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Alic v. Colvin

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

August 8, 2014

RABIJA ALIC, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


THOMAS C. MUMMERT, III, Magistrate Judge.

This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application of Rabija Alic for disability insurance benefits ("DIB") under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, is before the undersigned for a final disposition pursuant to the written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Ms. Alic (Plaintiff) applied for DIB in May 2010, alleging she was disabled since March 27 of that year by low back pain radiating to the right leg, chest pain and a pacemaker, liver damage, and an inability to stand, walk, or sit for long without pain. (R.[1] at 127.) Her application was denied on initial review and following a November 2011 hearing before Administrative Law Judge ("ALJ") James K. Steitz. (Id. at 6-17, 22-33, 40-41, 44-48.) 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, testified at the administrative hearing.[2]

Plaintiff, then forty-nine years old, testified that she was born in Bosnia and came to the United States in 2001. (Id. at 25.) She lives in a second-floor apartment with her son, daughter-in-law, and granddaughter. (Id.) Because of her back, she has difficulty climbing the stairs. (Id. at 26.) She had eight years of school, all in Bosnia. (Id.) She can read and write in Bosnian, but not in English. (Id. at 26-27.) Her daughter-in-law does the household chores, including the cooking and laundry. (Id. at 32.)

Plaintiff testified that she can "probably" lift a gallon of milk. (Id. at 27.) She cannot stand for longer than twenty minutes before having to sit down and cannot sit for longer than fifteen minutes before having to change positions. (Id.) She cannot walk for longer than fifteen minutes before having to stop. (Id.) These needs to change position are because of her back pain and her pacemaker, which was installed in 2009. (Id.) She cannot dress herself without help, particularly when putting on pants and shoes. (Id.)

The pain in her back radiates down her right leg "[m]any times a day." (Id. at 28.) Her pacemaker "engage[s]" sometimes three times a day and sometimes more frequently. (Id. at 29.) When it does, she has to be silent and wait. (Id.)

Because of problems with her left shoulder, Plaintiff cannot lift her arm up. (Id.) Because of problems with her right knee, she uses a cane all the time. (Id.)

Also, Plaintiff suffers from depression. (Id. at 30.) She lost thirty family members during the war, including her brother and sister. (Id.) Dreams about the war keep her from sleeping all night. (Id.) She cries two or three times a day. (Id.) When she cries, she prefers to be by herself. (Id. at 31.) Her only hobby is watching Bosnian channels on television. (Id.) She has auditory hallucinations of hearing people calling for her to help them. (Id.)

Medical and Other Records Before the ALJ

The documentary record before the ALJ includes documents generated pursuant to Plaintiff's application, records from health care providers, and assessments of her mental and physical functional capacities.

On a Disability Report, Plaintiff stated that she stopped working because of her condition on March 27, 2010. (Id. at 127.) She did not make any changes in her work activity. (Id.)

Asked on a Function Report, to describe what she does during the day, Plaintiff explained that she stays inside most of the day, lying or sitting on her couch. (Id. at 150.) She tries to go with her son when he goes grocery shopping and tries to walk if it is not too hot. (Id.) Pain prevents her from sleeping well. (Id. at 151.) She does not have any problem with personal grooming tasks. (Id.) Her son always reminds her about doctors appointments or to take her medication. (Id. at 152.) Her impairments adversely affect her abilities to lift, squat, bend, stand, reach, walk, sit, kneel, remember, concentrate, understand, climb stairs, complete tasks, follow instructions, and use her hands. (Id. at 155.) She can walk for fifty meters before having to stop and rest for ten minutes. (Id.) She does not handle stress or changes in routine well. (Id. at 156.) She uses a walker. (Id.)

On a Work History Report, Plaintiff described her hotel housekeeping job as requiring that she frequently lift twenty-five pounds, occasionally lift fifty pounds, kneel or crouch for five hours, and stoop, e.g. bend down and forward at the waist, for five hours. (Id. at 143.)

After the initial denial of her application, Plaintiff completed a Disability Report - Appeal form, explaining that, since completing the original form, she had become depressed and was seeing a psychiatrist. (Id. at 163.) Her other impairments were worse. (Id.)

On an earnings report for the years from 2001 to 2009, inclusive, her lowest annual earnings were $2, 913, in 2001; her highest were $25, 737, in 2008. (Id. at 111.) Her earnings increased every year until 2009, when they fell to $23, 508. (Id.) Plaintiff listed two jobs on a Work History Report, the longest of which was as a housekeeper for the Frontenac Hilton. (Id. at 118, 142.) This job required that she frequently lift twenty-five pounds and occasionally lift fifty pounds. (Id. at 143.) She had to walk for two hours, climb for one, and stoop, kneel, or crouch for five hours. (Id.)

As of August 2010, a list of her medications named sumatriptan (for headaches), oxycodone (for pain), metoprolol (for high blood pressure), hydrocholorothiazide (HCTZ, also for high blood pressure), ranitidine (for gastroesophageal reflux disease), and Cymbalta (for depression). (Id. at 169.) All were prescribed by Dr. Keric. (Id.)

The medical records begin in October 2006 when, on the referral of Edina Karhodzic, M.D., Plaintiff was seen by an internist, Bruce R. Bacon, M.D., who scheduled her for an endoscopy and lab work.[3] (Id. at 412-14, 444-48.)

In January 2007, Dr. Bacon noted that Plaintiff had had an upper endoscopy which revealed gastroesophageal reflux disease ("GERD"), for which she was taking omeprazole (a generic form of Prilosec). (Id. at 408-10.) Lab work had shown her to be iron deficient and to have hepatitis B. (Id. at 408.) A computed tomography ("CT") scan of her abdomen was, with the exception of a left hepatic lobe cyst, unremarkable. (Id. at 449.)

In May, Dr. Bacon noted that a colonoscopy was normal; Plaintiff had no new complaints. (Id. at 402-04.) Dr. Bacon started her on iron supplements. (Id. at 402.)

In September, Plaintiff told Dr. Bacon that she was feeling better since she had started taking the iron supplements. (Id. at 399-401, 429.) She had had some recent chest pain, but stress test performed several years earlier when she was seeing a cardiologist had been negative. (Id. at 399, 401.) Tests revealed she was still iron deficient; she was to continue taking the iron supplements for another three to four months. (Id. at 399.)

In March 2008, Plaintiff reported to Dr. Bacon that she was having symptoms of dyspepsia (painful or difficult digestion) for the past month. (Id. at 396, 422-28) Her prescription for Prilosec, which had been helpful, had run out. (Id. at 396, 397.) She had stopped taking her iron supplements. (Id. at 396.) She was to continue taking the supplements. (Id.) Her prescription for Prilosec was renewed. (Id.),

Plaintiff consulted Emir Keric, M.D., as a new patient in April. (Id. at 368-69, 384-85.) She complained of swelling in her legs for more than one year, GERD, and low back and stomach pain. (Id. at 368.) Also, she had a history of a gastric ulcer and hepatitis B. (Id. at 369.) She was prescribed medications for the GERD and the pain. (Id.)

When Plaintiff next saw Dr. Keric, in June, she reported that her stomach pain was less, but she had pain in her left leg. (Id. at 370-71.) She was prescribed Celebrex and was to return in three months for lab work. (Id. at 371.)

Plaintiff saw Dr. Bacon again on September 8. (Id. at 393-95, 419-21.) She complained of heartburn but was not taking any proton pump inhibitors ("PPIs") to block the production of gastric acid. (Id. at 394.) Otherwise, she felt well. (Id.) Dr. Bacon predicted that tests would show that she had "a very low [iron] level." (Id. at 393.) Plaintiff informed him she was going to resume taking iron supplements. (Id.) And, she was given a prescription for Protonix, a PPI. (Id.)

In September, Plaintiff complained to Dr. Keric of jaw pain, but reported that her leg pain was better. (Id. at 372-73.) Her pain was "much better" when she saw him the next month. (Id. at 374-75.)

Plaintiff saw Dr. Keric again in December, reporting that the pain was worse in her left foot. (Id. at 376-77, 380-81.) X-rays of her lumbar spine revealed levoscoliosis, multilevel degenerative disc disease, spina bifida occulta from T12 through L2, and a possible unilateral left L5 pars defect. (Id. at 380-81.) She was prescribed Vicodin. (Id. at 377.)

On January 2, 2009, Plaintiff consulted Dr. Keric about pain her low back that radiated from her left to her right. (Id. at 378-79.) He diagnosed her with degenerative joint disease of the spine. (Id. at 379.)

Ten days later, she saw Naseem A. Shekhani, M.D., for complaints of low back pain of six to seven months' duration; the pain had increased during the past few weeks. (Id. at 332-33, 388.) The pain was aggravated by activity and alleviated by rest. (Id. at 333.) It was a ten on a ten-point scale.[4] (Id.) She sometimes had difficulty walking. (Id.) She also had occasional numbness in her right lower extremity, which was worse with activity, and left heel and shoulder pain. (Id.) On examination, the range of motion in her neck was normal, but was decreased in her spine. (Id. at 332.) Straight leg raises were positive on the left and negative on the right.[5] (Id.) Her left heel was tender to the touch. (Id.) She had an antalgic gait. (Id.) Dr. Shekhani's diagnosis was sciatica, left rotator cuff syndrome, left plantar fasciitis, and antalgic gait. (Id. at 332.) He prescribed home exercises and recommended a magnetic resonance imaging ("MRI") of her spine if approved by insurance. (Id.) He also discussed with her a possible injection in her plantar fascia and left shoulder, if necessary. (Id.) The MRI revealed facet degenerative arthropathy at L5-S1 and mild broad based disc protrusion with facet hypertrophy at L4-L5. (Id. at 388.)

Plaintiff saw Dr. Shekhani again on January 23. (Id. at 331.) Her left leg hurt more than her right. (Id.) On examination, she was as before. (Id.) She was given trigger point injections at L4 ...

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