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Christopher-Dell v. Colvin

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

September 29, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ABBIE CRITES-LEONI, Magistrate Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of Defendant's final decision denying the application of Shawna E. Christopher-Dell for Disability Insurance Benefits under Title II of the Social Security Act. This case has been assigned to the undersigned United States Magistrate Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See 28 U.S.C. § 636(c). Plaintiff filed a Brief in support of the Complaint. [Doc. 17] Defendant filed a Brief in Support of the Answer. [Doc. 22]

Procedural History

On July 23, 2010, Plaintiff filed an application for Disability Insurance Benefits, claiming that she became unable to work due to her disabling condition on January 1, 2009. (Tr. 144-50.) Plaintiff subsequently amended his alleged onset date to September 30, 2009. (Tr. 26.) The Plaintiff's application was initially denied. (Tr. 59) Following an administrative hearing, Plaintiff's claim was denied in a written opinion by an Administrative Law Judge (ALJ), dated January 6, 2012. (Tr. 6-22.) Plaintiff then filed a request for review of the ALJ's decision with the Appeals Council of the Social Security Administration (SSA), which was denied on March 19, 2013. (Tr. 5, 1-3.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

Evidence Before the ALJ

A. ALJ Hearing

Plaintiff's administrative hearing was held on July 13, 2011. (Tr. 25.) Plaintiff was present and represented by counsel. Id . Also present was vocational expert Rita Payne. Id.

Plaintiff's attorney made an opening statement, in which he argued that Plaintiff suffers from low back pain, sleep apnea, severe swelling of the left leg, hearing loss in the right ear, depression, and anxiety. (Tr. 27.) Plaintiff's attorney stated that Plaintiff's psychological problems pre-date her date last insured. Id . In addition, Plaintiff's attorney stated that he does not believe a listing is met. Id.

The ALJ questioned Plaintiff, who testified that she was twenty-three years of age; five-feet, six inches tall; and weighed 350 pounds. (Tr. 28.) Plaintiff stated that her normal weight is 220 to 250 pounds. Id . Plaintiff testified that her gynecologist indicated her weight gain was caused in part by her "feminine issues." Id.

Plaintiff testified that she has a valid driver's license, and that she drives "for a little while." (Tr. 29.) Plaintiff stated that she starts to experience back pain and a tingling sensation in her lower back after driving for about twenty minutes. Id.

Plaintiff testified that she graduated from high school and cosmetology school. Id . The cosmetology school made adjustments for her by allowing her to take breaks between clients rather than requiring her to stand eight hours straight. (Tr. 29-30) Plaintiff attended Columbia College at Lake of the Ozarks for one semester, however, stopped attending college to pursue a career in cosmetology. (Tr. 30)

Plaintiff graduated from cosmetology school in March of 2011, however, has not worked as a cosmetologist, because she does not have a license. (Tr. 30-31) Plaintiff cannot take the state boards required for a license until she pays a debt owed to a cosmetology school she attended, plus she will require accommodations allowing her to sit down and she has not yet been granted those accommodations. Id.

Plaintiff testified that she was not working at the time of the hearing. (Tr. 31) Her last job was working at the front counter at Burger King in 2009. (Tr. 31-32) She worked at this position for a "couple weeks, " and left because her vehicle was totaled in an accident and she lacked transportation. (Tr. 31)

Plaintiff stated that she started attending cosmetology school in September of 2008, but took several periods of leave due to medical issues (including swollen tonsils, sleep apnea, and narcolepsy) before finishing in March 2011. (Tr. 32) She also transferred to a different cosmetology school closer to her home. Id.

Prior to working at Burger King, Plaintiff worked as a stocker at ALCO, a retail store located in Minnesota. (Tr. 33.) She lifted approximately twenty-five pounds at this position and left the position when she moved back to Missouri. Id . Plaintiff also worked at the front desk taking reservations and answering the phone at Walleye Inn, but left the job, because she "didn't like it." (Tr. 34) She worked as a dietary aide at Windsor Estates and was terminated from that position, because she did not show up for work and did not call to notify her employer. Id . Plaintiff worked as a preschool teacher for "a couple years" at various locations. (Tr. 35) She also had jobs at a shoe store as a salesperson for a summer, Walgreens in the beauty department for six to eight months, and Denny's as a waitress and as a hostess for a summer when she was in high school. (Tr. 34-36.) Finally, Plaintiff worked at the Gap stocking clothes for about eleven months; she was terminated from this position when she did not show up to work. (Tr. 36-37.)

Plaintiff testified that she was unable to work at the time of the hearing because she was only able to stand for about twenty minutes before she needing to lean or sit down; and she is only able to sit for about thirty minutes before she starts getting uncomfortable and experiencing pain in her back. (Tr. 37) The pain in her lower back is constant, id., and Plaintiff rated her back pain as a six on a scale of zero to ten (Tr. 38). Plaintiff testified that her pain is decreased when she lies down, but standing and walking cause her pain to increase. Id . She also has pain and swelling in her left leg from her knee down to her toes; the swelling started in October of 2009, and it has not stopped. (Tr. 38-39.) The swelling decreases when Plaintiff sleeps. (Tr. 39.)

Plaintiff moved to Nebraska where she sees an orthopedic surgeon, Dr. Harris. (Tr. 40.) He ordered x-rays and an MRI. Id . Dr. Harris told Plaintiff that the imaging did not reveal any bone damage, and referred her to a neurologist. (Tr. 41) The ALJ indicated that he would leave the record open for thirty days to allow Plaintiff to submit the records from Dr. Harris. (Tr. 42.)

Plaintiff also stated that she had upcoming appointments scheduled with a psychiatrist (Tr. 42, 49) and a primary care physician (Tr. 41).

At the time of the hearing, Plaintiff was taking Ativan, [1] Zantac, [2] Flexeril, [3] Naproxen, [4] Zoloft, [5] and Abilify[6] daily, as well as Excedrin. (Tr. 43.) Plaintiff stated that her medications help her "for the most part"; clarifying that she still experiences pain when she takes her medications, but the medication "definitely eases it up and keep it to where it's tolerable, " so that she is able to "kind of function." Id . Plaintiff experiences "extreme drowsiness, " as a side effect from her medication. Id.

Plaintiff stated neither surgery nor injections have been recommended for her back pain. Id . She is able to bend over, climb a flight of stairs, and while she can lift a gallon of milk, she does not. (Tr. 44.) Plaintiff testified that her gynecologist recently restricted her to lifting only ten pounds due to her ovarian disease. about two to three times a day

Plaintiff stated that she saw a psychiatrist on one occasion upon the referral of her caseworker. (Tr. 45) The psychiatrist told Plaintiff she has symptoms consistent with bipolar disorder and borderline personality disorder. Id . Plaintiff stated that she had an appointment scheduled with a psychiatrist for the month following the hearing. Id . Plaintiff testified that Dr. George Stachecki prescribed Abilify. Id . Plaintiff indicated that she has difficulty with concentration and short-term memory and difficulty dealing with people (Tr. 45); she does fine in small groups of people, but she gets frustrated when she is in large groups (Tr. 46).

On a typical day, Plaintiff takes a shower, lets her dog out, sits down to watch the news, and eats breakfast. Id . She spends the rest of her day alternating between lying down, walking around, and sitting watching television. Id . Plaintiff occasionally watches her nieces and nephews at her home-they are 21 months, three, four, and ten years of age. Id . Approximately once per week, Plaintiff watches all four children by herself for "about a couple hours." (Tr. 47.) Plaintiff makes bracelets as a hobby about two to three times a day, especially when she feels depressed. Id . Plaintiff does not go shopping without her husband. Id.

Upon examination by her attorney, Plaintiff testified that she was adopted at the age of five. (Tr. 48.) Although her biological parents came in and out of her life for a period of time after she was adopted, they eventually stopped contacting her. Id . Plaintiff saw a counselor, Joyce Coleman, from the age of five to the age of nine, however, those records are unavailable. Id.

Plaintiff stated that Dr. Stachecki started prescribing Zoloft and Abilify in 2010. Id . Plaintiff testified that she takes these medications daily, although she forgot to take them the morning of the hearing. (Tr. 49.)

Plaintiff testified that, when she is depressed, she feels as though there is "no point of being here, " and she cries; this occurs three to five times a week and Plaintiff isolates herself during these episodes. Id . She has experienced these episodes since high school. Id.

Plaintiff leaves her home about three times a week, however, she stated that it is difficult to leave, because she does not like being around a lot of people. Id . Plaintiff indicated she started avoiding people when she had problems related to sleep apnea. (Tr. 50.)

Plaintiff testified that she currently has health insurance through her husband's employer in Nebraska. Id . Prior to having insurance, she went to the emergency room for treatment. Id.

Plaintiff testified that she weighed 350 pounds at the time of the hearing, and that she weighed 250 pounds in September of 2009. Id . Plaintiff stated that, due to the weight gain, it is more difficult for her to put on shoes, and to just get around in general. (Tr. 51.) Plaintiff is unable to wear tennis shoes due to her leg swelling, and usually wears flip flops. Id . She is also "hot all the time, " Plaintiff was less hot prior to her weight gain. Id . Plaintiff stated ...

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