV. ALJ'S DECISION

         The ALJ made the following relevant findings in her August 17, 2016 decision:

The claimant has also alleged, or the medical record indicates a history of, the following conditions: depression, gastroesophageal reflux disease, irritable bowel syndrome, and migraine headaches (Exhibits 2E, 5F, and 6F). However, although the record shows that the claimant complained of headaches and symptoms associated with irritable bowel syndrome as early as 2008, the claimant's medical records show that she has not complained of or sought treatment for headaches since March 2012 or for irritable bowel syndrome since October 2011(Exhibits 5F and 6F). The claimant has not complained of or been treated for these conditions since at least 3 months before her alleged onset date of June 26, 2012. This is inconsistent with her report that she wakes with headaches daily and her testimony that she has 5 to 6 flares of irritable bowel syndrome every night (Exhibits 2E and 5E). Recent treating source records from Marlo Paul, M.D., document complaints of headache, associated with draining in her ears, cough, and nasal congestion (Exhibit 23F). However, the headaches complained of are not consistent with the claimant's previous reports of migraine headaches and Dr. Paul diagnosed the claimant with a sinus infection, for which he prescribed treatment with an antibiotic, Augmentin (Exhibit 23F). The claimant's sinus infection was responsive to treatment (Exhibit 23F). With respect to the claimant's GERD, there is no evidence of any significant limitations related to this condition (Exhibits 5F and 6F). Finally with respect to the claimant's alleged depression, a plan for the treatment of depression was put in place for the claimant at West Alabama Mental Health Center on May 31, 2012 (Exhibit 7F). The claimant exhibited a major problem with depression, a moderate problem with her judgment, and a minor problem with her insight (Exhibit 7F). Otherwise, her mental status examination was normal (Exhibit 7F). The claimant's level of functioning was deemed normal and she was able to function on her job and in her home (Exhibit 7F). She was diagnosed with major depressive disorder without psychotic features and assigned a global assessment of functioning (GAF) score of 55, with her highest GAF in the past year also being 55 (Exhibit 7F). The claimant's GAF scores are consistent with moderate symptoms or moderate difficulty in social, occupational, or school functioning. When the claimant returned for a counseling session on July 5, 2012, her mood was anxious but her affect was normal (Exhibit 7F). The remainder of her mental status examination was normal as well (Exhibit 7F). While the claimant reported ongoing depression, she did not return for further treatment, which suggests that the claimant's depression is not a severe impairment and does not produce significant limitations (Exhibit 7F). The claimant's depression, GERD, irritable bowel syndrome, and migraine headaches constitute at most only a slight abnormality that cannot reasonably be expected to produce more than minimal, if any, work-related limitations. These impairments are therefore considered to be non-severe (20 CFR 404.1521, 416.921).
The claimant's medically determinable mental impairment of major depressive disorder does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore non-severe.
In making this finding, the undersigned has considered the four broad functional areas set out in the disability regulations for evaluating mental disorders and in section 12.00C of the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1). These four broad functional areas are known as the “paragraph B” criteria.
The first functional area is activities of daily living. In this area, the claimant has no limitation. During the intake process at West Alabama Mental Health Center in May 2012, the claimant was able to function in her work environment and at home (Exhibit 7F). The claimant reported that she was able to do activities related to personal care and hygiene, although she reported some pain with dressing, bathing, caring for her hair, and shaving (Exhibit 4E). She reported spending her days taking her daughter to school, preparing meals, and performing simple household chores, including ironing, cleaning, and laundry (Exhibit 4E). She reported that she mostly prepares frozen meals secondary to fatigue and shoulder problems (Exhibit 4E). The claimant reported that she is able to drive, shop in stores for groceries, and manage money (Exhibit 4E).
At the hearing on June 15, 2016, the claimant testified that she is able to bathe herself but needs her daughters help caring for her hair. She testified that her daughter and son prepare all the meals. She testified that she does not do any household chores. The claimant testified that she has a driver's license and is able to drive but only drives 3 times per week. She testified that she is able to shop in stores but noted that she needs help from her son to reach items on shelves.
Although the claimant has testified to daily activities which are fairly limited, two factors weigh against considering these allegations to be strong evidence in favor of finding the claimant disabled. First, allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty. Secondly, even if the claimant's daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant's medical condition, as opposed to other reasons, in view of the relatively weak medical evidence and other factors discussed in this decision (Exhibits 16F and 21F). Overall, the claimant's reported limited daily activities are considered to be outweighed by the other factors discussed in this decision.
The next functional area is social functioning. In this area, the claimant has no limitation. The claimant reported that she spends time with other people “sometimes” but reported that most of the time she is in her bedroom and likes to be alone (Exhibit 4E). The claimant reported that she has problems getting along with family, friends, neighbors, and others because she likes to “stay away from stress”, in particular her family, who likes “to argue and fuss” (Exhibit 4E). However, during the intake process at West Alabama Mental Health Center in May 2012, while the claimant reported family conflict, she also reported socializing with family and friends and spending her leisure time listening to music (Exhibit 7F). Furthermore, the claimant reported that she is able to get along with authority figures and that she has never been fired or laid off from a job because of problems getting along with other people (Exhibit 4E). While the claimant has a limited social network and limited social activities, her reports suggests that she is able to interact with others in an appropriate manner and to behave appropriately in social settings. Accordingly, the claimant has no limitation in social functioning.
The third functional area is concentration, persistence or pace. In this area, the claimant has mild limitation. The claimant reported that she is able to pay attention for “a long time” (Exhibit 4E). She reported that she finishes things that she starts (Exhibit 4E). The claimant reported that she follows written and spoken instructions “very well” (Exhibit 4E). She reported that her impairments do not affect her ability to concentrate but did report problems completing tasks (Exhibit 4E). During the intake process at West Alabama Mental Health Center in May 2012, the claimant exhibited no problems with her attention span, concentration, memory, or coherence (Exhibit 7F). At a July 5, 2012, return visit, the claimant was oriented to person, place, time, and situation, and she had no thought or perceptual disturbances (Exhibit 7F). At the recent hearing, the claimant testified that she is able to pay attention for only 15 minutes at a time and testified that she cannot maintain focus for 2 hour periods. The claimant's testimony is not consistent with the objective medical evidence or her prior reports; nevertheless, the undersigned, in giving the claimant the benefit of the doubt, finds that she has mild limitation in concentration, persistence, and pace.
The fourth functional area is episodes of decompensation. In this area, the claimant has experienced no episodes of decompensation which have been of extended duration.
Because the claimant's medically determinable mental impairment causes no more than “mild” limitation in any of the first three functional areas and “no” episodes of decompensation which have been of extended duration in the fourth ...

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