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Snyder v. Berryhill

United States District Court, N.D. Iowa, Eastern Division

May 25, 2017

JILL SNYDER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          C.J. Williams Chief United States Magistrate Judge

         I.INTRODUCTION

         The plaintiff, Jill L. Snyder (claimant), seeks judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying claimant's application for disability insurance benefits (DIB) under Title II of the Social Security Act (Act), 42 U.S.C. § 401 et seq. For the reasons that follow, I recommend the District Court affirm the Commissioner's decision.

         II.BACKGROUND

         Claimant is a 56-year-old woman and was 52 years old at the time of the filing of her application for disability benefits on June 23, 2013. (AR 160). Claimant's alleged disability onset date was November 13, 2009. (AR 160). Claimant met the qualifications for insured status through March 31, 2015. (AR 181). The Commissioner denied claimant's application initially and upon reconsideration. (AR 103-06, 108-11). The ALJ held a video hearing on February 3, 2015. (AR 34). The ALJ issued her decision finding claimant not disabled on March 27, 2015. (AR 26). The appeals council denied review of the ALJ's finding of not disabled on June 22, 2016, and the ALJ's decision became the final decision of the Commissioner. (AR 1).

         On August 22, 2016, claimant filed a complaint in this Court. (Doc. 1). On March 2, 2017, claimant filed her brief (Doc. 11), and on March 30, 2017, the Commissioner filed her brief. (Doc. 14). On April 10, 2017, claimant also filed a reply brief. (Doc. 15). On April 11, 2017, the Court deemed this case ready for a decision and the Honorable Linda R. Reade, United States District Court Judge, referred this case to me for a Report and Recommendation. (Doc. 13).

         III.SUMMARY OF RELEVANT FACTS FROM THE RECORD

         A state agency consultant, Stephen Elliot, Ph.D., reviewed claimant's application for disability at the initial level. (AR 86). At the initial level a consultative examination (CE) was requested and psychologist Dr. Scott prepared a report pursuant to that CE. (AR 80). Dr. Elliot found that the claimant had the following severe medically determinable impairments: gastritis and duodenitis, anxiety disorders, and somatoform disorders. (AR 78). Dr. Elliot found that these medically determinable disorders could cause the claimant's pain and other symptoms, but that the claimant's statements about the intensity, persistence, and functionally limiting effects of the symptoms were not supported by the objective medical evidence. (AR 79).

         Dr. Elliot found that claimant's statements about her physical limitations were not supported by her statements of her daily activities being significantly limited, but her statements about her mental limitations were consistent with the medical record. (AR 80). Dr. Elliott determined that claimant's history of osteoporosis was well documented and that she had wedge deformities at several places in her spine and was recommended therapy and Reclast.[1] (AR 82). Dr. Elliott noted that at her GI exam in 2013, the doctor noted “[n]o edema, muscle mass is preserved, muscle strength is also preserved, and gait examined and was normal.” (AR 83). Dr. Elliot then noted claimant's GI issues and noted that claimant's diarrhea had turned to constipation and that she had had less problems with vomiting and that claimant followed a special diet for her gastrointestinal issues. (AR 82). Dr. Elliott also noted that she had gained weight in 2012 and at her last visits, “was described as stable and is doing well.” (AR 82). Dr. Elliott found little objective medical evidence to support the claims of hyperparathyroidism, chronic migraines, PRIM or aldosteronism.[2] (AR 82). Dr. Elliott found that many of her diagnoses were supported by objective medical evidence, but that claimant's osteoporosis would not cause the pain described by claimant. (AR 82). Dr. Elliott also determined that claimant's reports of her limitations were undercut by her described daily activities of cooking, shopping, driving, walking, and caring for her grandchildren as well as third party reports. (AR 82).

         David Christiansen, Ph.D., performed a mental RFC evaluation at the initial level. (AR 84). He found claimant did have memory limitations such that claimant's ability to understand and remember detailed instructions would be moderately limited as well as sustained concentration limitations which would also limit her ability to carry out detailed instructions and maintain attention. (AR 83). Dr. Christiansen also noted that claimant's ability to complete a normal workday and workweek without interruptions from psychologically base symptoms and perform at a consistent pace without an unreasonable number and length of rest periods would be moderately limited. (AR 83). Dr. Christiansen found that claimant's reported limitations were consistent with the file and that claimant's ability to carry out instructions, maintain attention, concentration, pace and ability to remember and understand instructions were fair to good. (AR 84). Additionally, Dr. Christiansen stated that claimant was able to interact appropriately with supervisors and would be capable of doing simple and routine work-like activities. (AR 84).

         On reconsideration, the claimant was found to have the medically determinable impairments of gastritis and duodenitis, anxiety disorder, and somatoform disorders. (AR 94). Dr. Laura Griffith, D.O., considered the new evidence of a worsening condition submitted by the claimant including that she had experienced severe diarrhea and constipation due to her gastroparesis, which caused bloating and weight gain which increased her chances of having another bone fracture and that because of her osteoporosis she was limited to lifting only five pounds. (AR 98). Dr. Griffith determined that this additional information did not significantly change the prior record and that the prior determination was consistent with the record. (AR 98). Myrna Tashner, Ed.D., evaluated claimant's file upon reconsideration and found that claimant's additional alleged memory loss did not change the prior mental RFC determination. (AR 100).

         Dr. Victor Mujica, M.D., treated claimant in 2012 at the Covenant Clinic in Waterloo, Iowa. (AR 274). Dr. Mujica provided a second opinion for claimant's GI issues due to her dissatisfaction with prior treatment for gastroparesis in September of 2012, and reported that she reported inability to tolerate a regular meal, nausea, vomiting and unexpected weight change, but no major abdominal pain. (AR 282 & 286). In August of 2012, Dr. Mujica noted that claimant had normal range of motion, though claimant reported nausea, vomiting, abdominal pain, and constipation. (AR 303). At the same visit Dr. Mujica noted that she was well oriented and had normal mood and affect, her thought content was normal, though she did report anxiety. (AR 282). In November of 2012, claimant again saw Dr. Mujica, where he stated, “[claimant] has been following a puree diet as recommended with excellent tolerance. She has gained some weight. She feel [sic] overall improved. She denies any major episode of nausea, vomiting or abdominal pain.” (AR 284).

         In November of 2012, claimant was seen at the Cedar Valley Bone Health Institute to discuss treatment options for her osteoporosis. (AR 292). At that visit it was documented that she had lost 2.25 inches in height. (AR 292). Claimant was diagnosed with severe osteoporosis and the report indicated vertebral fracture deformities in the spine. (AR 298). Claimant was assessed to have a 23% risk of major osteoporotic fracture and 11% risk of hip fracture in the next 10 years. (AR 313).

         On the first of January, 2013, claimant was seen by Dr. Ravindra Mallavarapu, M.D., at the Allen Memorial Hospital for upset stomach and nausea, with reported back pain. (AR 334). At this visit she was noted as having a full range of motion with no edema, or joint deformity. (AR 335).

         Claimant saw Dr. Matthew Kettman, M.D., regularly and he was her primary treating physician. On October 9, 2012, he saw claimant and she reported that she had back and neck pain due to a fall, for a follow-up for her migraine headaches, a follow-up for her GI issues, and she also reported problems with insomnia and depression. (AR 444). At a follow-up visit to her hospital visit in January 2013, with Dr. Kettman, claimant reported continuing abdominal pain and diarrhea and racing thought, inability to sleep, anxiety, and depression. (AR 346). But claimant also reported “feel[ing] better.” (Id.). Dr. Kettman noted that more than 50% of the 25-minute visit had been discussing claimant's depression. (AR 348). At a visit to Dr. Kettman in February, 2013, Dr. Kettman noted that claimant was bipolar and her condition was unstable, but noted that she was doing well and did not “have any current symptoms associated with the condition or current treatment regimen.” (AR 352). He also noted the claimant had normal affect with no obvious cognitive defects in memory or recognition during speech. (AR 354). Three weeks later on February 28, 2013, claimant visited Dr. Kettman for a follow-up for her depression and reported that she felt more emotional and her mood was not better and felt her condition had been worsening since beginning the new medication. (AR 355). In June of 2013, claimant reported that she was doing well and had no active complaints. (AR 362). At the same appointment claimant reported no nausea, good intake, no vomiting, no abdominal pain, no diarrhea and no constipation. (AR 363).

         On June 4, 2013, claimant visited Dr. Kettman complaining of constipation despite taking her medications. (AR 426). Claimant had an appointment with Dr. Tarek Daoud, M.D., on June 18, 2013, for a follow-up where she stated she was doing well and had no active complaints. (AR 451).

         On August 29, 2013, claimant visited the Mayo Clinic and during her appointment Dr. Robert Kraichely, M.D., noted that claimant had been following a gastroparesis diet and that she had “done reasonably well with this, ” and she was not experiencing vomiting. (AR 517). However, Dr. Kraichely went on to state that after “requiring vancomycin due to contracting C. diff colitis” she had had trouble with her bowels. (AR 517). He went on to state:

She really tends towards significant constipation, sometimes going over a week without a bowel movement. This is in spite of having fairly good oral intake. She has required laxatives, typically stimulants . . .. These [claimant's prescription medication to regulate bowel movements] do not seem to help. She will have liquid bowel movements, but it is very difficult to initiate a bowel movement . . . and has required some significantly increased time on the commode to have bowel movements. The unpredictability of the effects of the laxatives has kept her pretty much in the house for much of the last several months.

(AR 517).

         In July of 2013, claimant's friend Ms. Deike, completed a function report for claimant. (AR 180). She stated that at that time claimant cared for her grandchildren on a regular basis, did not need reminders to take care of personal grooming, was able to prepare her own meals, do light cleaning, and light loads of laundry. (AR 174-75). Ms. Deike also indicated that the claimant drove and went to the grocery store by herself weekly. (AR 176)[3]. Ms. Deike stated that claimant had no problem handling money. (Id.). Ms. Deike stated that claimant had a limited ability to ingest regular foods, had difficulty concentrating, and memory problems due to her migraines. (AR 175-77). Claimant reportedly socialized on a weekly basis with friends, her daughters, and left her home to go to church and the grocery store. (AR 177). Claimant's socialization had been hindered by her illness as she did not feel well enough to socialize and her bipolar disorder would hinder her because she would have mood swings and become irritated easily making it difficult for her to interact with others. (AR 178 & 180). Ms. Deike also reported limitations regarding claimant's ability to perform many tasks, such as lifting, squatting, bending, standing, walking, kneeling, climbing stairs, her memory, task completion, concentration and ability to get along with others. (AR 178). Ms. Deike reported claimant could walk five or six blocks continuously without requiring a break. (AR 178).[4]

         In the fall of 2013, claimant visited the Mayo Clinic for osteoporosis and for constipation (AR 548 & 523), saw Dr. Daoud for routine follow-ups (AR 552 & 575), and was examined by state consultant Dr. Scott (whose findings are discussed at length in the Section VII. A.). In February of 2014, claimant's potassium levels were stable. (AR 624). In December of 2014, claimant saw Dr. Kettman, who reported that despite claimant reporting that she had severe symptoms, she was “[t]aking nothing as medication” (AR 666) and visited the Mayo Clinic for her osteoporosis (AR 600-01).

         In February of 2015, at the hearing before the ALJ, claimant testified to the following: She suffers from past sexual abuse. (AR 51). Claimant testified that she could only walk one block before her hips hurt. (AR 56-57). She testified that she could not crawl, kneel, use ladders, bend over without pain, or twist. (AR 57). Claimant also testified that she did not handle stress well as it triggered her bipolar moods, which in difficult social situations caused her to be “upset” or “fly[ ] off the handle.” (AR 53). She stated that her anxiety caused her to “excessively worry” and gave her “lots of sleepless nights.” (Id.). She stated that she could not concentrate for more than five minutes. She testified that she drove three times a week, and if she drove for longer than 12 minutes, then she needed frequent stops due to pain. (AR 58). She stated that she could not babysit her grandchildren anymore, and the last time she did was the past summer and she ended up “hurting too much.” (AR 59). Claimant also stated that she washed dishes but with breaks, did her own laundry, went grocery shopping with a best friend who carried the groceries for her, and sometimes attended church. (AR 60-62).

         IV. DISABILITY DETERMINTATIONS AND THE BURDEN OF PROOF

         A disability is defined as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual has a disability when, due to his physical or mental impairments, he “is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). If the claimant is able to do work which exists in the national economy but is unemployed because of inability to get work, lack of opportunities in the local area, economic conditions, employer hiring practices, or other factors, the ALJ will still find the claimant not disabled.

         To determine whether a claimant has a disability within the meaning of the Act, the Commissioner follows the five-step sequential evaluation process outlined in the regulations. Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. “Substantial” work activity involves physical or mental activities. “Gainful” activity is work done for pay or profit, even if the claimant did not ultimately receive pay or profit.

         Second, if the claimant is not engaged in substantial gainful activity, then the Commissioner looks to the severity of the claimant's physical and mental impairments. If the impairments are not severe, then the claimant is not disabled. An impairment is not severe if it does not significantly limit a claimant's physical or mental ability to perform basic work activities. Kirby, 500 F.3d at 707.

         The ability to do basic work activities means the ability and aptitude necessary to perform most jobs. These include: (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. § 404.1521(b)).

         Third, if the claimant has a severe impairment, then the Commissioner will determine the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled regardless of age, ...


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