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Welsh v. Colvin

United States District Court, D. Nebraska

December 18, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


RICHARD G. KOPF, Senior District Judge.

In this social security appeal, plaintiff Jody Dell Welsh ("Welsh") argues that the Commissioner of Social Security committed reversible error in determining that she is not entitled to disability insurance and supplemental security income benefits. For the reasons discussed below, the Commissioner's decision is affirmed.


On October 11, 2010, Welsh filed applications for disability insurance and supplemental security income benefits. (Tr. 9.) In her applications, Welsh alleged that she has been disabled since June 1, 2003. ( Id. ) Welsh's claims were denied initially and on reconsideration. ( Id. ) On August 6, 2012, an administrative law judge ("ALJ") issued a decision finding that Welsh was not disabled under sections 216(i) and 223(d) of the Social Security Act. (Tr. 9-24.) In his decision, the ALJ followed the five-step sequential analysis prescribed by the Social Security Regulations to evaluate Welsh's claims.[1] See 20 C.F.R. ยงยง 404.1520, 416.920. The ALJ found as follows:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2015.
2. The claimant has not engaged in substantial gainful activity since October 20, 2005, the day after the prior Administrative Law Judge decision (20 CFR 404.1571 et seq. and 416.971 et seq. ).
3. The claimant has the following severe impairments: obesity, degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar spine, an affective disorder and an anxiety disorder (20 CFR 202.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), in that she can lift and carry twenty pounds occasionally and ten pounds frequently. The claimant can stand or walk for six hours in an eight-hour day and sit for six hours in an eight-hour day. She may occasionally climb stairs, but she is unable to climb ropes, scaffolds or ladders. Additionally, the claimant remains able to occasionally balance, stoop, crouch, kneel and crawl. However, she must avoid prolonged exposure to vibrating machinery and avoid all exposure to unprotected heights and hazardous machinery. Mentally, the claimant would be limited to simple tasks and jobs that do not demand attention to detail or complicated job tasks or instructions. Additionally, the claimant can work in proximity to others, but she would require work that does not involve close cooperation and interaction with co-workers in that the claimant would work best in relative isolation. She is limited to occasional interaction and cooperation with the general public. The undersigned finds that the claimant is able to maintain attention and concentration for a minimum of two-hour periods, accept supervision on a basic level and adapt to changes in the workplace on a basic level.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on May 21, 1960[, ] and was 45 years old, which is defined as a younger individual age 18-49, on October 20, 2005, the day after the prior Administrative Law Judge decision. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under disability, as defined by the Social Security Act, from October 20, 2005, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 1-24.) After the ALJ issued his decision, Welsh filed a request for a review with the Appeals Council of the Social Security Administration. (Tr. 6.) On September 28, 2013, the Appeals Council denied Welsh's request for review. (Tr. 1-4) Thus, the ALJ's decision stands as the final decision of the Commissioner of Social Security.


A denial of benefits by the Commissioner is reviewed to determine whether the denial is supported by substantial evidence on the record as a whole. Hogan v. Apfel, 239 F.3d 958, 960 (8th Cir. 2001). "Substantial evidence" is less than a preponderance, but enough that a reasonable mind would find it adequate to support the Commissioner's conclusion. Id. at 960-61; Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). Evidence that both supports and detracts from the Commissioner's decision must be considered, but the decision may not be reversed merely because substantial evidence supports a contrary outcome. See Moad v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001).

This court must also review the decision of the Commissioner to decide whether the proper legal standard was applied in reaching the result. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). Issues of law are reviewed de novo. Olson v. Apfel, 170 F.3d 820, 822 (8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351 n.2 (8th Cir. 1995).


A. Relevant Medical History and Opinions

Welsh's impairments are "bipolar 2, " depression, anxiety, chronic back pain, a sleep disorder, and arthritis in her right elbow and knee. (Tr. 213, 247.) As of October 20, 2005, Welsh was 45, had a general equivalency diploma, and past relevant work experience as a telephone solicitor, cleaner, cook helper, and childcare center worker. (Tr. 21, 141, 148, 214, 259, 262-63.) Medical records from before October 2005, through June 14, 2010, show that Welsh either visited or contacted Cleve Hartman, M.D. ("Hartman"), with complaints of back and neck pain. (Tr. 316-40.) During this time, Hartman made objective examination findings and regularly renewed Welsh's prescription for Hydrocodone. (Tr. 316-40.) Welsh also attended five sessions of physical therapy from February 24, 2005, through March 24, 2005. (Tr. 476.) Although she had mild hypertonicity across the brachium and pain in her neck and upper back associated with cranial rotation, Welsh could maintain a neutral C2 position and neutral pelvic position, and she could flatten her back without initiating paraspinal muscle spasms. (Tr. 460, 476.)

On August 23, 2005, Dr. Tamara R. Johnson ("Johnson"), examined Welsh for complaints of depression. (Tr. 370-71.) Johnson noted that she had not seen Welsh since August 2003, at which time Welsh stopped treating with her because Welsh felt that she did not need antidepressant medication anymore. (Tr. 370.) Johnson noted that Welsh was taking Cymbalta, which had been prescribed by Hartman and was helping her depression and back pain. ( Id. ) Johnson further noted that Welsh was a recovering addict and that she needed to be mindful of not using medications that are addictive. ( Id. ) Welsh was cooperative, thoughtful, pleasant, and smiling, her grooming was appropriate, and her mental status was within normal limits. ( Id. ) Johnson diagnosed depression and anxiety. ( Id. ) She prescribed Buspar because she did not want to prescribe anything addictive. (Tr. 371.) Overall, Johnson found Welsh to be "pretty stable." ( Id. )

On September 12, 2005, less than a month after being prescribed Buspar, Welsh's therapist, Teresa Rudnick, M.A. ("Rudnick"), wrote that Plaintiff had stopped taking Buspar because it was making her feel nauseated and like she "couldn't think." (Tr. 427.) Instead, Welsh stated that she was practicing deep breathing and meditation, and that she felt like she was ready for discharge from counseling. ( Id. )

On November 23, 2005, Tim J. Watt, M.D. ("Watt"), examined Welsh for complaints of neck and back pain. (Tr. 298-303.) Welsh stated that her pain had started in February 2000 following a motor vehicle accident or a work-related accident, but that she had not lost any sleep or missed any work as a result. (Tr. 298-99.) Welsh also indicated that physical therapy was aggravating, so she stopped, and that chiropractic therapy, although helpful for her back, was aggravating for her neck. ( Id. ) Watt's examination revealed that Welsh was oriented, well-developed, and well-nourished. (Tr. 300-02.) She had no acute distress, her memory was intact, concentration was normal, speech was fluent, language was appropriate, and she had full range of motion in her extremities without pain, tenderness, or crepitation. ( Id. ) She also had full range of motion in her back with essentially normal sensation, and no tenderness in the cervical, lumbar, or thoracic spine. (Tr. 301.) Plaintiff could ambulate on her heels and toes normally. (Tr. 302.) Magnetic resonance imaging ("MRI") showed some mild disc bulging in the lumbar spine and very mild degenerative changes at C5-6 and C6-7, but no nerve root impingement. (Tr. 302, 305-07, 498-99.) Watt diagnosed mechanical back and neck pain and recommended physical therapy and an epidural injection. (Tr. 298, 303).

That same day, Welsh visited Johnson for a follow-up. (Tr. 369.) During the appointment, Welsh indicated that although she had just started taking Cymbalta, she had decided to quit because it made her feel "real tired and sedated." ( Id. ) Johnson noted that Welsh was calm and cheerful, her affect was good, her thinking was clear and linear, and she did not show any manic signs. ( Id. ) Johnson diagnosed depression and possible bipolar anxiety. ( Id. ) Johnson prescribed Risperdal, noted that Welsh was taking Lunesta and Zetia, and wrote that Welsh could not be prescribed traditional Benzodiazepines because she had an addiction problem. ( Id. )

On December 22, 2005, Welsh followed up with Johnson and reported that the Risperdal made her feel drunk and that Lunesta was causing a bad taste in her mouth. (Tr. 368.) Johnson switched Welsh's medication to Lamictal and Ambien. ( Id. )

On January 19, 2006, Welsh followed up with Watt, reporting that her back pain was "pretty much resolved, " but that her neck was still bothering her. (Tr. 297.) Welsh reported that she had not participated in physical therapy nor taken an epdidural since Watt had last seen her. ( Id. ) Watt's exam was "unchanged"; he again recommended physical therapy and encouraged Welsh to get the epidural. ( Id. ) That same day Welsh underwent an MRI of her cervical spine which revealed degenerative disc disease from C4 through C6 with very minimal two-millimeter spondylolisthesis at C4-5 resolved on extension. (Tr. 304, 497.)

On February 1, 2006, Welsh contacted Johnson and said that she could not tolerate Lamictal because it made her manic and angry. (Tr. 367.) Johnson decided to try Eskalith instead, but warned Welsh about weight gain as a side effect. ( Id. )

On March 23, 2006, Welsh followed up with Johnson and told her that she never started Eskalith because someone told her it would make her teeth rot and cause brain damage. (Tr. 366.) However, after Johnson reviewed the possible side effects of Eskalith with Welsh, she agreed to try it. ( Id. )

On June 20, 2006, Plaintiff followed up with Johnson and stated that she stopped taking Eskalith after about five weeks because it made her feel more irritable and edgy. (Tr. 365.) ...

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