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Hale v. Colvin

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

August 25, 2014

CINDY R. HALE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the Court for review of an adverse ruling by the Social Security Administration.

I. Procedural History

On November 26, 2007, plaintiff Cindy Hale filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et. seq., and for supplemental security income (SSI), Title XVI, 42 U.S.C. §§ 1381 et seq., (Tr. 277-290), with an alleged onset date of October 19, 2007. After plaintiff's application was denied on initial consideration (Tr. 137-141), she requested a hearing from an Administrative Law Judge (ALJ). See Tr. 143-147, 149-156, 177-183 (acknowledging request for hearing).

Plaintiff and counsel appeared for a hearing on November 5, 2009. (Tr. 75-99) The ALJ issued a decision on December 9, 2009 denying plaintiff's application. (Tr. 103-121). The Appeals Council granted plaintiff's request for review. On March 9, 2011, the Appeals Council vacated the decision and remanded with instructions. (Tr. 129-133).

Plaintiff and counsel appeared for a second hearing on September 29, 2011. (Tr. 38-74). The ALJ issued a decision on February 24, 2012 denying plaintiff's application. (Tr. 12-37), and the Appeals Council denied plaintiff's request for review on January 23, 2013. (Tr. 1-6). Accordingly, this decision stands as the Commissioner's final decision.

II. Evidence Before the ALJ

A. Disability Application Documents

In her Disability Report (Tr. 351-358), plaintiff wrote that she was 5'1" tall and weighed 226 pounds. She listed her disabling conditions as an aneurysm and headaches. She wrote that these conditions cause her pain, fatigue, temporary driving restrictions, and an inability to lift heavy items. She listed her past employment as a retail cashier and stocker, cook, disc jockey, manager at a beauty supply store, phone operator, residential construction, and waitress. Plaintiff completed beauty school and three years of college.

In her Supplemental Questionnaire (Tr. 359-368), plaintiff listed her disabling conditions as an aneurysm, headaches, high blood pressure, and dizziness. Plaintiff wrote that her symptoms include pain in the "location of [her] surgery" and short term memory loss. She wrote that she experiences dizziness and sleepiness as the side effects of her medication. Plaintiff wrote that she lives by herself and cares for her 12-year-old child every other weekend. She stated that she is able to use a checkbook, complete a money order, count change, do laundry, clean dishes, make her bed, iron, grocery shop, go to the post office, watch television, listen to music, and read. Plaintiff wrote that because of her dizziness she is unable to vacuum or sweep, take out the trash, perform home repairs or car maintenance, mow the lawn, rake leaves, or garden. She stated that she is unable to sleep for more than four hours at a time, that she has trouble climbing the stairs to use her bathtub, that she is afraid to leave her home because she fears falling from dizziness, and that she has difficulties following written or verbal instructions because of memory loss. Plaintiff stated that she has problems getting along with other people because she is easily aggravated and has a short temper. Plaintiff described her average daily activities as eating, taking medication, watching television, doing laundry, and going to sleep. She stated that she has a valid driver's license and is able to drive.

In her Disability Report-Appeal (Tr. 390-395), plaintiff stated that since the initial report she had developed severe back and knee pain from degenerative arthritis, increased headaches and scalp pain, a fear of dying, extreme mood changes, an inability to sleep for more than three hours, and difficulty sitting or standing for more than 30 minutes at one time. She stated that her severe back pain prevents her from bathing, using the restroom, cooking, doing laundry, cleaning, combing her hair, and shopping for groceries.

B. Hearing on November 5, 2009

At the time of the hearing, plaintiff was 45 years old, 5'2" tall, and weighed 241 pounds. Plaintiff completed some college work and obtained a certificate in construction technology. (Tr. 80). Plaintiff testified that she drove to the hearing alone, but that she typically has someone with her when she drives because she tends to get lost. (Tr. 81). Plaintiff testified that her medication side effects include fatigue and lack of motivation. (Tr. 82). Plaintiff stated that subsequent to her alleged onset date, she worked as a hostess at a restaurant for two hours a day for four days a week. She stated that she was only employed there for one month because she was unable to do certain tasks and because they could not provide her with enough hours. (Tr. 82). After leaving that job, plaintiff visited a career center and researched possible employment, but did not submit any applications. (Tr. 83).

Plaintiff testified that she suffers from constant numbness in her right hand and pain in her back, neck, right leg and toes. (Tr. 83, 85). She testified that standing exacerbates her pain and that she can stand for about six minutes before needing to sit. (Tr. 85). Plaintiff testified that she has difficulty turning her head, reaching her arms over her head, and bending over. (Tr. 84). She stated that her mother cleans her house every two months, but that she is able to wash her own dishes, dust, do small loads of laundry, and cook simple meals. (Tr. 89).

Plaintiff testified to seeing a physical therapist who taught her stretching exercises that help alleviate her back pain. Plaintiff stated that she lies on her back and stretches at least five times per day for two to three minutes each time. (Tr. 86). Plaintiff testified that she has to use the restroom every hour and that because of this issue she wears a diaper or urinary pad. She stated that she also suffers from panic attacks three to four times a week and experiences nightmares several times each night. (Tr. 87-88). Plaintiff explained that she sleeps on and off for five hours per night and that she has trouble staying awake during the day. (Tr. 88). Plaintiff had keratitis in her right eye, but that issue had been resolved by the time of the hearing. (Tr. 90-91).

George H. Horne, M.S., a vocational expert, provided testimony regarding plaintiff's past work and current employment opportunities. (Tr. 93-98). Mr. Horne listed plaintiff's vocational history and classified each position as follows: beauty equipment supplies sales representative, light skilled work with a Specific Vocational Preparation (SVP) of 5;[1] house builder, medium skilled work with a SVP of 7;[2] cashier/checker, light to medium semi-skilled work with a SVP of 3;[3] and short order cook, light to medium semi-skilled work with a SVP of 3.

The ALJ asked Mr. Horne to assume that plaintiff was 43 to 46 years of age, that she had greater than a high school education, that she performed the jobs previously described, and that she had a history of a ruptured aneurysm, status post-clipping, headaches, post-traumatic stress disorder, generalized anxiety disorder, degenerative disc disease of the lumbar and cervical spine with a congenital fusion at cervical disk 3/4, obesity, stress and urge urinary incontinence, hyperlipidemia, high blood pressure, history of a fracture of the left fifth metatarsal, and filamentary keratitis. The ALJ asked Mr. Horne to further assume that plaintiff was restricted to performing only sedentary work, with a limitation of lifting and carrying up to 10 pounds occasionally, 5 pounds frequently, standing and walking up to 2 hours a day for no more than 30 minutes at a time, and sitting for 6 to 8 hours in an 8-hour work day, with a need to alternate sitting with standing at approximately 30-minute intervals. The ALJ added additional limitations, including: no exposure to significant heights, unguarded moving machinery, or extreme vibration, no commercial driving, a need for a climate controlled work environment, a need for simple repetitive job instructions, no contact with the public, and no more than minimal contact with coworkers and supervisors.

The ALJ then asked whether an individual with the above restrictions would be able to perform plaintiff's past work. Mr. Horne answered in the negative and explained that all of plaintiff's past work would require the individual to be on his or her feet the majority of the work day. Mr. Horne further testified that an individual with the above restrictions could perform the work of a final assembler (of which there are 1, 000 jobs in Missouri) and a table worker (of which there are 800 jobs in Missouri). However, Mr. Horne testified that these jobs would be precluded if the hypothetical individual needed to have access to a restroom on an hourly basis.

C. Hearing on September 29, 2011

At the start of the hearing, the ALJ briefly summarized plaintiff's medical record by listing obesity with lumbago and sciatica, bilateral upper extremity cervicalgia, and lumbar degenerative disc disease with arthrosis as plaintiff's diagnosed impairments. The ALJ noted that the medical record contained references to insomnia, persistent disorder of wakefulness, incontinence, possible cervical herniation, Baker's cyst of the right knee, generalized anxiety disorder, post-traumatic stress disorder, cervical degenerative disc disease, congenital cervical fusion, possible extrusion at 25F/8, and depressive disorder. (Tr. 41, 43).

Plaintiff testified to being 5'3" tall and weighing 248 pounds. She stated that her last job was as a restaurant hostess, but that she quit because it was too painful to walk. (Tr. 43). Plaintiff stated that she was not seeing a therapist for her depression because she had lost her Medicaid benefits. (Tr. 43-44). She stated that she saw a therapist on a weekly basis from 2009 to 2010, but she could not remember his name.[4] (Tr. 62-64). Plaintiff stated that she has difficulties turning her head and holding her arms out and that she has pain at her waistline that radiates down to her lower extremities. (Tr. 46-48). She stated that she no longer receives treatment for her pain because she has no Medicaid coverage. But, when she was receiving treatment she was given injections which allowed her to perform certain activities with less difficulty. (Tr. 47, 55). Plaintiff was told by her doctor to obtain a polysomnogram so that the cause of her insomnia could be determined. Plaintiff testified that she did not get the test because her "Medicaid ran out." (Tr. 48).

Plaintiff stated that she smokes a pack of cigarettes per day. Plaintiff explained that she used to smoke a pack and a half per day, but that she cut down because of the expense. (Tr. 49-50). Plaintiff stated that she does not drive and does not use an ambulatory device. (Tr. 50-51). She testified to having an aching pain in her right knee, but described it as the least of her problems. (Tr. 51-52). Plaintiff stated that her back pain is exacerbated by standing, walking, or bending. (Tr. 53-54). She stated that she used to take hydrocodone for the pain, but that her current treatment facility does not dispense narcotics. (Tr. 54). She testified that she has constant numbness and tingling in her hands and difficulties gripping items. (Tr. 55-56). Plaintiff stated that she has incontinence and that she urinates on herself when coughing, sneezing, bending over, or laughing. Plaintiff stated that she has to change her clothes or urinary pad approximately 15 times per day. (Tr. 56-57).

Plaintiff stated that she feels hopeless most of the time and that she frequently cries and does not want to be around others. Plaintiff stated that her pain exacerbates the depression and that at least three days a week she wakes up in extreme pain. (Tr. 58). She testified that she can tolerate sitting for 15 to 20 minutes before she needs to stand. (Tr. 59). Although she lives in a two-story townhouse, plaintiff typically sleeps downstairs because climbing the stairs causes pain in her lower back. (Tr. 60). Plaintiff stated that her mother and a friend clean her house. (Tr. 60-61). Plaintiff stated that on a typical day she reads, sleeps, and takes a bath. She stated that she has some problems concentrating when she reads and that she tries to avoid watching television because it makes her sleepy. (Tr. 61). Plaintiff stated that a friend takes her to the grocery store and that she uses a wheelchair while shopping. She is not involved in any activities outside of the home. (Tr. 62).

Terri Crawford, M. Ed., a vocational expert, provided testimony regarding plaintiff's past work and current employment opportunities. (Tr. 64-73). Ms. Crawford classified plaintiff's previous positions as follows: cook, light semi-skilled work with a SVP of 3; house builder, medium skilled work with an SVP of 7; and cashier II, light unskilled work with an SVP of 2. (Tr. 67-68).

The ALJ asked Ms. Crawford about the available employment opportunities for a hypothetical individual with the same vocational background as plaintiff who has the following limitations: overarching residual functional capacity for sedentary work; no reaching above the head bilaterally; decreased use of the neck by ten degrees in all directions; no bilateral pushing or pulling with the lower extremities; occasional bending, twisting and turning; no crawling or kneeling for competitive purposes; less than occasional stooping and squatting; occasional stair climbing; no climbing of ropes, ladders, or scaffolds; frequent gripping, grasping, wrist movements, handling, fingering, and feeling; no pushing or pulling of levers with the upper extremities bilaterally; no use of air or vibrating tools or motor vehicles; no work at unprotected heights; no work in extreme cold, heat or humidity; occasional contact with the public, co-workers, and supervisors; and a marked limitation in carrying out complex instructions. (Tr. 69-70).

Ms. Crawford stated that such an individual could not perform any of plaintiff's past work. However, she testified that the hypothetical individual could perform some sedentary, light unskilled work in the national economy, including production assembler (of which there are 750 jobs in Missouri); general clerk (of which there are 1, 200 jobs in Missouri); and electronics assembler (of which there are 1, 400 jobs in Missouri). (Tr.70).

The ALJ then asked about the available employment opportunities for the same hypothetical individual, but with an additional limitation that she have no contact with the public. Ms. Crawford stated that the general clerk job would be eliminated from the list of available employment, but that the hypothetical individual could perform the sedentary, medium unskilled work of a hand packager (of which there are 1, 200 jobs within the state of Missouri). (Tr. 70-71).

Ms. Crawford further testified that if the hypothetical individual was limited to only occasional handing, then that individual would not be able to perform any of the listed jobs or any other jobs in the national economy. (Tr. 71-72). Ms. Crawford also testified that if the individual could not perform activities within a schedule or maintain regular attendance or be punctual, then that individual would also not be able to perform any of the listed jobs or any other jobs in the national economy. (Tr. 72).

D. Medical Evidence

On October 15, 2007, plaintiff went to the emergency room at St. John's Regional Health Center with complaints of right eye pain. She was given an eye ointment, an oral antibiotic, and told to follow up with a ophthalmologist. (Tr. 575, 581-586). Plaintiff followed up with William Hecox, O.D., at the Walmart Vision Center who diagnosed her with filamentary keratitis. (Tr. 515).

On October 17, 2007, plaintiff went to the emergency room at St. John's with complaints of head pain, nausea, and vomiting. (Tr. 456-458, 469-70, 536-537). A head CT scan revealed a subarachnoid hemorrhage. (Tr. 459, 473, 538). Further testing revealed a right internal carotid aneurysm. (Tr. 471-472, 474-475, 539). On October 19, 2007, plaintiff underwent a craniotomy for clipping of the aneurysm. (Tr. 479-480, 544-545). Plaintiff was discharged in stable condition on October 29, 2007. (Tr. 489-490, 552). Discharge paperwork states that she was ...


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