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Wright v. Colvin

United States District Court, D. Nebraska

March 9, 2015

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


JOSEPH F. BATAILLON, Senior District Judge.

This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("SSA"). Filing No. 1. Annette M. Wright appeals the final determination denying her application for Social Security benefits under Title II and Title XVI of the Social Security Act., 42 U.S.C. § 401 et seq. and 42 U.S.C. § 1381 et seq., respectively. This court has jurisdiction under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). Upon review of the record, this court concludes that the decision of the Administrative Law Judge ("ALJ") denying benefits is not supported by substantial evidence. Accordingly, the decision of the ALJ, and thereby the Commissioner, is reversed.


Plaintiff alleges a disability dating from April 29, 2011, and her severe impairments as found by the ALJ include "fibromyalgia, obesity, arthritis, depression, personality disorder, and anxiety" (Tr. 9, at page 19, Finding 3).[1] Plaintiff's mental impairments include Bipolar Disorder and General Anxiety Disorder (Tr. 316, 318, 322, 363, 394, 398, 410, 415 and 420). Her feelings of anxiety increase when she attempts to leave the house and she has panic attacks with groups of people (Tr. 319). These issues would call into question the ability to interact with the general public on even an occasional basis as found by the ALJ (Tr. 22).

Plaintiff applied for benefits on May 31, 2011 (Tr. 166, 168). She was 42 years old on the alleged disability onset date and has a high school education. Her past relevant work is unskilled. She is considered obese, weighing 286 pounds and is five feet seven inches tall. Her applications were denied initially and again on reconsideration, and she appealed the denial to an ALJ (Tr. 74-75, 77-78, 80, 91, 96, 102). After holding an administrative hearing on December 12, 2012 (Tr. 35-72, Transcript of Hearing), the ALJ issued an unfavorable decision on December 20, 2012 (Tr. 17-29). After careful consideration of the entire record, the ALJ found that Plaintiff had the severe impairments of fibromyalgia, obesity, arthritis, depression, personality disorder, and anxiety (Tr. 19). The ALJ found Plaintiff's impairments did not satisfy any Appendix 1 Listing of Impairments (Tr. 20). The ALJ determined that Plaintiff nevertheless retained the Residual Functional Capacity (RFC) to perform a reduced range of light work (Tr. 22). After consulting a VE, the ALJ concluded that Plaintiff's impairments would not prevent her from performing her past work as an office helper (Tr. 27), and, alternatively, other work that exists in significant numbers in the national economy, including work as a photocopy machine operator, mail clerk, and small products assembler (Tr. 28). Consequently, the ALJ found that Plaintiff was not disabled (Tr. 29).

The Appeals Council denied Plaintiff's request for review of the ALJ's decision on December 2, 2013 (Tr. 1-6). The ALJ's decision is therefore a "final decision" subject to judicial review under 42 U.S.C. § 405(g). Plaintiff filed her Complaint for judicial review in this Court on January 23, 2014.

Plaintiff was 44 years old at the time of the ALJ's decision. She previously worked as a nurse's assistant and a secretary office helper. Plaintiff saw Kathryn Hajj, M.D., on November 11, 2010 (Tr. 331). She reported joint stiffness and myalgias (fibromyalgia), and anxiety and depression (Tr. 330-32). She saw Joan Stahly Rouse, a licensed counselor, with various situational complaints concerning her condition, having facial hair growth, and her financial situation (Tr. 338). Ms. Rouse assigned plaintiff a Global Assessment of Functioning (GAF) score of 60-65. (Tr. 338). Dr. Hajj referred Plaintiff to Walter Duffy, M.D., and his physician assistant, D. Sue Shade, performed the mental status examination on May 24, 2011 (Tr. 318-23).

The agency sent plaintiff's records to Lee Branham, Ph.D, a State agency doctor, who completed a mental RFC checklist form on July 22, 2011 (Tr. 340-42). Dr. Branham used the checklist form to formulate his mental RFC opinion (Tr. 340-42). Plaintiff attended a consultative physical examination with Ruilin Wang, M.D. on August 4, 2011 (Tr. 360). Jerry Reed, M.D., a State agency doctor, opined on August 9, 2011, that despite her fibromyalgia pain, the medical records showed Plaintiff could perform light and sedentary work. Plaintiff underwent psychological testing with Stanley Carlock, Ed.D., on August 16, 2011 (Tr. 401). The results of the Neurobehavioral Cognitive Status Examination (Cognistat) were all within the average range, indicating that Plaintiff did not have a cognitive disorder (Tr. 401). The results of the Millon Clinical Multiaxial Inventory - Third Edition (MCMI-III) indicated depression and anxiety and personality disorders, but there were no indications of a bipolar type mood disorder (Tr. 401-02, 404-09). Plaintiff went to the Arthritis Center of Nebraska on September 13, 2011 (Tr. 384). Dr. Valente suspected a psychological component to her pain complaints (Tr. 386).

Plaintiff testified that she took Xanax a couple times a week, two to eight tablets of hydrocodone daily, Flexeril three to four times a week, and Zoloft, Geodon and Depakote every day (Tr. 46). She said her only hobby was watching television, and that her husband did the cooking, cleaning, laundry, and shopping (Tr. 47-48). Plaintiff testified that she could lift only three pounds with her right hand and eight pounds with her non-dominant left hand, and ten pounds using both hands (Tr. 49). Plaintiff's husband testified that he agreed with his wife's testimony and "pretty much" did everything from caregiving to shopping (Tr. 64).

The ALJ asked a VE to consider hypothetical claimant with the same limitations the ALJ ultimately included in his RFC finding (Tr. 22, 66-67). The VE testified that the hypothetical claimant could perform Plaintiff's past job as an office helper as employees generally performed the job in the economy (Tr. 67-68). Alternatively, the VE testified that the hypothetical claimant could perform other light, unskilled jobs, such as photocopy machine operator (DOT#207.685-014), mail clerk (Dictionary of Occupational Titles (DOT) #209.687-026), and small products assembler (DOT#706.684-022) (Tr. 68). In response to questions from Plaintiff's attorney, the VE testified that if Plaintiff's testimony was fully credible, she would not be able to sustain work (Tr. 69-70).

After the ALJ issued his denial decision, Plaintiff's attorney requested Dr. Hajj complete a questionnaire in January 2013 (Tr. 449). Dr. Hajj noted that Plaintiff had fibromyalgia, depression and anxiety (Tr. 449). She first saw Plaintiff on November 11, 2010, and saw her every five to six months (Tr. 449). She said Plaintiff has high anxiety levels and difficulty with concentration and attention (Tr. 450). She also said that Plaintiff could not sit, stand or walk for any extended period of time (i.e., less than 10 minutes) (Tr. 450). Dr. Hajj concluded that Plaintiff could not work due to chronic pain and high levels of anxiety and an inability to concentrate (Tr. 450).


When reviewing the decision not to award disability benefits, the district court does not act as a fact-finder or substitute its judgment for the judgment of the ALJ or the Commissioner. Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004) (quoting Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)). Rather, the district court will affirm the Commissioner's decision to deny benefits if it is supported by substantial evidence in the record as a whole. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011) (citing Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)), see also Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004) (citing Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir. 1995)). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, but "more than a mere scintilla." Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009) (quoting Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003)); Richardson v. Perales, 402 U.S. 389, 401 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir.1990). "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner's conclusion." Perkins, 648 F.3d at 897 (emphasis added) (citing Medhaug, 578 F.3d at 813).

In determining whether the evidence in the record as a whole is substantial, the court must consider "evidence that detracts from the Commissioner's decision as well as evidence that supports it." Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007) (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). If the court finds that the record contains substantial evidence supporting the Commissioner's decision, the court may not reverse the decision because the record also contains substantial evidence that supports a different outcome or because the court would have decided the case differently. Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001).


Plaintiff contends that the ALJ used a legally defective standard at the step five disability analysis; inappropriately discredited her testimony; chose jobs in the economy that are outside of her RFC; incorrectly interpreted her GAF[2] scores; and improperly assigned weight to a non-treating physician and to third ...

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