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Burts v. Colvin

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

September 19, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


ABBIE CRITES-LEONI, Magistrate Judge.

This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision denying Jacqueline L. Burts' applications for disability insurance benefits (DIB) and child disability benefits (CDB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and application for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, 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 September 20, 2010, plaintiff Jacqueline L. Burts applied for disability insurance benefits (DIB), child disability benefits (CDB) and supplemental security income (SSI), claiming she became disabled on June 26, 2009, because of reflex sympathetic dystrophy (RSD), chronic pain syndrome, arthritis in the right ankle, and poor circulation in the right leg. (Tr. 121-38, 166.) Upon initial consideration, the Social Security Administration denied plaintiff's claims for benefits. (Tr. 44-46, 57-71.) At plaintiff's request, a hearing was held before an Administrative Law Judge (ALJ) on August 22, 2011, at which plaintiff, a medical expert, and a vocational expert testified. (Tr. 22-43.) On October 27, 2011, the ALJ issued a decision (Tr. 9-18) denying plaintiff's claims for benefits. The ALJ "conclud[ed] that, considering the claimant's age, education, work experience, and residual functional capacity plaintiff is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Tr. 17.) On October 23, 2012, upon review of additional evidence, the Appeals Council denied plaintiff's request to review the ALJ's decision. (Tr. 1-5.) The ALJ's decision is thus the final decision of the Commissioner. 42 U.S.C. § 405(g).

In the instant action for judicial review, plaintiff claims that the ALJ erred in his decision by failing to consider Social Security Ruling (SSR) 03-2p, which governs the evaluation of disability in cases involving RSD, and that his failure to consider SSR 03-2p affected his determination of plaintiff's credibility. Plaintiff also claims that the ALJ failed to adequately explain his application of the factors required to be considered in determining credibility and improperly relied on plaintiff's failure to take prescribed pain medication in his determination. Finally, plaintiff contends that the Appeals Council erred when it failed to consider new and material evidence submitted for review of the ALJ's decision. Plaintiff requests that the final decision be reversed and that she be awarded benefits or that the matter be remanded for further consideration.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the hearing on August 22, 2011, plaintiff testified in response to questions posed by the ALJ and counsel.

At the time of the hearing, plaintiff was twenty-three years of age. Plaintiff is single. Plaintiff graduated from high school. Plaintiff lives with her boyfriend's grandparents in the upstairs portion of their house. (Tr. 26, 33.)

Plaintiff's Work History Report shows that plaintiff worked in fast food restaurants from September 2003 to August 2005. From August 2005 to October 2008, plaintiff worked as a certified nurses' assistant (CNA) in skilled nursing or residential care facilities. From November 2008 to February 2009, plaintiff worked as a mounter in a factory. From February to June 2009, plaintiff again worked as a CNA in a residential care facility. (Tr. 146.)

Plaintiff testified that she underwent surgery in November 2009 for a bruised ankle joint, as well as ligament and tendon repair. She reported that after surgery the pain became worse. Plaintiff testified that she currently has constant pain radiating through her right leg and into her foot, which her doctors have advised was caused by nerve damage. (Tr. 26-27, 29.) Plaintiff testified that her pain has worsened within the previous year. (Tr. 28.)

Plaintiff testified that her foot is sometimes cold and discolored and that she has veins that "pop out" of her leg. Plaintiff testified that she also sometimes has blisters on her toes that are tender and sore. Plaintiff testified that she experiences pain when her foot is touched and that she cannot wear shoes. Plaintiff testified that she can tolerate sandals. Plaintiff testified that sheets or blankets, certain clothing, and walking worsen her pain, because of the rubbing against her leg. (Tr. 27-28.) Plaintiff testified that she does "okay" going up the stairs at home, but that there are some days when she cannot walk, at which time she crawls or scoots up and down the stairs or uses her crutches. (Tr. 34.)

Plaintiff testified that her doctors have told her that she has chronic pain syndrome and that nothing more can be done for her pain. Plaintiff testified that she was discharged from her doctor's care, because of her financial inability to pay for treatment. Plaintiff testified that she suggested to her doctors that they amputate her leg, but they declined. (Tr. 27, 30.)

Plaintiff testified that she currently takes calcium, vitamin D, Lavora, and Alprazolam as needed for sleep. Plaintiff testified that she was recently prescribed Neurontin, but cannot fill the prescription. Plaintiff testified that she does not take any narcotic medication. (Tr. 35-36.)

Plaintiff testified that the pain interferes with her sleep but that medication helps her sleep. Plaintiff testified that she is most comfortable lying on her left side in bed, or in a recliner with her leg elevated and propped on two body pillows. Plaintiff testified that she elevates her leg every day. Plaintiff testified that she also applies ice packs and heat compresses to relieve the pain. (Tr. 29-31.)

The pain sometimes causes plaintiff to cry. Her focus and concentration is also affected, because sometimes her pain is so unbearable it's all she can think about. (Tr. 31.)

As to her daily activities, plaintiff testified that she goes grocery shopping but uses a motorized scooter and usually has someone with her. (Tr. 31.) Plaintiff testified that she can drive short distances. She testified that she either has someone with her or uses cruise control on the car when she drives long distances. She sometimes drives with her left foot. (Tr. 29-30.) Plaintiff prepares simple meals and sits when she cuts fruits or vegetables. She has mowed the lawn with a riding mower, but the vibration of the mower increases her pain. (Tr. 32-33.) Approximately once a week, plaintiff sits for about an hour and picks up apples from the ground at her boyfriend's grandparent's orchard. Plaintiff testified that she manages her father's finances because he cannot read or write. Plaintiff testified that she sometimes takes her father to the grocery store when she visits him. (Tr. 33-34.)

B. Testimony of Medical Expert

Dr. Albert Oguejiofor, a board-certified internist, testified at the hearing as a medical expert in response to questions posed by the ALJ and counsel.

Dr. Oguejiofor testified that plaintiff's diagnosed medically determinable impairments were history of fall with right ankle sprain, right ankle pain, and RSD. Dr. Oguejiofor testified that plaintiff did not need to elevate her right leg inasmuch as there was no evidence of vascular or circulation problems. (Tr. 36-37.)

C. Testimony of Vocational Expert

Dr. Karen E. Nielsen, a vocational expert, testified at the hearing in response to questions posed by the ALJ and counsel.

Dr. Nielsen characterized plaintiff's past work as a fast food worker and mounter as light and unskilled; and as a CNA as medium and semi-skilled. (Tr. 39.)

The ALJ asked Dr. Nielsen to assume an individual of plaintiff's age and education and who is able to perform the exertional demands of sedentary work in that she can occasionally lift or carry ten pounds, can lift or carry five pounds, can stand and walk about two hours of an eight-hour workday, and can sit about six hours of an eight-hour workday. (Tr. 39-40.) The ALJ asked Dr. Nielsen to further assume the individual can

occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds; occasionally balance, occasionally stoop, occasionally kneel, occasionally crouch, occasionally crawl.
The individual is to avoid working around unprotected heights, open flames, and dangerous and moving machinery. And due to the individual pain the individual can understand, remember, and carry out short and simple instructions, and maintain attention and concentration for extended periods on simple tasks.

(Tr. 40.) Dr. Nielsen testified that such a person could not perform any of plaintiff's past relevant work, but could perform other sedentary, unskilled jobs such as order clerk, of which 2, 500 such jobs exist in the State of Missouri and 185, 000 nationally; fan assembler, of which 2, 000 such jobs exist in the State of Missouri and 185, 000 nationally; and optical goods worker, of which 1, 300 such jobs exist in the State of Missouri and 135, 000 nationally. Dr. Nielsen testified that if such a person was required to elevate her right leg throughout the workday at waist level, she could not perform such work or any other work. (Tr. 40-41.)

In response to counsel's questions, Dr. Nielsen testified that a person who missed four hours of work a week, or more than two days a month, would probably not ...

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