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Kersh v. Berryhill

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

March 6, 2018

GWENDOLYN GAY KERSH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.[1]

          ORDER AND OPINION [2]

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Gwendolyn Gay Kersh (“Plaintiff”) brought this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), 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”) and Supplemental Security Income Benefits (“SSI”) under the Social Security Act.[3] For the reasons below, the undersigned AFFIRMS the final decision of the Commissioner.

         I. PROCEDURAL HISTORY

         Plaintiff filed applications for DIB and SSI on February 11, 2013, alleging disability commencing on October 1, 2011. [Record (hereinafter “R”) at 204-15]. Plaintiff's applications were denied initially on July 9, 2013, and upon reconsideration on November 27, 2013. [R85-136, 141-48, 153-56]. Plaintiff filed a written request for a hearing before an Administrative Law Judge (“ALJ”) on December 31, 2013. [R157-58]. An evidentiary hearing was held on January 28, 2015, [R46-84], during which Plaintiff amended the alleged onset date to August 23, 2013, her fifty-fifth birthday, [R50, 233]. The ALJ issued a decision on March 20, 2015, denying Plaintiff's application on the ground that she was not “disabled” under sections 216(i) and 223(d) of the Social Security Act from the alleged onset date of August 23, 2013, through the date of the decision. [R35]. Plaintiff sought review by the Appeals Council, and the Appeals Council denied Plaintiff's request for review on May 18, 2016, making the ALJ's decision the final decision of the Commissioner. [R1-6].

         Plaintiff then initiated her action in this Court on July 22, 2016, seeking review of the Commissioner's decision. [Doc. 1]. The answer and transcript were filed on December 16, 2016. [Docs. 9, 10]. On January 18, 2017, Plaintiff filed a brief in support of her petition for review of the Commissioner's decision, [Doc. 13], and on February 17, 2017, the Commissioner filed a response in support of the decision. [Doc. 14].[4] The matter is now before the Court upon the administrative record, the parties' pleadings, and the parties' briefs, and it is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. STATEMENT OF FACTS[5]

         A. Background

         Plaintiff was born on August 23, 1958, and therefore was fifty-six years old at the time the ALJ issued his decision. [R35, 53, 233]. Plaintiff has a high-school education and prior work experience as both a stock clerk and a collector. [R52-53, 237, 248]. She alleges disability based on chronic kidney disease, emphysema, high blood pressure, high cholesterol, acid reflux, chronic pulmonary disease (“COPD”), depression, anxiety, panic attacks, and arthritis in the back. [R51, 247].

         B. Lay Testimony

         In the hearing held before the ALJ, Plaintiff testified that she had not engaged in any work activity since her disability onset date of August 23, 2013. [R53]. She stated she has depression, and that the last couple of years had been difficult for her and her husband because he had lost his job, they had to declare bankruptcy, they lost their house, and they had to move in with Plaintiff's parents. [R57, 77-78]. She reported that her general practitioner prescribes her medication for depression but that it had not been recommended that she see a mental-health professional. [R78]. She takes an antidepressant every day and “get[s] through it the best [she] can.” [R78].

         Plaintiff explained that her most severe medical impairments are fatigue and the arthritis in her back. [R54]. She indicated that the pain was in her lower back and goes down in her legs, [R57], and that it keeps her from doing a lot of housework and requires her to break up tasks over the course of a day. [R54-55]. Plaintiff treats the back pain with naproxen[6] and aspirin and will lie down during the day for relief. [R56]. Plaintiff testified that since her husband lost his job, she has been without health insurance, which negatively affected her ability to seek treatment for her back pain. [R56-57].

         Plaintiff further testified that she has been treated for shortness of breath, bronchitis, emphysema, and COPD, and that she had cut back to smoking one-to-two cigarettes per day. [R59]. She stated that pulmonary function testing was suggested when she was first diagnosed with COPD, but it was at about the same time her husband lost his job. [R61-62]. She reported that shortness of breath caused her fatigue but that she was not on any medication for a pulmonary condition. [R63-64].

         Plaintiff also reported that she has pain associated with the use of her right arm and hand and has difficulty lifting laundry, washing dishes, and folding clothes. [R75-76]. She takes Nexium[7] every day for a hiatal hernia and stomach ulcer, [R79], and she takes medication every night for neuropathy she characterizes as burning pain in her feet, [R80]. She stated that the neuropathy medication helps a lot but that leg pain still limits her sleeping, which causes daytime fatigue and affects her concentration. [R80-81].

         C. Medical Records

         In June 2004, Plaintiff sought medical care at Rockdale Family Practice, P.C., for neck pain and numbness in the middle two fingers of her right hand. [R390]. The impression given was neck pain and paresthesia[8] in the fingers of the right hand; Plaintiff was referred for a neck x-ray, and she was prescribed neurontin.[9] [R390].

         Plaintiff returned to Rockdale Family Practice on March 22, 2005, with complaints of back pain, numbness in her hand, and pain in the right upper quadrant of her abdomen. [R386]. It was noted that an x-ray of Plaintiff's right hand showed arthritic changes but was otherwise remarkable, and an MRI yielded normal results. [R386]. Plaintiff was started on nonsteroidal medications, given bilateral elbow bands for tendinitis, and given twenty Darvocet-N 100 pills, [10] with no refills. [R386].

         On March 21, 2010, after Plaintiff experienced slurred speech, she underwent a head computerized tomography (“CT”) scan at Rockdale Medical Center. [R424]. The interpreting physician opined that the CT showed no acute abnormality but also noted that it showed “coarse calcifications in the caudate nuclei and lateral basal ganglia on the left, ” that the calcifications were “likely degenerative but could be physiological, ” and that clinical correlation could be helpful in determining their significance. [R424].

         A month later, Plaintiff suffered generalized weakness and shortness of breath and was admitted for hospitalization at Rockdale Medical Center. [R431-37]. Her current medications were noted to be Nexium, Lipitor, [11] and lisinopril.[12] [R433]. She was assessed with acute bronchitis, [13] dehydration, hypokalemia, [14] and hypomagnesemia.[15] [R433].

         On February 15, 2011, Plaintiff was found unresponsive by her husband and subsequently hospitalized for an overdose of tramadol.[16] [R450]. At discharge, her medications consisted of albuterol, [17] Lipitor, clonidine, [18] Nexium, KCI, [19] lisinopril, and amlodipine.[20] [R444].

         On January 13, 2012, Plaintiff reported to Snapfinger Woods Family Practice Group with complaints of cough, wheezing, chest discomfort, sinus pressure and congestion, and nasal drainage and congestion. [R483]. A chest CT taken on January 18, 2012, indicated emphysema but was negative for acute pulmonary process. [R496].

         A head and neck CT taken on March 5, 2013, showed arthritic changes to Plaintiff's right hand and shoulder and “presumed” small airways disease. [R543-44].

         On May 4, 2013, state agency medical consultant Abraham Oyewo, M.D., reviewed the record and opined that Plaintiff did not have any exertional, postural, or manipulative limitations, but must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. [R93-94, 105-06].

         In June 2013, licensed psychologist Douglas E. Webb, Jr., Ph.D., conducted a consultative psychological evaluation. [R551-56]. In addition to her physical complaints, Plaintiff alleged anxiety, panic attacks, and depression. [R551]. Plaintiff reported that she began receiving outpatient treatment for depressive symptoms in 2002 and was prescribed antidepressant medications by her family physician. [R552]. Dr. Webb diagnosed Major Depressive Disorder (Moderate). [R554]. He opined that Plaintiff was not limited in terms of understanding and remembering simple and detailed instructions in a work setting or sustaining concentration, persistence, and pace. [R555]. He further opined that she was mildly limited in terms of interacting with the public, co-workers, and supervisors, and adapting to the stress of a typical work environment. [R556].

         On July 5, 2013, state agency reviewing consultant Allen Carter, Ph.D., opined that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; and mild difficulties in maintaining concentration, persistence, or pace. [R91-92, 103-04].

         On October 8, 2013, state agency reviewing consultant Janise Hinson, Ph.D., affirmed the mental rating assessed by Dr. Carter in July 2013. [R116, 130].

         On October 25, 2013, state agency reviewing physician Madena Gibson, M.D., affirmed Dr. Oyewo's May 2013 assessment of Plaintiff's physical limitations. [R116-19, 130-33].

         On November 20, 2013, Plaintiff underwent a consultative examination conducted by G. N. Kini, M.D. [R575-81]. Plaintiff reported, among other things, that she had been having lower-back pain, radiating into her legs, for the past ten years and had been investigated for it, was receiving pain medication from a pain clinic, and had refused to take an epidural steroid injection that had been recommended. [R575-76].

         Her present medications were Xanax, [21] a Ventolin inhaler, gemfibrozil, [22] lisinopril, amlodipine, meloxicam, [23] and omeprazole.[24] [R576]. Upon examination, Dr. Kini found that Plaintiff's lungs were clear; she had normal range of motion in her back, neck, shoulders, elbows, forearms, wrists, hip, knees, ankles, and feet; a straight-leg raising test[25] was normal on both sides; her manual dexterity, grip and pinch strength, graded extremity strength, and gait were normal; and an x-ray of the lumbar spine yielded normal results. [R576, 578-81]. Dr. Kini assessed chronic cigarette abuse, questionable COPD, controlled hypertension, acid reflux, anxiety, depression, and back pain. [R577]. He opined that Plaintiff's anxiety and depression did “not appear to be serious enough to consider disabling” and that her “back pain also does not appear severe enough to prevent her from being employed in most normal occupations.” [R577]. Dr. Kini further opined that if Plaintiff used an inhaled steroid and long-acting bronchodilator, “she should be able to work in her previous occupation as a secretary without any problems, ” and he stated that overall, Plaintiff's examination “did not substantiate her claim of disability.” [R577].

         On November 27, 2013, state agency reviewing physician William Hand, M.D., affirmed Dr. Oyewo's May 2013 assessment of Plaintiff's physical limitations. [R116-17, 130-31].

         D. ...


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