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Russell v. Berryhill

United States District Court, D. Nebraska

February 27, 2018

NANCY A. BERRYHILL, Commissioner of Social Security;[1] Defendant.



         Plaintiff, 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.


         On July 25, 2013, Russell filed an application for SSI, alleging disability beginning July 13, 2013.[2] (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).

         On 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).

         The 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 No. 1).


         Russell 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).

         Russell's 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).

         Russell 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. 63).[3] 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).


         Russell 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).

         Russell 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. 448).

         On 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).

         On 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. 499-501).

         On 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).

         On 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).

         On 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).

         On 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.

         The 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. (Tr. 91-92).

         On 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).

         On 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).

         On 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).

         On 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).

         On 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).

         On 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 from ...

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