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Lewis v. Colvin

United States District Court, W.D. Missouri, Central Division

June 30, 2015

SHARON K. LEWIS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROBERT E. LARSEN, Magistrate Judge.

Plaintiff Sharon Lewis seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Titles II and XVI of the Social Security Act ("the Act"). Plaintiff argues that (1) the ALJ erred in finding that plaintiff could perform her past relevant work as a housekeeper, and (2) the Appeals Council erred in failing to consider new and material evidence. I find that the substantial evidence in the record as a whole supports the ALJ's decision. Therefore, plaintiff's motion for summary judgment will be denied.

I. BACKGROUND

On June 14, 2011, plaintiff applied for disability benefits alleging that she had been disabled since November 15, 2008, later amended to January 21, 2011 (Tr. at 12, 247, 249). Plaintiff alleges an inability to work based on chest pains, a back injury, degenerative disc disease, pain and disorders of the back, high blood pressure, a neck injury, depression, anxiety, and breathing problems. Plaintiff's application was denied on September 10, 2011. On September 25, 2012, a hearing was held before an Administrative Law Judge. On October 29, 2012, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On January 28, 2014, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.

II. STANDARD FOR JUDICIAL REVIEW

Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). "The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).

Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id .; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).

III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS

An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F.Supp.2d 974 (W.D. Mo. 2000).

The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:

1. Is the claimant performing substantial gainful activity?

Yes = not disabled.
No = go to next step.

2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?

No = not disabled.
Yes = go to next step.

3. Does the impairment meet or equal a listed impairment in Appendix 1?

Yes = disabled.
No = go to next step.

4. Does the impairment prevent the claimant from doing past relevant work?

No = not disabled.
Yes = go to next step where burden shifts to Commissioner.

5. Does the impairment prevent the claimant from doing any other work?

Yes = disabled.
No = not disabled.

IV. THE RECORD

The record consists of the testimony of plaintiff and vocational expert Deborah Determan, in addition to documentary evidence admitted at the hearing and before the Appeals Council.

A. ADMINISTRATIVE REPORTS

The record contains the following administrative reports:

Earnings Record

The record shows that plaintiff earned the following income from 1976 through 2012:

Year Earnings Year Earnings 1974 $ 529.00 1993 $ 97.88 1975 99.00 1994 1, 623.42 1976 0.00 1995 1, 391.83 1977 165.80 1996 1, 558.97 1978 877.16 1997 192.38 1979 105.511998 3, 275.19 1980 237.93 1999 3, 056.011981 0.00 2000 4, 744.63 1982 0.00 2001 5, 826.48 1983 89.25 2002 8, 669.60 1984 865.11 2003 3, 227.16 1985 1, 642.69 2004 6, 105.85 1986 7, 393.38 2005 2, 907.35 1987 9, 710.50 2006 4, 101.18 1988 917.64 2007 1, 670.40

1990 693.44 2009 0.00 1991 721.49 2010 0.00 1992 255.51 2011 0.00 2012 0.00

(Tr. at 216, 245-246).

Function Report

On June 23, 2011, plaintiff completed a Function Report (Tr. at 273-280). Plaintiff does not cook because she cannot stand too long due to pain in her legs, feet and back. She does no household chores and no yard work. When she goes out, she can ride in a car or use public transportation. She needs someone to go with her when she goes out because her legs get week and hurt. She does not go shopping. She reads and watches television. She does "a lot of communication" every day on the phone and on the internet. Her impairments do not affect her ability to remember, complete tasks, concentrate, understand, follow directions or get along with others. She can lift 15 to 20 pounds; she can walk 1 ½ to 2 blocks. She can pay attention "most of the time." She is able to finish what she starts. She gets along with authority figures "very well." She does not deal with stress well because she is hurting constantly every day. She "could use" a wheelchair on days when she cannot get on her feet.

Plaintiff stated that her back pain causes her blood pressure to be elevated, it causes her stomach to be "off track, " and she feels like she is in prison because all she does is sit in her house due to her back pain.

Function Report - Third Party

On June 23, 2011, plaintiff's husband, Walter Lewis, completed a Function Report (Tr. at 264-271). Mr. Lewis stated that he does everything for plaintiff. He cleans for her, cooks for her, and sometimes has to dress her and give her medication. She cannot stand for a long time. Mr. Lewis does all of the household chores. When plaintiff goes out she is able to ride in a car and use public transportation. She cannot go out alone because she cannot walk by herself when she is in pain. Plaintiff does not drive. She does not go to the store because Mr. Lewis does all the shopping. Plaintiff's hobbies include watching television, playing TV games and playing card games. She sits outside when she feels up to it, and she goes to church when she feels up to it. Plaintiff has no problems getting along with family, friends, neighbors or others. Plaintiff's impairments do not affect her ability to understand, follow instructions, complete tasks, get along with others, concentrate or remember. She can lift 20 pounds; she can walk three blocks before needing to rest for 15 minutes. She cannot bend, squat or reach overhead. She starts what she finishes, she follows written and spoken instructions very well, she gets along with authority figures. She does not deal well with stress caused by her pain. Plaintiff sometimes uses a wheelchair. Mr. Lewis has not been able to work for the past two years because he has had to stay with plaintiff - he never knows what kind of day she is going to have.

Disability Report - Appeal

On September 18, 2011, plaintiff completed a Disability Report - Appeal (Tr. at 285-291). "[T]his is stressing me out taking all of these pills an[d] being told there is nothing wrong with me. That I can work with the meds I take."

I have been dealing with this pain in my back since 2003. I never thought I had back problems I just didn't know what was going on. My blood pressure was high for over a year due to back problems. I'm talking about 202/163 that's to[o] high for anyone. Then I had stomach problem colon problem it's too much it keep[s] me stress[ed] out taking all these pills and then to be told you can go to work your [sic] not sick enough how sick do I need to be. I haven't work[ed] a job in the last 2 yrs. due to my back. I try to work I can't do it, it's to[o] painful for my body & need surgery. And I can't make the surgeon do it either. So what am I to do.... My body is in pain at all time[s] even when I'm sleeping that why I take meds. I'm talking about my legs, back, arms, private, feet, even my hands an[d] neck. How much pain do I have to endure to get help? I have been through E.R. an[d] have had shots with so much meds in them an[d] still be hurting. My question is what should I do?

Statement of Claimant

In a statement dated August 27, 2012, plaintiff reported that she has chest pains but was tested and learned that her heart is fine but the pain in her neck and back is giving her chest pain (Tr. at 301-304).

The pain makes me evil, not easy to get along with. That is how it is right now, I'm not that type of person. The pain is - I don't know - I will be in pain and a conversation will just irritate me. I can't be around a lot of talking. The pain... and I've been having real bad headaches. I stay irritated and agitated all the time. I stay away, I don't have people coming over. It feels like I'm in prison. I want to be around people and not be complaining about pain.
My sister was over recently and I took my pain medicine. I haven't been sleeping. It worked faster than it usually does and it made me so sleepy that I couldn't even get up to see my sister. It made me feel like I couldn't get up because of the medicine. I didn't get back up that night. That scared me. I took what I was supposed to take. That is the medicine for my pain.
I don't know if it is my stress but I'm having stuff that scares me, my blood pressure is too high and my back is having trouble and that scares me and I'm up all night. My doctor said that my back looks like a 70 or 80 year old woman's back and I'm 52. That scares me. I'm delirious and I'm tired. I'm forgetting things right in the middle of conversations, right in the middle of doing things. I don't know if it is because I'm tired or because I'm anxious or stressed. I've been depressed. Some days I feel crazy and I don't know why I'm feeling like this. It is stressful to go through something like this. I want to get rid of this pain. It is bothering me in other areas in my body and my mind. I have endured so much pain and have suffered so much pain. I was hoping and praying that I can have surgery because I feel like I need it right now the way my body feels, if they can lift the nerve off of the disk, I think I will feel better. I'm scared.

B. SUMMARY OF MEDICAL RECORDS

On February 22, 2005, plaintiff had an MRI of her lumbar spine (Tr. at 646-647). The results showed central to right paracentral disk protrusion at the L5-S1 level with associated disk degeneration, but otherwise normal study. Levoscoliosis (abnormal curvature) was present in the lumbar spine. Degenerative changes were present in the facets at L4-5 and L5-S1 as well as degenerative changes in the disk space at L5-S1. Vertebral body heights were maintained and no spondylolysis or spondylolisthesis[1] was seen.

On September 23, 2005, plaintiff went to the emergency room after being struck on her forehead and hip by a stick during an altercation with her boyfriend (Tr. at 654-658). Plaintiff had consumed "considerable gin" just prior to the assault. X-rays showed a fracture of the anterior iliac spine at the anterolateral aspect of the left side of the pelvis, but no hip fracture. Plaintiff was told to use crutches and was given an prescription for Lortab, a narcotic.

On April 12, 2008, plaintiff went to the emergency room due to chronic back pain (Tr. at 663-664). She said she had just been rejected for Social Security disability and moved to Columbia from Kansas City, and she had just started a job in housekeeping. Plaintiff did not yet have a primary care physician. She was given a prescription for Percocet (narcotic).

On August 26, 2008, plaintiff saw Andrew Quint, M.D., for back pain (Tr. at 493-494). Dr. Quint prescribed Oxycodone (narcotic) and gave her a handout on back strengthening and stretching exercises.

On November 1, 2008, plaintiff went to the emergency room complaining of chest pain and congestion (Tr. at 666-669). "Percocet not helping." Plaintiff's tests were normal. She was assessed with upper respiratory infection and chest wall pain and was given a prescription for Percocet (narcotic) and Phenergan (for nausea).

On February 20, 2009, plaintiff went to the emergency room complaining of a headache (Tr. at 532). Plaintiff denied illicit drug use (Tr. at 536).

On March 12, 2009, plaintiff saw Hanna Gov-Ari, M.D., for hypertension (Tr. at 594-595). Her recent head CT was normal. Plaintiff had been prescribed Hydrochlorothiazide and Norvasc and her blood pressure today was 108/75 with resolution of her associated headache.

On April 13, 2009, plaintiff saw Dr. Gov-Ari for a follow up on depression (Tr. at 596-599). "I have prescribed the pt. with Zoloft [antidepressant] couple of months ago. Apparently pt. took only 2 pills and discontinued it since it made her nauseated." Plaintiff's blood pressure was 136/94. Plaintiff was observed to have normal gait, normal range of motion, normal strength, but lower back tenderness. She was cooperative with normal judgment. She was sad, depressed and crying. She said her husband was angry because he was working two jobs and plaintiff was not working, and he had talked about leaving her. Dr. Gov-Ari prescribed Vicodin (narcotic) for plaintiff's back pain and "consider PT [physical therapy] later on when pt feels mentally stronger." She also prescribed Effexor, an antidepressant.

On May 11, 2009, plaintiff saw Mary Williamson, Ph.D., at Family Medicine Clinic (Tr. at 603-604). Plaintiff said she thought her appointment was with her primary care physician. She denied drinking and illicit drug use. She was smoking a pack of cigarettes per day. Dr. Williamson spent an hour in counseling with plaintiff.

On May 12, 2009, plaintiff saw Dr. Gov-Ari for a follow up (Tr. at 606-608). Plaintiff said she was feeling better since her psychiatrist increased her dose of Effexor. Plaintiff described a very stressful situation at home, had been told she could not stay in the rented house and had to find a new place to live. Plaintiff reported that taking one Vicodin a day was controlling her back pain, and Dr. Gov-Ari refilled that prescription. Plaintiff's blood pressure was 128/91. She was observed to be cooperative with appropriate mood and affect and normal judgment. "Had seen Mary Williamson, Ph.D., for counseling and thought it was very helpful as well. Is supposed to see her back in a couple of weeks."

Plaintiff did not keep her follow-up appointment with Mary Williamson, Ph.D., on May 26, 2009 (Tr. at 604). "Will send DNKA [did not keep appointment] letter, but will not call as has had ...


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