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Nelson v. Saul

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

August 2, 2019

LINDA GAIL NELSON, Plaintiff,
v.
ANDREW SAUL, [1]COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         Plaintiff Linda Gail Nelson (“Claimant”) seeks review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. By standing order entered on January 4, 2016, and filed in this case on October 1, 2018, this matter 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). (ECF No. 3.) Presently pending before this Court are Claimant's Brief in Support of Her Social Security Appeal (ECF No. 6) and the Commissioner's Brief in Support of Defendant's Decision (ECF No. 7).

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the United States District Judge DENY Claimant's request to reverse the Commissioner's decision (ECF No. 6), GRANT the Commissioner's request to affirm his decision (ECF No. 7), AFFIRM the final decision of the Commissioner, and DISMISS this action from the Court's docket.

         I. BACKGROUND

         A. Information about Claimant and Procedural History of Claim

         Claimant was 55 years old at the time of her alleged disability onset date and 59 years old on the date of the decision by the Administrative Law Judge (“ALJ”). (See Tr. at 89.)[2] She is a high school graduate. (Id. at 212.) Most recently, she worked as a financial counselor at a doctor's office, and she has also been employed as a billing clerk at a doctor's office. (Id.) Claimant alleges that she became disabled on January 10, 2014, due to stage 2 cancer in her right breast, degenerative disc disease, osteoporosis, depression, anxiety, rheumatoid arthritis, psoriatic arthritis, psoriasis, asthma, and high blood pressure. (Id. at 211.)

         Claimant filed her application for benefits on January 12, 2015. (Id. at 191-93.) Her claim was initially denied on June 29, 2015, and again upon reconsideration on December 16, 2015. (Id. at 118-22, 124-26.) Thereafter, on January 11, 2016, Claimant filed a written request for hearing. (Id. at 129-30.) An administrative hearing was held before an ALJ on September 19, 2017, in Bluefield, West Virginia, with the ALJ appearing from Charleston, West Virginia. (Id. at 54-88.) On December 15, 2017, the ALJ entered an unfavorable decision. (Id. at 11-30.) Claimant then sought review of the ALJ's decision by the Appeals Council on January 28, 2018. (Id. at 185-90.) The Appeals Council denied Claimant's request for review on August 2, 2018, and the ALJ's decision became the final decision of the Commissioner on that date. (Id. at 1-7.)

         Claimant timely brought the present action on October 1, 2018, seeking judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) The Commissioner filed an Answer (ECF No. 4) and a transcript of the administrative proceedings (ECF No. 5). Claimant subsequently filed her Brief in Support of Her Social Security Appeal (ECF No. 6), and in response, the Commissioner filed his Brief in Support of Defendant's Decision (ECF No. 7). As such, this matter is fully briefed and ready for resolution.

         B. Relevant Medical Evidence

         The undersigned has considered all evidence of record, including the medical evidence, pertaining to Claimant's arguments and summarizes it here for the convenience of the United States District Judge.

         1. Breast Cancer Treatment

         On January 7, 2014, a cancerous mass was detected in Claimant's right breast. (Tr. at 556- 58, 661, 663-64.) At that time, Claimant was employed by Dr. Joseph M. Baisden, M.D., Ph.D. (“Dr. Baisden”), an oncologist who then began to treat Claimant after her diagnosis. (See ECF No. 6 at 3.) Dr. Baisden examined Claimant on January 14, 2014, and noted “significant symptoms of anxiety and depression, ” including “severe fatigue, poor appetite, difficulty sleeping, inability to concentrate, as well as severely depressed thoughts.” (Tr. at 550.)

         Shortly after her diagnosis, Claimant underwent a bilateral mastectomy with breast reconstruction. (Id. at 343, 376-78, 473-536.) She also began chemotherapy at David Lee Outpatient Cancer Center (“Lee Cancer Center”) in April 2014. (Id. at 395-97.) At Claimant's initial consultation on April 16, 2014, oncologist Dr. Ni Gorsuch, M.D. (“Dr. Gorsuch”) noted “chronic musculoskeletal pain” and “some depression.” (Id. at 396.) At follow-up appointments on May 21 and June 11, 2014, Dr. Gorsuch noted that Claimant “tolerated chemotherapy poorly” and was “profoundly debilitated by side effects of treatment.” (Id. at 392, 394.) At Claimant's July 9, 2014 appointment, Dr. Gorsuch stated that Claimant “still has persistent fatigue, ” but “[it] is not as [bad] as before.” (Id. at 388.) On July 22, 2014, Dr. Baisden noted that Claimant's physicians had decided “to discontinue any further chemotherapy after this round and to begin external beam radiation therapy.” (Id. at 541.) Dr. Baisden also noted that Claimant reported pain, nausea, fatigue, and depression at her appointments throughout the remainder of 2014. (Id. at 537- 42.)

         On January 28, 2015, Claimant reported to Dr. Baisden that she had considered suicide as a result of pain associated with a shingles outbreak and continued to complain of pain in her chest and back as well as fatigue. (Id. at 561-62.) Claimant also reported that she fell down the stairs, which Dr. Baisden attributed to “chemotherapy-induced peripheral neuropathy.” (Id.) On May 15, 2015, Dr. Baisden described Claimant's condition as “stable” but noted that she suffered from back pain and depression. (Id. at 563-64.) His July 10, 2015 and August 12, 2015 findings were similar. (Id. at 571, 573.) At her November 18, 2015 appointment, Claimant reported worsening memory and depression, as well as severe back pain and continued fatigue. (Id. at 605.)

         At her appointments on July 13, 2016, and December 23, 2016, Claimant reported that she was doing well, but Dr. Baisden noted on both occasions that Claimant “continues to have difficulty with significant pain, depression and short-term memory loss.” (Id. at 833, 853.) Similarly, at Claimant's appointment on May 5, 2017, Dr. Baisden noted that she “is stable with continued severe side effects from her treatment, ” including depression and fatigue. (Id. at 802- 03.)

         2. Evidence Related to Back Pain

         Imaging of Claimant's cervical spine on September 25, 2014, revealed “C5-C6 degenerative disc disease and mild arthritis resulting in narrowing of the right neural foramen, ” with “[n]o evidence of fracture or bony destructive lesion.” (Id. at 653.) Imaging of her thoracic spine conducted the same day revealed “[n]o fracture.” (Id. at 657.)

         Claimant underwent an MRI of her lumbar spine on August 10, 2015, which revealed “interval development of a probable Schmorl's node in the upper endplate of L3 with a little bit of enhancement and marrow edema, ” as well as “a mild concentric disc bulge” on L2-3. (Id. at 575.) The MRI ...


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