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Schofield v. Berryhill

United States District Court, D. Nevada

February 27, 2018

CAROLYN D. SCHOFIELD, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION MOTION FOR REVERSAL AND/OR REMAND (#18) CROSS-MOTION TO AFFIRM (#19)

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.

         This case involves judicial review of administrative action by the Commissioner of Social Security denying Plaintiff Carolyn Schofield's claim for disability benefits under Title II of the Social Security Act. Plaintiff's Complaint (ECF No. 4) was filed July 21, 2016. Defendant's Answer (ECF No. 10) was filed September 26, 2016. A certified copy of the Administrative Record (the “A.R.”) was filed on October 4, 2016. See (ECF No. 13). This matter has been submitted to the undersigned United States Magistrate Judge for Findings and Recommendations on Plaintiff 's Motion to Remand (ECF No. 18), filed on December 1, 2016 and the Commissioner's Cross-Motion to Affirm and Opposition to Plaintiff's Motion for Reversal and/or Remand (ECF No. 19), filed on January 5, 2017. Plaintiff did not file a reply brief.

         BACKGROUND

         A. Procedural History.

         On February 9, 2011, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging that her disability began on February 3, 2011. AR 124. The Social Security Administration denied Plaintiff's claim on August 30, 2011. AR 102. Plaintiff then filed for reconsideration, which was denied on May 9, 2012. AR 103. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and testified at a hearing before the ALJ on May 2, 2013. AR 70- 93. The ALJ determined that Plaintiff was not disabled from February 3, 2011 through June 21, 2013. AR 124-132. Plaintiff appealed the decision of the ALJ to the Appeals Council on August 20, 2013. AR 212. The Appeals Council granted Plaintiff's request and remanded the case for a supplemental hearing with instructions. AR 139-141. Plaintiff testified at a second hearing before the ALJ on March 6, 2015. AR 45-69. Again, the ALJ determined that Plaintiff was not disabled from February 3, 2011 through September 30, 2013. Plaintiff appealed the decision of the ALJ to the Appeals Council on July 13, 2015. AR 13-14. This time, the Appeals Council denied Plaintiff's request for review on March 16, 2016, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. AR 1-6. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

         B. Factual Background.

         Plaintiff Carolyn Schofield was born on February 11, 1968. AR 49, 74. She is 5'8" tall and weighed 140 pounds in March 2015. AR 50. Plaintiff has two daughters who were 16 and 14 at the time of the March 2015 hearing. Both daughters lived with Plaintiff and she was responsible for taking care of them on a daily basis. Plaintiff reported that she lived with her boyfriend. AR 323. Plaintiff has an Associates Degree in General Studies from the University of Nevada Las Vegas. AR 51.

         1. Plaintiff's Disability/Work History Reports and Hearing Testimony

         In her initial February 2011 disability report, Plaintiff listed the following as her disabling conditions: glaucoma; degenerative disc disease L3-L4, L5-S1; scoliosis; back injury; arthritis; hip injury; bursitis; and depression. AR 297. Plaintiff stated that she stopped working on February 3, 2011 because of her conditions. AR 297. Plaintiff reported that she previously worked as an auditor, cage cashier, cage manager and a concessions cashier. AR 298. Plaintiff was taking the following medications for her conditions: combigan; diladid; lortab; lumigan; neuronten; percocet; prednisolone; soma; temazapam; timolol; travatan; and xibrom. AR 300.

         Plaintiff submitted a function report in April 2011. AR 323-330. Plaintiff reported that she would have to take medication prior to beginning her daily activities and would continue to take medication throughout the day. AR 324. Plaintiff could care for her pets and her children when she was having a good day. She stated that her children had to lift items that were too heavy for her and that they cleaned the things that she could not. She woke up every night in pain and was only able to sleep on her left side. AR 324. Plaintiff had to be reminded to use her eye drops for glaucoma and could only cook simple meals due to her injuries. AR 325. Plaintiff was able to do the laundry by herself but only if someone else brought the hamper into the laundry room. Plaintiff could no longer do yard work and would not drive alone because of fear that she would have a glaucoma attack. AR 326. Plaintiff reported that she did not have a regular income and would go to food banks and only grocery shop when she could afford it. AR 326. Plaintiff could no longer read or make artwork due to her vision problems. AR 327. Plaintiff reported that she could lift 15 pounds; walk about one block; could not touch her toes; stand for 20 minutes; could occasionally kneel; could only walk up about 10 stairs before she was in pain; and was greatly affected by blurry vision. AR 328. Plaintiff reported that she could not handle stress very well because she would get depressed, cry and would isolate herself. AR 329. She reported using crutches, a cane, and glasses. Plaintiff also listed the following medications: percocet; soma, temazapam; neurontin; timolol; travatan; and prednisolone. AR 330.

         Plaintiff submitted a second disability report on October 11, 2011. AR 33-339. Since her last report, Plaintiff had seen Dr. Bruce Snyder and Dr. Kent Wellish for treatment of her glaucoma. AR 334-335. Plaintiff reported treating at Nevada Orthopedic & Spine Center for her chronic pain and Southwest Medical Associates for “All Conditions.” No other changes were noted.

         Plaintiff submitted a third disability report on July 9, 2012. AR 342-348. Plaintiff reported that since her last report her hip was causing her increased pain and it had become painful to walk. Her lower back spasms were also worse. AR 342. Plaintiff reported treating at North Vista Hospital following a car accident; Vista Medical Associates for “routine health care”; and at the Wellish Vision Institute for her glaucoma and iritis. AR 343-344. Plaintiff stated that she could still take care of her personal needs without assistance but took things easy. AR 346. For example, she stayed home most of the day. Plaintiff reported that she continued to home school her children and tried to read when she could. She was no longer able to take her dog for a walk. AR 346. No other changes were noted.

         Plaintiff testified at the March 6, 2015 hearing that she last worked in February 2011 as a cage cashier. AR 51. She worked as a cage cashier since 1990. Plaintiff also worked as a cage auditor and cage manager during that time. As a cage manager, Plaintiff managed the staff, reconciled funds, and did paperwork. AR 52. Plaintiff testified that she stopped working in 2011 because she could not see due to her glaucoma. However, at the time of the hearing, Plaintiff was no longer having issues with her glaucoma, which was adequately treated with eye drops. AR 53. She still suffered from left hip bursitis and degenerative disc disease of the lumbar spine. AR 57. Plaintiff was taking medication to help with the pain from those injuries but stated that some days she had difficulty walking due to her hip pain. AR 59-60. In addition, Plaintiff continued to suffer from COPD and she took ventolin and spiriva for those symptoms. AR 59.

         Upon examination by her attorney, Plaintiff testified that her two daughters (14 and 16 years old) had to cook for themselves because Plaintiff was unable to at times. AR 53. Plaintiff was also unable to clean or do her daughter's laundry because it was too strenuous. AR 54. She got frustrated easily because of her limitations and because of her pain in her hip, back, hands and abdomen. Plaintiff took tramadol to help with her pain. AR 54. This pain had been constant since 2007. AR 55. Plaintiff testified that up to February 2011, she was able to work with this pain because she worked only part-time and continued to take medication. AR 55-56. Plaintiff stated that if she was not in the constant pain, she would have returned to work. AR 56.

         Plaintiff testified that she could stand for about 20-25 minutes at a time. AR 60. The ALJ then asked Plaintiff the following question:

Well, let's say you had a job where you would be able to sit and stand say up to 30 minutes each. You can stand - you can stand one minute or you can stand 30 minutes. And then sometimes in between that you decided you wanted to sit. So you can sit between one minute and 30 minutes. And then after 15 minutes, for example, you got - you got - started feeling bad. Then you could stand. Would you be able to do a job with that kind of situation?

AR 60.

         Plaintiff responded that she could try. AR 61. Plaintiff stated that she had arthritis in her hands so she would have difficulty picking up small objects. Finally, Plaintiff testified that she had not been able to see her primary care physician due to his unavailability so she did not know what his future treatment plan would be for her. AR 62. She stated that she wanted to be referred to physical therapy but the doctor denied her request. AR 62.

         . . .

         2. Vocational Expert's Testimony

         Vocational Expert (“VE”), Bernard Preston, testified at the March 6, 2015 hearing. After establishing Plaintiff's prior work history as a booth cashier (light work), auditor (sedentary work), and manager (light work), AR 63, the ALJ asked the VE the following hypothetical question:

If an individual who could lift 20 pounds occasionally, 10 pound frequently. This person can stand and walk up to six, sit up to six. This person would have occasional postural all including no - including no climbing of ladders, ropes, and scaffolds. The occasional postural everything else. This person would in addition to that require a sit/stand option. Let's say be able to sit up to 30 minutes any time within that one to 30 minute period. Can change from one position to the - to the next throughout the workday of course excluding breaks and things like that. With that sit/stand option, occasional posture limitations, and no ladders, ropes, ...

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