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Jones v. Berryhill

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

June 21, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is a Social Security case referred to the undersigned United States Magistrate Judge upon consent of the parties by United States District Judge Robert L. Hinkle. ECF No. 10. It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Commissioner of the Social Security Administration denying Plaintiff's applications for a period of disability and Disability Insurance Benefits (DIB) under Title II of the Social Security Act (Act) and Supplemental Security Income (SSI) under Title XVI of the Act. After careful consideration of the record, the decision of the Commissioner is affirmed.

         I. Procedural History and Facts

         On February 26, 2016, Plaintiff filed an application with the Social Security Administration for a period of disability and Disability Insurance Benefits pursuant to Title II of the Social Security Act. Tr. 206-07.[1] On that same date she also filed an application for Supplemental Security Income (SSI) pursuant to Title XVI of the Social Security Act. Tr. 208-14. She alleged disability beginning May 1, 2015, based on degenerative disc disease, high blood pressure, gout, knee problems, and shoulder problems. Tr. 79. The claims were denied initially on May 24, 2016, and upon reconsideration on August 3, 2016. Tr. 78-95, 98-119, 122-23.

         Petitioner requested a hearing and a hearing was held on August 22, 2017, before Administrative Law Judge (ALJ) Janet McCamley. Tr. 37-77. Plaintiff appeared with counsel and testified, and impartial vocational expert William “Earl” Thompson testified by telephone. On December 7, 2017, a decision was issued finding Plaintiff was not disabled. Tr. 11-18. The Appeals Council denied review on August 31, 2018. Tr. 1-3, 301.

         On November 1, 2018, Plaintiff, appearing through counsel, 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. Respondent filed an answer on March 22, 2019, ECF No. 11, and both parties filed memoranda in support of their positions, which have been considered. ECF Nos. 15, 16.

         A. The Hearing

         At the hearing held August 22, 2017, before ALJ McCamley, Plaintiff's counsel stated that the medically determinable severe impairments were osteoarthritis of the right knee, lower left extremity gout, and obesity. Tr. 40-41. Plaintiff testified that she weighs 264 pounds and is 5' 5”” tall. Tr. 42. She testified that she was a certified nursing assistant and had worked in 2013 to 2015 more as a companion. Tr. 43-44. She assisted her client with taking him to appointments, various daily activities, and assisting him into and out of the bathtub. Tr. 45. If he fell, she would assist him in getting up. Id. She did not do any heavy lifting. Tr. 46. After her client died in 2015, she had three months of unemployment benefits but tried during that time to find another job. Tr. 47. She testified her knee and suspected gout started getting worse. Tr. 46. She saw a doctor in August 2015 but did not have complaints until she sought treatment in October of 2015. Her gout was diagnosed in April 2016. Tr. 47-48.

         Plaintiff reported to consultative examiner Dr. Wayne Sampson in May 2016 that she was “bone on bone” in her knee, although her knee had not yet been X-rayed. Tr. 48. She testified that she had earlier seen Dr. Kessler, whom she believed was an orthopedic physician, at Lincoln Neighborhood Medical Center about her knee and he told her that her knee was “bone on bone.” Tr. 49, 50. She testified that she was later seen at Tallahassee Orthopedic Clinic through a vocational rehabilitation service in February of 2017. Tr. 49.

         Plaintiff testified that her son lives near her and she helped take care of his children ages 4, 6, and 7 during the summer of 2017. Tr. 53. Her son was not paying her regularly, but would help her pay some of her bills. Tr. 54. She said she is living in a place owned by her sister and does not pay rent. Id.

         When asked about her emergency department visit in June 2017 seeking medication for foot pain, Plaintiff testified that she told the nurse that she was due to have upcoming knee surgery because her orthopedic doctor had told her he would do the surgery, although she agreed he had told her in March 2017 that he could not do it unless she lost 25 to 40 pounds. Tr. 55-56.

         Plaintiff testified that she cannot do her former work as companion because her pain is worse now than it was. Tr. 59. She said she could not walk around the mall, although she testified she tries to walk for exercise. Tr. 60. She said she could stand and walk about two hours in an eight-hour day. Id. Plaintiff testified that her companion job was very active and she sat for only about 2 to 2.5 hours a day. Tr. 73. She said her gout flares up sometimes two or three times a month and sometimes only once a month for several days at a time. Tr. 61-62. When it was mentioned that she did not complain of the gout to TOC when she visited in February 2017, she said it was because it had gotten worse in the past three to four months. Tr. 62. She testified she went to the Tallahassee Memorial emergency center three times with foot pain, although record (Tr. 444) shows only a June 2017 visit. Tr. 63. When asked about how much weight she thought she could lift, she testified she might be able to lift 20 pounds. Tr. 65. She said she cannot sit for more than 45 minutes without having to stand up to relieve pain and stiffness in her knee. Id.

         Plaintiff testified that she can attend her personal needs, shower, cook, shop, do laundry, go to church, drive, and babysit grandchildren unless she has a bad gout flare up, which can last several days at a time. When she has a bad flare up she cannot put weight on her foot and must stay in bed, which had occurred about three times in the past three months. She cannot do yard work or gardening. Tr. 67-69.

         The impartial vocational expert, William “Earl” Thompson testified that based on the testimony presented, Plaintiff has worked in the past as a companion, which is listed as light, semi-skilled work, SVP 3, DOT code 309.677-010; nurse attendant, which is listed as medium level, performed at heavy level, semi-skilled, SVP of 4, DOT code 355.674-014; and caretaker, listed at medium level, SVP of 2, DOT code 301.687-010.[2] Tr. 71-72. He testified that the caretaker job allows the person to sit and stand throughout the day depending on the task at hand. Tr. 72. The vocational expert was presented with the following hypothetical question: Assuming an individual of Plaintiff's age, education, and past work experience, who is limited to performing light work activity, no climbing ladders, ropes, and scaffolding, occasional climbing of ramps and stairs, frequent balancing, occasional stooping and crouching, less than occasional kneeling or crawling, can that person perform any of the past work that Plaintiff performed? Tr. 74-75. The vocational expert testified that the person could perform the past work of companion, as performed and as per the DOT. Tr. 75.

         A second hypothetical was presented, assuming all factors stated in the first hypothetical, except standing and walking is limited to a total of four hours in an eight-hour day, could the person perform any of the past work that Plaintiff performed? Tr. 75-76. The vocational expert testified that the person could not perform the past work. Tr. 76. The vocational expert was not asked about any other jobs that could be performed pursuant to the second hypothetical question.

         B. The Decision of the Administrative Law Judge

         In the decision issued on December 7, 2017, the ALJ made findings pertinent to this review. Tr. 12-17. Plaintiff, age 57, met the insured status requirements through December 31, 2017, and has not engaged in substantial gainful activity since May 1, 2015, the alleged onset date. Tr. 12, 14. Based on the evidence of record, the ALJ found Plaintiff had the severe impairments of osteoarthritis of the right knee and obesity. Id. The ALJ found Plaintiff's hypertension, shoulder problems, and gout to be non-severe and only minimally affecting Plaintiff's ability to work. Tr. 13.

         The ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1. Id. The ALJ noted that no acceptable medical source mentioned a finding equivalent to a listed impairment individually or in combination, and Plaintiff's attorney representative did not contend Plaintiff's impairments met any listing. Id.

         The ALJ assessed Plaintiff's residual functional capacity (RFC) and found she could perform light work with certain limitations.[3] The ALJ concluded that Plaintiff cannot climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, stoop, and crouch; may frequently balance; and may infrequently (less than occasionally) kneel and crawl. Tr. 13. In reaching this RFC determination, the ALJ concluded that Plaintiff's medically determinable impairments could reasonably be expected to produce her alleged symptoms, as described in Plaintiff's testimony at the hearing, but her statements concerning the intensity, persistence, and limiting effect of the symptoms are not entirely consistent with the medical and other evidence in the record. Tr. 14.

         The ALJ cited treatment records from an April 16, 2014, visit to the Neighborhood Medical Center that documented complaints of foot pain and right knee pain, with effusion, joint swelling/edema, bony abnormality, and joint tenderness. She was diagnosed with knee pain, hypertension, and morbid obesity. Tr. 15 (citing records at Tr. 326). The ALJ cited records from October 2014 documenting continued complaints of knee pain and a request for an orthopedic referral, but November 2014 records from the Neighborhood Medical Center showed no complaints and a normal physical exam. Tr. 15 (citing records at Tr. 328-33).

         The ALJ noted that Plaintiff continued to visit the Neighborhood Medical Center throughout 2015 for various symptoms not related to right knee pain, and in August 2015 had no complaints. Tr. 15 (citing records at Tr. 334-49).

         The ALJ cited records from January 2016 in which Plaintiff complained of knee pain and foot pain, although her physical examination was noted as normal. She was diagnosed with hypertension, uterine bleeding, and obesity. She was prescribed Ibuprofen and Neurontin for body pain. Tr. 15 (citing records at Tr. 350-52). The ALJ noted that complaints of gout and knee pain continued in April 2016, and Plaintiff was diagnosed with gout, anemia, and hyperlipidemia. Medications were prescribed. Tr. 15 (citing records at Tr. 466-67).

         The ALJ noted that in February 2017, Plaintiff was seen by Dr. Garrison Rolle at the Tallahassee Orthopedic Clinic (TOC) for right knee pain reported as 8/10. A physical examination showed tenderness and X-rays showed advancing arthritis and significant lateral compartment wear. Plaintiff received an injection in her right knee. Tr. 15 (citing records at Tr. 376-78). The ALJ noted that Plaintiff saw Dr. Rolle at TOC in March 2017 and was advised that she was not a good candidate for total knee arthroplasty because of her obesity (BMI of 47.5) and was advised to lose weight. She was prescribed a brace, which was difficult to wear, and conservative treatment of exercise, ice, and NSAIDs as needed. Tr. 15 (citing records at Tr. 379-81). The ALJ cited TOC records from June 2017 in which Plaintiff reported no progress in weight loss and in which Dr. Rolle noted discussing further ...

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