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Rossiter v. Berryhill

United States District Court, D. Oregon

February 2, 2018

LINDA ROSSITER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.

         Linda Rossiter (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her application for Disability Insurance Benefits under Titles II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court recommends that the district judge affirm the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.

         BACKGROUND

         Plaintiff was born in June 1953, making her fifty-six years old on September 9, 2009, the alleged disability onset date. (Tr. 82, 95, 191.) She has a General Equivalency Diploma and past relevant work as a security guard, bartender, and inventory clerk. (Tr. 30, 214.) In her application for benefits, Plaintiff alleges disability due to back and knee issues, depression, blood clots, heart problems, Raynaud's disease, [1] “frostbite in [her] feet and fingers, ” and carpal tunnel syndrome. (Tr. 82, 95, 213.)

         On December 3, 2009, Plaintiff underwent a partial medial meniscectomy on her left knee. (Tr. 328-29.)

         In a Final Report dated May 21, 2010, Plaintiff's knee surgeon, Dr. Thomas DeCoster (“Dr. DeCoster”), observed that Plaintiff's meniscectomy revealed “an old tear” in her anterior cruciate ligament (“ACL”), Plaintiff's knee “still pivoted, ” even though her ACL “had healed” to the posterior cruciate ligament (“PCL”), which provided “some stability, ” and physical therapy records indicated that Plaintiff had difficulty “walking for more than ten minutes, ” “going up or down stairs, ” and “getting in or out of a car.” (Tr. 318.) Dr. DeCoster opined that Plaintiff was “failing physical therapy” thus far and that ACL reconstruction represented Plaintiff's “only chance” of returning to her job as an armed security guard, “and even then, it might be questionable.” (Tr. 318.) Nevertheless, Dr. DeCoster agreed that Plaintiff should undergo four more weeks of physical therapy. (Tr. 318.) Around that time, Plaintiff was discharged from physical therapy and transferred to a clinic that could treat Plaintiff three times per week. (Tr. 340.)

         On February 21, 2012, after an electrocardiogram (“EKG”) was performed and returned “[a]bnormal” results, x-rays of Plaintiff's chest revealed “[n]o acute disease.” (Tr. 445-67.) The following day, Plaintiff underwent a cardiolite stress test, which placed her “at intermediate risk for ischemic heart disease, ” and revealed that she was “hypertensive throughout testing.” (Tr. 435.)

         On March 9, 2012, x-rays of Plaintiff's left and right knee revealed “[m]ild degenerative changes” and “probable nonossifying fibroma or fibrous cortical defect, ” respectively, [2] and x-rays of Plaintiff's cervical spine revealed “[m]oderate arthritis” and no fracture. (Tr. 464.) Also on March 9, 2012, Plaintiff's venous duplex exams revealed “[n]o evidence of upper extremity venous thrombosis” and “[a]ge-indeterminate thrombus in the soleal vein in the left mid-calf.” (Tr. 406.)

         On July 11, 2012, Plaintiff visited Dr. Rastislav Kucinsky (“Dr. Kucinsky”), a cardiologist, complaining of “episodes of chest pain that [she] describe[d] as nagging discomfort.” (Tr. 490.) Plaintiff reported that “she is able to do quite strenuous physical activity like cleaning house, climbing stairs, doing shopping and taking groceries up a hill without much chest pain, but at rest, occasionally . . . she has a feeling of [intense] chest discomfort” and shortness of breath. (Tr. 490.) Dr. Kucinsky noted that Plaintiff's February 2012 cardiolite stress test “did not have any high-risk features, ” that Plaintiff's symptoms were “quite atypical, ” and that Plaintiff's blood pressure seemed to be “well controlled.” (Tr. 492.) Dr. Kucinsky ultimately prescribed medication to treat Plaintiff's chest pain and advised her to return for a follow-up visit in three months.

         On September 13, 2012, Plaintiff visited Dr. Mike Henderson (“Dr. Henderson”) for a comprehensive musculoskeletal examination. Based on his examination and clinical interview, Dr. Henderson determined that Plaintiff's vision, hearing, and “fine motor activity of the hands” were intact, and there was no “objective evidence to limit sitting, standing, walking or lifting.” (Tr. 483.)

         On September 24, 2012, Dr. Neal Berner (“Dr. Berner”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 88-90.) Based on his review of the record, Dr. Berner concluded that Plaintiff is capable of lifting and carrying twenty pounds occasionally and ten pounds frequently, sitting, standing, and walking up to six hours in an eight-hour workday, pushing and pulling in accordance with her lifting and carrying restrictions, frequently crawling, crouching, kneeling, stooping, and climbing ramps and stairs, occasionally climbing ladders, ropes, and scaffolds, and balancing without limitation. Dr. Berner added that Plaintiff does not suffer from any manipulative, visual, or communicative limitations, but she does need to avoid concentrated exposure to wetness, vibration, “[f]umes, odors, dusts, gases, poor ventilation, ” and hazards, such as machinery and heights (environmental limitations). (Tr. 90.)

         On November 26, 2012, Dr. Kucinsky performed a cardiac catheterization procedure based on Plaintiff's continued complaints of chest pain. (Tr. 498-500.) Dr. Kucinsky's diagnoses were “[m]ild coronary artery disease” and “preserved left ventricular systolic function.” (Tr. 498.)

         On January 3, 2013, Plaintiff presented for a follow-up visit with Dr. Kucinsky, who noted that Plaintiff had “been doing reasonably well from a cardiovascular point of view, ” that he decided to treat Plaintiff's chest pain with medication and lifestyle modification (i.e., quitting or cutting down on tobacco and alcohol use), and that Plaintiff should return in eight months. (Tr. 500-01.)

         On April 10, 2013, Plaintiff was referred to Dr. Michael Villanueva (“Dr. Villanueva”), a psychologist, for a psychodiagnostic examination. Dr. Villanueva conducted a clinical interview, reviewed Plaintiff's records, and administered a mental status examination. He observed that Plaintiff's “primary diagnosis . . . is one of alcohol abuse, ” Plaintiff “realize[d] that she is presently drinking too much, ” there are “no indications of significant depression or anxiety, ” Plaintiff's “mental status examination score was normal, ” Plaintiff did “not report any psychologic symptoms that are presently impacting her or deterring activities of daily living, ” and Plaintiff reported needing “to find [a] light duty” job in order to return to the workforce. (Tr. 515.)

         On April 16, 2013, Dr. Sandra Lundblad (“Dr. Lundblad”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 105-06.) Based on her review of the record, Dr. Lundblad concluded that the limitations imposed by Plaintiff's mental impairments failed to satisfy listings 12.04 (affective disorders) and 12.09 (substance addition disorders).

         On April 23, 2013, Dr. Sharon Meyers (“Dr. Meyers”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 107-09.) Dr. Meyers agreed with all of Dr. Berner's findings, with the exception of the following: Dr. Meyers found that Plaintiff should be limited to occasional (as opposed to frequent) climbing of ramps and stairs.

         On April 16, 2014, Plaintiff visited Dr. Edward Trobaugh (“Dr. Trobaugh”) at the Klamath Open Door Family Practice, complaining of back, knee, neck, and toe pain. (Tr. 547.) That same day, x-rays of Plaintiff's lumbar spine revealed “[m]ultilevel degenerative change . . . without evidence of acute fracture, ” x-rays of Plaintiff's cervical spine revealed “[m]ild degenerative changes . . . without evidence of acute fracture, ” and x-rays of Plaintiff's knees revealed “[n]o significant degenerative change or acute traumatic injury involving both knees.” (Tr. 556-58.)

         On July 18, 2014, a right lower extremity venous exam revealed no evidence of deep venous thrombosis. (Tr. 529.)

         On October 1, 2014, Plaintiff presented for a follow-up visit with Dr. Trobaugh regarding lower back, knee, and shoulder pain. Plaintiff's straight leg test was negative and she exhibited normal range of motion in her lower extremities, normal joint stability in her knees, hips, and ankles, and “3-4/4 strength [in her right] quad and lower leg” and “2/4 strength [in her left] quad, 3/4 lower leg.” (Tr. 534.) Dr. Trobaugh referred Plaintiff to an orthopedist to discuss her lower back pain and weakness in her left quadriceps, and stated that Plaintiff “[m]ust quit smoking.” (Tr. 535.)

         On January 19, 2015, a pulse volume recording test revealed “[n]o evidence . . . to suggest significant atherosclerotic disease involving the arterial system of the bilateral lower extremities.” (Tr. 575.)

         On January 20, 2015, a magnetic resonance imaging (“MRI”) scan of Plaintiff's lumbar spine revealed “[m]ultilevel degenerative disc and facet disease.” (Tr. 574.) A month later, a computed tomography (“CT”) scan of Plaintiff's cervical spine revealed “[m]ultilevel cervical spondylosis, ” “[n]o fracture or malalignment, ” and a “[s]mall left apical pneumothorax.” (Tr. 569.)

         In a treatment note dated March 18, 2015, Dr. Trobaugh noted that Plaintiff's “recent lumbar MRI” showed “extensive degenerative disease, ” that the CT scan of Plaintiff's cervical spine showed “degenerative disease as well, ” and that Plaintiff's “significant lumbar and cervical pathology . . . likely prevents her from doing the work she is used to” doing in the past. (Tr. 566, 568.)

         In a treatment note dated March 23, 2015, Dr. Trobaugh noted that Plaintiff's physical “[e]xam was unremarkable except for some diminished sensation [consistent with] her [history of] neuropathy, ” “[i]maging supports significant disease in both her cervical and lumbar spine, ” Plaintiff's “primary limitation is pain, ” and it is “unclear how disabling this [pain] is but [Dr. Trobaugh] would find it difficult to believe she could work in her previous professions.” (Tr. 562.)

         Also on March 23, 2015, Dr. Trobaugh filled out a medical source statement, wherein he opined, among other things, that Plaintiff can lift and carry no more than ten pounds on an frequent or occasional basis, sit for fifteen to twenty minutes at a time, stand or walk for fifteen minutes at a time, never climb, kneel, crouch, and crawl, and occasionally balance, stoop, reach, handle, finger, and feel. (Tr. 576-79.) Dr. Trobaugh also stated that he has treated Plaintiff for a little over a year, that Plaintiff frequently suffers from anxiety and constantly suffers from pain, fatigue, and depression, and that Plaintiff would “miss more than two days a month from even a sedentary job because of her impairments, symptoms, medications and their side effects[.]” (Tr. 578.)

         On March 26, 2015, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 46-80.) Plaintiff testified that she stopped working as a security guard after tearing her meniscus and undergoing knee surgery, that her “medications [are] effective, ” that she has reduced her alcohol consumption from twelve to fifteen cans of beer per day to two cans per day, that ten to fifteen pounds is the maximum weight she can “comfortably lift, off and on . . . throughout parts of the day, ” that she can sit for fifteen to twenty minutes at a time before needing to alternate positions due to pain, that she can stand for “[a]bout a half hour” before needing to sit down, and that she can walk for ten to fifteen minutes before needing to sit down. (Tr. 58-61.) Plaintiff further testified that she has difficulty using her hands due to arthritis, that she can “bathe and dress [her]self, ” that she is “not real comfortable with driving anymore” due to poor eyesight and being “too antsy, ” that she spends “about three hours a day off and on” lying down due to pain, that she experiences daily pain in her lower back, feet, legs, and neck, that her most problematic conditions are her lower back pain and numbness in her legs, that her daily pain rates as a six or seven on a ten-point scale, but her medication reduces her pain to a five, that she experiences depression, that she stopped smoking two to three weeks before the hearing, that her grandson assists around the house by hauling wood, going to the grocery store, picking up mail, and helping care for her dogs, that she is forgetful and easily distracted, and that her girlfriends “come in and change the bed, ” but Plaintiff is still able to do the laundry. (Tr. 61-67.)

         The ALJ posed a series of hypothetical questions to a Vocational Expert (“VE”) who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience can lift twenty pounds occasionally and ten pounds frequently, sit, stand, and walk for six hours in an eight-hour workday “for a combined total of eight hours of activity, ” never climb ladders, ropes, or scaffolds, never work around “inhaled irritants, ” vibration, unprotected heights, or “large moving equipment, ” occasionally crouch, crawl, stoop, kneel, reach overhead bilaterally, and climb ramps and stairs, balance without limitation, and push and pull in accordance with her lifting restriction. (Tr. 72-73.) The VE testified that the hypothetical worker could not perform any of Plaintiff's past relevant work. (Tr. 73.)

         The VE further testified that (1) Plaintiff acquired skills as a bartender that would transfer directly to the job of waitress, and that the hypothetical worker could perform the job of waitress without needing to acquire any new skills, (2) Plaintiff acquired skills as a bartender that would transfer directly to the job of cashier, and that the hypothetical worker could perform the job of cashier without needing to acquire any new skills, (3) if the hypothetical worker “required the opportunity to change position from seated to standing once an hour while still performing essential tasks, ” the number of available cashier jobs would be reduced by about fifty percent and the waitress job would be eliminated, (4) a hypothetical worker who needed a sit-stand option could perform the job of security dispatcher, (5) the job of security dispatcher does “not require any physical confrontation, ” but the VE believed that a security dispatcher was just “as likely to become involved in an altercation as someone who is required to intervene” and that the “possibility of physical confrontation” prevented the hypothetical worker from performing such work, and (6) an employee would likely be terminated if she had “two or more unexcused absences on a regular basis” or was off task “anything approaching [ten] percent of the time.” (Tr. 73-80.)

         In a written decision issued on July 29, 2015, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. § 404.1520(a)(4), and determined that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's ...


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