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Marcos v. Berryhill

United States District Court, D. Nebraska

May 16, 2017

CYNTHIA L. MARCOS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on plaintiff Cynthia L. Marcos's (“Marcos”) Motion for an Order Reversing the Commissioner's Decision (Filing No. 21) and defendant Nancy A. Berryhill's (“Commissioner”) Motion to Affirm Commissioner's Decision (Filing No. 19). For the reasons stated below, the Commissioner's Motion is granted and Marcos's Motion is denied.

         I. BACKGROUND

         A. Procedural History

         After Marcos applied for social security disability, an Administrative Law Judge (“ALJ”) held a hearing on April 30, 2014 to determine her eligibility. The ALJ denied Marcos's claim on August 12, 2014. Marcos filed a request for the Appeals Council to review the ALJ's decision and submitted additional evidence. The Appeals Council found the new evidence did not relate to the adjudicated period and was therefore not material. The Appeals Council denied Marcos's request for review but included the additional evidence in the record.

         Following the denial of her appeal, Marcos filed a complaint in this Court. She argues the new evidence is relevant to the ALJ's decision because it relates to the adjudicated period. She also claims the ALJ erred in finding her fibromyalgia was not a medically determinable impairment. Finally, she argues the ALJ's decision was not based on substantial evidence because it relied on an inaccurate hypothetical posed to the vocational expert. Marcos alleges the hypothetical was inaccurate because it was based on the ALJ's faulty residual functional capacity (“RFC”) finding. She argues the ALJ calculated the RFC incorrectly by (1) failing to properly analyze her credibility in connection with her subjective complaints of pain and fatigue, (2) failing to find that she had fibromyalgia, (3) relying heavily on medical consultants who only reviewed medical records, and (4) failing to consider her bilateral osteoarthritis and mental condition.[2]

         B. Facts

         Marcos was born on November 19, 1966. She has a high school diploma and has been employed as a cook, daycare assistant, package loader, painter, prep-cook, school bus driver, truck driver, telemarketer and cashier. She has often worked at less than a substantial gainful employment level. Her past relevant work is that of a cafeteria cook, a skilled job of medium exertion level. She claims a disability onset date of May 19, 2010.

         1. Summary of the Medical Records

         Marcos has complained of right hip pain, neck pain, and chronic lower back pain with radiculopathy, reported difficulties with numbness, tingling, and swelling in her hands, and also complained of dizziness and vertigo. Marcos has been diagnosed at various times with advanced osteoarthritis in her hip, acute right-sided sciatica, multilevel facet disease of the cervical spine, bilateral hand paresthesia, bilateral carpal-tunnel syndrome, fibromyalgia, bipolar disorder, post-traumatic stress disorder, mood disorder not otherwise specified, major depressive disorder, depression with anxiety, generalized anxiety disorder, narcolepsy, asthma, temporomandibular joint syndrome, chronic sinusitis, and rheumatoid arthritis. She has been treated by over twenty health care providers and facilities since 2010. Marcos has also participated in counseling, cognitive behavioral therapy, and inpatient psychiatric care.

         2. Administrative Hearing Testimony

         At the hearing, Marcos testified her last work attempt was thwarted by back pain, arm pain, and her hip “going out on [her] quite a bit.” She testified that she has issues using her arms and hands that result in difficulties when picking up small items, buttoning a blouse, and grasping objects. She reported lack of strength in her right hand and difficulty lifting overhead. She also testified she can only lift about two pounds. Marcos stated she suffers from sharp pain in her lower back and testified she could sit for only fifteen minutes, stand for five to fifteen minutes, and walk fifteen or twenty minutes. She alleged pain in her neck that radiated down her arms, and that on a scale of one to ten, her neck pain was at an average level of eight to ten. She also testified to sharp pain in her lower back at the level of ten most of the time, but at the level of seven with medication. Further, she stated she experiences dizziness three or four times per week. She also stated she has three to four panic attacks per month.

         She has been prescribed a walker and uses it. She wears carpal-tunnel braces when using the walker and at night. Her daily activities include minimal cooking, laundry and housework. Marcos stated her roommate provides her transportation, but she does not get out often. She has difficulty washing her hair. Her roommate has to carry things when they shop for groceries. She needs help with her socks and shoes. Marcos stated that she avoids people and cries every day. The record contains a statement from Marcos's roommate, Deidre Stratton (“Stratton”), who corroborates most of Marcos's testimony.

         A vocational expert, Jackson C. McKay (“McKay”), was also present at the hearing. He testified that Marcos's past relevant work as a cafeteria cook was a skilled job of medium exertion. The ALJ asked McKay to assume a hypothetical employee with Marcos's education and past relevant work experience who was limited to (1) light work with a thirty-minute sit/stand option, (2) occasional stooping and climbing ramps or stairs, (3) no balancing, crouching, crawling, overhead reaching, or climbing ladders, ropes, and scaffolds, (4) no concentrated exposure to respiratory irritants or vibrations, (5) no exposure to moving mechanical parts or unprotected heights, (6) simple, routine, and repetitive tasks, (7) no general public contact, (8) changes in only a routine work setting, (9) and the ability to relate adequately to coworkers and supervisors. The ALJ then asked whether that hypothetical employee could perform Marcos's former job as a cook or other work in the national economy. McKay testified that the hypothetical employee would not be able to perform Marcos's past work as a cafeteria cook but could perform light-exertion unskilled work that would be available in the national economy such as office helper, mail clerk, and hospital products assembler.

         3. The ALJ's Determination

         The ALJ undertook the familiar five-step sequential process for determining disability.[3] He found that Marcos met the first two steps of the analysis: she had not engaged in substantial gainful activity since the disability-onset date and her impairments were severe. He concluded from the medical evidence that Marcos had “the following severe impairments: post-traumatic stress disorder, degenerative disc disease, rheumatoid arthritis, osteoarthritis of the right hip, vertigo, and bipolar disorder.” The ALJ specifically found that fibromyalgia was not one of the severe impairments because “the claimant's fibromyalgia is not a medically determinable impairment.” He relied on the criteria set out in a recent Social Security Ruling[4] and stated the evidence of record did not document at least eleven tender points on examination. He also found Marcos's knee arthritis and bilateral carpal-tunnel syndrome were non-severe impairments, noting that neither impairment significantly limited her ability to perform basic work activities. He stated her carpal-tunnel symptoms appeared to be nocturnal.

         At the third step, the ALJ determined that Marcos did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” in the regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. He considered Section 12.04 (affective disorders) and Section 12.06 (anxiety disorders). He stated “[d]espite the claimant's combined impairments, the medical evidence does not document listing-level severity, and no acceptable medical source has mentioned findings equivalent in severity to the criteria if any listing, individually or in combination.” He recounted Marcos's mental-health history and found “based on the evidence ...


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