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Rowe v. Berryhill

United States District Court, D. Oregon

February 21, 2018

ALLISON A. ROWE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN, United States Magistrate Judge

         Allison Rowe (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her applications for Social Security disability insurance benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.

         BACKGROUND

         Rowe was born in July 1973, making her thirty-seven years old on October 31, 2010, the alleged disability onset date. (Tr. 105, 132.) She has a high school education, and her past relevant employment includes appointment scheduler, receptionist, sales associate, and cashier. (Tr. 39, 375.) In her applications for benefits, Rowe alleges disability due to diabetes, depression, anxiety, sciatica, and back problems, such as a bulging disc and “[n]arrowing canal.” (Tr. 105, 132.)

         On June 8, 2010, roughly four and a half months before the alleged onset of disability, Plaintiff presented for a follow-up visit with her primary care physician, Dr. Lori Gluck (“Dr. Gluck”), regarding her diabetes. During the visit, Plaintiff reported that she recently “[j]oined 24 hour fitness” and “[r]eally likes it, ” and that she engages in exercise five days a week (walking, using the treadmill for thirty minutes, or swimming laps for twenty minutes). (Tr. 565.)

         On July 27, 2010, Plaintiff presented for a consultation regarding the ongoing management of her diabetes. Plaintiff reported that she was “[g]oing on vacation next week to . . . Disneyland and [Las] Vegas, ” that she was not “checking blood sugars every day as she is supposed to, ” that she was “[e]ating out every day [and] no[t] cooking at home, ” and that she had “not been to the gym at all” over the course of the last three weeks because she was “being lazy.” (Tr. 559.) Dr. Heidi Chinwuba (“Dr. Chinwuba”), a doctor of pharmacy, noted that she had a “[f]rank discussion” with Plaintiff about “her ongoing poor life choices, ” and observed that Plaintiff “[k]nows she needs to change, but [she is] not willing to doing anything about it.” (Tr. 560.)

         On October 19, 2010, Plaintiff presented for a follow-up visit with Dr. Chinwuba. Plaintiff reported that she had improved her compliance with the prescribed insulin regimen (i.e., checking her blood sugars at least three times a day and administering dosages of insulin), but she still was not exercising and she “quit [her] job” after a recent bout with an illness. (Tr. 532-33; see also Tr. 552, noting on September 21, 2010, that Plaintiff reported starting “work yesterday”).

         On November 16, 2010, Plaintiff informed Dr. Chinwuba that she had made “no change” to her diet, and that she had been “going bowling every Saturday, ” even though her activity level was reportedly limited “due to recent back pain.” (Tr. 523.) Dr. Chinwuba noted that Plaintiff had gained ten pounds since her last visit, and that Plaintiff was told “to get into counseling [and] find someone to help her with motivation so that she can make permanent lifestyle changes.” (Tr. 524.)

         On November 22, 2010, x-rays of Plaintiff's lumbar spine revealed “[s]evere arthritic change at ¶ 5-S1, ” “[m]inor arthritic change elsewhere, ” and “atherosclerotic change of the aorta, ” which Plaintiff's radiologist felt was “unusual” for a thirty-seven year old. (Tr. 522.)

         On November 23, 2010, Dr. Gluck noted that Plaintiff was “asking about disability” and she had a “[v]ery serious talk” with Plaintiff about how her weight impacts her health, given the recent x-rays showing “severe [osteoarthritis] in [her] back and signif[icant] atherosclerosis in [her] aorta.”[1] (Tr. 519.) Dr. Gluck added that Plaintiff has a “food addiction and needs help.” (Tr. 520.)

         On January 11, 2011, Plaintiff informed Dr. Gluck that she was “[d]oing [a] volunteer job at DHS, ” and that physical activity, such as lifting or standing, causes her back to hurt, but “[s]itting is fine.” (Tr. 507; see also Tr. 504, noting on January 19, 2011, that Plaintiff was doing “[o]n the job training type of work for DHS” that involved “filing” and being on her “feet a lot” during the day).

         On February 10, 2011, Plaintiff underwent a magnetic resonance imaging (“MRI”) scan of her lumbar spine, which revealed “[m]oderate left . . . foraminal stenosis” at the L5-S1 level. (Tr. 446.)

         On May 3, 2011, Dr. Joshua Boyd (“Dr. Boyd”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 109-10.) Dr. Boyd concluded that the limitations imposed by Plaintiff's impairments failed to satisfy listing 12.04 (affective disorders).

         On May 11, 2011, Dr. John Crites (“Dr. Crites”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 111-12.) Based on his review of the medical record, Dr. Crites concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk for two hours in an eight-hour workday; sit for six hours in an eight-hour workday; push and pull in accordance with her lifting and carrying restrictions; frequently balance, stoop, kneel, crouch, crawl, and climb ladders, ropes, and scaffolds; and balance and climb ramps and stairs without limitation. Dr. Crites added that Plaintiff does not suffer from any manipulative, visual, communicative, or environmental limitations.

         On September 8, 2011, Dr. Dorothy Anderson (“Dr. Anderson”), a non-examining state agency psychologist, issued a psychiatric review technique assessment. (Tr. 137-38.) Dr. Anderson agreed with Dr. Boyd's conclusion that Plaintiff's impairments failed to satisfy listing 12.04.

         On September 9, 2011, Dr. Sharon Eder (“Dr. Eder”), a non-examining state agency physician, issued a physical residual functional capacity assessment. (Tr. 138-40.) Based on her review of the medical record, Dr. Eder concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk for two hours in an eight-hour workday; sit for six hours in an eight-hour workday; push and pull in accordance with her lift and carry restrictions; frequently stoop, kneel, crouch, and crawl; occasionally climb ramps, stairs, ladders, ropes, and scaffolds; and balance without limitation. Dr. Eder also concluded that Plaintiff does not suffer from manipulative, visual, or communicative limitations, but she does need to avoid even moderate exposure to workplace hazards, such as machinery and heights (environmental limitations).

         On September 16, 2011, Plaintiff informed Dr. Heather Miller (“Dr. Miller”), a doctor of pharmacy, that she stopped taking insulin six weeks ago and stopped exercising about a month ago. (Tr. 795.) Plaintiff added that she cooked at home for a week because “she was sick of eating out.” (Tr. 795.)

         In a letter dated June 20, 2012, Daniel Schroeder (“Schroeder”), a psychiatric mental health nurse practitioner, stated that he had not seen Plaintiff in “several months” and assumed that she wanted “to end treatment with [him].” (Tr. 937.) After Plaintiff failed to respond to Schroeder's letter, he issued a Case Closure Summary stating that Plaintiff “was non-compliant with treatment plan, contract and/or [Western Psychological and Counseling Services] policies.” (Tr. 936.)

         On November 1, 2012, Plaintiff visited Dr. Leonard Hubert (“Dr. Hubert”), a neurologist, based on complaints of chronic migraines. Dr. Hubert determined that Plaintiff's headaches were “probably” related to her overuse of Excedrin, and he advised Plaintiff to stop taking “Excedrin like drug[s]” and to use her continuous positive airway pressure machine “every night.” (Tr. 986.)

         On January 4, 2013, Katy Powell (“Powell”), a treating psychiatric mental health nurse practitioner, assigned Plaintiff a Global Assessment of Functioning (“GAF”) score of sixty-five.[2](Tr. 1938.) Powell observed that Plaintiff suffers from the following impairments: a generalized anxiety disorder, an eating disorder, a recurrent depressive disorder that is “in remission, ” obesity, diabetes, chronic back pain, and hypertension. (Tr. 1938.)

         In a letter dated January 29, 2013, Dr. Gluck stated that Plaintiff “could work with accommodations, ” but she “could not do a job requiring standing for any extended periods of time[.]” (Tr. 1087.) Dr. Gluck added that Plaintiff “[c]ould work a [six] hour day . . . at a desk job, ” and that Plaintiff should take one-minute “stretch breaks” after thirty minutes of sitting. (Tr. 1087.)

         On June 6, 2013, Plaintiff was referred to Dr. Jill Brenizer (“Dr. Brenizer”) for a cognitive, learning, and psychological assessment. (Tr. 1088-1105.) After conducting a clinical interview, reviewing certain medical records, conducting a mental status examination, and administering a battery of tests, Dr. Brenizer diagnosed Plaintiff with social phobia and a generalized anxiety disorder, and assigned a GAF score of sixty-five. (Tr. 1100.) Dr. Brenizer added that Plaintiff would perform better in jobs where she “has limited contact with other people” and is limited to a “routine” and “predictable” set of “basic and repetitive” tasks. (Tr. 1104.) Dr. Brenizer also noted that she administered a Personality Assessment Inventory (344 multiple-choice “items” that are “designed to provide an assessment of factors that could distort the results of testing”), and there were “some signs indicating [Plaintiff] may tend to portray herself in an unduly negative light” and thus it was “possible that there is an element of exaggeration of complaints and problems combined with a tendency to minimize or downplay positive aspects of particular areas.” (Tr. 1097-98.) Dr. Brenizer further observed that it was “possible the clinical features scales are overly elevated as a result of this response style.” (Tr. 1098.)

         On November 8, 2013, Plaintiff underwent an MRI scan of the brain based on complaints of chronic headaches that were “worsening over the past two months.” (Tr. 1143.) The MRI of Plaintiff's brain revealed “[t]hree extra-axial lesions with features consistent with meningiomas.”[3] (Tr. 1143.) A magnetic resonance angiogram (“MRA”) of Plaintiff's head also revealed the presence of “[d]iffuse atherosclerotic plaque without significant flow reduction.” (Tr. 1141.)

         On November 20, 2013, Dr. Daniel Lennen (“Dr. Lennen”), a treating psychologist, assigned Plaintiff a GAF score of sixty-five and noted that she ...


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