United States District Court, D. Nebraska
MEMORANDUM AND ORDER
MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE.
Laura Lee Russell (“Russell”), seeks review of
the decision by the defendant, Nancy A. Berryhill,
Commissioner of the Social Security Administration (the
“Commissioner”), denying her application for
Supplemental Security Income (“SSI”) disability
benefits under Title XVI of the Social Security Act. See 42
U.S.C. § 1381. For the reasons explained below, the
Commissioner's decision will be affirmed.
25, 2013, Russell filed an application for SSI, alleging
disability beginning July 13, 2013. (Tr. 16). Russell's
claimed disabilities include mental health disorders of
bipolar disorder and post-traumatic stress disorder. (Tr.
21-22). Russell's application was initially denied on
October 9, 2013, and upon reconsideration on January 15,
2014. (Tr. 16).
March 12, 2014, Russell requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 16). After
requesting a continuance to obtain counsel, the
administrative hearing was held before the ALJ on August 6,
2015. (Tr. 16). Russell was represented by new counsel at the
hearing. (TR. 35). Following the hearing, the ALJ issued an
unfavorable decision on September 1, 2015. (Tr. 26).
Appeals Council denied Russell's Request for Review of
the ALJ's decision. (Tr. 1). Russell has now filed this
action to set aside the Commissioner's decision. (Filing
was 49 years old on the date she filed this application, and
51 years old as of the date the ALJ issued the decision. (Tr.
21, 31). Russell is a high school graduate and graduated from
cooking school with B average grades. (Tr. 50, 52). Russell
has never been married and has three adult daughters. At the
time of the ALJ hearing, Russell was living at the Siena
Francis House shelter. Russell has never had a driver's
license and uses the public bus for transportation. (Tr. 51).
last job was working at a Taco John's restaurant in March
2010 for four months. (Tr. 53). She stated she left that job
because she “can't be around people long
enough.” (Tr. 55). Russell testified her longest
employment was approximately seven months working as an
inventory specialist at Williams International in 2008-2009,
but left her position after the company moved locations. (Tr.
53-55). Russell has very limited employment history, which
she attributes to raising her children and due to being
burned as a child over approximately 80% of her body. (Tr.
51-55, 256-261). Russell alleges she has been disabled since
July 2013 and believes she is unable to work due to her
depression, lack of energy and motivation, feelings of
worthlessness, frustration, rapid mood swings, anxiety,
lashing out, difficulty sleeping and concentrating, being
fidgety, tendency to isolate, and her short attention span.
(Tr. 21, 58-59).
has a documented history of drug use, but testified that she
has not used crack cocaine or marijuana since April 8, 2013,
and attends sober meetings at the Siena Francis House. (Tr.
Russell had no physical conditions producing current
limitations, although she is a hemophiliac and has scars from
burns over 80% of her body. In 2005, she was diagnosed with
idiopathic thrombocytopenic purpura, but she did not undergo
any treatment for this condition during the relevant time
period, and there was no documentation of current
complications. (Tr. 19, 88). Her physical exams were
generally within normal limits. (Tr. 19).
EVIDENCE AND OPINIONS
first was seen by Thomas Weis, PA, (“Weis”) at
Charles Drew Health Center on July 17, 2013, upon the request
of her caseworker at the shelter. Russell was living at the
Lydia House homeless shelter at this time. Russell reported
to Weis that she had been feeling sad, down, and depressed
for several years. She reported increased problems with
sleeping for the prior three months and was irritable and
could not focus. (Tr. 463). Russell was started on Wellbutrin
and Trazadone, and an appointment to see a behavioral health
councilor was set up. (Tr. 465). On July 23, 2013, Russell
returned for a follow up for her difficulty sleeping,
agitation, and irritability. She reported that Trazadone was
not helping and was prescribed Risperidone for agitation.
Regular appointments with Mary Manning, behavioral therapist,
(“Manning”) were set up. (Tr. 460-462).
had another follow up appointment at Charles Drew with
Manning on August 2, 2013, and had a brighter mood and more
positive outlook. It was noted Russell was doing volunteer
work at the front desk several mornings, and was assertive in
her communication with her concerns with staff and other
guests. Russell was assessed a Global Assessment of
Functioning (GAF) score of 45-50. (Tr. 457-58). On August 9,
2013, Russell returned to Charles Drew for a follow up with
Manning. Russell had “increase[d] mood and positive
attitude.” She was reported as “[d]oing well in
CD program and gaining progress. Cooperating with staff and
interacting well with program[m]ers.” It was also noted
that Russell was volunteering to do chores and ministry at
the Lydia House. (Tr. 447). The psychiatric notes provide
that Russell's affect, psychomotor activity, grooming,
and dress were all normal, and that her mood was cheerful. At
this time, Manning assessed Russell's GAF at 62-67. (Tr.
August 12, 2013, Russell was referred to Dr. Nathan Bruce,
DO, at Community Alliance as part of a Homeless Services
Program (“Homeless Services Program”) Psychiatric
Intake Assessment. Dr. Bruce performed a psychiatric
evaluation and medication management for Russell's
bipolar disorder and anxiety. Russell reported that she was
diagnosed as bipolar in 2000. She felt her symptoms were not
well controlled and she had frequent labile moods, problems
with sleep, feelings of hopeless and helplessness,
depression, decreased energy, and concentration. She reported
she was proud that she was on her way to sobriety. Russell
also felt she may suffer from PTSD as a result of domestic
violence she suffered between ages 20 and 40. Dr. Bruce
observed Russell's speech “[wa]s very pressured and
she reports labile mood at this time” and she was
slightly psychomotor agitated. Dr. Bruce assessed
Russell's GAF at 50. Russell complained of more depressed
moods, but reported she had distinct episodes of either
hypomanic or manic episodes. Dr. Bruce observed Russell
appeared slightly paranoid at times, although she denied
symptoms of delusions. Dr. Bruce increased her dosage of
Risperdal and Trazodone, and started her on Atarax for
anxiety. (Tr. 435-438).
August 16, 2013, Russell was seen by Weis at Charles Drew for
urinary incontinence. Depression was noted as a chronic
problem, however, at this time it was noted that she was
negative for anxiety, depression and insomnia, and had a
normal affect, speech, and psychomotor activity. (Tr.
September 9, 2013, Russell completed a Daily Activities and
Symptoms Report. She indicated she was living in a shelter,
her ability to tend to her personal needs such as bathing and
dressing “depend[s]” on if her “illness
get[s] in the way, ” can cook “mostly everything,
” can clean her room, do yard work, visits
“friend” and plays cards, can exercise, and can
go to the store, church, and health appointments, and sleeps
4-5 hours a night. (Tr. 279-280). She reported having mood
swings often, which is caused by people, loneliness, and
fear, is worsened when she is “under pressure, ”
and experiences the symptoms “mostly all the
time.” She also reported she stopped running and
exercising because it made her depressed. (Tr. 281-282).
September 17, 2013, Russell reported to Dr. Bruce she had
been in a bad “mood” for a couple of weeks. She
reported low energy and motivation. She reported feeling
fatigue during the day and had continuous racing thoughts.
She felt like isolating but staff at the shelter would not
let her. Dr. Bruce started Russell on Prazosin and increased
her Risperdal dosage. (Tr. 483).
September 30, 2013, Debra Pflager, BSW, SOAR Project Benefits
Specialist, (“Pflager”) opined that Russell
“is unable to seek and maintain employment due to her
mental and physical health symptoms of Bipolar Affective
Disorder, PTSD, Idiopathic Thrombocytopenic Purpura and
Severe Body Scarring. Despite maintaining a consistent
medication regiment, she continues to experience significant
health impairments.” (Tr. 469-473).
October 4, 2013, Lee Branham, PhD, (“Dr.
Branham”) examined the record for the state agency. On
October 9, 2013, the state agency found Russell was not
disabled. (Tr. 87-95). Dr. Branham noted Russell only
recently started treatment after not requiring any for the
previous ten years. Dr. Branham suggested that Russell's
limitations were only at a moderate level. Dr. Branham
considered Russell's conditions of thrombocytopenia and
burns, and found there was no indication of more than mild
physical limitations as a result of those conditions. Dr.
Branham opined that Russell had severe affective disorders,
anxiety disorders, and substance addiction disorders, but
only had mild restriction of activities of daily living and
difficulties in maintaining concentration, persistence, or
pace, and moderate difficulties in social functioning.
state agency found Russell was not significantly limited in
her abilities to carry out very short and simple
instructions, to maintain attention and concentration for
extended period, sustain an ordinary routine without
supervision, make work related decisions, or the ability to
complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of
rest periods. Russell was “moderately” limited in
the ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary
tolerances. (Tr. 90-91). The agency also determined that
Russell's social anxiety leads to moderate limitations in
dealing effectively with the public and with supervisors.
October 15, 2013, (approximately one week after the initial
denial of her application), Russell reported to Dr. Bruce
that she feeling depressed and hopeless. She reported having
low concentration, appetite, and energy, and was experiencing
nightmares and avoidance behaviors. She had anxiety but
attributed it to living at the Open Door Mission. Dr. Bruce
assessed her GAF at ¶ 47. Dr. Bruce continued
Russell's previous medications, increased her dosage of
Prazosin, and started her on Wellbutrin. (Tr. 482).
November 18, 2013, Russell reported to Dr. Bruce that she had
continued depression, low energy and appetite, and
nightmares. She was attending groups but had a desire to
isolate. She felt like her anxiety was worse. She reported
auditory hallucinations of a voice telling her to “give
up.” Dr. Bruce assessed her GAF at 47, and increased
her dosage of Risperdal and Wellbutrin. (Tr. 481).
December 2, 2013, Dr. Bruce completed a Medical Source
Statement of Ability to Do Work-Related Activities (Mental)
form. According to Dr. Bruce's Medical Source Statement,
Russell's mental illness caused “marked”
limitations in understanding and remembering complex
instructions, the ability to carry out complex instructions,
and “extreme” limitations with respect to the
ability to make judgments on complex work-related decisions.
Dr. Bruce also noted that Russell had “marked”
limitations of her ability to interact appropriately with
supervisors and to respond to usual work situations and
changes in a routine work setting, “moderate”
limitation on interacting with co-workers, and
“mild” limitation in interacting appropriately
with the public. Dr. Bruce did not believe Russell had any
limitations with respect to understanding, remembering, and
carrying out simple instructions. (Tr. 475-477).
December 16, 2013, notes from the Community Alliance clinic
noted Russell reported to Dr. Bruce that her mood was stable
but a little low. Russell also was sleeping better, but she
felt sedated in the morning after taking her medication.
Russell reported her anxiety was improved but still had
nightmares. Dr. Bruce assessed her GAF at 47. Dr. Bruce
continued Russell on her medications and decreased her Atarax
dosage. (Tr. 480).
January 12, 2014, Pflager authored another letter opining
that, “[i]n consideration of the severity of
[Russell's]mental and physical health symptoms, as well
as her deficient daily living skills, impaired social
functioning and inability to maintain concentration,
[Russell] is unable to sustain substantial gainful
employment.” (Tr. 490-491).
January 14, 2014, Glenda Cottam, PhD, JD, (“Dr.
Cottam”) examined the record at the reconsideration
level for the state agency. Dr. Cottam reviewed all MER and
considered mental listings, in particular, 12.04 and 12.06.
Dr. Cottam concluded substance abuse was not problematic at
the time, as Russel had been sober from crack cocaine for
about one year. Dr. Cottam found that Russell is
“intelligent - having earned an associate's degree,
” memory problems were not indicated, she
“doesn't appear to have a problem with attention,
” and can understand/remember/carry out short and
simple instructions necessary for cooking and cleaning. Dr.
Cottam reviewed Dr. Bruce's Medical Source Statement and
opined that “His opinions do not seem completely
consistent with the other MER.” Dr. Cottam noted
Russell can tolerate groups and church, she reports she
visits with friends, and health care professionals do not
report any bizarre behavior. Dr. Cottam noted that Russell
has been able to adjust to some changes, including being
sober, being in the Open Door Mission, being in treatment at
the Lydia House, etc., though she might have “some mild
to moderate challenges at times.” The conclusion was
that Russell had “no severe conditions that would
preclude working.” (Tr. 97-104). Dr. Cottam concluded
Russell was “moderately limited” in the ability
to accept instructions and respond appropriately to criticism