United States District Court, D. Nevada
CAROLYN D. SCHOFIELD, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION MOTION FOR REVERSAL AND/OR
REMAND (#18) CROSS-MOTION TO AFFIRM (#19)
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
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
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).
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
Plaintiff's Disability/Work History Reports and Hearing
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.
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.
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
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.
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.
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.
testified that she could stand for about 20-25 minutes at a
time. AR 60. The ALJ then asked Plaintiff the following
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?
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.
. . .
Vocational Expert's Testimony
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
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, ...