United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
matter is pending for consideration of cross-motions for
summary judgment filed by Plaintiff Holly Sue Lykins Waggoner
(“Waggoner”) [Record No. 10] and Defendant Nancy
A. Berryhill, Acting Commissioner of the Social Security
Administration (“the Commissioner”). [Record No.
12] For the reasons that follow, the Commissioner's
motion will be granted and the relief that Waggoner seeks
will be denied.
February 15, 2006, Administrative Law Judge
(“ALJ”) Andrew J. Chwalibog determined that
Waggoner was able to perform light and sedentary work and was
not disabled under the Social Security Act
(“Act”). [Tr. 104] Waggoner later filed an
application for disability insurance benefits
(“DIB”) on May 17, 2006 through her attorney Eric
Conn, alleging a disability beginning on March 13, 2004. [Tr.
241] Her claim was denied initially and on reconsideration.
[Tr. 116-19] Waggoner then requested an administrative
hearing before an ALJ. [Tr. 248] ALJ David B. Daugherty did
not hold a hearing and determined that Waggoner was disabled
based largely on Dr. Frederic Huffnagle's opinion. [Tr.
finding reason to believe that fraud was involved in the
decision to award benefits in Waggoner's case, the Social
Security Administration notified Waggoner that it would be
redetermining her claim for benefits from the onset date
through the date of the decision. [Tr. 173] It specifically
identified evidence that Eric Conn submitted, including
evidence from Dr. Frederic Huffnagle, as being suspected of
fraud. [Id.] The agency thus informed Waggoner that
any evidence from Dr. Huffnagle would be disregarded during
the redetermination process. [Id.] On
redetermination, Waggoner was permitted to submit additional
evidence in support of her original claim for benefits. [Tr.
175] The agency would then evaluate the legitimate evidence
that she initially presented along with any additional
evidence and determine whether she had a disability from the
alleged onset date through the date of the decision.
an administrative hearing, ALJ Paul Guaghen concluded that
Waggoner was not disabled from the alleged onset date through
the date of the prior decision. [Tr. 20] She then sought
review by the Appeals Council, which was denied. [Tr. 1]
Waggoner has exhausted her administrative remedies and this
case is ripe for review pursuant to 42 U.S.C. § 405(g).
was 48 years old on the date that she applied for DIB. [Tr.
241] She has a 7th grade education and has previous
employment as a certified nurse's assistant. [Tr. 259,
264] The claimant worked as a certified nurse's assistant
from 1990-93 and then again from 1995-2004. [Tr. 259]
Waggoner alleged inability to work due to chronic obstructive
pulmonary disease (“COPD”), emphysema, bronchial
asthma, depression, insomnia, leg pain, heart problems, ankle
problems, urinary incontinence, lower back pain, high blood
pressure, high cholesterol, and diabetes. [Tr. 258]
various times during the relevant time period, Waggoner was
diagnosed with: mild coronary artery disease [Tr. 367]; COPD
[Tr. 728]; fibromyalgia [Tr. 671, 803]; cervical disc disease
with disc protrusions [Tr. 741]; disc herniation [Tr. 848];
depression and anxiety [Tr. 699-705, 722-24]; and problems
sleeping [Tr. 672, 699-705]. Waggoner was diagnosed with a
fracture and torn ligament in her ankle in July 2004. [Tr.
340] She obtained an operation to address these injuries.
[Id.] The physician reported that her “[f]inal
x-ray was good” and she “left the Operating Room
in good condition.” [Id.] ¶ 2005 a plate
and screws were removed from ankle, and the physician
reported that Waggoner “left the Operating Room in good
condition.” [Tr. 348] She later indicated that the pain
in her ankle had improved as a result of the surgery. [Tr.
Garner treated Waggoner for urinary incontinence in March
2005. [Tr. 349] He assessed the claimant with mixed urinary
incontinence and scheduled urodynamic studies. [Tr. 350]
These studies revealed normal findings. [Tr. 351] She
obtained a vaginal sling to address her condition. [Tr. 360]
The physician stated that Waggoner “tolerated the
procedure well.” [Id.] She later reported that
her symptoms significantly improved as a result of the
procedure. [Tr. 672]
notes from January 2006 reflect that Waggoner complained of
pain “all over.” [Tr. 670] She was diagnosed with
fibromyalgia in February 2006. [Tr. 699-70] The physician
recommended physical therapy and prescribed Neurontin. [Tr.
670] Treatment notes state that the Neurontin “helped
with the pain . . . .” [Tr. 671] Physicians later noted
“multiple arthralgias/myalgias” in November 2006.
was given a cardiac catheterization in June 2004, which
revealed mild coronary artery disease. [Tr. 367] She also had
COPD. [Id.] Treatment records from throughout 2004
indicate that she reported a cough but that her breathing
improved with medication that her condition generally had
improved. [Tr. 673-80, 727] She obtained a second cardiac
catheterization in December 2006. [Tr. 840] The physician
reported that the operation was successful. [Tr. 843]
was referred for an MRI in September 2006 after complaining
of neck pain. [Tr. 741] The MRI showed minimal annular
bulging at C3/4 and a protrusion at C5/6. [Id.] In
March 2007, Waggoner obtained an MRI of the lumbar spine.
[Tr. 848] The findings were of L4/L5 and L5/S1 disc
was given a disability examination in July 2006. [Tr. 687]
She claimed disability due to fibromyalgia, lung problems,
and depression. [Id.] Dr. Barry Burchett reported
that Waggoner ambulated with a normal gait, did not require
the use of a handheld assistive device, and was comfortable
in supine and sitting positions. [Tr. 689] Waggoner appeared
depressed and had a frequent cough. [Id.] Dr.
Burchett reported that he “would guess that 16 of 18
trigger-points are tender” but that the evaluation was
“difficult to verify” because “most control
points are also sensitive . . . .” [Id.] Dr.
Burchett noted that the claimant did not have shortness of
breath following minimal exertion but had probable asthma,
probable chronic bronchitis, and possible emphysema. [Tr.
691] Pulmonary functioning was in the range of normal and an
EKG was unremarkable. [Id.] Additionally, she had
normal range of motion in all areas tested, a negative
straight leg test in sitting and supine positions, and 5/5
strength in upper and lower extremities. [Tr. 689, 690, 692]
William R. Rigby also evaluated Waggoner for disability in
July 2006. [Tr. 699] He remarked that her gait was normal,
she used no assistive devices, and there was no appearance of
invalidism. [Tr. 700] He noted “inadequacies of
personality” and that Waggoner appeared “tired
and lacking in stamina.” [Id.] Dr. Rigby
concluded that she appeared “free of major mental
health problems . . . .” [Tr. 703] Waggoner reported a
range of depressive symptoms, which Dr. Rigby stated
“appeared moderate in degree and chronic in nature . .
. .” [Id.] Waggoner also described anxiety
symptoms. [Id.] Dr. Rigby found psychological
conditions of dysthymia and anxiety disorder, and stated that
these conditions were “likely to continue indefinitely
and . . . improve or worsen in correlation with physical
problems.” [Tr. 704] However, he opined that Waggoner
appeared “to have good ability to understand, retain,
and follow simple instructions and good ability to sustain
attention to perform simple repetitive tasks” and
“fair ability to relate to . . . fellow workers and
supervisors and fair ability to tolerate stress and pressures
with work activity.” [Id.]
September 2006, a state agency consultant concluded that
Waggoner's mental impairments were not severe. [Tr. 719]
In November 2006, another state agency consultant reviewed
Waggoner's mental impairments and affirmed this finding.
the administrative hearing before ALJ Gaughen, Waggoner
testified she had to stop working as a certified nurse
assistant in 2004 because of her pain. [Tr. 59] The claimant
stated that she was unable to work in a less strenuous
position because she was not able to lift things, it hurt her
to stretch, and it hurt to bend. [Tr. 63] She asserted that
she was unable to stand for longer than 15 minutes or walk
more than 50 feet without stopping to rest, and that lifting
any more than 5 pounds would be painful. [Tr. 64]
reported that her daily activities involved spending “a
lot of time laying trying to get comfortable” and not
doing “much of anything.” [Tr. 76] She left her
home primarily for doctor's appointments or to go to the
grocery store, where she would walk through the store and
shop. [Id.] Waggoner testified that her sister lived
behind her and would help her “with what needed to be
done.” [Tr. 77] She stated that she was unable to
complete chores. [Tr. 80]
also testified that she had a manual wheelchair that she only
needed to be part of the time, and that she used while
grocery shopping. [Tr. 79] She states that she began using
the wheelchair after she injured her ankle. [Id.]
then testified, and the ALJ presented the following
hypothetical of a person with the capacity for:
Some light exertion, as that is defined in the Dictionary of
Occupational Titles, but ...