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Fox v. Berryhill

United States District Court, S.D. Iowa, Central Division

April 1, 2018

SUSAN E. FOX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         I. INTRODUCTION ……………………………………………………………………………... 2

         II. PROCEDURAL HISTORY ………………………………………………………… ............... 3

         III. REVIEW OF ADMINSTRATIVE RECORD ……………………………………………….. 4

         A. Medical Records

         B. Reports Completed by Susan Fox and Her Daughter-in-Law C. Hearing Testimony of Susan Fox D. Testimony of Vocational Expert E. Report of Vocational Rehabilitation Counselor F. Decision of Administrative Law Judge

         IV. JUDICIAL REVIEW OF DECISION ……………………………………………………… 26

         A. Standard of Review B. Analysis of Fox's Arguments Before This Court 1. Assessment of Past Relevant Work 2. Application of Medical Vocational Guidelines Rule 202.06 3. Assessment of Treating Physician's Opinion 4. Assessment of Fox's Subjective Complaints and Testimony 5. Error in Hypothetical Question

         V. RECOMMENDATION ……………………………………………………………………... 45


         Plaintiff Susan Fox (“Fox”) seeks judicial review of the Social Security Commissioner's decision denying her Application for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Fox was found to suffer from the severe impairments of mild degenerative disc disease, irritable bowel syndrome, obesity, depression and anxiety. It was determined Fox has the residual functional capacity to perform light work with certain exceptions and limitations. Further, it was found that Fox is capable of performing past relevant work as a cleaner, and that such work does not require the performance of work- related activities precluded by her residual functional capacity. Consequently, the Commissioner concluded Fox was not disabled for purposes of the Act.

         Fox insists she is unable to engage in any substantial gainful activity due to her medically determinable severe impairments and, therefore, is disabled under the Act, and entitled to benefits accordingly. She asserts three primary arguments before this Court: (1) the Administrative Law Judge erred by not classifying her prior work owning and operating a cleaning business as a composite job, and she cannot perform that past relevant work; (2) the Administrative Law Judge erred in not applying Medical Vocational Guidelines Rule 202.06 to her case, and finding her disabled; and (3) the Administrative Law Judge erred in discounting her treating physician's opinion limiting her to part-time work. In her complaint, although not argued explicitly in her brief, Fox also asserts the Administrative Law Judge erred in assessing the credibility of her subjective complaints and testimony, and by posing a hypothetical question to the vocational expert which does not adequately describe her limitations. Fox requests this Court reverse the decision of the Commissioner or, in the alternative, vacate the final decision of the Commissioner and remand this matter for further proceedings.

         The case was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for submission of a report and recommendation regarding a disposition. Dkt. 4. As set forth below, it is recommended that the decision of the Commissioner be affirmed.


         Fox applied for Disability Insurance Benefits on December 2, 2013, with an alleged onset date of October 31, 2012. Administrative Record (Dkt. 7) 265-271. The Social Security Administration denied her application for benefits initially on March 5, 2014, and upon reconsideration on May 28, 2014. Id. 143-172. In both determinations, the Administration found Fox had the capacity to perform work similar to her past job as a delivery driver. Id.

         Upon a timely request for a hearing, Fox's claims were heard before Administrative Law Judge (“ALJ”) Eric S. Basse on August 10, 2015. Id. 94-142. Fox was represented by counsel and testified on her own behalf. Id. 99-132, 137-141. Vocational expert Melinda Stahr responded to hypotheticals presented by the ALJ and Fox's counsel. Id. 133-136.

         ALJ Basse issued a written decision denying Fox's application for benefits on January 12, 2016. Id. 24-36. The ALJ found Fox is capable of performing past relevant work as a cleaner. Id. 33. Fox timely requested a review of the ALJ's decision, and the Appeals Council denied review on January 6, 2017. Id. 1-6. Consequently, the decision of the ALJ stands as the final decision of the Commissioner. Id.

         Fox filed her Complaint (Dkt. 1) before this Court on February 27, 2017. She asserts that she testified to disabling limitations, but ALJ Basse rejected her testimony and failed to give good reasons for discounting her testimony. Id. ¶¶ 9-11. She claims the ALJ's decision is not supported by substantial medical evidence, the ALJ improperly rejected her subjective allegations, and the hypothetical question posed to the vocational expert does not adequately describe her limitations. Id. ¶¶ 14-16. Fox requests the final decision of the Commissioner be reversed or, alternatively, be vacated and remanded for further proceedings. Id. ¶ 18. She also seeks reasonable attorney fees and costs. Id. ¶¶ 19-20.

         The Commissioner filed an answer on May 4, 2017 (Dkt. 6) with a copy of the Administrative Record (Dkt. 7). The Commissioner contends Fox has not shown “good cause” to warrant reversal under the Act, 42 U.S.C. § 405(g). Dkt. 6 ¶ 5.

         Fox filed a brief (Dkt. 9) in support of her claims on July 6, 2017. The Commissioner submitted a responsive brief (Dkt. 10) on August 28, 2017. Fox filed a reply brief (Dkt. 11) on September 12, 2017.

         The parties did not request oral argument and a hearing does not appear to be necessary. Thus, the matter is considered to be fully submitted for purposes of this report and recommendation.


         This Magistrate Judge has reviewed the entire Administrative Record (“A.R.”), and summarizes certain portions as background for the specific issues presented by the parties as follows: (a) medical records, (b) reports completed by Fox and her daughter-in-law, (c) testimony of Fox at the hearing, (d) testimony of the vocational expert Melinda Stahr, (e) report by vocational rehabilitation counselor Paula Santagati, and (f) written decision of ALJ Basse.

         A. Medical Records

         Fox saw Dr. Randoph Rough on January 5, 2012 for cardiac issues. A.R. 388. Dr. Rough noted Fox has a history of a racing heart, with heart rates up to 156 beats per minute, and has palpitations when she is anxious, but those are brief. Id. Dr. Rough also noted Fox smokes a pack of cigarettes a day and is unable to stop, her cholesterol was recently 247, and she denies chest pains or significant dyspnea symptoms. Id. Dr. Rough's impressions were that Fox has hypertension, mild hyperlipidemia, obesity, a racing heart, anxiety, a normal stress cardiolite, positive family history for myocardial infarction and continued nicotine use. Id. 389-390. Dr.

         Rough encouraged weight reduction and follow-up in one year. Id. 390.

         Fox saw Dr. Kim Countryman on October 25, 2012, complaining of irritable bowel syndrome. Id. 398. Fox reported having significant lower abdominal pain with constipation and diarrhea, with the pain starting the moment she walked into work at Walmart. Id. Dr. Countryman had a long discussion with Fox concerning her medical issues, and indicated Fox's issues “are directly tied to her severe anxiety regarding her job.” Id. 399. Dr. Countryman told Fox “she needed to make a decision regarding her job” and “recommended [she] turn in her resignation and get a non-irritating, non-anxiety producing part-time job” with low volume and stress. Id. Dr.

         Countryman's assessment was that Fox suffered from anxiety, irritable bowel syndrome and depression. Id. Dr. Countryman issued a “to whom it may concern” note which stated:

Ms Susan Fox can not work overnight's, must work low stress hours at work and must only work 8 hour days / 5 day work week. Must have the days off be consecutive.

Id. 400.

         Dr. Rough saw Fox for a recheck on her heart issues on April 18, 2013. Id. 391. Fox reported she had not had any recent fast heart beats, but does have an occasional skipping of her heart and palpitations. Id. Dr. Rough indicated this should not require any specific change in therapy. Id. Dr. Rough found Fox's blood pressure was controlled but she was significantly obese at 255 pounds and encouraged her to lose weight, and noted Fox continues to smoke a pack of cigarettes a day. Id. Dr. Rough's impressions were hypertension, racing heart rate, controlled with a calcium channel blocker, palpitations correlating with simple ectopy, continued nicotine abuse, mild hyperlipidemia, abnormal stress cardiolite, and a positive family history for myocardial infarction. Id. 393. Dr. Rough encouraged weight reduction and nicotine cessation. Id.

         Fox met with Physician Assistant Michael Barger on October 30, 2013, to establish care with the Family Health Center. Id. 459. Fox reported having chronic diarrhea and then constipation, as well as a long history of depression and bad anxiety for which she was taking medications. Id.

         Nurse Practitioner Ranae Roberts met with Fox on November 15, 2013, for a psychiatric evaluation. Id. 453. Fox reported her mood as being nervous and edgy, grooming is difficult, and it takes an enormous effort for her to get out of the house or take a shower. Id. 454. Fox felt she was becoming homebound because of her mood and her chronic diarrhea. Id. She reported feeling overwhelmed and pressured with life, with finances being a big stress because she had to quit her job, she has had anxiety since she was 20 years old, and she has suffered from depression over the past several years. Id. Fox felt her body was breaking down as she was unable to go out of the house due to increased bowel movements, cramping and diarrhea. Id. 455. NP Roberts noted a past psychiatric history which included Fox receiving therapy at the age of 28 for anxiety, seeing therapists and psychiatric providers on and off since her late 20s, and having previous diagnoses of anxiety, agoraphobia, OCD and possible major depressive disorder. Id. NP Roberts' assessment was anxiety disorder, continuous tobacco dependence and moderate recurrent major depression. Id. 456. The plan was to resume Fox on Cymbalta and weaning off of Zoloft, with Fox to return to the clinic in one to two weeks or sooner if needed. Id. 457.

         Fox visited NP Roberts again on November 25, 2013, for an interval exam. Id. 449-450. Fox reported overall feeling better, but also noted moderate to severe agoraphobic features. Id. 450. She indicated it took considerable effort to leave the house, and reported not leaving the house until 4:00 p.m. to run errands the day before the appointment because she was stressed about it all day. Id. 450-451. Fox indicated she had less diarrhea and less back pain. Id. 451. She also indicated a lack of motivation for self-care and housecleaning, but is noted as improving. Id. 451-452. NP Roberts' assessment was moderate recurrent major depression and agoraphobia. Id. 451. Fox was directed to return to the clinic in two to three weeks or sooner if needed. Id. 452.

         NP Roberts saw Fox again on December 27, 2013. Id. 444. Fox reported doing better in some areas, and the same in other areas. Id. 445. She indicated her mood was better, she was not so down lately, but does have bouts of not showering for nearly two weeks, and had not taken her garbage out for a month. Id. She reported difficulties with motivation, in particular with housekeeping. Id. She was hesitant to increase her medications, but knew it would help. Id. 446. Her anxiety was not as bad as it had been, however, she still had panic feelings at times. Id. The assessment was anxiety disorder, tobacco dependence, moderate recurrent major depression and agoraphobia. Id. 446-447. NP Roberts adjusted medications and directed Fox to return with an update. Id. 447.

         On February 18, 2014, Fox saw Licensed Social Worker Kelli Foltz-Daniels for therapy. Id. 419. Fox reported her depression and anxiety had taken a turn for the worse over the past few months due to a diagnosis of acute colitis and being advised to resign from her job. Id. Fox indicated she resigned from her job and started looking for less stressful work, but had not been able to find anything, and her unemployment benefits were running out. Id. She expressed concern about losing her home, indicated her mother had recently died, and her car needed repairs. Id. She had very low motivation for most things, including self-care, and had allowed her home to become in bad condition. Id. 419-420. She also expressed a decreased ability to concentrate, but did have some ability to obtain enjoyment from television and the internet. Id. 420. She struggled with sleep, but denied having thoughts of self-harm or suicide, or of harming anyone else. Id. It was recommended that Fox start individual psychotherapy, continue to work with her medical teams to address her health issues, and follow-up with community resources. Id. 423. Diagnosis was depressive disorder, anxiety disorder and agoraphobia. Id.

         Fox had another interval exam with NP Roberts on February 26, 2014. Id. 434. She reported her mood as “marginally better” but still had a lack of motivation, sadness and numerous stressors in her life. Id. 436. Fox also reported having irritable bowel syndrome symptoms, but at the time more constipation and diarrhea, and was uncomfortable leaving the house. Id. The assessment was depressive disorder, anxiety disorder, agoraphobia and hoarding disorder behavior. Id. 437. The plan was to increase dosage of Wellbutrin and continue on Cymbalta. Id. Fox was to return in five to six weeks or sooner if needed and follow-up with her primary care physician concerning physical health issues. Id. 438.

         On March 19, 2014, Fox saw Licensed Social Worker Teresa Weeks for individual therapy. Id. 430. Fox presented very depressed, with low energy and lack of motivation to change. Id. Symptoms were noted as anxiety and depression manifested by hoarding and agoraphobia. Id. Fox admitted to a hoarding problem, but did not know where to start in cleaning it up, and expressed difficulty showering even once a week and not doing dishes in over two months. Id. Her goals were to begin journaling, and getting up, showering and dressed prior to the next session. Id. Diagnosis was noted as agoraphobia, hoarding disorder behavior, and moderate recurrent major depression. Id.

         Fox saw NP Roberts on May 12, 2014, for another interval exam. Id. 426. She was feeling better overall with increased motivation, but was experiencing a lack of initiation. Id. 427. She wanted to plant a garden and start quilting again, but it was hard for her to follow through. Id. She was taking her medication as prescribed, and reported positive benefits with no negative mental side effects. Id. 428. NP Roberts noted a diagnosis of agoraphobia, anxiety disorder, depressive disorder, hoarding disorder behavior and tobacco dependence. Id. Fox's medications were adjusted, and she was directed to continue with individual therapy and return in two to three months or sooner if needed. Id. 429.

         Fox returned to see NP Roberts on August 28, 2014, and reported she was feeling depressed and anxious, and experiencing low motivation. Id. 490-491. Her house needed work, the garbage needed to be taken out and she had hoarding behaviors at times. Id. 491. NP Roberts adjusted medications, and indicated Fox should return in one month and initiate therapy appointments as soon as possible. Id. 493.

         On November 4, 2014, Fox saw Dr. Dana Danley for a comprehensive physical examination. Id. 484. Among other things, Fox reported having chronic diarrhea and mild urinary incontinence. Id. She indicated having difficulty coming to the appointment due to agoraphobia, and was meeting with a counselor on a regular basis. Id. She noted having depression in the past, but felt it was worse due to her lack of motivation, hygiene and cleanliness at home. Id Fox returned to NP Roberts on January 2, 2015, for medication management and reported having extreme agoraphobia, not leaving the house for weeks, and not showering for six weeks except bathing before her appointment. Id. 479-480. She complained of decreased motivation. Id. 480. Coping techniques, anxiety reducing behaviors, and depression relief techniques were discussed with and understood by Fox. Id. 481. The diagnosis noted was agoraphobia, anxiety disorder, hoarding disorder behavior and moderate recurrent major depression. Id. Fox was to continue with Cymbalta and consider trying Wellbutrin or other medications, and returning in two to three months or sooner if needed. Id. 482. NP Roberts strongly recommended individual therapy. Id.

         Fox worked with Dawn Larson, Rehabilitation Coordinator, with Mainstream Living, Inc. from May 25, 2015 through June 30, 2015. Id. 502-504. The objectives were to learn new coping skills by December 31, 2015, and consisted of the staff meeting with Fox in her home to work on those matters. Id.

         Fox saw LPN Ann Ries on June 25, 2015, for medication follow-up. Id. 473-474. It was noted Fox had not been seen at the clinic since the previous January, and reported things had been “better and worse.” Id. 474. Fox had stopped taking Cymbalta, and felt her emotions had come back, and she had a clear mind, and had started writing again. Id. She was enjoying writing, spending time with her cats, and being on Facebook to chat with friends. Id. She reported taking medications for anxiety approximately three times a week, and “having emotions since her brain function is back.” Id. She indicated she looks forward to cleaning her house, and is doing one box at a time, and wants to refrain from further psychotropic medication. Id. LPN Ries noted Fox's mood would be investigated at her next appointment, she was to continue with individual therapy, and return to the clinic in two to three months or sooner if needed. Id. 474-475.

         Fox met with Physical Therapist John Urban on August 12, 2015, to treat low back pain. Id. 505-506. Fox indicated she had suffered chronic back pain beginning in October 2014. Id. 506. She reported her back hurts with walking, prolonged standing and bending forward, and she is unable to lie flat on her back due to pain, but she is able to completely relieve her symptoms by sitting in a recliner. Id. The plan involved treatment intervention focusing on postural reeducation and lower extremity strength, modalities and manual therapy as needed. Id.

         B. Reports Completed by Susan Fox and Her Daughter-in-Law

         Fox completed a chest pain questionnaire on February 10, 2014. A.R. 303-304. She reported having “no chest pain” but her heart can speed up at times, however, medications help keep it under control. Id. 303. She indicated stress makes her heart speed up and skip beats. Id. She has lower back pain but can walk “quite a distance” briskly, and at a normal pace. Id. 304. Sitting for a few moments can ease the lower back pain. Id. She can lift and carry 30 pounds, sometimes 40 pounds but not far. Id. She has strong lower intestinal cramps on an almost daily basis. Id.

         Fox also completed a function report dated February 10, 2014. Id. 307-314. She reported being diagnosed in 2013 with acute colitis and irritable bowel. Id. 307. She has had diarrhea on a daily basis, which is uncontrollable, especially after she eats. Id. She has severe stomach cramps each day, and not much energy. Id. Due to severe depression and frequent anxiety and panic attacks, she has trouble leaving the house. Id. She also has trouble concentrating, cleaning her house and taking proper care of herself. Id.

         Fox further reported trouble waking up in the morning. Id. 308. Most of her daily activities are looking at Facebook and watching T.V. Id. She only leaves the house when she needs to pick up medications, attend appointments at the hospital or clinic, or pick up cigarettes or groceries. Id. She does not visit friends or family, and does very little housework or laundry. Id. Prior to her illnesses she could do anything she wanted to, including work, visiting with friends, taking care of herself and doing housework. Id. She has anxiety and trouble sleeping when she knows she has to leave the house the next day. Id.

         According to Fox, she can dress herself but no longer takes daily showers or washes her hair. Id. She can feed herself, but does not do much laundry. Id. Although she is able to take care of her personal needs and grooming, she does not do so because she does not care anymore. Id. 309. She prepares frozen dinners, but does not use an oven or stove. Id. She does not cook often as she does not feel like eating because it sets off her intestinal issues. Id. She washes her laundry when she runs out of clean clothes, but usually wears the same clothes, and rarely cleans. Id. Since no one comes to see her, she does not care about the mess in her house. Id. She does drive a car and can go out alone, but she will go outside only when she has to go somewhere, otherwise, she stays inside. Id. 310. She will shop for groceries and cigarettes in stores one time a week, but does so quickly so she can get home. Id.

         Fox is able to take care of her bills and money. Id. She does not have much in-person contact with other people, and mostly communicates through Facebook. Id. 311. Except for medical staff, she does not interact much with others. Id. Fox explained that most of her family and friends do not understand what she is going through. Id. 312. Prior to her illnesses she went anywhere she wanted, and did everything she desired to do. Id. Fox indicated she hurts in the lower back if she walks more than a short distance, or if she stands very long. Id. She can walk around in the hospital, but may need to rest for a period of time due to pain in her back. Id.

         Fox follows written instructions “okay” and spoken instructions well if she does not get sidetracked. Id. She explained she does not handle stress well due to her irritable bowel syndrome and panic attacks, and changes in routine are hard for her. Id. 313. She has phobias in the form of avoiding people, and is easily ashamed. Id. Due to the onset of diarrhea, she tries not to get stressed, although she used to be able to handle stress. Id.

         Fox also completed a Work History Report dated February 10, 2014. Id. 315-324. Among other jobs, Fox indicated she was an owner/operator of a home cleaning service from 1990 to approximately 2010. Id. 316, 320. Asked to describe this job, she responded: “advertise, maintain cleaning inventory & vacuums & equipment. Supervised up to 2 employees (part time), but worked alone most days cleaning private homes.” Id. 320. She further indicated she used an upright vacuum and handheld vacuum, and the only technical skills or knowledge needed was her cleaning experience. Id. She relied on assistance to prepare her financial information and reports. Id. Fox estimated she walked 50 minutes and stood 40-45 minutes each day on this job. Id. She constantly stooped, occasionally kneeled, almost never crouched, occasionally crawled, and reached frequently. Id. The heaviest object she handled was a lightweight upright vacuum, and only had to handle small objects when dusting. Id. The heaviest weight she lifted was 10 pounds and she never had to move furniture. Id. She would carry equipment and supplies to and from her car, and up and down stairs. Id. She explained she supervised two other people in this job for “maybe a year” and did not spend much time supervising them “except for checking their work quality.” Id.

         Fox's daughter-in-law, Heather, completed a third-party function report dated February 5, 2014. Id. 292-301. Heather reported that Fox is depressed, has anxiety, exhaustion and bathroom issues from her medications, and sleeps irregularly due to her illnesses. Id. 294-295. According to Heather, prior to her illness Fox was able to work five days a week, and visit her family eight or more times a year. Id. 295. Now Fox constantly needs to be close to home to use the toilet. Id. Heather indicated Fox cannot “keep up with bills due to Walmart firing her for her illnesses, ” but she does shop for groceries, drives, and goes outside 10 to 12 times per year. Id. 296. Heather further reported Fox can prepare her own meals and do some laundry and cleaning, although chores are slowly spread out through the week. Id. 297. Heather noted Fox needs help cleaning because she becomes exhausted and feels sick. Id. Fox's hobbies include reading. Id. 298. Heather indicated Fox is a recluse, her only granddaughter rarely sees her, and her family misses her. Id. 299. As described by Heather, Fox has difficulty following through with her promises to visit, she cries a lot and has a fear of leaving her home. Id. 299-300.

         C. Hearing Testimony of Susan Fox

         Fox presented testimony to the ALJ on August 10, 2015. A.R. 99-132, 137-138. She was born April 22, 1952, graduated from high school, and received a diploma. Id. 99. Fox did not pursue education beyond high school except for what she called “self-education.” Id. She is 5'1½" tall, and weighs approximately 266 pounds. Id. 112.

         According to Fox, she has not worked since she became disabled on October 31, 2012, when her doctor told her she needed to quit working at Walmart. Id. 99-100. Fox had worked as a sales associate after starting as an inventory control specialist. Id. 100. She stocked shelves, worked in the pharmacy, set-up, assembled and dissembled displays, moved pallets of merchandise on the floor, picked up merchandise to be brought to the floor, and cashiered. Id. 101.

         Previously, Fox had delivered pizza, and acted as a shift manager on some days, before accepting the position at Walmart which had better wages and benefits. Id. 107-108. Fox also had her own business cleaning houses which started in 1991 and ended in December 2010. Id. 129.

         She worked full time doing “everything” herself except “at one point” she had two part-time employees working for her. Id.

         Fox also earned income as a contract writer of Harlequin Romance novels primarily in the early 2000s. Id. 101-103. Twenty five of her novels were published, some of which are still being published in foreign markets. Id. 101. She considered it a “great moneymaker” for her because she could set her own schedule and spend time with her family. Id. 102. It would take her about three to four months to write a novel and generated up to $18, 000 or $20, 000 a year. Id. 102-103. Her first book was published in 1986, and the last book was published in 2007. Id. 130.

         During the hearing, Fox discussed the health problems which interfere with her functioning, including irritable bowel syndrome and acute colitis. Id. 103. While at Walmart, she had to take leaves of absence because of flares of diarrhea. Id. 104, 122. She tried medications but then would have difficulty with constipation. Id. 104. The doctor attempted to adjust her medications, but could not get the correct balance. Id. 104-105. Fox testified this condition “gets better” but she still has flares. Id. 105. She noted that during the weekend before the hearing she had “tremendous abdominal pain and a lot of diarrhea.” Id. Fox believes if she had a job she would be in the bathroom “off and on” throughout the day even with using pads and liners. Id. 105-106. She estimates she can be in the bathroom for up to an hour and a half, several times a day. Id. 106-107.

         Fox enjoyed her work at Walmart, but quit due to the irritable bowel syndrome. Id. 108. On the days she had bad symptoms, Fox would spend up to an hour and a half in the bathroom. Id. 109. She would take leaves of absence to deal with the symptoms, and adjust her behaviors in other ways to try to control the condition. Id. Fox believes that if she were to be ...

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