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Schade v. Colvin

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

August 22, 2014

TRACY L. SCHADE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


THOMAS C. MUMMERT, III, Magistrate Judge.

This 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 Tracy L. Schade (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, is before the undersigned by written consent of the parties. See 28 U.S.C § 636(c).

Procedural History

Plaintiff applied for DIB and SSI in February 2010, alleging she was disabled as of May 1, 2009, because of asthma and fibromyalgia. (R.[1] at 124-34, 166.) Her applications were denied initially and after an April 2011 hearing before Administrative Law Judge ("ALJ") Bradley Hanan. (Id. at 16-28, 33-71, 74-81.) After reviewing additional evidence, the Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-5.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and Brenda G. Young, C.R.C., [2] testified at the administrative hearing.

Plaintiff was thirty-eight years old at the time of the hearing. (Id. at 40.) She is 5 feet tall and weighs 223 pounds. (Id.) She is divorced and has three children, ages twenty-two, thirteen, and twelve. (Id. at 40-41.) She has custody of her two youngest children. (Id. at 41.) She lives with them, her oldest child (a son), and her boyfriend. (Id.)

Plaintiff completed the eighth grade. (Id.) She was not in special education. (Id. at 42.)

She has a current driver's license and has no trouble driving. (Id. at 41.)

Plaintiff testified that she had tried returning to work in October 2009 as a housekeeper, but could not continue because she was sick. (Id. at 42, 46.) She did not apply for unemployment benefits. (Id. at 42.)

Plaintiff further testified that she has good days and bad days with her asthma. (Id. at 53.) On a good day, she can function without becoming tired or short of breath. (Id.) On a bad day, she is "wheezy" and short of breath. (Id. at 53, 54.) Walking from one end of the house to another causes her to be short of breath. (Id. at 54.) She is limited in what she can do physically. (Id.) She has approximately two good days a week and the rest are bad. (Id. at 53.) She uses a nebulizer at least twice a day. (Id. at 54.) On a bad day, she uses it every three to four hours. (Id.) Each nebulizer treatment takes approximately fifteen minutes. (Id. at 55.) The treatments generally give her immediate relief and cause side effects of shakiness and "jitteriness." (Id.) These effects last approximately forty-five minutes. (Id.)

Plaintiff takes prednisone every day. (Id. at 56.) It causes weight gain. (Id.)

Plaintiff is also being treated for fibromyalgia. (Id. at 57.) The symptoms include muscle and joint pain. (Id. at 58.) She is "very sore and sensitive to the touch." (Id.) Her thighs and chest are affected the most; her arms are sometimes affected. (Id.) Her "back is really bad." (Id.) She cannot sit for longer than forty-five minutes without her legs going numb. (Id. at 58-59.) She does not have any difficulty standing. (Id. at 59.) If, however, her back and thighs are bothering her, she has difficulty standing up and has to do so slowly. (Id.) She has carpal tunnel syndrome and sleeps with braces on her hands. (Id. at 60.) She is receiving no other treatment for it. (Id.) She is able to button her shirts, tie her shoes, and zip up a zipper. (Id. at 63.) She has migraines at least twice a week. (Id. at 61-62.) The pain is "very, very intense." (Id. at 62.) Light and sound bother her; sometimes, she vomits. (Id.) The migraines last all day. (Id.)

On a daily basis, she gets up, gets her children ready for school, either gets them on the bus or takes them to school, comes home, sits and relaxes, tries to do dishes, and tries to vacuum. (Id. at 56.) She cannot do either chore for long without needing to take a break every ten to fifteen minutes. (Id. at 56-57.) Her two daughters have started to help her with the chores. (Id. at 57.)

Plaintiff has Medicaid, as do her children. (Id. at 42-43.)

Plaintiff testified that she lost several jobs because of her asthma. (Id. at 62.)

Ms. Young, testifying without objection as a vocational expert ("VE"), was asked to assume a hypothetical individual of Plaintiff's age, education, and work experience who is limited to light exertional work at most; who cannot climb ladders, ropes, or scaffolds; who can only occasionally climb ramps and stairs; and who can occasionally stoop, kneel, crouch, and crawl. (Id. at 63, 64.) Also, this individual should avoid moderate exposure to airborne irritants and extreme cold and vibrations, and should avoid all exposure to operationally controlled moving machinery and to hazardous machinery. (Id. at 64.) Asked if this individual can perform any of Plaintiff's past relevant work, the VE replied that she cannot as Plaintiff performed it. (Id.) She can perform the job of cashier in the variety of work settings she worked at that job as defined in the Dictionary of Occupational Titles ("DOT"). (Id. at 64-65.) If this hypothetical individual is limited to moderate exposure to airborne irritants, the VE's answer would not change. (Id. at 65.)

If the hypothetical individual is limited to sedentary work, Plaintiff's past relevant work would be eliminated as she performed it and as it is generally performed. (Id.) There are, however, other jobs that this individual can perform. (Id. at 65-66.) For instance, there are jobs in telemarketing, cashier positions at the sedentary level, and small products assembly jobs. (Id. at 66.) These jobs exist in significant numbers in the national and state economies. (Id.)

If the hypothetical individual is limited to lifting no more than five pounds occasionally and cannot stand or walk for longer than ten minutes at a time, there are no jobs the individual can perform. (Id. at 67-69.) If the individual needs to use a nebulizer every three to four hours and cannot do so only on scheduled breaks, she cannot sustain employment. (Id. at 70.)

The VE stated that her testimony is consistent with the DOT or, when not, she had explained the discrepancy. (Id. at 69.)

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 she had stopped working on January 5, 2010, because of her condition. (Id. at 166.) Her current medications included Ability (for anxiety and depression), Synthroid (for hypothyroidism), warfarin (to prevent blood clots), and Wellbutrin (for depression). (Id. at 167.)

Plaintiff also completed a Function Report. (Id. at 183-90.) With her boyfriend's help, she cares for her two youngest children, three dogs, and a bird. (Id. at 184.) She sometimes has difficulties sleeping when her chest is tight and she is wheezing and coughing. (Id.) Occasionally, she has difficulty remembering if she has taken her medication. (Id. at 185.) She prepares three meals a day; the length of time they require varies between five minutes and two hours depending on what she is cooking. (Id.) It takes her all day to do the laundry and, sometimes, two days to clean the house. (Id.) She shops for groceries and other items once or twice a week. (Id. at 186.) She uses a cart to lean on. (Id.) Her hobbies include reading, working puzzles, and watching television. (Id. at 187.) How well she does them depends on how she is feeling. (Id.) She goes to church on Sunday and visits her sister approximately every other week. (Id.) Her impairments adversely affect her abilities to lift, squat, bend, stand, reach, walk, kneel, talk, hear, climb stairs, complete tasks, and use her hands. (Id. at 188.) She cannot walk farther than a quarter or half a block before having to stop and rest for ten minutes. (Id.) She can pay attention for a long time. (Id.) She can follow written or spoken instructions "pretty well." (Id.) How well she handles stress depends on what kind of day she is having; she handles changes in routine okay. (Id. at 189.) Her asthma has caused her to lose several jobs because it causes her to miss too many days of work. (Id. at 190.) Because of her asthma and fibromyalgia, she suffers from depression. (Id.)

Plaintiff's sister completed a Function Report on Plaintiff's behalf. (Id. at 176-82.) Her answers generally mirrored Plaintiff's. (Id.)

A list of Plaintiff's annual earnings for the years from 1993 through 2009, inclusive, identified her highest annual earnings as being $12, 035, [3] in 1996. (Id. at 135.) In four years - 1993, 1998, 2002, and 2004 - she earned less than $1, 000. (Id.) In five of the twelve remaining years, her earnings were between $5, 000 and $10, 000. (Id.) Other than in 1996, her earnings never exceeded $10, 000. (Id.) In the years from 1993 to 2007, inclusive, Plaintiff worked for approximately thirty-four different employers. (Id. at 138-43.)

The relevant medical records before the ALJ are summarized below in chronological order.

Plaintiff went to the emergency room at St. Joseph Health Center in September 2002 for a non-productive cough for the past twenty-four hours, an acute onset of shortness of breath, and wheezing that had begun that morning. (Id. at 218-40.) She was diagnosed with acute dyspnea (shortness of breath) and an acute exacerbation of asthma, treated with medication, and discharged with instructions to call her primary care physician and with a release to return to work the next day. (Id. at 226, 228, 234.)

In February 2004, Plaintiff consulted James Wedner, M.D., about an exacerbation of her asthma that had begun a few days earlier. (Id. at 268-69.) She and the rest of her family had been congested, possibly due to a flooded HVAC system. (Id. at 268.) She was diagnosed with acute sinusitis and prescribed an antibiotic. (Id.) She was to return in one month. (Id.)

Plaintiff returned in three months, seeing Dr. Wedner for exacerbation of her asthma that had begun over the weekend. (Id. at 266-67.) She was prescribed a steroid and antibiotics and was to return in a few weeks if she was not better and in three months if she was. (Id. at 266.)

Four months later, in September, Plaintiff consulted Gabriel Usry, M.D., about back pain that was occurring four times a week, each time lasting one day. (Id. at 519-20.) The pain had begun five years earlier and radiated to her right leg. (Id. at 519.) She had not tried any medication. (Id.) X-rays revealed mild degenerative disc disease at L4/L5 and L5/S1. (Id. at 520.) Her asthma was stable. (Id.) Plaintiff was prescribed Motrin for the back pain and encouraged to lose weight and to exercise. (Id.) She then weighed 197 pounds. (Id. at 519.)

A few days later, Plaintiff saw Dr. Wedner for a productive cough, nasal congestion, sore throat, facial pressure, and chest tightness for the past three days. (Id. at 264-65.) Also, she had lost her voice. (Id. at 264.) She was diagnosed with an asthma exacerbation and sinusitis and prescribed steroids and antibiotics. (Id.) She was to return in one month for a follow-up visit. (Id.)

In October, Plaintiff saw Dr. Usry for complaints of low back pain and worsening depression. (Id. at 517-18.) Her depression had been improving until her daughter was diagnosed with bipolar disorder. (Id. at 517.) Her dosage of Prozac (an antidepressant) was increased; her back pain was to be monitored. (Id. at 518.)

Plaintiff next saw Dr. Wedner in February 2005, complaining of a consistent cough and facial pain and pressure. (Id. at 263.) On examination, her lungs were clear to percussion and auscultation. (Id.) He opined that Plaintiff had sinusitis and prescribed a course of steroids and antibiotics. (Id.) She was to return in three weeks. (Id.)

In August, she saw Sarah Cole, D.O., about her hypothyroidism. (Id. at 507-10.)

In November, Plaintiff consulted Mona Abousleman, M.D., a doctor in Dr. Cole's practice, about her complaints of muscle and rib pain after a fall when getting out of the tub. (Id. at 504-06.) X-rays of her thoracic spine were normal. (Id. at 506.) A few weeks later, Plaintiff saw Dr. Cole, complaining of fatigue and back pain from the fall. (Id. at 501-03.) Her hypothyroidism was stable. (Id. at 501.) She was off all medication. (Id.) She was sleeping six to eight hours a night and taking a ninety-minute nap before work. (Id.) Her depression was also described as stable. (Id. at 502.) She was to continue taking Prozac and was prescribed another antidepressant, paroxetine. (Id.) She was also prescribed Zantac for gastroesophageal reflux disease ("GERD"). (Id.)

Plaintiff was seen by Dr. Wedner in December after being seen in the emergency room ten days earlier for her complaints of increased shortness of breath following the November accident. (Id. at 261.) She was continuing to have wheezing, coughing, and shortness of breath. (Id.) After reviewing x-rays films, Dr. Wedner doubted that Plaintiff had fractured a rib. (Id.) He prescribed her a five-day course of steroids and continued her on her current medications. (Id.) She was to return in approximately one month. (Id.)

In February 2006, Plaintiff saw Dr. Cole for abdominal pain for the past two weeks associated with intermittent vomiting for the past five days. (Id. at 497-98.) She was diagnosed with irritable bowel syndrome, prescribed Levsin, and referred to a gastroenterologist, Dr. Ruben R. Aymerich. (Id. at 498.)

Plaintiff saw Dr. Wedner later that month for an exacerbation of her asthma caused by dusting a large, five-story staircase. (Id. at 259-60.) He noted that she did not want to, and did not, wear a mask. (Id. at 259.) He prescribed her a course of steroids. (Id.) She was to return in one month for a reevaluation. (Id.)

After having a colonoscopy in March Plaintiff was diagnosed with probable irritable bowel syndrome. (Id. at 494-96.)

In July, Plaintiff returned to Dr. Cole for treatment of abdominal pain, diarrhea, and constipation. (Id. at 489-91.) A subsequent ultrasound of her pelvis was normal. (Id. at 488.)

In November, she was seen by Dr. Cole for sinus congestion and low back pain and for a refill of Flexeril and Vicodin (for her low back pain), Levoxyl (for her hypothyroidism), and Zyrtec. (Id. at 485-87.)

In January 2007, Plaintiff complained to Dr. Cole of chest pain that had begun in the past few months; abdominal pain that had begun "years ago" and was associated with a heavy meal, nausea, and stress; and respiratory problems, including sinus congestion and a sore throat, that had begun approximately six days ago. (Id. at 480-84.) She did not have any chest pain, shortness of breath, or wheezing. (Id. at 480.) She was to be tested for hypothyroidism, prescribed over-the-counter medications for her acute sinusitis, prescribed Pepcid for her reflux esophagitis; and prescribed Zithromax, an antibiotic, and prednisone for her asthma. (Id. at 481-82.)

In February, Plaintiff complained to Dr. Cole of worsening depression and was restarted on Prozac.[4] (Id. at 478-79.)

Plaintiff underwent pulmonary function tests on March 15. (Id. at 247-48.) The tests revealed a minimal obstructive defect that did not significantly improve after the administration of an aerosolized bronchodilator. (Id. at 247-48.) There was a combined obstructive and restrictive ventilatory defect. (Id. at 248.) The physician, Peter Toteur, M.D., opined that Plaintiff's obesity might be the cause of her decreased expiratory release volume ("ERV"). (Id.)

When seeing Plaintiff four days later, Dr. Cole "strongly encouraged" her to lose weight and prescribed her prednisone ...

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