United States District Court, D. Alaska
DECISION AND ORDER
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
On
November 8, 2011, Wanda Lea Morris filed applications for
Disability Insurance Benefits (“disability
insurance”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social
Security Act (“the Act”) respectively,
[1]
alleging disability beginning April 14, 2008 due to diabetes,
heart problems, anxiety attacks, asthma, and
arthritis.[2] Ms. Morris has exhausted her
administrative remedies and filed a Complaint seeking relief
from this Court.[3]
On
February 10, 2017, Ms. Morris filed a document titled
“In response to the ‘Amended Social Security
Scheduling Order' received.”[4] The Commissioner
and this Court have treated this document as Ms. Morris's
opening brief.[5] The Commissioner filed an Answer and a
brief in opposition to Ms. Morris's opening
brief.[6] No reply was filed. Oral argument was not
requested and was not necessary to the Court's decision.
This Court has jurisdiction to hear an appeal from a final
decision of the Commissioner of Social
Security.[7] For the reasons set forth below, Ms.
Morris's request for relief at Docket 1 will be DENIED.
I.
STANDARD OF REVIEW
A
decision by the Commissioner to deny disability benefits will
not be overturned unless it is either not supported by
substantial evidence or is based upon legal
error.[8]“Substantial evidence” has been
defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”[9] Such evidence
must be “more than a mere scintilla, ” but may be
“less than a preponderance.”[10] In reviewing
the agency's determination, the Court considers the
evidence in its entirety, weighing both the evidence that
supports and that which detracts from the administrative law
judge (“ALJ”)'s conclusion.[11] If the
evidence is susceptible to more than one rational
interpretation, the ALJ's conclusion must be
upheld.[12] A reviewing court may only consider the
reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which she
did not rely.”[13]
II.
DETERMINING DISABILITY
The Act
provides for the payment of disability insurance to
individuals who have contributed to the Social Security
program and who suffer from a physical or mental
disability.[14] In addition, SSI may be available to
individuals who are age 65 or older, blind, or disabled, but
who do not have insured status under the Act.[15] Disability is
defined in the Act as follows:
[I]nability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months.[16]
The Act
further provides:
An individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), “work which exists in the national
economy” means work which exists in significant numbers
either in the region where such individual lives or in
several regions of the country.[17]
The
Commissioner has established a five-step process for
determining disability within the meaning of the
Act.[18] A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing
of disability.[19] If a claimant establishes a prima facie
case, the burden of proof then shifts to the agency at step
five.[20] The Commissioner can meet this burden in
two ways: “(a) by the testimony of a vocational expert,
or (b) by reference to the Medical-Vocational
Guidelines at 20 C.F.R. pt. 404, subpt. P, app.
2.”[21] The steps, and the ALJ's findings in
this case, are as follows:
Step 1. Determine whether the claimant is
involved in “substantial gainful activity.”
The ALJ concluded that Ms. Morris has not engaged in
substantial gainful activity since August 27, 2010, the
potential onset date.[22]
Step 2. Determine whether the claimant has a
medically severe impairment or combination of impairments. A
severe impairment significantly limits a claimant's
physical or mental ability to do basic work activities and
does not consider age, education, or work experience. The
severe impairment or combination of impairments must satisfy
the twelve-month duration requirement. The ALJ determined
that Ms. Morris has the following severe impairments:
diabetes mellitus, hypertension, depression, and anxiety. She
found that Ms. Morris's allegations of hip pain, knee
pain, and problems with balance are not associated with a
medically determinable impairment. Additionally, the ALJ
determined that although the record contained medical
evidence of morbid obesity, osteoarthritis of the shoulders,
history of coronary artery disease with stenting, asthma,
chronic obstructive pulmonary disease (“COPD”),
and spondylosis of the spine, none of these impairments were
severe within the meaning of the applicable
law.[2]
Step 3. Determine whether the impairment is
the equivalent of any of the listed impairments found in 20
C.F.R. pt. 404, subpt. P, app.1 that are so severe as to
preclude substantial gainful activity. If the impairment is
the equivalent of any of the listed impairments, and meets
the duration requirement, the claimant is conclusively
presumed to be disabled. If not, the evaluation goes on to
the fourth step. The ALJ determined that Ms. Morris does
not have an impairment or combination of impairments that
meets or medically equals the severity of a listed
impairment.[24]
Before proceeding to step four, a claimant's residual
functional capacity (“RFC”) is assessed. Once
determined, the RFC is used at both step four and step five.
An RFC assessment is a determination of what a claimant is
able to do on a sustained basis despite the limitations from
her impairments, including impairments that are not
severe.[25] The ALJ concluded that Ms. Morris
has the RFC to perform light work except she is limited to
occasional climbing of ramps or stairs; no climbing of
ladders, ropes, or scaffolds; frequent balancing, stooping,
kneeling, crouching, and crawling; must avoid concentrated
exposure to extreme cold, excessive vibration, and hazardous
machinery; and superficial interaction with the general
public.[[2]]
Step 4. Determine whether the claimant is
capable of performing past relevant work. At this step, the
analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by
the claimant's RFC. If the claimant can still do her past
relevant work, the claimant is deemed not to be disabled.
Otherwise, the evaluation process moves to the fifth and
final step. The ALJ found that Ms. Morris is not able to
perform any past relevant work.[27]
Step 5. Determine whether the claimant is
able to perform other work in the national economy in view of
her age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the
claimant is considered disabled. Based on the testimony
of the vocational expert (“VE”), the ALJ
concluded that there are jobs that exist in significant
numbers in the national economy that Ms. Morris can perform,
including the positions of mail room sorter, routing clerk,
and office helper.[28]
Based
on the foregoing, the ALJ concluded that Ms. Morris was not
disabled from August 27, 2010 to July 18, 2015.[29]
III.
PROCEDURAL AND FACTUAL BACKGROUND
Ms.
Morris was born in 1961; she is currently 56 years old. She
last worked as a personal care assistant for Access Alaska in
August of 2008.[30] In the past, she also worked as a retail
cashier and as a driver and dispatcher for taxi
companies.[31]
Ms.
Morris filed a prior application for disability benefits on
January 27, 2009, alleging disability beginning on April 14,
2008.[32] The ALJ in that case issued a decision
on August 26, 2010 and concluded that Ms. Morris was not
disabled from April 14, 2008 through the date of the
decision.[33] Ms. Morris did not appeal that decision.
Ms.
Morris initiated the current application for disability
benefits on November 11, 2011.[34] After an initial denial, an
administrative hearing was scheduled in Fairbanks, Alaska for
April 8, 2013.[35] Ms. Morris and her representative failed
to appear at the administrative hearing and the ALJ dismissed
her subsequent request for hearing.[36] The Appeals Council
denied Ms. Morris's request for review.[37] Ms. Morris
appealed to this Court.[38] On April 24, 2014, the Court granted
the Commissioner's motion to remand the case to the
agency for an administrative hearing. However, the Court
retained jurisdiction and held that Ms. Morris could
reinstate her case in the event of an unfavorable decision at
the administrative hearing.[39]
On
remand to the agency, the ALJ held a video hearing on May 4,
2015.[40] Ms. Morris was not represented by
counsel; however, Ms. Inez Wright, a non-attorney from Alaska
Legal Services Corporation, attended the hearing with Ms.
Morris.[41]
The ALJ
issued her decision on July 15, 2015. The ALJ found that res
judicata applied to preclude a disability finding from April
14, 2008 to August 26, 2010.[42] However, due to “changed
circumstances, ” the ALJ held that the Chavez
presumption of continuing non-disability was not applicable
to the period after August 26, 2010, [43] because Ms.
Morris's change in age from that of a younger individual
(less than age 50) to that of an individual closely
approaching advanced age (age 50 to 54) under the
Medical-Vocational Rules constituted a changed
circumstance.[44] The ALJ then determined that Ms. Morris
was not disabled from August 27, 2010 to July 18,
2015.[45]
On
January 31, 2016, the Appeals Council declined to assume
jurisdiction after remand.[46] As such, the case was
reinstated in this Court on October 3, 2016.[47] Ms. Morris
filed her opening brief on February 10, 2017; she is not
represented by counsel in this appeal.[48]
Ms.
Morris has been diagnosed with a number of medical
impairments, including diabetes mellitus (type II),
hypertension, heart problems (status-post stenting),
dyslipidemia, chronic obstructive pulmonary disease
(“COPD”), degenerative joint disease in her left
hip, degenerative spondylosis and AC (acromioclavicular)
joint osteoarthritis, mild basilar atelectasis, gait
imbalance, exogenous obesity, and chronic
depression.[49] The ALJ found that Ms. Morris's
diabetes mellitus, hypertension, depression and anxiety were
severe impairments.[50]
In
2007, Ms. Morris suffered a heart attack. She testified at
the May 4, 2015 hearing that she has had a total of nine
stents, all prior to 2008.[51]
The
Medical Record
A
summary of the medical records in the Court's file is as
follows:
On
October 5, 2010, Ms. Morris saw Moazzem Khan, M.D., at the
Interior Community Health Center
(“ICHC”).[52] She complained of a “deep,
dull, acheing pin [sic.]” in her left hip, particularly
associated with walking. Dr. Khan assessed Ms. Morris with
degenerative joint disease. He noted her hypertension as
controlled, and her gait imbalance, obesity and diabetes as
unchanged.[53]
Ms.
Morris's next visit to ICHC was on November 16, 2010. Ms.
Morris's blood sugars were noted to be ranging from 145
to 382, but she denied any diabetic symptoms. Her obesity and
diabetes were both noted to have deteriorated, but the
degenerative joint disease was no longer noted.[54]
At Ms.
Morris's next visit to ICHC on December 28, 2010, she
reported blood sugars with most values under 160. Her
hypertension was assessed as improved. The record for that
date noted that Ms. Morris had had stents, but “as
comment only” as the doctor did not treat her for heart
problems at the visit.[55]
On
January 5, 2011 and March 16, 2011, Dr. Khan again saw Ms.
Morris for diabetes management. He discussed the need for
complete cessation of cigarette smoking and noted she was at
risk of uncontrolled diabetes. At each of these visits, Ms.
Morris's medications were adjusted and her
cardiovascular, respiratory, skin, neurological, and
endocrine systems, as well as her mental status, were all
assessed as normal; with “no depression, anxiety, or
agitation.” Her hypertension was assessed as improved
and her diabetes as unchanged.[56]
On
April 26, 2011, Ms. Morris received a chest x-ray at
Fairbanks Medical Hospital. The x-rays revealed degenerative
spondylosis and AC (acromioclavicular) joint osteoarthritis,
as well as “low lung volumes with mild basilar
atelectasis.”[57]
Ms.
Morris returned to Dr. Khan on May 4, 2011 for ear pain and
diabetes medication management, and again on June 1, 2011 for
medication management.[58]
On
September 13, 2011, Ms. Morris saw Dr. Khan seeking a refill
of her pain medication. Dr. Khan assessed Ms. Morris for
degenerative joint disease of the left hip and gait
imbalance, but noted that Ms. Morris “claims that her
current pain pill, Vicodin, can keep her [left] hip pain
under reasonable control and wants her refill.” He
noted “marked deep tenderness” at Ms.
Morris's left hip.[59]
At an
office visit to ICHC on November 22, 2011, Ms. Morris's
diabetes was assessed as “deteriorated.” Ms.
Morris said she could not control her diabetes. She added she
could “not get much activity due to chronic
pain.”[60]
On
December 27, 2011, Kimberly Douglas, M.D., another doctor at
ICHC, noted that Ms. Morris's diabetes had improved, but
added that Ms. Morris reported she was depressed about her
financial status. The doctor assessed Ms. Morris with chronic
depression, but added that she “decline[d] counseling
services” and a “$4
antidepressant.”[61]
Ms.
Morris returned to the health center on January 26, 2012
seeking a refill for her pain medication. She admitted
dietary noncompliance and complained of episodes of nocturia
and polyuria. She denied any problems with her mood and was
no longer assessed as chronically depressed.[62]
On
March 28, 2012, Dr. Khan saw Ms. Morris for diabetes
management. Ms. Morris denied any problem with her mood
except she reported “anxiety for her financial
hardship.”[63]
At a
visit to Dr. Khan on April 26, 2012, Ms. Morris reported that
she could not afford to fill all of her medication
prescriptions. She maintained that her pain medication,
Vicodin, was also keeping her blood pressure under
control.[64]
Ms.
Morris saw Dr. Khan again on May 8, 2012. Her blood sugar
levels were lower; the doctor noted they were “much
better than before.” No mental health issues were
noted.[65]
On June
26, 2012, Ms. Morris returned to Dr. Khan. She again denied
any problem with her mood. As with nearly every visit, she
was encouraged to quit smoking, lose weight, watch her diet,
and get regular exercise.[66]
On
August 3, 2012, Ms. Morris reported blood sugar levels mostly
below 150. She was noted as limping from left hip
pain.[67]
On
September 4, 2012, Ms. Morris's diabetes continued to be
better controlled, with blood sugar levels reported to be
mostly under 140. She again stated that Vicodin also kept her
blood pressure under control and wanted a
refill.[68]
On
October 1, 2012, Ms. Morris returned to Dr. Khan and her
diabetes remained improved. Degenerative joint disease of the
left hip was noted, but assessed as improved.[69]
Ms.
Morris's next office visit was on January 10, 2013. She
reported she was compliant with her medications, diet and
activities. She was observed limping from left hip
pain.[70]
At the
next office visit on March 25, 2013, Ms. Morris again
reported left hip pain and sought a Vicodin
refill.[71]
The
first assessment of Chronic Obstructive Pulmonary Disease
(mild) (“COPD”) was at Ms. Morris's visit on
May 7, 2013. She was prescribed Albuterol
Sulfate.[72]
At
visits on June 11, 2013, July 16, 2013, and August 20, 2013,
Ms. Morris reported being compliant with her medications,
diet and activities. Her hypertension was reported as under
control.[73]
On
September 10, 2013, Dr. Khan noted Ms. Morris complained of
“mild burning feet” and sought an increase in her
pain medication. The doctor added a new assessment of
polyneuropathy associated with diabetes and prescribed
medication for that condition.[74]
At an
October 22, 2013 office visit, Ms. Morris reported that the
Vicodin kept her left hip pain under reasonable control and
sought a refill. Ms. Morris was asked whether she had felt
down, depressed or hopeless at any point in the previous two
weeks and she responded “not at
all.”[75]
On
December 23, 2013, Ms. Morris again reported no signs of
depression. COPD was not assessed at that
visit.[76]
On
February 25, 2014, Ms. Morris had another depression
screening. On that day, she indicated that she had felt
“down, depressed or hopeless” “[n]early
every day” for the past two weeks. In the same
screening, she also answered that “nearly every
day” of the past two weeks she had “little
interest or pleasure in doing things.” However, the
doctor did not prescribe medication for depression or
recommend counseling. Ms. Morris's blood sugar level was
very high at 422.[77]
Less
than one month later, at a March 19, 2014 office visit, Ms.
Morris had another depression screening. On that date, she
responded “not at all” when asked whether she had
felt down, depressed or hopeless over the past two
weeks.[78]
On
April 15, 2014, Dr. Khan noted that Ms. Morris's diabetes
was significantly out of control and she had episodes of
nocturia and polyuria, but denied any skin lesions. Her
hemoglobin test was elevated at 14.0. At this same visit, Ms.
Morris reported no symptoms of depression. She was assessed
for COPD. Her left hip pain was assessed as
improved.[79]
At a
doctor's visit on July 1, 2014, Ms. Morris was asked
whether she was “currently having any pain which . . .
affects your activity level?” She responded,
“No.” At the same visit in an anxiety screening,
she was asked whether she was “feeling nervous,
anxious, or on edge” or “[u]nable to stop or
control worrying” during the preceding two weeks. She
responded, “Not at all” to both questions. Ms.
Morris's diabetes was improved, with most of her blood
sugar levels reported below 120. Her weight was lower than in
prior visits, at 258 pounds. No assessment is listed for
degenerative joint disease, although limping from left hip
pain is noted. There is no assessment for COPD.[80]
On
August 13, 2014, Ms. Morris's diabetes was reported as
well controlled. She was not having pain which affected her
activity level, but the record notes limping from left hip
pain. She declined a depression and anxiety
screening.[81]
On
October 10, 2014, Ms. Morris reported no anxiety or
depression symptoms over the prior two weeks and her diabetes
had improved. She was again encouraged to exercise regularly
and lose weight.[82]
On
January 2, 2015, Ms. Morris's chief complaint was
diabetes and medication refills. She was again screened for
depression and reported no depressive symptoms at that
visit.[83]
On
April 6, 2015, in a record provided to the ALJ after the May
4, 2015 hearing, Ms. Morris reported feeling down, depressed
or hopeless “[n]early every day” of the preceding
two weeks. Dr. Khan diagnosed Ms. Morris with chronic
depression as a result of her responses to screening
questions. On a self-administered patient health
questionnaire for depression, she had a significantly
elevated score with a severity rating of
“[s]evere” and a functional impairment of
“[e]xtremely [d]ifficult.” Ms. Morris did not
identify any factor causing her depression except “her
ongoing financial stress.” She was advised to make an
appointment with a behavior health psychologist. The record
also noted that Ms. Morris “states she absolutely DOES
NOT want to see the Psychologist at all.”[84]
Hearing
Testimony and Third Party Reports
At the
May 2015 hearing, Ms. Morris testified that she has severe
social anxiety, “really bad balance, ” knee pain,
back pain and “constant” hip pain. She stated
that “[p]eople scare me. It takes me quite a while to
get to know somebody to where I can trust them to be
there.” She also testified that she had heart
“flutters and pains that go across, ” but that
she had not received any treatment for heart problems after
stents were put in. She reported that she could lift
“ten to 15 pounds at the most” and that she could
not “do it repetitively.” Ms. Morris testified
that her brother “calls me or texts me every day to
remind me to take my medicine” and that she has
reminder notes on her wall “to remind me to check my
blood in the mornings and to take my insulin before I go to
bed.” She reported problems with sleeping and bathing
due to pain. However, Ms. Morris also testified that she
could drive, wash dishes, clean her apartment, take out the
garbage, watch television, shop for groceries with
assistance, and cook. She can read and write in English, add,
subtract, and make change. At the hearing she reported that
she had never seen a counselor for anxiety or depression, nor
had she ever used anti-depressive or anti-anxiety
medications.[85]
On
February 2, 2012, Wandal Winn, M.D., a state agency
consultant, reviewed Ms. Morris's medical records and
provided a mental residual functional capacity assessment.
Dr. Winn reported that Ms. Morris's “ability to
maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness” was
“[m]oderately limited.” As explanation, he wrote
that “[Ms. Morris] should be limited to superficial
general public contact because of her personality
disorder” and that she “was fired for stealing
money” at her cashier-checker job. He also noted that
“she did not appear to have problems with
customers.”[86] The ALJ found Dr. Winn's opinion was
“incomplete” because he did not include any
opinion regarding specific limitations; the ALJ accorded Dr.
Winn's opinion “partial weight only to the extent
it is consistent with the residual functional
capacity”.”[87]
IV.
DISCUSSION
Ms.
Morris is self-represented. She did not file a formal opening
brief, but submitted a list asserting that she: (1)
“suffer[s] from social anxieties, and balance issues,
” (2) is “not able to lift over 10 pounds,
” (3) is “in constant pain, ” and (4)
“cannot go shopping or to the doctor without someone
[she] know[s] and trust[s] with [her].”[88]
This
Court liberally construes Ms. Morris's brief and affords
her “the benefit of any doubt.”[89] The Court
addresses each of Ms. Morris's arguments in turn.
A.
Social Anxieties
Ms.
Morris maintains that she “suffer[s] from debilitating
social anxieties.” She testified to the ALJ that she
has “severe social anxieties.” The ALJ found that
Ms. Morris's allegations regarding the severity of her
...