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Edwards v. Berryhill

United States District Court, D. South Dakota, Western Division

March 22, 2019

DORIS EDWARDS, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Doris Edwards, seeks review of the decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits (SSDI) under Title II of the Social Security Act, 42 U.S.C. § 423. Docket 17. The Commissioner opposes the motion and urges the court to affirm the denial of benefits. Docket 18. For the following reasons, the court affirms the decision of the Commissioner.

         PROCEDURAL HISTORY

         Edwards filed for SSDI benefits on July 29, 2014, alleging disability since April 3, 2010. AR 91, 285. The Commissioner denied her claim initially on January 22, 2015, and upon reconsideration on April 22, 2015. AR 117-21, 126-32. Edwards then appeared with counsel before Administrative Law Judge (ALJ) Michele M. Kelley on January 10, 2017. See AR 30 (transcript of hearing). The ALJ issued an opinion affirming the denial of benefits on April 5, 2017. AR 11-23. The Appeals Council denied Edwards's request for review on November 14, 2017. AR 1-4. Thus, Edwards's appeal of the Commissioner's final decision is properly before the court under 42 U.S.C. § 405(g).

         FACTUAL BACKGROUND

         Plaintiff, Doris Edwards, was born on July 5, 1960. AR 40. Edwards is a military veteran and divorced. AR 577, 612. At the time of the hearing, Edwards was living with a female roommate named Alice. AR 47. Edwards and Alice have lived together “on and off” since 1999. AR 52. Between the onset date and the date last insured, Edwards lived with Alice. AR 49-50. During the relevant time period, Alice assisted Edwards with several activities like dressing, showering, and caring for Edwards's emotional support dog. AR 47, 52-53, 621-22.

         Before the onset date, Edwards had the following health issues: hearing loss, sleep apnea, obesity, shoulder injury, osteoarthrosis of the leg and knee, dysthymia, knee injury, ovarian cancer, depression, and asthma. AR 652 (emergency department problem list from April of 2009). To address the sleep apnea issue, Edwards used a sleep apnea machine. AR 622. Edwards's shoulder injury stemmed from an injury during her time in the military. AR 462, 577. Edwards has a history of multiple orthopedic surgeries. AR 576-77. Edwards has been cancer free since 2005. AR 462. Additionally, on February 24, 2010, Edwards was diagnosed with plantar fasciitis. AR 573-74.

         In July of 2009, Edwards was diagnosed with fibromyalgia. AR 357-58. Edwards was prescribed medication to treat this condition. AR 588. On March 18, 2010, Edwards complained her fibromyalgia was “still bothersome.” AR 577. Dr. Margaret Becker, Edwards's primary care physician, assessed Edwards's fibromyalgia as “not well controlled.” AR 560. At her next primary care appointment with Dr. Becker on June 14, 2010, Edwards complained her fibromyalgia was “acting up.” AR 546. At this time, Dr. Becker changed her prescription. AR 549. On November 26, 2010, Edwards's MRI scans showed mild degenerative disc changes but no significant canal or foraminal stenosis. AR 666. At a neurology consultation with Dr. Laurie A. Weisensee on April 6, 2011, Edwards's lumbar spine magnetic resonance imaging was unremarkable. AR 463. Dr. Weisensee stated she did not find any neurologic concerns. Id.

         Edwards also has chronic pain in her knees, hips, and lower back. On June 2, 2010, both of Edwards's knees were x-rayed. AR 670-73. All three compartments of her knees demonstrated osteoarthritic changes. AR 671, 673. At an orthopedic consultation with Dr. Curtis Hartman on September 3, 2010, Edwards complained of longstanding bilateral knee pain, numbness in her legs, and falling on a regular basis. AR 359. Dr. Hartman stated the x-rays showed “significant arthritic changes” in the knee, mild to moderate. AR 360. Also, he worried that the majority of the pain was related to Edwards's back and lumbar spine. Id.

         At a primary care appointment with Dr. Becker on September 22, 2010, Edwards had tenderness throughout her back muscles and spine. AR 510. Dr. Becker stated Edwards's hip films from a year ago were “unremarkable.” Id. On October 4, 2010, Edwards's lumbar spine film showed there was no fracture or malalignment. AR 667. Additionally, she had unremarkable bilateral hip films. AR 668-70. On November 26, 2010, Edwards's lumbar spine film showed no significant canal or foraminal stenoses, but did show mild degenerative disc changes and mild facet acropathy. AR 664-66.

         On April 6, 2011, at Edwards's neurology consultation with Dr. Weisensee, Edwards complained of chronic pain in her bilateral knees and back. AR 462. Dr. Weisensee opined there were degenerative findings in Edwards's knees; she also noted that Edwards's hip films were unremarkable. AR 463. At her primary care appointment on September 19, 2011, Dr. Becker noted Edwards had lower back tenderness, knee pain, and used crutches. AR 446. Edwards's radiology films from September 22, 2011, showed Edwards had osteoarthritis and mild degenerative joint disease in her knees. AR 662. Edwards did not have another primary care appointment with Dr. Becker for the next two years. AR 384, 416.

         In addition to her physical health issues, Edwards received treatment for her mental health. Edwards was diagnosed with depression, which her mental health providers, Dr. Shirley Herbel and Dr. Thomas J. Jewitt, classified as a chronic condition. AR 466, 551. Edwards had mental health counseling sessions with Dr. Herbel, a psychologist at the Veterans Affairs Black Hills Fort Meade Campus, to address her symptoms of depression/dysthymia. AR 641. These sessions occurred between every three to four weeks (AR 641) or between every four to six weeks (AR 585) depending on Edwards's depression and symptoms. In the record, Dr. Herbel's treatment notes for Edwards start around May of 2009. AR 641. During the relevant time period, Edwards met with Dr. Herbel twenty-three times. AR 390, 391, 393, 402, 404, 421, 425, 429, 431, 434, 436, 440, 455, 456, 460, 464, 481, 495, 504, 518, 538, 551, 552.

         Additionally, Edwards met with Dr. Jewitt, a physician at the VA Black Hills Fort Meade Campus, for her mental health medication checkups. AR 640. Dr. Jewitt specialized in psychiatry. AR 68-71. In the record, Dr. Jewitt's treatment notes start around June of 2009. AR 639-40. Dr. Jewitt generally met with Edwards twice a year. AR 846. During the relevant time period, Edwards met with Dr. Jewitt six times. AR 417, 459, 466, 505, 553, 554.

         For the current claim, Edwards's onset date is April 3, 2010. AR 11, 285. Her date last insured status expired on December 31, 2012. AR 33. Edwards's original onset date was September 16, 2006. AR 285. But Edwards's first social security claim covered the time of her original onset date to April 1, 2010 (the date her first claim's decision was issued). AR 11. Edwards previously filed a social security claim in 2015 but was denied based on her receipt of Veterans Affairs benefits. AR 33. Her VA benefits decreased in amount in January of 2016. AR 33. The decrease in VA benefits allowed her to be eligible for social security disability insurance benefits. Id.

         ADMINISTRATIVE HEARING

         During the administrative hearing, the ALJ heard testimony from Edwards and a vocational expert. Edwards, represented by counsel at the hearing, testified about the pain she had during the relevant time period. Edwards stated she experienced a constant sharp pain from “the top of [her] head to the tip of [her] toes.” AR 40. She testified that her doctors told her the pain was caused by fibromyalgia and prescribed her medication. AR 40.

         Edwards also testified about the constant pain in her right shoulder and both of her knees. AR 41. Edwards testified she had complete knee replacements of both her knees the year before the hearing (outside of the relevant time period). AR 50. Edwards stated that even after her knee replacements she still used a cane to walk because of her fear of falling. AR 51. She testified that she still had a lot of pain in her knees, but it was “a little less” than before the replacements. AR 51. She also mentioned she had surgery on her left shoulder. AR 50.

         Edwards testified about how her pain affects her daily activities. AR 43-44. She stated she can only sit and stand for ten-minute increments and can only walk for five minutes. AR 43. She said her ability to lift is also restricted by the limited use of her right arm. AR 44. Her pain only allows her to sleep for two-hour increments. AR 46. Her day consisted of waking up, taking care of her dog, her roommate making her breakfast, sitting on the couch to watch TV, and taking a nap. Id. Edwards testified that she can only sit for a short period of time before she has to get up, move around, and then can sit down again. Id. She also testified that she needed help from her roommate to take a shower and get dressed. AR 47. Edwards also testified about caring for her dog. AR 46. Edwards stated she owned a Jack Russel terrier as an emotional support dog during the relevant time period. AR 47, 52.

         Additionally, Edwards testified about her use of assistive devices. AR 41-42. She stated that during the relevant time period, she used crutches (held by her hands) that were prescribed by her doctor. AR 41. She testified that she was prescribed the crutches because her knees were damaged and she could not stand up on her own or she would fall. AR 42. Also, during the relevant time, she was prescribed a wheeled walker. Id. She used the walker to assist in walking and to sit for rest when she was outside on level ground. Id.

         Edwards also testified about various trips she took during the relevant time period. AR 47-49. Edwards took two road trips, one to California and one to Texas. Id. The purposes of the trips were to visit family. AR 47. During these trips, Edwards's roommate or sister drove, and they took several stops to eat, rest, and for Edwards to move around. Id.

         Edwards also testified about her depression. AR 45. Edwards stated that her depression was severe. Id. She explained how her depression made her feel useless and that she attempted suicide. Id. She testified that she was prescribed medication that helped with her depression. Id.

         William Tisdale served as the vocational expert at the hearing. AR 54. The ALJ posed two hypotheticals. AR 56-57, 60-61. For the first hypothetical, the ALJ asked whether an individual with the similar past work history, age, and educational background as Edwards, who could stand and walk for two hours, sit for six hours, with additional lifting and moving limitations, could perform any of Edwards's past jobs. AR 56-57. The vocational expert stated that such an individual could work as a night auditor, a billing clerk, and a cashier. AR 57-59. For the second hypothetical, the individual was the same as the first but was off task two hours per work day. AR 60-61. The vocational expert testified that the individual could not perform any of Edwards's past work or be a billing clerk. AR 61. Edwards's attorney also asked about a hypothetical situation to the vocational expert. Id. Edwards's attorney asked what jobs were available for an individual who could sit and stand for ten minutes at a time and only walk for five minutes. Id. The vocational expert stated that the individual could not perform any job. AR 62.

         ALJ DECISION

         Employing the five-step analysis associated with an application for social security benefits, the ALJ denied Edwards's claim on April 5, 2017. AR 23. At step one, the ALJ found that Edwards had not engaged in substantial gainful activity from her alleged onset date, September 16, 2006, through her date last insured, December 31, 2012. AR 13. At step two, the ALJ determined Edwards had the following severe impairments: osteoarthritis of the knees, degenerative disc disease, asthma, plantar fasciitis bilaterally, and obesity. AR 13.

         At step three, the ALJ concluded Edwards did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 15. At step four, the ALJ found Edwards had the residual functional capacity (RFC) to perform sedentary work with some limitations.[1] AR 17, 21. At step five, the ALJ found, through the date last insured, Edwards was capable of performing past relevant work as a night auditor, medication aide, and cashier. AR 21. The ALJ held that based on Edwards's age, education, work experience, and RFC, through the date last insured, Edwards was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. AR 23. Thus, the ALJ concluded that Edwards was not disabled under the Social Security Act. Id.

         STANDARD OF REVIEW

         The court must uphold the ALJ's decision if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). “ ‘Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the conclusion.' ” Teague, 638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). When reviewing the record, “the court ‘must consider both evidence that supports and evidence that detracts from the Commissioner's decision.' ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). If the Commissioner's decision is supported by substantial evidence in the record as a whole, the court may not reverse it merely because substantial evidence also exists in the record that would support a contrary position or because the court would have determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).

         The court also reviews the Commissioner's decision to determine if an error of law has been committed, which may be a procedural error, the use of an erroneous legal standard, or an incorrect application of the law. Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are reviewed de novo with deference accorded to the Commissioner's construction of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir. 2008)).

         THE FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS

         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); 42 U.S.C. § 1382c(3)(A). “An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that 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 the national economy[.]” 42 U.S.C. § 423(d)(2)(A). An ALJ must apply a five-step procedure when determining if an applicant is disabled. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993). The steps are as follows:

         Step One: Determine whether the applicant is presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b).

         Step Two: Determine whether the applicant has an impairment or a combination of impairments that are severe. 20 C.F.R. ...


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