Hasbrouck v. Kijakazi

1

ANNA HASBROUCK, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 4:23CV3066

United States District Court, D. Nebraska

January 18, 2024

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on motions for judicial review of a final decision of the Acting Commissioner of Social Security (“Commissioner”). The plaintiff, Anna Hasbrouck (“Hasbrouck”), appeals a final determination of the Commissioner denying her social security disability benefits. Filing No. 13. The Commissioner seeks an order affirming the decision. Filing No. 19. This Court has jurisdiction under 42 U.S.C § 405(g) and § 1383(c)(3).

I. BACKGROUND

A. Procedural History

On July 15, 2019, Hasbrouck applied for disability benefits under Title II of the Social Security Act alleging disability beginning April 11, 2016. Filing No. 1, Filing No. 72 at 11. Her application was denied initially and on reconsideration. Id. Hasbrouck requested, and was granted, a hearing before an administrative law judge (“ALJ”) on April 28, 2022. Filing No. 7-2 at 11. At the hearing, Hasbrouck amended her alleged onset date of disability to October 5, 2018. Id. at 41. The ALJ denied benefits on May 16, 2022. Id. at 11-28. On February 23, 2023, the Appeals Council denied further review, and the ALJ's decision stands as the final decision of the Commissioner. Id. at 2.

Hasbrouck challenges the ALJ's finding arguing that, in reaching his decision, the ALJ (1) failed to properly evaluate the medical opinions of treating provider Ann Scott, (2) failed to consider how Hasbrouck's treatment schedule would impact her ability to work, and (3) did not give proper credit to Hasbrouck's subjective reports of her physical and mental limitations. Filing No. 14.

B. Hearing Testimony

At the hearing on April 28, 2022, Hasbrouck testified that up until early 2022, she lived with her husband and two stepchildren.^[1] Filing No. 7-2 at 45. Her husband suffered from various medical conditions which required Hasbrouck to provide daily care for him, including bathing, dressing, cooking meals, and transporting him to medical appointments. Id. at 48-49. She cared for her stepchildren by helping schedule appointments and filling out various benefits applications. Id. at 52.

Hasbrouck testified that she was last employed as a manager at a convenience store in April 2016. In that position, Hasbrouck was responsible for waiting on customers, ordering, and stocking inventory, and managing other employees. Filing No. 7-2 at 50. When she was let go from that position, management indicated to her it was because she did not get along with fellow employees and was difficult to work with. Id. at 51. Hasbrouck also testified to previously working at a grocery store and daycare.Id. Since October 5, 2018, the only work for which Hasbrouck has received compensation is babysitting. Id. at 46. While the conditions vary, she testified that she generally babysits 25-30 hours a week. Id. at 47. Hasbrouck testified that she only charges a few dollars per hour per child. Id. at 13; 46-47.

Hasbrouck states that her primary physical impairment is pain due to a torn meniscus in her left knee and degenerative disc disease in her back. Filing No. 7-2 at 52-53. She testified that the pain makes it hard for her to stand for long periods of time, she must change positions often, and lie down to achieve the most comfort. Id. at 53, 62-63. She experiences numbness in her legs and weakness in her knee. Id. Hasbrouck estimated that she can only stand or walk for 15-20 minutes before she needs to change positions. Id. at 62-66. Hasbrouck stated she takes medication and has received steroid injections for her pain but is ineligible for back or knee surgery at this time. Id. at 53-54. In addition to the above-conditions, Hasbrouck testified that she suffers from vertigo, sleep apnea, and carpal tunnel. Id. at 55-57.

In addition to her physical complaints, Hasbrouck testified that her mental health also prohibits her from working. She testified that she suffers from depression, anxiety, and post-traumatic stress disorder (“PTSD”). Filing No. 7-2 at 56, 58, and 60. Hasbrouck stated that her mental health conditions impact her concentration and make it difficult to work with others and take direction. Id. at 60. She testified takes medication for her mental health conditions which help her symptoms. Id. at 58.

Hasbrouck testified the medication she takes for her physical and mental conditions improve her symptoms, Filing No. 7-2 at 53-54, 58, but she still experiences pain. Id. at 67.

A vocational expert, Eric Dennison, also testified at the hearing. Filing No. 7-2 at 68. He was asked whether a worker with Hasbrouck's education and experience could find work if the hypothetical worker were:

Limited to light exertional level, can occasionally balance, stoop, kneel, crouch, crawl, climb ramps and stairs, never climb ladders, ropes, or scaffolds, can understand, remember, and carry out simple instructions, can tolerate occasional changes in the work setting and can tolerate frequent interaction with supervisors, coworkers, and the general public.

Id. Mr. Dennison testified that Hasbrouck's past work would be eliminated but there were other jobs an individual could perform in the economy including a marker, cleaner, and garment sorter. Id. at 70. Additionally, Mr. Dennison testified that the positions of market and garment sorter would remain available for an individual who can stand and/or walk for four hours out of an eight-hour workday and can sit for the remaining four hours and remain on task at the workstation while seated. Id. at 71. In this hypothetical, a third position of checker would be appropriate. Id.

The ALJ also asked Mr. Dennison about the following restrictions:

Can occasionally lift or carry 20 pounds, can occasionally reach, occasionally handle, occasionally operate foot controls, never stoop, crouch, crawl or climb. Can tolerate no exposure to unprotected heights, moving mechanical parts or atmospheric conditions, would require a 10-minute break every hour. Would need to change positions between sitting and standing every 15 minutes. Would need to be permitted to lie down for 30 minutes every two hours, can sit for two hours, stand for one hour, walk for one hour and work for a total of four hours in a day.

Filing No. 7-2 at 71. Under these restrictions, there are no jobs available in the national economy. Id. at 71-72. Mr. Dennison further testified that an employee can be off task up to 10 percent of the time or absent up to one day per month with anything above these ranges being preclusive to work. Id. at 72.

C. Medical Evidence

Hasbrouck's medical records reflect that she has been diagnosed with obesity, degenerative joint disease and a meniscal tear in her left knee, degenerative disc disease of her lumbar spine, obstructive sleep apnea, major depressive disorder, anxiety disorder, and PTSD. See Filing No. 8-1 at 104-19, 322, 327, 48, and 203. She has a number of less severe conditions including dysphagia, gastroesophageal reflux, and bilateral carpal tunnel syndrome. Id. at 134 and 578. Advanced Practice Registered Nurse Ann Scott has been Hasbrouck's primary care provided since at least 2017. Id. at 333. For her mental health, Hasbrouck has been under the care of Licensed Mental Health Practitioner Wendy Hunt since May 2017. Id. at 162.

Hasbrouck underwent a sleeve gastrectomy in September 2017 which resulted in significant weight loss. Filing No. 8-1 at 134. Even so, Hasbrouck's BMI and physical examinations confirm obesity. See generally Filing No. 8-1.

An MRI of Hasbrouck's left knee showed moderate medial and patellofemoral degenerative changes, osteophytes, and osteochondral. Filing No 8-1 at 90. Subsequent diagnostic imaging in 2019 showed a tear of her meniscus. Id. at 322. She experienced decreased strength, gait abnormalities, tenderness, and ongoing pain. Id. at 370; 49192; 508; 577. She treated her knee with steroid injections. Id. at 516. Hasbrouck consistently reported ongoing knee pain. Id. at 14, 27, 48, 318, 491, 507, 516. She is not a candidate for knee replacement at this time. Id. at 516.

Diagnostic imaging of Hasbrouck's spine illustrates moderate to severe canal stenosis with moderate foraminal stenosis at L4-L5 and moderate canal stenosis with sever foraminal stenosis at L5-S1. Filing No 8-1 at 323; 524. She experienced diminished range of motion. Id. at 137; 152. Hasbrouck was prescribed Tramadol, gabapentin, Tylenol, a muscle relaxant, physical therapy, and received chiropractic care. Id. at 487; 554-72. She consistently reported to her health care providers that her back caused her ongoing pain. Id. at 137, 152, 387, 487, 563, 573.

As to her depressive disorder, Hasbrouck's records reflect she reported difficulty concentrating, fatigue, irritability, anger, and feeling hopeless. Filing No. 8-1 at 408-32. She was often observed by her mental health provider to be tearful, frustrated, irritable, hostile, and sarcastic. Id. She was also diagnosed with an anxiety disorder and PTSD based on excessive worrying, trouble, relaxing, heighten irritability, hypervigilance, and angry outbursts. Id. at 164.

II. Discussion

A. Standard of Review

The Court reviews a denial of benefits by the Commissioner to determine whether the denial is “supported by substantial evidence on the record as a whole.” Johnson v.Astrue, 628 F.3d 991, 992 (8th Cir. 2011) (quoting Dolph v. Barnhart, 308 F.3d 876, 877 (8th Cir. 2002)). Substantial evidence means something less than a preponderance of the evidence, but enough that a reasonable mind might accept the evidence as adequate to support a conclusion....