United States District Court, D. Nevada
DEBORAH M. SIMPSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION RE: MOTION FOR REVERSAL
AND/OR REMAND (ECF NO. 18)
FOLEY, JR., UNITED STATES MAGISTRATE JUDGE
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.
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).
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
Plaintiff's Disability Reports and Hearing
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.
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.
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.
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.
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.
Vocational Expert's Testimony
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.
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.
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.
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
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.
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
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
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