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Hadley v. Berryhill

United States District Court, S.D. West Virginia, Huntington Division

February 13, 2019

KATRINA D. HADLEY, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          OMAR J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE

         This is an action seeking review of the final decision of the Acting Commissioner of Social Security denying the Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II and for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. By Order entered July 31, 2018 (ECF No. 4), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are Plaintiff's Brief in Support of Judgment on the Pleadings and Defendant's Brief in Support of Defendant's Decision. (ECF Nos. 12 and 15)

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the United States District Judge DENY Plaintiff's request for judgment on the pleadings (ECF No. 12), GRANT Defendant's request to affirm the decision of the Commissioner (ECF No. 15); AFFIRM the final decision of the Commissioner; and DISMISS this action from the docket of the Court.

         Procedural History

         The Plaintiff, Katrina D. Hadley (hereinafter referred to as “Claimant”), protectively filed her applications for Titles II and XVI benefits on August 31, 2015 alleging that her disability began on May 4, 2015 because of “neurogenic bladder, spina bifida, type II diabetes, tethered spine, 7 bulging disc[s], high blood pressure, [and] depression.”[1] (Tr. at 242-243, 244-249, 269) Her claims were initially denied on November 23, 2015 (Tr. at 161-164, 165-167) and again upon reconsideration on January 7, 2016. (Tr. at 175-181, 182-186) Thereafter, Claimant filed a written request for hearing on January 15, 2016. (Tr. at 187-189)

         An administrative hearing was held on October 17, 2017 before the Honorable Anne Shaughnessy, Administrative Law Judge (“ALJ”). (Tr. at 85-103) On December 22, 2017, the ALJ entered an unfavorable decision. (Tr. at 8-28) On January 2, 2018, Claimant sought review by the Appeals Council of the ALJ's decision. (Tr. at 235-241) The ALJ's decision became the final decision of the Commissioner on June 14, 2018 when the Appeals Council denied Claimant's Request. (Tr. at 1-7)

         On July 28, 2018, Claimant brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2) The Defendant, (hereinafter referred to as “Commissioner”) filed an Answer and a Transcript of the Administrative Proceedings. (ECF Nos. 9 and 10) Subsequently, Claimant filed a Brief in Support of Judgment on the Pleadings (ECF No. 12); in response, the Commissioner filed a Brief in Support of Defendant's Decision. (ECF No. 15) Consequently, this matter is fully briefed and ready for resolution.

         Claimant's Background

         Claimant was 44 years old as of the alleged onset date and considered a “younger person” throughout the underlying proceedings. See 20 C.F.R. §§ 404.1563(c), 416.963(c). (Tr. at 265) Claimant has a high school education plus two years of college. (Tr. at 270) Her work history includes employment as a server/waitress, cook, with the most recent being a laborer in a warehouse. (Tr. at 271)

         Standard

         Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claimant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A).

         The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claims. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found “not disabled” at any step, further inquiry is unnecessary. Id. §§ 404.1520(a), 416.920(a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). If a severe impairment is present, the third inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4. Id. §§ 404.1520(d), 416.920(d). If it does, the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claimant's impairments prevent the performance of past relevant work. Id. §§ 404.1520(f), 416.920(f). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to perform other forms of substantial gainful activity, considering claimant's remaining physical and mental capacities and claimant's age, education and prior work experience. Id. §§ 404.1520(g), 416.920(g). The Commissioner must show two things: (1) that the claimant, considering claimant's age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the Social Security Administration (“SSA”) “must follow a special technique at every level in the administrative review process.” 20 C.F.R. §§ 404.1520a(a), 416.920a(a). First, the SSA evaluates the claimant's pertinent symptoms, signs and laboratory findings to determine whether the claimant has a medically determinable mental impairment and documents its findings if the claimant is determined to have such an impairment.

         Second, the SSA rates and documents the degree of functional limitation resulting from the impairment according to criteria as specified in Sections 404.1520a(c) and 416.920a(c). Those Sections provide as follows:

(c) Rating the degree of functional limitation. (1) Assessment of functional limitations is a complex and highly individualized process that requires us to consider multiple issues and all relevant evidence to obtain a longitudinal picture of your overall degree of functional limitation. We will consider all relevant and available clinical signs and laboratory findings, the effects of your symptoms, and how your functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function. See 12.00C through 12.00H of the Listing of Impairments in appendix 1 to this subpart for more information about the factors we consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. See 12.00E of the Listings of Impairments in appendix 1 of this subpart.
(4) When we rate the degree of limitation in the first three functional areas (understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself), we will use the following five-point scale: None, mild, moderate, marked, and extreme. The last point on the scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.

         Third, after rating the degree of functional limitation from the claimant's impairment(s), the SSA determines their severity. A rating of “none” or “mild” will yield a finding that the impairment(s) is/are not severe unless evidence indicates more than minimal limitation in the claimant's ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1).

         Fourth, if the claimant's impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2).

         Finally, if the SSA finds that the claimant has a severe mental impairment(s) which neither meets nor equals a listed mental disorder, the SSA assesses the claimant's residual functional capacity. Id. §§ 404.1520a(d)(3), 416.920a(d)(3). The Regulations further specify how the findings and conclusion reached in applying the technique must be documented at the ALJ and Appeals Council levels as follows:

At the administrative law judge hearing and the Appeals Council levels, the written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section.

Id. §§ 404.1520a(e)(4), 416.920a(e)(4).

         Summary of ALJ's Decision

         In this particular case, the ALJ determined that Claimant met the requirements for insured worker status through December 31, 2019. (Tr. at 13, Finding No. 1) Moreover, the ALJ determined that Claimant satisfied the first inquiry because she had not engaged in substantial gainful activity since the alleged onset date of May 4, 2015. (Id., Finding No. 2) Under the second inquiry, the ALJ found that Claimant had the following severe impairments: neurogenic bladder; lumbar spondylosis; degenerative disc disease; obesity; diabetes mellitus; and depressive disorder. (Id., Finding No. 3)

         At the third inquiry, the ALJ concluded Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 14, Finding No. 4) The ALJ then found that Claimant had the residual functional capacity (“RFC”) to perform light work, “except she can cannot climb ladders, ropes, or scaffolds. She can occasionally stoop. She can perform tasks that are not fast paced in nature in a static work environment that does not require strict production deadlines.” (Tr. at 16, Finding No. 5)

         At step four, the ALJ found Claimant was not capable of performing past relevant work. (Tr. at 20, Finding No. 6) At the final step, the ALJ determined that in addition to the immateriality of the transferability of job skills, Claimant's age, education, work experience, and RFC indicated that there are jobs that exist in significant numbers in the national economy that Claimant can perform. (Tr. at 21, Finding Nos. 7-10) Finally, the ALJ determined Claimant had not been under a disability from May 4, 2015 through the date of the decision. (Tr. at 22, Finding No. 11)

         Claimant's Challenges to the Commissioner's Decision

         Claimant asserts that the ALJ erred on numerous grounds: that she failed to consider all the evidence with respect to her neurogenic bladder; that because Claimant must self-catheterize every 1-2 hours which takes 15-20 minutes resulting in being off-task between 12% and 33% of the workday, Claimant is unemployable in a competitive economy; that the vocational expert specifically testified that being off-task more than 10-15% precludes employment which the ALJ failed to acknowledge; that the ALJ failed to give proper weight to the opinion of Claimant's treating nurse practitioner, and disregarded same; that the ALJ failed to consider the evidence provided by Claimant's treating physical therapist; that the ALJ failed to consider the consultative examiner's finding moderate impairment due to Claimant's spina bifida, back pain and neurogenic bladder; that the ALJ's evaluation of Claimant's subjective symptoms pursuant to SSR 16-3p fails to comply with the Regulations; and finally, that the ALJ's RFC assessment is fatally flawed because it fails to consider all of Claimant's impairments in contravention to the evidence. (ECF No. 12 at 5-7)

         Claimant asks this Court to reverse the decision below and award her benefits, or alternatively, remand this case to correct the errors below. (Id. at 7)

         In response, the Commissioner argues that the vocational expert's testimony confirmed that unscheduled breaks every two hours for fifteen minutes is acceptable off-task behavior, and the evidence did not support Claimant's need for an unscheduled break every hour for fifteen minutes, therefore the ALJ properly accounted for Claimant's limitations with respect to her neurogenic bladder. (ECF No. 15 at 15) The ALJ also properly evaluated the medical source opinion evidence pursuant to the Regulations, particularly with regard to Claimant's nurse practitioner, Ms. Leffingwell, whose opinion was inconsistent with the other evidence of record. (Id. at 16) To the extent the medical source opined on an issue reserved to the Commissioner, the ALJ was under no duty to give such an opinion any significance. (Id. at 17) Further, the ALJ explained her reasoning for the weight she gave to the opinion provided by the consultative examiner, Dr. Nutter; significantly, the ALJ noted that the objective findings did not support any significant functional limitations. (Id. at 17-18)

         With respect to Claimant's subjective statements, the Commissioner points out that Claimant provides no instances of the objective evidence that supported her complaints, however, the ALJ pointed to specific examples from the record that showed Claimant's subjective statements were not entirely consistent with the evidence and provided clear reasons explaining her rationale in her analysis. (Id. at 19-20)

         The Commissioner asserts that the final decision is supported by substantial evidence and asks this Court to affirm. (Id. at 20)

         The Relevant Evidence of Record[2]

         The undersigned has considered all evidence of record, including the medical evidence, pertaining to Claimant's arguments and discusses it below.

         Neurogenic Bladder Treatment:

         In December 2014, Claimant was admitted to the hospital for suprapubic pain and leaking of urine around a Foley catheter. (Tr. at 430) She was started on antibiotics because her urinalysis was suggestive of a urinary tract infection. (Id.) Lawrence W. Wyner, M.D., recommended removal of the Foley catheter and that Claimant resume repeated self-catheterization. (Id.)

         On February 19, 2015, Charles Stephen Woolums, M.D., saw Claimant for management of neurogenic bladder and possible bladder sling. (Tr. at 951) Claimant reported that she self-catheterized 3 times a day. (Id.) Dr. Woolums noted that Claimant had neurogenic bladder dysfunction due to spina bifida. (Tr. at 952) Dr. Woolums recommended surgical intervention to achieve urinary continence and allow for effective catheterization. (Tr. at 955)

         On March 2, 2015, Dr. Woolums performed antologous pubovaginal sling (PVS), urethral reconstruction, and cystoscopy. (Tr. at 511) On March 26, 2015, Dr. Woolums saw Claimant for follow-up care: Claimant reported no problems with catheterization. (Tr. at 929) Dr. Woolums noted that Claimant had catheterized more than 4 hours ago, with no leakage. (Tr. at 931)

         On April 20, 2015, Claimant was admitted to the hospital after an uneventful fascia harvest and pubovaginal sling. (Tr. at 496-497) A catheter was left in place, and Claimant had a relatively benign postoperative course. (Tr. at 497) She was discharged home on prophylactic antibiotics. (Id.) The following day, Dr. Woolums saw Claimant status post PVS and urethral reconstruction. (Tr. at 921) Claimant reported that she was catheterizing every 2-3 hours. (Id.)

         On May 7, 2015, Dr. Woolums performed a cystoscopy for hematuria and to identify an intravesical source. (Tr. at 914) Claimant's continence was improving and her hematuria had resolved. (Id.) Dr. Woolums wrote a note stating that Claimant should have a leave of absence on May 7, 2015 and could return to work on May 8, 2015. (Tr. at 913)

         On May 14, 2015, Claimant reported that she was self-catheterizing every 3 hours. (Tr. at 1253)

         On May 20, 2015, Rafael Molina, Jr., M.D., saw Claimant for an annual gynecologic examination. (Tr. at 606, 783) Claimant denied urinary/genitourinary symptoms. (Tr. at 606, 608)

         At an August 11, 2015 physical examination, Claimant denied hematuria (blood in urine), oliguria (diminished capacity to pass urine), polyuria (excessive production of urine), nocturia (excessive urination at night), and dysuria (pain, discomfort, or burning upon urination). (Tr. at 576)

         On September 28, 2015, Dr. Woolums saw Claimant for neurogenic detrusor overactivity with incontinence. (Tr. at 898) Dr. Woolums performed a cystoscopy with intravesical botulinum toxin A injection (Botox). (Id.) That same month, in her Function Report dated September 5, 2015, Claimant reported that she had to self-catheterize every 2 hours. (Tr. at 289)

         In December 2015, Claimant reported to Dr. Woolums that she self-catheterized 3-4 times a day. (Tr. at 1316) It was noted that Claimant received a Botox injection on September 28, ...


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