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Simpson v. Colvin

United States District Court, D. Nevada

December 12, 2017

CAROYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


          GEORGE FOLEY, JR., United States Magistrate Judge

         This matter is before the Court on Plaintiff Margaret Simpson's Complaint (ECF No.1), filed on May 13, 2016. The Acting Commissioner filed her Answer (ECF No. 11) on August 15, 2016. Plaintiff filed her Motion for Reversal and/or Remand (ECF No. 15) on September 15, 2016. The Acting Commissioner filed her Cross-Motion to Affirm and Response (ECF No. 25) on January 23, 2017. Plaintiff did not file a reply brief.


         A. Procedural History.

         Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416, 423, on October 16, 2012, alleging that she became disabled beginning March 22, 2012. Administrative Record (“AR”) 58, 159-165. The Commissioner denied Plaintiff's application initially on March 26, 2013, AR 87-91, and upon reconsideration on June 16, 2013. AR 97-101. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) which was conducted on June 18, 2014 at which Plaintiff appeared and testified. AR 35-57. A vocational expert also testified at the hearing. AR 55-57. The ALJ issued her decision on August 14, 2014 and concluded that Plaintiff was not disabled from March 22, 2012 through the date of the decision. AR 20-28. Plaintiff's request for review by the Appeals Council was denied on March 9, 2016. AR 1-6. She then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned magistrate judge for a report of findings and recommendations pursuant to 28 U.S.C. §§ 636 (b)(1)(B) and (C).

         B. Factual Background.

         Plaintiff Margaret Simpson was born on April 13, 1956 and was 58 years old at the time of the hearing before the ALJ. She completed two years of college and has an associate of arts degree. AR 39. Plaintiff is 5'3" tall and has weighed in the range of 200 to 220 pounds during the past several years. AR 40, 427. She was employed by SOC LLC, a contractor at the Hawthorne Army Depot in Hawthorne, Nevada, from January 1994 until March 2012. Her job duties included typing damage and transit reports, issuing ammunition to troops and keeping track of ammunition that was moved or destroyed. In this job, Plaintiff walked 2 hours, stood 2 hours, and sat 6 hours a day. She did not carry anything heavy. “The only thing she would carry is a box full of paper to the printer.” The heaviest weight she lifted and carried was 10 pounds which she did frequently. AR 193-194.

         Plaintiff's medical records show that she suffers from asthma and has diabetes mellitus.[1] She received psychotherapy counseling for depression and anxiety relating to work, family members, personal relationships, and her poor financial condition after she stopped working and her unsuccessful efforts to obtain jobs. Plaintiff had regular sessions with one psychologist from January 2010 through December 20, 2013. AR 416-534. She saw a second psychologist between January 17 and June 6, 2014. AR 454-460. Neither psychologist prepared a mental residual functional capacity assessment.

         Plaintiff underwent cervical spine fusion surgery in December 2005. AR 427. On June 8, 2010, she fell out of her chair at work, injuring her neck, back, buttocks and right knee. Her neck, back and buttocks symptoms resolved fairly quickly, but her right knee continued to bother her. Id. On March 16, 2012, she reported to physician assistant (“PA”)William Leaming that she had persistent knee pain for the past three weeks which was moderate to severe. AR 314. On April 27, 2012, she told PA Leaming that she was “falling a lot.” He noted bilateral, mild knee joint effusion and tenderness. AR 310. On June 12, 2012, Plaintiff reported to PA Laura Millsap that she injured her right knee when she was getting into a truck. Her knee gave out on her and she fell to the ground. She felt like she twisted the knee. AR 302. An MRI of the right knee was performed on June 15, 2012 which revealed (1) “[s]evere tricompartmental osteoarthritis of the knee with extensive cartilage loss in all three compartments, ” (2) “[m]acerated-type full thickness tear of the posterior horn of the medial meniscus with secondary peripheral extrusion of the body, ” (3) “[t]hickened and abnormal appearing anterior cruciate ligaments with abnormal signal, ” and (4) “[l]arge suprapatellar joint effusion with mild synovids.” AR 234. On June 24, 2012, Plaintiff reported to Dr. Daniel Dees that her right knee had given out that day while she was walking with her cane and that she fell to the ground twisting her right knee. She stated that her knee had given out occasionally in the past, but she did not fall or injure herself until that day. She was unable to straighten the knee for a period of time after the fall and had spasms in the leg. By the time she saw the doctor, she had pain, tenderness and swelling about the right knee. AR 298.

         On August 20, 2012, Plaintiff saw Dr. Galen Reimer, a family practice physician. She reported the onset of knee pain “1 year ago” and her pain level was 8. The pain was constant and stable. AR 265. Dr. Reimer referred her to an orthopedic surgeon for evaluation. Id. Plaintiff was seen by Dr. Jeffrey Webster, an orthopedic surgeon, on September 12, 2012. She reported that her knee pain level was 9 and that the pain occurred constantly and was worsening. AR 226. Dr. Webster performed an injection to the knee. AR 228-29. He indicated that Plaintiff should return as necessary, that she would benefit from weight loss, and that surgery was not indicated at that time. AR 226. Plaintiff returned to Dr. Reimer on November 14, 2012 with continued complaints of right knee pain, which she now described as a 10 in severity. Dr. Reimer reviewed the orthopedic surgeon's consultation note and stated that Plaintiff may require total knee replacement in the future. He prescribed pain medication for her symptoms. AR 261. On November 28, 2012, Dr. Reimer further noted that Plaintiff had severe bilateral knee arthritis and internal damage; that her orthopedic surgeon had recommended knee replacement surgery in the near future and that she used a cane or walker for ambulation. AR 257. Dr. Reimer saw Plaintiff on April 25, 2013 at which time her pain level was a constant 5. Dr. Reimer noted that she had failed steroid injection therapy and probably needed knee replacement surgery. AR 250.

         Dr. Sheri J. Hixon-Brenenstall performed a psychological evaluation of Plaintiff on March 20, 2013 at the request of the Bureau of Disability Adjudication. AR 236-241. She noted under general observations that Plaintiff's emotional expression and affect were within the normal and reactive range of functioning. AR 236. Plaintiff's primary psychiatric history and complaint was depression. AR 237. Her cognitive presentation on mental status evaluation supported average intellectual functioning. Her social skills were within the average range. Dr. Hixon-Brenenstall stated that “[w]hat was observed clinically, was a woman who experiences mild emotional difficulty coping with the reported chronic medical symptoms and conditions. . . . Despite the mild emotional difficulty, her cognitive and social skills are within the average range of functioning.” AR 237.

         Under “Mood and Affect, ” Dr. Hixon-Brenenstall noted that Plaintiff reported a stable mood rating of 5.10 (10 = severe). She consciously worked toward feeling happy and calm. She sometimes felt tearful, and upset and frustrated with her chronic medical problems and physical limitations which she felt had a negative influence on her mood. AR 238. Mood fluctuations were not observed during the interview. Plaintiff's attention and concentration abilities were within the average range of functioning. Her judgment was satisfactory. Id. Dr. Hixon-Brenenstall opined that Plaintiff was capable of (A) carrying out detailed and complicated instructions; (B) carrying out simple instructions consistently over time without difficulty; (C) her attention and concentration ability were sufficient to carry out both detailed and complicated tasks, and simple tasks consistently; and (D) her social skills were sufficient to engage in appropriate interactions with supervisors, coworkers, and the public as one would expect within typical employment contexts. AR 240-241. Dr. Hixon-Brenenstall's diagnosis was: Axis I: Mood Disorder due to a General Medical Condition, with Depressive Features; Anxiety Disorder due to a General Medical Condition Axis II: No diagnosis; Axis III: Pain Disorder Associated with a General Medical Condition; Axis IV: Financial Under-Employed; and Axis V: Psychological Only Current GAF = 68-72. AR 241.

         Plaintiff was seen by PA Leaming on June 11, 2013 with complaints of a “depressed mood.” She reported that increasing symptoms began about three months ago. She did not feel like getting out of bed and was increasingly tearful. Situational stress-work was indicated, along with the fact that Plaintiff's cat died. AR 355. PA Leaming diagnosed “endogenous depression, unspecified” and prescribed Paxil. Id. He saw her again on June 25, 2013. Plaintiff denied worsening symptoms. PA Leaming continued her on Paxil. AR 353. On August 15, 2013, Plaintiff stated that she started on Paxil two weeks ago. She had not started earlier due to lack of insurance. She reported some improvement in symptoms and was continued on the medication. AR 351. On September 26, 2013, Plaintiff indicated that she was “doing well.” She felt depressed two weeks prior due to financial issues. Overall, she felt that the change to Paxil CR had helped. She was continued on the medication. AR 349. Plaintiff had an appointment scheduled for December 26, 2013, but it is unclear whether she kept it. AR 348. She was subsequently seen by PA Leaming on February 18, 2014, by PA Millsap on April 21, 2014, and then by PA Leaming on May 29, 2014. There is no mention of depression in these progress notes. Nor was it listed as a diagnosis. AR 342-346, 555-556.

         On April 21, 2014, PA Millsap noted that Plaintiff had chronic bilateral knee pain/arthritis. Plaintiff reported feeling well and denied any specific complaints. AR 344. On physical examination, the right knee was tender over the patella, with crepitation with movement. Plaintiff had limited range of movement and could not fully extend. AR 345. Plaintiff was seen by PA Leaming on May 29, 2014. She wanted a referral with respect to her knee pain. PA Leaming noted that Plaintiff's right knee pain had been ongoing since September 2011. The pain was progressive and severe; and was aching, sharp, and fairly constant. It was aggravated by walking and standing, and partly relieved by medication. AR 342. An MRI of the right knee was obtained on May 30, 2014 which showed findings substantially similar to those in the prior MRI in June 2012. AR 360.

         On June 17, 2014, one day prior to the hearing before the ALJ, an “Arthritis Questionnaire” was signed by “Juanchichos Ventura for William Leaming.” AR 213-216. The questionnaire responses stated that Plaintiff had constant stabbing pain which was made worse by cold, standing too long and sitting too long. Her pain level was 8 ½ on a scale of 10. The pain seldom interfered with Plaintiff's attention and concentration. She was able to tolerate moderate work stress. Norco medication caused dizziness. Plaintiff was not able to walk a whole city block. She could continuously sit or stand for a maximum of 45 minutes. She could sit about 4 hours and stand/walk for about 2 hours during an 8-hour work day with normal breaks. AR 214. Plaintiff would need to take 2 or 3 unscheduled breaks of 5 to 10 minutes during an 8-hour working day. She was required to use a cane or assistive device when standing or walking. She could occasionally lift up to 20 pounds so long as she used a cane. She could bend or twist 90 percent with a cane, but only 50 percent without a cane. AR 215. She could frequently twist, stoop (bend) and climb stairs with the use of a cane. She could only occasionally twist or stoop without a cane, and could climb stairs with a cane. She could not crouch or climb ladders. The questionnaire responses stated that Plaintiff should avoid exposure to extreme cold, heat and humidity. She did not have to avoid exposure to odors, dust, gases, perfumes, cigarette smoke, solvents, cleaners or chemicals. Plaintiff was likely to have good days and bad days, and would likely be absent from work about twice a month. AR 216.

         Plaintiff was seen by Dr. Martin Anderson, an orthopedic surgeon, on September 4, 2014 pursuant to a referral by PA Leaming. Dr. Anderson noted that Plaintiff had a history of chronic knee symptoms and a long history of bone-on-bone osteoarthritis. He also noted that “[s]he was previously denied surgery in Fallon because her surgeon felt that she was too heavy. She has tried to loose (sic) weight without success.” AR 551. Cortizone injections provided only temporary relief. She currently managed her pain with Norco and Ibuprofen medications. Plaintiff reported that she was beginning to have some left sided knee symptoms. “Symptoms are now significant enough that she is beginning to take fall with episodes of locking and buckling.” Id. Plaintiff described her knee symptoms as burning, catching, swelling, stiffness, giving out, popping, and locking. The pain was relieved by medication, ice, elevation and massage. It was worsened by sleeping, weather, using it, standing for long periods of time, walking, driving, moving, and sitting for long periods of time. AR 551-552.

         On physical examination, Dr. Anderson found some reproduction of pain with resisted straight leg raise on the right and limited external rotation with pain at the endpoint at 35 degrees. Internal rotation was 15 degrees without any significant discomfort. Knee motion was 0 to 115 degrees. There were mild varus deformities and medial joint line tenderness bilaterally. The knees were ligamentously intact. AR 553. Dr. Anderson noted that four views of the knee demonstrated bone-on-bone osteoarthritis with large osteophytes. His impression was osteoarthritis of both knees, symptomatic on the right and refractory to nonoperative care. Dr. Anderson discussed knee replacement surgery with Plaintiff and stated that she would contact his office if she desired to schedule surgery. He stated that “[s]he is fairly incapacitated at this point and has been unable to secure disability and she currently works six hours one day a week at a library.” AR 554.

         Plaintiff stated in her application for disability benefits that she became unable to work as of March 22, 2012 because of her disability. AR 159. She told her psychotherapist on April 4, 2012, however, that she was fired from her job “2 weeks ago.” AR 498. On April 20, 2012, she reported that she was depressed about losing her job and also about frequent falling due to balance and her knees giving out. AR 497. On May 4, 2012, Plaintiff discussed looking for a good job anywhere in the country. AR 496. In subsequent counseling sessions, she discussed looking for a job and the job applications she had submitted. AR 484, 490. Plaintiff testified at the hearing that she obtained a part-time job in January 2013 as a circulating librarian at the Hawthorne public library. She worked 6 to 12 hours a week. AR 40. She told her therapist on January 13, 2013 that she hoped this job would be a foot in the door for county positions. AR 483. After obtaining the ...

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