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Yealey v. Berryhill

United States District Court, W.D. Wisconsin

June 19, 2017

SUSAN YEALEY, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STEPHEN L. CROCKER Magistrate Judge

         Plaintiff Susan Yealey is seeking review of a final decision by defendant Nancy Berryhill, Acting Commissioner of Social Security, denying her claim for disability insurance benefits under the Social Security Act. 42 U.S.C. § 405(g). Yealey applied for benefits on November 27, 2012, alleging that she had been disabled since March 1, 2008 as a result of various types of neuropathy, depression, anxiety, and chronic pain and fatigue. Admin. Rec. (AR) 246, 249. After the local disability agency twice denied her claim, Yealey had two hearings before an administrative law judge (ALJ), who issued a decision on September 23, 2015, finding that Yealey was not disabled at any time between her alleged onset date and the date that she was last insured, December 31, 2010. AR 17-28. The Appeals Council subsequently denied Yealey's application for review, making the ALJ's decision the final decision of the Commissioner. Throughout the administrative proceedings, Yealey was represented by a non-attorney representative, Tammy Kellerman.

         Yealey contends that the ALJ's failure to advise her of her right to counsel and obtain a valid waiver of counsel resulted in prejudice because the ALJ failed to develop the record adequately with respect to her non-severe mental impairments, pain, and medication side effects.

         For the reasons explained below, I conclude that the ALJ did not obtain a valid waiver of counsel in this case and that the Commissioner has not met her burden of demonstrating that the record was fully and fairly developed with respect to certain mental limitations resulting from Yealey's non-severe mental impairments, pain, and medication side effects, resulting in prejudice to Yealey. Accordingly, I am reversing the Commissioner's decision and remanding for further proceedings consistent with this opinion.

         The following facts are drawn from the Administrative Record (AR), filed with the Commissioner's answer in this case.

         RECORD FACTS

         I. Relevant Medical History

         Plaintiff Susan Yealey has a history of chronic pain as a result of pudendal nerve entrapment. AR 853. On March 26, 2007, she underwent a surgical procedure that reportedly relieved a lot of pelvic pain that she was having. AR 539, 544, 546. On December 21, 2007, Yealey's physician removed pelvic and abdominal adhesions to address other pelvic pain that she was having. AR 537. Yealey's pain improved in early 2008 and completely resolved by February 2008. AR 534-36. Progress notes dated June 29, 2009 and May 17, 2010 indicate that Yealey's pudendal neuropathy was much better. AR 531-33. On June 7, 2010, she had a carcinoma removed from her vulva. AR 529. Although the surgeries improved her condition at least temporarily, they did not completely relieve her pain. AR 851. (Later medical records indicate that Yealey's condition worsened again after 2011, but that is after her date last insured.) Yealey took opiate painkillers four to six times a day on a regular basis for many years. AR 561, Yealey also suffers from low back pain as a result of a motor vehicle accident that occurred in October 2008. AR 444. A magnetic resonance imaging study taken of her cervical and lumbar spine in December 2008 revealed only mild findings. AR 56-57. Chiropractic and massage treatments improved her symptoms significantly but she continued to have some low back pain that she reportedly managed “fairly well” until September 2011. Id.

         In a function report dated March 7, 2013, Yealey reported having problems with her memory, completing tasks, concentration, and following instructions, as well as “OCD like” side effects from her medications. AR 269, 271.

         II. Administrative Proceedings A. June 3, 2014 Hearing

         Yealey testified that although she experienced some relief in 2006 and 2007 from the surgical treatment she received for pudendal neuropathy, her pain returned either after she fell on ice in 2008 or after her motor vehicle accident in October 2008. AR 53-55, 64. When Yealey began to experience symptoms of pudendal neuropathy again in 2010 or 2011, she returned to Dr. Analak, who told her that she had damaged her nerves permanently and gave her injections for pain. AR 65. She has taken several medications-including pain medication, gabapentin, Klonopin, Cymbalta, and Amblify-since 2008 and they make her sleepy and do not relieve all of her pain. AR 65.

         Dr. Howard McClure, a medical expert, testified that this case was difficult to analyze because Yealey's principal complaint is chronic pelvis and buttock pain for which she has been taking narcotics four times a day for several years. AR 49-50. He explained that her pain was not “clearly orthopedic” but that there are no good objective markers for pelvic pain “so it sort of boils down to a question of credibility.” AR 50. Dr. McClure testified that he did not see anything in the record concerning side effects from Yealey's medications. AR 60-61. Based on his review of the record, Dr. McClure concluded that Yealey did not have any persistent limitations in her ability to work for any 12-month period between March 1, 2008 and December 31, 2010. Id.

         The ALJ expressed concern about the record not having objective clinical findings to support Yealey's subjective complaints of pain, particularly with respect to her pudendal neuropathy. AR 52. There also was some discussion by the ALJ and Tammy Kellerman (Yealey's non-attorney representative) about whether the record was complete with respect to studies and evaluation of Yealey's pudendal neuropathy because Yealey's main treating physician had retried and placed his records in storage. AR 52-53. Kellerman indicated that there were no treating physician opinions because Yealey's doctor would not complete an RFC. AR 59. Although Yealey insisted at the hearing that her pudendal neuropathy came back before her last insured date in 2010, she and Kellerman admitted that the record before the ALJ did not document that fact. AR 69. Kellerman indicated that she would be submitting more records. Id.

         B. May ...


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