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Nelson v. Berryhill

United States District Court, W.D. Virginia, Harrisonburg Division

March 31, 2017

MARKITA D. NELSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM OPINION

          Joel C. Hoppe United States Magistrate Judge

         Plaintiff Markita D. Nelson (“Nelson”) asks this Court to review the Commissioner of Social Security's (“Commissioner”) final decision denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434, 1381-1383f. The case is before me by the parties' consent under 28 U.S.C. § 636(c)(1). Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that the Commissioner's decision is supported by substantial evidence.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).

         “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). Ultimately, this Court must affirm the ALJ's factual findings if “conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         A person is “disabled” if he or she is unable 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.

         II. Procedural History

         Nelson filed for DIB and SSI on March 19, 2012, alleging disability caused by depression, blood clots in her left leg, attention deficit hyperactive disorder, Human Immunodeficiency Virus (“HIV”), and bipolar disorder. Administrative Record (“R.”) 368-69, 376-83, 409, 413, ECF No. 9. She alleged an onset date of October 17, 2010, at which time she was twenty-seven years old. R. 368, 376, 409. Disability Determination Services (“DDS”), the state agency, denied her claims at the initial, R. 124-34, 135-45, and reconsideration stages, R. 155-68, 169-82.

         On June 10, 2014, Nelson appeared with counsel at an administrative hearing before ALJ Brian B. Rippel. R. 83-119. Nelson testified that she worked fifteen to thirty-five hours per week as a sandwich maker at Burger King from September 2012 to August 2013. R. 90-91, 99. This job required her to stand for four to five hours a day, which caused swelling in her legs and pain. R. 99. She left that job and began working full-time as a certified nursing assistant (“CNA”) because she thought it would be easier on her legs than working at Burger King. Id. Nelson had one patient, who she assisted in showering, getting up and down, walking to the bathroom, cooking, and cleaning. R. 101. In November 2013, Dr. Gray “put [her] off of work” because Nelson felt that she might drop a patient when her arms or hands went weak or her legs gave out or hurt. R. 89-90. She did not seek other work because of her physical problems, including weakness in her arms and legs and pain in her back and neck. R. 92-93. She also experienced numbness in her hands. R. 94. Thurner-May syndrome caused her legs to swell, and a stent placed in her left leg in 2012 made the swelling worse. R. 93. Her legs swelled even when she was sitting, and she could not walk with a cane because she would drop it. R. 97. Nelson also had trouble holding plates, cups, and her laptop computer, all of which she had dropped. R. 97- 98. She could no longer engage in everyday activities with her children, do housework, or cook. R. 93, 96. Nelson took Gabapentin for nerve pain, but it caused her vision to become blurry and her arms and hands to go numb. R. 94, 116. She took Dilaudid, Oxycodone, and morphine, but they just made her tired and dizzy and did not help her pain. R. 94. Although she did not take them the day of the hearing, Nelson had been prescribed Amitryptyline and Tramadol. R. 95. Those medications “knocked [her] out” or put her to sleep. R. 95. Side effects from her pain medications prevented her from being able to cook for her children, and it took her hours to clean a single room in her house because she had to take breaks to rest. R. 95-96. She could stand for five minutes before needing to sit. R. 100. After taking pain medications, Nelson could not stand at all because she would fall. Id. She had experienced leg pain for years, but it was getting worse. R. 99. After Nelson testified, a vocational expert also testified regarding the nature of her past work and her ability to perform other jobs in the national and local economies. See R. 102-16.

          ALJ Rippel denied Nelson's claim in a written decision issued on July 24, 2014. R. 71- 82. He found that Nelson had severe impairments of HIV seroconversion, history of leukopenia and thrombocytopenia, venous system disorder status post left iliac stenting, mild L5-S1 arthropathy, and history of May-Thurner Syndrome. R. 73. Although Nelson had been diagnosed with bipolar disorder, attention deficit hyperactivity disorder, and post-traumatic stress disorder, the ALJ deemed them non-severe. R. 74. The ALJ then determined that none of Nelson's impairments, alone or in combination, met or medically equaled the severity of a listed impairment. R. 74-77. As to Nelson's residual functional capacity (“RFC”), [1] she could perform medium work[2] with the additional limitations that she could occasionally push/pull and perform foot controls with her left lower extremity and frequently stoop and crouch. R. 77. Given this RFC, Nelson could not return to her past relevant work, but she could perform other jobs in the national and local economies as identified by the vocational expert. R. 81-82. Therefore, the ALJ determined that Nelson was not disabled. R. 82. The Appeals Council denied Nelson's request for review, R. 1-4, and this appeal followed.

         III. Discussion

         Nelson challenges the ALJ's credibility assessment Pl. Br. 5-11, ECF No. 14. Nelson argues that pain in her left lower extremity prevents her from performing the physical demands of medium work, interferes with her ability to concentrate, and would affect her work attendance.

         The regulations set out a two-step process for evaluating a claimant's allegation that she is disabled by symptoms, such as pain, caused by a medically determinable impairment. Fisher v. Barnhart, 181 F.App'x 359, 363 (4th Cir. 2006) (citing 20 C.F.R. § 404.1529). The ALJ must first determine whether objective medical evidence[3] shows that the claimant has a medically determinable impairment that could reasonably be expected to cause the kind and degree of pain alleged. 20 C.F.R. § 404.1529(a)-(b); see also Craig, 76 F.3d at 594. If the claimant clears this threshold, then the ALJ must evaluate the intensity and persistence of the claimant's pain to determine the extent to which it affects her physical or mental ability to work. SSR 16-3p, 2016 WL 1119029, at *4 (Mar. 16, 2016); see also Craig, 76 F.3d at 595.

         The ALJ cannot reject the claimant's subjective description of her pain “solely because the available objective medical evidence does not substantiate” that description. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). Nonetheless, a claimant's allegations of pain “need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers.” Craig, 76 F.3d at 595.[4] The ALJ must consider all the evidence in the record, including the claimant's other statements, her daily activities, her treatment history, any medical-source statements, and the objective medical evidence, id. (citing 20 C.F.R. ยง ...


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