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Sutton v. Colvin

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

September 2, 2014

ASHLEY SUTTON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER OF UNITED STATES MAGISTRATE JUDGE

TERRY I. ADELMAN, Magistrate Judge.

This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves an application for Disability Insurance Benefits under Title II of the Social Security Act. Claimant has filed a Brief in Support of her Complaint; the Commissioner has filed a Brief in Support of her Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

I. Procedural History

On March 14, 2011, Claimant filed an Application for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 109-25)[1] alleging disability since February 1, 2010 due to back injury, blind in her right eye, ADHD, ADD, and bipolar. (Tr. 140). The application was denied (Tr. 53-57), and Claimant subsequently requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 59-61). On May 8, 2012, a hearing was held before an ALJ. (Tr. 18-48). Claimant testified and was represented by counsel. (Id.). Vocational Expert Carmen Mitchell also testified at the hearing. (Tr. 23-25, 73-74). In a decision dated May 25, 2012, the ALJ found that Claimant had not been under a disability as defined by the Social Security Act. (Tr. 42-47). The Appeals Council denied Claimant's Request for Review on March 26, 2013. (Tr. 1-3). Thus, the ALJ's decision is the final decision of the Commissioner.

II. Evidence Before the ALJ

A. Hearing on May 8, 2012

At the hearing on May 8, 2012, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 18-48). At the time of the hearing, Claimant was twenty-three years old, and her date of birth is September 23, 1988. (Tr. 22). Claimant stands at five feet three and one half inches and weighs approximately 189 pounds. (Tr. 22). She has a driver's license with restrictions, because she has no vision in right eye. (Tr. 22-23). Claimant graduated from high school and had an IEP and attended special education classes until her junior year. (Tr. 23). She started St. Charles Community College but stopped attending after half a semester due to her pregnancy. (Tr. 24).

Claimant last worked in August 2011 for three weeks as a cashier at Fastland Gas Station, but she stopped due to her back. (Tr. 25). She stocked the coolers with soda and beer and lifted cases when stocking. (Tr. 25). In 2009, Claimant worked for eight months at McDonald's as a cashier and a cook, and she lifted cases of meat weighing twenty-five to thirty pounds. (Tr. 26). She quit when her hours were cut to fours a week. (Tr. 26). Claimant worked for Daddy Ray's Acquisition Corporation standing on a line eight to ten hours a day grabbing cookies from a moving conveyor and placing the cookies in a tray. (Tr. 27). After packing the boxes, she moved the boxes to palettes and then stacked the palettes. (Tr. 28). She started working there at age eighteen, but she quit after having her daughter because of post pregnancy problems. (Tr. 28). In 2008, she worked at Troy Manor for four months as a nursing assistant, but she left after her father had a heart attack. (Tr. 43-44). While working at Troy Manor, Claimant attended classes paid by Troy Manor. (Tr. 44). Claimant also worked at Steak and Shake as a waitress, production worker, and dish cleaner. (Tr. 28). She injured her tailbone after slipping and falling while doing dishes. (Tr. 29). She quit after finding out she was pregnant and did not want to risk falling again. Claimant worked as a cashier at WalMart for five months but she left after she had an altercation with a customer service manager. (Tr. 29). For a couple of months, Claimant worked as a commercial cleaner at a church. (Tr. 30). While in high school, she also worked part time at Hardee's as a cashier and a production worker. (Tr. 30).

Claimant testified that she cannot work, because she has problems sitting for long periods of time. (Tr. 31). Sitting causes her back to start hurting. (Tr. 31). Claimant testified that she can sit for fifteen to twenty minutes before she has to stand. (Tr. 33). Later she testified that she cannot sit or stand for more than thirty minutes at a time. (Tr. 42). Walking causes her problems. (Tr. 32). She can walk for five minutes and then her back starts hurting. (Tr. 33). After having her son, Claimant returned to work, but she could not handle the pain. (Tr. 42).

Claimant's back pain started in July 2010. (Tr. 32). She testified that she is not taking any medications because of her pregnancy. (Tr. 32). Claimant testified that she sometimes has problems with her memory and trouble concentrating. (Tr. 35). Claimant has ADHD. (Tr. 35). Claimant has not seen an orthopedist and has Medicaid, but she testified that she is uncertain whether treatment by an orthopedist would be covered. (Tr. 41-42).

Her daily activities include picking up around the house, washing the dishes, vacuuming, folding laundry, and taking care of her two children ages four and nineteen months. (Tr. 33). Playing pool on a league is her hobby, but she testified she is hardly playing. (Tr. 34). Claimant watches television and can read only one page before she loses her concentration. (Tr. 36). Claimant helps take care of her eleven year old stepdaughter and checks emails from her teachers as well as her stepdaughter's siblings ages six and seven every other week. (Tr. 36-37). Her unemployed significant other is home during the day and helps with the children. (Tr. 37).

Claimant testified that she has problems dealing with people in big crowds and becomes anxious. (Tr. 37). She testified that her vision was the only medical impairment she had in February 2010. (Tr. 39). Claimant acknowledged she has had her vision problem her whole life. She testified that she has had anxiety for a long time, but she was not prescribed Zoloft until after her son was born. Claimant stopped taking Zoloft last December when she found out she is pregnant. (Tr. 39). She experiences headaches and can only get rid of the headache by going to sleep. (Tr. 40).

2. Testimony of Vocational Expert

Vocational Expert Carmen Mitchell, a certified vocational consultant, testified in response to the ALJ's questions. (Tr. 42-47). Ms. Mitchell identified Missouri and the United States as the specific region of the country she would be using in her reference concerning the existence and number of jobs. (Tr. 45). Ms. Mitchell identified Claimant's vocational history over the last fifteen years as a hand packager classified as light but described as medium work; fast food worker, classified as unskilled and light work but light to medium work as described by Claimant; a waitress classified as semi-skilled and light but medium per Claimant; a cashier/checker classified as semi-skilled and light work; and a nurse aid classified as semi-skilled and medium work. (Tr. 45-46).

The ALJ asked Ms. Mitchell to assume that

a person of the Claimant's age, education, past work experience. Please assume a person is capable of performing at the light exertional level, however, that person is further limited in that they can only perform semi-skilled work. Would such a person be able to perform any of the Claimant's past work?

(Tr. 46). Ms. Mitchell opined that such person could still work as a cashier/checker with 23, 000 jobs in Missouri and 1, 000, 000 nationally or a waitress with 28, 3000 jobs in Missouri and 1, 235, 000 nationally but the other work would be precluded. (Tr. 46).

Next, the ALJ asked Ms. Mitchell to assume that

the person could only remain on task without redirection for 15 minutes and had to be redirected by a supervisor every 15 minutes to remain on task. Would such a person be able to perform either of those two jobs?

(Tr. 46-47). Ms. Mitchell opined that the person could not perform either of the jobs and perform any other work on a full-time competitive basis in the regional or national economy. (Tr. 47).

3. Forms Completed by Claimant

In the Function Report - Adult, Claimant indicated she stopped working on February 1, 2010 because of her condition(s) and other reasons. (Tr. 131). She further explained how she was pregnant with her second child and having complications. (Tr. 131). Claimant responded that she never attended any special education classes. (Tr. 132). She listed acetaminophen, cyclobenzaprine, naproxen, propranolol, and sumatriptan as her medications. (Tr. 134). Claimant noted she started treatment with Dr. Patty Rapplean on March 11, 2011for her back pain and headaches. (Tr. 134). She noted how Dr. Paul Tapia treated her on September 14-15, 2010 to stop her back pains from labor after the birth of her child. (Tr. 135).

In the March 16, 2011 Function Report - Adult, Claimant reported waking up at five to get the children ready for school and then cleaning and cooking as her daily activities. (Tr. 137). Then she does her school work and then she prepares dinner before she has to go to her pool league. (Tr. 137). She shops for groceries twice a week and can drive a car and go out alone. (Tr. 140). Claimant is able to pay bills and handle a savings account. (Tr. 140). She listed scrapbooking as her hobby and playing pool twice a week as her social activity. (Tr. 141). On a regular basis, Claimant goes to the store, her parents' house, and friends' houses. (Tr. 141). She indicated that she handles stress okay and changes in routine. (Tr. 143). Claimant is able to use the computer for about one hour. (T. 146).

In the Disability Report - Appeal, Claimant reported having severe depression with bipolar since August 31, 2011 as a change in her condition since last ...


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