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Ryan v. Colvin

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

February 26, 2015

KIMBERLY J. RYAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


CAROL E. JACKSON, District Judge.

This matter is before the Court for review of an adverse ruling by the Social Security Administration.

I. Procedural History

On August 5, 2011, plaintiff Kimberly J. Ryan filed an application for disability insurance benefits, Title II, 42 U.S.C. ยงยง 401 et seq., with an alleged onset date of August 4, 2010.[1] (Tr. 139-45, 153-54). Her insured status under Title II expired on December 31, 2010. (Tr. 22, 165). After plaintiff's claim was denied initially and on reconsideration (Tr. 90, 92), she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 100-101).

Plaintiff and counsel appeared for the hearing on October 30, 2012. (Tr. 38-89). The ALJ issued a decision denying plaintiff's application on December 12, 2012 (Tr. 17-37). The Appeals Council denied plaintiff's request for review on January 23, 2014. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

II. Evidence Before the ALJ

A. Disability Application Documents

In her Disability Report filed on August 15, 2011 (Tr. 168-75), plaintiff listed her disabling conditions as neuropathy, depression, anxiety, diabetes, and hypertension. She took prescription medications for acid reflux, blood pressure, irritable bowel syndrome, neuropathy, blood pressure, high cholesterol and triglycerides, diabetes and depression. Plaintiff was 5'1'' tall and weighed 229 pounds. (Tr. 169). She remarked that her husband was out of town 90% of the year for work, and her daughter helps her pay her bills, cook dinner, complete housework, and pick up her food and medications. (Tr. 175). She also noted that she had fallen twice in the past two months because of her neuropathy, and had numbness in her feet and legs.

In her Function Report completed on August 28, 2011 (Tr. 186-200), plaintiff listed her daily activities as having coffee, watching television, talking on the phone, feeding her cats, and showering every other day. She noted that her daughter lived close by and sometimes brought food to her. Otherwise, plaintiff prepared soups, cereal, and sandwiches on a daily basis for herself. Plaintiff stated that her medicines make her tired, and that she falls "a lot" because of problems with her legs and feet. (Tr. 190). She also reported not sleeping much at night and napping during the daytime. Plaintiff could dress and shower on her own, but could not get out of the bathtub by herself. (Tr. 191). She shopped twice a month, and stated it took a long time because she found the motor carts were difficult to operate. (Tr. 193).

Plaintiff further noted in her Function Report that she could not sit in one position for very long because of pain, so she would "lay around a lot" or try to move around to placate the pain. (Tr. 194). She could not drive, because she could not sit for long periods of time. (Tr. 199). Plaintiff's social activities included spending time with friends and family who sometimes visited her. She went to church on holidays. When she went out, her daughter accompanied her. Plaintiff reported an inability to climb a flight of steps without resting for a few minutes. She could follow written instructions if she understood them. She reported that she walked away from her previous job because she was about to get into a fight, and as a result she was terminated. (Tr. 196). Plaintiff did not handle stress well, and became shaky and cried a lot. She reported using a cane regularly.

Plaintiff's daughter, Rebekah Christian, completed a Third-Party Function Report on August 29, 2011. (Tr. 210-18). Ms. Christian spent more than three hours per day with plaintiff. She reported that plaintiff's daily activities consisted of taking naps, drinking coffee, watching television, smoking on her porch, talking on the phone, using a computer, taking medications, and visiting Ms. Christian's home three nights a week. Ms. Christian stated that she took care of plaintiff's two cats, did her laundry, prepared her dinner, and did her shopping and housework. (Tr. 212). She noted that plaintiff became drowsy after taking her medication, and wakes throughout the night with leg pain and discomfort. Ms. Christian ensured that plaintiff took her medications timely. Plaintiff could not stand at the kitchen stove for any length of time to prepare food due to the weakness and numbness in her legs. (Tr. 213).

Ms. Christian also stated that plaintiff did not socialize or go to public places unless absolutely necessary. Plaintiff was able to drive to pick up her prescription medications three times a month. Ms. Christian paid her mother's bills and handled her financial affairs. Plaintiff had very strained relationships with everyone due to her emotional state, nerves, and anxiety. (Tr. 215). She was very withdrawn and antisocial. Ms. Christian did not report plaintiff's use of a cane. (Tr. 217). Plaintiff had an 8th grade education and had difficulty with following instructions and concentration. She also had difficulty with lifting, sitting, climbing stairs, squatting, standing, kneeling, bending, and walking. (Tr. 218).

In a Function Report filed on November 15, 2011 (Tr. 219-24), plaintiff stated that her feet were worse and she was falling more frequently, which caused a recent back and foot injury. She stated that she had chipped a bone in her right foot from a fall, and had begun physical therapy for her back injury. She had to take shorter showers, and could not sit, stand, or walk for long periods. (Tr. 222). Plaintiff also reported that her anxiety had worsened, as she became upset by having other people do things for her. (Tr. 223). She stated that it was overwhelming to not be able to do things she loved, such as yard work and playing with her grandchildren.

In a statement she provided on September 28, 2012 (Tr. 229-30), plaintiff reported she had quit her last job, because it had "just got to the point where it wasn't worth the stress and I couldn't deal with it." Stress made her physically ill. She stated that it was difficult to get out of bed in the morning, and she had to scoot out of bed and use a walker. If she did not have an appointment, she would sit around, keeping everything she needed near her recliner. Plaintiff also stated she paced around and "had a problem with OCD in the past with cleaning." (Tr. 229). She also reported problems with her memory.

B. Testimony at the Hearing

Plaintiff was 47 years old at the time of the hearing (Tr. 139). She lived with her husband, who was out of town 90% of the time. (Tr. 44). The highest grade she completed in school was eighth grade, and she did not have a GED. (Tr. 45). She did not work, because of her anxiety and because it took her three hours to get out of bed in the morning. (Tr. 45, 66). She had to scoot out of bed on her stomach, use a walker, and could neither stand nor sit for long. She props both her legs and feet up three to four times a day for 20-30 minutes at a time to lessen swelling because of neuropathy. She brought a cane to the hearing, and said she had been using it since before December 2010. Initially she did not have a prescription for the cane, but in May 2012, after she had major back surgery, both the cane and a walker were prescribed. (Tr. 46-47, 63).

Prior to December 2010, plaintiff experienced "a lot" of back pain and could not bend over. (Tr. 47). When she stood, her upper thighs went number and she would need to sit down for a while. She could stand for 15-20 minutes at time. Overall, her back condition was about the same in terms of severity since August 2010, until it worsened in 2012. (Tr. 49). In May 2012, she had back fusion surgery with a cage. (Tr. 48). Prior to December 2010, she received physical therapy for her back problems.

Plaintiff had neuropathy in her legs because of diabetes. (Tr. 52). Plaintiff testified that her legs would frequently give out on her causing her to fall, and she had numbness in her feet and upper thighs. She also had anxiety that caused problems with the job she had prior to 2010. Once, plaintiff threatened to "rip [a co-worker's] face off." (Tr. 53). Plaintiff walked off the job and never returned. Her anxiety and depression also caused her to be absent from work. (Tr. 54). She additionally experienced shortness of breath. (Tr. 65). Stress caused her to "just want to shut everybody out." (Tr. 65).

In 2010, plaintiff took a low dose of Xanax for anxiety. The medicine caused her to fall asleep but helped when she was awake. (Tr. 54-55). She stopped taking Xanax in 2012, prior to her back surgery, and began taking Valium. (Tr. 55). Plaintiff had been taking an antidepressant, Lexapro, since her mother died in 1981. (Tr. 55-56). She had temporarily seen a mental health provider after her mother's death, but had not since returned. (Tr. 56). Her anxiety and depression caused her to cry often and she had a short fuse. (Tr. 56, 69). Plaintiff had problems dealing with other people because she would take things the wrong way, causing conflicts with her family. (Tr. 57). She testified to past problems with compulsive behavior, such as playing with pieces of adhesive tape and frequently vacuuming, wiping surfaces, and moving things. (Tr. 67).

On a typical day, plaintiff stayed at home, drank coffee, and watched television. (Tr. 57). She did light household chores, but her daughter vacuumed and did the laundry. She did not go shopping, because she could not walk through a store for too long. She occasionally visited her grandchildren at her daughter's house. (Tr. 58). She had two cats and a small dog that were mostly cared for by her daughter. (Tr. 59). In 2010 she slept approximately four hours a night, and napped a few hours a day five days a week. (Tr. 61-62). She used a grabber on a stick to dress herself. (Tr. 64). She used a shower chair that was prescribed for her in May 2012. Plaintiff testified to an inability to concentrate on paperwork, and stated that her daughter had taken care of her bills since 2008. (Tr. 68). She testified to calling her daughter "20 plus" times a day. (Tr. 70).

The ALJ asked plaintiff about her past work experience. (Tr. 78-80). From 2005 to 2008, plaintiff had worked full time as a secretary, answering phones and filing papers. While plaintiff reported other jobs she had performed in the 15 years prior to the date she was last insured, the secretarial position was the only job performed at a substantial gainful activity level.

Michael J. Wiseman, a vocational expert, provided testimony regarding the employment opportunities for an individual of plaintiff's age, education, and work experience, who is able to lift and carry 20 pounds occasionally and 10 pounds frequently, stand, walk, or sit for six hours in an eight hour work day, and can occasionally climb ramps and stairs but does not climb ladders, ropes or scaffolds. The ALJ asked the vocational expert if this individual could perform any of the plaintiff's past relevant jobs. Mr. Wiseman opined that such a person could perform work as a secretary, which is at the skilled, sedentary level, and also could perform work at the unskilled, sedentary level. (Tr. 81). Specifically, such an individual could perform the job of an order clerk in the food and beverage industry. At the light level, Mr. Wiseman stated that such an individual could perform the job of an arcade attendant or parking lot attendant. (Tr. 82).

The ALJ next asked Mr. Wiseman if there were any job positions for an individual with the same limitations as in the first hypothetical, but was further limited to simple and routine tasks with occasional contact with co-workers, supervisors, and the public. Mr. Wiseman opined that neither plaintiff's past secretarial work nor the jobs previously mentioned were options for such an individual. However, such an individual could perform the job of a housekeeper or an electronics assembler. (Tr. 83).

In a third hypothetical, the ALJ asked the vocational expert if there were any jobs for an individual with the mental limitations stated in the second hypothetical and with physical limitations that limited the individual to sedentary work, and who would be able to stand, walk or sit two hours total in an eight hour work day, but would need to be off the feet for up to five minutes for every 30 minutes of standing, walking or sitting; had no operation of foot controls with the bilateral lower extremities; no ladder, rope or scaffold climbing; occasional ramp, stair climbing, occasional stooping, balancing, kneeling and crouching; no driving automotive equipment; and no working at unprotected heights or around hazardous machinery. (Tr. 84). Mr. Wiseman opined that there was a large range of sedentary, unskilled work for such a person. Specifically, such an individual could perform the job of a table worker who works on parts on a table and as a clerical mailer or addressor. Mr. Wiseman noted that the Dictionary of Occupational Titles (DOT) does not deal with the sit/stand option the ALJ gave, and his opinion was based on his experience placing individuals in the regional and national economy. (Tr. 84-85).

In a fourth hypothetical, the ALJ asked Mr. Wiseman if there was any work for a hypothetical person with all of the limitations of the third hypothetical, and with the further limitation of only being able to sit for two hours in an eight hour work day. (Tr. 85). The vocational expert opined that this additional factor would eliminate all competitive work. Plaintiff's counsel then asked the vocational expert to return to the first hypothetical, and asked if such a person could perform the occupations listed if the person would need to assume a reclining position for up to 30 minutes, one to three times a day. (Tr. 86). Mr. Wiseman opined that this factor would eliminate competitive employment. (Tr. 87).

Due to his concern for the lack of medical records from the time period for which plaintiff was seeking disability benefits, the ALJ gave plaintiff's counsel three weeks to obtain an additional medical statement from Dr. Chad Smith regarding plaintiff's condition in 2010 to assist in the ALJ's review of the evidence. (Tr. 72-76, 88).

C. Medical Records

On August 7, 2008, plaintiff sought treatment at the St. Charles Medical Clinic for bilateral foot pain from her toes to anterior shin, which had been ongoing for approximately two weeks. (Tr. 301-03). She stated that her feet felt "like they're on fire." (Tr. 301). The pain was described as equal, constant, and interfered with her sleep. A history of tarsal tunnel syndrome[2] per imaging was noted, with no surgery. Plaintiff was diagnosed with diabetes mellitus type II without complications and unspecified mononeuritis[3] of the lower limb. (Tr. 303). It was noted that plaintiff's pain could be attributed to tarsal tunnel, and she was advised to follow-up with an orthopedic physician. Plaintiff was recommended to try Neurontin[4] with tapering for discomfort.

Plaintiff was referred to Richard B. Helfrey, D.O. at St. Peters Bone & Joint Surgery on September 22, 2008. (Tr. 237-38). She reported a several month history of numbness and burning sensation in both of her feet. Gabapentin4 had not had a significant effect. An EMG nerve conduction velocity evaluation had demonstrated a normal EMG of both the legs and feet. A nerve conduction velocity evaluation showed marginal evidence of lateral plantar nerve entrapment on the right. She had a good range of motion in her knees, ankles and subtalar joints. Her deep tendon reflexes were brisk and symmetric. Dr. Helfrey's opinion was that plaintiff had bilateral tarsal tunnel entrapment.2 He also opined that she could have underlying diabetic neuropathy, which would then substantiate a double crush phenomenon to the bilateral feet. The doctor determined to start her slowly with some stretching and flexibility work to her calves, since they were exceedingly tight. He continued her on the gabapentin, and scheduled a follow-up appointment. He also broached the subject of surgical intervention with release, which he did not feel was mandatory at that time. Dr. Helfrey stated that he preferred non-operative intervention, which was "absolutely reasonable." (Tr. 238).

Plaintiff returned to St. Charles Medical Clinic on October 20, 2008, reporting right lower back pain for the past 48 hours. (Tr. 298-301). The pain had started after carrying things into the house on Saturday, pulling a lower back muscle. Pain radiated into the front of her legs, and they felt a little numb. Plaintiff was diagnosed with lower back pain with radiation and blood in her urine. She was instructed to continue Tylenol and Aleve, use heat as needed, and to not do any heavy lifting. She stated that Tramadol[5] did nothing for her pain in the past. She was advised to consult with Dr. Smith for a refill of Vicodin and incidental refill of Xanax as needed for her anxiety.

On November 7, 2008, plaintiff saw Chad J. Smith, D.O., at the St. Charles Medical Clinic for a follow-up from an emergency room visit. (Tr. 292-98). She complained of right lower quadrant abdominal pain for the previous three weeks. An emergency room visit revealed "blood on the dipstick" and a white blood cell count of 12, 000, indicating a kidney infection. (Tr. 292). Plaintiff also had marked lipid and triglyceride elevations. Dr. Smith prescribed a microscopic urinalysis and culture, an ultrasonogram of her pelvis, Gemfibrozil, [6] and follow-up in one week. Plaintiff's urine testing was normal, without a ...

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