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Robinson v. Berryhill

United States District Court, D. Kansas

May 14, 2018

NANCY A. BERRYHILL acting commissioner of Social Security, Defendant.


          Kathryn H. Vratil, United States District Judge.

         Willimena Robinson appeals the final decision of the Commissioner of Social Security to deny her claim for disability insurance benefits under Title II of the Social Security Act (“SSA”), 42 U.S.C. § 401 et seq. For reasons below, the Court affirms the judgment of the Commissioner.

         Procedural Background

         On August 29, 2014, plaintiff applied for disability insurance benefits. See Transcript (hereinafter “Tr.”) in Administrative Record (Doc. #8) filed December 12, 2017 at 142-48. Upon initial review and reconsideration, disability examiners denied her application. Tr. 63-68, 70-75. On May 29, 2015, she requested a hearing before an Administrative Law Judge (“ALJ”). Tr. at 76-77. On October 18, 2016, ALJ Michael D. Shilling heard her case. Tr. at 27-44. On December 16, 2016, the ALJ concluded that plaintiff did not have a disability under the SSA. Tr. at 16-22. On August 7, 2017, the Appeals Council denied plaintiff's request for review of the ALJ decision, which for purposes of judicial review, made it the final decision of the Commissioner. Tr. at 1-4; See 20 C.F.R. § 422.210(a).

         Legal Standards

         The Court reviews the Commissioner's decision to determine whether it is “free from legal error and supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citation and quotation marks omitted); see 42 U.S.C. § 405(g). The substantial evidence standard requires “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Wall, 561 F.3d at 1052; Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The decision must be supported by “more than a scintilla, but less than a preponderance [of the evidence].” Wall, 561 F.3d at 1052; Lax, 489 F.3d at 1084. The Court analyzes the Commissioner's decision based on the record as a whole. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Evidence is not substantial if it is “overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005) (citation and quotation marks omitted). When determining if substantial evidence supports the decision, the Court does not reweigh the evidence or retry the case, but examines the record as a whole, including anything that undercuts or detracts from the Commissioner's findings. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         Five-Step Inquiry

         The claimant bears the burden of proving disability. Wall, 561 F.3d at 1062. To meet this burden, a claimant must show she has a physical or mental impairment which prevents her from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least 12 months. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993) (citing 42 U.S.C. § 423(d)(1)(A)).

         The Commissioner uses a five-step process to evaluate disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). In the first three steps, the Commissioner determines whether (1) a claimant has engaged in substantial gainful activity since the alleged onset; (2) a claimant has a severe medically determinable impairment or combination of impairments; and (3) the severity of any impairment is equivalent to one of the listed impairments that are so severe as to preclude substantial gainful activity. See Williams, 844 F.2d at 750-51; 20 C.F.R. § 404.1520(a), (c), (d). If a claimant satisfies these three steps, the Commissioner will automatically find her disabled. If a claimant satisfies steps one and two but not three, the analysis proceeds to step four.

         At step four, the ALJ makes specific factual findings regarding a claimant's abilities in three phases, determining (1) the claimant's physical and mental residual functioning capacity (“RFC”), (2) the physical and mental demands of past relevant work and (3) whether, given her RFC, she can meet the demands of relevant employment. See Winfrey v. Chater, 92 F.3d 1017, 1023-25 (10th Cir. 1996); Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993). If a claimant satisfies step four, i.e. if she shows that she is not capable of performing past relevant work, the burden shifts to the Commissioner to establish at step five that the claimant is capable of performing other work in the national economy. Williams, 844 F.2d at 750-51

         Factual Background

         Plaintiff asserts that her disability began in September 20, 2008, and she was last insured on December 31, 2013. Tr. at 45. Thus, the relevant period of alleged disability is from September 20, 2008 through December 31, 2013. Tr. at 45. She has alleged the following conditions: pulmonary embolism, blood clots in her lungs and legs, TMJ, gastroesophageal reflux disease (“GERD”), depression, anxiety, hypertension and difficulty breathing. Tr. at 45-46.

         I. Medical Evidence

         Plaintiff is 56 years old, five feet, eight and a half inches tall, and weighs 248 pounds. Tr. at 31, 142. On March 5, 2008, she went to Holton Hospital after experiencing left calf pain, chest heaviness and trouble breathing. Tr. at 248. After initial tests revealed a blood clot in her left leg, plaintiff went to St. Francis Hospital to receive in-patient treatment. Tr. at 248. At St. Francis, Dr. Samuel Y. Ho diagnosed her with pulmonary emboli, chronic obstructive pulmonary disease and deep vein thrombosis. Tr. at 260-61. She received in-patient treatment for four days. Tr. at 260-61. Upon discharge, Dr. Vance R. Lassey prescribed her Coumadin, a blood thinner. Tr. at 260-61.

         After her hospitalization, plaintiff began follow-up treatment with Dr. Lassey. Tr. at 238, 240-41, 243, 247. On March 12, 2008, he opined that plaintiff could not return to work because she still had symptoms from her pulmonary embolism, such as chest pains and shortness of breath. Tr. at 247. Five days later, Dr. Lassey again advised her to not return to work because of these lingering symptoms. Tr. at 243. Although he noted progress throughout March, plaintiff's post-embolism symptoms persisted. Tr. at 238, 241, 243, 247. On April 2, 2008, Dr. Lassey opined that she “was making steady improvement” and would likely be able to return to work in two to four weeks. Tr. at 240. He also stated that her symptoms will “slowly improve . . . over the coming weeks to months” and asked plaintiff to explore “light duty” work options. Tr. at 240, 243. On April 7, 2008, Dr. Lassey allowed plaintiff to return to work for five hours per day. Tr. at 236-39.

         On April 22, 2008, plaintiff told Dr. Lassey that she felt faint, shaky, lightheaded, anxious and heartburn. Tr. at 236-37. At the same visit, plaintiff stated recent family issues had increased her stress levels. Tr. at 236-37. Dr. Lassey noted that she no longer experienced pulmonary emobli symptoms but recommended that she see a cardiologist. Tr. at 237. On June 24, 2008, plaintiff reported shortness of breath upon exertion, mild chest discomfort and mild numbness and tingling sensations in her fingertips. Tr. at 234-35. Plaintiff also expressed concern about possible interaction between Prozac, for which she recently received a prescription, and Coumadin. Tr. at 234-35. Dr. Lassey noted that her deep vein thrombosis and pulmonary emboli could be causing these new symptoms. Tr. at 234-35. He advised that she take the rest of the week off work, start taking Prozac and continue taking Coumadin. Tr. at 234-35. Notably, the foregoing events occurred months before plaintiff's alleged period of disability, which began in September of 2008. Tr. at 45.

         On January 20, 2010, plaintiff reported pain and numbness in her left leg. Tr. at 321. Tests revealed no abnormalities or evidence of venous insufficiency. Tr. at 321. Throughout the remainder of 2010, plaintiff visited the Holton Family Health Clinic regularly for check-ups and did not report pain or numbness in her left leg. Tr. at 278-97. In May of 2011 and July of 2012, plaintiff visited the doctor for persistent coughing. Tr. at 319-20. On July 23, 2012, tests revealed partial atelectasis (a partial collapse of a lung or lobe in the lungs) but no pulmonary emboli or acute abnormalities. Tr. at 278, 319.

         In late 2012 and early 2013, plaintiff reported multiple episodes of chest pain and trouble breathing. Tr. at 277, 322-24, 377. In March of 2013, plaintiff reported to a physician assistant under the supervision of Dr. David Allen that she had numbness on her left side and chest pains. Tr. at 324-25. The physician assistant ordered a head CT and an EKG, which revealed results consistent with “residual of previous sinus disease.” Tr. at 325, 344. Both tests were otherwise negative. Tr. at 325, 344. On April 10, 2013, the physician assistant noted that the numbness had “resolved without recurrence.” Tr. at 322; see tr. at 330 (describing “a[ two-week] episode” of numbness). That same day, Dr. Gilbert Katz, a cardiologist, ran multiple exams. He concluded that “it is unclear what her symptoms represent, ” recommended that plaintiff seek pulmonary and neurological evaluations and planned to follow up with plaintiff in two to three months. Tr. at 330.

         In May of 2013, plaintiff saw a pulmonary specialist regarding her shortness of breath. Tr. at 352. At this appointment, she reported left-side numbness, vision issues, fatigue and headaches. Tr. at 352. After a “fairly extensive cardiac workup, ” the specialist opined that pulmonary hypertension or chronic pulmonary disease did not cause her symptoms. Tr. at 349-50. He noted that plaintiff had gained approximately 70 pounds in three years and smoked seven to eight cigarettes a day. ...

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