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Hernandez v. Berryhill

United States District Court, D. Nebraska

March 14, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.



         This is 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 decision.


         I. Procedural History

         Hernandez 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.

         II. Testimony from ALJ Hearing

         Ms. 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.

         In 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 frequently. Id.

         Hernandez 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.

         Overall, 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.

         With 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 86-87.

         When 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.

         In 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.

         Hernandez 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.

         Hernandez 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.

         When 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.

         III. Medical Evidence

         Hernandez's 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.

         In 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 14[1]. 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 replacement. Id.

         In 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. at 455.

         IV. Medical Opinions

         On 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 ...

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