United States District Court, D. Alaska
DECISION AND ORDER
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE
On or
about June 1, 2015, Terrie Jo Slocum protectively filed an
application for Disability Insurance Benefits
(“disability benefits”) under Title II of the
Social Security Act (“the Act”), alleging
disability beginning November 1, 2008.[2] Ms. Slocum has
exhausted her administrative remedies and filed a Complaint
seeking relief from this Court.[3]
On
March 10, 2019, Ms. Slocum filed an opening
brief.[4] The Commissioner filed an Answer and a
brief in opposition to Ms. Slocum's opening
brief.[5] Ms. Slocum filed a reply brief on April 9,
2019.[6] 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. Slocum's request for relief will be granted.
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 [he]
did not rely.”[13] An ALJ's decision will not be
reversed if it is based on “harmless error, ”
meaning that the error “is inconsequential to the
ultimate nondisability determination . . . or that, despite
the legal error, the agency's path may reasonably be
discerned, even if the agency explains its decision with less
than ideal clarity.”[14]
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.[15] 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.[16] 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.[17]
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.[18]
The
Commissioner has established a five-step process for
determining disability within the meaning of the
Act.[19] A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing
of disability.[20] If a claimant establishes a prima facie
case, the burden of proof then shifts to the agency at step
five.[21] The Commissioner can meet this burden in
two ways: “(a) by the testimony of a vocational expert
(“VE”), or (b) by reference to the
Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P,
app. 2.”[22] 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.
Slocum had not engaged in substantial gainful activity during
the period from her alleged onset date of November 1, 2008
through her date last insured of June 30,
2011.[23]
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. Slocum had the
following severe impairments: obesity and tobacco dependency.
The ALJ concluded that fibromyalgia was not a medically
determinable impairment “in the absence of the
requisite evidence, but that even if it was medically
established, it would have been non-severe.” The ALJ
also concluded that Ms. Slocum's polyneuropathy, history
of eye problems with macular degeneration, varicose veins,
and gastroesophageal reflux disease were non-severe. The ALJ
determined that Ms. Slocum's depressive disorder and
anxiety disorder were also
non-severe.[24]
Step
3.
Determine
whether the impairment or combination of impairments meets or
equals the severity of any of the listed impairments found in
20 C.F.R. pt. 404, subpt. P, app.1 so as to preclude
substantial gainful activity. If the impairment is(are) the
equivalent of any of the listed impairments, and meet(s) the
duration requirement, the claimant is conclusively presumed
to be disabled. If not, the evaluation goes on to the fourth
step. The ALJ determined Ms. Slocum did not have an
impairment or combination of impairments that met or
medically equaled the severity of a listed
impairment.[25]
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.[26] The ALJ concluded Ms. Slocum had the
RFC to perform light work, but would be additionally limited
to frequently climbing ramps and stairs, stooping, kneeling,
crouching, and crawling; never climbing ladders, ropes, or
scaffolds; requiring a sit/stand option allowing her to
alternate sitting or standing positions at 30 to 60 minute
intervals throughout the day without moving off-task; no
exposure to unprotected heights; and frequent exposure to
moving machinery and hazardous machinery.[27]
Step
4.
Determine
whether the claimant is capable of performing past relevant
work. At this point, 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. Slocum was capable of performing past
relevant work as a secretary and human resources
assistant.[28]
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 and Ms.
Slocum's RFC, the ALJ did not address step
five.[29]
Based
on the foregoing, the ALJ concluded that Ms. Slocum was not
disabled from November 1, 2008, the alleged onset date,
through June 30, 2011, the date last insured.[30]
III.
PROCEDURAL AND FACTUAL BACKGROUND
Ms.
Slocum was born in 1964; she is currently 55 years
old.[31] She last worked full-time as a personal
care attendant for her father in 2008, but “had to stop
because his medical conditions got so bad that I was unable
to care for him anymore.”[32] She reported working as a
daycare provider during and after the relevant period, but
her earnings did not qualify as substantial gainful
activity.[33] In the past, Ms. Slocum worked as an HR
assistant and scheduling specialist, a receptionist, a
sandwich maker, a floor manager, and a
secretary.[34] Ms. Slocum initiated her application for
disability benefits on or about June 1, 2015 with an alleged
onset date of November 1, 2008.[35] On July 27, 2015, the SSA
field office determined Ms. Slocum was “not
disabled.”[36] On October 16, 2015, Ms. Slocum
requested an administrative hearing.[37] On April 26, 2017, Ms.
Slocum testified by video without attorney representation at
a hearing before ALJ Paul Hebda.[38] Jack LeBeau, M.D.,
testified as a medical expert at the hearing, but the hearing
was rescheduled because the mental health medical expert was
not prepared to testify at the hearing due to an
administrative error.[39] A supplemental hearing was held on
December 5, 2017. Ms. Slocum again testified by video without
representation before ALJ Hebda.[40]Dr. LeBeau testified as
the medical expert.[41] Cheryl Buechner, Ph.D., testified as the
medical expert regarding Ms. Slocum's mental
impairments.[42] Daniel LaBrosse testified as the
vocational expert at the hearing.[43] The ALJ issued an
unfavorable ruling on December 27, 2017.[44] The Appeals
Council denied Ms. Slocum's request for review on October
31, 2018.[45] Ms. Slocum appealed to this Court; she
is represented by counsel in this appeal.[46]
The
Medical Record
Although
the medical record is extensive in this case, there are few
records from the relevant time period.[47] The
Court's review of the record is primarily focused on the
period between the alleged onset date of November 1, 2008 and
date last insured of June 30, 2011. However, the following
relevant records before the amended onset date are also
noted:
On
February 12, 1997, William Wennen, M.D., wrote a letter to
the Division of Vocational Rehabilitation on Ms. Slocum's
behalf. Dr. Wennen noted that Ms. Slocum was
“developing painful varicosities in the posterior
aspect of her right calf.” He recommended compressive
garments “be worn anytime [Ms. Slocum] is up and
active.” Dr. Wennen opined that “while we may be
able to alleviate some of her symptomology at this point,
without the surgery and without compressive garments, and
without relieving the excessive standing, [Ms. Slocum] will
ultimately become quite permanently impaired and basically a
“varicose vein cripple.” He recommended that Ms.
Slocum “be trained in the position where standing is no
longer a major portion of her occupational duties” and
“[i]f at all possible she should be in a more sitting
position for as much of the workday as is
possible.”[48]
On
November 15, 2006, Ms. Slocum visited Eva Hansen, PA-C, at
Tanana Valley Clinic. Ms. Slocum reported being involved in a
motor vehicle accident on October 23, 2006. She reported
having “some circulation problems in her legs-varicose
veins” and that her feet felt “sometimes tingly
previous to this.” PA Hansen recommended stretching,
alternating heat and ice, and walking.[49]
On
January 28, 2007, Ms. Slocum went to the emergency department
at Fairbanks Memorial Hospital for abdominal pain. She was
taken to surgery for a laparoscopic appendectomy. On physical
examination, her extremities showed “no clubbing,
cyanosis or edema, and good peripheral pulses” with
“[g]ood motion in all joints.” Ms. Slocum was
discharged on January 30, 2007.[50]
The
following are the more relevant medical records between
November 1, 2008 and June 30, 2011:
On June
8, 2009, Ms. Slocum saw Tatiana Olson, PA-C, at Tanana Valley
Clinic. She reported migraines. On physical examination, PA
Olson observed that Ms. Slocum's extremities appeared
normal with no edema or cyanosis; she had an intact gait and
balance; and preserved and symmetric deep tendon
reflexes.[51]
The
following are the more relevant medical records after June
30, 2011:
On July
28, 2012, Ms. Slocum presented to the emergency department at
Fairbanks Memorial Hospital after a motor vehicle accident.
She was treated for neck sprain/whiplash injury. On physical
examination, the attending doctor observed no clubbing,
cyanosis, or edema in her extremities. Ms. Slocum had 2
pulses in all extremities distally.[52]
On
August 12, 2013, Ms. Slocum saw Alena Anderson, M.D., at
Fairbanks Memorial Hospital for follow up after the motor
vehicle accident a year earlier on July 28, 2012. On physical
examination, she had no peripheral edema.[53]
On May
15, 2013, Ms. Slocum visited Philip Chapa, PA-C, at Tanana
Valley Clinic. She reported an earache in the right ear and
wanted to follow up on her medications. Ms. Slocum was
diagnosed with varicose veins of the leg, not otherwise
specified. On physical examination, Ms. Slocum had preserved
and symmetric deep tendon reflexes.[54]
On May
1, 2015, Ms. Slocum saw Bethany Chernich, D.O., at Tanana
Valley Clinic for medication refills. She reported that her
“known varicose veins [that Dr.] Wennen [diagnosed]
[were] managed, [but] office work [was the] only [work she
had been] able to perform since [her] early 30's.”
Ms. Slocum also reported pain upon standing and sitting and
“combined with the pain from [her neck and shoulder] .
. . ‘life is all changed'.” She also reported
that she needed to have her veins in her right leg
“done again.” Dr. Chernich diagnosed Ms. Slocum
with chronic varicose veins, progressively worsening. She
noted that “Dr. Schuldt can be helpful in the future to
discuss [options].”[55]
On June
9, 2015, Ms. Slocum followed up with Dr. Chernich. She
reported numbness in the feet and lower leg pain. Ms. Slocum
reported that she was not able to “sit for extended
periods to pay her bills or other daily activities.”
She also reported that she couldn't “wear certain
shoes due to pain associated with bulging varicosities at the
ankle and had gained weight, but that she walked regularly.
She noted that her activities of daily living were
“affected by leg pain causing her to stop her
activities and elevate her leg and [walk] back and
forth.” Ms. Slocum indicated that elevating her legs
resulted in some improvement and that she had not tried over
the counter compression stockings. She also reported that she
wore graduated compression stockings “18 years ago when
originally diagnosed, ” but had not tried them
recently. On physical examination, Dr. Chernich observed
moderate varicosities in the right calf, a large vein visible
on the left calf, but no edema. Dr. Chernich made a referral
for a consultation with Gabe Schuldt, M.D., for chronic
varicose veins.[56]
On June
30, 2015, Ms. Slocum saw Gabe Schuldt, M.D., at Tanana Valley
Clinic. Dr. Schuldt conducted an ultrasound. The ultrasound
showed “[v]enous reflux from non-functioning great
saphenous vein valves” on the right, “resulting
in bulging varicosities.” Dr. Schuldt diagnosed Ms.
Slocum with varicose veins of the leg with complications. He
recommended three months of “conservative therapy
including compression stockings prior to any
interventions” and “[i]f no significant
improvement, proceed with endovenous laser ablation to the
right great saphenous vein with ambulatory
phlebectomy.” He also recommended daily walking,
exercise, and weight reduction. Dr. Sch u ldt noted that Ms.
Slocum's deep venous system was functioning within normal
limits.[57]
On
August 5, 2015, Ms. Slocum visited Raymond Wilson, M.D., for
a rheumatology evaluation. As part of the evaluation, Dr.
Wilson noted that Ms. Slocum had “chronic leg edema
attributed to her varicose veins, and has had two or three
episodes of Chilblain's in the toes each winter since -
2010.” On physical examination, Dr. Wilson observed no
Raynaud's or evidence of Chilblain's. He observed
trace bilateral dependent edema to the ankle, but the
peripheral pulses were preserved. Dr. Wilson also observed
Ms. Slocum's range of motion was preserved in all
extremities with no swelling, redness, or
warmth.[58]
On
September 22, 2015, Ms. Slocum followed up with Dr. Schuldt.
Ms. Slocum reported “no significant improvement in the
leg pain” and wanted to “proceed with definitive
therapy.” Dr. Schuldt observed moderate varicosities on
the right calf, but no cyanosis, no edema, and no
ulceration.[59]
On
November 3, 2015, Ms. Slocum saw Dr. Schuldt. At the visit,
Ms. Slocum underwent endovenous laser treatment of the right
leg.[60]
On
November 10, 2015, Ms. Slocum visited Debra Triplehorn, M.D.,
at Tanana Valley Clinic. She reported using graduated
compression stockings daily and walking for one hour daily.
Dr. Triplehorn observed no edema, no calf tenderness, no
ulceration, and no varicosities.[61]
On
February 14, 2016, Ms. Slocum had an ultrasound of her left
and right legs. The ultrasound showed a “[s]uccessful
endovenous closure of the right [great saphenous
vein].”[62]
On July
11, 2016, Ms. Slocum saw Dr. Chernich for chronic
“bilateral distal lower extremity numbness and tingling
associated with pain.” Dr. Chernich noted that Ms.
Slocum had “a history of varicose veins that have
caused some of her leg pain in the past treated with
surgery.” On physical examination, Dr. Chernich
observed a normal gait and steady station.[63]
On July
18, 2016, Dr. Chernich wrote a letter on Ms. Slocum's
behalf. Dr. Chernich opined that Ms. Slocum's
“medical condition makes serving on jury duty
inadvisable indefinitely.”[64]
On
November 4, 2016, Ms. Slocum followed up with Dr. Schuldt.
She reported that her symptoms had improved since her vein
surgery. The ultrasound taken at the appointment showed
“distal GSV reflux” and “a very small 1-2mm
GSV tributary in the thigh and proximal calf, which joins the
distal GSV, ” but there was “no evidence of DVT
in the femoral vein or popliteal.”[65]
On
March 28, 2017, Dr. Chernich wrote a letter at the request of
Ms. Slocum. Dr. Chernich noted that Ms. Slocum received vein
surgery in November 2015, but “almost one year later at
my post-operative visit the surgery was declared
unsuccessful.” She opined that Ms. Slocum “is to
be considered for disability” due to her medical
diagnoses.[66]
April
26, 2017 Hearing Testimony
On
April 26, 2017, Ms. Slocum testified by video without
representation at a hearing held before ALJ Paul Hebda. She
asserted that her medically determinable impairments
prevented her from working. These included depression,
anxiety, varicose veins, a lumbar back issue, severe chemical
allergies, environmental allergies, macular degeneration, and
stomach and intestinal issues. She stated that “one of
the main reasons that I quit my job in May of 2006” was
due to her “varicose vein issue.” She testified
that she had “varicose vein issues that go back to
1997.”[67]
Jack
Lebeau, M.D., testified at the hearing as the medical expert.
Based on his review of Ms. Slocum's medical records, Dr.
Lebeau opined that Ms. Slocum had several diagnoses,
including fibromyalgia, polyneuropathy, GERD, obesity, and
tobacco dependence. He noted that Ms. Slocum had had eye
problems, including macular degeneration, a hysterectomy, and
varicose vein surgery, but that the vein surgery was
“again out of the time zone that you're
discussing.” Dr. LeBeau opined that Ms. Slocum's
impairments did not meet or equal a listing and that she was
capable of working with limitations. Specifically, Dr. Lebeau
opined that Ms. Slocum could lift 10 pounds continuously;
10-20 pounds frequently; sit for two hours at a time for a
total of six hours, stand for one hour at a time for a total
of four hours, and walk for ½ hour at a time for two
hours total in an eight-hour workday; climb stairs and ramps
frequently; never climb ladders or scaffolds; stoop, kneel,
crouch, and crawl frequently; have exposure to moving
mechanical parts frequently; and have no exposure to
unprotected heights.[68]
Due to
a scheduling error, Nicole Martinez, Ph.D., was unable to
testify regarding Ms. Slocum's mental impairments and the
hearing was continued.[69]
December
5, 2017 Hearing Testimony
On
December 5, 2017, Ms. Slocum appeared and testified by video
without representation before ALJ Hebda. She testified that
she suffered from “severe anxiety and leg pain due to
back issues and varicose vein problems.” She also
testified that she had stomach issues, severe allergies, and
migraine headaches. She reported that she last worked outside
the home in 2006.[70]
Jack
LeBeau, M.D., testified as the medical expert. Based on his
review of the record and the new records submitted since the
previous hearing, Dr. LeBeau testified that he would not
alter his previous RFC.[71]
Cheryl
Buechner, Ph.D., testified as the mental health medical
expert. Based on her review of the record, Dr. Buechner
opined that during the relevant time period, Ms. Slocum's
anxiety and depression were medically determinable
impairments. She opined that neither would meet or equal a
listing and that Ms. Slocum's mental status exams and
symptoms indicated only mild limitations in functioning. Dr.
Buechner testified that Ms. Slocum's anxiety was
“fairly stable on the medication.”[72]
Daniel
LaBrosse testified as the vocational expert. Based on the
ALJ's first hypothetical, VE LaBrosse testified that Ms.
Slocum could perform her past relevant work as an HR
assistant and secretary.[73] VE LaBrosse opined that if the
hypothetical person was unable to engage in sustained work
activity for a full eight-hour day on a regular and
consistent basis due to a combination of medical conditions,
Ms. Slocum's past relevant work would be excluded, as
would any full-time employment.[74]
Function
...