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Winston v. Berryhill

United States District Court, N.D. Texas, Dallas Division

March 31, 2017




         Pursuant to the consent of the parties and the order of reassignment dated May 3, 2016, this case has been transferred for the conduct of all further proceedings and the entry of judgment. (doc. 20.) Before the Court is Plaintiff's Brief, filed September 29, 2016 (doc. 31); Defendant's Response Brief, filed November 23, 2016 (doc. 35); and Plaintiff's Reply (Corrected), filed December 30, 2016 (doc. 39). Based on the relevant findings, evidence, and applicable law, the Commissioner's decision is AFFIRMED.

         I. BACKGROUND

         A. Procedural History

         Linda Gail Winston (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner)[1] denying her claim for disability and disability insurance benefits (DIB) under Title II of the Social Security Act. On November 16, 2012, she applied for disability and DIB, alleging disability and DIB beginning on May 29, 2008. (R. at 176-77.) Her claim was denied initially on April 11, 2013, and upon reconsideration on June 24, 2013. (R. at 115-18, 122- 24.) On July 23, 2013, she requested hearing before an administrative law judge (ALJ). (R . a t 126.) She appeared and testified at a hearing on May 5, 2014, and amended her alleged onset date from May 29, 2008 to February 22, 2012. (R. at 29-58, 197.) The ALJ denied Plaintiff's application on September 22, 2014, finding her not disabled. (R. at 10-25.) Plaintiff timely appealed the ALJ's decision to the Appeals Council. (R. at 6-9.) The Appeals Council denied her request for review, and the ALJ's decision became the final decision of the Commissioner. (R. at 1-5.) Plaintiff timely appealed the Appeals Council's decision under 42 U.S.C. § 405(g).

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on July 23, 1965, and was 48 years old at the time of the hearing on May 5, 2014. (R. at 33.) She went through 12th grade in school, and previously worked as a residential director and psychiatric aide. (R. at 46, 54.)

         2. Medical Evidence

         On September 28, 2008, Plaintiff was admitted to the emergency room at Parkland Health & Hospital System (Parkland) with a chief complaint of dizziness, nausea, and vomiting. (R. at 304, 306.) She was found to have multiple common bile duct stones and diagnosed with choledocholithiasis. (R. at 307.) She underwent a laparoscopic cholecystectomy, and multiple stones were removed. (R. at 307-08.) The doctors also noted that Plaintiff's diabetes was uncontrolled, and that her right little toe had previously been amputated. (R. at 306, 308.) Plaintiff was discharged on October 11, 2008. (R. at 309.) She followed up with Parkland on October 30, 3008 and November 3, 2009. (R. at 285-88.) At the appointments, the doctors noted that Plaintiff weighed 337 and 346 pounds, respectively. (R. at 285, 287.)

         On December 4, 2008, Plaintiff was taken by ambulance to Baylor University Medical Center (Baylor) and admitted with a chief complaint of weakness. (R. at 268, 277.) Her vital signs were normal, and she was diagnosed with hypoglycemia and discharged the same day. (R. at 275-76.)

         On January 21, 2009, Claudia Castano, M.D., completed a Medical Release/Physician's Statement in which she diagnosed Plaintiff with diabetic neuropathy and diabetes. (R. at 580.) She opined that Plaintiff was unable to work or participate in activities to prepare for work at all, and that her disability was permanent. (R. at 580.)

         On July 30, 2009, Plaintiff was admitted to Methodist Hospital of Dallas (Methodist) with a chief complaint of vomiting and abdominal pain. (R. at 445.) She was found to have acute cholecystitis as well as pyelonephritis and a urinary tract infection. (R. at 439.) She was started on antibiotics, stabilized, and discharged on August 5, 2009. (Id.) On September 1, 2009, Plaintiff returned to Parkland for a follow-up to her admission to Methodist. (R. at 331, 467.) She had no new complaints. (R. at 331.) On April 2, 2010, Plaintiff had an evaluation for a cholecystectomy at the Parkland surgery clinic at Parkland. (R. at 337, 474, 691.) After her vitals were checked, she was transferred to Parkland's emergency room with a hypertensive urgency with no signs of hypertensive emergency. (R. at 337, 339.) She denied any dizziness, headaches, blurry vision, confusion, or focal weakness. (R. at 337.) She was discharged that day. (R. at 339.)

         Between April 5, 2010 and July 3, 2012, Plaintiff had ten appointments at Parkland for medical refills and related to her edema, diabetes, hypertension, hypoglycemia and nocturnal hypoglycemic episodes, constipation, and blurred vision. (See R. at 341, 348, 351, 357, 365, 368, 372, 381, 395, 479, 487, 490, 494, 501, 504, 509, 512, 520, 666, 669-71, 681, 683, 691, 693, 700.) She also requested a disabled parking placard/license plate. (R. at 368.) She reported leg pain with “prolonged walking.” (R. at 352, 667.) On September 27, 2011, Plaintiff weighed 378 pounds. (Id.)

         On September 28, 2011, Plaintiff had a panretinal photocoagulation to address a proliferative diabetic retinopathy in her left eye. (R. at 669.) On July 13, 2012, she had a diagnostic laparoscopy and a laparoscopic converted to open cholecystectomy. (R. at 404.) She was discharged on July 16, 2012. (R. at 407.) Her weight at discharge was reportedly 400 pounds. (Id.) At a post-operative check up on July 24, 2012, the doctors noted that Plaintiff was doing well. (R. at 427, 555, 653.)

         On December 6, 2012, Plaintiff had a follow up with Parkland regarding her hypertension and complained that she had developed a mass under the incision site of her surgery. (R. at 430.) She denied dizziness or headaches and requested the completion of a Functional Capacity Study to determine her disability. (Id.) Plaintiff's physical examination noted that she weighed 377 pounds. (R. at 431.) She had four other appointments at Parkland from January 6, 2013 to June 17, 2013. (R. at 558, 566, 596, 599, 615, 654.)

         On March 1, 2013, Plaintiff had a consultative examination with Kelly Davis, D.O. (R. at 574-76.) She reported that she had chronic pain from arthritis and gout and had pain “all over.” (R. at 574.) Plaintiff also reported that she suffered from worsening pain when she walked or stood and that her right knee was the most bothersome. (Id.) It would lock up and cause her to fall. (Id.) During her physical examination, Dr. Davis noted that Plaintiff weighed 333 pounds and observed that she moved slowly, had great difficulty standing, and used furniture and the wall for support. (R. at 575-76.) She did not use any assistive devices to walk, however, and she appeared to walk slowly with a wide based gait. (R. at 576.)

         On April 8, 2013, relying in part on Dr. Davis's report, state agency medical consultant (SAMC) Andrea Fritz, M.D., completed a Physical Residual Functional Capacity Assessment. (R. at 91, 93-94.) Dr. Fritz found that Plaintiff's allegations were partially supported by the medical record, and that she could occasionally lift and/or carry 10 pounds, frequently lift/or carry less than 10 pounds, stand and/or walk for a total of two hours, and sit for about six hours in an eight-hour workday. (R. at 93-94.) She had no limitations for pushing and/or pulling. (R. at 93.) She could also occasionally climb ramps and stairs, balance, stoop, kneel, and crouch but never climb ladders, ropes, or scaffolds. (Id.) Plaintiff could not hold her arms up for long periods. (R. at 94.) Based on her assessment, Dr. Fritz opined that Plaintiff could perform work at a sedentary exertional level with few postural limitations. (R. at 95-96.) SAMC Kavitha Reddy, M.D., agreed with Dr. Fritz's opinion on June 20, 2013. (R. at 106-08.)

         At an appointment at Parkland on June 17, 2013, a physician's assistant noted that Plaintiff weighed 399 pounds; was positive for myalgia, joint pains, and falls; and “[w]alk[ed] without assistance.” (R. at 601-02.) She reported that Plaintiff had fallen three times in two weeks and that she used a walking cane when necessary. (R. at 615.) Plaintiff was “applying for Disability and requested prescription[s] for [a] Walker with seat and [a] shower seat.” (Id.) (emphasis added). They were prescribed for her. (R. at 557-58.) On June 20, 2013, a physical therapist showed Plaintiff how to do knee exercises. (R. at 604.) The physical therapist's functional reporting assessment of Plaintiff's mobility noted that she was walking and moving around. (Id.)

         On August 11, 2014, Plaintiff returned to Parkland with a complaint of left-sided numbness and weakness, and she was admitted for a stroke work up. (R. at 794-95, 798, 802.) The doctors noted that “[h]er exam [was] not completely consistent with her complaints, though she [did] have some mild weakness in her left leg, ” CT showed right-sided lacunar infarcts but no acute hemorrhage, and she weighed 367 pounds. (R. at 798, 802, 821.) Plaintiff reported that she had fallen 10-11 times over the prior three years due to dizziness or numbness in her legs. (R. at 814.) On August 13, 2014, she reported that she felt better and that the numbness and leg weakness were essentially resolved. (R. at 802.) Plaintiff demonstrated a stable gait pattern, and the doctors recommended that she lose weight and do regular exercise at home. (R. at 807, 810.) She was discharged home. (R. at 810, 836.)

         On September 2, 2014, Plaintiff went to Parkland for a disabled parking placard/license plate. (R. at 837.) It was noted that Plaintiff had left knee pain when walking a long distance and that she used a walker when walking long distances and a cane for short distances. (Id.) She denied headaches or dizziness. (Id.)

         3. Hearing Testimony

         On May 5, 2014, Plaintiff and a vocational expert (VE) testified at a hearing before the ALJ. (R. at 29-58.) Plaintiff was represented by an attorney. (R. at 31.)

         a. Plaintiff's Testimony

         Plaintiff testified that she was 48 years old, 5' 6" tall, and weighed 375 pounds, but that her weight fluctuated and sometimes went down to 325 pounds. (R. at 33-34.) She lived in a house with her husband, had a driver's license, and was able to drive. (R. at 45-47.)

         Beginning in 1997 or 1998, Plaintiff worked in a nursing home for five years. (R. at 36.) She had a variety of jobs at the nursing home, including working in the dietary department, dishwashing, and cooking. (Id.) She then worked as a Caregiver at Edu Care Community Living (Edu Care)-working in the workshop with clients and teaching them basic living, ABCs, and how to comb their hair. (R. at 35.) After four years, she then worked as the Residential Director at Edu Care, a supervisory position. (Id.) As the Residential Director, Plaintiff was responsible for taking a class to and from doctor's appointments, ordering medications, buying groceries and room supplies, passing out medication, bathing and feeding clients, and cooking. (R. at 34.) She explained that she was on her feet approximately 90 percent of the day, required to drive, and had to lift clients who weighed between 100 and 225 pounds every two hours. (R. at 35.) Plaintiff worked as the Residential Director for approximately five years until May 25, 2008, the day she last worked. (R. at 34-35.)

         Plaintiff was unable to work because of the pain in her legs and feet, lower back pain, dizziness/lightheadedness, and eyesight issues. (R. at 36-37.) She experienced pain in her legs everyday, which she described as a “sharp, needle pain” in both of her legs and feet. (R. at 37.) She also described the pain in her arms and lower back as a sharp pain, as if someone was pulling the muscles. (R. at 41-42.) The pain in her arms also made it hard to lift her arms up. (R. at 49.)

         She could stand in one place for only 10 minutes before she had to sit down, walk for 15-20 minutes before she had to stop, and sit for 30 minutes at a time before she needed to stand up. (R. at 38, 43.) She could comfortably lift and carry only 10 pounds. (R. at 52.) She did not receive any injections or physical therapy for her feet or back. (R. at 47.) Plaintiff's other medications caused her to feel dizzy and drowsy on a daily basis and nauseous twice a week. (R. at 44-45.) She relied on her sister's assistance when she went up and down stairs, a walker when she walked long distances, and a cane at home. (R. at 39.) She purchased a cane because her right knee would locked up when she sat for too long. (R. at 40.) A doctor prescribed the walker. (R. at 38.)

         Plaintiff also complained of her eyesight. (R. at 37.) She previously had retina surgery and wore glasses. (R. at 47.) With her glasses she could read books and the newspaper. (R. at 44.) She did not use a computer because the light bothered her eyes, however. (R. at 42.) When asked how she spent her time at home, Plaintiff responded that she basically did nothing. (R. at 51.)

         b. VE's Testimony

         The VE testified that Plaintiff had past work as a residential director (195.227-010, light work, semi-skilled, SVP: 6) and a psychiatric aide (355.377-014, medium work, semi-skilled, SVP: 4). (R. at 46, 54.) The VE noted that Plaintiff described her work as a residential director at a medium exertional level, but that the positions was traditionally defined as light work. (R. at 53.)

         The ALJ asked the VE to consider a hypothetical person of the same age, education, and work background as Plaintiff, who could perform work at a sedentary level, lift up to ten pounds occasionally, stand and/or walk for approximately two hours combined out of an eight-hour day, and sit for a total of six hours out of an eight-hour day. (R. at 54.) She could not climb ladders, ropes, or scaffolds, but could occasionally climb ramps and stairs. (Id.) Additionally, the hypothetical person could occasionally balance, stoop, crouch, kneel, or crawl, and she could have only occasional exposure to unprotected heights and no exposure to hazardous moving machinery. (Id.)

         The ALJ asked if the hypothetical person could perform any work in the regional or national economy. (Id.) The VE opined that the hypothetical person could be an order clerk, food and beverage (209.567-014, sedentary, unskilled, SVP: 2) with 100, 000 positions nationally and 7, 000 in Texas; an election clerk (205.367-030, sedentary, unskilled, SVP: 2) with 22, 000 positions nationally and 3, 000 in Texas; and a lens inserter (713.687-026, sedentary, unskilled, SVP: 2) with 20, 000 positions nationally and 1, 300 in Texas. (R. at 54-55.) In response to a question, the VE testified that there would be a significant erosional factor of the sedentary, unskilled occupational base if the hypothetical person had to sit or stand alternatively. (R. at 55.) Of the previously identified positions, the hypothetical person could still work as an order clerk, food and beverage. (Id.) She could also be a dowel inspector (669.687-014, sedentary, unskilled, SVP: 2) with 65, 000 positions nationally and 3, 187 in Texas or a surveillance system monitor (379.367-010, sedentary, unskilled, SVP: 2) with 125, 000 positions nationally and 8, 400 in Texas. (Id.) The use of a cane or walker would not affect the first set of jobs, but they would eliminate the second group. (R. at 55-56.) It would also be difficult for the hypothetical person to maintain competitive employment if she was not on task at least 90 percent of the time or if she missed more than two days per month. (R. at 57.) Her testimony was consistent with the Dictionary of Occupational Titles (DOT). (R. at 56.)

         C. The ALJ's Findings

         The ALJ issued her decision denying benefits on September 22, 2014. (R. at 13-21.) At step one, [2] she found that Plaintiff had not engaged in substantial gainful activity from her amended onset date of February 22, 2012, through her date last insured of December 31, 2013. (R. at 15.) At step two, she found that Plaintiff had the severe impairments of diabetes mellitus with neuropathy, history of amputated right fifth toe, history of cataracts, diabetic retinopathy requiring laser surgeries, hypertension, history of chronic kidney disease, right adrenal mass, mild degenerative joint disease of the knee, and morbid obesity. (Id.) Despite the impairments, at step three, she found that Plaintiff had no impairment or combination of impairments that met or equaled the severity of one of the impairments listed in the social security regulations. (R. at 15-16.)

         Next, the ALJ determined that Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except that she could lift up to 10 pounds occasionally, stand or walk for two hours in an eight-hour day, and sit for six hours in an eight-hour day. (R. at 16.) She could never climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs; and occasionally balance, stoop, kneel, crouch, or crawl. (Id.) Plaintiff could also occasionally lift overhead but could have no exposure to unprotected heights, hazards, or moving machinery. (Id.)

         At step four, the ALJ found that Plaintiff could not perform her past relevant work. (R. at 20.) The ALJ continued to step five and found that transferability of job skills was not material to the determination of disability because use of the Medical-Vocational Rules as a framework supported a finding that she was not disabled, whether or not she had transferrable job skills. (Id.) Considering her age, education, work experience, and RFC, the ALJ found there were jobs in significant numbers in the national economy that she could perform. (R. at 21.) Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined under the Social Security Act, from her amended onset date of February 22, 2012 through December 31, 2013, the date of last insured. (Id.)

         II. ...

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