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Flores v. Colvin

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

July 3, 2014

TERESA A. FLORES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

TERRY I. ADELMAN, Magistrate Judge.

This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves an Application for a Period of Disability and Disability Insurance Benefits under Title II of the Social Security Act. Claimant has filed a Brief in Support of her Complaint; the Commissioner has filed a Brief in Support of her Answer. The case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b).

I. Procedural History

On March 22, 2005, Claimant Teresa A. Flores filed an Application for a Period of Disability and Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 15, 910-14)[1] alleging disability since June 30, 2004 due to left shoulder pain, muscle spasms, and knots in shoulder blade. (Tr. 959, 964). The application was denied, and Claimant subsequently requested a hearing before an Administrative Law Judge (ALJ), which was held on November 16, 2006. (Tr. 31). In a decision dated April 17, 2007, the ALJ issued a partially favorable decision denying her claim for benefits from her alleged onset date of June 30, 2004 until October 19, 2006 and awarding benefits beginning on October 19, 2006. (Tr. 28-40). A request for Review was filed with the Appeals Council. (Tr. 45-46). On July 15, 2009, the Appeals Council remanded the case to the ALJ to reevaluate Claimant's residual functional capacity and functional limitations, evaluate her complaints of pain, determine her functional limitations or residual functional capacity during the entire period at issue, and obtain evidence from a vocational expert to clarify the effect of the assessed limitations on her occupational base. (Tr. 41-44).

Claimant subsequently requested a hearing before an Administrative Law Judge (ALJ), which was held on April 27, 2010. (Tr. 804-32). Vocational Expert Delores Gonzalez also testified at the hearing. (Tr. 827-31). Thereafter, on March 11, 2011, the ALJ issued a partially favorable decision on Claimant's claims for benefits finding she met the requirements for disability on April 6, 2007, but not prior to that date. (Tr. 12-27). After considering the representative's brief, the Appeals Council on January 30, 2013 found no basis for changing the ALJ's decision and denied Claimant's request for review of the ALJ's decision. (Tr. 5-9, 833-35). The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

II. Evidence Before the ALJ

A. Hearing on April 27, 2010

1. Claimant's Testimony

At the hearing on April 27, 2010, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 804-32). Claimant's date of birth is March 3, 1961. (Tr. 808). She is forty-nine years old at the hearing. (Tr. 808). She graduated from high school. (Tr. 821). Claimant last worked on June 30, 2004 after moving from Belle, Missouri to Walton, Kentucky. (Tr. 809). She moved back to Missouri on September 29, 2005 to be closer to her sick mother. (Tr. 810). Claimant can drive a short distance. (Tr. 815).

Prior to June 30, 2004, Claimant testified that she was taking Vicodin 750 milligrams, eight Percocets a day, and six Flexeril a day. (Tr. 809). In 2004 after moving to Kentucky, she was taking Aleve, Tylenol, and Vicodin given to her in the emergency room. (Tr. 809). In July 2004, her neck had a lot of nerve damage. (Tr. 810). Claimant testified that her neck condition and pain were consistent until October 19, 2006 when she had the second surgery. (Tr. 810).

Claimant testified that she could not work after June 30, 2004, because she could no longer torture herself by standing or lifting. (Tr. 810). She also was having headaches, pain and a burning sensation down her lower back, and a knot under shoulder. (Tr. 811). Dr. Umbright recommended surgery in August 2004. Claimant testified that Dr. Vitols recommended surgery in November 2004 but the insurance companies declined. In July 2005, Claimant was taking eight Vicodins, 750 milligrams, each day. Claimant testified that her pain medicine remained consistent from July 2005 to July 2006. (Tr. 811).

In April 2007, Dr. Snyder performed left shoulder surgery and placed her on fentanyl patches. (Tr. 812, 822). Dr. Snyder never returned Claimant to work. (Tr. 822). Claimant changed to 1, 000 milligram Percocets and 300 milligrams of Tylenol three times a day. (Tr. 812). The Percocets make her drowsy, and she has to lie down quite a bit throughout the day, and she sleeps a couple of hours during the day. (Tr. 815). Claimant also takes Valium twice a day to relax the muscles in her back and neck. (Tr. 813).

Claimant testified that she was not able to return to work in April 2007, because she cannot lift her arm or grip with three fingers on her left hand and her pain. (Tr. 814). Since the October 2006 neck surgery, she experiences headaches and burning sensations. (Tr. 814). After carpal tunnel surgery on her left wrist, Claimant testified physical therapy did not help. (Tr. 816). Claimant testified that her current doctor, Dr. Bohlmann, told her there is nothing that can be done for her. (Tr. 815).

Claimant testified that she could not sit at a desk for eight hours a day answering a telephone, because sitting for any amount of time bothers her. (Tr. 821). After sitting for a little bit, she has to get up and walk around or lie down. (Tr. 821).

Claimant filed a prior claim in Ohio for Social Security disability in July 2004, and this claim was denied. (Tr. 823).

In 1995, Claimant worked for three years at Express Services as a bindery worker making, boxing, and drilling books. (Tr. 823). Her job required Claimant to lift approximately twenty-five pounds. (Tr. 824). At Quaker Windows, she made windows. At Casey's, Claimant worked as a convenience store clerk and a cook. In 2003-2004, she worked as a grill cook at Mr. GS Deli. (Tr. 824).

The injury she sustained at Quaker Windows supporting the workers' compensation claims occurred in January 1999. (Tr. 825). Her three workers' compensation claims were for her wrist, neck, and shoulder. (Tr. 826-27). Claimant's claims were pending while she worked at Casey's and Mr. GS Deli. She stopped working, because she could no longer lift the chicken or run the meat slicer. (Tr. 825). Claimant testified that she worked at Mr. GS Deli until she moved to Ohio, and she has not looked for work since leaving Mr. GS Deli. (Tr. 826).

2. Testimony of Vocational Expert

Vocational Expert Delores Gonzalez testified in response to the ALJ's questions. (Tr. 827-31).

The ALJ asked Dr. Gonzalez to assume that
a hypothetical claimant age 43 at the alleged date of onset, with 12 years of education, the same past work experience. In the first one it's been opined that his hypothetical claimant can lift and carry less than 10 pounds both occasionally and frequently, and should avoid repetitive bending and twisting of the neck and left shoulder. Reaching in all directions is limited to no repetitious on the left, reaching overhead is limited to more than occasional on the left, and handling, gross manipulation is limited to no repetitious on the left. In addition, this hypothetical claimant should avoid moderate exposure to extreme cold and extreme heat and avoid exposure to hazards and unprotected heights, moving and dangerous machinery, and vibration. And it's been indicated by the testimony the left is the dominant hand. Given those restrictions, and those alone, could this hypothetical claimant return to any past relevant work?

(Tr. 827-28). Dr. Gonzalez opined that such an individual could not perform any past relevant work, but she could perform other work such as a surveillance monitor, a sedentary and unskilled job with 85, 440 jobs available nationally and 2, 020 locally; and a call-out operator, a sedentary and unskilled job with 67, 400 jobs available nationally and 1, 190 available locally. (Tr. 828).

Next, the ALJ asked Dr. Gonzalez to assume the additional information:

It's 10 pounds occasionally, less than 10 pounds frequently. There are no restrictions on standing, walking or sitting, should never climb ropes, ladders, and scaffolds. Reaching in all directions is limited to no repetitious on the left. Reaching overhead is no more than occasional on the left. Should avoid concentrated exposure to extreme cold, hazards of unprotected heights, vibration, and moving and dangerous machinery. Would those restrictions allow for return to any past relevant work?

(Tr. 829). Dr. Gonzalez opined no, and the jobs cited from the last hypothetical would be applicable. (Tr. 829).

Lastly, the ALJ asked as follows:

the same as hypothetical number two, except that it allows for 20 pounds occasionally and 10 pounds frequently as far as lifting and carrying. If that were the case, would that allow for a return to any of the past relevant work?

(Tr. 829). Dr. Gonzalez responded no. Dr. Gonzalez explained Claimant's past work as a convenience store work and the bindery work were considered light work, but both jobs required more than occasional use of the left arm so she could not perform the jobs. (Tr. 829-30).

Counsel asked if the weight restrictions in the ALJ's hypotheticals was reduced to five pounds, would that change her opinion. (Tr. 830). Dr. Gonzalez explained that an individual needs to be able to lift 10 pounds in order to do sedentary work, but there are many jobs that only require a person to lift 5 pounds or less such as a surveillance system monitor. (Tr. 830-31). Next, counsel if the individual "has to lay[ sic ] down at least twice a day for a period of two hours a day each time, and going to sleep, would that change your opinion about any of the jobs?" (Tr. 831). Dr. Gonzalez noted if the person needs to lie down for rest periods at will during the day such person would need to be accommodated and therefore not be able to perform competitive employment. (Tr. 831).

The ALJ stated he would keep the record open for thirty days so that counsel could submit the additional medical records from Dr. Bohlmann. (Tr. 831).

III. Medical Records[2]

Dr. Michael Dudenhoeffer completed an EMG to the left upper extremity to rule out radiculopathy. (Tr. 977, 1030). Examination showed marked spasm in the left upper back muscles at the upper trapezius and levator scapula muscle origin as well as into the rhomboids. Dr. Dudenhoeffer noted probable trigger point with some radiation into the arm. (Tr. 977, 1030). Dr. Dudenhoeffer found Claimant has myofascial pain in trigger points of the left upper back with referred symptoms into the upper extremity. (Tr. 978). Dr. Dudenhoeffer suggested physical therapy as treatment and considered possible trigger point injection and adding muscle relaxant. (Tr. 978). The October 21, 1998 cervical spine MRI showed mild right paracentral disc bulge at C5-C6 which does not produce significant spinal stenosis or neural foraminal encroachment. (Tr. 431, 476, 679, 976, 1016).

On December 7 and 27, 1999, Dianna Adkison, D.O., administered cervical epidural steroid injections. (Tr. 1035-54). Claimant reported undergoing electrotherapy and physical therapy and having been on several oral medications including Darvocet and Flexeril without significant relief of her pain. (Tr. 1035). The October 21, 1998 MRI showed a mild right paracentral disc bulge at C5-6. (Tr. 1036). Dr. Adkison found Claimant has chronic cervical pain with upper extremity radiculopathy probably secondary to disc disease and tobacco abuse. (Tr. 1036).

In the January 31, 2000 letter, Dr. John Lucio updated Dr. Dudenhoeffer about Claimant undergoing two cervical epidural steroid injections, but noted she has not responded adequately and the prescribed pain killers and muscle relaxers have not provided any appreciable long-term relief. (Tr. 438, 576, 970). Dr. Lucio determined he could not offer Claimant any further relief and suggested a surgical consultation. (Tr. 438-61, 970).

On February 4, 2000, Dr. Curtis Cox diagnosed Claimant with neck and bilateral arm pain and noted her symptoms suggested peripheral entrapment neuropathy as well as pinched nerves in her neck. (Tr. 578, 618, 654, 980, 1085A-1086). Dr. Cox noted the MRI showed mild right paracentral disc bulge at C5-6. (Tr. 579, 619, 655, 979). Claimant smokes a package of cigarettes every day. (Tr. 579, 655, 979).

In the February 11, 2000 emergency room treatment note, the doctor noted how Claimant has been "on narcotics pretty much daily around the clock for the last two years in the form of Darvocet" and has been recently discontinued off the medication by her doctor. (Tr. 685, ...


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