Reeves v. Commissioner, Social Security Administration

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge

         This civil action arises under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social Security Administration's (“Commissioner” or “Defendant”) final decision denying Plaintiff Debra Reeves's (“Plaintiff” or “Ms. Reeves”) applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Parties' consent [#15], this civil action was referred to this Magistrate Judge for a decision on the merits. See [#20]; 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. Upon review of the Parties' briefing, the entire case file, the Administrative Record, and the applicable case law, this court respectfully AFFIRMS the Commissioner's decision.

         BACKGROUND

         I. Medical History

         Ms. Reeves, born December 15, 1956, alleges she became disabled on December 31, 2013, at 57 years-of-age, due to paralysis on her “right side” and complications from two strokes. See [#13-3 at 72, ^[1] 85, 102, 113; #13-5 at 216, 220; #13-6 at 238, 245, 266, 290]. In 2009, Plaintiff suffered her first of two strokes, with the second being in 2011; Plaintiff attributes her dizziness and/or vertigo to her second stroke.^[2] See [#13-7 at 319, 322, 341, 348; #13-9 at 431].

         In 2012 and 2014 Ms. Reeves's sought treatment for her various physical ailments from Rodney Harrison, M.D. Progress notes dated October 26, 2012 indicate that Plaintiff “is regularly dizzy when she attempts to do anything.” [#13-7 at 319, 322]. Ms. Reeves did not receive treatment for her dizziness at the time, and denied any blurred vision, vertigo, muscle weakness, numbness, and lightheadedness, among other symptoms. [Id. at 319-21, 323-24]. Dr. Harrison's progress notes from 2014 similarly assess dizziness and note that Ms. Reeves complains of dizziness upon even minimal exertion, though Ms. Reeves received no treatment for this ailment. See, e.g., [id. at 350, 353-54].

         Thomas J. Motycka, M.D. performed a comprehensive neurological examination on June 30, 2015. See [#13-7 at 357]. Dr. Motycka noted that Ms. Reeves “claims she could only walk 10 feet and then she gets dizzy and would have to lean against something to walk, but this was not in evidence as she exited the facility today.” See [id. at 358]. Upon physical examination, Dr. Motycka noted that Ms. Reeves was “well-developed, well-nourished . . . in no apparent distress”; that Ms. Reeves “move[d] easily through all positions needed for examination, symmetrically, and without distress or pain-facies developing”; that Ms. Reeve showed no signs of “disorganization of any motor function of the extremities”; that Ms. Reeves passed the mini-mental status exam with “flying colors”; and that Ms. Reeves's “personal appearance, thought content, organization, mood/affect, behavior, judgment, and capability to manage funds [were] all intact.” [Id. at 359-61]. Dr. Motycka assessed that Plaintiff had “normal function.” [Id. at 361].

         In 2016, Plaintiff presented to Aurora Denver Cardiology. Progress notes list lightheadedness as one of Plaintiff's many ailments, and reveal that Plaintiff reported her dizziness was worse with rising but better with spread out medication doses and that her vertigo is likely related to her stroke. See [#13-7 at 373, 376-78, 380]. August 15, 2016 progress notes report lightheadedness as one of Plaintiff's chief complaints and indicate a plan for physical therapy as treatment for her vertigo. See [id. at 367, 370]. Physical examinations revealed that Ms. Reeves was alert and oriented, and none mentioned any objective findings associated with her dizziness.

         Medical records from Green Valley Ranch Medical Clinic reveal that Ms. Reeves complained of becoming “very dizzy both with standing, walking, or even at time when just sitting.” See [#13-8 at 387-88, 390, 393-94, 396, 399, 403]. On one occasion, progress notes indicated that Ms. Reeves's dizziness responded positively to stopping trimamterne. See [id. at 394]. On May 5, 2016, Plaintiff complained of “chronic dizziness that started this [morning] when she woke up, ” which was worse upon standing but alleviated by sitting and time and which caused nausea. See [id. at 401]. Plaintiff's medical provider ruled out cerebellar stroke and heart palpitations, but informed Plaintiff that “many conditions can cause dizziness” and directed her to increase her fluids, avoid caffeine, and monitor how quickly she went from sitting to standing. See [id.].

         Ms. Reeves began physical therapy for her dizziness on November 30, 2016. See [#13-9 at 431]. The Initial Examination revealed that Ms. Reeves complained of dizziness following her second stroke in 2011, that changing positions from sitting to standing, quick transfers out of bed, and quick movements of her head upwards exacerbated her dizziness, and that she fell walking up the stairs because of her dizziness; the Initial Examination also revealed a positive Romberg Test. See [id. at 431, 433]. On December 7, 2016, Ms. Reeves reported that her dizziness remained unchanged. See [id. at 436]. On December 10, 2016, Ms. Reeves again stated that she “feels about the same, ” but treatment notes report Plaintiff was doing “well with exercises, has minimal increase in [symptoms], ” that rest and corrected technique relieved her symptoms, and that Ms. Reeves tolerated added exercises with “mild dizziness symptoms.” [Id. at 438]. Treatment notes dated December 14 and16, 2016 reveal that Ms. Reeves reported no change in her dizziness, and that Plaintiff experienced increased dizziness with exercises, requiring frequent breaks. [Id. at 440, 442]. Treatment notes from December 21, 2016, however, indicated that Ms. Reeves did not need to take as many breaks during exercises as needed previously. See [id. at 444]. Two days later, Ms. Reeves reported that she felt “good today and doesn't feel as dizzy'; however, she was “unable to finish her exercises” because of high blood pressure and not feeling well. See [id. at 446]. On December 28, 2016, Ms. Reeves presented to physical therapy “feeling a little dizzy, ” but she completed “all exercises without many rest breaks.” [Id. at 448].

         Ms. Reeves continued physical therapy into 2017. Treatment notes from January 3, 2017 note that she reported feeling good and not dizzy on the bus ride over when keeping her head up, but Ms. Reeves's physical examination results remained largely unchanged since November 30, 2016, including a positive Romberg test, and her dizziness symptoms continued with “minimal change since starting therapy.” [#13-9 at 450-55, 457, 459]. The next day, Ms. Reeves reported that “she feels pretty good . . . [and] not feeling as dizzy as usual”; however, she required “more rest break [sic] during exercises due to feeling dizzy and hot.” [Id. at 461]. On January 6, 2017, Ms. Reeves stated her dizziness was “constant in nature” but that her balance had “improved at home”; the treatment notes also indicated that Ms. Reeves tolerated a progression of exercises. See [id. at 463]. Treatment notes dated January 11, 2017 reveal that Ms. Reeves reported overall improvement with her balance and strength and that she could do more at home without feeling as dizzy despite unchanged physical examination results; and though her progress was slow, the treatment notes indicate that Ms. Reeves had “less difficulty with walking due to improved balance” and that she was halfway to completing several of her short-term and long-term treatment goals. See [id. at 465-67, 469].

         Following an approximately 30-day absence from physical therapy, Plaintiff returned for treatment on February 24, 2017; the treatment notes report that Plaintiff continued to feel dizzy and off-balance and that Plaintiff had not made any progress since her last visit. See [#13-9 at 471-74]. March 1, 2017 treatment notes indicate that Plaintiff reported continued dizzy spells throughout her day and difficulty with the Romberg test despite no adverse reactions to the exercises. See [id. at 476]. Two days later, Ms. Reeves stated that her dizziness persisted but was decreased from her last session, and her treatment notes reveal that she improved with the Romberg test (though requiring close monitoring) and finished the session with no adverse effects. See [id. at 478]. Treatment notes dated March 8 and 17, 2017, respectively, indicate that Ms. Reeves reported gaining strength and overall improvement despite lingering dizziness spells, and that Ms. Reeves completed the sessions with no adverse effects. See [id. at 480-84]. On March 24, 2017, Ms. Reeves reported feeling “a little dizzy” but attributed that to therapy being at an earlier time than usual, as well as that she feels like she “had improvement in her symptoms since starting therapy”; the treatment notes also revealed that Ms. Reeves was “making progress with improved balance and reduction in dizziness symptoms.” [Id. at 486].

         Ms. Reeves returned to physical therapy on April 5, 2017, and reported “feeling off today” despite “feeling decent on average since [her] last session”; her physical examination results remained unchanged and she had mild instability throughout the session. See [id. at 488-90, 492]. Plaintiff's last physical therapy session occurred on April 10, 2017; Ms. Reeves stated that “she is still dizzy and having balance issues, ” and her treatment notes indicate that she had increased loss of balance and dizziness with “Romberg EC head shakes and nods, ” that she “demonstrates improving balance . . . but is still far from safe in her balance, gait and functional mobility, ” and that she “may never obtain full safety with scenarios which challenge her balance, particularly uneven ground and/or dark hallways/rooms.” [Id. at 494]. Ms. Reeves was discharged from physical therapy on May 10, 2017, having only reached 50% completion of most of her short-term and long-term goals. See [id. at 494-95].

         II. Procedural History

         On January 7, 2015, Plaintiff protectively filed applications for DIB and SSI. [#13-3 at 72, 85, 98, 101]. The Social Security Administration denied Plaintiff's application administratively on July 9, 2015, see [id. at 98-101], and again on reconsideration, see [id. at 124-27; #13-4 at 137-44]. Ms. Reeves requested a hearing before an Administrative Law Judge (“ALJ”), see [#13-4 at 136], which ALJ Terrence Hugar (“the ALJ”) held on May 31, 2017, see [#13-2 at 14, 32]. The ALJ received testimony from the Plaintiff and Vocational Expert William Tisdale (the “VE”) at the hearing. See [id. at 32].

         Plaintiff testified that she can no longer work because she is “dizzy all day long” and cannot walk that well-symptoms she has dealt with since her second stroke in 2011. See [#13-2 at 36, 38, 42]. Ms. Reeves explained that her symptoms cause her to fall; that looking upwards exacerbates her dizziness; that she has to “lean up against the wall” when walking down stairs; and that some of her medications also cause dizziness. See [id. at 39, 42-43]. Plaintiff continued that her doctors informed her that these conditions “won't get any better.” See [id. at 36-37]. Ms. Reeves testified that she would work if she could and that she lives in the basement of her friend's house, where she stays almost all day, except to go to doctors' appointments, because of her ailments. See [id. at 39-42]. Ms. Reeves concluded her testimony by stating that she stopped working in 2010 when her employer went out of business; she had worked as a cashier and manager at a gas station and then again as a cashier. See [id. at 42, 45].

         The VE then testified at the hearing. The VE first summarized Plaintiff's past relevant work to include a cashier, specific vocational preparation (“SVP”)^[3] level 2, light exertion job; a retail manager, SVP level 7, light exertion job; and a driver, SVP level 3, medium exertion job. See [#13-2 at 47]. The VE then considered the work an individual could perform when limited to medium exertional jobs, with non-exertional limitations of no exposure to unprotected heights and moving mechanical parts, no concentrated exposure to extreme heat, cold, and humidity, and no far acuity. See [id.]. The VE testified that this individual could perform Ms. Reeves's past relevant work as cashier and retail manager, see [id.], and that such an individual could perform these two jobs if limited to only light exertional work, see [id. at 48]. The VE continued that such an individual could also perform Ms. Reeves's past relevant work as a cashier if limited to light or medium exertional work and simple, routine, or repetitive tasks. See [id. at 48-49]. The VE continued that employees “could not be off task more than about 10 to 15 percent of the workday or work week in order to sustain employment.” [Id. at 49].

         Upon follow-up from Plaintiff's counsel, the VE testified that an individual who required an afternoon nap of about an hour or more would be incompatible with competitive employment. See [#13-2 at 50-51]. The VE stated that the same would be true of an individual that regularly fell on the job and required additional medical assistance or needed to cease working for the day. [Id. at 51]. Further, the VE testified that an individual who could only occasionally finger and reach could not perform Ms. Reeves's past relevant work as a cashier. See [id.]. The VE concluded that his testimony ...