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Kinsley v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

January 24, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         Plaintiff, Krista Lynn Kinsley, (“Plaintiff” or “Kinsley”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her applications for Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.


         In July 2014, Kinsley filed an application for POD and DIB, alleging a disability onset date of April 9, 2013 and claiming she was disabled due to neuropathy, cubital tunnel syndrome, medial epicondylitis, and carpal tunnel, in the right upper extremity. She also alleged lateral epicondylitis, depression, and cervical radiculopathy. (Transcript (“Tr.”) 167, 189, 208.) The applications were denied initially and upon reconsideration, and Kinsley requested a hearing before an administrative law judge (“ALJ”). (Tr. 104, 111, 122.)

         On June 16, 2016, an ALJ held a hearing, during which Kinsley, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 38-70.) On June 27, 2016, the ALJ issued a written decision finding Kinsley was not disabled. (Tr.15-37.) The ALJ's decision became final on January 27, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On March 22, 2017, Kinsley filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 10, 12, &13.) Kinsley asserts the following assignments of error:

(1) New and material evidence submitted to the Appeals Council supports a Sentence 6 remand.
(2) The ALJ erred by finding Plaintiff's left arm impairment was not severe because it did not last twelve months.
(3) The ALJ's credibility determination is not supported by substantial evidence.
(4) The ALJ failed to properly weigh the opinion evidence, rejecting treating source opinions based on his flawed credibility finding.

(Doc. No. 10.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Kinsley was born in June 1969 and was 46 years-old at the time of her administrative hearing, making her a “younger” person under social security regulations. (Tr. 30.) See 20 C.F.R. §§ 404.1563(c). She has a high school education and is able to communicate in English. (Id.) She has past relevant work as a paralegal. (Id.)

         B. Medical Evidence[2]

         1. Mental Impairments

         On May 22, 2014, Kinsley began treatment with psychologist Margot Kessler, Ph.D. for mental health counseling. (Tr. 487.) During this visit, Kinsley indicated she had been terminated from work due to her medical problems. She described sadness, anxiety, and financial concerns, and was tearful during the evaluation. (Id.) Dr. Kessler noted Kinsley had an anxious and depressed affect, but normal memory and concentration. (Tr. 490.) She observed Kinsley was both intelligent and motivated. (Id.)

         Thereafter, Kinsley visited Dr. Kessler an average of twice a month. Kinsley's treatment notes indicated her primary focus was on her right arm limitations. (Tr. 485, 483.) She was sad, angry, and anxious. (Tr. 483.) However, on July 17, 2014, Dr. Kessler noted Kinsley had “made significant progress with acceptance.” (Tr. 477.)

         On August 6, 2014, Dr. Kessler filled out a form created by the Social Security Administration. (Tr. 473.) On the form, Dr. Kessler reported the following:

• Kinsley is “depressed and anxious about her disability. She is fully oriented, has lost motivation due to chronic pain, and feels sad about being terminated from work due to her medical condition. [She] struggles with short term memory loss and distractability.”
• She “has above average intellectual ability. Her concentration, persistence/pace, short term memory have been affected by her pain medication. Her frustration tolerance is low.”
• Her “dominant arm is weak, swollen at times and unable to successfully complete tasks of daily living. [She] has improved her use of [her] non dominant arm in order to function.”
• She “performs adequate self-care. The disability has changed [her] habits and interests in a significant way. [She] loved her job and it was a primary identity for her. Her energy level has significantly declined.”
• She “does not have the energy which was in her trademark prior to contracting neuropathy in [her] right arm. She frequently rests her arm to minimize pain. She attempts to function within her family.”
• “The pain level in her right arm varies throughout the day and from day to day. [Her] function and mental state is directly related to the pain experience.”
• Her “neurologic problems with her arm began” in the Fall of 2012. “She was terminated from work due to medical absenteeism. Financial concerns and chronic pain have persisted which have impacted her depression and anxiety.”
• She “is making appropriate physical and emotional accommodations. She has used coping strategies to deal with depression and anxiety with moderate success. [She] has a strong social support system. It is difficult for a vibrant, energetic 45 year-old woman to accept a very disabling condition (loss of the use of her right arm).”
• She “has difficulty with daily stressors and would not be able to tolerate work-place stressors at this time due to both physical and psychological limitations. Ex[ample]: [She] has difficulty reading due to concentration and memory deficits (partly due to her pain medications).”

(Tr. 474-475.)

         On October 8, 2014, Kinsley visited a nurse practitioner[3] at a primary care practice. (Tr. 596.) She reported feeling “down, ” and indicated she was “short” with family members. (Id.) She denied any thoughts of hurting herself or others. (Id.) The nurse practitioner diagnosed her with depression and prescribed Cymbalta. (Id.)

         On October 29, 2014, Dr. Kessler filled out another Social Security Administration form. In the “Mental Status Questionnaire” section of the form, Dr. Kessler noted the following:

• Kinsley has good hygiene and a normal gait;
• Her flow of conversation is normal;
• Her mood is “pessimistic, sad, narrow range of emotions, congruent affect, labile, easily annoyed, [and she] puts on a socially appropriate face;”
• She has worry and racing thoughts;
• She is easily distracted but fully oriented;
• She has a decrease in “short term memory, poor abstract reasoning, [and an] average fund of knowledge;”
• She has “no current use of alcohol, ” is “currently taking prescribed pain medication, ” is verbally aggressive by self-report, and “dependent on spouse due to recent disability.”
• She had three surgeries on her right hand;
• Her diagnoses are Major Depressive Disorder and Anxiety, Not Otherwise Specified;
• She takes Cymbalta, Celebrex, a Lidoderm patch, Percocet, and Neurontin. Her medication side effects include drowsiness, feeling “fuzzy, ” decreased short term memory, nausea, and headaches. She cannot drive due to these side effects.

(Tr. 606-607.) In the section of the form entitled “Medical Source Statement, ” Dr. Kessler found the following:

• Kinsley “needs to write down things to remember” and her “verbal understanding has declined.”
• She has “difficulty maintaining attention over 15 minutes.”
• She has “difficulty completing tasks that require more than 15 minutes. Physical [impairments] also interfere with completion of tasks.”
• She reports anxiety at social events. She “reports anger when events require adaptation.”
• “Mentally, [she] would be able to deal with simple tasks. Physically, [she] struggles with the use of her right arm so repetitive tasks (even simple ones) create pain and exhaustion.”

(Tr. 607.) Under the section of the form entitled “Daily Activities Questionnaire, ” Dr. Kessler noted the following:

• Kinsley lives with her husband, two daughters, and two cats in a three bedroom bungalow.
• She is “unable to lift above one pound with her right hand. She could live alone with assistance.”
• She is “on good terms with people - for short periods of time.”
• She visits with family and friends on a weekly basis. These visits are 90 minutes long, and during these visits, she will watch television, play cards, and sit outside.
• She got along “very well” with former employers, supervisors, and co-workers.
• Her “high need for rest, ” “inability to use her right hand, ” and her varying ability to drive due to her medications, would possibly “prevent work activities for a usual work day or work week.”
• She is able to prepare food and complete household chores with help from her husband and daughters.
• She is able to shop with a list, but requires “help carrying and pushing cart.”
• She drives short distances, depending upon her medication schedule. She can “only drive using one hand.”
• She watches her children's sporting events.
• She is compliant with her medications and cognitive behavioral therapy treatment.

(Tr. 608-609.)

         On January 13, 2015, Kinsley visited Dr. Kessler, indicating she had lost confidence and had been retreating from social events. (Tr. 633.) Dr. Kessler suggested Kinsley try meditation. (Id.) On February 3, 2015, Dr. Kessler noted Kinsley had an “increased acceptance of present state of health.” (Tr. 632.) Kinsley reported she still enjoyed attending her daughter's sporting events. (Id.) On March 17, 2015, she relayed she had an upcoming family vacation, but still had “days where she cannot accomplish normal tasks.” (Tr. 630.) On April 9, 2015, Kinsley reported she enjoyed her family vacation. (Tr. 629.) However, Dr. Kessler noted Kinsley remained focused on her limitations. (Id.)

         Kinsley continued to see Dr. Kessler a few times a month. She often discussed her struggle with acceptance of arm limitations and guilt over her unemployment. (Tr. 624, 635, 653.) She indicated self-doubt, but also ongoing progress. (Tr. 625.) On September 17, 2015, Kinsley described having a “mental fog.” (Tr. 635.) On December 2, 2015, she visited Beth Musgrove, a nurse practitioner, who discontinued her Cymbalta and prescribed Wellbutrin. (Tr. 710.)

         On January 14, 2016, Kinsley indicated she wanted to shift her focus away from her disability. (Tr. 649.) She was looking forward to an upcoming home remodeling project. (Id.) On February 25, 2016, Dr. Kessler noted Kinsley had been “disabled for three years, ” and had “lost [her] career path.” (Tr. 647.) Kinsley reported she wanted to start volunteering and enroll in adult education courses. (Id.) Dr. Kessler noted Kinsley was displaying increased forgiveness and “self compassion.” (Id.)

         On April 7, 2016, Kinsley reported she found travel “challenging.” (Tr. 706.) She relayed she was struggling with organization and memory due to her medications. (Id.) On April 28, 2016, Kinsley again reported medication side effects, including distractibility and confusion. (Tr. 704.) She indicated preference for social isolation, which was “out of character” for her. (Tr. 704.) Dr. Kessler noted good eye contact and a logical thought process. (Tr. 704, 705.) Dr. Kessler further noted Kinsley struggled with “the reality of her present situation” and executive functioning. (Tr. 705.)

         2. Physical Impairments

         On February 8, 2013, Kinsley visited nurse practitioner Beth Cooke, CNP, indicating intermittent right arm pain, right arm weakness, decreased grasp, and shooting pain in her right wrist for the past two months. (Tr. 445.) She also described numbness and tingling in the middle two fingers of her right hand. (Id.) On examination, Kinsley had a mildly reduced range of motion in the right elbow, and a pain-free range of motion in her right wrist. (Tr. 446.) Her left upper extremity had normal strength, but her right hand grasp was weak. (Id.) Ms. Cooke prescribed Kinsley a course of steroids and ordered a nerve conduction study. (Id.)

         A February 20, 2013 nerve conduction study revealed right median mononeuropathy at the wrist. (Tr. 356.) This finding was consistent with a mild degree of carpal tunnel syndrome. (Id.) The study was negative for any radicular changes. (Id.)

         Kinsley returned to Ms. Cooke on February 21, 2013. She reported the steroids had improved her symptoms. (Tr. 448.) However, she indicated typing at work worsened her wrist symptoms. (Id.) Ms. Cooke reviewed the nerve conduction study, prescribed Naproxen and a wrist brace, and referred Kinsley to an orthopedist. (Tr. 449.)

         On March 4, 2013, Kinsley consulted with orthopedist Ajay Seth, M.D. (Tr. 377.) Dr. Seth diagnosed Kinsley with medial and lateral epicondylitis of the right elbow, and cubital tunnel and carpal tunnel syndrome on the right side. (Tr. 379.) Dr. Seth injected Kinsley's right elbow with cortisone, and recommended a surgical procedure. (Id.) Kinsley returned to Dr. Seth on March 19, 2013, reporting relief in her medial right elbow for several days after the injection. (Tr. 381.) She indicated she was having difficulty typing at work due to her pain. (Id.) On April 10, 2013, Kinsley underwent the surgical release of her right carpal tunnel and right “medial microtenotomy Topaz procedure” in the epicondyle (i.e., elbow). (Tr. 287.)

         Following these procedures, Kinsley underwent occupational therapy for her right upper extremity. (Tr. 560.) Her initial visit was on April 22, 2013, with occupational therapist Annette Webb. (Id.) Ms. Webb noted the sensation in Kinsley's fingers had improved, but she still had slight numbness. (Tr. 561.) On examination, Kinsley had difficulty fully flexing her right fingers. (Tr. 562.)

         Kinsley then attended occupational therapy a few times a week in April and May 2013. On April 26, 2013, Kinsley's elbow movement had improved, but full extension was still painful. (Tr. 522.) On May 8, 2013, she indicated she had rested her elbow for five days, but it was still very tender. (Tr. 525.) Ms. Webb noted “very small movements in the right thumb bother her more than fully bending or straightening the thumb.” (Id.) On May 10, 2013, Kinsley relayed she felt better on the days she had therapy, but continued to have high levels of pain in her right wrist and elbow. (Tr. 525.) On examination, the area of hypersensitivity and pain in her elbow was decreasing. (Id.) On May 20, 2013, Ms. Webb noted Kinsley's elbow extension had worsened by 15 degrees since her initial occupational therapy visit. (Tr. 565.) Kinsley had difficulty tolerating the “end range of shoulder motions” due to medial elbow pain. (Id.)

         On May 21, 2013, Dr. Seth concluded Kinsley's ulnar nerve was irritated, and prescribed Lyrica and steroids. (Tr. 393.) Kinsley returned to Dr. Seth on June 11, 2013, reporting the Lyrica made her “loopy.” (Tr. 396.) However, she indicated overall improvement. (Id.) Dr. Seth noted her therapy numbers confirmed improvement as well. (Id.) He recommended she continue therapy and prescribed Mobic. (Id.)

         Kinsley continued to attend occupational therapy a few times a week in June 2013. During this time, she attempted to practice work-related activities, such as typing. (Tr. 572, 533, 532.) After 10-15 minutes of typing, she would have increased burning pain in her right elbow and cramping in her fingers. (Tr. 532, 533, 534.) On June 24, 2013, Kinsley indicated she had taken a low dosage of Lyrica for three days, and had decreased elbow soreness and finger cramping. (Tr. 536.)

         On June 26, 2013, Kinsley had an updated occupational therapy assessment. (Tr. 574.) Her right upper extremity range of motion was nearly within normal limits. (Id.) Her right hand grip strength was improved, but remained moderately decreased compared to the left hand. (Id.) She had diminished light touch sensation in the right palm, and diminished protective sensation in the small right finger. (Id.)

         On July 16, 2013, her occupational therapist noted Kinsley had “limited use of [right upper extremity] only tolerating light use for short periods of time.” (Tr. 541.) On July 19, 2013, Kinsley reported her cubital tunnel symptoms had worsened since decreasing her therapy sessions to 1-2 times a week. (Tr. 542.) She expressed concern over being able to tolerate her job. (Id.)

         On July 23, 2013, Dr. Seth noted Kinsley had a full range of motion in her right elbow, with discomfort. (Tr. 397.) Dr. Seth felt her symptoms were caused by the subluxation of the right ulnar nerve. (Tr. 399.) He told her to discontinue therapy, and recommended an ulnar nerve transposition to the right elbow. (Id.) Kinsley underwent this surgical procedure on August 14, 2013. (Tr. 285.)

         On August 26, 2013, Kinsley indicated she was “doing well, ” and no longer required Vicodin. (Tr. 404.) On examination, she had a mildly limited range of motion and mild soft tissue swelling. (Id.) Dr. Seth removed her sutures and told her to re-start occupational therapy. (Id.)

         On September 4, 2013, Kinsley re-established with occupational therapist Annette Webb, OT. She had aching in her right palm, right elbow pain, along with extreme hypersensitivity to textures or pressure along her surgical scar. (Tr. 577.) On examination, she had normal range of motion in her right fingers. (Tr. 578.) She did have some difficulty with “isolated abduction of the right small finger.” (Id.) On September 11, 2013, Ms. Webb noted Kinsley's tolerance for right upper extremity use remained “severely limited.” (Tr. 545.) She noted Kinsley was experiencing “moderate to high levels of pain.” (Id.) On September 16, 2013, Kinsley indicated she had been “doing well” with her right elbow, until she went shopping and out to lunch. (Tr. 545.) She reported severe, burning pain in her right elbow the evening after she went shopping. (Id.)

         On September 17, 2013, Kinsley reported to Dr. Seth she was still having pain in her right elbow, but her Ultram was helpful. (Tr. 407.) She described some swelling in the evening. (Id.) Dr. Seth prescribed Lyrica, Mobic, and steroids. (Id.) On September 30, 2013, Kinsley began to use a TENS unit for her right elbow. (Tr. 547.) On October 7, 2013, she indicated “significant pain relief” with the TENS unit. (Tr. 549.) At that time, therapist Webb noted Kinsley made gradual gains in right upper extremity range of motion, but she still had limitations in her elbow, forearm, and wrist. (Id.) Kinsley indicated her Lyrica was making it difficult to concentrate. (Id.)

         On October 10, 2013, Kinsley reported to Dr. Seth she was “doing better” overall. (Tr. 409.) Dr. Seth advised Kinsley her recovery would possible take up to 18 months. (Id.)

         Kinsley was discharged from occupational therapy on October 28, 2013. Therapist Webb noted Kinsley had attempted to modify her daily tasks, but she was still not able to perform her usual cooking activities. (Tr. 580.) Kinsley no longer had any numbness or tingling in her fingers, and her tolerance for activity had gradually improved. (Tr. 581, 582.) She did continue to have burning pain in her right elbow with activity, and she could not perform tasks requiring sustained gripping and pinching. (Tr. 582.) Kinsley reported she was planning on returning to work twice a week, and working from home three days a week. (Tr. 581.)

         On January 7, 2014, Kinsley visited primary care physician Betsy Kendis, M.D. (Tr. 451.) She indicated she returned to work, but it exacerbated her pain. (Id.) She also described poor focus, due to her medications. (Id.) On examination, she had pain with elbow extension, but not with flexion or movement of the wrist. (Tr. 453.) She was tender to palpation in the lateral elbow and forearm. (Tr. 453.) Dr. Kendis recommended Kinsley seek a second opinion regarding her right elbow, and possibly start an antidepressant. (Id.) Kinsley declined any psychological treatment. (Id.)

         Kinsley returned to Dr. Seth on January 14, 2014. She reported burning pain in her right elbow and indicated her Lyrica was making her “crazy.” (Tr. 415.) On examination, her right elbow had mild to moderate tenderness, along with some swelling. (Tr. 416.) Her elbow extension and flexion were normal, as was her muscle strength and light touch sensation. (Id.) She had pain with resisted wrist extension. (Id.) Dr. Seth indicated he “believe[d] her nerve is starting to get better.” (Id.)

         On January 16, 2014, Kinsley began a new round of occupational therapy, with occupational therapist Lisa Jenkins, OT. (Tr. 367.) Kinsley reported her range of motion had improved since her operation, and she no longer had a sensation of being “shocked.” (Id.) She indicated continued difficulty with hair styling, food preparation, and job tasks. (Tr. 368, 369.) On examination, she had hypersensitivity in the medial aspect of her right elbow and decreased grip strength on the right side. (Id.) On February 13, 2014, Kinsley reported increased pain to therapist Jenkins. (Tr. ...

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