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Hughes v. Saul

United States District Court, W.D. Wisconsin

September 27, 2019

AMANDA HUGHES, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE

         Plaintiff Amanda Hughes filed this action seeking reversal of the final decision of the Commissioner of Social Security denying her applications for Disability Insurance Benefits (DIB) and Supplemental Security Income under Titles II and XVI of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 423 et seq.[1] The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). This is a case that the ALJ arguably could have decided in either direction; but, finding no error in the ALJ’s analysis or conclusion, I am affirming the decision of the Commissioner.

         The following facts are drawn from the Administrative Record (“AR”):

         FACTS

         I. Background

         Hughes was born on November 8, 1984. She has a high school education and associate degrees in music technology and video and motion graphics. In 2004, when she was 19, she was diagnosed with inflammatory arthritis. She also has been diagnosed with degenerative joint disease in her lumbar spine and knees, sacroiliitis, suspected fibromyalgia, depression, and anxiety. In addition, she is morbidly obese, with a body mass index of 50.

         After graduating high school, Hughes worked as a claims adjuster, a cashier, and a telephone captionist. She quit her job as a telephone captionist in 2011 because of her health issues and has not worked since.

         Hughes has been followed for her inflammatory arthritis and fibromyalgia by Katherine Phillips-Riemer, a rheumatology nurse practitioner, since at least 2011. Phillips-Riemer, who sees Hughes every three to six months, has prescribed medications (including Humira, Cimzia, prednisone, Lyrica, gapabentin, and others) and administered local steroid injections, but Hughes has continued to report pain, especially in her knees, hips, and lower back. Hughes’s primary care physician since January 2013 is Dr. Jennifer Somers, who sees Hughes every three to six months, prescribes narcotic pain medication, refers her to specialists and manages her care. That care has included evaluations and treatment from pain clinics, rehabilitation medicine specialists, and orthopedic surgeons.

         In November 2014, an orthopedic surgeon advised Hughes against knee surgery unless she lost weight, recommending that she consider bariatric surgery for weight loss. AR 517-18. However, Hughes never followed up with the bariatric surgeon. Other treatment recommendations included a nerve block for her knee pain, warm water exercise, a progressive walking program, and dietary changes, but Hughes did not pursue those options, either.

         In September 2016, Hughes experienced an onset of acute back pain with left leg tingling and weakness; an MRI showed that Hughes had a large herniated disc at ¶ 4-L5. In October 2016, Hughes had back surgery to repair the disc. Although Hughes initially did well after the surgery, her left leg pain returned and she had a persistent foot drop on the left. An updated MRI in December 2016 showed possible recurrence of disk herniation at ¶ 4/L5. Hughes was referred to physical therapy. AR 767.

         In addition to her physical problems, Hughes struggles with anxiety and depression, for which she has taken a variety of medications. She received psychotherapy from Elise Comello, a licensed social worker at the Pauquette Center, on a somewhat regular basis from April 2014 to March 2015. AR 545-. She saw Comello again in April 2015 and September 2015; at the September visit, Hughes reported having gone tubing with her friends a couple times. AR 554. Hughes was eventually discharged from services at the Pauquette Center because she missed too many appointments. AR 557. According to Comello’s discharge note, Hughes “struggled to make progress due to not attending sessions for long periods of time and failing appointments due to illness. [P]auquette allowed for more missed appointments than typical to accommodate her illness but she expired through them.” Id. AR 557.

         In July 2015, Hughes established care with Dr. Heather Huang, a psychiatrist, who reclassified her mood disorder as related to a bipolar disorder. Huang adjusted Hughes’s medications, advised her to see Comello every 2 weeks, and to exercise, even if for 5 minutes a day. AR 594-95. Hughes saw Dr. Huang for medication management roughly every 2 months, although she did not see her at all from July 2016 to January 2017.

         II. Medical Opinions

         A. Mental Impairments

         In December 9, 2014, Hughes was seen by Gordon I. Herz, Ph.D., for a consultative Mental Status Evaluation at the request of the state disability agency. Herz diagnosed Hughes with major depressive disorder, generalized anxiety disorder, and pain disorder. Reflecting on Hughes’ capacity to work, Herz wrote:

This claimant is quite able to understand, remember and carry out simple instructions. Interactions with supervisors and co-workers are likely to be perceived to be ineffective at times, with the claimant likely being preoccupied with personal issues and subjective emotional and physical difficulties, potentially to the neglect of work-related expectations. Concentration, attention and work pace have the potential to be normal but will be reduced at times with heightened preoccupation with personal issues. She would have slight-to-moderate difficulty withstanding routine work stresses and adapting to changes.
AR 503.

         On January 14, 2015, state agency consulting psychologist Esther Lefevre, Ph.D., reviewed the record in connection with Hughes’s application for disability benefits. Lefevre found that although Hughes had some moderate limitations in social interaction, responding to changes in the work setting, setting realistic goals, and making plans independently of others, Hughes was “able to perform the mental demands of simple, routine unskilled work.” AR 120-121. In reaching this conclusion, Lefevre indicated that she had given “great weight” to Herz’s December 2014 consultative evaluation of Hughes.

         On May 22, 2015, Hughes was evaluated by a second consultative examiner, Jean Warrior, Ph.D., who drew the following conclusions:

Ms. Hughes is able to understand, remember, and carry out simple one and two-step instructions. She is a pleasant young woman who could respond appropriately to others in the workplace. Concentration, attention, and work pace would be judged moderately reduced due to intrusion of pain and occasional anxiety. She probably has mildly reduced ability to respond to work stressors. Her primary issue has been with attending regularly and persisting through a full work week due to her pain issues.
AR 535.

         On May 28, 2015, Jan Jacobson, Ph.D., a consultant for the state disability agency, reviewed Hughes’s disability application in connection with her request for reconsideration of the agency’s initial denial of benefits. Assessing Hughes’s mental RFC, Jacobson found that Hughes had some moderate limitations in social interaction and adaptation, but that she would be “able to sustain at least basic demands associated with relating adequately with supervisors, co workers and general public, ” and was “able to adapt to routine workplace change, remain aware of environmental hazards, form basic plans/goals, travel independently.” AR 167-68.

         In January 2017, Dr. Huang completed a questionnaire about Hughes’s impairments. Dr. Huang indicated that she had been treating Hughes since July of 2015 and seeing her every 1-3 months for anxiety and bipolar disorder, the symptoms of which were daily anxiety, poor motivation, low mood, fatigue and nausea. Huang opined that Hughes had moderate restriction of activities of daily living, marked difficulties in maintaining social functioning, and marked deficiencies of concentration, persistence or pace. Dr Huang concluded that Hughes was not a malingerer and her impairments prevented her from working. AR 563-65.

         B. Physical Impairments

         On January 12, 2015, a doctor for the state disability agency, Mina Khorshidi, M.D., reviewed Hughes’s application, including her medical records, and determined that in spite of her impairments, Hughes could perform light work (lifting 20 pounds occasionally and 10 pounds frequently), and sit, stand or walk for about 6 hours each in an 8-hour workday. AR 119. A second state agency consultant, Syd Foster, DO, reached largely the same conclusions when he reviewed the record on May 29, 2015. AR 150.

         In early January 2017, Dr. Somers completed a questionnaire about Hughes’s work abilities. Dr. Somers reported that she had been treating Hughes since January 2013 for inflammatory spondylopathy, lumbar stenosis, and a left foot drop, the symptoms of which were pain, depression and decreased mobility. Somers wrote that Hughes had moderate joint pain in her hands, ankles, and knees and moderate-to-severe back pain that had improved after her surgery. Somers estimated that, during an eight-hour work day, Hughes could stand for 15 minutes at a time for a total of less than 2 hours; sit for 30 minutes at a time for about 4 hours; required position changes at will; would need an unscheduled break every 2-3 hours for 15-20 minutes; could rarely lift 20 pounds and could occasionally lift 10 pounds; could use her hands, fingers and arms for fingering and handling for no more than 20 percent of the workday; and would be absent more than four days a month. AR 860-63. Dr. Somers indicated that Hughes was not a malingerer but that emotional factors contributed to the severity of her symptoms and functional limitations. Like Dr. Huang, Dr. Somers opined that Hughes had moderate restriction of activities of daily living, marked difficulties in maintaining social functioning, and marked deficiencies of concentration, persistence or pace.

         Phillips-Riemer, the nurse practitioner, also completed a questionnaire. Like Dr. Somers, Phillips-Riemer indicated that Hughes had a limited ability to sit and stand, would require position changes at will, was limited in her ability to use her hands and fingers for fingering and handling, and was likely to be absent more than four days a month. AR 865-67.

         III. Administrative Proceedings

         Hughes applied for disability insurance benefits and supplemental security income on September 10, 2014, just before her 30th birthday, alleging that she had been disabled since June 30, 2014 as a result of arthritis, fibromyalgia, depression, anxiety, obesity, degenerative bone disease, and knee problems.[2] After her application was denied initially and on reconsideration, she requested a hearing before an administrative law judge (“ALJ”). A hearing was held on March 31, 2017, at which Hughes was represented by counsel and testified. AR 36- 70. The ALJ also heard testimony from Jacquelyn Winkman, a vocational expert.

         Hughes testified that:

         She lives with her father in a house, where she spends 80-85% of the day lying down or with her feet elevated because of pain. Hughes’s father does most of the cooking, although Hughes occasionally makes something easy like frozen pizza or something in the microwave. She had vacuumed once in the past six months. She does the dishes on occasion, sees friends every other week, grocery shops with a cart that she can hold on to, plays games on her phone and watches movies. She has fairly severe anxiety and does not like to leave the house. She crochets, but can do so for about 10 minutes before needing a break. She sits while showering because of pain or dizziness. She sees her doctors every three to six months unless she has a flare-up, in which case she will call and schedule an appointment. She said her pain had worsened in 2014, making it difficult to drive longer distances to find work.

         Hughes can walk a couple blocks. She tries to get out and walk once or twice a week. Due to pain, she can stand for no more than 10 minutes, sit for no more than an hour, and lift less than a gallon of milk. The more she does, the more pain she has. Although her 2016 surgery helped her back pain, she still has pain going down into her legs.

         After Hughes testified, the ALJ heard testimony from Winkman, the vocational expert. Winkman provided responses to a No. of hypotheticals based on a person of Hughes’s age, education and work experience with various limitations that were specified by the ALJ. Winkman also testified that, in general, an employer would tolerate an employee being ...


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