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Lisa B.-G. v. Berryhill

United States District Court, N.D. Oklahoma

June 11, 2019

LISA B.-G., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Lisa B.-G. seeks judicial review of the decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge.

         For reasons explained below, the Court reverses the Commissioner's decision denying benefits and remands for further proceedings. Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.

         I. Standard of Review

          In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotations omitted). The Court must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan, 399 F.3d at 1261 (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). The Court may neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, the Commissioner's decision stands so long as it is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).

         II. Procedural History and the ALJ's Decision

         Plaintiff, then a 29-year-old female, protectively applied for Title XVI benefits on August 29, 2011, alleging a disability onset date of August 29, 2011. R. 401-410. Plaintiff claimed that she was unable to work due to disorders including a kidney condition, bipolar disorder, problems with her right leg, and memory loss. R. 462. Plaintiff's claim for benefits was denied initially on January 25, 2012, and on reconsideration on April 4, 2012. R. 158-161; 165-167. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”).

         The ALJ conducted a total of four hearings in this case. The first hearing was held on January 24, 2013. R. 109-124. After hearing testimony that Plaintiff lost consciousness as a result of a motorcycle wreck in 2008, the ALJ sent Plaintiff for a consultative mental examination. The ALJ suspected Plaintiff may have a cognitive or organic brain disorder causing cognition loss which could reduce her ability to perform mental tasks. R. 122-123.

         A second hearing was held on September 4, 2013, and ten additional medical exhibits were submitted as evidence. R. 82. Plaintiff testified at length about problems from side effects from her various medications during this hearing. For example, the medications Myfortic for her kidney disorder caused muscle pain, nausea and vomiting, stomach cramps, headaches, and infections;[1]Flexeril, a muscle relaxer, made Plaintiff feel extremely tired; Seroquel, to treat bi-polar depression, made Plaintiff sleep for long periods; and Wellbutrin, to treat depression, made Plaintiff feel “edgy, ” which caused her doctors to prescribe an anxiety medication. Plaintiff testified the primary problems preventing her from working are her kidney disorder, suppressed immune system, and side effects from medication. Plaintiff stated she is in bed or on the couch up to 15 days per month due to her condition. R. 94-95. The ALJ decided to send interrogatories to a medical expert, Alexander B. White, M.D., FACP, FACC, [2] to better understand IgA Nephrology[3] prior to making a decision in Plaintiff's case. R. 107. After reviewing Dr. White's interrogatory responses, Plaintiff's counsel requested a third hearing.

         A third hearing was held on July 2, 2014, at which Dr. White appeared by telephone and provided testimony.[4] R. 61-79. Dr. White testified that Plaintiff's creatinine level was high at 1.65. Dr. White testified that Plaintiff has a compromised immune system, she should be closely followed by her treating nephrologist, and she should avoid people with infections. He further testified that she would have a number of side effects from these medications that could cause her to miss more than one day per month of work and/or need unscheduled breaks.[5] R. 70-76.

         On September 26, 2014, the ALJ issued a decision denying Plaintiff's claim, finding that Plaintiff could return to her past relevant work (“9/26/14 Decision”). R. 129-149. In the 9/26/14 Decision, the ALJ afforded Dr. White's opinion “great weight, ” but did not discuss Dr. White's testimony that Plaintiff might be further limited because she likely would need unscheduled breaks and miss more than one day of work per month. The ALJ explained that he afforded great weight to Dr. White's interrogatory opinion, which Dr. White affirmed through testimony at the hearing, because “Dr. White had an opportunity to review the evidence in its entirety and his opinion is consistent with treatment notes and testing results.”[6] R. 139. Plaintiff requested review by the Appeals Council, and the Appeals Council remanded the case with several instructions to the ALJ. R. 152-153. In its findings, the Appeals Council noted that, although Dr. White testified that Plaintiff's symptoms and medication side effects could cause her to miss one or more days of work per month and possibly require unscheduled breaks, the ALJ failed to “evaluate these comments or include any corresponding limitations in [Plaintiff's] residual functional capacity.” R. 152.

         The ALJ held a fourth hearing on January 25, 2017, and twelve new exhibits were added to the record. R. 41. Plaintiff testified that she had not obtained her GED and admitted smoking marijuana once a month. R. 46. Plaintiff testified to no major changes in her condition or medications since the September 26, 2014 hearing; however, Plaintiff did admit to having “a little bit better days.” R. 49-50. The vocational expert (“VE”) questioned Plaintiff about her past relevant work, determining that only Plaintiff's past work as a maid qualified as past relevant work. R. 55.

         The ALJ posed three hypotheticals to the VE, including the light exertional hypothetical ultimately adopted as Plaintiff's RFC. R. 56-58. The VE testified that Plaintiff could not return to her past relevant work, but other light work existed in the national economy that she could perform. R. 57. Plaintiff's attorney posed an additional hypothetical to the VE, which added the need for unscheduled work breaks to the first two hypotheticals posed by the ALJ and asked how that would affect the jobs found at step five. R. 59. The VE testified that an extra unscheduled break as little as ten minutes would require a special accommodation that is not normally afforded to everyone on the workforce. Id.

         On March 13, 2017, the ALJ issued a decision following remand, again denying benefits and finding Plaintiff not disabled because she was able to perform other work that existed in significant numbers in the national economy (“3/13/17 Decision”). R. 15-30. In the 3/13/17 Decision, the decision currently on appeal, the ALJ found that Plaintiff suffered the severe impairments of IgA Nephropathy; chronic kidney disease; bilateral heel spurs; possible internal derangement of the right knee; obesity; a bipolar disorder; anxiety disorder; and cannabis abuse. R. 17. Plaintiff's non-severe impairments were cervicalgia, chronic low back pain, and asthma, while ...

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