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Cook v. Berryhill

United States District Court, D. Kansas

March 30, 2017

CONNIE COOK, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant. [1]

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Plaintiff Connie Cook seeks review of a final decision by Defendant, the Commissioner of Social Security, denying her application for disability insurance benefits and supplemental social security income. Cook alleges error by the administrative law judge (“ALJ”). Specifically, she contends that neither the ALJ's residual functional capacity (“RFC”) assessment nor his credibility analysis were supported by substantial evidence. Having reviewed the record, and as described below, the Court disagrees and affirms the order of the Commissioner.

         I. Factual and Procedural Background

         In March 2013, Connie Cook applied for disability insurance benefits and supplemental social security income. She claimed disability due to glaucoma, Meniere's disease, depression, high cholesterol, and hearing loss. The alleged onset date of the disability was December 21, 2012, when Cook was 57 years old. Her application was denied initially and upon reconsideration. Cook then asked for a hearing before an ALJ.

         ALJ James Harty held an administrative hearing on January 7, 2015. Cook appeared and testified at that hearing, as did Melissa Brassfield-an impartial vocational expert. Cook requested a supplemental hearing that was held on September 16, 2015. Cook testified again at the supplemental hearing. Dr. Ronald Devere-an impartial medical expert-and Cynthia Younger-an impartial vocational expert-also appeared and testified at the supplemental hearing. Cook was represented by counsel at both hearings.

         The ALJ issued a written decision on November 20, 2015. The ALJ found that Cook had not engaged in substantial gainful activity since the alleged onset date. The ALJ found that Cook suffered from the following severe impairments: Meniere's disease, bilateral hearing loss, and hypothyroidism. In addition to those severe impairments, the ALJ also found that Cook suffered from glaucoma, diabetes mellitus, and left cerebellopontine angle meningioma, status post craniotomy. But the ALJ determined that these impairments were non-severe. The ALJ further determined that Cook's medically determinable mental impairment of major depressive disorder was also non-severe. The ALJ went on to find that Cook 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.

         Next, the ALJ found that Cook had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she could lift and carry 40 pounds occasionally and 25 pounds frequently. Additionally, the ALJ found that Cook could sit, stand and/or walk for 6 hours in an 8-hour workday. According to the ALJ, Cook could not climb ladders, ropes, or scaffolds, but could tolerate occasional exposure to dangerous moving machinery and unprotected heights.

         Given Cook's RFC, the ALJ found that she was capable of performing her past relevant work as a dental hygienist. Thus, the ALJ concluded that Cook had not been under a disability from December 21, 2012, through the date of the decision.

         Cook requested a review of the hearing with the Appeals Council, which was denied on January 27, 2016. Accordingly, the ALJ's November 2015 decision became the final decision of the Commissioner. Cook filed a Complaint in this Court. She argues that the ALJ's RFC assessment was not based on substantial evidence. Additionally, she contends that the ALJ's credibility analysis was not supported by substantial evidence. She seeks reversal of the ALJ's decision and remand for a new administrative hearing. She also seeks the award of her costs and reasonable attorney's fees. Because Cook has exhausted all administrative remedies available, this Court has jurisdiction to review the decision.

         II. Legal Standard

         Judicial review of the Commissioner's decision is guided by the Social Security Act which provides, in part, that the “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”[2] The Court must therefore determine whether the factual findings of the Commissioner are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard.[3] “Substantial evidence is more than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind might accept to support the conclusion.”[4] The Court may “neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].”[5]

         An individual is under a disability only if she “can establish that she has a physical or mental impairment which prevents her from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months.”[6] This impairment “must be severe enough that she is unable to perform her past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering her age, education, and work experience.”[7]

         The Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled.[8] The steps are designed to be followed in order. If it is determined at any step of the evaluation process that the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.[9]

         The first three steps of the sequential evaluation require the ALJ To assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those severe impairments meets or equals a designated list of impairments.[10] If the impairment does not meet or equal one of these designated impairments, the ALJ must then determine the claimant's residual functional capacity (“RFC”), which is the claimant's ability “to do physical and mental work activities on a sustained basis despite limitations from [her] impairments.”[11]

         Upon assessing the claimant's RFC, the ALJ moves on to steps four and five, which requires the ALJ to determine whether the claimant can either perform her past relevant work or whether she can generally perform other work that exists in the national economy, respectively.[12]The claimant bears the burden in steps one through four to prove a disability that prevents performance of her past relevant work.[13] The burden then shifts to the ALJ at step five to show that, despite the claimant's alleged impairments, the claimant could perform other work in the national economy.[14]

         III. Analysis

         A. The ALJ's RFC assessment is supported by substantial evidence.

         Cook argues that the ALJ's RFC assessment is flawed. She points to the fact that the RFC assessment does not include sufficient limitations for vertigo attacks despite the ALJ's finding that Meniere's disease was a severe impairment. According to Cook, the medical records demonstrate that unpredictable vertigo attacks accompanied her Meniere's disease. And so Cook argues that it was inconsistent for the ALJ to find that her Meniere's disease was a severe impairment while failing to include limitations for the accompanying vertigo attacks. Specifically, she notes the absence of unscheduled breaks as result of Cook's unpredictable, likely vertigo attacks. Cook claims that “each medical opinion indicated that Cook would experience some limitation from vertigo attacks.” Therefore, Cook contends that the ALJ's RFC does not accurately reflect her limitations, and thus, remand is required. In response, the Commissioner contends that the ALJ's RFC finding is supported by substantial evidence. As the Commissioner puts it, “there were widely divergent views on the effects of [Cook's] vertigo on her function. The ALJ discussed all of these medical opinions in the RFC finding, comparing them to each other, and weighing them accordingly.”

         The opinions and records of three doctors are relevant to Cook's asserted vertigo-related limitations: (1) Dr. Kryzer, who treated Cook's Meniere's disease; (2) Dr. Scheufler, who was Cook's primary care physician, and (3) Dr. Devere, a non-examining medical expert. The Court will summarize their respective contributions to the record, and the weight assigned to them by the ALJ.

         Because Dr. Kryzer treated Cook's Meniere's disease, he contributed the most evidence related to her Meniere's disease and the related vertigo spells. In January 2013, Dr. Kryzer's notes indicated that Cook's Meniere's disease was stable and her vertigo spells were controlled. In March 2013, Kryzer wrote that Cook had a long history of Meniere's disease and that she “was treated with a chemical labyrinthectomy in 2010 that has fairly controlled the vertigo spells, but she still does have episodes of lightheadedness, dizziness, and imbalance.” A year later, on March 10, 2014, Dr. Kryzer once again noted that Cook's Meniere's disease was stable and that her vertigo spells seemed controlled. And yet, two days later, Dr. Kryzer completed a questionnaire regarding Cook's vertigo. Dr. Kryzer stated that Cook had vertigo attacks about twice a week, lasting between 30 and 60 minutes per attack.[15] In the questionnaire, Dr. Kryzer indicated that Cook's impairment would produce good and bad days, and that she would miss three or more days of work per month. Still, Dr. Kryzer opined that Cook was capable of low stress work.

         Because Dr. Scheufler was Cook's primary care physician, he cautioned that “Meniere's Disease is a clinical diagnosis and I would refer you again to Dr. Kryzer's notes.” Still, in August 2013, Dr. Scheufler wrote that Cook's “condition had worsened” with regard to her Meniere's disease and meningioma repair. In November 2013, Dr. Scheufler again noted that Cook's Meniere's disease had been bothering her, and commented that she had “attacks 2-3 times a week, occasionally to the point of emesis (vomiting) and it can lay her up for as long as a couple of days.” Dr. Scheufler also commented that Cook struggled with balance and became dizzy. Dr. Scheufler claimed that Cook's prognosis was completely unpredictable because she “could do fine for weeks and then have a severe attack just out of the blue.” Ultimately, Dr. Scheufler's opinion was that Cook was disabled and unable to work because of the nature of her attacks.

         Dr. Devere, a non-examining medical expert, also weighed in on Cook's condition. After reviewing Cook's medical records, he opined that Cook's Meniere's disease had caused “intermittent 30 minute attacks of vertigo” two or three times a week. But Dr. Devere also noted that those attacks were more controlled by January 2013. Dr. Devere ultimately concluded that Cook had the ability to perform a range of light work.

         The ALJ assigned mixed weight to the various opinions of Dr. Kryzer. He assigned the greatest weight to Dr. Kryzer's medical source statement dated March 19, 2013. In that statement, Dr. Kryzer noted that a chemical labyrinthectomy had fairly controlled Cook's vertigo spells. The ALJ noted that this opinion was well-supported by the record and included careful consideration of Cook's allegations. On the other hand, the ALJ was far less convinced by the March 2014 questionnaire, in which Dr. Kryzer opined that Cook would be absent from work three times a month and suffer bi-weekly vertigo attacks. The ALJ found that the March 2014 opinion was “inconsistent with Dr. Kryzer's own treatment records and the claimant's actual activities of daily living.” Accordingly, the ALJ assigned very little ...


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