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Miller v. Berryhill

United States District Court, D. Oregon

May 22, 2017

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


          STACIE F. BECKERMAN United States Magistrate Judge.

         Pamela Miller (“Miller”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her application for Social Security disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court affirms the Commissioner's decision because it is free of legal error and supported by substantial evidence.


         Miller stands five-feet, four-inches tall and her weight fluctuated between 215 and 235 pounds during the relevant time period. She was born in August 1950, making her fifty-nine years old on May 1, 2010, the amended alleged disability onset date. Miller completed two years of college, and her past relevant work includes time as an office manager. She alleges disability due primarily to chronic fatigue syndrome, back pain, and arthritis.

         On May 7, 2012, Miller presented for a follow-up visit with her primary care physician, Dr. James Calvert (“Dr. Calvert”). Dr. Calvert noted that Miller suffers from, among other things, hypertension that is “fairly well controlled” by medication, back pain, and chronic fatigue syndrome. (Tr. 344.) Dr. Calvert added that Miller “has been compliant with taking medications as directed but has been having difficulty complying with the recommended levels of diet and exercise.” (Tr. 344.) Dr. Calvert instructed Miller to exercise regularly and reduce her caloric intake.

         On July 4, 2012, Miller experienced chest pain while “doing some mild to moderate . . . cleaning around the house.” (Tr. 250.) Miller was admitted to the hospital where she experienced a syncopal episode and was diagnosed with “hypertension following a mild tachyarrhythmia, with a few premature ventricular contractions, which were symptomatic to the patient.” (Tr. 253.) An echocardiogram “was unremarkable except for a mild cardiomegaly.”[1](Tr. 314.)

         On July 18, 2012, Miller visited Dr. Calvert and complained of “moderate to severe fatigue” that had been present for months and had been “waxing and waning over time but is overall nonprogressive.” (Tr. 354.) Miller reported that she had been eating, exercising, and taking her medications as directed. Dr. Calvert noted that Miller was “improving” following her recent hospitalization. (Tr. 354.)

         On July 28, 2012, Ronald Miller (“Mr. Miller”) completed a third-party adult function report in support of his wife's application for Social Security benefits. Mr. Miller testified that his wife suffers from arthritis in her hands and back, which negatively impacts her ability to lift more than ten pounds, sit, stand, walk, reach, kneel, squat, bend, use her hands or put strain on her back for more than an hour, and complete household chores, such as cooking and cleaning. Mr. Miller added that his wife's daily routine consists of watching television, watering plants, eating, paying bills, caring for her husband (who is disabled) and a small dog, reading, and using the computer. Mr. Miller also stated that family members assist on occasion with his care and work around the house, and his wife dusts, shops, assists with laundry, and does light gardening on a weekly basis. (Tr. 208-15.)

         Miller presented for a follow-up visit with Dr. Calvert on August 22, 2012. Miller reported that her fatigue was “gradually worsening” and she had been “compliant with [the] recommended diet, level of exercise, and medications.” (Tr. 411.) Dr. Calvert advised Miller to continue reducing her caloric intake, exercising regularly, and eating a “low fat, low cholesterol diet.” (Tr. 414.)

         On October 8, 2012, Miller was referred to Dr. Thomas Shields (“Dr. Shields”) for a psychological evaluation. As part of his evaluation, Dr. Shields reviewed Miller's medical records, conducted a clinical interview and mental status examination, and assessed Miller's independence in activities of daily living based on her own self-reports. Dr. Shields' diagnoses were major depressive disorder “in sustained full remission since the late 1990s” and adjustment disorder. (Tr. 425.) Dr. Shields concluded that Miller is “cognitively capable of understanding, remembering, and carrying out both simple and complex instructions, ” and that Miller's “ability to sustain concentration over extended periods of time is expected to be mild-to-moderately impaired secondary to pain- and fatigue-driven distractibility.” (Tr. 425.) Dr. Shields also noted that Miller's ability to “physically persist . . . should be evaluated medically” since he is a psychologist and is therefore “not qualified” to comment on Miller's “physical health.” (Tr. 424-25.)

         On October 23, 2012, Dr. Lloyd Wiggins (“Dr. Wiggins”), a non-examining state agency physician, completed a physical residual functional capacity assessment. Based on his review of the medical record, Dr. Wiggins determined that Miller could lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, or walk up to six hours in an eight-hour workday; push or pull in accordance with her lift and carry restrictions; frequently stoop, kneel, crouch, crawl, and climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; and balance without limitation. Dr. Wiggins added that Miller needs to avoid concentrated exposure to hazards (heights and machinery, etc.), extreme cold and heat, and fumes, odors, dusts, gases, and poor ventilation. He also found no evidence of manipulative, visual, or communicative limitations. (Tr. 60-61.)

         On October 26, 2012, Dr. Michael Brown (“Dr. Brown”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. Dr. Brown found that the limitations imposed by Miller's mental impairments failed to satisfy listing 12.04 (affective disorders). (Tr. 58.)

         On July 3, 2013, x-rays revealed that Miller suffers from “[m]ild osteoarthritis of the medial compartment of the right knee.” (Tr. 341.) X-rays of Miller's right hip were normal. (Tr. 340.)

         On July 29, 2013, Dr. Kordell Kennemer (“Dr. Kennemer”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. Dr. Kennemer agreed with Dr. Brown's initial assessment that Miller's mental impairments failed to satisfy listing 12.04. (Tr. 74-75.)

         On July 30, 2013, Dr. Richard Alley (“Dr. Alley”), a non-examining state agency physician, completed a physical residual functional capacity assessment, agreeing with Dr. Wiggins' findings. (Tr. 76-77.)

         On December 11, 2013, Miller presented for a follow-up visit with Dr. Calvert, complaining of an irregular pulse, chest pressure, fatigue, and right hip pain that radiated down her leg and interfered with her ability to sleep. Dr. Calvert noted that a recent x-ray of Miller's hip was normal, that Miller had “been having difficulty complying with the recommended levels of diet and exercise, ” that Miller has been “[u]nable to work for gainful employment . . . for over a year now, ” and that it is “unlikely or impossible” that Miller will ever be able to return to work. (Tr. 437-38.)

         That same day, December 11, 2013, Dr. Calvert completed a medical source statement in support of Miller's application for Social Security benefits. In his medical source statement, Dr. Calvert (1) stated that Miller is unable to perform light or sedentary work, even if she was allowed to rotate between a seated and standing position, (2) estimated that Miller could no longer work as of May to June 2011, (3) opined that Miller suffers moderately severe impairment in her ability to maintain attention and concentration for extended periods of time, and she suffers from severe impairment in her ability to “perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances” and to “complete a normal workday and workweek without interruptions from medically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, ” and (4) noted that Miller suffers from significant right hip arthritis and back pain that is not responding to treatment. (Tr. 444.)

         On July 15, 2014, Miller established care with Dr. Katherine Mechling (“Dr. Mechling”). Dr. Mechling's assessment included degeneration of a lumbar disc, hypertension, depression, and Hashimoto's thyroiditis.[2] Dr. Mechling advised Miller to continue on her current medications and to consider seeking counseling. The next month, Dr. Mechling recommended a gradual exercise program and referred Miller to the “YMCA for exercise, dietary counseling, possible personal trainer, [and counseling on] living with [a] chronic condition.” (Tr. 453.) Dr. Mechling added that she did not “foresee another appointment for another [three] months.” (Tr. 453.)

         An administrative law judge (“ALJ”) convened a hearing on August 28, 2014, at which Miller testified about the limitations resulting from her impairments. Miller testified that she stopped working as an office manager on May 1, 2010, when it was determined that she was “incompatible for that office.” (Tr. 33.) At that time, Miller was having difficulty completing a forty-hour workweek and producing spreadsheets in a timely manner, due largely to her chronic fatigue immune dysfunction syndrome. (Tr. 34-35.) Miller explained that her chronic fatigue negatively impacts her ability to feel alert, lift her arms, complete work-related tasks, maintain focus, and perform certain activities of daily living (e.g., paying bills, vacuuming, yard work, attending her grandson's graduation, driving, and showering on a consistent basis). Miller added that she suffers from chronic back pain and arthritis in her hands (in particular, her right hand), which impacts her grip and ability to lift more than one to two pounds, sit or stand for prolonged periods, paint, and crochet. However, Miller acknowledged that she is able to wash dishes by hand for five to ten minutes each day, lightly dust, prepare meals, get dressed, brush her teeth, and comb her hair.

         The ALJ posed three hypothetical questions to a vocational expert (“VE”) who testified at Miller's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Miller's age, education, and work experience could perform light work that involved: (1) frequent stooping, kneeling, crawling, and climbing of ramps and stairs; (2) occasional crouching and climbing of ladders, ropes, and scaffolds; and (3) avoiding concentrated exposure to non-weather related extreme heat and cold, airborne irritants (fumes, odors, dusts, and gases), and unprotected heights. The VE testified that the hypothetical worker could perform Miller's past relevant work as an office manager.

         Second, the ALJ asked the VE to assume that the hypothetical worker with the limitations previously described was limited to sedentary exertion level work, as opposed to light exertion level work. The VE confirmed the hypothetical worker would still be able to perform Miller's past relevant work as an office manager, “both as performed and as customarily performed.” (Tr. 48-49.) Third and finally, the ALJ asked the VE whether the hypothetical worker could be gainfully employed if she suffered from “chronic, moderately severe fatigue, which . . . would result in [her] being unable to engage in sustained work activity for a full eight-hour workday on a regular and consistent basis.” (Tr. 49.) The VE confirmed that such a worker could not be gainfully employed.

         In a written decision issued on October 27, 2014, the ALJ applied the five-step process set forth in 20 C.F.R. § 404.1520(a)(4), and found that Miller was not disabled. See infra. The Social Security Administration Appeals Council denied Miller's petition for review, making the ALJ's decision the Commissioner's final decision. Miller timely appealed to federal district court.

         THE FIVE-STEP ...

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