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Arriola v. Colvin

United States District Court, D. Nebraska

May 22, 2014

VIKKI L. ARRIOLA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


LAURIE SMITH CAMP, Chief District Judge.

Vikki L. Arriola filed a complaint on April 9, 2013, against Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration. (ECF No. 1.) Arriola seeks a review of the Commissioner's decision to deny her application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., and for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. The defendant has responded to Arriola's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 10, 11). In addition, pursuant to the order of Senior Judge Warren K. Urbom, dated July 9, 2013, (ECF No. 18), each of the parties has submitted briefs in support of her position. (See generally Pl.'s Br., ECF No. 19; Def.'s Br., ECF No. 27). After carefully reviewing these materials, the court finds that the Commissioner's decision must be affirmed.


Arriola, who was born on January 15, 1971, (Tr. 44) filed an application for disability benefits under Title II and supplemental security income benefits under Title XVI on May 17, 2010. (Tr. 100-05). Her claim was denied initially on August 10, 2010, and on reconsideration on January 27, 2011. (Tr. 49, 55). Arriola requested a hearing before an administrative law judge (ALJ) (tr. 63), and the hearing was held on October 20, 2011. (Tr. 23-42). In a decision dated March 30, 2012, the ALJ found that Arriola was not disabled. (Tr. 15).

An ALJ is required to follow a five-step sequential analysis to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(a). The ALJ must continue the analysis until the claimant is found to be "not disabled" at steps one, two, four or five, or is found to be "disabled" at step three or step five. See id. Step one requires the ALJ to determine whether the claimant is currently engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i), (b). The ALJ found that Arriola had not been engaged in substantial gainful activity since April 7, 2009, the alleged onset date of disability. (Tr. 11).

Step two requires the ALJ to determine whether the claimant has a "severe impairment." 20 C.F.R. § 404.1520(c). A "severe impairment" is an impairment or combination of impairments that significantly limits the claimant's ability to do "basic work activities" and satisfies the "duration requirement." See 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), 404.1509 ("Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months."). Basic work activities include "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling"; "[c]apacities for seeing, hearing, and speaking"; "[u]nderstanding, carrying out, and remembering simple instructions"; "[u]se of judgment"; "[r]esponding appropriately to supervision, co-workers and usual work situations"; and "[d]ealing with changes in a routine work setting." 20 C.F.R. § 404.1521(b). If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii), (c). The ALJ found that Arriola had the following severe impairments: diffuse myalgias; borderline intellectual functioning; and bipolar disorder. (Tr. 11).

Step three requires the ALJ to compare the claimant's impairment or impairments to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); see also 20 C.F.R. Part 404, Subpart P, App'x 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). If the claimant has an impairment "that meets or equals one of [the] listings, " the analysis ends and the claimant is found to be "disabled." See 20 C.F.R. § 404.1520(a)(4)(iii), (d). If a claimant does not suffer from a listed impairment or its equivalent, then the analysis proceeds to steps four and five. See 20 C.F.R. § 404.1520(a). The ALJ found that Arriola did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments.

Step four requires the ALJ to consider the claimant's residual functional capacity (RFC)[1] to determine whether the impairment or impairments prevent the claimant from engaging in "past relevant work." See 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(iv), (f). The ALJ found that Arriola was capable of performing past relevant work as a cashier, work which did not require the performance of work-related activities precluded by Arriola's RFC. (Tr. 15).

At step five, the ALJ must determine whether the claimant is able to do any other work considering her RFC, age, education, and work experience. If the claimant is able to do other work, she is not disabled. The ALJ determined that Arriola had the RFC to perform light work as defined in 20 C.F.R. §§ 404. 1567(b) and 416.967(b) except she is limited to work involving simple to intermediate level instructions and involving only superficial contact with the public. (Tr. 12).

The ALJ found that Arriola had not been under a disability from April 7, 2009, through the date of the decision. (Tr. 15). The Appeals Council of the Social Security Administration denied Arriola's request for review on February 16, 2013. (Tr. 1-5.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Arriola seeks judicial review.


A. Medical Evidence

In her application for disability benefits, Arriola stated that she had bipolar disorder, was manic, had fibromyalgia, and had anger issues. (Tr. 148). She has submitted medical evidence of both physical and mental health issues, and the ALJ determined that she had both physical and mental health impairments, which were intertwined because of Arriola's history of drug abuse and overuse.[2]

Arriola was treated for mental health concerns by Tamara R. Johnson, M.D. Shortly before the alleged onset date, on February 10, 2009, Arriola went to Dr. Johnson for a medication checkup. Dr. Johnson stated that Arriola had been overusing Ultram, a pain medication, for dental problems. Dr. Johnson advised Arriola to stagger Ultram with ibuprofen. Arriola was cheerful and her mood was good. Dr. Johnson adjusted Arriola's other medications. (Tr. 244).

Arriola had teeth pulled and went to a clinic for pain medication on March 25, 2009. The clinic refused to give her any pain medications because she had multiple prescriptions for different narcotics from different providers. (Tr. 557).

Arriola worked as a cashier at Wal-Mart for more than 10 years, but she reported to Dr. Johnson on May 7, 2009, that she was fired for minor infractions. She said she was receiving unemployment benefits, and she had started work as a hotel housekeeper. (Tr. 243). Dr. Johnson reported that Arriola was handling the stress, was sleeping well, and was not depressed. Arriola said she was taking all medications as prescribed. (Tr. 243).

On July 2, 2009, when Arriola broke a tooth which was infected, the clinic gave her an antibiotic to prevent infection and Tylenol with codeine, but she was told she could not get more of the pain medication. (Tr. 555). On July 15, 2009, Arriola was struggling because she could not find work and had financial worries. (Tr. 242). Dr. Johnson did not observe any mania, psychosis, or suicidal thoughts. She prescribed Lexapro. (Tr. 242). Arriola again sought help for mouth pain on July 27, 2009, and was given Vicodin, but the doctor noted that she had been in eight times since January seeking pain medication. (Tr. 554).

On August 3, 2009, Arriola went to the clinic for a medication check and was told she was taking too much medication. (Tr. 553). She had taken more than 2200 pills of tramadol in the first seven months of the year. The same day, she went to a clinic for an injury to her right wrist. She said she had multiple pain medications at home, but had not taken any. She was diagnosed as having a contusion and advised to use ice and rest for 48 hours. (Tr. 552).

Dr. Johnson noted on August 6, 2009, that Arriola was doing much better since taking Lexapro. (Tr. 241). There had been no side effects, and Arriola was pleased with her emotional state. She was calm and focused and back to her usual optimistic self. (Tr. 241).

On August 27, 2009, Arriola went to the emergency room for a first degree burn to her right foot. (Tr. 255-56). Although she limped, the clinician noted that her gait was normal. She was discharged with directions on taking care of the injury. (Tr. 256).

Arriola reported that she was highly stressed on November 25, 2009, because her boyfriend's father was living in her house and the situation was deteriorating. (Tr. 239). Arriola wanted a medication to fix her problems, but Dr. Johnson told her she needed counseling, and Arriola agreed. Dr. Johnson had learned that Arriola was filling prescriptions for pain medication at different pharmacies. Arriola admitted that she had gotten prescriptions from a dentist, but she said she was no longer taking the narcotics. Dr. Johnson confirmed that Arriola had not filled the prescriptions for more than one month. Dr. Johnson noted that Arriola was not as hysterical as she had been earlier in the month and there were no signs of mood instability. (Tr. 239).

On February 18, 2010, Arriola reported to Dr. Johnson that the increase in Lexapro had helped and she was less anxious. (Tr. 238). Her depression was better, but she continued to have dental pain. She was scheduled to receive dentures in one month. Dr. Johnson determined that Arriola had not filled a prescription for pain medications recently, so Dr. Johnson prescribed a one-month supply of hydrocodone. (Tr. 238).

On March 26, 2010, Arriola reported to Natalie A. Waskowiak, P.A., that she had fibromyalgia and pain throughout her body. (Tr. 269). Arriola's posture, gait, sensation, and strength were all normal. She was prescribed Lyrica and told to decrease her tramadol use, which was more than the maximum recommended dosage. (Tr. 271).

Arriola presented to Julie A. Johng, A.P.R.N., on April 15, 2010, after she slipped on some steps and developed back pain. (Tr. 267). Arriola was diagnosed with thoracic or lumbosacral neuritis or radiculitis, unspecified. Because Arriola was unemployed and had no insurance, she did not want to start physical therapy. She was given oxycodone and Soma for severe pain and spasms. (Tr. 268). She returned four days later and reported that the oxycodone had caused her to vomit. She was given a trial of Vicodin and told to use moist heat on her lower back. (Tr. 265).

Arriola went to the emergency room on April 22, 2010, and was admitted for abdominal pain. (Tr. 248). Tests were negative for appendicitis, but showed moderate constipation. (Tr. 248, 254). It was noted that she had extreme anxiety and threw her food tray and a couple of bottles of magnesium citrate at the nurses. She was given Ativan for anxiety and responded well. It was recommended that she follow up with Dr. Johnson for uncontrolled anxiety and bipolar disorder. (Tr. 248).

Arriola went to Dr. Johnson for medication management on April 30, 2010. (Tr. 236). Arriola presented as histrionic and dramatic and explained that her boyfriend of 13 years did not understand bipolar symptoms and thought she was drinking alcohol again. Arriola reported that she had applied for a job but was not hired because she had a positive pre-employment drug scan, but she denied using drugs or alcohol. Arriola said she was depressed and felt manic all the time. She said she stopped taking Lexapro on Dr. Johnson's advice, but Dr. Johnson had no record of that recommendation. Arriola had not sought counseling, which Dr. Johnson had recommended a number of times. By the end of the appointment, Arriola was calm. Dr. Johnson's impression was a history of bipolar disorder, social environmental stress, and a history of alcohol abuse. (Tr. 236). After Arriola left the appointment, Dr. Johnson contacted the pharmacy and found that Arriola had filled a prescription for 1200 tablets of Ultram since January 12, which was a 150-day supply. (Tr. 237). Dr. Johnson had prescribed a 30-day supply, but Arriola began paying cash to bypass the patient assistance program. Dr. Johnson learned that Arriola had gotten prescriptions from three or four different doctors for Vicodin, Vicoprofen, Darvocet, Percocet, and hydrocodone. When Dr. Johnson could not reach Arriola, Dr. Johnson planned an intervention at her next appointment. Dr. Johnson noted that Arriola's abuse of narcotic drugs was probably making her mood unstable and she was demonstrating classic addictive behavior. (Tr. 237).

Arriola again saw Waskowiak on May 3, 2010, for back pain. (Tr. 261). Arriola was told to consider physical therapy and to limit her Vicodin use. (Tr. 263). A lumbar spine x-ray showed that Arriola's alignment was within satisfactory limits. There was mild narrowing at L5-S1 which was stable. (Tr. 247).

Dr. Johnson asked Arriola to come in on May 25, 2010, to confront her about her narcotic abuse. (Tr. 284). Dr. Johnson noted that Arriola's appearance was the opposite of what it had been on April 30, 2010. She was calm, focused, nicely groomed and dressed, looked bright-eyed, and her speech was not slurred. Arriola reported that she was emotionally abused by her boyfriend, who was her only source of support. Arriola said she felt less manic and depressed and was able to focus. (Tr. 284). Arriola accepted Dr. Johnson's intervention and admitted that she may have abused medications for fear of being in pain. (Tr. 285). Arriola agreed to see only one clinic and to inform them about her past narcotic and alcohol abuse. She understood that the pharmacies were ...

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