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Orf v. Colvin

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

September 2, 2014

LAURIE ORF, 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 October 8, 2010, plaintiff Laurie Orf filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. ยงยง 401 et. seq. (Tr. 122-123). The application alleged that disability began on October 4, 2008. Plaintiff subsequently amended her alleged onset date to February 10, 2009. (Tr. 124). After the application was denied on initial consideration (Tr. 73-77), plaintiff requested a hearing from an Administrative Law Judge (ALJ). See Tr. 80-85 (acknowledging request for hearing).

Plaintiff and counsel appeared for a hearing on April 11, 2012. (Tr. 34-64). The ALJ issued a decision on June 11, 2012 denying plaintiff's application (Tr. 17-28), and the Appeals Council denied plaintiff's request for review on April 19, 2013. (Tr. 1-5). Accordingly, this decision stands as the Commissioner's final decision.

II. Evidence Before the ALJ

A. Disability Application Documents

Plaintiff's Disability Report listed her disabling conditions as "breaks in left foot, " arthritis, and depression. (Tr. 167). Plaintiff's medications included Citalopram[1] and Vicodin.[2] (Tr. 170). She listed her previous jobs as grocery stocker and landscaper. (Tr. 168). In her Disability Report on Appeal, plaintiff stated that her foot pain became worse on January 13, 2011 and that she is only able to walk short distances. (Tr. 174-175). She reported that migraines can sometimes keep her in bed for three consecutive days and that she has crying spells that can last for "hours." (Tr. 179).

Plaintiff's Function Report states that she lives in a house with her family. She reported that she typically remains in bed every day or sits on the couch with her left foot elevated. Plaintiff stated that she stays in a room with no light or noise, she is always tired, sleeps most of the day, and takes medication twice per day for headaches. (Tr. 155). Plaintiff reported that she is unable to walk without crutches, cannot drive, cook or perform household chores, and requires assistance when washing her hair. (Tr. 156-157). Plaintiff stated that she grocery shops and attends church once a week. (Tr. 158-159). Plaintiff reported that she is able to pay bills, count change, handle a savings account, use a checkbook, dress herself, bathe, shave, feed herself, and use the toilet without difficulty. (Tr. 158). Plaintiff listed her hobbies as sewing, reading, and crossword puzzles. (Tr. 159).

Plaintiff reported that she has difficulties lifting, squatting, bending, reaching, walking, kneeling, stair climbing, seeing, completing tasks, and remembering. (Tr. 160). Plaintiff stated that she does not handle stress well, does not like changes in routine, and that she once attempted to commit suicide. (Tr. 161). Plaintiff reported that she has blurry vision from her migraines and is often depressed. (Tr. 162).

B. Hearing on April 11, 2012

At the time of the hearing, plaintiff was 49 years old. She was 5'7" tall and weighed 250 pounds. (Tr. 40-41). Plaintiff completed the twelfth grade and lived with her fiance and two children, ages 23 and 18. (Tr. 53). Plaintiff testified that she has a driver's license, but does not drive because she experiences dizzy spells and blacks out one to two times per week. (Tr. 41).

Plaintiff stated that she was last employed in December 2010 when she worked as a shelf stocker at a grocery store, but she later remembered that she worked for one week in 2011 as a shelf stocker at Dollar General and for one day as a shelf stocker at a craft store. (Tr. 42-43). Prior to those jobs, plaintiff worked at Wal-Mart, also as a shelf stocker, for "a couple of years" and as a landscaper at a golf course for three years. (Tr. 43-44). Plaintiff testified that she left those jobs because of foot pain. (Tr. 42-45). Plaintiff stated that she also worked as a substitute cook at a school district for two years, but that she quit because she wanted full-time work. (Tr. 45). Plaintiff also testified that she operated a daycare in her home for two children in 2002. (Tr. 46). Plaintiff claimed that she is no longer able to work because she cannot walk for more than 10 or 15 minutes at one time. (Tr. 46-47).

Plaintiff stated that she requires a cane to ambulate and that she cannot sit for longer than 15 minutes if her foot is not elevated. (Tr. 46). Plaintiff stated that she has undergone numerous surgeries on her left foot due to fractures, but that her doctor cannot determine the cause of the breaks. (Tr. 47-48). At the time of hearing, plaintiff was not seeing a doctor because she could not afford health insurance and she was taking ibuprofen for her pain. Plaintiff stated that she elevates her foot at least twice each day for about an hour, which helps to alleviate pain. (Tr. 49).

Plaintiff stated that she suffers from depression and that in August of 2010 she attempted suicide because she felt bad for accidentally closing her truck door on her grandson. The child was not hospitalized or injured. At the time of the hearing, plaintiff was not seeing a doctor for her depression. (Tr. 50). Plaintiff stated that she has difficulties sleeping and has "crying spells" for at least one hour each week. Plaintiff stated that at least two days a week she feels depressed and stays in bed for six to eight hours. (Tr. 57-58). However, plaintiff stated that she has not contemplated suicide since her attempt in August 2010. (Tr. 57).

Plaintiff also testified to having trouble with memory and concentration. (Tr. 51). Plaintiff explained that she reads approximately five books per year, but that she has difficulty concentrating on the story. (Tr. 52). Plaintiff stated that when she talks to people she tends to stutter and her blood pressure rises. (Tr. 51). Plaintiff testified that, other than reading, she has no hobbies and she is unable to leave the house alone because she is forgetful. Plaintiff explained that the last time she went to the grocery store, she forgot where her truck was and had to call her fiance for help. (Tr. 53).

Plaintiff testified that she underwent surgery on her left foot for the first time on February 20, 2009. For six months after the surgery, plaintiff relied on a wheelchair and crutches to ambulate. Plaintiff testified that in May 2009 she underwent a second surgery to remove a "pin" from her left foot. (Tr. 54). Plaintiff had additional surgeries on her left foot on December 2009, September 2010, and May 2011. (Tr. 54-55). Plaintiff testified that she suffers from severe pain three to four times a week, which requires her to take ibuprofen and elevate her left foot. Plaintiff testified that at least once a week she has to stay in bed because she is unable to walk. (Tr. 56).

Carma A. Mitchell, M.S., a vocational expert, provided testimony regarding plaintiff's past work and employment opportunities. (Tr. 89, 90, 58-63). Ms. Mitchell listed plaintiff's vocational history and classified each position. Ms. Mitchell listed laborer of stores as unskilled, medium work, with a Specific Vocational Preparation (SVP)[3] of 2;[4] grounds caretaker as semi-skilled, medium work, with an SVP of 3;[5] child monitor (babysitting) as semi-skilled, medium work, with an SVP of 3; and school cook as skilled, light to medium work, with an SVP of 6.[6] Ms. Mitchell stated that plaintiff does not have any skills which are transferrable to the sedentary level. (Tr. 60).

The ALJ asked Ms. Mitchell whether a hypothetical individual of plaintiff's age, education, and past work experience, who is capable of performing at a sedentary exertional level, but who can only perform semi-skilled work or less, can never climb ramps, stairs, ladders, or scaffolds, can occasionally balance, stoop, kneel, crouch, or crawl, and who is required to avoid concentrated exposure to hazards, such as unprotected heights or machinery, could perform plaintiff's past work. Ms. Mitchell answered in the negative. (Tr. 60-61).

The ALJ then asked whether such a hypothetical individual would be able to perform any other work in the regional or national economies. Ms. Mitchell answered in the affirmative and testified that plaintiff could perform certain unskilled, sedentary jobs that have an SVP of 2, including: order clerk (of which there are 450 jobs within the state of Missouri); charge account clerk (of which there are 320 jobs within the state of Missouri), and call-out operator (of which there are 270 jobs within the state of Missouri). (Tr. 61).

The ALJ then asked whether the same hypothetical individual would be able to perform any of those jobs if that individual was required to elevate her leg up to 36 inches from the ground for one hour, two times per day. Ms. Mitchell answered in the negative and testified that there would be no other work in the regional or national economies that such an individual could perform. (Tr. 62). Ms. Mitchell confirmed that her opinions were consistent with the Dictionary of Occupational Titles (DOT).

Ms. Mitchell also testified that if the individual in the first hypothetical was unable to maintain persistence, concentration or pace for over 25 percent of the day or work week, such an individual would not be able to perform any job in the regional or national economies. (Tr. 62-63).

C. Medical Evidence

On February 10, 2009, plaintiff saw John M. Dailey, DPM, MBA, FACFAOM, at the Missouri Foot and Ankle Institute to establish care regarding her left foot. (Tr. 480-485). Plaintiff underwent a complete lower extremity physical examination. Plaintiff complained of multiple structural deformities with fractures, hammer toe, and discomfort along her medial column. Radiographs showed previous fracture sites in her left foot, as well as non-union and a deformed medial column. Plaintiff was instructed to obtain an MRI and vascular testing. Dr. Dailey recommended surgery after the MRI revealed several metatarsal fractures in various stages of healing and the beginning of Freiberg's Disease at the third metatarsal head. No issues were found with her right foot. (Tr. 1397).

On February 12, 2009, plaintiff saw her primary care physician, Maryam Naemi, D.O., for a pre-operative examination in order to clear her for left foot surgery. (Tr. 212-218). Plaintiff underwent lab work and an EKG. (Tr. 246-254). Plaintiff's problem list included hypothyroidism, carpal tunnel syndrome, migraine, and depression with anxiety. (Tr. 213-214).

On February 17, 2009, plaintiff returned to Dr. Dailey. Treatment notes state that the cause of plaintiff's fractures was unclear because testing revealed normal findings. (Tr. 475). On February 20, 2009, plaintiff underwent surgery on her left foot, which included correction of a bunion and fractured first metatarsal bone, resection of a non-union fracture, and insertion of a bone graft and external fixator. Plaintiff was placed in a cast after the procedure. (Tr. 471, 477, 542-543, 587-588, 611-613). Plaintiff's postoperative diagnoses included hallux valgus; metatarsus varus deformity; deformed first toe; fractured first metatarsal base with compression and shortening of the metatarsal; nonunion at the first metatarsal base; and contracted digits 2, 3, 4, and 5. (Tr. 611).

On February 23, 2009, plaintiff saw Dr. Dailey for her first postoperative visit. Removal of the cast revealed no signs of infection, no signs of dehiscence, minimal pain, minimal edema, and good results. Plaintiff was told to limit her activities and apply ice. (Tr. 470). On March 2, 2009, plaintiff presented for a second postoperative visit. Dr. Dailey expressed concern with edema and wrote that "it is obvious that she is either not using the ice or not propping [the left foot] up." Plaintiff did not report any pain. Dr. Dailey instructed plaintiff to use an electrical bone stimulator to help with the healing of her bone graft and to prevent non-union. (Tr. 467-468).

On March 9, 2009, plaintiff presented for a third postoperative visit. Plaintiff denied pain and had decreased edema. Dr. Dailey wrote that plaintiff was doing well overall with adequate surgical results. She was instructed to use the bone stimulator every day for a minimum of three hours per day. (Tr. 466). On March 16, 2009, Dr. Dailey noted that plaintiff was non-compliant with her post-surgery instructions to keep weight off her left foot. Dr. Dailey noted increased swelling and instructed plaintiff to keep her leg elevated. (Tr. 465). On March 17, 2009, Dr. Dailey completed a form for plaintiff's employer, stating that plaintiff would be unable to return to work until April 20, 2009. (Tr. 366-367).

On March 30, 2009, plaintiff presented to Dr. Dailey for a follow-up appointment. Dr. Dailey wrote that some of her lesser digits were still somewhat contracted, but that he would address that issue after plaintiff was healed from her surgery. Dr. Dailey instructed plaintiff to stay non-weight-bearing, apply ice, and continue with the bone stimulator. (Tr. 463). On the same day, Dr. Dailey completed a form, entitled "Physician's Statement of Functionality." (Tr. 363-364). Dr. Dailey listed plaintiff's diagnosis as "fracture with nonunion" and plaintiff's symptoms as "pain with deformity." Dr. Dailey reported that plaintiff was not taking any prescription medications and that she was expected to return to work on May 20, 2009. Dr. Dailey wrote that plaintiff could sit for 5 hours per day, but that she could not stand or walk in a general workplace environment. Dr. Dailey described plaintiff's progress as "improved."

On April 9, 2009 and April 20, 2009, plaintiff saw Dr. Dailey for additional postoperative follow-up appointments. Dr. Dailey noted that plaintiff was doing well with good surgical results. He wrote that once plaintiff showed adequate bone callous formation, he would allow her to start bearing weight and remove the external fixator. Although no infection was detected at the surgical site, Dr. Dailey prescribed two antibiotics. (Tr. 462). Dr. Dailey completed a form for plaintiff's employer, instructing that plaintiff was "100% non-weight-bearing." Plaintiff was restricted to "limited standing" and work days lasting no longer than four hours for four days per week. (Tr. 360, 362). On April 29, 2009, Dr. Dailey noted that plaintiff's external fixator was loose, which showed that she was not following his instructions that she be non-weightbearing. (Tr. 459).

On May 4, 2009, Dr. Dailey told plaintiff that he wanted to perform surgery on her left foot in order to remove the external fixator and to correct the "contracted lesser digits." (Tr. 457). This surgery was performed on May 8, 2009. (Tr. 452-453, 578). Plaintiff's postoperative diagnosis was listed as a fractured first metatarsal with nonunion; abscess fixator site medial column; external hardware with multiplane uses medial column; contracted and deformed digits 2, 3, 4, and 5; and hammer toes 2, 3, 5, and 5. (Tr. 608-610).

On May 11, 2009, plaintiff returned to Dr. Daily for a postoperative visit. No complications or issues were noted. (Tr. 451). On May 26, 2009, plaintiff presented to Dr. Dailey for removal of the sutures and superficial fixators. Dr. Dailey instructed plaintiff to continue non-weight-bearing and use the bone stimulator. (Tr. 449-450). On May 28, 2009, plaintiff reported minimal pain and edema. Dr. Dailey placed plaintiff on a non-weight-bearing restriction (Tr. 448).

On June 8, 2009, Dr. Dailey noted "good surgical results" and administered hydrotherapy. (Tr. 447). Dr. Dailey wrote that plaintiff should be excused from work from June 12, 2009 to June 15, 2009. (Tr. 628). On June 15, 2009, Dr. Dailey instructed plaintiff to begin physical therapy and continue with hydrotherapy. Dr. Dailey wrote that he was gradually trying to get her to bear weight through use of a cam walker boot. Plaintiff reported no pain or edema and she was ambulating well. (Tr. 446). On June 16 and 19, 2009, Dr. Dailey completed forms for ...


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