United States District Court, D. Alaska
DECISION AND ORDER
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
On or
about May 4, 2015, Gwendolyn Grace Larsen filed an
application for Disabled Widow's Insurance Benefits under
Title II of the Social Security Act (“the
Act”)[2]alleging disability beginning October 15,
2010.[3] Ms. Larsen has exhausted her
administrative remedies and filed a Complaint seeking relief
from this Court.[4]
Ms.
Larsen's opening brief asks the Court to reverse and
remand the agency decision.[5] The Commissioner filed an Answer
and a brief in opposition to Ms. Larsen's opening
brief.[6] Ms. Larsen filed a reply
brief.[7] 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.[8] For the reasons set forth
below, Ms. Larsen's request for relief 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.[9]“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.”[10] Such evidence
must be “more than a mere scintilla, ” but may be
“less than a preponderance.”[11] 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.[12] If the
evidence is susceptible to more than one rational
interpretation, the ALJ's conclusion must be
upheld.[13] 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.”[14] 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.”[15] Finally, the ALJ has a
“special duty to fully and fairly develop the record
and to assure that the claimant's interests are
considered.”[16] In particular, the Ninth Circuit has
found that the ALJ's duty to develop the record increases
when the claimant is unrepresented or is mentally ill and
thus unable to protect her own interests.[17]
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.[18] 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.[19] 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.[20]
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.[21]
The
Commissioner has established a five-step process for
determining disability within the meaning of the
Act.[22] A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing
of disability.[23] If a claimant establishes a prima facie
case, the burden of proof then shifts to the agency at step
five.[24] 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.”[25] 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. Larsen had not engaged in substantial
gainful activity since October 15, 2010, the alleged onset
date. ALJ LaCara also noted that Ms. Larsen was “the
unmarried widow of the deceased insured worker and had
attained the age of 50, ” having also previously met
the “non-disability requirements for disabled
widow's benefits set forth in section 202(e) of the
Social Security Act.” ALJ LaCara found the
“prescribed period ended on April 30,
2016.”[26]
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. Larsen had the following severe impairments:
“very mild to minimal degenerative changes of the right
ankle, mild to moderate degenerative changes at the left
thumb, ” “[m]oderate degenerative
changes at the great toe, ” and “apparent chronic
fatigue syndrome.” The ALJ found that Ms. Larsen's
history of glaucoma, small loose body in the right knee,
minimal osteoarthritis in the left knee medial compartment,
complaints of shoulder pain, and mental impairments of
depression, anxiety, personality disorder were all non-severe
and did not result in significant vocational
limitations.[27]
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 precluding 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. Larsen did not have an impairment or combination of
impairments that met or medically equaled the severity of a
listed impairment.[28]
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.[29]The ALJ concluded that Ms. Larsen had
the RFC to perform light work except she was limited to
lifting and carrying 20 pounds occasionally and 10 pounds
frequently; sitting, standing, and/or walking for
six hours each total in an eight-hour workday; occasionally
handling with the left upper extremity; frequently fingering
with the bilateral upper extremities; and never climbing
ladders, ropes, or scaffolds.[30]
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. Larsen was capable of
performing past relevant work as a curriculum
advisor.[31]
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. The ALJ determined that although Ms.
Larsen was capable of past relevant work, there were also
other jobs that existed in significant numbers in the
national economy that Ms. Larsen could perform, including
appointment clerk and civil service clerk.[32]
The ALJ
concluded that Ms. Larsen was not disabled at any time from
October 15, 2010 through May 2, 2017, the date of the
decision.[33]
III.
PROCEDURAL AND FACTUAL BACKGROUND
Ms.
Larsen was born in 1956; she is 63 years old.[34] She reported
working as an admissions advisor for the University of
Alaska, Anchorage (“UAA”), from approximately
1997 to 2010 and an admission “specialist” for
UAA prior to 1997.[35] On October 29, 2015, the Social Security
Administration (“SSA”) determined that Ms. Larsen
was not disabled under the applicable rules.[36] On December
28, 2015, Ms. Larsen timely requested a hearing before an
ALJ.[37] On January 13, 2017, Ms. Larsen appeared
and testified with representation at a hearing held before
ALJ Cecilia LaCara.[38] On May 2, 2017, the ALJ issued an
unfavorable ruling.[39] On February 22, 2018, the Appeals
Council denied Ms. Larsen's request for
review.[40] Ms. Larsen timely appealed to this Court
on September 26, 2018.[41]
Medical
Records
Although
Ms. Larsen's medical records date back to 2007, the Court
focuses on the relevant medical records after the amended
alleged disability onset date of October 15, 2010:
On
November 12, 2010, Ms. Larsen had x-rays taken of her ankles.
The right ankle x-ray showed “very mild degenerative
changes in the anterior tibiotalar joint” and
“minimal degenerative changes” at the inferior
aspect of the medial gutter. The left ankle x-ray showed that
“[m]inimal degenerative changes may be present along
the medial corner of the talar dome.” However, there
was “no evidence of acute fracture or dislocation of
either ankle.”[42]
On
November 18, 2010, Ms. Larsen followed up with Mark
Swircenski, PAC, at Alaska Family Wellness Center. She
reported having insomnia for 10 years, but at the time of the
visit, she was able to get about six hours of sleep a night.
She also reported that her husband had died in October;
however, she denied any depression.[43]
On
December 3, 2010, Ms. Larsen visited PAC Swircenski at the
Alaska Family Wellness Center. She reported improved sleep
after stopping her 3:00 p.m. dose of caffeine. On physical
examination, Ms. Larsen was “in no acute
distress.”[44]
On
December 14, 2010, Ms. Larsen saw PAC Swircenski. She
reported insomnia with “emotional stressors with the
recent death of her husband and some [issues resolving] the
stepchildren and probate of the will.” She was in no
acute distress upon physical examination.[45]
On
January 13, 2011, Ms. Larsen saw PAC Swircenski for follow up
regarding insomnia. She reported that she was under increased
stress with the recent death of her husband. She was
prescribed Ambien.[46]
On
February 17, 2011, Ms. Larsen initiated care with Ginger
Scoggin, DNP, at Manuka Health Clinic in Anchorage, Alaska.
She reported a history of anxiety and significant trauma with
the death of her husband and taking care of her mother. She
also reported feeling anemic, cold, and “run
down.” Ms. Larsen reported that she had been on Ativan
“for a few years and then went off it for 2 years,
” but had started it again in October 2010 and
“it seem[ed] to be helping.” On physical
examination, Ms. Larsen was “[n]ormotensive, in no
acute distress.” DNP Scoggin diagnosed Ms. Larsen with
transient disorder of initiating or maintaining sleep;
generalized anxiety disorder; iron deficiency anemia,
unspecified; and unspecified vitamin D deficiency. DNP
Scoggin refilled Ms. Larsen's Ativan prescription and
prescribed Lunesta at the visit.[47]
On
September 6, 2012, Ms. Larsen had x-rays of both knees. The
right knee x-ray showed “[a] small loose intraarticular
body” that was “questioned in the intercondylar
notch.” The left knee x-ray showed “[m]inimal
osteoarthritis in the medial knee compartment, ” but
“[n]o acute osseous findings.”[48]
On
September 17, 2012, Ms. Larsen established care with Maggie
Laurenberg, PAC, at Willow Medical & Wellness. She
reported insomnia, menopausal symptoms, and right knee pain
while running on the treadmill. She also reported that
“she is seeking a new relationship and will be
traveling to see him in Minnesota.” On physical
examination, PAC Laurenberg observed that Ms. Larsen was a
“[h]ealthy appearing female in no acute
distress.”[49]
On
October 24, 2012, Ms. Larsen presented to the emergency room
after being referred by the Providence crisis line for grief
and depression. She reported grief and pain associated with
her husband's death and the sale of the home she had
lived in with her husband. She reported chronic insomnia that
had worsened in the past week. Ms. Larsen was assessed as
being at low imminent risk for suicide and low imminent risk
for violence. She was assessed with bereavement and
adjustment disorder, but it was determined she could be
safely discharged.[50]
On
October 31, 2012, Ms. Larsen saw Masao Yanagida, M.D., at
Willow Medical & Wellness. She reported that she had had
a “breakdown” recently and went to the emergency
department at Providence. Ms. Larsen reported that she had
continuing problems with insomnia. Dr. Yanagida diagnosed Ms.
Larsen with depression and anxiety. She also noted Ms. Larsen
had glaucoma. She assigned Ms. Larsen a GAF of 50. Dr.
Yanagida's overall prognosis was “good” and
she noted that Ms. Larsen's level of insight, baseline
functioning, and support systems were good and her motivation
to engage in treatment was excellent.[51]
On
November 12, 2012, Ms. Larsen followed up with Michael
Fischer, M.D., at Alaska Family Wellness Center. She reported
sensitivity to the cold, low weight, chronic stress, and had
questions about treatment for degenerative joint disease. On
physical examination she was “in no acute
distress.” She was assessed with fatigue and malaise,
anxiety disorder, and osteoarthritis.[52]
On
November 26, 2012, Ms. Larsen followed up with Dr. Fischer.
At the exam, Dr. Fischer noted she was alert and oriented,
friendly and cooperative, and had a “much more animated
appearance, ” but Ms. Larsen reported using melatonin
“all the time and feels groggy along with
distressed.”[53]
On
November 29, 2012, Ms. Larsen followed up with Dr. Yanagida.
She reported stress, insomnia, and knee pain. Dr. Yanagida
assessed her anxiety and depression as stable.[54]
On
December 19, 2012, Ms. Larsen had an x-ray of her right foot.
The x-ray showed “moderate nonuniform narrowing with
osteophyte formation and subchondral cyst formation at the
metatarsal phalangeal joint of the great toe” with no
fracture and a small plantar calcaneal spur.[55]
On
January 2, 2013, Ms. Larsen saw Dr. Yanagida. She reported
worsening insomnia. Ms. Larsen also reported that her sleep
was better before she developed glaucoma in 2000. Dr.
Yanagida observed that Ms. Larsen's concentration,
energy, and appetite were normal; her behavior was within
normal limits with good eye contact; her thought process was
linear and logical; she was alert and oriented; and her
cognition was grossly intact.[56]
On
January 4, 2013, Ms. Larsen followed up with Dr. Fischer. She
reported doing yoga regularly and exercising every day. Dr.
Fischer observed that Ms. Larsen was “visibly more
animated, active and smiling.” He also noted that her
knee x-rays were “negative for degenerative joint
disease, has loose body in the intercondylar space of the
right knee.”[57]
On
January 14, 2013, Ms. Larsen initiated physical therapy at
Advanced Physical Therapy. She reported pain and stiffness in
her left and right lower extremities. Zuzana Rogers, PT,
COMT, assessed Ms. Larsen with impairments “with
endurance, joint mobility, poor body mechanics and range of
motion.” PT Rogers opined that “[t]hese
conditions warrant therapeutic intervention for the
application of selective exercise and specific mobilization
to restore neuromuscular control and functional
mobility.” PT Rogers recommended physical therapy twice
a week for eight weeks.[58]
On
February 26, 2013, Ms. Larsen saw Dr. Yanagida. She reported
worsening trembling in her legs, but improved sleep. Dr.
Yanagida assessed Ms. Larsen with depression, anxiety, and
PTSD.[59]
On
March 11, 2013, Ms. Larsen saw Clara Scott, PAC. She reported
insomnia problems; that she napped on occasion from 30
minutes to two hours in the afternoons; exercised one hour
and 20 minutes four times per week on the treadmill,
elliptical, and bike; had several social circles; and went
out with friends frequently. On physical examination, PAC
Scott observed that Ms. Larsen was alert and cooperative and
in no acute distress.[60] On the same date, Ms. Larsen visited
Dr. Yanagida. She reported increased anxiety and concern
about her insomnia, but she denied worsening depression. She
reported that her eye medications may be causing the
insomnia. Dr. Yanagida made no changes in Ms. Larsen's
medications.[61]
On
April 24, 2013, Ms. Larsen saw PAC Scott. She reported that
her glaucoma medication had been causing her insomnia for the
past 13 years and that she had stopped taking her glaucoma
medication drops and insomnia medications. She reported
walking and socializing daily at yoga or having lunch with
friends. She reported that she would be traveling to Houston
in May and that “everyone [was] telling her she [was]
depressed.” On physical examination, PAC Scott observed
that Ms. Larsen was not in acute distress. PAC Scott
recommended cognitive behavioral therapy instead of
medications for Ms. Larsen's insomnia.[62]
On
April 26, 2013, Ms. Larsen saw Dr. Yanagida. She reported
insomnia, but she denied depression and anxiety. Dr. Yanagida
“encouraged [Ms. Larsen] to live [with] insomnia”
and recommended diet and exercise.[63]
On
September 11, 2013, Ms. Larsen initiated care with Beth
Baker, M.D., at Providence Alaska Medical Center. She
reported having insomnia. She queried if she might be a
candidate for social security disability because of her
insomnia. Dr. Baker recommended adjustments in Ms.
Larsen's sleeping schedule. Dr. Baker “informed
[Ms. Larsen] I did not think that she [was] disabled from
insomnia and that I [did] not think she warranted Social
Security disability for this.”[64]
On
December 11, 2013, Ms. Larsen visited Dr. Fischer. She
reported that she was “feeling much stronger” and
had done “some extended travel to the lower 48.”
She reported stopping all her medications. On physical
examination, Dr. Fischer observed “positive focal
tenderness over dorsal wrist at lunate.” He also noted
Ms. Larsen was alert and oriented; friendly and
cooperative.[65] On the same date, Ms. Larsen had an
x-ray of her left hand. The x-ray showed
“[d]egenerative changes . . . at the radioscaphoid
joint and at the first carpometacarpal joint, ” but
that “[o]therwise, the remainder of the left hand
appears to be within normal limits.”[66]
On
January 3, 2014, Ms. Larsen saw Dr. Fischer for prolotherapy
for her left hand and wrist. Ms. Larsen reported insomnia.
Dr. Fischer diagnosed Ms. Larsen with degenerative joint
disease, insomnia, and menopause.[67]
On
February 6, 2014, Ms. Larsen followed up with Dr. Fischer.
She reported improvement in her joints, but still had
“some residual discomfort involving her left
thumb.” She reported her wrist was entirely pain-free
at the time. She did not report any sleep problems at that
visit. On physical examination, Dr. Fischer observed positive
tenderness in the CMC joint of the left thumb, but that the
“dorsal CMC joint and region along [the] posterior hand
previously injected all appear to be nontender to palpation
[with an] active range of motion.”[68]
On
February 10, 2014, Ms. Larsen followed up with PAC Scott. She
reported doing yoga two to three times per week and aerobic
exercise on the treadmill, elliptical, or walking outside
four to five times per week. She reported that she was
“just now getting back on track with the sleep.”
She reported starting a new romantic relationship. On
physical examination, PAC Scott observed that Ms. Larsen was
well nourished, well developed, alert and cooperative, well
groomed, and appeared in no acute distress.[69]
On
February 25, 2014, Ms. Larsen saw Dr. Fischer for
prolotherapy in her hand. She also reported improved sleep,
but “some anxiety in the
afternoon.”[70]
On July
7, 2014, Ms. Larsen saw Bethany Buchanan, DNP, at Avante
Medical Center. She reported “not sleeping well.”
She denied depression, bipolar disorder, and anxiety. DNP
Buchanan noted that Ms. Larsen “seemed a little out of
it, ” but that her physical exam was normal. DNP
Buchanan prescribed thyroid medication.[71]
On July
22, 2014, Ms. Larsen followed up with DNP Buchanan. She
reported that “overall she is better” and that
she had decided to go back to work, but she hoped “not
too soon.” She reported that her sleep had improved
“tremendously” and she felt “comfortable in
taking a job.” On physical examination, DNP Buchanan
observed that Ms. Larsen was “well overall” and
alert and oriented to person, place, and time. Ms. Larsen
denied feeling sad or worried.[72]
On
September 9, 2014, Ms. Larsen saw DNP Buchanan. She reported
that her sleep had improved, but that she still occasionally
had nights that she didn't sleep well. She also reported
walking five miles and “felt bad afterwards” as
she was tired, stiff, and sore. On examination, DNP Buchanan
observed that Ms. Larsen looked well and was alert and
oriented, but “sound[ed]
depressed.”[73]
On
February 5, 2015, Ms. Larsen initiated counseling with Doris
Bergeron, LCSW, seeking to address sleep issues. On
examination, LCSW Bergeron observed that Ms. Larsen was
casual and neat in appearance; had a cooperative attitude;
normal speech; a stable appetite and weight; was distracted
and did not have a good memory; had normal perception;
logical and coherent thought processes; and fair insight and
judgment.[74]
On
February 23, 2015, Ms. Larsen saw Christine Sagan, NP, at
Avante Medical Center. She reported that she had been having
night sweats and that she had started testosterone. Ms.
Larsen stated, “this changed things negatively.”
She reported sleeping 4-7 hours at night and that she was
able to sleep slightly better “when she eats a large
meal at night.” NP Sagan noted that Ms. Larsen
“has had years of malaise, stress, insomnia and
fatigue” and “[t]his has prevented her from
work.”[75]
On June
15, 2015, Ms. Larsen visited NP Sagan. She reported fatigue.
NP Sagan assessed Ms. Larsen with menopause, insomnia,
fatigue, constipation, irritable bowel syndrome, shoulder
pain, pain in lower limb, food allergy, low back pain, neck
pain, hypothyroidism, depressive disorder, and shoulder joint
pain. NP Sagan opined that Ms. Larsen was “stable,
” noting “[h]er fatigue is present but she has
made progress.”[76]
On June
26, 2015, Ms. Larsen saw DNP Buchanan for shoulder pain and
low back pain. She reported switching her activities and
getting better sleep. DNP Buchanan assessed Ms. Larsen with
osteoarthritis, degenerative joint disease of the hand,
fatigue, menopause, insomnia, and constipation.[77]
On
October 13, 2015, Ms. Larsen saw William Campbell, M.D., for
a psychiatric disability evaluation. She reported that in
2010 her fatigue and cognitive defects cause her work
performance to decline. She reported retiring from University
of Alaska in 2010 and that “part of the reason that she
retired was that she wanted to be able to visit with [her two
children in Texas] more often.” She reported some
dating, having long-term friends, taking belly dancing
lessons, going to yoga classes three times a week, and
walking a mile or two every day for exercise. Dr. Campbell
observed that Ms. Larsen was “[s]tylishly groomed and
dressed”; was on time and friendly; had normal speech,
thought content, memory, and fund of knowledge; was alert and
oriented; could calculate fairly; and had good spelling. Dr.
Campbell noted that Ms. Larsen did poorly with serial
7's. He also noted that her insight and judgment were
fair. He diagnosed Ms. Larsen with cognitive disorder, not
otherwise specified; dependent personality disorder;
glaucoma; myalgias and arthralgias; and a GAF score of 70.
Dr. Campbell noted that Ms. Larsen complained of cognitive
defects and “[o]n examination, she had to be coaxed to
give maximum effort.” He opined that Ms. Larsen would
be competent to manage her own benefits and that her
prognosis was good. Dr. Campbell noted that Ms. Larsen found
psychotherapy “to be quite helpful in examining her
dependency needs and in grieving her late
husband.”[78]
On
October 21, 2015, Ms. Larsen saw Ernest Meinhardt, M.D., at
Independence Park Medical Services, for a physical
examination. She reported that her insomnia onset in 2000,
but that “since establishing with her new Avante Clinic
her insomnia has pretty much resolved and is under
control” and she “feels rested.” She
reported that she had anxiety, but she denied needing
medications. Ms. Larsen also denied that anxiety interfered
with her activities of daily living. She reported
discontinuing ocular drops for glaucoma and that her eye
pressure remained stable. Ms. Larsen reported bilateral
shoulder pain, but that following up with a chiropractor and
having massage therapy “has pretty much alleviated her
symptoms” and that the pain did not “interfere
with her daily activities.” Ms. Larsen also reported
left wrist pain and had decreased range of motion, but
adequate grip strength. Dr. Meinhardt noted that Ms. Larsen
“apparently has chronic fatigue
syndrome.”[79] On the same date, Ms. Larsen had an
x-ray of her left wrist. The x-ray showed “[s]evere
degenerative change in radiocarpal compartment, joint space
narrowing, and intense sclerosis” and “[m]ild
degenerative change first carpal-metacarpal
articulation.”[80]
On
October 29, 2015, Myung Song, D.O., a state medical
consultant, reviewed Ms. Larsen's medical records. Based
on that review, Dr. Song opined that Ms. Larsen could perform
light duty work and was capable of returning to her prior job
as an admission counselor, with additional manipulation
limitations based on her left wrist
impairment.”[81] On the same date, state medical
consultant, Michael Dennis, Ph.D., opined that Ms.
Larsen's mental disorders were non-severe. Dr. Dennis
opined that Ms. Larsen had a mild restriction of her
activities of daily living; mild difficulties in maintaining
social functioning; and mild difficulties maintaining
concentration, persistence, or pace.[82]
The
medical records for 2016 consist only of treatment records
from LSCW Bergeron.
On
January 13, 2017, Allison Kelliher, M.D., at Vitae
Integrative Medical Center, wrote a letter indicating that
she had been Ms. Larsen's primary care provided since
September 2016. Dr. Kelliher noted that Ms. Larsen saw her
regularly for “[m]ajor depression, generalized anxiety,
chronic pain syndrome, fibromyalgia, chronic low back pain,
osteoarthritis, menopausal syndrome, impaired cognition,
memory impairment, and insomnia. Dr. Kelliher opined that Ms.
Larsen's “extreme fatigue, impaired concentration
and polyarthralgias limit her ability to work” and that
Ms. Larsen “currently finds it very challenging to meet
the demands of her daily life.” Dr. Kelliher also noted
that Ms. Larsen was “quite motivated however to get
well despite her limitations and participates in activities
such as meditation and yoga and therapy.”[83]
The
following medical records were submitted to the Appeals
Council after ALJ LaCara's May 2, 2017 decision:
On June
20, 2017, Ms. Larsen had MRIs of her thoracic and cervical
spine. The MRIs showed a small disc protrusion at ¶ 6-7
and T7-8 resulting in no stenosis and early disc degeneration
in the mid-cervical spine with “[u]ncovertebral
spurring contributing to neuroforaminal stenoses at a few
levels, most pronounced (moderate in severity) at ¶ 5- 6
on the left.”[84]
On
October 2, 2017, LCSW Bergeron wrote a letter summarizing Ms.
Larsen's treatment with her. LCSW Bergeron noted that Ms.
Larsen had been in psychotherapy since February 5, 2015, with
breaks from November 9, 2015 to March 2, 2016 and April 18,
2017 until September 12, 2017. She also noted that initially
Ms. Larsen reported sleep issues, difficulty with
concentration and memory, and feeling overwhelmed with daily
tasks. Only the first page of LCSW Bergeron's
summarization letter is included in the Court's
record.[85]
On
October 3, 2017, Dr. Kelliher wrote a letter on Ms.
Larsen's behalf. Dr. Kelliher noted that Ms. Larsen
originally “carried the diagnosis of fibromyalgia with
depression and PTSD.” She also stated that “after
conservative treatment, we initiated a work up for her
chronic neck and back pain by obtaining [an] MRI.” Dr.
Kelliher described Ms. Larsen's MRI results from June
2017, noting that “her cervical imaging is notable for
facet arthropathy, and DDD with moderate foraminal stenosis
resulting in cervical radiculopathy” and mid-thoracic
degenerative disc disease at ¶ 6-8 “which
generates a tremendous amount of pain for her despite efforts
in PT, massage therapy and maximal medication
management.” Dr. Kelliher indicated that “[Ms.
Larsen] finds these pains quite debilitating and they
certainly interrupt her quality of life and activities of
daily living” and that Ms. Larsen's “picture
[was] somewhat complicated by her history of depression, this
may also be exacerbated by her pain.”[86]
Hearing
Testimony on January 13, 2017
Ms.
Larsen attended a hearing before ALJ LaCara on January 13,
2017 with an attorney representative. She testified that she
worked as an enrollment advisor from 1997 to 2010 and before
that time, she had worked as an admission specialist. She
reported that she retired from UAA in approximately 2009. Ms.
Larsen also testified that she travelled once a year to meet
with family in Houston, Texas, but denied traveling to meet a
romantic interest out of state.[87] She testified that after
waking up each morning, she warmed up a microwave dinner and
then laid back down. She indicated that she spent her day
resting, going to a yoga class, doing housework, listening to
music, watching television, working on her iPad, and reading.
She testified that she could make her bed every day, do
laundry, spend time on the computer, and grocery shop, but
she had a housekeeper clean the house once a month. She
testified that she would wake up two to three times during
the night. Ms. Larsen reported that she had a driver's
license and could drive. She also reported that she could
manage buttons and zippers; walk with friends at a slow pace
one time per week for two to three miles; and stand in her
kitchen for an hour to an hour and a half. She testified that
she would have difficulty sitting at a clerical job. She also
testified that she could add, subtract, and make
change.[88]
Margaret
Moore, Ph.D., testified as the psychological expert at the
hearing, based on her review of the records. She testified
that Ms. Larsen did not meet or equal the new mental health
listings.[89] She opined that Ms. Larsen's mental
impairments were non-severe or “mild.” She
stated, “I would note that just from my point of view,
a clinical point of view, this woman seems to be quite
actively engaged in the world, functioning really quite
well.” Dr. Moore noted that although there were
“periods of time in this broad time span where she did
have depression . . . much of that . . . was situationally
driven.” Dr. Moore noted that Ms. Larsen was dating
frequently, going out with friends, traveling, and was
capable of handling “very complex things, such as the
sale of the home and moving.” Dr. Moore also discussed
Ms. Larsen's chronic insomnia, stating, “some time
in 2013, her doctors discovered that her medications that she
was taking for glaucoma, a physical condition . . . were
causing her insomnia. And once you removed and stopped taking
those meds, her sleep issues resolve.” Dr. Moore
concluded that Ms. Larsen's sleep problem was not
attributable to depression or anxiety, but a medication side
effect.[90]
William
Weiss testified as the vocational expert. Based on the
ALJ's hypothetical, he opined that Ms. Larsen could
perform her past work as a curriculum advisor.[91] He also
testified that in the alternative, there were jobs that
existed in the national or regional economy that Ms. Larsen
could perform, including an appointment clerk and civil
service clerk.[92]
Ms.
Larsen's Function Report
Ms.
Larsen completed a function report on June 25, 2015. She
reported that she experienced a lack of concentration and
memory; had problems with sleep; experienced increased
malaise; and had depression or a “mood problem.”
She reported living alone in a townhouse; had no problems
with self-care; and spent her days on “[l]ots of bed
rest.” She also indicated that it took her one hour to
prepare meals and that she would “bake meat” and
have “salad from restaurants.” She reported that
she could clean the house; do laundry; went outside daily;
could shop in stores, by phone, and by computer; went to
restaurants; read and watched television. Ms. Larsen reported
being able to walk one to two miles before needing to stop
and rest. She reported that she had changes in her
concentration and memory and needed to be reminded to go
places “about twice a week” and needed someone to
accompany her “sometime[s].” She reported she had
“no energy” and her conditions affected lifting,
squatting, bending, standing, reaching, walking, stair
climbing, memory, completing tasks, concentration, and
understanding.[93]
IV.
DISCUSSION
Ms.
Larsen is represented by counsel. In her opening brief, Ms.
Larsen asserts the following errors: (1) the Appeals Council
erroneously failed to consider the additional evidence Ms.
Larsen put before the Council; (2) the ALJ failed to fully
and fairly develop the record regarding Ms. Larsen's
chronic fatigue syndrome; (3) the RFC is not supported by
substantial evidence because it failed to take Ms.
Larsen's chronic fatigue syndrome into account; and (4)
the ALJ improperly discounted the opinion of examining expert
Dr. Campbell and gave undue weight to Dr. Moore's
testimony.[94] The Commissioner disputes Ms.
Larsen's assertions.[95] The Court addresses each of Ms.
Larsen's assertions in turn:
A.
Additional Evidence Submitted to Appeals Council
In the
Appeals Council's notice denying review, the Council
identified the additional medical evidence it had received
from Ms. Larsen: the treating source statement from Allison
Kelliher, M.D., dated October 3, 2017; Imaging
Associates' record dated June 20, 2017; and the treating
source statement from Doris Bergeron Counseling Services LLC
dated October 2, 2017. But the Appeals Council determined
this additional evidence did “not relate to the period
at issue” and therefore did “not affect the
decision about whether [Ms. Larsen] was disabled beginning on
or before April 30, 2016, the approximate date of the
ALJ's decision.”[96]
Ms.
Larsen argues that the Appeals Council “refused
additional evidence that Ms. Larsen submitted to the Appeals
Council even though she was required to do so by
regulations.” She asserts “this type of
additional evidence submitted to the Appeals Council after an
ALJ decision must be considered in the merits decision”
and “[i]t cannot be a response to say that the
additional evidence that Ms. Larsen submitted to the Appeals
Council does not relate to the period at issue. That cannot
be a basis because the regulatory change imposed on Ms.
Larsen an ‘ongoing' obligation to ‘submit all
evidence that relates to the disability
claim.'”[97]
When
the Appeals Council declines review, its decision is not
subject to judicial review and “the ALJ's decision
becomes the final decision of the
Commissioner.”[98] However, “when the Appeals Council
considers new evidence in deciding whether to review a
decision of the ALJ, that evidence becomes part of the
administrative record, which the district court must consider
when reviewing the Commissioner's final decision for
substantial evidence.”[99] The district court considers
the additional evidence, “which was rejected by the
Appeals Council, to determine whether, in light of the record
as a whole, the ALJ's decision was supported by
substantial evidence and was free of legal
error.”[100]
In this
case, the Appeals Council rejected the additional medical
evidence submitted by Ms. Larsen in its review of the
ALJ's decision.[101] The Appeals Council determined that
the evidence did not relate to the period at issue, but the
submitted medical evidence is part of the administrative
record and will be considered by this Court.[102] The
medical records submitted to and rejected by the Appeals
Council included MRI evidence of a back impairment dated
after the date of the ALJ's decision.[103] There is
some evidence of back problems in the treatment records in
late 2014 to early 2015, but those appear to have resolved.
At a physical examination with Dr. Meinhardt on October 21,
2015, Ms. Larsen reported a history of hip and back
discomfort that was then resolved.[104] Additionally, the
evidence submitted to the Appeals Council included a letter
from LCSW Bergeron, but only the first page of the letter is
in the Court's record.[105] Finally, the additional
evidence includes a letter from Dr. Kelliher dated October 3,
2017 describing the MRI evidence of Ms. Larsen's back and
neck impairments from June 20, 2017, with the notation that
“[Ms. Larsen] finds these pains quite debilitating and
they certainly interrupt her quality of life and activities
of daily living.” But, as noted above, the letter
refers to MRIs taken after the ALJ's
decision.[106]
The
2017 MRIs and October 2017 letter from Dr. Kelliher do not
relate to the period at issue. And the one page of LCSW
Bergeron's letter is consistent with her extensive
treatment notes in the record. Accordingly, the additional
post-hearing evidence does not alter the substantial evidence
in the record for the period at issue that underlies the
ALJ's decision.
B.
Development of the Record
Ms.
Larsen asserts that the ALJ failed to fully and fairly
develop the record regarding Ms. Larsen's chronic fatigue
syndrome. Specifically, she asserts that the agency failed to
follow up with Dr. Meinhardt regarding Ms. Larsen's
functional limitations.[107] The Commissioner maintains
that the duty to develop the record was
satisfied.[108]
1.
Legal Standard
The ALJ
has an “independent duty to fully and fairly develop
the record and to assure that the claimant's interests
are considered.”[109] An “ALJ's duty to develop
the record further is triggered only when there is ambiguous
evidence or when the record is inadequate to allow for proper
evaluation of the evidence.” Additionally, the
“ALJ must be especially diligent when the claimant is
unrepresented or has only a lay
representative.”[110] If the evidence is insufficient to
make a decision regarding disability or the ALJ cannot reach
a conclusion based on the evidence before her, she may
...