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Stapleton v. Berryhill

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

March 7, 2018

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



         Plaintiff DEBORAH M. STAPLETON brings this cause of action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of defendant NANCY A. BERRYHILL, Acting Commissioner of Social Security (Commissioner), denying plaintiff's applications for Disability Insurance Benefits (DIB) and Disabled Widow's Benefits (DWB). Both parties have filed briefs in this cause. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge recommends the Commissioner's decision finding plaintiff not disabled and not entitled to benefits be REVERSED.


         A. Application and Initial Determinations

         On July 25, 2012, plaintiff, who was 57 years old, filed applications for social security disability benefits alleging she had become unable to work on July 15, 2010 due to the following conditions: degenerative disc disease of the lumbar spine, daily migraines, high blood pressure, anxiety and depression. (Tr. 224-32; 233-39; 349). Medical records dating from 2007-2015 were submitted in support of plaintiff's claims of disability.

         In a Disability Report dated August 13, 2012, plaintiff advised she has a 12th grade education, and received training and worked in the field of cosmetology. (Tr. 350). Plaintiff indicated she “owned and operated a convenience store” from 2001 - July 15, 2010, working 10 hours a day/ 7 days a week, where she “worked the cash register, stocked shelves, ordered and kept inventory, completed the books and payroll, cleaned, organized, [and] hired and fired employees.” (Tr. 350-51). Plaintiff indicated this job required her to use machines, tools or equipment, use technical knowledge or skills, write or complete reports, and supervise 3-5 other people. She described the job as requiring extensive walking, standing, sitting, reaching, and writing, typing or handling small objects, as well as requiring frequent lifting of up to 10 pounds, with the heaviest weight lifted being 50 pounds. (Tr. 351).

         In a Function Report completed September 10, 2012, plaintiff advised she lives alone and watches TV most of the day, has no problem with her personal care, does not need help or reminders taking medication, and is able to prepare small meals, do some inside household chores, drive a car, shop alone for groceries, perform financial obligations, read, socialize, and attend doctor appointments alone. (Tr. 364-67). Plaintiff advised she can walk 2-3 blocks before needing to stop and rest, has no problems paying attention or finishing what she starts, is able to follow spoken instructions better than written instructions, and is able to handle changes in routine but does not handle stress well, tending to get a headache. (Tr. 368-69).

         On November 29, 2012, the Social Security Administration denied plaintiff disability benefits finding her condition was not severe enough to keep her from working and, based on her description of her job as an owner/operator of a convenience store, she had the ability to perform that type of work as she had described it. (Tr. 74-98).

         In a subsequent Disability Report, plaintiff alleged that as of August 25, 2012, an additional condition, to wit: arthralgia in her hands, and the resultant stiffness, pain, and inability to maintain a firm grip, also precludes her from working. (Tr. 371). Plaintiff advised that as a result of uncontrolled blood pressure, she is not able to stand without feeling dizzy and weak, cannot walk down stairs, and becomes short of breath when she walks too far. Plaintiff also advised that as a result of the arthralgia, she is not able to hold a pen in her hand for longer than 30 minutes. Plaintiff averred treatment for the blood pressure and hand joint pain had not been effective. (Tr. 374). On April 18, 2013, the Social Security Administration denied benefits upon reconsideration. (Tr. 99-128; 129-36).

         B. Administrative Hearing

         On February 13, 2015, an Administrative Law Judge (ALJ) held an administrative hearing via video conference to consider plaintiff's applications for disability benefits. (Tr. 35-72). Prior to the hearing, plaintiff submitted two (2) third-party statements stating plaintiff, although the co-owner of the convenience store, did not work at the store or perform any operational or managerial duties at the store. (Tr. 432-38).

         In her opening statement, plaintiff's representative noted her “key concern” with the case was the incongruency in the records concerning plaintiff's past relevant work (PRW), arguing that despite the statements made in the August 13, 2012 Disability Report, plaintiff had simply “owned” the convenience store and worked for a short time as a part-time cashier at the store, but had never “managed” or “operated” the store or had set hours or set responsibilities so as to acquire substantial work skills. (Tr. 41-43).

         Plaintiff, who was 59 years old at the time of the video hearing, testified concerning her impairments and the limitations caused by such impairments. (Tr. 48-61). A vocational expert (VE) also testified at the hearing. Based on the job description given in the August 13, 2012 Disability Report, the VE identified plaintiff's only PRW as an “owner/manager” of a convenience store and classified such work as light, as generally performed, but performed by plaintiff at the medium exertional level as described in the Disability Report. (Tr. 65). When the ALJ posed a hypothetical to the VE of an individual limited to light work who also needs to avoid work above shoulder level, the VE opined that such an individual could perform plaintiff's PRW as it was generally performed at the light exertional level, but not at the medium exertional level performed by plaintiff as described in the August 13, 2012 Disability Report. (Id.). The VE testified such an individual would have skills transferrable to sedentary exertional level jobs, such as a telephone answerer or solicitor. (Id.).

         Prior to cross-examination of the VE, plaintiff's representative clarified that plaintiff did not recall completing the August 13, 2012 Disability Report that set out the description of PRW relied on by the ALJ and the VE. (Tr. 66-67). On cross-examination, the VE acknowledged an individual “limited to standing and walking less than two hours in an eight-hour workday” due to “pathology to their spine” and “neuropathy in their feet, ” or an individual “limited in their ability for pushing and pulling, grasping, and handling to . . . less than two and a half hours a day” and only able to “do fine fingering and manipulation [] up to two and a half hours a day” due to pain and swelling in the hands, could not perform plaintiff's PRW. (Tr. 67-68). The VE also acknowledged an individual “limited to sitting for less than two hours out of an eight-hour day” could not perform plaintiff's PRW or the sedentary exertional level jobs the VE had identified. (Tr. 68). The VE further acknowledged that if an individual were “off task 20 percent of the time” due to frequent, severe pain or as a result of emotional issues such as depression, such an individual would not be able to maintain a regular assignment or sustain a regular work schedule. (Tr. 69-70). The VE also acknowledged that if an individual were absent from work three days per month due to an exacerbation of physical or mental symptoms, such an individual could not sustain a regular work schedule. (Tr. 70).

         At the close of the VE's testimony, plaintiff's representative again noted the description of plaintiff's PRW set forth in the August 13, 2012 Disability Report was not accurate, noting the medical records describing plaintiff's limited work history and previously submitted statements of individuals who attested plaintiff did not perform the work as described in the Disability Report. (Tr. 71-72).

         After the hearing, plaintiff submitted additional third-party statements, as well as her own statement and that of her disability representative, averring plaintiff, although the co-owner of the convenience store, did not work at the store or perform any operational or managerial duties at the store, and vehemently disputing the accuracy of the August 13, 2012 Disability Report stating she performed all managerial and work duties material to the operation of the convenience store. (Tr. 440-50). Plaintiff argued that as she did not have any past relevant work, and no transferrable skills to light or sedentary work, the Grids would direct a finding of disability whether plaintiff retained the RFC for either light or sedentary work.

         C. ALJ's Decision

         On June 26, 2015, the ALJ rendered an unfavorable decision, finding plaintiff had “not been under a disability within the meaning of the Social Security Act at any time through the date of [his] decision.” (Tr. 17). The ALJ found plaintiff had not engaged in substantial gainful activity since July 15, 2010, the alleged onset date. (Tr. 19). The ALJ determined plaintiff had the following severe medical impairments: “scoliosis and spondylosis of the thoracic spine, degenerative disc disease of the lumbar spine, status post remote cervical surgery, and obesity, ” and discussed plaintiff's impairments that he found to be non-severe.[1] (19-21). The ALJ found plaintiff's impairment or combination of impairments did not meet or medically equal the severity of any listed impairment. (Tr. 22).

         The ALJ found, “[a]fter careful consideration of the entire record, ” that plaintiff retained the residual functional capacity (RFC) - the most an individual can still do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks - to perform light exertional work with the limitation that she “should avoid work above shoulder level.” (Tr. 22). The ALJ stated that in making this finding, he had considered all symptoms and the extent to which these symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, and had also considered opinion evidence in accordance with the requirements of the regulations and various Social Security Rulings. (Tr. 23).

         The ALJ summarized plaintiff's hearing testimony, and stated that in addition to this testimony, he considered the function reports and pain questionnaire completed by plaintiff. (Id.) The ALJ stated he read and considered the third-party function reports completed by plaintiff's sister and a friend, but did not give their reports “any real weight” because they were inconsistent with the objective medical evidence. (Id.).

         The ALJ found, “[a]fter careful consideration of the evidence, ” that plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were “not entirely credible.” (Id.). The ALJ noted that having found plaintiff's obesity to be a severe impairment, he considered plaintiff's weight, including the impact on her ability to ambulate as well as on her other body systems, within the functional limitations determined in his decision. (Id.). The ALJ found the records did not support that plaintiff's musculoskeletal impairments are as severe as alleged, noting her lengthy history of treatment for back pain reflected generally mild findings regarding the lumbar and thoracic spine. (Id.). The ALJ further noted records of plaintiff's past cervical fusion reflected the surgery was generally successful in treating her related symptoms, and after addressing plaintiff's pain management medical records from 2007-2011, determined plaintiff's symptoms were not as limiting as alleged and were generally well-controlled with treatment. (Tr. 24-25). The ALJ noted doppler studies of plaintiff's lower extremities in April 2011 revealed venous insufficiency in both legs, but no evidence of deep vein thrombosis and only slight edema. (Tr. 25). The ALJ also observed that medical records from mid-July 2011 found cellulitis in the lower extremity but a second doppler study again showed no evidence of thrombosis, and plaintiff exhibited a normal gait and muscle strength with no focal motor deficits. (Id.). The ALJ noted plaintiff reported joint swelling in her hands and feet in late 2011, but that examination revealed only mild swelling and no neurological deficits. (Id.).

         The ALJ noted plaintiff presented to Dr. Robert Bidwell for a new patient visit on August 22, 2012 with complaints of ongoing chronic joint/hand pain. (Id.). The ALJ found there was no evidence plaintiff was taking any prescription pain medications at the time and examination revealed normal muscle tone and gait with no neurological deficits or edema, and treatment consisted of a recommendation that plaintiff take a glucosamine supplement and Tylenol as needed. (Id.). The ALJ found examinations from July 2011 - August 2012 revealed generally normal objective musculoskeletal findings. (Id.).

         The ALJ stated that on October 19, 2012, plaintiff reported activities of daily living (ADLs) of being able to dress and care for personal hygiene, prepare laundry, make her bed daily, throw the trash out, prepare basic meals, shower on her own, and handle finances. (Id.). The ALJ found these reported ADLs, together with the generally normal objective musculoskeletal findings upon examinations, diminish plaintiff's credibility. (Id.).

         The ALJ remarked that plaintiff's November 13, 2012 consultative exam revealed plaintiff had a steady gait, normal muscle strength, good grip, no atrophy, and could sit, stand, move, lift, handle and carry objects but could not heel-toe walk, hop, squat or tandem walk, but used no assistive devices. (Id.). X-rays of the lumbar spine during the consultative exam revealed only minimal narrowing and degeneration at ¶ 5-S1 and retrolisthesis at ¶ 5 over S1 but was otherwise normal. (Tr. 25-26). The ALJ further mentioned medical records from November 2012 - May 2015, finding examinations continued to be generally normal and that plaintiff had reported her pain was well controlled most of the time with prescription medicine, but that it was noted plaintiff walked slowly and reported she could not raise her arms very high. (Tr. 26). The ALJ found the medical record did not show further surgical intervention was warranted and that plaintiff was only treated conservatively which generally controlled plaintiff's symptoms. Consequently, the ALJ determined plaintiff had diminished credibility regarding the severity of symptoms and limitations alleged, especially as her symptoms did not appear to worsen at the time of her alleged onset date and she reported they had even improved. (Id.).

         The ALJ also addressed plaintiff's claims of ongoing difficulty with leg swelling, the limited treatment and time of treatment for this condition, and the generally normal findings but for plaintiff's slightly slow gait since March 2013. The ALJ found that, “[g]iven the above evidence in its entirety, ” plaintiff could perform light exertional level work activity but that, due to her past cervical fusions and reports of being unable to raise her arms very high, she should avoid work above shoulder level. (Id.).

         In addressing the opinion evidence of record, the ALJ noted the RFC assessments of the non-examining State agency medical consultants completed on November 28, 2012 and April 17, 2013, viz., that plaintiff had the capacity to perform medium exertional level work, but afforded such opinions “little weight” because the record showed plaintiff had a previous cervical fusion and it was “more reasonable she would be reduced to light exertional work and [should] avoid work above the shoulder level due to the fusion, findings of degenerative disc disease of the thoracic/ lumbar spine and obesity.” (Id.). The ALJ, however, gave “great weight” to the non-examining State agency medical consultant opinions that plaintiff's mental health impairments were nonsevere “as there was minimal treatment in [plaintiff's] file regarding her mental health and the majority of examinations showed generally normal mental status findings” and their opinions were consistent with mental status testing showing no evidence of memory or concentration deficits and plaintiff's activities of daily living.[2] (Tr. 27).

         The ALJ noted Dr. Bidwell completed a medical source statement on July 8, 2014, restating the doctor's opinions regarding plaintiff's physical limitations, as well as his opinions that plaintiff would not be able to work “a job 8 hours a day on an ongoing basis, without significant accommodations and/or frequent unscheduled days off, ” and that plaintiff “would be absent from work consistently more than 3 days a month.” (Id.). The ALJ then cited the relevant provisions of the Code of Federal Regulations, noting such regulations “state, in pertinent part, that treating source opinions are given controlling weight if they are well supported by medically acceptable clinical and diagnostic techniques and are not inconsistent with the other substantial evidence of record.” (Id.).

         The ALJ then held a “review of Dr. Bidwell's records do not support his opinion.” Referencing his previous discussion, the ALJ noted almost all of Dr. Bidwell's examinations of plaintiff resulted in generally normal musculoskeletal findings, with no neurological deficits and normal gait, muscle strength and tone, with the exception of a finding of a slightly slow gait starting in March 2013, which did not result in any treatment plan recommendation to use an assistive device to ambulate. (Id.). The ALJ noted Dr. Bidwell's notes continued to reflect plaintiff had no neurological deficits and normal muscle strength/tone, and that mental status examinations performed on plaintiff by Dr. Bidwell were generally normal with the exception of a notation that plaintiff had a mildly flat affect on occasion. (Id.). The ALJ also noted plaintiff reported to Dr. Bidwell that her pain was well controlled most of the time on medications. (Id.). Noting administrative issues, such as what an individual's residual functional capacity is or whether the individual is disabled, are issues for the Commission to exclusively decide, the ALJ found that after carefully considering Dr. Bidwell's opinion, he did not give it “great weight” because “it is in conflict with Dr. Bidwell's own treatment records, is not well supported by medically acceptable clinical and laboratory techniques and is inconsistent with the other substantial evidence as noted above.” (Tr. 27-28).

         The ALJ stated he did not discount all of plaintiff's complaints, finding the evidence demonstrated medically determinable impairments; however, none were severe enough to prevent plaintiff from participating in substantial gainful activity, given the RFC for light exertional level work with the limitation to avoid work above shoulder level. (Tr. 28). The ALJ concluded that “[g]iven the objective medical evidence of record, ” plaintiff's RFC was reasonable and that plaintiff “could function within those limitations without experiencing significant exacerbation of her symptoms.” (Id.).

         The ALJ found plaintiff is capable of performing her past relevant work (PRW) as an owner-manager (convenience store). (Id.). The ALJ noted that at the hearing, plaintiff maintained she had no past relevant work as she “was merely paid as an owner of the convenience store but did not work there.” (Id.). The ALJ found this testimony was directly contradicted by the August 13, 2012 Disability Report wherein plaintiff reported she was the owner/operator of a convenience store from 2001 to July 15, 2010 and worked the cash register, stocked shelves, ordered and kept inventory, completed the books/payroll, cleaned, organized and hired/fired employees. The ALJ acknowledged the Disability Report was not signed or dated by plaintiff, but noted plaintiff testified she had a face-to-face interview at the Social Security office when completing her application for disability and that, although she testified she did not recall reporting any work information at that time, it was “reasonable” that plaintiff “would have been the only person with such extensive personal knowledge regarding her job duties, impairments and physician information that was provided on the form.” (Id.). Finding the post-hearing statements provided by the two (2) prior employees at plaintiff's convenience store were not persuasive, the ALJ found plaintiff did perform work in the store and had PRW as an owner-manager of a convenience store. (Tr. 29).

         The ALJ, noting the VE's testimony that an owner-manager of a convenience store is a skilled, light exertional level job, which plaintiff performed at the medium exertional level, found that, based on his RFC finding, plaintiff could perform her PRW as it is generally performed. (Id.). The ALJ specifically found plaintiff had not been under a disability, as defined in the Social Security Act, from July 15, 2010 through the date of his decision. (Id.).

         After entry of the ALJ's decision, plaintiff's representative challenged, inter alia, the ALJ's finding that plaintiff performed past relevant work as the manager of a convenience store, again arguing plaintiff did not have any past relevant work as demonstrated by witness statements and references in the medical record and, due to her advanced age, the Grids directed a finding of disabled even if plaintiff were limited to a light RFC as found by the ALJ. (Tr. 452-57).

         Upon the Appeals Council's denial of plaintiff's request for review on September 24, 2016, the ALJ's determination that plaintiff was not under a disability during the relevant time period became the final decision of the Commissioner. (Tr. 1-3). Plaintiff now seeks judicial review of the denial of benefits pursuant to 42 U.S.C. § 405(g).



         A. Pre-Disability Application Treating Sources

         As set forth in detail in plaintiff's brief (pp. 3-5), medical records dated October 2007 to April 2011 reflect plaintiff was treated by a D.O. and an anesthesiologist for pain management, regarding complaints of lower back, neck, leg and ...

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