United States District Court, E.D. Missouri, Eastern Division
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 Applications for Disability Insurance Benefits under Title II of the Social Security Act and for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief in Support of her Complaint, and 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 April 10, 2008, Claimant Adrienne Wilson filed Applications for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 313-16) and for Supplemental Security Income payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et. seq. (Tr. 310-12). Claimant states that her disability began on January 1, 2006,  as a result of fibromyalgia, knee and hand problems, multiple screws in her right ankle, migraine headaches, depression, stress, loss of hand function, and limited ability to sit, stand, walk, and lift her arms overhead. (Tr.). On initial consideration, the Social Security Administration denied Claimant's claims for benefits. (Tr. 146-51). Claimant requested a hearing before an Administrative Law Judge ("ALJ"). On December 8, 2009, a hearing was held before the ALJ who issued an unfavorable decision on June 8, 2010. (Tr. 34-65, 105-16). Claimant filed a request for review with the Appeals Council on September 29, 2011. (Tr. 404-05). The Appeals Council vacated the hearing decision and remanded this matter back to the ALJ in a decision dated February 13, 2012. (Tr. 122-27). On May 23, 2012, a supplemental hearing was held before the ALJ who issued an unfavorable decision on October 12, 2012. (Tr. 17-27, 66-101). After considering the mental residual functional capacity completed by Dr. Loon-Tzian Lo on June 15, 2013, the Appeals Council found no basis for changing the ALJ's decision on January17, 2014. (Tr. 1-4).
II. Evidence Before the ALJ
A. Hearing on December 8, 2009
1. Claimant's Testimony
At the hearing on December 8, 2009, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 34-65). At the time of the hearing, Claimant was forty-three years of age, and her date of birth is February 19, 1966. (Tr. 39). Claimant lives in a house with her mother and sometimes her daughter's apartment. (Tr. 39). She is right-handed and graduated from high school. (Tr. 41). Claimant stands at five feet six inches and weighs two hundred fortytwo pounds. (Tr. 41). She receives $59 a month from the housing authority and food stamps. (Tr. 42). Claimant smokes ten to fifteen cigarettes each day. (Tr. 50). Claimant testified that Dr. Ali, her rheumatologist, told her to use a cane. (Tr. 50). On occasion she uses marijuana. (Tr. 51). Although she has a valid driver's license, she does not drive. (Tr. 52).
Claimant testified that she last worked at Bon Appetite as a cashier in 2005. (Tr. 42). She left the job because of her left knee surgery. (Tr. 43). She had worked in the job for almost three years. Earlier, she worked at Maximum Healthcare Services as a certified nurse assistant and then at K-Force Incorporated Subsidiaries. (Tr. 43). She also worked at Unity Healthcare and B.C. Home Care Services as a certified nurse assistant. (Tr. 44). Earlier, Claimant worked at National and then at Schnucks as a cashier and sometimes food prep. (Tr. 44).
Claimant testified that she can no longer work because of her fibromyalgia and two bad knees. (Tr. 47). A rheumatologist started treating her fibromyalgia two years earlier, and she takes Lyrica and Gabapentin. She was diagnosed with a sporadic colon in 2006. (Tr. 47). Claimant has had surgery on both of her knees. (Tr. 48). After surgery, she could not work for a while. (Tr. 48). Claimant started taking Celexa as treatment for depression one year earlier, and she has seen a psychiatrist and a therapist for one year, once a month. (Tr. 49). She testified that her medications make her drowsy and sometimes triggers headaches. (Tr. 50). Claimant started using a cane after the first knee surgery. (Tr. 50). She had rotator cuff surgery in 2004. (Tr. 54). Claimant has crying spells every day or every other day. (Tr. 56). She is fatigued and lacks energy. (Tr. 57).
Claimant testified that she can dress in the morning with some assistance. (Tr. 52). She does not wash dishes, do the laundry, or vacuum. (Tr. 53). Sometimes she goes to the grocery store with her mother or daughter but not for a long period of time. (Tr. 53).
Claimant does her own laundry and cooking. (Tr. 49). Her mother helps her with the grocery shopping. (Tr. 50). She cannot stand for a long period of time. (Tr. 50). Two weeks earlier, she started to wear a brace provided by pain management. (Tr. 51). Two months earlier, she received a shot as treatment. (Tr. 52). Her mother visits twice a week and helps care for her daughter. (Tr. 55).
Claimant can stand against a wall for five to ten minutes. (Tr. 54). On a good day, she can walk without assistance from the house to the car. Sitting is difficult, she has to shift often and prop up her leg. (Tr. 54). She has problems lifting smaller objects. (Tr. 55).
B. Hearing on May 23, 2012
1. Claimant's Testimony
At the hearing on May 23, 2012, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 66-101). She testified that her conditions have worsened, and she now walks with two canes since January. (Tr. 70). She has not used marijuana for over a year. (Tr. 73).
2. Testimony of Vocational Expert
Vocational Expert Dr. Jeffrey Magrowski testified at the hearing. (Tr.91-100). Dr. Magrowski identified Claimant's vocational history as a cashier for food service, a light, unskilled job; a certified nurses aide, a heavy, semiskilled job; and a cocktail waitress, a medium, semiskilled job. (Tr. 93). He listed her transferrable skills as including communication, scheduling, use of some medical equipment, and some basic clerical skills. (Tr. 94).
The ALJ asked Dr. Magrowski to assume that
a hypothetical individual with the claimant's education, training, work experience at the time of AOD, further assume the individual can, for my first hypothetical, this individual can perform light work. They can lift 20 pounds occasionally, 10 pounds frequently, stand and walk six hours out of eight, no limits on sitting, following other limitations, climb stairs and ramps occasionally, never climb ropes, ladders, scaffolds, balance frequently, stoop, kneel, crouch, crawl, occasionally. This individual must avoid concentrated exposure to extreme cold, wetness, heat and the sun, humidity and hazards of heights. This individual can understand, remember, carry-out at least simple instructions, non-detail task, demonstrate adequate judgment to make simple work related decisions, adapt to routine, simple work changes, perform repetitive work according to set procedures sequence and pace. Based on my first hypothetical, could the individual perform any past work?
(Tr.94). Dr. Magrowski indicated she could perform some cashiering work, a light and unskilled job with at least 6.000 jobs in Missouri and over 300, 000 jobs available nationally; and some work as an usher, light and unskilled with 1, 000 jobs available in Missouri and over 50, 000 available in the national economy. (Tr. 95).
The ALJ next asked Dr. Magrowski the following:
... second hypothetical same as the hypothetical one except I did make a change in the mental limitations. This individual can maintain concentration and attentions for two hour segments over an eight hour period, demonstrate adequate judgment to make simple work related decisions, adapt to routine simple work changes, can perform work at a normal pace without production quotas. Would that individual be able to perform the jobs you gave me for hypothetical one?
(Tr. 95). Dr. Magrowski responded yes. (Tr. 95).
For the third hypothetical, he ALJ asked Dr. Magrowski the following:
My third hypothetical I drop to sedentary and that's just a straight sedentary. All other limitations remain the same as hypothetical two so it's, I just changed from the light to the sedentary, straight sedentary. Would that impact the jobs, it would because they're both light. Are there any jobs? If so, give me two if yo have them.
(Tr. 95-96). Dr. Magrowski opined there would be some work as a surveillance system monitor with 300 jobs in Missouri and 10, 000 jobs available in the national economy; and a stuffer of toys or small items with about 400 jobs in Missouri and 10, 000 jobs available in the national economy. (Tr. 96). In his fourth hypothetical, the ALJ added the individual would need two additional breaks beyond the normal two breaks and lunch break. Dr. Magrowski opined this individual would require special accommodations. (Tr. 96).
Counsel asked Dr. Magrowski to assume the limitations of Dr. Saleh as follows:
Assume we have a person who is only able to sit for two hours at a time, could walk a half a block, could stand and/or walk less than two hours in an eight hour work day, sit about two hours in an eight hour work day, would need periods of walking around during an eight hour working day every 45 minutes for about five minutes at a time, would need a position that allowed shifting positions at will from sitting, standing or walking, would need to take unscheduled breaks during an eight hour day, that would be unpredictable. Could rarely lift, lift less than 10 pounds and never 10 pounds or more, could rarely twist, stoop, crouch, squat and would miss about four days of work per month. With those limitations would the individual be capable of past work or any other work?
(Tr. 96-97). Dr. Magrowski indicated he did not know of any work. (Tr. 97).
Counsel asked Dr. Magrowski to assume Dr. Morris' report:
... this person could occasionally lift up to 10 pounds, never 11 pounds or more and could never carry up to 10 pounds. The individual could only sit for 15 minutes at a time, stand for 10 minutes at a time and walk for 10 minutes at a time for a total of only two hours in an eight hour work day of sitting, 30 minutes of standing and 15 minutes of walking and would need a cane to ambulate, must never reach overhead with either the left or right hand and never to reach in all other directions with the left or right hand, never push or pull, never to use foot controls on the right but occasionally use foot controls on the left, who is never to climb stairs, ramps, ladders, scaffolds, balance, stoop, kneel, crouch or crawl, never work at unprotected heights, moving mechanical parts or operating a motor vehicle. With those limitations would anybody be capable of past work or other work?
(Tr. 97). Dr. Magrowski responded no and noted elevation of legs is not allowed in competitive employment. (Tr. 97). Dr. Magrowski explained that an individual would have to remain on task and meet the expectations of the employer at least 95% of the time to be viewed as successful. (Tr. 98).
3. Testimony of Medical Experts Dr. Anne Winkler and Dr. James Reid
Dr. Anne Winkler is board certified in internal medicine and rheumatology. (Tr. 74). Dr. Winkler testified that a review of the medical record shows Claimant has irritable bowel syndrome, probable fibromyalgia, chondromalacia patella, mild osteoarthritis in her knees, obesity, sjogren's syndrome, diabetes controlled by diet, and rheumatoid arthritis. (Tr. 76-77). Based on her review of the record, Claimant could not equal any listing. (Tr. 78). Dr. Winkler opined she was not comfortable making the diagnosis of actual fibromyalgia without additional physical examination findings such as any positive control point. (Tr. 79). Dr. Winkler noted how the medical records do not reflect a doctor prescribing the use of one or two canes, and she would not prescribe any canes. (Tr. 79-80).
Based on the documented data, Dr. Winkler found Claimant able to lift or carry twenty pounds occasionally, ten pounds frequently; she could stand or walk six hours in an eight-hour workday; and she has not limits with respect to sitting. (Tr. 80). Her postural limitations would include occasional stairs; never use ladders, ropes, or scaffolds; frequent balance, bend and occasional stooping, kneeling, crouching, and crawling. Dr. Winkler found she does not have any manipulative, visual, or communicative limitations. With respect to environmental limitations, Dr. Winkler found she should avoid unprotected heights, concentrated exposure to sun or cold, wet and some humidity. (Tr. 80).
Dr. James Reid, a clinical psychologist, found Claimant to have borderline intellectual functioning and depression and to be noncompliant off and on. (Tr. 87). Dr. Reid also included cannabis abuse in May 2009. (Tr.88). Dr. Reid opined Claimant would not meet or equal any listing, and he agreed with the state agency on the psychiatric review technique finding mild limitations on daily activities, mild on social functioning, and moderate on concentration, persistence, and pace and none on episodes of decompensation. (Tr. 88).
III. Medical Records and Other Records
To obtain disability insurance benefits, Claimant must establish that she was disabled within the meaning of the Social Security Act not later than the date her insured status expired - March 31, 2010. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998) ("In order to receive disability insurance benefits, an applicant must establish that she was disabled before the expiration of her insured status."); see also 42 U.S.C. §§ 416(I) and 423(c); 20 C.F.R. § 404.131.
Dr. Steven Johnson performed a hysterectomy on June 4, 2002 to relieve her pelvic pressure. (Tr. 482). Dr. Johnson found Claimant to be quite well oriented in time and space. (Tr. 482).
The January 26, 2006 Body Bone Scan showed mildly increased uptake of radiopharmaceutical at T7 to T8 probably degenerative in nature, increased uptake at left knee may be postoperative or secondary to osteoarthritic change, increased at right knee secondary to arthritis, and increased uptake at sternum and AC joints. (Tr. 460, 604).
On May 11, 2006, Dr. Reyna Caldwell completed an initial evaluation and then follow-up treatment at St. Louis University Rheumatology Clinic. (Tr. 553). She reported one month earlier she noticed bilateral hand pain and swelling but prior to then, she had no problems with her hands. She underwent arthrocentesis, and she did not have any evidence of rheumatoid arthritis. At the initial visit, she presented stating that she was her for a second opinion of this diagnosis. (Tr. 553). Musculoskeletal examination showed diffuse tenderness of all the small joints of her left hand, bilateral wrists, left elbow, and bilateral second, third, and fourth MTPs, but she had no active synovitis in any of these joints. (Tr. 554). Her grip strength was assessed to be 100% bilaterally. Dr. Caldwell listed positive rheumatoid factor, arthalgias, myalgias, and fatigue, and elevated sedimentation rate as her impression. When she returned, Claimant had not had the xrays requested, but she did have the laboratory evaluation. (Tr. 555). Dr. Sona Kamat found she most likely has a Sjogren's/lupus like overlap syndrome, prescribed Plaquenil, and requested she follow up in three months for further evaluation. (Tr. 555).
On May 25, 2006, Dr. David Kiefer performed an arthroscopy, chondral abrasion, abrasion of arthroplasty of medial femoral condyle, and resection of medial synovial plica. (Tr. 492-93). Her past medical history included arthritis, borderline diabetes, endometriosis, gastroesophageal reflux disease, and irritable bowel syndrome. (Tr. 494). She had right knee trace effusion, a positive McMurray sign, and medial joint line tenderness. (Tr. 494). Right medial meniscus tear was the pre-procedure diagnosis. (Tr. 495).
Claimant presented in the emergency room on February 7, 2007 for evaluation of abdominal pain, and she reported having a history of sjogren's syndrome, endometriosis, hysterectomy, orthopedic left and right knee surgeries, and genitourinary disease, and no previous psychiatric history. (Tr. 582). The psychiatric examination showed her to be oriented 3 ...