United States District Court, D. Nebraska
NIKKI J. HERNANDEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
an action for judicial review of a final decision of the
Commissioner of the Social Security Administration
(“the Commissioner”). Filing No. 1. The claimant,
Nikki J. Hernandez, appeals the Commissioner's decision
to deny her application for Social Security Disability
(“Disability”) and Supplemental Security Income
(“SSI”) benefits under Titles II and XVI of the
Social Security Act and seeks review pursuant 42 U.S.C.
§ 405(g), see Filing No. 14 (Plaintiff's
Motion for an Order Reversing the Commissioner's
Decision) and Filing No. 17 (Defendant's Motion for an
Order Affirming the Commissioner's Decision). A
transcript of the hearing held on May 26, 2017, is found in
the record at Filing No. 10-3. This Court has jurisdiction
under 5 U.S.C. §§ 702 and 706 to review the final
filed an application for disability and SSI on January 22,
2015. She alleges disability due to depression, anxiety,
multi-joint osteoarthritis, degenerative joint disease in the
knees, and obesity. Filing No. 1. Her Form SSA-3368
Disability Report alleges disability based on depression,
arthritis, fluid in her legs, and memory loss. Filing No.
10-7, 236. The Commissioner denied her claims on July 9, 2015
and again upon reconsideration on August 11, 2015. After a
hearing on May 26, 2017, with an Administrative Law Judge
(“ALJ”), Hernandez was further denied benefits
and held not disabled on September 6, 2017. The Appeals
Counsel denied review on April 17, 2018. Hernandez seeks
review of the ALJ's order denying benefits.
Testimony from ALJ Hearing
Hernandez was born on April 30, 1980. She has an eighth-grade
education and has had numerous jobs of short duration. Filing
No. 10-3, at 82. The ALJ concluded that Hernandez had not
engaged in substantial gainful activity (“SGA”)
since January 22, 2015. Filing No. 10-2, at 17. At the
hearing on May 26, 2017, Hernandez testified that she had
tried to get a GED but failed due to her inability to do
simple math. Filing No. 10-3, at 85-86. She agreed that she
tried several jobs but testified that none of them lasted
long due to her physical and psychological problems.
Id. at 86. Hernandez affirmed that she had never
made more than $1, 000 a month at any job. Id. at
87. She testified that the physical tasks of her prior jobs
were too hard and caused her body and legs to hurt.
Id. at 87-88. Specifically, she testified that she
could not stand long and would have to go home due to the
pain. Id. at 88.
addition to leg pain, Hernandez testified that she has pain
in her knees, with her right knee being worse than her left.
Id. at 90. She stated that the pain makes it hard
for her to go up and down stairs, and she cannot stand in the
shower, and she has difficulty standing up after sitting in
the shower. Id. at 91. Hernandez testified that knee
replacement surgery had been discussed with her. Id.
However, she stated she is not qualified for the surgery
because she is too young. Id. Hernandez further
testified that her feet and ankles swell and must be soaked,
iced and heated, and elevated. Id. at 91- 92. She
testified that the pain and swelling throughout her body is
attributed to osteoarthritis and deteriorating joint disease.
Id. at 90-91. According to Hernandez, the physical
pain she experiences in her legs, knees, ankles, and feet
require her to spend “a lot” of the day
(somewhere between “[h]alf of it” and a
“[m]ajority” of it), sitting with her feet
elevated. Id. at 92. Hernandez stated that due to
her legs “lock[ing] up” she needs to move
testified that the osteoarthritis and deteriorating joint
disease has spread to her elbows. Id. at 92-93. She
affirmed that her elbow problems would affect her ability to
reach and pull. Id. at 93. Hernandez testified that
she has sciatica and lower back pain which runs down her
legs. Id. at 93. She stated that the pain
contributed to her problems with walking and standing.
Id. at 93-94.
Hernandez testified that she could walk about 5-10 minutes,
stand for 15 minutes and comfortably sit for 20-30 minutes
before her legs would lock up. Id. at 94. She
testified that the pain occurs “all the time” and
on really bad days, she cannot accomplish anything or go to
work or any doctor's appointments. Id. at 95-96.
During the hearing Hernandez asked whether she would be able
to stretch. Id. at 104.
regards to her psychological limitations, Hernandez testified
that being around people makes her anxious. Id. at
98. Hernandez stated that there were times when she would go
to the store and have to leave the store due to her anxiety.
Id. This anxiety occurred while she was working
also. Id. at 86. She testified that she would get
frustrated and would have to go outside or go to the bathroom
because it would be hard for her to breathe. Id. at
asked about her work speed and productivity compared to other
workers, Hernandez responded that “[I]t was a
problem.” Id. at 87. When asked about whether
she could follow written instructions, Hernandez stated that
she would need someone to be hands-on with her. Id.
at 87. When she was given instructions, she testified that
she would sometimes have difficulty following the
instructions because she would lose concentration.
Id. Hernandez stated that she could only
“sometimes” watch a 30-minute television show and
she cannot concentrate on reading. Id. at 99-100.
addition to anxiety and problems focusing, Hernandez stated
that she suffers from depression and has crying spells a
couple times a week. Id. at 98-99. She stated that
the crying spells can be short or last all day. Id.
at 99. She further stated that on days when she has an
all-day crying spell, she has no energy at all. Id.
at 99. In sum, Hernandez testified that about three times a
week she does not interact with anyone and lays down and
cries. Id. at 101.
testified that she was not seeing a psychologist or
psychiatrist, but her primary nurse practitioner, Julie
Nieveen, treats her for her mental health. Id. at
96-97. Hernandez stated that she was prescribed Ativan and
Sertraline for her depression and anxiety. Id.
According to Hernandez, Nieveen recommended she be treated by
a mental health professional. Id. at 97.
testified that in 2016 she worked at McDonald's for 3-4
months. Id. at 87. She testified that she began
working full-time and then was reduced to part-time due to
her leg pain. Id. at 87-88. She testified that she
was fired because she missed work, and she was unable to work
the hours that were needed. Id. at 89. Hernandez
testified that job attendance was a regular problem at other
jobs and she was fired from other jobs. Id. She
stated that she was fired from Subway because she failed to
come in to a shift due to leg pain. Id. at 90.
asked whether she could work if she did not have any mental
anxiety issues, and only physical problems, Hernandez
responded “No.” Id. at 101-02.
Similarly, when asked whether she could work if she did not
have any physical problems, but only mental problems,
Hernandez responded that she would not be able to work.
Id. at 102.
Nebraska Medical Center health records reflect, among other
things, diagnoses of recurrent depression, anxiety,
arthritis, hypertension, bilateral chronic knee pain,
bilateral elbow joint pain, chronic left shoulder pain,
degenerative joint disease. See Filing No. 10-8, at
359-60; Filing No. 10-9, at 411-12, 419, 447, 462-64, 471-72.
Throughout 2014, she presented to Nebraska Medical Center at
least four times with symptoms of low back pain, obesity,
abdominal pain, flank pain and chronic bilateral knee pain.
Filing 10-8, at 321-48.
April of 2015, while attending a follow-up appointment with
her general nurse practitioner, Julie Nieveen, for her
chronic knee pain, depression and anxiety, Hernandez reported
“sadness, tearfulness, difficulty falling asleep,
self[-]isolation.” Id. at 358. It was noted
that her mood began to worsen after her boyfriend was
murdered in 2013. Id. A Patient Health
Questionnaire-9 (“PHQ-9”) screening classified
Hernandez as having moderate depression with a score of
Id. In July of 2015 an x-ray of her knee showed
severe degenerative joint disease. Filing No. 10-9, at
426-28. At the appointment she was referred to orthopedics
and counseled that she probably would need a knee
January of 2016, at a follow up appointment for her chronic
bilateral knee pain, she reported sadness. Id. at
460. A second PHQ-9 screening classified Hernandez as having
mild depression with a score of 5. Id. at 460-61. In
May of 2016, Hernandez presented to the Nebraska Medical
Center with left elbow pain. Id. at 433-36. The
medical report diagnosed her with mild left elbow
degenerative joint disease. Id. at 434-35. In
October of 2016, Hernandez was diagnosed by Nieveen with
hypertension, osteoarthritis of both knees, chronic bilateral
elbow pain, and chronic left shoulder pain. Id. at
470-72. Her diagnoses of anxiety, depression, hypertension,
and chronic bilateral knee pain due to degenerative joint
disease were again discussed in January of 2017. Id.
April 19, 2017 Hernandez presented for a psychological
consultative examination with Dr. Beverly A. Doyle after
being referred there by her attorney. Filing No. 10-10, at
475-78. Dr. Doyle diagnosed Hernandez with Major Depression
(chronic, moderate), posttraumatic stress disorder
(“PTSD”), and gave her a GAF score of 45.
Id. With regards to Hernandez's ability to work,
Dr. Doyle determined that Hernandez exhibited “Marked
Limits (Poor Functioning)” with regards to her ability
to “Perform at a consistent pace without unreasonable
number and length of rest periods” and “Work in
coordination and proximity to others.” Id. at
482-85. Functionally, Dr. Doyle noted that Hernandez would
have extreme difficulties in maintaining social function, and
maintaining concentration, persistence or pace. Id.
at 483. Dr. Doyle noted that Hernandez would be off task or
unable to work at a competitive pace for more than 20% of an