Webb v. Berryhill
| Decision Date | 05 March 2018 |
| Docket Number | 5:16–CV–05085–VLD |
| Parties | Amber Lei WEBB, Plaintiff, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security; Defendant. |
| Court | U.S. District Court — District of South Dakota |
Catherine G. Ratliff, Ratliff Law Office, Sioux Falls, SD, for Plaintiff.
Cheryl Schrempp Dupris, U.S. Attorney's Office, Sioux Falls, SD, for Defendant.
TABLE OF CONTENTS
3. Consultative Exam as to Mental Diagnoses and Mental RFC...884
4. Consultative Exam as to Stage of Hidradenitis Suppurativa...887
Plaintiff, Amber Lei Webb, seeks judicial review of the Commissioner's final decision denying her application for disability insurance benefits ("DIB") under Title II and denial of attendant Medicare benefits under the Social Security Act. Ms. Webb has filed a complaint and now moves to reverse the decision of the Commissioner. Docket No. 17.
This appeal of the Commissioner's final decision denying benefits is properly before the district court pursuant to 42 U.S.C. § 405(g). This matter is before this magistrate judge pursuant to the consent of all the parties under 28 U.S.C. § 636(c) and the October 16, 2014, standing order of the Honorable Jeffrey L. Viken, Chief United States District Judge. Based on the facts, law and analysis discussed in further detail below, the decision of the Commissioner is reversed and remanded for further administrative proceedings.
On November 14, 2012, Amber Webb applied for SSD2 benefits, stating that she had become unable to work due to disabling condition on August 15, 2012. AR 277. Her application summary stated, "I do not want to file for SSI." Id. She stated that she was married to Michael Webb in 2001 in South Dakota, and listed three children under the age of 18. AR 277–78.
On September 12, 2013, SSA in Colorado issued a notice of disapproved claim and notified Webb of her right to appeal to hearing.3 AR 171–73. On October 1, 2013, Webb appointed Attorney John Heard of San Antonio, TX, to represent her. AR 169.
On October 2, 2013, Webb, by counsel, requested reconsideration. AR 174. On February 28, 2014, SSA issued a notice of denial after reconsideration. AR 175. On April 2, 2014, Webb requested a hearing. AR 181.
On October 3, 2014, SSA's Office of Disability Adjudication & Review (ODAR) in Rapid City sent Webb and her lawyer a notice of hearing, scheduled for December 4, 2014, in Rapid City, before James W. Olson, administrative law judge. AR 188–92. On October 23, 2014, Webb's attorney, John R. Heard, objected to a video teleconference hearing and requested an in-person hearing. AR 361–62.
On November 14, 2014, Attorney Heard submitted a pre-hearing brief, listing Webb's impairments as Chiari malformation
, headaches, Hidradenitis suppurativa, status post left leg surgery, obstructive sleep apnea, peroneal mononeuropathy, bilateral lateral epicondylitis, insomnia, depression and anxiety. AR 363. Attorney Heard discussed Webb's left ankle impairment in some detail. AR 364. He argued that Webb should be limited to a "less than sedentary RFC." AR 364.
On March 25, 2015, ALJ Debra J. Denney, ODAR, sent a notice of hearing scheduled for July 20, 2015, in Rapid City. AR 238.
On July 20, 2015, Attorney Heard submitted a pre-hearing brief with a proposed sequential evaluation to ALJ Denney. AR 369–71. He argued that Ms. Webb was unable to perform SGA on a "regular and continuing basis." AR 371. On the same day, Webb signed a form appointing Jared Cook, attorney, to represent her. AR 275. The July 20, 2015, hearing was held in Rapid City before ALJ Debra J. Denney, with the claimant present and Attorney Cook. AR 53. The psychological and vocational experts testified by telephone. AR 53.
On November 10, 2015, the claimant requested review of the ALJ's August 17, 2015 denial of benefits. AR 6. On July 13, 2016, the Appeals Council denied review. AR 1.
Webb's earnings since 1990 are displayed at AR 281–86. According to the SSA report, her earnings from 1992–2012 ranged from $3,749 to $14,708. AR 286, 289. Her detailed earnings record shows employers and how much each employer paid each year since 1997. AR 283–85. It reports six employers from 1997–2012. Id. The employer for whom she worked the longest was Schrader Oil, 1999–2011. AR 284–85.
In 2011 she earned $14,708, which was her highest earning year. In 2012 she earned $8,231. AR 289. After this she had no reported earnings. Id.
Webb described her work and periods of employment in her disability report: June–August 2001, cashier in a convenience store; August 2001–August 2002, account associate in a teleservices business; October 2002–March 2011, sales associate in a convenience store; and May 2011–August 2012, account specialist for teleservices/banking business. AR 296. She provided additional information regarding work duties; number of hours spent on her feet, in particular postures, and using her arms and hands; and weight lifted in her "work history report" at AR 315–20.
Webb testified that her last employment was in July or August 2012, when she worked for Center Partners, Inc., processing credit card applications for Capital One. AR 61. She said this involved using a computer and headset, speaking with people to obtain information, and inputting data. AR 61–62. Webb testified she was not sure if she had been fired: AR 62.
The ALJ questioned Webb about statements in her application that she could not maintain her work schedule because she had constant headaches, some arm pain, massive anxiety, would sometimes break down hysterically when she drove up to the door, and was on probation for absences. AR 62. Webb affirmed that she had made those statements. AR 62.
The ALJ questioned Webb about previous jobs, and Webb stated that before Center Partners she worked for Schrader Oil, a gas station, and ran the register, stocked, cleaned, ordered, "everything." AR 62–63. Webb stated that job ended when a new manager was hired. She said the new manager did not like her absences although the former manager "would work with me." AR 63.
On February 28, 2013, SSA field office wrote that Webb felt AR 290.
In her disability report on or about November 14, 20124 , Webb reported a Ft. Collins address. AR 293. She alleged conditions: Chiari 1 malformation, social anxiety, depression, and asthma
. AR 294. She said she was five feet, ten inches tall and weighed 300. AR 294.
She stated that she stopped working on August 20, 2012 because:
I was unable to maintain my schedule due to constant headaches and arm pains. I was unable to handle the work environment due to massive anxiety. I would break down hysterically at driving up to the door. I was already on probation due to absences for headaches and pain, and had been "talked to" about my arm pains and smell" (uncontrollable).
AR 295.
She stated that she believed her conditions became severe enough to keep her from working on June 15, 2011. AR 295. She had completed twelfth grade in 1990 and had not completed any specialized job training or vocational school. AR 295.
She reported her medications: Percocet5 prescribed by Orthopedic Center of the Rockies for pain control; Sertraline6 (Zoloft
) prescribed by Family Medicine Center for general anxiety, social anxiety, and depression; and vitamin D supplements for vitamin D deficiency. AR 297. She reported the doctors who had seen and/or treated her. According to her report: In October and November 2003, Ms. Webb saw Dr. Michael Curiel, Ft. Collins Neurology, 2121 E. Harmony Rd., Ft. Collins, CO 80525, for Arnold Chiari Malformation, Type 1.7 Dr. Curiel referred her to Dr. Coester. AR 298–99, 301.
In October and November 2003 she saw Dr. Hans Coester at CHMG Brain and Spine Surgery, 1107 S. Lemay Ave, Ste 240, Ft. Collins, CO, for Arnold Chiari type 1 malformation with headaches, numbness of legs, equilibrium [problem], nystagmus
, and weakness of hands. Dr. Coester had evaluated her by MRI imaging and discussed surgical options. AR 298, 303.
In 2007 she was seen at Surgical Specialists of the Rockies, 2315 E. Harmony Rd, Ste 130, Ft. Collins, for hidradenitis suppurativa8
surgery. AR 300, 304.
From May 2011 to August 2012, Ms. Webb saw Dr. Jackson at Orthopedic Center of the Rockies in Ft....
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