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Asaro v. Colvin

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

February 17, 2015

LAURA ASARO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

DAVID D. NOCE, Magistrate Judge.

Plaintiff Laura Asaro brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision denying her application for supplemental security income (SSI) under Title XVI of the Social Security 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 not supported by substantial evidence on the record as a whole, it is reversed.

I. Procedural History

On January 24, 2011, plaintiff applied for SSI claiming she became disabled on May 31, 2009, because of depression, heart conditions, lumps in the breast, high cholesterol, anxiety, and high blood pressure. (Tr. 111-16, 169.) On initial consideration, the Social Security Administration denied plaintiff's claim for benefits. (Tr. 52, 56-60.) A hearing was held before an administrative law judge (ALJ) on June 21, 2012, at which plaintiff and a vocational expert testified. (Tr. 27-45.) The ALJ issued a decision denying plaintiff's claim for benefits on July 25, 2012, finding plaintiff able to perform work as it exists in significant numbers in the national economy. (Tr. 8-22.) On August 28, 2013, the Appeals Council denied plaintiff's request to review the ALJ's decision. (Tr. 1-5.) The ALJ's decision 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 specifically that the ALJ erred in discounting the opinion of her treating psychiatrist, Dr. Desai. Plaintiff also contends that the ALJ's determination of her residual functional capacity (RFC) is not supported by any medical evidence of record and that the ALJ failed to cite any evidence to support his RFC findings. Plaintiff requests that the final decision be reversed and that she be awarded benefits, or that the matter be remanded for further proceedings. For the following reasons, the matter will be remanded for further consideration.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the hearing on June 21, 2012, plaintiff testified in response to questions posed by the ALJ and counsel.

At the time of the hearing, plaintiff was forty-four years of age. Plaintiff is a high school graduate. (Tr. 29.) Plaintiff stands five feet, four inches tall and weighs 170 pounds. (Tr. 33.) Plaintiff lives in an apartment with her boyfriend. (Tr. 40.)

Plaintiff testified that she previously worked full time at fast food restaurants, performing work as a cashier and cook. (Tr. 29-30.) Plaintiff testified that she was fired from her last job at McDonald's because she could not perform closing duties on account of chest pain. (Tr. 32.) Plaintiff testified that she last worked from August 2011 to May 2012, part-time in a school cafeteria. (Tr. 29-31.) Plaintiff testified that such work ended because the school year ended and also because of difficulties performing her duties. When plaintiff left this employment, she was working from 6:30 a.m. to 1:30 p.m. with a thirty-minute break. Plaintiff testified that she was uncertain whether she would be physically or emotionally able to return to this work in the fall. (Tr. 31.)

Plaintiff testified that she could not work full time in the school cafeteria because of depression. Plaintiff testified that she was affected by the meanness of her coworkers and the children and sometimes had to leave her duty station to call and talk to her case worker in order to calm down or to take medication. Plaintiff testified that she did not like to take medication while at work because it made her confused and interrupted her job performance. (Tr. 35.) Plaintiff testified that she had approximately ten meltdowns at work during the school year but that some coworkers recognized that she had a problem and would let her sit for a while. (Tr. 37.) Plaintiff also testified, however, that working sometimes took her mind off of her problems such that she did not experience problems with depression or anxiety while working. (Tr. 33.)

Plaintiff testified that her depression causes her to be afraid of everything. She does not like to be out in public and is fearful in crowds. Plaintiff testified that she is afraid to leave her home, fearing that something will happen. Plaintiff is also afraid she will be unable to work, causing her to become homeless again. Plaintiff testified that she does not drive because of her fear of being in an accident. Plaintiff testified that she must be with someone while shopping and does not feel safe otherwise. (Tr. 35, 41-42.)

Plaintiff testified that she experiences depression every day and paces between her bed and couch. Plaintiff testified that she has panic and/or anxiety attacks when she thinks about her situation or is confronted with her emotions. Plaintiff testified that she cries during such episodes and gets angry and short of breath. Plaintiff also experiences chest pain during such episodes for which she takes nitroglycerine and then calls for an ambulance. Plaintiff testified that she has experienced such attacks while at work. (Tr. 36-37.) Plaintiff testified that her doctor has diagnosed her with bipolar disorder. (Tr. 39-40.)

Plaintiff testified that she has a short attention span and her mind wanders. Plaintiff testified that her children need to touch her when talking to her in order to get her attention. Plaintiff has difficulty following directions, staying focused while reading, and remembering things. (Tr. 37.) She does not watch television because of her inability to focus. (Tr. 41.)

Plaintiff testified that her heart races and she experiences chest pain when she is upset, nervous, or anxious. Plaintiff had stent placement in 2004 and currently takes medication for high cholesterol. (Tr. 33-35.) Plaintiff testified that her heart continues to race and that such condition has been attributed to an aggravated nerve around the stent for which an ablation has been suggested. Plaintiff testified that her episodes of a racing heart last from fifteen to twenty minutes and that medication given at the hospital relieves the symptoms. Plaintiff testified that she has had one- or two-day stays at the hospital and has been told at discharge that the condition is related to her anxiety disorder. (Tr. 38.)

Plaintiff testified that she also has pain in her feet, which makes it difficult sometimes to get out of bed. (Tr. 34.) Plaintiff testified that she walks on her tiptoes because of the pain she experiences when the bottom of her feet touch the floor. Plaintiff testified that she can stand for about fifteen minutes but cannot do much walking. (Tr. 38-39.)

Plaintiff testified that she takes medication for her conditions and experiences no side effects. (Tr. 39.)

Plaintiff testified that she has worked with a case manager for about a year from whom she receives help in obtaining services from the community, such as food pantry assistance and getting to doctor's appointments. Plaintiff testified that she also calls her case manager when she is having a meltdown. Plaintiff testified that her mother lives nearby and visits two or three times a week, during which time she cooks for plaintiff. Plaintiff testified that she otherwise cooks quick, microwavable meals. (Tr. 40-41.)

B. Vocational Expert Testimony

Dr. John McGowan, a vocational expert, testified at the hearing in response to questions posed by the ALJ and counsel.

The ALJ asked Dr. McGowan to consider an individual of plaintiff's age, education, and past work experience and who could

lift and carry 20 pounds occasionally, 10 pounds frequently, requires a sit/stand option, which she can change positions at will. Can occasionally climb stairs and ramps, never ropes, ladders and scaffolds. Can occasionally stoop, crouch and kneel. Should avoid concentrated exposure to unprotected heights. In addition, this hypothetical claimant is able to understand, remember and carry out at least simple instructions and non-detailed tasks. Can adapt to routine, simple work changes and can perform work at a normal pace without production quotas.

(Tr. 42-43.) Dr. McGowan testified that the sit/stand option would prevent the performance of plaintiff's past relevant work as a fast food worker but that other work could be performed, such as school bus monitor, of which 1, 020 such jobs exist in the State of Missouri and 79, 280 nationally; and children's attendant, of which 810 such jobs exist in the State of Missouri and 21, 400 nationally. (Tr. 43.)

Counsel then asked Dr. McGowan to consider the same individual, but that she was also limited to less than occasional contact with the general public, supervisors, and coworkers. Dr. McGowan testified that such a person could not perform the jobs to which he previously testified. Counsel then asked Dr. McGowan to assume the individual would be off task for an average of five to ten minutes every hour, to which Dr. McGowan testified that such a person would probably be let go if such behavior happened regularly. (Tr. 44-45.)

III. Medical Evidence Before the ALJ

On July 9, 2010, plaintiff was admitted to the emergency room at St. Alexius Hospital with complaints of intermittent heart palpitations. It was noted that plaintiff had been admitted earlier that same date with the same complaint but left without evaluation. An ECG from her earlier admittance was abnormal in that it showed septal infarct. Plaintiff's current symptoms resolved prior to her arrival at the emergency room. Plaintiff reported that she had medication to take daily for the palpitations but was not compliant. Physical examination was normal. Plaintiff was diagnosed with cardiac rhythm disturbance and was prescribed Atenolol.[1] Plaintiff was instructed to take her medication and to follow up with a doctor within one week. (Tr. 279-88, 296-99.)

Plaintiff was admitted to the emergency room at St. Louis University (SLU) Hospital on July 20, 2010, with complaints of a sudden onset of chest pain associated with dizziness, shortness of breath, and lightheadedness. Plaintiff reported in the emergency room that she had not experienced similar symptoms in the past. The current pain resolved while plaintiff was in the emergency room. Plaintiff reported having previously had a myocardial infarction in 2004 with stent placement. Plaintiff's current medications ...


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