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Norris v. Berryhill

United States District Court, N.D. Georgia, Atlanta Division

September 29, 2017

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



         Plaintiff Michelle Randall Norris brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying her application for Disability Insurance Benefits (“DIB”).[2] The parties consented to jurisdiction before the undersigned. (See Dkt. Entry dated 3/31/16). For the reasons set forth below, the undersigned REVERSES the final decision of the Commissioner.


         Plaintiff filed an application for SSI on January 9, 2012, alleging disability commencing on January 1, 2009. [Record (hereinafter “R”) 204]. Plaintiff later amended the alleged onset date to September 6, 2011. [R196]. Plaintiff's application was denied initially and on reconsideration. [R110, 121]. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). [R148]. An evidentiary hearing was held on November 14, 2013. [R55-101]. The ALJ issued a decision on May 16, 2014, denying Plaintiff's application on the ground that she had not been under a “disability” at any time through the date of the decision. [R48].

         Plaintiff sought review by the Appeals Council and, on December 1, 2015, the Appeals Council notified Plaintiff that it had granted request for review and would issue a decision finding that Plaintiff is not entitled to benefits after considering any comments or new and material evidence submitted within 30 days. [R9]. Comments and additional evidence were admitted and considered. [R13 (citing Exs. 18B, 20E, 21E, 22E, 18F)]. Upon review, the Appeals Council agreed with the ALJ's findings at steps one through three and five, but did not adopt the ALJ's finding at step four, that Plaintiff could perform some of her past relevant work. [R10]. It also disagreed with the ALJ as to Plaintiff's alleged date of onset, noting that Plaintiff amended that date to be September 6, 2011. [R10]. Nonetheless, the Appeals Council found that Plaintiff was not disabled as she could perform a reduced range of light-exertional level work, given her age, ability to do unskilled work, and residual functional capacity (“RFC”). [R10].

         Plaintiff then filed an action in this Court on April 7, 2016, seeking review of the Commissioner's decision. [Doc. 1-2]. The answer and transcript were filed on August 31, 2016. [Docs. 6-7]. On September 29, 2016, Plaintiff filed a brief in support of her petition for review of the Commissioner's decision, [Doc. 10], and on November 2, 2016, the Commissioner filed a response in support of the decision, [Doc. 11], to which Plaintiff filed a reply, [Doc. 12]. The matter is now before the Court upon the administrative record, and the parties' pleadings and briefs, [3] and is accordingly ripe for review.


         As set forth in Plaintiff's brief, the issues to be decided are as follows:

1. Whether, in assigning Plaintiff a light RFC, as defined by 20 CFR § 404.1567(b) that “requires a change of position among sitting, standing, and/or walking the way the job is typically performed[, ]” the ALJ erred due to formulating a vague RFC.
2. Whether substantial evidence supported the ALJ's reliance upon the vocational expert's (“VE”) opinion when the VE's opinion conflicted with the Dictionary of Occupational Titles (“DOT”), and the ALJ did not resolve the conflict.
3. Whether the ALJ applied an inappropriate standard to evaluate Plaintiff's credibility concerning her subjective complaints of pain and limitations in her daily activities.

[Docs. 10 at 1; 11 at 1].


         A. Background

         Plaintiff was born in July 1960 and therefore was 51 years old on the alleged onset date. [R96]. Her date last insured for purposes of DIB was June 30, 2014. [R222]. Plaintiff completed high school and one year of college and previously worked as a babysitter and bus driver. [R239-40]. She alleges in her disability report that she stopped working on January 1, 2009 “because of my conditions(s)[.]” [R239]. In her hearing, she testified that she last worked, driving a bus, on September 6, 2011, and stopped working because “pain started[.]” [R66]. However, when the ALJ asked Plaintiff if she was terminated from that position, she affirmed, stating it was “because I had an accident and when I described to them that I was in pain they let me go.” [Id.]. Plaintiff initially alleged disability due to “back problems.” [R239].

         B. Lay Testimony

         Plaintiff testified at the hearing before the ALJ that she lives alone in an apartment and receives income from her late husband's pension, which also covers her health insurance. [R64]. She testified that she cared for her granddaughter in 2008. [R83]. Plaintiff testified that, after she was terminated from her last job in 2009, she applied for unemployment benefits but was ineligible to receive them because she had not worked long enough. [R66-67]. She has stopped looking for employment. [R67]. However, she searches online for “a home job or something . . . work from home job[.]” [R86].

         Plaintiff smokes, and, while she has been advised to stop, she has not because of “nerves and frustration, pain[.]” [R67].

         Plaintiff testified that she does not work because she has disc disease in her upper back and arthritis in her lower back that affect her ability to bend and pick things up. [R71]. She gets tingles in her hands due to her upper back problems, has neck pain, had carpal tunnel, and has osteoarthritis in her knee. [Id.]. Plaintiff further testified that her neck pain bothers her at night when she tries to go to sleep and when she wakes up in the morning. [R72]. She described this pain as a nine on a ten-scale, and described it like needles and “goes all the way down to my fingers.” [Id.]. She testified that it is harder for her to walk and sit for long periods of time. [Id.]. Her back pain creates tingling and numbness in her legs from her lower back and described it as an eight of ten every day. [R72-73]. Her osteoarthritis was in her right knee and it creates constant pain when she stands, drives, or walks for long periods of time. [R73].

         Plaintiff also testified that she only sleeps five to six hours at night because of pain in her lower and upper back. [R78]. She explained that, about three times a week, she needs to lie down during the day every twenty to thirty minutes. [R79].

         Plaintiff testified that she has depression that began when her husband died in 2002 and her mother died in 2005, but that she did not seek help until 2012. [R81]. She also claimed that she has post-traumatic stress disorder (“PTSD”) which began between 2008 and 2010 when she was involved in a shooting incident in California. [R81-82]. Plaintiff also has problems with alcohol dependence and drug abuse that began “when my mom passed away in 2005 and I went into a depression and I lost my home trying to, because of her death we didn't have enough money to pay everything.” [R83-84]. Plaintiff testified that she has panic attacks, lasting less than a minute, once or twice a month if she hears something like loud music. [R87-88]. She also has crying spells twice a week that are triggered by thoughts of suicide and her late husband and mother. [R88].

         Plaintiff testified that she receives treatment for her conditions at Kaiser, [R71], where she went once a week for behavioral health counseling in the six months prior to her hearing, [R80]. She claimed that she stopped using alcohol and illicit drugs two months before the hearing and has been in a substance abuse program at Kaiser. [R84-85]. She had a relapse during her treatment because she “got depressed again and . . . was thinking about committing suicide.” [R85].

         Plaintiff testified that she takes medication for neck and back pain in the afternoon. [R72]. Plaintiff also testified that, for the three months preceding the hearing, she got monthly steroid shots for her back which relieve the pain for two weeks. [R73]. She takes Trazodone[5] and Citalopram[6] for her depression and PTSD. [R83]. She takes her medications as prescribed but experiences side effects such as drowsiness and sluggishness. [R78].

         She came to the hearing with a cane and testified that she has been using it for the last 30 days after it was prescribed by Dr. Vick-Bope of Kaiser. [R64-65].

         Plaintiff testified that, on an average day, after she awakens, she washes herself and tries to clean the house and go for a walk. [R79]. She can make her bed, [R81], but cannot vacuum, [id.], and needs help loading and unloading the dishwasher, mopping floors, and dusting. [Id.]. Plaintiff testified that she can sometimes fix dinner, unless it requires stooping to pick up pots, and that her daughter regularly comes by to check on her and assist. [R75]. Plaintiff exercises by walking ten to fifteen minutes until she feels pain in her knee or lower back. [Id.]. She also testified that she goes to the doctor, on average, once a week, [R79-80, ] and drives herself, [R74].

         Plaintiff goes to her neighbor's house to use her computer for an hour or less, [R79, 86], because she cannot afford a computer or anything that has computer capability, [R68]. Plaintiff testified that she socializes very little and sometimes has problems getting along with people because she is “mostly moody all the time.” [R85]. She testified that she likes to fish but cannot sit there long enough. [Id.].

         Plaintiff described a series of limitations. She can stand only for thirty minutes, after which time she starts having pain and pressure. [R68]. She can stand and walk for an hour in an eight-hour day, sit for an hour and a half in an eight-hour day, and can sit continuously for one hour before she needs to get up. [R75]. She fell down at home about a month before the hearing. [R76]. The heaviest item she can lift is a gallon of milk and she does not regularly lift things that heavy, but can carry “maybe under two pounds or less.” [Id.]. She has problems with overhead reaching and dropping things that are too heavy. [R76-77]. Tingles in her fingers and arthritis in her hands made grasping difficult. [R77]. She also denied being able to push and pull things, stating that she cannot vacuum her apartment and has to elevate her legs because of her knee. [Id.]. She has problems with concentration, for example, she cannot concentrate on words to read and her vision gets blurry. [R86-87]. However, she can follow simple instructions. [R87].

         C. Medical Records

         1. Consultative Exams

         On October 12, 2011, Dr. Frank E. Robinson performed a physical examination of Plaintiff and reviewed the history she recounted and medical records received from Good Shepard Clinic. [R320]. He concluded that Plaintiff did not require an assistive device, such as a cane, and had normal gait and range of motion in her hips, knees, ankles, feet, neck, back, shoulders, wrists and forearms, [R321-22], and normal grip and pinch strength in both hands, [R323].

         On July 2, 2012, Dr. Robysina James performed a consultative examination. Plaintiff advised that she developed neck pain in 1997 while driving a bus in California due to repetitively needing to pull down on a pole in the bus. [R345]. Plaintiff claimed that she visited a neurologist at the time and had an MRI which revealed a bulging disc and narrowing of the C4-C5 disc space, that she was treated with pain medications and physical therapy, and that, prior to the relevant time period, she had no treatment since 2000. [Id.]. Plaintiff also claimed that the pain was confined to her neck, with no radiation to upper extremities, but that, if she tilted her head back, she felt tingling in both arms and hands. [Id.]. She denied numbness but stated that she slept with a cervical pillow to reduce the pain. [Id.].

         Dr. James observed that Plaintiff had “no difficulty undressing or moving on and off the examination table.” [R346]. Upon examination, Dr. James found that Plaintiff had reduced active and passive right lateral bending and extension of thirty and forty percent, respectively, in her neck. [R340]. Her exam revealed “no swelling, erythema, warmth, or masses” in the cervical spine, paravertebral or trapezius muscle spasm or tenderness” or “tenderness of spinous processes.” [R346]. Dr. James observed that Plaintiff had normal range of motion in her hips, knees, ankles, and feet and noted that she had normal ambulation and did not require an assistive device such as a cane. [R345]. Plaintiff was assessed with grip and pinch strength of 5/5 in both hands. [R342]. Based upon the history that Plaintiff provided, her physical examination, x-ray reports, and information sent to her, Dr. James diagnosed Plaintiff with “neck pain”and stated that Plaintiff “would be expected to be limited in her ability to do repetitive lifting, overhead work, and climbing . . . limited in all activities that require constant turning and twisting of her head and neck.” [R347].

         2. Treatment Records for Carpal Tunnel Syndrome

         Plaintiff claims that she previously had carpal tunnel syndrome. [R71, 320, 402]. It is unclear from her accounts when this was, but she has alleged that she had surgery on both hands in 1999, [R515, 558], and only on the right hand in 2002, [R455]. Although Plaintiff complained of pain and weakness in both hands and history of carpal tunnel on October 16, 2012, [R455], a test of muscle strength by group revealed that her strength was 5/5 in both her wrist flex, fingers, and thumb abductions, [R458]. At her November 14, 2012 annual physical, Plaintiff was assessed with muscle strength of 3/5 in her right hand and a normal range of motion in the joints without pain or mechanical limitation. [R397, 399]. A January 2013 a physical exam revealed full range of motion in her elbows and wrists. [R367].

         3. Treatment Records for Back, Neck, Leg, and Hip Pain

         On August 31, 2011, Plaintiff complained of lower back pain and left hip pain, but left her medical provider's office without being seen. [R325]. Her first reported attempt to seek treatment for pain during the relevant period was in September 2011 when she visited Southside Medical Center, [R299]. Treatment notes reflect that she alleged left hip pain for the preceding four months and was prescribed Tramadol, [7]Naprosyn, [8] and Flexeril.[9] [Id.]. Her next claims of pain are from November 2011, when she reported numbness and tingling in both hands and pain in her upper back that improved upon laying down and the application of heat. [R324].

         A July 9, 2012 x-ray of Plaintiff's cervical spine revealed severe degenerative disc disease at C3-C6 and straightening of the normal cervical lordosis. [R339]. On August 29, 2012, Plaintiff reported left lower back pain over the last several years and left hip and right knee pain over the last two to three months. [R409]. X-rays showed mild degenerative arthritis of the lower back and right knee. [R569]. However two x-ray studies done four weeks before revealed normal hip x-rays. [R409]. She was diagnosed with chronic low back pain and knee joint pain and advised to apply heat and cold therapy and avoid lifting heavy things until the pain subsided. [R410].

         On September 26, 2012, Plaintiff underwent an initial evaluation by Physiotherapy Associates. [R356]. Plaintiff reported lower back pain radiating into her left leg at a level of a seven out of ten. [Id.]. Objective examinations revealed that she was hypomobile[10]/painful in her left and right lumbar regions; had lower extremity strength of four out of five, tenderness along her left lumbar spine, and moderately limited range of motion in her spine's active lumbrosacral; that prone knee bends aggravated her symptoms; and that stomping and straight leg raises aggravated her left knee symptoms. [R356-57]. She was advised to undergo a two-month course of physical therapy and home exercises for her low back pain. [R357]. Plaintiff reported in November 2012 that she was unable to continue physical therapy due to cost. [R398].

         An October 16, 2012 MRI of Plaintiff's cervical spine revealed moderate to severe multilevel degenerative disease at C4-C5, C5-C6, and C6 levels. [R571]. At her November 14, 2012 annual physical, Plaintiff stated she wanted to see a disability doctor because she was seeking to obtain disability for her neck and leg pain, although she was assessed without pain or mechanical limitation. [R398]. She was diagnosed with hypothyroidism.[11] [R399]. It was also noted that she had hypertension for which she was taking medication. [R400].

         On November 19, 2012, Plaintiff underwent an electromyogram and nerve conduction study of her bilateral hands and was diagnosed with numbness and tingling of skin. [R360-61]. However, Plaintiff could not tolerate nerve conduction or concentric needle examination studies in her upper right extremities, so the study was discontinued and the facility was unable to exclude cervical radiculopathy or median neuropathy. [R362].

         Earlier in November 2012, Plaintiff was assessed with osteoarthritis of the knee and strength of a three out of five in her right leg. [R399-400]. However, an examination showed normal gait and range of ...

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