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Slocum v. Saul

United States District Court, D. Alaska

September 10, 2019

ANDREW SAUL,[1] Commissioner of Social Security, Defendant.



         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.


         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]


         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]


         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 ...

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