United States District Court, D. Nevada
FINDINGS AND RECOMMENDATION
FOLEY, JR., United States Magistrate Judge
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
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).
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.
medical records show that she suffers from asthma and has
diabetes mellitus. 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.
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.
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.
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.
“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.
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
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.
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.
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.
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.
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 ...