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Cope v. Colvin

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

September 11, 2014

KAREN K. COPE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

TERRY I. ADELMAN, Magistrate Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying Karen K. Cope's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). Because the Commissioner's final decision is supported by substantial evidence on the record as a whole, it is affirmed.

I. Procedural History

On March 31, 2010, plaintiff Karen K. Cope applied for disability insurance benefits (DIB) claiming she became disabled on June 13, 2006, because of visual impairments due to stroke, attention deficit hyperactivity disorder (ADHD), anxiety, diabetes, and celiac disease. (Tr. 128-34, 151.) Upon initial consideration, the Social Security Administration denied plaintiff's claim for benefits. (Tr. 76, 77-81.) Upon plaintiff's request, a hearing was held before an administrative law judge (ALJ) on November 17, 2011, at which plaintiff and a vocational expert testified. (Tr. 25-68.) On March 26, 2012, the ALJ issued a decision denying plaintiff's claim for benefits, finding vocational expert testimony to support a finding that plaintiff can perform work as it exists in significant numbers in the national economy. (Tr. 7-21.) On February 4, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-6.) The ALJ's decision thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

In the instant action for judicial review, plaintiff claims that the ALJ's decision is not supported by substantial evidence on the record as a whole, arguing that the ALJ erred in determining her residual functional capacity (RFC) by failing to include additional limitations caused by her arthritis and mental impairments, and by improperly discounting the opinions of her treating and consulting physicians. Plaintiff also contends that the ALJ should have ordered a mental consultative examination. Plaintiff also argues that the ALJ erred in determining her complaints not to be credible. Plaintiff requests that the final decision be reversed and the matter be remanded for an award of benefits or for further consideration. For the following reasons, the ALJ did not err in her determination.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the hearing on November 17, 2011, plaintiff testified in response to questions posed by the ALJ and counsel.

Plaintiff last worked on June 13, 2006, as a customer service supervisor at a call center for a medical equipment distributor. Plaintiff held this position since 2004. Previous employment positions held by plaintiff include work as a dietary assistant in a hospital from 1988 to 2003; as an inventory clerk/biller at Durable Medical Goods Co. for nine months in 2003; and as a biller clerk for a medical equipment distributor from September 2003 to 2004. (Tr. 172.) Plaintiff testified that she also attended college for a period of time but did not obtain a degree. (Tr. 53.)

Plaintiff testified that she is unable to work because of residual effects from a stroke. Plaintiff testified that she had had some strokes from which she recovered but currently experiences visual problems from a third stroke that she had in 2005. (Tr. 33-34, 38.) Plaintiff testified that she is limited with driving and has problems looking at paperwork or a computer because of difficulties with focus. Plaintiff testified that she must rest her eyes after about five to ten minutes of concentrating on detailed work. Plaintiff testified that she also has dry eyes and limited peripheral vision. (Tr. 38-39.)

Plaintiff also testified that she cannot work because of problems she has getting along with other people. Plaintiff testified that she had many outbursts while working and that she "did not stay within [her] boundaries at times." Plaintiff testified that working under deadlines and within guidelines created a lot of stress and anxiety and that she would become angry and make inappropriate remarks during such times. (Tr. 46-47.) Plaintiff testified that she also had difficulty with supervisors. Plaintiff testified that she takes medication for anxiety and panic attacks, which helps, and that her anxiety has improved since she stopped working. Plaintiff testified that she does not see a counselor for her mental condition because she is "not a talker." (Tr. 39-40, 50.)

Plaintiff testified that she has arthritis in her low back, hands, knees, and feet. Plaintiff testified that she sometimes feels it in her hips and that her entire body hurts at times. (Tr. 37-38.) Plaintiff testified that she experiences the most pain in her right foot, which causes pain when she walks. Plaintiff takes only overthe-counter medication for the condition. (Tr. 49-50.)

Plaintiff testified that she also has celiac disease and would suffer colitistype symptoms if she did not follow a gluten-free diet. Plaintiff also has hypertension and diabetes that are controlled with medication. (Tr. 37, 45.)

As to her daily activities, plaintiff testified that she gets up at 4:30 a.m. and prepares breakfast for herself and her mother. Plaintiff then drives to a gym, which is about one mile away, and works out for thirty to forty-five minutes. Plaintiff testified that she cleans up when she gets home and then prepares lunch. Plaintiff testified that she cares for her mother, who is unable to walk without assistance because of painful arthritis. Plaintiff prepares food for her mother and does her laundry. Plaintiff also helps her mother with bathing and recently had to begin lifting her in order to assist her. Plaintiff's mother weighs about 200 pounds. Plaintiff testified that such lifting has strained her back and arms. (Tr. 40-42.) Plaintiff testified that she also helps a friend who has cancer by taking her to perform errands or helping with bills. Plaintiff testified that she primarily provides moral support for her friend, which includes going to her friend's house to play pool with her son. Plaintiff also runs errands for herself in town and cares for two cats. (Tr. 42-43.) Plaintiff testified that she relaxes after dinner. Plaintiff sometimes watches television but usually falls asleep while doing so. (Tr. 44.)

Plaintiff testified that she takes breaks from her activities during the day and usually rests for twenty to twenty-five minutes after about an hour of activity because her back and legs begin to hurt. Plaintiff testified that she is most comfortable when she is reclining. Plaintiff testified that she can read or work on the computer for about twenty to twenty-five minutes before she must stop, blink a bit, and stretch. (Tr. 48-49.)

B. Vocational Expert Testimony

Linda Tolley, a vocational rehabilitation consultant, testified at the hearing on November 17, 2011, in response to questions posed by the ALJ and counsel.

Ms. Tolley classified plaintiff's past relevant work as a dietary assistant as medium work with an SVP level of 7; as a billing clerk as sedentary with an SVP level of 4; as an inventory clerk as light with an SVP level of 5; as a customer service representative supervisor as sedentary with an SVP level of 6; and as a call center operator as light and at the semi-skilled or skilled level. (Tr. 54-57.)

The ALJ asked Ms. Tolley to assume a younger individual at forty-six years of age[1] with no exertional limitations, but that the person should

never climb ladders, ropes or scaffolds, avoid all exposure to moving machinery and unprotected heights for hazardous machinery. Only occasional interaction with the public and occasional interaction with coworkers, which is basically casual and infrequent. In other words, you can work near the coworkers but you don't work with them[.]

(Tr. 57-58.) Ms. Tolley testified that such a person could perform plaintiff's past work as a billing clerk. (Tr. 58.) Ms. Tolley testified that such a person could also perform sedentary work as a data entry clerk, of which 5, 500 such jobs exist in the State of Missouri and 240, 000 nationally; and sedentary-to-light work as an office clerk, of which 15, 000 such jobs exist in the State of Missouri and over one million nationally. (Tr. 60-61.) The ALJ asked Ms. Tolley to assume the individual could have no contact with the public, to which Ms. Tolley responded that the previous jobs to which she just testified would not be precluded but the numbers would be reduced by about fifty-percent given the additional limitation. (Tr. 61-62.)

The ALJ then asked Ms. Tolley to assume the individual had difficulty with their vision such that she could not use computers or do a lot of paperwork because of eye strain. Ms. Tolley testified that such a person could not perform the work to which she had previously testified. (Tr. 62.) When asked to consider an individual who could engage in this type of work for no more than fifty percent of the time, Ms. Tolley testified that such a person could perform sedentary work as a small products assembler, of which 1, 500 such jobs exist in the State of Missouri and 100, 000 nationally; and eye drop assembler, of which less than 800 such jobs exist in the State of Missouri and 7, 500 nationally. (Tr. 63-64.) Ms. Tolley testified that such positions would not be available to a person who was limited to performing fine fingering fifty percent of the time or less, and that such a limitation would eliminate most work. (Tr. 64-65.)

III. Medical Records Before the ALJ

On October 3, 2005, Dr. Gary H. Myers, a neurologist, opined that plaintiff's recent episodes of diplopia, mild headache, and left hand weakness may be due to transient ischemic attacks (TIA). Plaintiff had been taking aspirin and was instructed to switch to Plavix. (Tr. 241.)

Plaintiff contacted her primary care physician, Dr. Martha Reed, on December 1, 2005, with complaints of lost vision in her right eye, a "funny feeling" in her head, and feeling cold. Plaintiff was anxious because of her previous history of stroke. Dr. Reed instructed plaintiff to take aspirin and to rest for fifteen to thirty minutes. (Tr. 254.)

On December 6, 2005, plaintiff underwent an MRI study of the brain in response to complaints of headaches and right eye blindness for six days. Results of the MRI showed interval new left occipital infarct superimposing old ischemic changes. (Tr. 230.) Dr. Myers noted this MRI to show strokes bilaterally in the occipital lobes. (Tr. 242.)

In a letter dated December 8, 2005, Dr. Mark H. Spurrier, an ophthalmologist, informed Dr. Reed that examination showed plaintiff's signs to indicate posterior visual pathways disease, and further evaluation was ordered. (Tr. 215, 236.)

Plaintiff visited Dr. John D. McGarry, a neurologist, on December 13, 2005, for evaluation involving her recent cerebrovascular accident (CVA). Plaintiff was forty-six years of age. Plaintiff was noted to be pleasant and cooperative. Plaintiff reported having experienced vision loss, lightheadedness, left hand weakness, and vertigo within the previous three months. Plaintiff had no complaints of depression or anxiety. Plaintiff reported having frequent pain in her knees, hands, and neck and that she often experienced stiffness in the morning for about twenty minutes. Dr. McGarry noted plaintiff's current medications to be aspirin, Inderal, Nexium, Singulair, Paxil, Plavix, Reglan, and Pepcid. Physical examination showed plaintiff to have normal muscle power, tone, and coordination. Sensation and reflexes were intact. Gait was normal. Examination of the spine was normal. Neurological exam was remarkable for hemianopia[2] versus right visual inattention. No evidence of vasculopathy was noted. Plaintiff was instructed not to drive until released by a physician. It was noted that plaintiff may be referred to driving school for safety evaluation. (Tr. 231-34.)

On December 22, 2005, Dr. Spurrier diagnosed plaintiff with occipital stroke with some improvement in visual fields. (Tr. 214.)

Plaintiff returned to Dr. Myers on December 29, 2005, who noted plaintiff to have right hemianopia. No Babinski sign was noted. The remainder of her examination was within normal limits. Dr. Myers expressed concern regarding plaintiff's circulation problems. Dr. Myers instructed plaintiff to undergo transesophageal echocardiogram (TEE) testing, and a prescription was written for the test. It was noted that plaintiff took aspirin, Plavix, and folic acid; and Dr. Myers expressed hope that plaintiff's antiplatelet drugs would prevent additional strokes. (Tr. 242-43.)

On February 27, 2006, plaintiff reported to Dr. Reed that Dr. Myers permitted her to drive. It was noted that plaintiff's symptoms were under control, and she had no new complaints. Plaintiff reported that she was now a supervisor at American Home Patients, which she felt was a good fit for her. Plaintiff was continued on her current treatment regimen. (Tr. 254-55.)

Plaintiff returned to Dr. Spurrier on March 15, 2006, and reported no change to her peripheral vision. Plaintiff also reported having some trouble seeing to read. Upon examination, Dr. Spurrier diagnosed plaintiff with right homonymous defect, status post CVA. (Tr. 213.)

On April 3, 2006, Dr. Myers noted plaintiff to be doing very well on her current treatment regimen. Plaintiff complained of some difficulty seeing to the right. It was noted that plaintiff had not yet undergone TEE testing as previously ordered, and Dr. Myers advised plaintiff of the importance of such testing. Examination was unchanged from her previous visit, and plaintiff was continued on her current treatment regimen. (Tr. 244.)

Plaintiff underwent TEE testing on April 27, 2006, which showed mild mitral regurgitation, trace-to-mild aortic insufficiency, and trace tricuspid regurgitation, but was otherwise unremarkable. (Tr. 249-50.)

Plaintiff visited Dr. Reed on September 7, 2006, who noted plaintiff to have no new complaints. It was noted that plaintiff was looking for new employment, but was happy that she was off work during the summer so she could be free to help her family members. Plaintiff was ...


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