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Jones v. Berryhill

United States District Court, D. Nebraska

November 28, 2017

JANICE JONES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; ROBERT K. COX, Administrative Law Judge; JACQUELINE E. CRAWFORD-APPERSON, Vocational Expert; and DAVID G. BUELL, Administrative Law Judge, Defendants.


          Robert F. Rossiter, Jr. United States District Judge.

         This matter is before the Court on plaintiff Janice Jones's (“Jones”) Motion (Filing No. 21) to reverse the Commissioner of Social Security's decision and defendant Nancy A. Berryhill's[1] (“Commissioner”) Motion to Affirm Commissioner's Decision (Filing No. 22). For the reasons stated below, the Commissioner's Motion is granted and Jones's Motion is denied.

         I. BACKGROUND

         A. Procedural History

         Jones first filed an application for social security benefits in April of 2012 before an administrative law judge dismissed it in January of 2013 for late filing. On April 22, 2013, Jones applied for Supplemental Security Income (“SSI”) and Retirement, Survivors and Disability Insurance. The Commissioner denied both of the claims after determining Jones was not disabled. Jones requested reconsideration, and, after reconsideration, the Commissioner again denied the claims. On November 7, 2013, Jones requested a hearing in front of an Administrative Law Judge (“ALJ”).

         The first hearing on October 20, 2014, was postponed after Jones's attorney and the ALJ began to argue. After a second hearing on January 29, 2015, a different ALJ issued a fully favorable decision to Jones, determining she met the criteria for disability under the Social Security Act. See 42 U.S.C. § 1382c(a)(3)(A). The Appeals Council reviewed the case and determined the ALJ's decision was not supported by substantial evidence. The Appeals Council remanded the case for a third hearing. The third hearing occurred on November 16, 2016, in front of a third ALJ. That ALJ determined Jones was not disabled, and the Appeals Council denied Jones's request for review.

         Following the denial of her appeal, Jones filed a complaint in this Court. Jones, proceeding pro se, claims she is disabled with an onset date of March 18, 2011. She specifically points to a recommendation that she see a specialist for her back from Todd Sekundiak M.D. (“Dr. Sekundiak”), and the fact that she has been unsuccessful in finding employment as a parking-lot attendant. Jones also claims the hearing was deficient because (1) its time changed, (2) Jones was not sworn in until halfway through the hearing, and (3) the vocational expert (“VE”) was not present for the first part of the hearing and gave testimony over the phone.

         B. Facts

         Jones is currently fifty-seven years old. She has an eleventh-grade education and has been employed as a housekeeping custodian, parking-lot attendant, casino porter, and grocery-store stocker. She has not worked in any substantial capacity since leaving employment as a housekeeping custodian at the Nebraska Medical Center in February of 2011.

         1. Summary of the Medical Records

         On May 31, 2012, Jonathan R. Thompson, M.D. (“Dr. Thompson”) evaluated Jones after she alleged possible tuberculosis, diffuse joint pain, and depression. Dr. Thompson determined it was unlikely Jones had tuberculosis and Jones's depressive symptoms did not seem to have significantly affected her life. He found Jones had minimal decreased range of motion in her wrists, excellent grip strength, and excellent upper extremity strength. While she had some decreased internal rotation of her hip and walked with a slight limp, Jones had preserved knee flexion, well-preserved ankle flexion, and no difficulty with lower extremity muscle strength. Dr. Thompson concluded Jones had diffuse body pain, noting tenderness in the lumbar and lower thoracic spine with an otherwise well-preserved range of motion. He concluded Jones “actually is quite well and based on my exam today I feel she would be able to perform most duties.” After seeing Dr. Thompson, Jones spoke with Jennifer L. Lindner, Ph.D. (“Dr. Lindner”) who performed a psychological interview and report on Jones. Dr. Lindner determined that Jones (1) had some issues with depression that could be addressed by outpatient therapy and medication and (2) was capable of interacting appropriately with coworkers and supervisors.

         Jones underwent a physical exam at Immanuel Medical Center on September 20, 2012, by Robert Devin, MD (“Dr. Devin”). According to Dr. Devin, Jones appeared in mild pain distress. He concluded, “Back exam normal, Back exam included findings of normal inspection, range of motion normal.” The findings for upper extremity and lower extremity were also normal. Dr. Devin noted the pain was muscular and did not appear radicular.

         According to medical-progress notes from the Douglas County Health Center Network Clinic (“Douglas County”), Jones had continued back pain and multilevel degenerative lumbar spondylosis on January 14, 2013. Douglas County recommended Jones attend twice-weekly physical therapy on January 25, 2013. After a mental-status exam, Douglas County prescribed Lexapro for depression, anxiety, and irritability. According to a physical-therapy discharge summary, on February 8, 2013, Jones exhibited decreased hip flexion in her right and left hips, which were both rated at a three out of five in flexibility. Jones's self-reported pain intensity in her lumbar spine varied between nine and ten out of ten.

         On August 22, 2013, Travis Hanson, M.D. (“Dr. Hanson”) examined Jones. Dr. Hanson reported five out of five strength throughout her musculoskeletal system. He noted some decreased range of motion of her lumbar spine and ...

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