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Simpson v. Berryhill

United States District Court, D. Nevada

August 2, 2019

DEBORAH M. SIMPSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION RE: MOTION FOR REVERSAL AND/OR REMAND (ECF NO. 18)

          GEORGE FOLEY, JR., UNITED STATES MAGISTRATE JUDGE

         This case involves judicial review of an administrative action by the Commissioner of Social Security denying Plaintiff Deborah M. Simpson's claim for disability benefits under Title II of the Social Security Act. Plaintiff filed her Motion for Reversal and/or Remand (ECF No. 18) on August 21, 2017. The Commissioner filed her Cross-Motion to Affirm (ECF No. 19) and Opposition to Plaintiff's Motion to Remand (ECF No. 20) on September 20, 2017.

         BACKGROUND

         A. Procedural History

         Plaintiff filed an application for a period of disability and disability insurance benefits on September 3, 2012 in which she alleged that her disability began on August 18, 2012. Administrative Record (“AR”) 188. The Social Security Administration denied Plaintiff's claim initially on October 22, 2013 (AR 113-116) and upon reconsideration on May 1, 2014. AR 124-129. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) which was conducted on June 24, 2015. AR 15. Plaintiff and a vocational expert testified at the hearing. The ALJ issued his decision on September 9, 2015 and concluded that Plaintiff was not disabled at any time between the date her application was filed and the date of the decision. AR 15-40. The Appeals Council denied her request for review on January 27, 2017. AR 1-6. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned for a report of findings and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).

         B. Factual Background

         Plaintiff's motion for reversal and/or remand is limited to whether the ALJ failed to provide specific and legitimate reasons for rejecting the opinions of consultative examiner, David Mumford, M.D., and treating physician, Ravi S. Ramanathan, M.D. with respect to Plaintiff's physical residual functional capacity. The Court will therefore focus on the evidence relating to Plaintiff's physical impairments and the extent to which they limited her residual functional capacity to perform work. The records regarding Plaintiff's mental impairments are discussed to the extent necessary to understand her alleged physical impairments.

         1. Plaintiff's Disability Reports and Hearing Testimony

         Plaintiff was born May 2, 1954. At the time of her application she was 5'3” tall and weighed 152 pounds. AR 244. She resided with her husband, who is a disabled Vietnam veteran. She earned her GED diploma and held several retail, human resources and customer service-related jobs from 2004 through 2009. AR 50, 276. In her September 14, 2013 disability report, Plaintiff listed her disabilities as lumbar disc degeneration, arthritis, and depression. AR 244. She stated that she stopped working on August 18, 2012 as a result of her conditions. Plaintiff's husband stated that Plaintiff had problems walking, fell frequently, could not bend down, or lift items over 10 pounds. She often had difficulty finding a comfortable sleeping position. Her daily activities consisted of eating breakfast, doing light housekeeping, feeding the cats, and watching television. AR 265-266.

         Plaintiff stated in her July 13, 2013 function report that she was able to do light housekeeping, washing, and prepare light meals. She took care of her cats, including feeding, cleaning the kitty box, and grooming. AR 295. She went outside on a daily basis, drove a car, and shopped for food and miscellaneous items. She was able to pay bills, count change, handle a savings account and use a checkbook or money orders. AR 297. Plaintiff stated that her hobbies were swimming and taking care of rescue horses, but that she was no longer able to do these things. AR 298. Her impairments affected her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, and use her hands. Her memory, ability to complete tasks, concentrate, and to get along with others was also affected. She could not lift more than 5 pounds, or walk more than 50 feet before needing to rest. She was also depressed. AR 299.

         Plaintiff testified at the June 24, 2015 hearing that she spent most days sleeping in a dark room because of headaches, but could complete some housekeeping tasks and go to the grocery store. AR 51-52. Prescription medication was helpful, but made her feel tired and groggy. Her most recent job was in 2012 when she worked at the fine jewelry department at Macy's. She was only able to work in that job for a few weeks before back pain caused her to quit. Plaintiff was previously employed as a ticket manager for an online travel website for two years. She was laid off from that job in 2009. AR 53.

         Plaintiff testified that she filed for disability because she began to feel increasing pain in her lower back which prevented her from performing work that required bending, stretching, or standing for extended periods of time. AR 54-55. Her doctor prescribed physical therapy for her back pain, but she received no relief. Her doctor allegedly told her that surgery would not help her condition. AR 55-56.

         Plaintiff also testified that she experienced migraine headaches for most of her life and continued to experience them daily. Medication helped relieve the headaches, but made her drowsy, which in turn made it harder to work. A recent MRI of her cervical spine revealed cysts on her thyroid. She had not yet started treatment for this because she was being tested for possible cervical cancer. AR 57. She had carpal tunnel syndrome which caused her hands to cramp and lock-up. It was impossible to grab or hold anything because her hands felt numb. She was prescribed cortisone medication, but stopped taking it because it caused significant hair loss. AR 58-59. Plaintiff had difficulty walking long distances and could only walk comfortably for about 200 feet before she experienced pain and began to limp. She could only stand for approximately fifteen minutes. She had fallen because of leg pain and numbness. AR 60. She could sit at one time for approximately 30 minutes. She spent most of her time asleep in bed. Plaintiff testified that she was bipolar, which caused her to feel very fatigued. She had difficulties concentrating and making decisions, and felt depressed most of the time. AR 61-62. Finally, she testified that she had more recently developed a cyst on her right knee, which had been treated with cortisone shots. The right knee was very painful and limited her mobility. AR 62-63.

         2. Vocational Expert's Testimony

         The vocational expert testified that Plaintiff's past work as a travel guide was light work with an SVP of 6 as defined in the Dictionary of Occupational Titles (“DOT”). Her work as a jewelry salesperson was also light work with an SVP of 5. AR 64-65.

         The ALJ asked the vocational expert to assume a hypothetical individual of advanced age, close to retirement, with the same work experience and educational level as Plaintiff. The hypothetical individual was limited to light work as defined by the DOT, with occasional climbing of stairs and ramps, no climbing of ladders, ropes or scaffolds, frequent balancing, occasional stooping, occasional kneeling, occasional crouching, occasional crawling, no exposure to hazards such as heights or dangerous moving machinery, and occasional exposure to vibrations. The vocational expert testified that a hypothetical person with these limitations would be able to do all of Plaintiff's past work. AR 65.

         The ALJ asked whether the hypothetical individual would be able to perform Plaintiff's past work if standing and walking was limited to a total of four hours in an eight-hour workday. The vocational expert testified that the individual would still be able to perform the position of travel clerk. The travel clerk position would also still be available if the individual was limited to sedentary work. The vocational expert testified that it would be difficult to perform Plaintiff's past work if a sit-stand option was required. He also testified that there were no transferable skills to other work if a sit-stand option was required. AR 65-66.

         Plaintiff's counsel asked whether the hypothetical individual could perform any work if she could only remain seated for a total of three hours, stand and walk for a total of one hour, and occasionally lift five pounds. The vocational expert testified that a person with those limitations would not be employable. The individual would also not be employable if she was off task one- third of the time in an eight-hour workday or absent from work three or more times per month. AR 66-68.

         3. Medical Records

         Plaintiff was seen by Dr. Ravi Ramanathan on July 9, 2012 for “follow-up on her chronic pain.” She reported that she went to an urgent care facility the previous week for severe pain in her right lower back that traveled to the abdominal area and down the leg. Dr. Ramanathan also stated: “When to country and with hiking, her legs gave out on her and fell twice, bruises due to this.” An x-ray taken at the urgent care facility reportedly showed moderate degenerative arthritis. AR 389. Dr. Ramanathan's assessment was backache NOS, abdominal pain unspecified site, muscle weakness-general, fall NEC, and lumbosacral spondylosis. He prescribed Flexeril and Prednisone, and stated that an MRI would be obtained if she did not get better. AR 390.

         Dr. Ramanathan saw Plaintiff in follow-up on July 26, 2012. She reported severe right low back pain. She felt better while on Prednisone, but the pain returned after she was through taking it. She had recently gone back to work, but after standing for about four hours, she felt like she had shin splints. She was concerned whether she would be able to stand for a whole eight hour shift. The bruising on her right buttocks and right leg had resolved. She stated that she wanted to go back to the gym for strength training. Dr. Ramanathan referred Plaintiff for a lumbar MRI and continued her on her previous medications. AR 392-393. On August 21, 2012, Plaintiff reported that she was still in pain. The Prednisone helped while she was taking it. The doctor reviewed the MRI results, and indicated that he would not make a referral to pain management “until we have tried conservative approach with meds at this time.” AR 395-396.

         An MRI of the lumbar spine on August 16, 2012 showed that the L2-3 disc was mildly desiccated with slight retrolisthesis of L2 upon L3. There was a 3.1 mm posterior bulge. The L3-4 disc demonstrated a 3.9 mm posterior bulge. The L4-5 disc was markedly narrowed with a 6.2 mm posterior protrusion with annular tear. The thecal sac measured 6.9 mm. There was moderate spinal canal stenosis. The L5-S1 disc was desiccated and demonstrated a 4.3 mm posterior bulge. There was moderate bilateral L3-4, L4-5, and L5-S1 foraminal narrowing. AR 409-410.

         Plaintiff was seen by Dr. Alexander Imas at Dynamic Pain Rehabilitation on September 6, 2012. She reported having low back pain for two months. Her right leg gave out, and she had fallen several times in the last few months. She had pain radiation to the right leg. Plaintiff stated that her pain possibly began as a result of moving furniture for new flooring. She rated the pain as 9/10 at its worst, and 8/10 at its best. It was aggravated by standing and walking. She could sit for 30 minutes before having to get up and move about, and she could stand for 30 minutes before having to sit down. On physical examination, there was a positive Patrick's test on the right for the hip and sacroiliac joints. Both hips had normal range of motion, and there were no physical abnormalities. Straight leg raising test was normal to 90 degrees on the ...


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