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Jackson v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

January 5, 2018

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

          Honorable Waverly D. Crenshaw, Jr., Chief Judge.


          Alistair E. Newbern, U.S. Magistrate Judge.

         Pending before the Court in this Social Security appeal is Plaintiff Carolyn Sue Jackson's Motion for Judgment on the Administrative Record (Doc. No. 14), to which the Commissioner of Social Security has responded (Doc. No. 15). Jackson has filed a reply in support of her motion. (Doc. No. 16.) Upon consideration of these filings and the transcript of the administrative record (Doc. No. 12), [2] and for the reasons given below, the Magistrate Judge RECOMMENDS that Jackson's motion for judgment be DENIED and that decision of the Commissioner be AFFIRMED.

         I. Statement of the Case

         Jackson filed an application for disability insurance benefits under Title II of the Social Security Act on July 5, 2011, alleging disability onset as of May 1, 2011 due to spinal injury, back pain, hepatitis C, depression, and anxiety. (Tr. 14, 153.) Tennessee Disability Determination Services (DDS) denied Jackson's claims upon initial review and again following her request for reconsideration. Jackson subsequently requested de novo review by an Administrative Law Judge (ALJ). The ALJ heard the case on May 16, 2013, when Jackson appeared with counsel and gave testimony. (Tr. 33-61.) A vocational expert also testified at the hearing. The ALJ took the matter under advisement until June 21, 2013, when she issued a written decision finding Jackson not disabled. (Tr. 14-22.) That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2016.
2. The claimant has not engaged in substantial gainful activity since May 11, 2011, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: a back disorder and hepatitis C (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to: sit, stand, and walk each for 6 hours of an 8-hour day; frequently lift/carry 10 pounds; occasionally lift 20 pounds; and never be exposed to hazards found in the workplace. She would . . . also require a sit/stand option. She would be further limited to simple, repetitive work consisting of 1-2 step tasks and instructions. She should perform no work that requires reading or writing as part of the regular job duties. She would be better if shown how to do the task rather than told.
6. The claimant is capable of performing past relevant work as a garment sorter and a sales attendant. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from May 1, 2011, through the date of this decision (20 CFR 404.1520(f)).

(Tr. 16-18, 21.)

         On August 18, 2014, the Appeals Council denied Jackson's request for review of the ALJ's decision (Tr. 1-3), rendering that decision final. This action was timely filed on October 17, 2014. 42 U.S.C. § 405(g).

         II. Review of the Record

         The ALJ summarized Jackson's hearing testimony as follows:

At the hearing, the claimant testified that she works 25 hours a week at Goodwill. Before May 2011, she worked full-time until her pain became unbearable. She lives with her adult son and a male friend. She is able to drive and take the bus. She attends church from time to time. She enjoys performing and spending time with her son. She stated that she is disabled due to illiteracy. She has cirrhosis of the liver from past drug use. She has not used drugs in 18 years. She receives mental health treatment from Victoria Cook. She testified that she is not taking liver medications. She takes hydrocodone for pain twice a day. She is supposed to see a chiropractor for her spine. She stated that she can sit for 5 hours to work, but her pain flares up when she goes home. She admitted she does not have difficulty standing to wash dishes. She testified that she could stand up to one hour. She cannot lift more than 10 pounds. She can walk 30 minutes. She testified that she can lift a gallon of milk and she can occasionally lift a case of water. Her pain medications make her drowsy. She has difficulty comprehending what she reads. She needs help grocery shopping. She can write a grocery list. Her imaginary friends came with her to the hearing. She stated that she sees them every day. They protect the claimant and tell her to lock her doors.

(Tr. 18-19.)

         In her brief, Jackson gives the following summary of the radiographic evidence in the record:

An x-ray of the lumbar spine from May of 2009 revealed mild anterior endplate spurring inferiorly as well as facet arthropathy at ¶ 5-S1. Imaging studies of the bilateral feet from June of 2010 revealed hallux valgus deformity and small plantar calcaneal bone spurs. An x-ray of the left hip from June of 2010 showed mild left hip osteoarthritis. An x-ray of the cervical spine from June of 2010 revealed spondylosis with C5-6 degenerative disc disease and associated small osteophytes impinging upon the right and left intervertebral neural foramina.

         (Doc. No. 14-1, PageID# 438 (citing Tr. 267, 277-80).)

         On March 17, 2011, Jackson presented as a new patient to Dr. Suzette A. Kelly, M.D., complaining of back pain and pain and tingling in her fingers and toes. (Tr. 314.) Jackson also requested “a note from her doctor for her to be put on light duty at work[.]” (Id.) Dr. Kelly made note of Jackson's chronic conditions, including hepatitis C, tobacco use disorder, cervical spondylosis, and cirrhosis of the liver. (Id.) Jackson complained to Dr. Kelly of abdominal pain; paresthesia in her hands that was moderately severe; depression, fear of pain, and being stressed at work; moderately severe neck pain associated with stiffness; and back pain with moderate myalgia of the left leg associated with numbness. (Id.) Dr. Kelly noted that Jackson was anxious, crying, obese, depressed, and displayed poor hygiene. (Tr. 315.) Physical examination produced normal results, aside from a rash on Jackson's face which was thought to be rosacea. (Id.) It was noted that she was “walking around in room, as she [complains of] [left] leg numbness.” (Id.) Dr. Kelly ordered lab work to investigate the cause of the pain and tingling in Jackson's extremities, noted that Jackson's chronic conditions were stable, and recommended that she use over-the-counter pain medications for her spinal pain. (Id.)

         Based on this initial office visit and examination, Dr. Kelly completed a Medical Source Statement (MSS) of Ability To Do Work-Related Activities (Physical), dated March 17, 2011. (Tr. 285-90.) In the MSS, Dr. Kelly opined that Jackson's physical conditions and symptoms resulted in the following limitations: she could occasionally lift/carry up to 10 pounds, but could never lift or carry any weight above 10 pounds; could sit, stand, and walk in combination for a total of two hours and thirty minutes out of an eight-hour day; could use her hands occasionally for reaching, handling, and fingering, but never to push or pull; could occasionally operate foot controls; could frequently climb stairs, ramps, ladders, or scaffolds; and could continuously balance and kneel, frequently crouch and crawl, but only occasionally stoop. (Tr. 285-88.) Dr. Kelly further opined that Jackson's “anxiety syndrome” left her unable to tolerate a noisy workplace, temperature extremes, or pulmonary irritants. (Tr. 289.) Dr. Kelly also wrote a “To Whom it May Concern” letter reflecting her opinion that, based on the examination on March 17, 2011, and Jackson's medical history, she will “have to be on light duty; limit lifting to 5 pounds and restrict pushing and pulling at work.” (Tr. 362.)

         On April 18, 2011, Jackson was again seen by Dr. Kelly, who noted that Jackson “presents today for fasting labs and paperwork to be filled out for restricted duties [at] work[, ] [complains of] neck, shoulder and back pain.” (Tr. 316.) Jackson also reported weakness and stiffness associated with her neck pain, as well as anxiety. (Id.) Dr. Kelly did not perform a physical examination on this date. She did issue another letter outlining Jackson's work restrictions, stating that, as a result of cervical spondylosis “which is osteoarthritis of the lower cervical spine . . . caus[ing] neck pain that radiates into the back of her head, shoulders and arms, ” Jackson would have life-long restrictions against “lifting, pushing or pulling anything more than 5 pounds.” (Tr. 374.)

         Jackson received mental health therapy from Victoria Cook, L.P.C., MHSP, during 2011 and 2012. On April 21, 2011, Ms. Cook wrote a letter in support of Jackson's need to modify her work schedule, stating as follows:

Carolyn Jackson is receiving counseling and psychotropic drug therapy for major depression and panic disorder. Her condition is severe and chronic. I fear that if she continues to work a forty hour week it will result in a mental breakdown. Therefore, it is my recommendation that Ms. ...

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