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Chapman v. Berryhill

United States District Court, N.D. Florida, Tallahassee Division

January 4, 2018

KEICA NELL CHAPMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE

         This Social Security case was referred to the undersigned upon consent of the parties by United States District Judge Mark E. Walker. ECF No. 8, 9. It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration denying Plaintiff's application for Supplemental Security Income (SSI) pursuant to Title XVI of the Social Security Act. See ECF No. 1. After careful consideration of the record, the decision of the Commissioner is affirmed.

         I. Procedural History and Facts

         Plaintiff Keica Nell Chapman filed an application for Supplemental Security Income (SSI) on June 11, 2013, alleging disability caused by breast disease, depression, anxiety, birth defect in left hip, and constant pain. Tr. 169.[1] The onset date was alleged to be June 15, 1999. Tr. 145. The application was initially denied on September 30, 2013, and upon reconsideration on November 15, 2013. Tr. 97, 103. Plaintiff requested a hearing, which was held in Tallahassee, Florida, before Administrative Law Judge (ALJ) Andrew Dixon, III, on September 11, 2015, at which Plaintiff appeared with her attorney, Alan Andrews. Plaintiff, through her attorney, amended the alleged onset date to June 11, 2013.[2] Tr. 32. Plaintiff and impartial vocational expert John Black, Ed.D., testified. Tr. 28-60.

         At the hearing, Plaintiff testified that she had not worked full time for the past fifteen years. Tr. 34. She left school in eighth grade and did not obtain a GED because, she said, she could not concentrate. Tr. 36. She testified she has burning in her hips and tingling down to her toes due to back pain. Id. It is worse in her left leg, and is a sharp, stabbing pain like “little needles are being poked in [her] toes.” Tr. 38-39. She said she cannot sleep well at night, and tosses and turns and her hip pops. Tr. 36. She takes pain mediation daily but it wears off and “gets to where it just doesn't help.” Tr. 37. She said she has back pain all of the time and her back and her hips can “lock up” due to pain when she is sitting or standing. Id. She testified she has “been known to have to be put in a wheelchair for two months.” Tr. 38. She said she can stand for about 15 or 20 minutes and then must start moving and then sit down. Id. When sitting for less than 30 minutes, she said, she must change position. Tr. 40. When she shops, she generally uses a motorized cart. Id. Injections for pain have provided only short-term relief. Tr. 41. She testified that she has had two back surgeries-one in 1999 and one in 2001-and the doctors are considering another surgery. Tr. 48. She has not had any recent physical or occupational therapy. Tr. 49.

         Plaintiff testified she has urinary problems which, she believes, are associated with her back pain. Sometimes she cannot urinate at all and must catheterize herself, up to twice a week. Tr. 42. No. treatment is planned for that condition because the doctor's bills were too high. Tr. 49-50. She said she is still having problems with breast pain and discharge, which affects her ability to reach. Tr. 42-43.

         She testified that most recently she has been taking Prozac and Risperdal for her depression and mental issues. Tr. 43-44. Prior to that she took Paxil and Zoloft but could not tolerate the side effects. Tr. 48. Plaintiff said her memory and focus are impaired and sometimes she goes blank and does not remember what she is doing. Tr. 45. She said her husband sometimes has to remind her to eat. Tr. 46. She has become short-tempered and frustrated, and does not want to be around people, although she does not want to be alone at home and will call her husband to come home. Tr. 45-46. She no longer feels comfortable driving to the store and managing her bank account. Plaintiff testified that she has had no treatment for any psychological or mental issues because she had no insurance or money to do so. Tr. 47.

         II. The Decision

         On December 16, 2015, the ALJ issued a decision finding Plaintiff is not disabled and is not entitled to SSI. Tr. 12-22. The Appeals Council denied review on February 2, 2017. Tr. 1-3. Thus, the decision of the ALJ became the final decision of the Commissioner and is ripe for review. Accordingly, Plaintiff, appearing pro se, filed a Complaint for judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF No. 1.

         In the decision issued on December 16, 2015, the ALJ made the following pertinent findings:

1. The claimant has not engaged in substantial gainful activity since June 11, 2013, the application date. Tr. 14.
2. The claimant has the following severe impairments: degenerative disc disease, osteoarthritis of the left hip, status post Paget's disease, anxiety disorder, and anti-social personality disorder. Tr. 14.
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 14.
The ALJ explained that the impairments do not meet the requirements of listing 1.02 or 1.04 because the record does not show any gross anatomical deformity and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joints, and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankyloses of the affected joint with an inability to ambulate or perform fine and gross movements effectively. Id.
The ALJ also found that the severity of the impairments, singly and in combination, do not meet or medically equal the criteria of listing 12.04, 12.06, and 12.08 in that the mental impairments did not result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation. Id. The ALJ found that the criteria of Paragraph C were also not met. Tr. 16. At the hearing, counsel for Plaintiff agreed that none of the alleged severe impairments meet the listing requirements pursuant to step three of the sequential evaluation. Tr. 34.
4. After careful consideration of the entire record, the claimant has the residual functional capacity to perform light work, except she claimant cannot climb ladders, ropes, and scaffolds, but she can frequently climb stairs and ramps. She is limited to frequent balancing, kneeling, crouching, and crawling, and occasional stooping. The claimant retains the ability to reach and to handle and finger objects. She can tolerate up to occasional exposure to hazards such as heavy machinery and unprotected heights. The claimant can sit for 30 to 45 consecutive minutes before standing to relieve any discomfort. The claimant can stand for 20 consecutive minutes before having to sit and rest, and walk no more than 10 consecutive minutes before having to stop. Mentally, the claimant can understand, remember, and carry out simple instructions as well as perform simple repetitive tasks due to concentration deficits. She can have occasional conversations and interpersonal interactions with coworkers. Lastly, the claimant can interact with the public but should not engage in any extensive transactions or negotiations. Tr. 16.
As to back pain, the ALJ explained that radiological testing in August 2013 showed mild disc space narrowing at ¶ 4-L5 with moderate disc space narrowing at ¶ 5-S1 and vacuum disc phenomena. Tr. 17. A consultative examination in August 2013 by Dr. Victoria Te showed Plaintiff had a normal gait, normal muscle strength, normal fine and gross dexterity, and negative straight leg raising. Range of motion was normal and full. Id. (citing Tr. 308-12). The ALJ noted that in September 2014, radiological testing showed disc desiccation and disc space height loss and the L4-L5 disc levels with mild endplate degenerative changes, and a small disc bulge at ¶ 4-L5 with a small overlying central disc protrusion causing central stenosis with minimal bilateral foraminal narrowing and a minimal posterior disc bulge at ¶ 5-S1. Id. (citing Tr. 356). However, examination revealed normal gait, no evidence of motor or sensory deficits, and equal bilateral reflexes. Tr. 17. The ALJ noted that Plaintiff reported in October 2014 that her pain was improving and that treatment recommendations were inconsistent with a disabling degree of back pain. Tr. 18.
As to hip pain, the ALJ noted that Plaintiff had a history of hip pain and that a physical examination revealed lumbar paraspinal gluteal tenderness and increased pain with extension past neutral, and an audible “pop” that seemed to originate in the hip; however, straight leg raise was negative and strength was normal; and treatment for hip pain was sporadic with no treatment after March 2015. Tr. 18.[3]
As to Plaintiff's breast condition, the ALJ explained that she has had fibrocystic disease with a mammogram negative for cancer; and records showed symptoms were mild, with no indication of aggressive treatment measures related to the breast symptoms. Tr. 18.
As to Plaintiff's mental condition, the ALJ explained that the records do not show any formal treatment for mental health symptoms by a mental health care professional; and noting that consultative examinations diagnosed Plaintiff with adjustment disorder with sad mood and anxiety, generalized anxiety disorder, and antisocial personality disorder. Id. (citing Tr. 323, 435). The ALJ found that the opinion of Dr. Nina Barnes, Ph.D., that Plaintiff had no limitations on her ability to understand, remember, carry out instructions, and interact with others is highly inconsistent with allegations of disabling mental pathology. Tr. 19 (citing Tr. 435).
In support of the determination of the RFC, the ALJ cited and gave great weight to the agency consultative opinion of Edmund Molis, M.D., that Plaintiff can lift and carry 20 pounds occasionally and 10 pounds frequently; can sit, stand, or walk about 6 hours in an 8-hour workday; occasionally climb ladders, ropes, and scaffolds, and stoop; frequently climb ramps and stairs, balance, kneel, crouch, and crawl. Tr. 19 (citing records at Tr. 88-90). Partial weight was given to the opinion of John Thibodeau, Ph.D., an agency consultant who opined that Plaintiff could remember and follow simple and short workplace instructions, work with others, and maintain attendance and schedule. Tr. 20 (citing Tr. 74-76).
5. The claimant has no past relevant work. Tr. 20.
6. The claimant was 40 years old, which is defined a younger individual age 18-49, on the date the application was filed. Tr. 20.
7. The claimant has a limited education and is able to communicate in English. Tr. 20.
8. Transferability of job skills is not an issue because claimant does not have any past relevant work. Tr. 20.
9. Considering claimant's age, education, work experience, and residual functional capacity (RFC), there are jobs that exist in significant numbers in the national economy that the claimant can perform. Tr. 20. Based on the testimony of the vocational expert, the ALJ concluded that Plaintiff could perform the representative jobs of remnant sorter, DOT #789.687-146, light, SVP 2, of which there are 30, 000 jobs nationally and 1, 400 in Florida[4]; routing clerk, DOT #222.687-022, light, SVP 2, of which there are 43, 000 jobs nationally and 2, 400 in Florida; and parking lot cashier, DOT #211.462-101, light, SVP 2, of which there are 46, 000 jobs nationally and 1, 400 in Florida.[5] Tr. 21.
10. The claimant has not been under a disability, as defined in the Social Security Act, since June 11, 2013, the date the application was filed. Tr. 21.

         Based on these findings, and the reasons set forth in the decision, the ALJ found Plaintiff is not disabled under section 1614(a)(3)(A)[6] of the Social Security Act. Tr. 21.

         III. Legal Standards ...


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