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Keith v. Berryhill

United States District Court, W.D. Kentucky, Paducah Division

April 10, 2018

LAURA KIMBERLY KEITH PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on Plaintiff's Complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying her claim for Social Security disability benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets # 17 and 22, respectively, and the case is ripe for determination. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. (Docket # 9).

         Plaintiff claims that she is disabled because she cannot sustain even sedentary work due to her inability to sit for four hours total during an eight-hour workday and/or her need to elevate her feet above waist level for more than one hour per workday (in addition to normal breaks). Her claim is supported by the medical opinions of licensed advanced practice registered nurse (APRN) Tanya S. Goins-Harmon and Kip Beard, M.D. Nurse Goins-Harmon is Plaintiff's primary health care provider, and Dr. Beard is a one-time examining source to whom the Administrative Law Judge (ALJ) sent Plaintiff for evaluation after the administrative hearing.

         The Court will REMAND this matter to the Commissioner for a new decision because the ALJ's decision failed to identify substantial evidence in support of its rejection of the opinions of Nurse Goins- Harmon and Dr. Bear.

         Background

         The ALJ denied Plaintiff's claim at the last step of the sequential evaluation process based on a finding that, although she can no longer perform her past relevant work, she retains the ability to perform a significant No. of sedentary jobs in the national economy - specifically, general office clerk and receptionist. (Administrative Record (“AR”), pp. 120-21). Because these jobs are classified as sedentary, “periods of standing or walking should generally total no more than about 2 hours of an 8- hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday.” Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5. The vocational expert (VE) testified that Plaintiff cannot perform these jobs if she has to elevate her feet above waist level for more than one hour per eight-hour workday (in addition to normal breaks). (AR, p. 156).

         Plaintiff claims that she is disabled because her Raynaud's phenomenon, [1] neuropathy, [2] and fibromyalgia[3] do not allow her to six hours (total) during an eight-hour workday and require her to elevate her feet above waist level for more than one hour per workday.

         Plaintiff has a history of falls, including a recent fall resulting in (at the time of the ALJ's decision) unhealed pelvic and foot fractures.[4] Due to foot injury, she wore a stabilizing controlled ankle movement (CAM) walker boot to the administrative hearing and her post-hearing appointment with Dr. Beard. (AR, p. 137). Plaintiff attributes her tendency to fall to Raynaud's phenomenon affecting her lower extremities. She testified that, when she last fell, she stood up and began walking without “realiz[ing], you know, that [my foot] was asleep that bad and … I couldn't, you know, hold my body weight.” (AR, p. 137).

         At the outset of the hearing, the ALJ asked Plaintiff directly why she believes she cannot hold even a sedentary job, and Plaintiff responded because “I constantly have to elevate my feet to get them from falling asleep.” (AR, p. 136). She testified that the elevation occurs “every day, ” and she even requires special accommodation at church. (AR, p. 147). In addition to elevation, she has to change position frequently (from sitting to standing/walking and vice versa) because foot elevation helps “for a little while and then …, you know, you've got to move again, you know … like I constantly rub … seems like it helps the blood get back to them.” (AR, p. 148). Near the close of the hearing, Plaintiff asked and the ALJ allowed Plaintiff to stand up to relieve symptoms. (AR, p. 156).

         Plaintiff's testimony of being unable to sit for prolonged periods of time and needing to elevate her feet when she is sitting was supported by the opinion of Nurse Goins-Harmon. In February 2014, Nurse Goins-Harmon completed the standard physical assessment form and diagnosed: 1) Fibromyalgia; 2) Chronic back pain - bulging disks; 3) Chronic fatigue syndrome; 4) Chronic headaches; 5) Sleep apnea; 6) Raynaud's phenomenon; and 7) Depression. (AR, p. 736). When asked whether Plaintiff needs to rest, recline or lie down to alleviate pain, fatigue, or other symptoms during an eight- hour workday, the Nurse responded “frequently.” (Id.). When asked how many hours in an eight-hour workday Plaintiff can sit, stand, and walk, the Nurse responded “0” and explained that Plaintiff “cannot stay in 1 position for any set time due to pain in back and legs.” (Id.). When asked to rate Plaintiff's abilities to lift/carry and use her hands and feet for repetitive action, the Nurse responded “rarely/none, ” stating that this was “due to Raynaud's phenomenon and fibromyalgia.” (Id.). The Nurse found that Plaintiff's impairments would likely result in routine absences from work four or more days per month. (Id.).

         After the hearing, the ALJ sent Plaintiff to Dr. Beard evaluation. Dr. Beard's impression was: 1) Right fifth metatarsal base nondisplaced fracture; reported nonunion with plans for a bone stimulator; 2) Left superior/inferior public rami and right sacral ala fracture, age indeterminate apparently according to history; 3) Fibromyalgia; 4) Raynaud's phenomenon; and 5) Neuropathy, according to history. (AR, pp. 833-34). The Doctor found that, due to these conditions, Plaintiff can sit for a total of four hours and stand/walk for two hours per eight-hour workday. (AR, p. 836). When asked “what activity is [Plaintiff] performing for the rest of the 8 hours?” the Doctor responded “seated with leg elevation, positional change, recumbent.” (Id.).

         In his written decision, the ALJ gave “no weight” to Nurse Goins-Harmon's opinion because an APRN “is not an acceptable medical source” and because her opinion was:

… extreme and not supported by any facts, as the claimant herself reported activities such as driving and cooking, which require at least some ability to sit and stand. In addition, her own treatment notes state that ...

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