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Waggoner v. Berryhill

United States District Court, E.D. Kentucky, Northern Division, Ashland

March 24, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security[1], Defendant.


          Danny C. Reeves United States District Judge.

         This 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.


         On 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. 127-28]

         After 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. [Id.]

         Following 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).


         Waggoner 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]

         At 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. 673]

         Dr. Tim 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]

         Treatment 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. [Tr. 728]

         Waggoner 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]

         Waggoner 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 herniations. [Id.]

         Waggoner 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]

         Dr. 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.]

         In 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. [Tr. 748-59]

         During 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]

         Waggoner 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]

         Waggoner 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.]

         The VE 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 ...

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