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Samantha B. v. Berryhill

United States District Court, D. Oregon

January 22, 2019

SAMANTHA B., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Samantha B. (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court recommends that the district judge reverse the Commissioner's decision and remand this case for an award of benefits.

         BACKGROUND

         Plaintiff was born in October 1969, making her forty-three years old on November 21, 2012, the alleged disability onset date. (Tr. 53, 691, 715.) Plaintiff has a high school education and past relevant work as a general inspector, hand packager, janitor, and machine operator. (Tr. 52-53, 678-79.) In her applications for benefits, Plaintiff alleges disability due to anxiety and thrombotic thrombocytopenic purpura (“TTP”).[2] (Tr. 691, 715.) Plaintiff also alleges disability due to fatigue, migraines, sleeping issues, and deficient memory and concentration. (Tr. 650-52.)

         On November 21, 2012, the alleged onset date, Plaintiff visited Dr. Jennifer Wilson (“Dr. Wilson”), complaining of abdominal pain, “bloody urine for the last 4 days, ” and “headaches over the last 2 weeks with almost daily to every other day migraines.” (Tr. 75; see also Tr. 993-94, noting the following day that Plaintiff reported experiencing migraines that “were initially every other day” and “bec[ame] more frequent with light and sound sensitivity and kaleidoscopic vision”). Based on an examination, imaging, and consultation with other doctors, Dr. Wilson suspected Plaintiff was suffering from TTP and, therefore, transferred Plaintiff via ambulance to Oregon Health and Science University (“OHSU”), to be treated by a specialist. (Tr. 77.)

         On November 26, 2012, Plaintiff was discharged from OHSU after undergoing five days of plasmapheresis therapy (a process that removes harmful antibodies from Plaintiff's plasma). (Tr. 983.)

         In December 2012, Plaintiff relapsed twice and was admitted for further rounds of plasma exchange. (Tr. 1200, 1424.)

         On October 15, 2013, Plaintiff visited Michelle Whitney (“Whitney”), a licensed clinical social worker, complaining of “high levels of stress and anxiety.” (Tr. 1921.) Whitney noted that Plaintiff and her husband did “not have a source of income”; Plaintiff was in the process of applying for Social Security benefits and her husband did “not have secure employment”; Plaintiff and her husband owed their daughter money and had their food stamps reduced; and Plaintiff was interested in pursuing outpatient mental health counseling, but her options were limited due to her financial means. (Tr. 1921.) Whitney stated that Plaintiff's “stress/anxiety are situational in nature and related to her current psychosocial concerns, specifically her finances.” (Tr. 1921.)

         On November 8, 2013, Plaintiff presented for a follow-up visit with her primary care physician, Dr. Kathleen Drago (“Dr. Drago”). Dr. Drago noted that Plaintiff complained of ongoing family and financial stressors (i.e., Plaintiff's stepdaughter was living in foster care and Plaintiff and her husband had to sell “their car recently to have money to pay their rent”), migraines multiple times a week that were “usually aborted with sumatriptan or Phenergan, ” “panic attacks multiple times weekly that abate with PRN hydroxyzine use, ” and “feeling quite fatigued, though [she] was able to walk 5 miles this last weekend while they did not have a car.” (Tr. 1917.) Dr. Drago also noted that Plaintiff had “been quite reluctant to try a preventative medication” for her chronic migraines, but she was now open to being prescribed amitriptyline. (Tr. 1919.)

         On January 4, 2014, Dr. Drago noted that Plaintiff's headaches were “better controlled on 20 mg of amitriptyline at night, ” Plaintiff noticed “recurrence of mild daily headaches in the later hours with prolonged sleep latency, ” Plaintiff was “[d]oing better on maintenance amitriptyline but [was] still not headache free, ” and she increased Plaintiff's dosage of amitriptyline. (Tr. 1913-16.)

         On February 11, 2014, Dr. Joshua Boyd (“Dr. Boyd”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 696-97.) Dr. Boyd reviewed the record and found that Plaintiff's mental impairments failed to meet or equal listing 12.04 (affective disorders).

         On February 12, 2014, Dr. Neal Berner (“Dr. Berner”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 697-99.) Based on his review of the record, Dr. Berner determined that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for up to six hours in an eight-hour workday; push and pull in accordance with her lifting and carrying restrictions; and occasionally reach or lift with the left upper extremity despite chronic shoulder difficulty. Dr. Berner also determined that Plaintiff does not suffer from postural, visual, communicative, or environmental limitations.

         On May 22, 2014, Plaintiff presented for a follow-up visit with Dr. Drago. Plaintiff reported struggling with ongoing family and financial stressors, and complained of frequent headaches “requiring frequent use of sumatriptan and promethazine.” (Tr. 1998.) Dr. Drago noted that Plaintiff's “significant psychosocial stressors . . . have caused her anxiety and depression to worsen, ” Plaintiff understood that “medications may help her deal with these stressors but won't fix the underlying issues, ” and she encouraged Plaintiff to find time to relax. (Tr. 2000.)

         On June 20, 2014, Dr. Drago noted that Plaintiff was “still struggling with quite severe symptoms” of “[m]ixed anxiety/depression, ” that Plaintiff's headaches have “a very strong relationship to events in her life and stressors, ” and that “counseling would be ideal for [Plaintiff] but [mental health counseling is] not readily available given her tenuous financial situation.” (Tr. 2088.)

         On August 6, 2014, Dr. Martin Kehrli (“Dr. Kehrli”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 723-24.) Dr. Kehrli agreed with Dr. Berner's initial findings in all respects, except for the following: Dr. Kehrli found that Plaintiff can occasionally reach or lift overhead with the right (not the left) upper extremity.

         On August 11, 2014, Dr. Dorothy Anderson (“Dr. Anderson”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 721-22.) Dr. Anderson agreed that Plaintiff's mental impairments failed to meet or equal listing 12.04 (affective disorders).

         In a medical source statement dated September 15, 2014, Dr. Drago stated that Plaintiff has been diagnosed with, inter alia, “generalized anxiety disorder with panic” and “chronic daily headache/transformed migraine.”[3] (Tr. 2021.) Dr. Drago opined that: (1) Plaintiff “typically needs” to rest fifteen to twenty minutes “per hour on average”; (2) Plaintiff “often needs to rest/take medication at intervals more frequent than” the time provided by customary break periods, thus impairing Plaintiff's ability to stand and/or walk up to two hours in an eight-hour workday; (3) Plaintiff has “no issues with standing” and can walk between a quarter to half a mile on a continuous basis; (4) Plaintiff has no issues with sitting up to six hours in an eight-hour workday, but her focus and concentration “will [still] be affected” by her impairments; (5) Plaintiff would not be able to stay on task consistently for “greater than 20 percent of a workday or workweek” due to her anxiety, panic, and headaches, which “impair [her] ability to focus” and “significantly impair[] [her] concentration”; (6) for more than “10 percent of a workday or workweek, ” Plaintiff would not be able to “[p]erform activities within a schedule and maintain acceptable attendance and punctuality”; and (7) Plaintiff would not be able to perform simple, repetitive, and routine tasks “up to 10 percent of a workday or workweek.” (Tr. 2022-24.) Dr. Drago added that Plaintiff's limitations have been in effect since November 2012, Plaintiff is “very credible, ” and Plaintiff “wants to be able to work but understands her limitations.” (Tr. 2026.)

         On February 18, 2015, Dr. Wilson noted that Plaintiff's “headaches started with TTP, ” which was “under control” at the time, but she continued to have “headaches 3-4 days per week.” (Tr. 2324.)

         In a treatment note dated May 15, 2015, Dr. Wilson noted that Plaintiff reported experiencing two to three headaches “per week instead of every day, ” Plaintiff was under “a lot of stress at home” due to financial issues, she had referred Plaintiff “to neurology to help with [headache] control and diagnosis, ” Plaintiff still needed to call neurology to make an appointment, and Plaintiff is “much more sedentary than a few years ago due to a combination of factors, ” including the fact that she “gets tired easy” and suffers from headaches and depression. (Tr. 2370-74.)

         On January 8, 2016, Oregon Disability Determination Services (“ODDS”) referred Plaintiff to Dr. Sergiy Barsukov (“Dr. Barsukov”), a clinical psychologist, for a psychodiagnostic interview. (Tr. 2027-36.) Dr. Barsukov administered a “[p]sychodiagnostic interview and mental status exam, ” and he reviewed medical records from 2014 that were provided by ODDS. (Tr. 2027.) Dr. Barsukov's primary diagnosis was an “[a]djustment disorder with mixed anxiety and depressed mood” that is “chronic in nature.” (Tr. 2033-34.) Dr. Barsukov noted that Plaintiff “earned 26 out of 30” on her mental status exam, placing her “in the normal range.” (Tr. 2033.) Dr. Barsukov added that Plaintiff “showed no evidence of problems with attention”; was able to “name all months of the year backwards beginning from December, ” “do 4 out of 5 trials correctly of serial 7's, ” and “engage in appropriate social interactions”; and is “capable of understanding and remembering instructions at a level comparable to other people her age.” (Tr. 2034.)

         In a medical source statement dated January 13, 2016, Dr. Barsukov evaluated Plaintiff's ability to perform work-related activities. (Tr. 2037-39.) Dr. Barsukov opined that Plaintiff's impairments do not affect her ability to understand, remember, and carry out instructions, or her ability to interact appropriately with supervisors, co-workers, and the public. Dr. Barsukov, however, noted that Plaintiff's “abilities may become impaired when her level of stress is increased or if her symptoms increase in severity.” (Tr. 2037-38.) Dr. Barsukov added that Plaintiff reported that “she feels easily fatigued and weak, ” which “may be related to her TTP”; a specialist “may be in a better position to explain the effects” of TTP; Plaintiff reported difficulties concentrating; and concentration issues were “not overtly seen during the interview, ” but Plaintiff did only recall “1 out of 3 unrelated objects” during her mental status exam. (Tr. 2038.)

         On April 26, 2016, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 645-90.) Plaintiff testified that the “things [that] bother[] [her] the most” are her “[l]ack of memory and lack of concentration, ” and that she also suffers from frequent migraines that give her “kaleidoscope vision, ” fatigue, and difficulty sleeping. (Tr. 650-52.) Plaintiff also testified that she drives only short distances (i.e., less than a mile) due to her headaches and anxiety; she “cannot stay on a set schedule because of headaches” and her inability to concentrate; her headaches cause “visual issues to where it makes [her] unable to see” and sensitivity to sound and light; her headache medication helps “[t]o a very small extent”; stress and anxiety “cause[] the migraines”; she is “unable to do anything” at least once per hour because she will “have anxiety or [a] panic attack” or her “headache comes on without any warning”; her husband and daughter assist Plaintiff with household chores; she can lift and carry no more than fifteen pounds due to issues with her right shoulder; she cannot stand and walk six hours in an eight-hour workday because her headaches make her nauseous; and she cannot sit for six hours in an eight-hour workday because she has “never been a person to sit, ever.” (Tr. 664-75.)

         Dr. Wil Nelp (“Dr. Nelp”), a medical expert board-certified in internal and nuclear medicine, also appeared and testified at the hearing before the ALJ. (Tr. 649.) Based on his review of Plaintiff's medical records, Dr. Nelp determined that Plaintiff can lift twenty pounds occasionally and ten pounds frequently; can sit, stand, and walk for up to six hours in an eight-hour workday; can engage in no more than occasional reaching “in all directions, mostly overhead and laterally, ” with her right upper extremity; can never climb ropes and ladders; can occasionally crawl, kneel, and climb ramps and stairs; needs to “avoid all heights and hazards”; and needs to avoid “concentrated exposure[] [to] the rest of the environmental issues.” (Tr. 652-57.)

         When asked about Dr. Drago's opinion that Plaintiff needs to “rest for 15 to 20 minutes each hour, ” Dr. Nelp testified that Dr. Drago's opinion is “probably inconsistent” with Dr. Nelp's review of the medical records. (Tr. 657.) In support of his opinion, Dr. Nelp noted that “[t]o rest for 20 minutes an hour means basically you're bedridden, which [Plaintiff] is not”; Dr. Drago indicated that Plaintiff “can walk a half a mile” and is “physically quite active”; Dr. Drago opined that Plaintiff can sit for up to six hours in an eight-hour workday; and “when you're sitting in a workplace, you're basically resting.” (Tr. 657-58.) Dr. Nelp also testified that Plaintiff's “off and on” headaches are “reasonably responsive to medication, according to the medical records”; Plaintiff's headaches “do not impair her physical capabilities, ” but they do “impair her concentration” and “sometimes her vision”; Dr. Barsukov's examination indicates that Plaintiff “has full activities of daily living despite” the “effects of her anxiety [and] panic disorders”; and “psychiatric issue[s]” are admittedly “not in [his] domain, ” but he did not “see any objective data” in the record that would support Dr. Drago's opinion that Plaintiff would not be able to stay on task consistently for greater than twenty percent of a workday or workweek. (Tr. 658-61.)

         The ALJ posed several 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 could perform light work that (1) involves no more than occasional crawling, kneeling, climbing of ramps and stairs, and reaching with the right, dominant upper extremity; and (2) does not involve climbing ladders, ropes, or scaffolds or exposure to hazards (e.g., machinery and unprotected heights), extreme temperatures, excessive wetness or humidity, vibration, excessive noise, or pulmonary irritants. The VE testified that the hypothetical worker could not perform Plaintiff's past relevant work, but she could perform the jobs of “bakery worker, conveyor line”; “investigator, dealer account”; and “laminator grader.” (Tr. 680.)

         Responding to the ALJ's follow-up questions, the VE confirmed that the hypothetical worker could not perform sedentary jobs, which require frequent use of the hands bilaterally; the jobs identified above “don't allow for changing sitting and standing”; there are no other jobs available in the national economy that would allow the hypothetical worker described above to “change positions between sitting and standing with some discretion beyond the standard break”; the jobs identified above involve performing tasks that are considered simple and routine; and a hypothetical worker could sustain gainful employment if she was off-task no more ten to fifteen percent of the workday, but not if she was “unexpectedly absent” more than once a month. (Tr. 680-82.)

         Plaintiff's attorney also posed questions to the VE. Responding to those questions, the VE testified that the hypothetical worker could not perform the job of “investigator, dealer account” if she was limited to “remembering, understanding, and following no more than three-step commands”; could not perform the jobs identified above if she was off-task twenty percent of the workday or “off task an extra ten minutes an hour” due to migraine-related “near acuity unpredictability” (Plaintiff testified she experiences “a kaleidoscope scene from . . . migraine headache[s]”); and could not perform the jobs of ...


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