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Powell v. Colvin

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

December 4, 2014

BOBBIE POWELL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Bobbie J. Powell, Plaintiff: David D. Camp, ACCESS DISABILITY, LLC, St. Louis, MO.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Nicholas P. Llewellyn, LEAD ATTORNEY, OFFICE OF U.S. ATTORNEY, St. Louis, MO.

MEMORANDUM AND ORDER

THOMAS C. MUMMERT, III, UNITED STATES MAGISTRATE JUDGE.

This action under 42 U.S.C. § § 405(g) and 1383(c)(3) for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the applications of Bobbie Powell (Plaintiff) for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the undersigned by written consent of the parties. See 28 U.S.C § 636(c).

Procedural History

Plaintiff applied for DIB and SSI in March 2010, alleging she was disabled as of May 2, 2006, because of arthritis in both knees, bipolar disorder, depression, and anxiety. (R.[1] at 125-33, 168.) Her applications were denied initially and after a June 2011 hearing before Administrative Law Judge (ALJ) A. Klingemann. (Id. at 7-18, 24-50, 64-65, 72-77.) The Appeals Council then denied Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-3.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and Reva Payne, a vocational expert, testified at the administrative hearing.

Before testimony began, Plaintiff amended her alleged disability onset date to October 7, 2008. (Id. at 27.) She was not seeking to reopen the dismissal of her prior applications.[2] (Id. at 28.)

Plaintiff was forty years old at the time of the hearing. (Id. at 31.) She was 5 feet 6 inches tall and weighed 202 pounds. (Id.) Plaintiff left school after the eleventh grade because she had to help care for her grandfather, who had broken his neck. (Id.) She never obtained a General Equivalency Degree (GED) or received any vocational training. (Id. at 31-32.) She had not been in special education classes. (Id. at 32.) Plaintiff lives with two of her children, ages eighteen and seventeen. (Id. at 40.)

Plaintiff has a driver's license. (Id. at 31.) Anxiety and panic attacks sometime prevent her from driving. (Id.)

Plaintiff last worked in 2007. (Id. at 32.) She testified that her last job was as a server at a restaurant and lasted only one month because she could not handle the pressure. (Id.) Before that job, she had worked as a server at another restaurant for six years. (Id. at 33.) She left that job when her anxiety and other problems started after her mother died. (Id.) She had cared for her mother for six years. (Id. at 40.) The job before that was also as a server at a restaurant. (Id. at 33.) She left that job after a year when the restaurant closed. (Id.) Asked about earnings in 2008 and 2009, Plaintiff explained that she had worked one day for the Board of Elections checking IDs at the polls. (Id. at 32.)

Plaintiff testified that she can no longer work because of panic attacks, depression, anxiety, and pain in her knees, hips, and back. (Id. at 35.) Her knees hurt every day. (Id.) The pain is made worse by walking, is relieved by medication, and is usually an eight on a ten-point scale, with ten being so bad that immediate medical attention is required. (Id.) Her knees do not hurt when she is sitting. (Id.) She also has pain in her right hip. (Id. at 35-36.) This pain occurs three to four days a week, lasts for an hour each time, and is also an eight. (Id. at 36.) The pain in her lower back happens every day, lasts for two to three hours, is aggravated by laying down, sitting straight, or bending, and is usually a seven or eight. (Id. at 36-37.) The worst pain is in her knees. (Id. at 37.) She cannot walk farther than one-half block, sit for longer than an hour before needing to stand up, and lift anything heavier than a gallon of milk. (Id. at 38.) She cannot bend to the ground and cannot stoop. (Id. at 39.) She can climb a flight of stairs. (Id.)

Her mental impairments cause her to sometimes need to be by herself. (Id.) She has trouble with her memory and with concentration. (Id.) She is afraid to be around people. (Id.)

Plaintiff is seeing three doctors and takes medications. (Id. at 37-38.) The medications cause side effects of grogginess and changes in appetite. (Id. at 38.)

On a typical day, Plaintiff gets up and watches television. (Id. at 40.) She cannot watch an entire program before losing concentration. (Id.) She does such household chores as sweeping and mopping. (Id.) Her son finishes what she cannot. (Id.) She also does laundry, prepares meals, and, with a friend, goes grocery shopping. (Id. at 41, 42.) She no longer engages in her former hobby of ceramics because she has not found a place to do it and, regardless, could not because it would require that she be around people. (Id. at 41.)

Every day, Plaintiff cries and rocks when sitting. (Id. at 43.)

Ms. Payne, testifying without objection as a vocational expert (VE), was asked to assume a hypothetical individual who can perform work at the sedentary level with additional limitations of performing only simple, repetitive tasks and having only occasional contacts with supervisors, co-workers, and the public. (Id. at 46-47.) Asked if this person can perform Plaintiff's past relevant work, she replied that she cannot. (Id. at 47.) This person can, however, perform work as a cutter and paster, Dictionary of Occupational Titles (DOT) 249.587-014; simple document preparer, DOT 249.587-018; and protective surveillance monitor, also known as a surveillance system monitor, DOT 379.367-010. (Id.) All are sedentary jobs with a specific vocational preparation (SVP) level of two.[3] (Id.) These jobs exist in significant numbers in the state and national economies. (Id.)

If this hypothetical person also has to be redirected or told again what to do, she can perform the cutter and paste and document preparer jobs but not the monitor job. (Id. at 47-48.) If the person also will go off-task for approximately 20 percent of the day, there are no jobs she can perform. (Id. at 48.)

Plaintiff's attorney asked Ms. Payne to assume a hypothetical person of Plaintiff's age, education, and past work experience who is not limited physically or exertionally but is limited to unskilled work, and will need to be absent from work on an unscheduled basis at least three days a month. (Id. at 48-49.) She responded that this person cannot perform competitive work. (Id. at 49.) If a hypothetical person of Plaintiff's age, education, and past work experience has an occasional disruption of the workday due to crying spells, such disruptions lasting approximately five minutes and occurring approximately five times a day, the person cannot perform competitive work. (Id.) Disruptions caused by urinary incontinence and a need to use the bathroom will not similarly eliminate competitive work because, unlike the crying spells, they will not disrupt other employees. (Id. at 49-50.)

Ms. Payne stated that her testimony is consistent with the DOT (DOT). (Id. at 48.)

Medical and Other Records Before the ALJ

The documentary record before the ALJ included forms completed as part of the application process, documents generated pursuant to Plaintiff's applications, records from health care providers, and assessments of her physical and mental abilities.

When applying for DIB and SSI, Plaintiff completed a Disability Report, disclosing that she had stopped working on May 2, 2006, and had completed vocational training as a certified nurse aide in 1989. (Id. at 169.)

Plaintiff's friend of fifteen years completed a Function Report on her behalf. (Id. at 183-90.) She described Plaintiff's daily activities as taking a shower in the morning, making breakfast when able, and, when she often has no energy, sleeping all day. (Id. at 183.) Plaintiff visits the friend when she does have energy. (Id.) Plaintiff cares for her children and grandchildren, getting them up for school, cleaning, and cooking. (Id. at 184.) She also walks and feeds her dogs. (Id.) Plaintiff cannot walk long distances, always be alert, and work like she did before her illnesses. (Id.) Although Plaintiff's leg pain affects her sleep, Plaintiff does not have any problems with personal care tasks. (Id.) Plaintiff sometimes has to be reminded to take a shower or about appointments. (Id. at 185.) She does not need to be reminded to take her medications. (Id.) Plaintiff prepares a meal three times a week, for approximately an hour each time. (Id.) She also makes her bed everyday and does the laundry once a week. (Id.) Plaintiff's friend makes her go outside once a day. (Id.) Her hobbies include watching television and playing games. (Id. at 187.) Plaintiff goes to her friend's house regularly. (Id.) Her impairments adversely affect her abilities to lift, squat, bend, stand, kneel, climb stairs, concentrate, and remember. (Id. at 188.) She cannot walk farther than one-half block before having to stop and rest for twenty minutes. (Id.) Plaintiff follows written and spoken instructions well and gets along with authority figures. (Id.) She does not handle stress or changes in routine well. (Id. at 189.) She is claustrophobic. (Id.) She sometimes uses a brace. (Id.) The friend further reported that Plaintiff used to be " upbeat" but now had days where she was depressed and cried. (Id. at 190.)

The relevant medical records before the ALJ are summarized below in chronological order beginning with an office visit in December 2007 to Prithvi Singh, M.D., with Singh Medical Specialists (SMS).[4] (Id. at 308.) The office notes are in a checklist format and indicate that a review of all Plaintiff's systems, including her general appearance, was negative except for the musculoskeletal system. (Id. at 308.) That was positive for muscle weakness, tenderness, and deformity. (Id.) The notes refer to her " two limbs, " knees, lordosis, and scoliosis. (Id.) There are no references to any treatment. (Id.)

Plaintiff next saw Dr. P. Singh in April 2008, complaining of pain and swelling in her knees due to an injury five years ago. (Id. at 307.) Also, her eyes were watery. (Id.) A review of Plaintiff's other systems was unremarkable. (Id.) She was advised to lose weight -- she then weighed 227 pounds -- and was diagnosed with obesity, degenerative joint disease, and anemia. (Id.)

Plaintiff complained to Dr. P. Singh in June of left knee pain and stiffness that was a ten on a ten-point scale. (Id. at 306.) In addition to her degenerative joint disease and obesity, Plaintiff was diagnosed with dyslipidemia (an abnormal amount of lipids in the blood). (Id.) Subsequent x-rays of her knees revealed mild bilateral ...


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