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Ray v. Colvin

United States District Court, E.D. Missouri, Southeastern Division

June 26, 2014

CHRISTINA R. RAY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

THOMAS C. MUMMERT, III, Magistrate Judge.

This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security ("Commissioner"), denying the applications of Christina Ray ("Plaintiff") for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 401-433, and for supplemental security income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381-1383b.

Ms. Ray has filed an opening brief and a reply brief in support of her complaint; the Commissioner has filed a brief in support of her answer. The case was referred to the undersigned United States Magistrate Judge for a review and recommended disposition pursuant to 28 U.S.C. § 636(b).

Procedural History

Plaintiff applied for DIB and SSI in July 2010, alleging she was disabled as of March 15, 2010, because of multicystic kidney disease and headaches. (R.[1] at 171-78, 202.) Her applications were denied initially and following a hearing held in March 2012[2] before Administrative Law Judge ("ALJ") Dina R. Loewy. (Id. at 7-21, 39-79, 81-87.) The Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-3.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and Elizabeth Clem, M.R.C., C.R.C., [3] testified at the administrative hearing.

Plaintiff was thirty-seven years old at the time of the hearing. (Id. at 43.) She is 5 feet 2 inches tall and weighs 139 pounds. (Id. at 44.) She is right-handed. (Id.) Plaintiff is not married. (Id.) She has five children, ranging in ages from ten to twenty-one years. (Id.) Two of the five, ages eleven and ten, live with her. (Id.) She completed the ninth grade, and does not have a General Equivalency Degree ("GED"). (Id. at 45.)

Plaintiff has an attendant through Disabled Citizens Alliance who helps her every day for two hours and fifteen minutes. (Id.) She explained she needs help sweeping and mopping her floors, fixing supper, and being reminded to take her medications. (Id. at 52.) Asked about her difficulty remembering to take her medications, Plaintiff replied that she has memory problems and forgets "a lot of things." (Id. at 53.)

Plaintiff stopped working in approximately 2009. (Id. at 46.) She last worked for Gibbs Healthcare for six months as a certified nurse aide ("CNA"). (Id. at 47.) Before that she worked as a CNA at a nursing home. (Id. at 48.) She has also worked as an in-home healthcare worker. (Id.) She stopped working because she could no longer lift people, her legs were giving out, her side was hurting, and she "was getting really sleepy." (Id. at 49.) She was told that she has kidney stones, but cannot afford to see a urologist. (Id.) She also has been treated for cancer and had part of her liver, a kidney, and part of her lung removed. (Id. at 50.) Subsequent computerized tomography ("CT") scans have been negative for a reoccurrence of the cancer. (Id. at 66.) She has asthma and uses an inhaler. (Id. at 50-51.)

Asked what she does during the day, Plaintiff replied that she "mainly sleep[s]." (Id. at 51.) She has been told she has fibromyalgia, for which she takes muscle relaxers. (Id.) at 49, 50.)

Plaintiff testified that she has one friend and has a boyfriend, a police officer. (Id. at 55.) She does not watch much television and does not read. (Id.) She goes to the grocery store once a month. (Id.) She has a driver's license and a car, but, with the exception of the monthly shopping trip, her attendant drives her. (Id. at 55-56.) She smokes a pack of cigarettes a day. (Id. at 56.) She does not drink. (Id.) Her attendant had encouraged her to be a Boy Scout leader. (Id. at 68.) She went to a couple of monthly meetings, but stopped going because her legs would hurt and she would have to sit down. (Id. at 69.)

Asked why she is unable to work, Plaintiff explained that her side "hurts really, really bad" and her lower back, legs, and arms hurt. (Id. at 59.) Also, she has headaches four times a week and has to cover her head with a pillow. (Id. at 59-60.) She sometimes sees double or little black spots. (Id. at 60.) She has muscle spasms in the back of her legs down to her feet and in her arms and side. (Id. at 67-68.) The side, leg, and low back pain and the headaches started after her kidney surgery. (Id. at 60-61.) She told her surgeon, Dr. Weinstein, about her symptoms but he did not say anything. (Id. at 61-62.)

Plaintiff does not have any side effects from her medications. (Id. at 63.) Her medications include trazodone for depression. (Id.)

Plaintiff testified that she can lift at most a gallon of milk and can stand or walk for thirty minutes before her legs start hurting and causing her to fall. (Id. at 64.) She prefers not to walk up a flight of stairs. (Id. at 65.) She showers once a week, usually when she has to go somewhere. (Id. at 69.) She cries at night three or four times a week for approximately thirty minutes each time. (Id. at 69-70.)

Ms. Clem, testifying without objection as a vocational expert ("VE"), was asked to assume a claimant who can perform medium work with additional limitations of needing to avoid concentrated exposure to temperature extremes, humidity, irritants, unprotected heights, and hazardous machinery and of being restricted to "simple routine tasks with only occasional decision making or only occasional changes in the work setting." (Id. at 72-73.) She testified that this claimant can return to Plaintiff's past relevant work as an unskilled cashier. (Id. at 73.) She can also work as a fast food worker, which is unskilled and light with a specific vocational preparation ("SVP") level of two[4] and which exists in significant numbers in the state and national economies, and as a cafeteria worker, which has the same characteristics as the fast food worker. (Id. at 73-74.) Both jobs would still be available if the hypothetical claimant is limited to light work. (Id. at 74.)

If the claimant is limited to sedentary work, she can work as an assembler, which is unskilled with a SVP level of two, or as an inspector, also unskilled. (Id. at 74-75.) Both these jobs exist in significant numbers in the state and national economies. (Id.)

If the claimant is further limited to only occasionally pushing and pulling and reaching overhead, the jobs would remain. (Id. at 75.) If, because of "severe pain and other impairments, " the person can not "keep up to engage in sustained work activity for a full eight-hour workday on a regular consistent basis" and needs to take additional, frequent breaks, the jobs would not be available. (Id. at 75-76.) If the claimant can stand for only three hours during an eight-hour day, sit for a maximum of four hours, and needs to recline up to three times a day for thirty minutes each, no jobs would be available. (Id. at 77.) Ms. Clem stated that her testimony does not conflict with the DOT. (Id. at 76.)

Medical and Other Records Before the ALJ

The documentary record before the ALJ included forms completed as part of the application process, documents generated pursuant to Plaintiff's applications, records from health care providers, and assessments of her physical and mental abilities.

When applying for DIB and SSI, Plaintiff completed a Disability Report, disclosing that her impairments prevented her from working on May 30, 2010. (Id. at 202.)

Plaintiff also completed a Function Report. (Id. at 231-38.) Asked to describe what she does during the day, she replied that she takes a bath, tells her children to get up, tries to clean and, if able, fixes supper and drives to visit her mother. (Id. at 231.) Her pain affects her sleep. (Id. at 232.) She has no problems with personal care tasks, including bathing. (Id.) She sometimes needs to be reminded to take her medications. (Id. at 233.) She prepares a meal four times a week; each takes her an hour and forty-five minutes. (Id.) She folds clothes and, sometimes, sweeps, mops, and vacuums. (Id.) These chores take her all day. (Id.) Her children do the chores she cannot. (Id. at 234.) She shops for food two times a month, for two hours each time. (Id.) Her hobbies include crocheting and reading. (Id. at 235.) She does each two times a week. (Id.) Three times a week, she visits with people. (Id.) Her impairments adversely affect her abilities to lift, stand, walk, and remember. (Id. at 236.) They do not affect her abilities to squat, bend, reach, sit, kneel, complete tasks, concentrate, use her hands, follow instructions, or get along with others. (Id.) She can walk half a block before having to stop and rest. (Id.) She can pay attention for ninety minutes. (Id.) She does not finish what she starts, but can follow written or spoken instructions. (Id.) She does not handle stress or changes in routine well. (Id. at 237.)

Plaintiff completed a Disability Report - Appeal form after the initial denial of her application. (Id. at 243-50.) She did not have any new limitations as a result of her impairments, and had no new illnesses or impairments. (Id. at 245.) Also, there had been no changes, for better or worse, in her impairments since she had last completed a disability report. (Id.)

An earnings report for Plaintiff lists earnings for 1998 to 2000 and 2002 to 2010. (Id. at 185.) Her highest earnings, $13, 239, were in 2009. (Id.) She earned $6, 570 in 2010; with the exception of the 2009 earnings, these were her highest earnings after 2004. (Id.)

The relevant medical records before the ALJ are summarized below in chronological order and begin in May 2007 when Plaintiff consulted Mary S. Campbell, F.N.P., [5] with Missouri Highland Health Care ("MHHC"), for treatment of earaches, cough, sinus pain, headache, swollen glands, fatigue, and nasal discharge. (Id. at 301-03, 417-19.)

The following month, she had a follow-up appointment with Aaron Trone, D.O., with MHHC, to investigate a split S1 heart sound.[6] (Id. at 300-01, 416.) Dr. Trone opined that the split sound "should be of no consequence" and advised Plaintiff to return as needed. (Id. at 300.) She returned two weeks later with complaints of a swollen, painful left foot after dropping something on it. (Id. at 299-300, 415.) X-rays revealed no fractures. (Id. at 307, 420.) She was diagnosed with an abrasion or friction burn of the foot and prescribed Vicodin.[7] (Id. at 299-300.)

Plaintiff saw Dr. Trone in April 2008 for left flank pain and blood in her urine. (Id. at 297-99, 308, 413-14.) Her heart sounds were normal. (Id. at 298.) She had tenderness on palpation of the left side of her back. (Id.) She was prescribed Bactrim to treat her urinary infection. (Id. at 299.)

In August, Plaintiff was seen by Michelle Allen, R.N., M.S.N., A.N.P., [8] with MHHC for back pain that radiated down her legs. (Id. at 295-97, 411-13.) The pain had begun after Plaintiff jumped off a bluff into a river when with her children. (Id. at 295.) After being examined, Plaintiff was diagnosed with lumbar strain and backache and referred for spinal x-rays and an evaluation for physical therapy. (Id. at 297.) The x-rays of her cervical spine were negative. (Id. at 306, 422.) X-rays of her lumbar spine revealed a loss of normal lumbar curve and a muscle spasm, but were otherwise normal. (Id.)

Plaintiff saw Dr. Trone again in January 2009, complaining of left hand and wrist pain she thought might have been caused when she lifted a patient at work. (Id. at 293-94, 409-10.) She was diagnosed with tendonitis, given a wrist splint to be worn for one to two weeks, and told to return if she did not improve. (Id. at 294.)

Two months later, Plaintiff saw Ms. Allen for treatment of pelvic pain and pain and a burning feeling when urinating. (Id. at 291-93, 408-09.) She was diagnosed with an urinary tract infection, prescribed Bactrim and Pyridium (for the urinary pain and burning[9]), and told to increase her intake of fluids. (Id. at 293.)

In May, Plaintiff went to the Salem Memorial District Hospital ("Salem Memorial") emergency room with complaints of blood in urine and low back and abdominal pain. (Id. at 330-37.) An x-ray of her abdomen revealed calcific densities of an indeterminate nature in her left upper abdomen, which could be renal calculi and for which further evaluation was recommended. (Id. at 336.) ...


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