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Brady v. Colvin

United States District Court, Eastern District of Missouri, Eastern Division

March 5, 2015

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



This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of Defendant's final decision denying Plaintiff s applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and for Supplemental Security Income ("SSI") under Title XVI of the Act. For the reasons set forth below, the Court reverses the decision of the Commissioner and remands for further proceedings.

I. Procedural History

On June 14, 2011, Plaintiff protectively filed applications for DIB and SSI alleging disability beginning November 10, 2010 due to swelling of left foot, ankle, and leg. (Tr. 102, 154-63) The applications were denied, and Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 100-06, 112) On April 5, 2012, Plaintiff testified before an ALJ. (Tr. 75-99) On November 16, 2012, the ALJ determined that Plaintiff had not been under a disability from November 10, 2010, through the date of the decision. (Tr. 79-90) Plaintiff then filed a request for review, and on August 12, 2013, the Appeals Council denied said request. (Tr. 1-4) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

At the April 5, 2012 hearing before the ALJ, Plaintiff was represented by counsel. Plaintiff s attorney first informed the ALJ that Plaintiff was recently hospitalized at St. Anthony's Hospital, and she had a sleep apnea study scheduled at Washington University. The ALJ agreed to leave the record open for 60 days to submit additional records. (Tr. 77-79)

Counsel then presented an opening statement, indicating that Plaintiff was recently placed on diabetic medications. She noted, however, that the case primarily pertained to Plaintiff s ankle and that Plaintiff s doctor recently indicated that she may need another surgery on her ankle. Although Plaintiff had not been treated for depression, counsel believed that a psychiatric consulting examination was appropriate. (Tr. 80)

The ALJ then questioned the Plaintiff, who testified that she was born on August 26, 1970. She was 5 feet tall and weighed 245 pounds. Plaintiff had lost 27 pounds after her pregnancy . Plaintiff was single and had two children ages 15 and 5 1/2 months. Plaintiff lived in h Section 8 housing with her children and her mother. She had a 12th[1] grade education and did not attend college or receive vocational training. Plaintiff ceased working in November 2010, although she attempted to return to work for Metro in May 2011. Her doctor took her off work due to medical complications and her pregnancy. She had not filed for unemployment benefits or worker's compensation. Plaintiff and her youngest child received Medicaid. She also received child support for the older child. Plaintiff s past relevant work included driving a bus for student management and babysitting. She denied any problems with alcohol, illicit drug use, or police. (Tr. 81-84)

Plaintiff s attorney also questioned her regarding her ankle problems, which she stated began in 2005. She fell down some stairs and broke her ankle in two places. One and one half years after the injury, her feet and ankle started swelling. Doctors told her that arthritis had set into her ankle, and one doctor diagnosed plantar fasciitis. Although the doctor recommended exercises, Plaintiff was convinced something else was wrong. Her leg then started swelling and becoming numb. Plaintiff testified that a different clinic ran a test that showed abnormal blood flow in her left leg. Because her insurance was limited, Plaintiff was unable to follow up. Two years later, she found a foot doctor who put her in a boot. She informed the doctor that she was unable to drive the Metro bus wearing the boot, but the doctor told her she needed to keep the boot on. When Plaintiff informed Metro about the boot, they told her she could not work while wearing the boot, and they placed her on leave. Plaintiff further stated that, after her doctor received the MRI results, he referred her to a specialist for surgery. Dr. Harry Visser assessed five chronic tom ligaments which caused severe swelling. Dr. Visser performed surgery on December 2, 2010. Plaintiff wore a cast for 2 1/2 weeks then attended physical therapy. However, her ankle continued to swell. (Tr. 85-90)

She returned to work at Metro in May 2011 but was only able to work for three or four weeks due to continuing problems with swelling in her ankle and with her pregnancy. Dr Visser and her OB/GYN advised Plaintiff to stop working until she delivered the baby. However, Plaintiff testified that she continued to have problems with her ankle swelling. Therapy and cortisone shots did not help. Plaintiff stated that Dr. Visser wanted to clean out the ankle but also indicated that she could have irreparable nerve damage. She last saw Dr. Visser in February 2012 for a cortisone shot. He prescribed water pills to try to decrease the swelling until he could perform surgery. Plaintiff stated that Dr. Visser was certain that she had nerve damage in her ankle because he could not understand the continued swelling. The ALJ noted that Dr. Visser assessed a stable ankle with some edema. Plaintiff explained that her ankle was stable but still swelling and that Dr. Visser wanted to perform surgery. (Tr. 90-91, 97-98)

Plaintiff also testified that she was recently hospitalized after her tongue swelled and she was unable to breathe. The physicians gave her steroids, which Plaintiff believed caused her diabetes. However, Plaintiff had not been diagnosed with diabetes and planned to see a specialist. With regard to her sleep apnea, Plaintiff stated that she planned to see someone for a sleep study. Her doctor indicated a possibility that sleep apnea caused a heart valve to not close all the way. Plaintiff further stated that she felt depressed after losing her job at Metro and after 5 years of misdiagnoses. She believed that she would not be suffering if the doctors would have properly diagnosed her ankle problem earlier. (Tr. 91-93)

Plaintiff stated that she had to resign from Metro in December of 2011. Her mother lived with her and helped with the house and the baby. Plaintiff was able to perform limited housework. She could prepare her baby's bottles, but her mother did the laundry because the washer and dryer were downstairs, and her ankle swelled after using the stairs. Plaintiff stated that she could only stand for about 2 hours before her ankle swelled and she needed to elevate it. She could drive but not for long periods of time because the swelling caused numbness. Plaintiff specified that she could drive for 2 or 3 hours before needing to stop and elevate her ankle.

Plaintiff s mother did the cooking and grocery shopping. Sometimes Plaintiff shopped, but she rode in the wheelchair cart. Plaintiff stated that she had trouble getting to sleep, and then she only slept about 3 hours. She did not visit friends but was able to leave the house for doctor's appointments. She went out to eat with her oldest child once a month. Plaintiff opined that she could sit 2 or 3 hours before her ankle swelled. She needed to elevate her ankle to reduce the swelling. She had difficulty getting in and out of the tub because she was unable to lift her leg when her ankle was swollen. (Tr. 93-96)

On August 22, 2012, Brenda Young, a vocational expert ("VE") completed a Vocational Interrogatory. She noted that Plaintiff had past work experience as a home health aide, which was medium, semi-skilled work, and a bus driver, which was also medium, semi-skilled work. The VE assumed a hypothetical individual like Plaintiff who was limited to sedentary work with an inability to climb ladders, ropes, or scaffolds; kneel; crouch; or crawl. The person could occasionally climb ramps or stairs, as well as stoop. She could not operate foot controls and needed to avoid concentrated exposure to extreme vibration and all exposure to operational control of moving machinery, working at unprotected heights, and using hazardous machinery. The individual required work with simple, routine, and repetitive tasks in a low stress job, with only occasional decision making and changes in the work setting. Further, she could have no interaction with the public and only casual and infrequent contact with co-workers. In light of this hypothetical, the VE stated that the individual could not perform any of Plaintiff s past jobs. However, she could perform jobs existing in the local and national economies, including small product assembler. This job was listed in the Dictionary of Occupational Titles as "light, " but a small number are performed at the sedentary level. (Tr. 239-42)

III. Medical Evidence

On January 26, 2010, Plaintiff saw Dr. Felicia Brown for complaints of pain and swelling in her left ankle post-fracture. Her left ankle was tender to palpation, but Dr. Brown observed no swelling. (Tr. 328-29) Left ankle x-rays taken on February 2, 2010 showed no fracture or dislocation, but a calcaneal spur was present. (Tr. 332)

Darnetta Carter, LCSW, met with Plaintiff on February 25, 2010 for complaints of depression and anger because she was unable to retain her job as bus driver due to chronic pain and swelling in her ankle. Plaintiff reported angry outbursts, irritability, difficulty sleeping, nervousness, and mood swings. Her relationship with her teenage daughter had become strained due to her symptoms. Ms. Carter referred Plaintiff to psychiatry. (Tr. 323)

That same date, Plaintiff saw William Feldner, D.O., due to her previous left ankle injury that resurfaced with pain and swelling radiating up her leg and hip. Examination revealed was obesity, normal gait, and normal exam of left foot and ankle. X-ray findings were minimal, and Dr. Feldner opined that Plaintiff needed ankle rehabilitation and weight loss to fix her problem. (Tr. 325-26)

Plaintiff returned to Dr. Brown on March 1, 2010 for complaints of ankle pain. Dr. Brown noted that Plaintiff had gained weight. She also complained of feeling anxious and depressed. Examination of her left ankle was essentially normal. Dr. Brown prescribed Celexa for depressive disorder and referred her to radiology. (Tr. 321) Dr. Brown examined Plaintiff on March 22, 2010 to follow up on her depression and medications. Plaintiff had no new complaints or problems. She complained of being anxious and depressed but was in no acute distress. Plaintiff had a scheduled psychiatric appointment and ...

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