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Jose v. Berryhill

United States District Court, D. Oregon

March 12, 2018

SANDRA JOSE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN, United States Magistrate Judge

         Sandra Jose (“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[1]

         Plaintiff was born in November 1961, making her fifty years old on November 8, 2011, the amended alleged disability onset date.[2] (Tr. 16, 31, 464-65.) Plaintiff has a high school education and “no past relevant work.” (Tr. 27.) In her applications for benefits, Plaintiff alleges disability due to chronic back pain, Hepatitis C, anxiety, seizures, degenerative disc disease, stress intolerance, scoliosis, arthritis in her hands and wrists, and a “possible history of stroke.” (Tr. 31, 58.)

         On September 27, 2011, approximately one month before the amended alleged disability onset, Dr. Barbara Moura (“Dr. Moura”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 36-37.) Based on a review of the medical record, Dr. Moura concluded that Plaintiff's mental impairments failed to satisfy listing 12.04 (affective disorders).

         Also on September 27, 2011, Dr. Moura completed a mental residual functional capacity assessment form, in which she rated Plaintiff's limitations in each of twenty categories of mental ability. (Tr. 40-42.) Dr. Moura rated Plaintiff to be “not significantly limited” in fourteen categories and “moderately limited” in six categories. (Tr. 40-42.) Dr. Moura added that Plaintiff is capable of “understanding, remembering, and carrying out simple, repetitive 1-2 step tasks, ” interacting “appropriately” with “supervisors and peers, ” and engaging in limited public contact. (Tr. 42.)

         On September 14, 2011, Plaintiff was referred to Dr. Sid Cormier (“Dr. Cormier”), a clinic psychologist, for a comprehensive mental evaluation. (Tr. 246-51.) Based on his clinical interview, review of limited records, and examination, Dr. Cormier diagnosed Plaintiff with a major depressive disorder and an anxiety disorder not otherwise specified. (Tr. 250.) Dr. Cormier also assigned Plaintiff a current Global Assessment of Functioning (“GAF”) score of fifty-five.[3](Tr. 250.)

         In addition, Dr. Cormier stated that Plaintiff's (1) depression and anxiety “are likely to seriously impair her ability to perform complex and detailed tasks, and perhaps moderately impair her ability to perform simple and repetitive ones as well, ” (2) depression and anxiety “may mildly to moderately impair her ability to maintain regular attendance, but moderately to severely impair her ability to perform work activities on a consistent basis, ” (3) “ability to complete a normal workday or workweek without interruptions resulting from the ramifications of her depression and anxiety overall appears moderately to seriously impaired at this time, ” (4) “mental status information was not suggestive of impairment regarding her ability to accept and remember instructions from supervisors, ” but “she may have difficulty remembering complex instructions, ” (5) “history and interview behavior suggested moderate impairment regarding her ability to interact with co-workers and the general public, ” (6) “history and response to the stress of the evaluations suggested moderate impairment regarding her ability to deal with typical stresses that she might encounter in a competitive work situation, ” (7) exam “demonstrated moderate impairment regarding sustained concentration and pace, but only mild impairment regarding persistence, ” (8) “current depressive state could lead to decompensation in a work-like setting at this time, ” and (9) “ability to adjust to routine changes in a work setting appears mildly impaired.” (Tr. 250.)

         On October 1, 2011, Plaintiff was referred to Dr. John Simmonds (“Dr. Simmonds”) for a comprehensive internal medical evaluation. (Tr. 252-56.) During a clinical interview, Plaintiff reported that she last worked as a groundskeeper in 2010, that she suffered an “industrial related lower back injury” in 2003, that her x-rays and MRIs “have been consistent with degenerative disc disease of the lower lumbar” spine, and that physical therapy and epidural steroid injections resulted in “minimal to moderate improvement.” (Tr. 252.) Dr. Simmonds noted that Plaintiff's movements were “normal, ” she was “able to sit comfortably without shifting in the chair, ” she was “able to stand up from a sitting position and sit up from the supine position without difficulty, ” her range of motion was “within normal limits for the upper and lower extremities, ” her straight leg tests were negative bilaterally and her sciatic nerve stress test was also negative, her motor strength was “graded to be normal at 5/5, ” she did “not become unbalanced by bending or twisting, ” her Romberg's test was negative, and her gait and station was within normal limits. (Tr. 254-55.)

         Dr. Simmonds opined that Plaintiff can push, push, lift, and carry twenty pounds occasionally and ten pounds frequently, stand or walk for six hours per day, occasionally engage in “postural activities, i.e., bending, kneeling, stooping, crawling, and crouching, ” occasionally engage in “[a]gility, i.e., walking on uneven terrain, climbing ladders, or working at heights, ” and sit “without restrictions.” (Tr. 256.) Dr. Simmonds also found no restrictions in terms of Plaintiff's ability to hear, see, or use “both hands for performing fine and gross manipulation.” (Tr. 256.)

         On November 7, 2011, Dr. Nick Mansour (“Dr. Mansour”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 38-40.) Based on his review of the medical record, Dr. Mansour concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for about 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 ramps and stairs; and occasionally climb ladders, ropes, and scaffolds. Dr. Mansour added that Plaintiff does not suffer from any manipulative, visual, or communicative limitations, but she does need to avoid concentrated exposure to workplace hazards, such as machinery and heights (i.e., environmental limitations).

         On November 8, 2011, a magnetic resonance imaging (“MRI”) scan of Plaintiff's lumbar spine revealed the following: (1) “[n]o significant central or neural foraminal narrowing . . . at any level within the lumbar spine, ” (2) a “near Grade I anterolisthesis of L5 over SI, ” which “is most likely due to severe bilateral degenerative facet disease seen at this level, ”[4] (3) “posterior disc bulging at every level within the lumbar spine, ” (4) “[m]ultiple areas of degenerative facet disease, ” and (5) “moderate to severe loss of disc space height at ¶ 3-4 and moderate loss of disc space height as L4-5, as well as L5-S1, consistent with changes of degenerative disc disease.” (Tr. 257.)

         On February 22, 2012, a computer tomography (“CT”) scan of Plaintiff's cervical spine revealed the following: (1) “[n]o fracture, ” (2) “[m]inimal retrolisthesis of C5 on C6, ” and (3) “[b]iapical slightly nodular pleural parenchymal scarring [that] may be post-inflammatory.”[5] (Tr. 275.)

         Also on February 22, 2012, a CT scan of Plaintiff's orbital bones revealed, inter alia, “[a]cute fractures through the right orbital floor, nasal bones, and right anterior maxillary sinus wall, ” an “[e]quivocal acute buckled fracture deformity of the right lateral maxillary sinus wall, ” “[r]ight periorbital soft tissue swelling, ” and “[s]cattered paranasal sinus mucosal thickening.” (Tr. 276.) A CT scan of Plaintiff's head also revealed “[n]o acute intracranial abnormality.” (Tr. 277.) In addition, a radiograph of Plaintiff's chest revealed, inter alia, a “normal” cardiac silhouette, “[c]lear lungs, ” and “what appeared to be old right-sided upper rib fractures.” (Tr. 272, 278.)

         On September 11, 2012, Plaintiff visited Sarah Craft (“Craft”), a physician's assistant, complaining of worsening lower back pain. (Tr. 279.) Plaintiff described her pain as “excruciating constant [pain] shooting down [the] back of [her] legs to [her] knees[.]” (Tr. 279.) Craft noted that an MRI of Plaintiff's lumbar spine had revealed “facet disease [at] ¶ 5-S1 and at multiple levels, [and] severe [degenerative disc disease] at L3-L4, ” that Plaintiff reported “[n]o new numbness or weakness, ” that Plaintiff's pain “responds to medications, ” and that Plaintiff recently “ran out” of pain “medication because of visit compliance” issues at her doctor's office. (Tr. 273.)

         Plaintiff returned to Craft's office on September 18, 2012. Plaintiff informed Craft that she was “applying for disability” due to seizures, chronic lower back pain, chronic obstructive pulmonary disease (“COPD”), and Hepatitis C, and that she wanted a “letter stating her work abilities [and] explaining why she can't work.” (Tr. 296.) Craft noted that Plaintiff has “severe noncompliance” issues, that Plaintiff reported being examined by a neurologist regarding her alleged seizures (but that predated Plaintiff's treatment at Craft's medical office), and that Plaintiff reported undergoing a brain MRI with Craft's “office but [there was] no record.” (Tr. 296.)

         On June 18, 2013, an MRI of Plaintiff's lumbar spine revealed no “evidence of fracture” and “[m]oderate to advanced multilevel discogenic and facet degenerative disease[.]” (Tr. 395.) An MRI of Plaintiff's cervical spine revealed no fracture and “mild to moderate multilevel discogenic and facet degenerative disease, which is most notable [at] the C5-C6 and C6-C7 levels.” (Tr. 396.) In addition, an MRI of Plaintiff thoracic spine revealed no “evidence of fracture or soft tissue injury, ” and “[m]ild to moderate multilevel discogenic degenerative disease[.]” (Tr. 397.)

         On June 25, 2014, Plaintiff visited her primary care physician, Dr. Harold Budhram (“Dr. Budhram”). Plaintiff informed Dr. Budhram that she continued to suffer from lumbar pain that “radiates to [her] bilateral hips, ” that she injured her back while working as a janitor in 2003, and that she underwent two rounds of epidural steroid injections, which only “worked for 2 weeks.” (Tr. 409.) Plaintiff added that she “want[ed] to discuss starting [a prescription for] Oxycodone.” (Tr. 409.) Dr. Budhram agreed and started prescribing Oxycodone to treat Plaintiff's pain. (Tr. 411.)

         On August 12, 2014, an Administrative Law Judge (“ALJ”) posed a series of hypothetical questions to a Vocational Expert (“VE”) who testified at an administrative hearing. (Tr. 460-85.) First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform light work that involves occasionally climbing, crawling, crouching, stooping, or kneeling, no more “than occasional exposure to heights, moving machinery, or similar hazards, ” no more than occasional “walking on uneven terrain, ” no more than occasional interaction with co-workers and the general public, and “simple, repetitive, routine tasks.” (Tr. 483.) The VE testified that the hypothetical worker could be employed as a “[s]tuffer, ” motel cleaner, and “[m]arking [c]lerk.” (Tr. 483.) Responding to the remaining questions posed by the ALJ and Plaintiff's hearing representative, the VE testified that the hypothetical worker could not sustain gainful employment if she was “late to work” more than “two days per month . . . on an ongoing basis, ” had more than two “unexcused or unscheduled absences” per month “on an ongoing basis, ” was off task more than five percent of the time outside normal breaks, or needed unscheduled, twenty-minute breaks up to three times daily. (Tr. 484-85.)

         In a written decision issued on September 8, 2014, the ALJ applied the five-step process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), and found that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, ...


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