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Murphy v. Colvin

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

July 10, 2014

TAMARA MURPHY, 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 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security ("Commissioner"), denying the application of Tamara Murphy ("Plaintiff") for supplemental security income ("SSI") under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. § 1381-1383b, is before undersigned Magistrate Judge for a review and recommended disposition. See 28 U.S.C. § 636(b).

Procedural History

Plaintiff applied for SSI in January 2010, alleging she was disabled as of June 30, 2008, by migraines, diabetes, cysts in her hands, neuropathy, depression, and reading comprehension problems. (R.[1] at 168-71, 226.) Her application was denied initially and following a December 2011 hearing before Administrative Law Judge ("ALJ") Stephen M. Hanekamp. (Id. at 18-34, 43-80, 84-88.) After reviewing additional evidence, see pages 46 to 47, infra, the Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-4.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and Darrell Taylor, Ph.D., C.R.C., [2] testified at the administrative hearing.

Plaintiff was forty years old at the time of the hearing. (Id. at 48.) She is divorced and has one child, a seventeen-year son. (Id. at 48, 67.) She and her son have been living with a friend of hers for the past two months. (Id. at 49.) The friend has three boys, two of whom live with them. (Id.) She had been living in an apartment and paying the rent with child support. (Id.) The support had stopped that month. (Id. at 50.) She has Medicaid. (Id.) Plaintiff completed the twelfth grade. (Id. at 48.)

Plaintiff last worked one year earlier. (Id. at 50.) Asked why all her jobs were short in duration, Plaintiff explained that it was because of her health. (Id. at 53.) Specifically, it was because of her insulin-dependent diabetes, migraines, and neuropathy in her feet. (Id. at 53, 54) She has had diabetes for approximately ten years. (Id. at 54.) She has a headache two to four times a week; each lasts between two hours and all day. (Id.) When she has a migraine, she lies in bed with a cold rag over her head. (Id.) Her blood sugar levels take two to four hours to go down after she takes insulin. (Id. at 55.) In the interim, she is not able to function and tries to sit still. (Id. at 55-56.) If the levels are too low, she drinks juice or eats hard candy. (Id. at 56.) Her blood sugar then takes two to three hours to go back up. (Id.) During this time, she is dizzy and nauseous. (Id.) Plaintiff wears glasses. (Id. at 57.) Approximately three times a week, she has problems with blurred vision. (Id.) Because of her diabetes, she has had cataract surgery in both eyes. (Id. at 57-58.) The neuropathy in her feet makes it hard for her to walk. (Id. at 58-59.) Her feet swell from the ankles to the arches. (Id. at 59.) This happens "[p]retty much every day." (Id.) She then has to prop her feet up to waist level. (Id.) On a typical day, she spends approximately four hours with her feet propped up. (Id.) Also, she has numbness in her hands causing her to drop things. (Id. at 60.) She recently had surgery on her right shoulder. (Id. at 60-61.) Consequently, she cannot lift her shoulder. (Id. at 61.) Medicaid will not pay for her physical therapy. (Id.) Approximately ten years ago, she had surgery on her right elbow. (Id.) She no longer has problems with it. (Id.) She has had carpal tunnel surgery on both sides and trigger finger surgeries on both fifth fingers. (Id. at 62.) She no longer has problems with her trigger fingers. (Id.) She has pain in her hips and has had surgery on her left knee. (Id.)

Plaintiff takes Percocet[3] and tramadol.[4] (Id. at 63.) To help alleviate her pain, she soaks in a tub three to four times a day. (Id.) Almost every day, she uses a heating pad on her shoulder, back, hips, feet, and legs. (Id. at 64.)

Plaintiff began treatment at the Arthur Center in 2010 for depression. (Id.) She sees a nurse practitioner and is taking Celexa[5] and sleeping pills. (Id.) Her depression causes her to cry at least once a day and be angry. (Id. at 64-65) The past year she was hospitalized after trying to commit suicide. (Id. at 65.) In an average week, she spends three days a week in her night clothes. (Id. at 66.)

During a typical day, she tries to do housework, read, or watch television. (Id. at 66-67.) She tries to make supper for her family three or four times a week. (Id. at 67.) She cannot vacuum, dust, or do the laundry. (Id.) She and a friend go grocery shopping. (Id. at 68.)

Ten to fifteen years ago, Plaintiff was in jail for writing bad checks to pay household bills. (Id. at 68-69.)

Mr. Taylor, testifying without objection as a vocational expert ("VE"), was asked to assume a claimant of Plaintiff's age, education, and work experience who can perform light work but cannot climb ladders, ropes, or scaffolds and cannot do overhead tasks on the right. (Id. at 72.) This claimant can occasionally balance, crouch, crawl, kneel, stoop, and climb ramps and stairs. (Id.) She can perform simple, routine tasks with few changes in duties or the work setting and with only superficial interaction with coworkers, supervisors, and the general public. (Id.) Asked if this claimant can perform Plaintiff's past relevant work, he replied that she cannot. (Id. at 73.) She can, however, perform other work, for instance, housekeeping positions and hand packer positions. (Id.)

If the hypothetical claimant can stand and walk for a total of four hours in eight, not the six required for light work, the number of available positions would be reduced by half. (Id. at 72, 74.)

All the positions cited by Mr. Taylor require frequent reaching and handling. (Id. at 74.) If such can only be performed occasionally, the claimant would not be able to perform the light, unskilled work cited or any other work. (Id.) Nor would the claimant be able to perform the work if it needed to be done with the legs elevated to waist level or to a foot or two off the floor. (Id.) He explained that the jobs required that the worker stand for a minimum of four hours a day. (Id.)

Also, the cited jobs allow only a fifteen-minute break in the morning and in the afternoon and a thirty to forty-five minute lunch break. (Id. at 75.) If a worker needs additional, unscheduled breaks, for instance, to check her blood sugar levels, she would be fired. (Id.) If the worker was absent for a couple of days each month for a period of a couple of months, she would be fired. (Id.)

The cited jobs exist in significant numbers in the state and national economies. (Id. at 76.)

The VE further stated that, with one exception, his testimony was consistent with the Dictionary of Occupational Titles ("DOT") and Selected Characteristics of Occupations. (Id. at 75.) The exception is the exertional level for Plaintiff's past relevant work as a certified medical technician. As Plaintiff performed it, it is light work; as the DOT classifies it, it is medium work.

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 application, school records, records from health care providers, and assessments of her physical and mental abilities.

When applying for SSI, [6] Plaintiff completed a Disability Report, listing her height as 5 feet 1 inch and her weight as 200 pounds. (Id. at 226.) She stopped working in December 2009 when she was laid-off. (Id. at 227.) She believed her impairments prevented her from working as of June 30, 2008. (Id.) She had attended special education classes in school. (Id.) In 1990, she completed the training to be a certified nurse aide. (Id. at 228.)

On a Function Report completed in March 2010, Plaintiff reported that she lived in a house with her boyfriend and son. (Id. at 238.) She described her daily activities as getting up around 5:30 in the morning, drinking coffee, going back to bed at 6:30, getting up again around 9:30, taking a shower, eating, and, with frequent breaks, cleaning the house, including vacuuming and dusting. (Id.) Her son helps her care for their dog. (Id. at 239.) Before her impairments, she could take long walks, bend, lift, sleep, reach, and push a vacuum. (Id.) She needs help getting in and out of the tub, combing her hair, and remembering to take her medications. (Id.) She prepares a meal monthly; the rest of the time, her son and boyfriend do so. (Id. at 240.) When she does prepare a meal, it takes her a couple of hours because she has to sit and rest. (Id.) Her son and boyfriend also help with the household chores. (Id.) She cannot do any yard work. (Id. at 241.) If the weather is nice, she sits outside and reads a book. (Id.) Her hobbies include fishing, camping, hunting, watching television, and reading books. (Id. at 242.) She needs help with the first three. (Id.) She cannot lift very much, walk very far, and sit for very long. (Id.) Her impairments adversely affect her abilities to lift, bend, reach, sit, climb stairs, squat, kneel, stand, walk, complete tasks, remember, concentrate, use her hands, and get along with others. (Id. at 243.) She cannot pay attention for longer than twenty minutes. (Id.) She does not follow written or spoken instructions well. (Id.) She does not handle stress or changes in routine well. (Id. at 244.)

On a Function Report Adult - Third Party form, Plaintiff's mother-in-law[7] reported that she sees Plaintiff three to four times a week to run errands such as doctors appointments and grocery shopping. (Id. at 261.) Her answers generally mirror Plaintiff's, including the length of time Plaintiff can pay attention. (Id. at 261-69.)

For the years 1990 to 2009, inclusive, Plaintiff's highest annual earnings were $6, 893, [8] in 1999. (Id. at 176.) Her next highest were $6, 057, in 2009. (Id.) In the eleven years from 1999 to 2009, inclusive, Plaintiff had thirty-five different employers. (Id. at 177-81.)

Plaintiff's school records reflect that she was given the Wechsler Intelligence Scale for Children - Revised ("WISC-R") when she was in the seventh grade. (Id. at 330-39.) She had a verbal intelligence quotient ("IQ") of 70; a performance IQ of 88; and a full scale IQ of 78. (Id. at 330, 3366.) An Individualized Education Program ("IEP") was developed for Plaintiff in the Spring semester of the eighth grade. (Id. at 324-29.) At the time, Plaintiff was in the regular eighth grade math class. (Id. at 325.) She was mainstreamed in the eighth grade Social Studies class and needed special help due to reading problems. (Id.) She showed signs of immaturity, but they were lessening. (Id.) She did not always respond well to criticism. (Id.) An IEP was designed to improve her reading. (Id. at 326-29.)

Plaintiff graduated 77th in a high school senior class of 85. (Id. at 318.) Her Grade Point Average was 1.82. (Id.)

The relevant medical records before the ALJ are summarized below in chronological order and begin in June 2007 when Plaintiff was admitted to Franklin Hospital after being seen in the emergency room that night for complaints of worsening abdominal pain and vomiting for the past seven days. (Id. at 340-87.) She was diagnosed with acute non-calculus cholecystitis. (Id. at 341.) It was noted she had Type 2 diabetes, also known as non-insulin dependent diabetes mellitus. (Id.) She was given medication and placed on a liquid diet. (Id. at 355, 365.) An abdominal ultrasound scan did not show any gallstones or any problems with the bile ducts, liver, or kidneys. (Id. at 341, 348.) Plaintiff was discharged the next day with prescriptions for Vicodin, [9] metformin, and Actos.[10] (Id. at 356, 387.) She was to be scheduled for a hepatobiliary iminodiacetic acid ("HIDA") to rule out any problems in gallbladder and bile ducts. (Id. at 341, 356)

Plaintiff was seen again at the Franklin Hospital emergency room in October. (Id. at 388-400.) She had severe right lower quadrant abdominal pain with nausea. (Id. at 391.) The pain had started earlier in the day and had become unbearable. (Id.) A computed tomography ("CT") scan of her abdomen and pelvis showed no acute abnormalities. (Id. at 398-99.) Plaintiff was discharged with instructions to follow-up with her primary care physician. (Id. at 400.)

In December, she informed Brian Harrison, M.D., that she had a history of diabetes and fibromyalgia. (Id. at 419-20.) Also, she had trouble sleeping, was emotional, and had had a cortisone shot in her left elbow at Thanksgiving to reduce the pain. (Id. at 419-20.) Plaintiff was prescribed Novolin, a form of insulin. (Id. at 420.) She was to follow-up in one month. (Id.)

She returned to Dr. Harrison in January 2008, consulting him about a nodule on her right wrist and pain in her left elbow. (Id. at 417-18.) She was given Augmentin, a penicillin antibiotic, [11] and referred to an orthopedist. (Id. at 418.)

In February, Plaintiff saw Davis Asbery, M.D., as a new patient for management of hormone replacement therapy. (Id. at 421-25.) On examination, she had no abdominal pain, no nausea or vomiting, no joint pain or stiffness, no anxiety, no depression, and no sleep disturbances. (Id. at 423.) Her other systems were also normal. (Id. at 423, 424.) She was not in pain. (Id. at 424.) Her only diagnosis was diabetes mellitus. (Id.) She did not want an annual exam, and wanted only the injection. (Id. at 421.) She did not know what medication she was taking. (Id.) She was to return after Dr. Asbery had reviewed her medical records. (Id.)

Plaintiff was seen again at the Franklin Hospital emergency room in March for complaints of abdominal pain with nausea. (Id. at 401-04.) The same day, she was seen by Dr. Harrison for the pain and also for fatigue. (Id. at 415-16.) She had not used insulin for two days and was not eating. (Id. at 415.) She was given Phenergan (an antihistamine) and released from work for three days. (Id. at 416.)

In May, Plaintiff went to the emergency room at Heartland Regional Medical Center with complaints of right headaches, temporal numbness to the right side of her face, and decreased peripheral vision on the right. (Id. at 435-36, 438-40.) She was getting divorced from an abusive husband and was under a lot of stress. (Id. at 435.) On examination, her right temple was "very tender to touch." (Id.) ACT scan of her head was negative. (Id. at 436, 440.) A magnetic resonance imaging ("MRI") of her brain was normal. (Id. at 439.) She was to be started on steroids. (Id. at 436.)

On October 20, she went to the emergency room with complaints of pain in her right hip and foot. (Id. at 405-08, 459-60.) X-rays were normal. (Id. at 407-08, 432-34.) Three days later, she requested that Dr. Harrison refer her to a foot specialist because there were times when she could "hardly walk." (Id. at 414.)

November x-rays of her left writs revealed no fracture or dislocation. (Id. at 430-31.) There was a "mild widening of the scapholunate interval." (Id. at 430.) It was recommended that an orthopedic consultation be considered. (Id.)

On January 21, 2009, Plaintiff consulted John J. O'Connor, M.D., for complaints of a sinus infection. (Id. at 541.) Her current medications included Lexapro, [12] amitriptyline, [13] Premarin (for hormone replacement[14]), Novolin R, and Novolin N. (Id.) She was diagnosed with an upper respiratory infection and sinusitis and prescribed Amoxil (penicillin). (Id.)

Four days later, Plaintiff went to Pike County Memorial Hospital ("PCMH"), reporting that her sinus infection was unrelieved by the earlier-prescribed antibiotics. (Id. at 523-32.) Chest x-rays were normal. (Id. at 530.) She was diagnosed with chronic bronchitis, tobacco abuse, and acute sinusitis. (Id. at 526.) She was told to stop taking the amoxicillin and start taking Cipro (an antibiotic), stop smoking, and take Phenengran with codeine as needed for any pain caused by coughing. (Id. at 527, 532.) She was to follow-up with Dr. O'Connor if she was not better in four to five days. (Id. at 532.)

In February, Plaintiff went to the Pike County Health Department clinic and met with Peggy Summers, R.N., F.N.P. (Id. at 468-70, 473, 483-85.) Plaintiff reported she had been diagnosed with diabetes seven years earlier. (Id. at 469, 483.) She also reported that she occasionally skipped lunch when she was out hunting or fishing. (Id. at 483.) She was very depressed, had financial worries, had pain in her right hip, and had headaches. (Id. at 468.) Her dosages of Celexa and insulin were increased; Ultram[15] was prescribed for her pain. (Id.)

In March, Plaintiff went to the PCMH emergency room for a worsening migraine that had begun that morning. (Id. at 517-22.) Plaintiff was treated with medication and discharged. (Id.) Her home medications included citalopram, [16] amitriptyline, Novolin R, and Novolin N. (Id. at 521.)

In April, Plaintiff met with Ms. Summers and a fitness trainer. (Id. at 465-67, 473, 486-91.) Plaintiff reported feeling depressed and worried about her finances. (Id. at 465.) Her right hip was very painful. (Id.) On a PHQ-9[17] questionnaire, she responded that, over the past two weeks, she had trouble concentrating for less than several days. (Id. at 467.) She also responded that, during that same period, she thought she would be better off dead almost every day. (Id.) Her dosage of Celexa was increased; her prescription for Ultram was renewed. (Id. at 465.) She was also referred to social services. (Id. at 465, 473.) The next day, a social worker met with Plaintiff at her house. (Id. at 471-72.) Most of their conversation focused on Plaintiff's household dynamics. (Id. at 471.) The social worker opined that, although Plaintiff had "some depression issues, " she "thrive[d] on chaos and controversy." (Id. at 472.) Plaintiff was given a referral to a counselor. (Id.)

Plaintiff returned to the PCMH emergency room in May after being hit in the head with a rock that flew up when she was using a weed-eater. (Id. at 639-47.) Dermabound skin glue was applied to the abrasion on her scalp, and she was discharged. (Id. at 645.)

In June, Plaintiff told Ms. Summers that she was "[d]oing fairly well on Celexa." (Id. at 653.)

Plaintiff was seen on July 14 at the Hannibal Regional Hospital emergency room for complaints of right arm and leg pain. (Id. at 501-13.) The leg pain had begun twelve hours earlier and was sharp, aggravated by walking and touch, and alleviated by lying down. (Id. at 501.) The arm pain had begun five years earlier and was dull, aggravated by touch and movement, and alleviated by nothing. (Id.) She felt like she was going to get a migraine headache. (Id. at 502.) She denied joint pain or swelling. (Id.) On examination, she had pain in her feet with and without palpation. (Id. at 503.) She also had "some pain" in her hands, but was able to grip the rail and use her hands without apparent pain. (Id.) She was alert and oriented to time, person, and place. (Id.) Plaintiff was given intravenous Benadryl and Compazine, prescribed Neurontin, [18] and discharged within two hours. (Id. at 503, 506, 512.)

Two weeks later, Plaintiff went to PCMH emergency room, complaining of numbness in her right arm that had become worse during the past two days. (Id. at 613-25.) The dosage of gabapentin, see note 18, supra, was increased. (Id. at 618, 622.) She was discharged with instructions to follow up with Beth Brothers, R.N., F.N.P., in one week. (Id. at 619.)

Plaintiff returned to the PCMH emergency room on August 4 after she became weak when her blood sugar level dropped to 74. (Id. at 603-12.) She would not respond to her family or to emergency room staff. (Id. at 610.) Her family "explain[ed] that [Plaintiff] [was] to go to court in [the] morning [and] [would] probably get arrested if she show[ed] vitals remain stable."[19] (Id. at 611.) After her blood sugar levels increased to 123, Plaintiff was discharged with instructions to continue on her current treatment and to stop smoking. (Id. at 608, 611, 612.)

The next day, Plaintiff met with Ms. Summers. (Id. at 652.) Her dosage of Lantus, an insulin, was increased; her dosage of Celexa was decreased. (Id.) She was to check her blood sugar levels twice a day. (Id.) Her fitness goal was to walk continuously for fifteen to twenty minutes three to four times a day. (Id.)

Five days later, Plaintiff went to the PCMH emergency room with complaints of left shoulder pain after shoveling dirt that weekend. (Id. at 593-602.) X-rays were normal. (Id. at 601.) She was diagnosed with left shoulder strain and discharged with prescriptions for Flexeril[20] and Vicodin. (Id. at 598, 602.) She was also to take Aleve and follow up with Ms. Brothers if not better in four to five days. (Id. at 602.)

Plaintiff returned the next day, August 11, with complaints of pain in her left hand after she dropped a concrete block on it when getting something out of a deep freezer. (Id. at 578-92.) The hand was slightly swollen. (Id. at 587.) X-rays of the hand and wrist were normal. (Id. at 589-90.) Her request for pain medication was declined; she was to take Tylenol. (Id. at 588.) Her hand was wrapped in an Ace bandage, which she was to keep on until she was pain-free. (Id. at 586, 588, 592.)

On September 30, Plaintiff was seen in the PCMH emergency room for pain in her right arm from her elbow to her fingertips. (Id. at 569-79.) She had been taking Neurontin, but was still having pain. (Id. at 571.) And, she was dropping things held in her right hand. (Id.) The physician checked with Wal-Mart and was informed that Plaintiff had not had a Neurontin prescription filled for over two and one-half months. (Id.) The physician also learned from Dr. Holcomb, in Ms. Brothers' practice, that Plaintiff was on a "no see" list because she was "doctor hopping." (Id. at 571, 574.) On examination, Plaintiff initially had a weak grip with her right hand, but when surprised, her grip was strong. (Id. at 572.) She had a steady gait. (Id. at 576.) Her discharge diagnosis was diabetic neuropathy - noncompliance. (Id. at 575.) She was told to take two Aleve three times a day with food and to follow up with a doctor of her choice. (Id. at 575, 578.)

In October, Plaintiff complained to Ms. Summers of tingling and numbness in her right arm that had begun early that morning. (Id. at 651.)

Plaintiff was treated on November 18 at the PCMH emergency room for a migraine. (Id. at 559-68.)

She was seen there again the next day, complaining of a headache that had begun two days earlier and that caused occasional blurred vision and dry heaving. (Id. at 550-58.) She had a steady gait, but appeared "very unkempt." (Id. at 557.) Plaintiff was given Motrin and Benadryl and ...


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