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King v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

May 25, 2018

BRENDA KING, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         This matter is pending for consideration of Defendant Acting Commissioner of the Social Security Administration Nancy A. Berryhill's (“the Commissioner”) Motion for Summary Judgment. [Record No. 18] The Commissioner contends that the Administrative Law Judge's (“ALJ”) decision is free from reversible error and is supported by substantial evidence. Thus, she asserts that the decision should be affirmed. Plaintiff Brenda King (“King”) did not move for summary judgment, although she was given an opportunity to do so. King alleges in her Complaint that the Commissioner's final decision is not supported by substantial evidence and that the ALJ applied incorrect legal standards. [Record No. 2] The Commissioner's motion will be granted for the reasons that follow.

         I. Procedural History

         King filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”) on October 5, 2010. [Administrative Transcript, hereinafter “Tr., ” 57] King requested a hearing before an ALJ after the application was denied initially and on reconsideration. She appeared before ALJ Donald Rising at an administrative hearing in Middlesboro, Kentucky in October 2011. ALJ Rising denied benefits in a written decision on February 22, 2013, which the Appeals Council affirmed. [Tr. 57-66, 51] Having exhausted her administrative remedies, King appealed to this Court under 42 U.S.C. § 405(g). [Record No. 1] However, the Social Security Administration could not locate essential parts of the administrative record. [Record No. 9] Because the administrative record was incomplete, the Court granted the Commissioner's motion to remand the case to the SSA for reconstruction of the record and a new hearing. [Record No. 10; Tr. 45-49]

         King's case was assigned to ALJ Tommye Mangus following remand. Mangus conducted a hearing in June 2015 [Tr. 1384-1403] and issued a written decision on May 2, 2016, concluding that King was not disabled under the Act.[1] [Tr. 15-42] The Court granted the Commissioner's motion to reopen King's appeal in January 2018, and the parties were advised of their deadlines for filing dispositive motions. [Record Nos. 12, 14] Shortly thereafter, King's then-attorney, Ronald Cox, filed a motion to withdraw, stating that King had notified him that she no longer desired his representation in this matter. [Record No. 15] The Court granted Cox's motion to withdraw and advised the parties of their continuing obligations to file timely dispositive motions. [Record No. 16] King did not make any further filings, but the Commissioner moved for summary judgment on May 1, 2018. [Record No. 18] King has not responded to that motion.

         II. Background

         King was thirty-nine years old at the time of her 2010 application. [Tr. 40] She claimed that she became unable to work on October 1, 2005, because of depression, anxiety, fibromyalgia, social anxiety, attention deficit-hyperactivity disorder (“ADHD”), back pain, hand pain, sleep apnea, and thyroid problems.[2] [Tr. 120] King had completed “some college, ” but reported that she struggled to keep up. [Tr. 1389, 1398] She was a widow, but her adult daughter and young grandson lived with her. [Tr. 1322-23] King held a driver's license and, in April 2014, reported driving to the post office daily. [Tr. 169]

         King established care with Physician Assistant Mike Napier at Clover Fork Clinic in 1996. [Tr. 1027] Napier treated King regularly through 2015 for a variety of primary care concerns such as high cholesterol, hypertension, and hypothyroidism. [Tr. 803-1027, 1293-1344] She also complained of chronic pain in her back, which Napier attributed to fibromyalgia and/or arthritis, and prescribed Norco. [See Tr. 1293-97.] King attended physical therapy sessions for back pain in 2009 and experienced significant pain relief. [See Tr. 290-415.]

         State agency consultant Daniel Stewart, M.D., examined King in April 2007. [Tr. 231] King complained of longstanding anxiety, accompanied by depression with a decreased attention span. Id. She also complained of generalized pain in her arm, wrist, and shoulder that was increased with movement. Id. However, Stewart noted that King's range of motion was without limitation and there was no tenosynovitis of any joint. [Tr. 233] Deep tendon reflexes were 2 and symmetrical and strength was 5/5 at all extremities and at all levels. Id. Stewart concluded that there were no physical limitations that would preclude King from working. [Tr. 233-34] He recommended a formal psychosocial evaluation to assess the extent of any limitations resulting from psychiatric problems. [Tr. 234]

         Jan Jacobson, Ph.D., performed a psychiatric file review on behalf of the state in June 2007. [Tr. 235-248] After reviewing the available evidence, Jacobson concluded that King's activities of daily living, social functioning, and concentration, persistence, or pace would be mildly limited due to a panic disorder without agoraphobia. [Tr. 240, 245]

         King began mental health counseling at Cumberland River Comprehensive Care Center (“Comp Care”) in June 2007. [Tr. 794] S. Raza, M.D., treated King periodically and managed her medications while she was being seen by Comp care counselors. King received individual counseling monthly from June 2007 through May 2015. [Tr. 585-794, 1346-1366, 1380-1383] Counseling notes indicate that King struggled with depression and stress from being the caregiver for her elderly mother, her adult daughter, and her young grandson. [See, e.g. Tr. 586, 614.] However, she generally reported that counseling and medication decreased her symptoms. See Id. King was admitted to the psychiatric unit at the Harlan Appalachian Regional Hospital in September 2014 after reporting that she was feeling “very overwhelmed” and that her family had been “stressing her out.” [Tr. 1166] Celexa was added as an anti-depressant, and King responded well. [Tr. 1163] King was discharged after five nights, reporting that her depression and anxiety were rated as zero out of ten. [Tr. 1164]

         Robert Spangler, Ed.D., performed a psychological examination at the request of King's attorney in December 2012. [Tr. 568-74] King advised Spangler that she was scared to be alone and that she had experienced symptoms of depression since 1999. [Tr. 568] She also reported having experienced panic attacks since her husband passed away in August 2011. Id. Spangler administered the WAIS-IV, which produced a full-scale IQ score of 74, placing King within the borderline range of intelligence. [Tr. 570-71] Spangler also administered the WRAT-4 Blue Form, through which he concluded that King's “word reading” fell at the 5.7 grade level, her “sentence comprehension” was at the 8.1 grade level, and her arithmetic computation was at the 4.0 grade level. [Tr. 571]

         Spangler indicated that King's abilities to follow simple rules and to interact with supervisors were good, but her abilities to relate to coworkers, deal with the public, maintain attention/concentration, function independently, and deal with work stresses were only fair. [Tr. 572] He believed she would have, at best, fair abilities to make performance and personal-social adjustments in the work environment. [Tr. 573] Spangler indicated that King had no ability to make performance adjustments regarding detailed or complex instructions or to demonstrate reliability. Id. Finally, he indicated that she would likely be absent more than four days per month. [Tr. 574]

         Mike Napier referred King to Kirpal Sidhu, M.D., in October 2014 for her complaints of right wrist pain. [Tr. 1341] Sidhu noted that King's thoracic and lumbar areas were not tender and that her range of motion was age-appropriate. [Tr. 1369] He further reported that she had no sciatic tension signs and no gross neurological deficits. Id. King did have a small amount of swelling on the dorsum of her right wrist, as well as positive Phalen's and Tinel's signs. Sidhu advised her to use a wrist brace and planned to obtain nerve conduction studies, but it ...

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