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Whitmore v. Colvin

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

April 24, 2015

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


NANNETTE A. BAKER, Magistrate Judge.

Plaintiff Dorthelia Whitmore brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking 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 supported by substantial evidence on the record as a whole, it is affirmed.

I. Procedural History

Plaintiff applied for SSI on January 27, 2011, claiming disability because of heart failure, bypass surgery, and hypertension. She alleges a disability onset date of January 26, 2011. The Social Security Administration initially denied plaintiff's application on July 7, 2011. After a hearing on November 20, 2012, at which plaintiff and a vocational expert testified, an administrative law judge (ALJ) entered a written decision on January 18, 2013, finding plaintiff not disabled because of her ability to perform work as it exists in significant numbers in the national economy. On February 20, 2014, the Appeals Council denied plaintiff's request to review the ALJ's adverse decision. The ALJ's decision thus became the final decision of the Commissioner. 42 U.S.C. § 405(g).

Plaintiff now requests this Court to review the ALJ's decision, arguing that the medical evidence of record establishes that she is disabled because of her heart bypass surgery and her continuing symptoms of chest pain and shortness of breath. Plaintiff also contends that she is limited by swelling and tightness in her hands and feet caused by arthritis, and that she cannot stand for long periods of time because of restless leg syndrome. Plaintiff also argues that the ALJ considered only the objective medical evidence of record and failed to consider her subjective complaints of disabling symptoms. Plaintiff proceeds in this cause pro se and has filed memoranda with the Court setting out her claims. ( See Pltf.'s Memos. to Court, Doc. Nos. 17, 19.) Upon review of the record as a whole, the Court finds the ALJ's decision to be supported by substantial evidence. The final decision of the Commissioner finding plaintiff not disabled is therefore affirmed.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the hearing on November 20, 2012, plaintiff testified in response to questions posed by the ALJ and counsel.

At the time of the hearing, plaintiff was forty-seven years of age. Plaintiff is married and lives in an apartment with her husband. She stands five feet, four inches tall and weighs 185 pounds. Plaintiff went to school through the eleventh grade. She has not earned her GED. (Tr. 26, 35.)

Plaintiff's Work History Report shows that plaintiff worked intermittently as a nurse's assistant from 1997 to August 9, 2010. (Tr. 140.) Plaintiff testified that she was certified as a nurse's assistant in 1999. (Tr. 37.)

Plaintiff testified that she underwent heart bypass surgery in January 2011 and experienced chest pain and pneumonia thereafter. Plaintiff testified that she cannot work because of the residual effects of her bypass surgery, including tenderness in the chest and shortness of breath, as well as because of swelling in her feet and hands. Plaintiff testified that she also has asthma, chronic obstructive pulmonary disease, "a little fluid in the heart, " high cholesterol, and hypertension, as well as rheumatoid arthritis in her right hand that causes swelling. Plaintiff has not yet seen a doctor for her arthritis condition. Plaintiff testified that some of her medications make her go to sleep or feel hot. (Tr. 27-30, 32-33.)

Plaintiff testified that tenderness in her ribcage and the swelling in her feet and ankles limit her to sitting no longer than twenty minutes, walking about thirty minutes, and standing for fifteen minutes. Plaintiff testified that she must move around a lot or elevate her legs while sitting because of the swelling. Plaintiff testified that she experiences chest tightness when she tries to walk one block and must stop five or six times to take a deep breath or use her inhaler. (Tr. 29-32.)

As to her daily activities, plaintiff testified that she gets up in the morning and tries to make the bed with help from her husband. Plaintiff cleans the kitchen if it needs cleaning, but she basically relaxes during the day. She reads the bible and watches television. Her grandchildren sometimes come to visit. Plaintiff testified that her husband helps a lot with certain things, including helping her into and out of the tub. (Tr. 34-36.) She can no longer do laundry by herself because she cannot lift or go up and down steps a lot. Plaintiff can stand and cook or do dishes but must sit and rest a bit while doing so. (Tr. 29.) Plaintiff does the majority of the cooking. Plaintiff testified that both she and her husband do the shopping. Plaintiff has difficulty sleeping because of discomfort in her chest. She sleeps only about three hours at night. (Tr. 34-36.)

B. Testimony of Vocational Expert

Dr. Belchick, a vocational expert, testified at the hearing in response to questions posed by the ALJ.

The ALJ advised Dr. Belchick that the only work performed by plaintiff that qualified as substantial gainful activity was that done prior to her obtaining certification as a nurse's assistant. Dr. Belchick characterized such work as that of a home health aide and described it as medium and unskilled work. (Tr. 37-38.)

The ALJ asked Dr. Belchick to assume an individual forty-five years of age with eleven years of education and past work as a home health aide. The ALJ asked Dr. Belchick to further assume that this individual could

lift and carry 20 pounds occasionally, 10 pounds frequently; can stand or walk for two hours out of eight and sit for six; can occasionally climb stairs and ramps, never ropes, ladders, or scaffolds; occasionally stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to extreme cold and heat, wetness and humidity, and vibration. And she should avoid even moderate exposure to fumes, odors, dusts, and gases, and all exposure to unprotected heights and moving and dangerous machinery.

(Tr. 38.) Dr. Belchick testified that such a person could not perform plaintiff's past relevant work but could perform other work as a bench assembler, of which 1, 700 such jobs exist in St. Louis and 60, 000 nationally; and as a packager, of which 1, 200 such jobs exist in St. Louis and 14, 000 nationally. (Tr. 40.)

The ALJ then asked Dr. Belchick to assume the same individual but that she required a sit/stand option in order to vary positions once every half an hour. Dr. Belchick responded that such a person could perform work as a cashier-II, of which 11, 000 ...

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