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Lipp v. Berryhill

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

March 29, 2016

JACQUELINE FERN LIPP, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's final decision denying Jacqueline Fern Lipp's ("Lipp") application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

         I. Background

         On July 31, 2012, Lipp filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., alleging disability beginning October 1, 1998 (Tr. 125-131). The Social Security Administration ("SSA") denied Lipp's claims on August 17, 2012 (Tr. 56-61). Lipp made a timely request for a hearing before an administrative law judge ("ALJ") (Tr. 62-65). After a hearing held on January 29, 2014 (Tr. 47-51) and continued to May 15, 2014 (Tr. 20-46), the ALJ issued a written decision on July 15, 2014, upholding the denial of benefits (Tr. 7-19). Lipp requested review of the ALJ's decision by the Appeals Council (Tr. 5-6). On August 5, 2015, the Appeals Council denied her request for review (Tr. 1-4). Thus, the decision of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).

         Lipp filed this appeal on October 5, 2015 (Doc. 1). The Commissioner filed an Answer (Doc. 10). Lipp filed a Brief in Support of her Complaint (Doc. 12), the Commissioner filed a Brief in Support of the Answer (Doc. 16), and Lipp filed a Reply Brief (Doc. 17).

         II. Administrative Record

         The following is a summary of the relevant evidence before the ALJ.

         A. The Hearing

         At the administrative hearing, Lipp's counsel indicated that he had requested medical records from a pain management clinic, but had not yet received them. At counsel's request, the ALJ agreed to keep the record open for thirty days to allow counsel to acquire the records (Tr. 22-23). The ALJ then heard testimony from Lipp and Dr. Magrowski, a vocational expert.

         1. Lipp's testimony

         Lipp was 61 years old at the time of the hearing and living with her husband and 13-year-old grandson (Tr. 24-25). She completed the tenth grade and has a GED; she has no additional professional or vocational training (IdJ. She testified that she last worked full-time in 1998 as a machine operator at a factory (Tr. 25-26). In 2000, she worked as a part-time cook at a daycare for one week before the business closed (Tr. 27-28).

         It was Lipp's testimony that her shoulder, neck, and back pain affected her ability to work as of December 31, 2003 (Tr. 29-30, 39). According to Lipp, prior to December 31, 2003, her doctor had not given her any specific limitations, and on a typical day, she would have done housework-including cooking, cleaning, and grocery shopping-but she did not have any other activities (Tr. 30-31). It was Lipp's testimony that before December 31, 2003, "mainly [she] did a little at a time to get through some of the pain" (Tr. 30).

         Lipp also testified that she first reported her back pain to Dr. Kraenzle, her primary care physician, having suffered for "a long, long time before it got to the point where [ibuprofen] wasn't helping anymore." (Tr. 29-30, 35). After taking an x-ray, Dr. Kraenzle recommended that Lipp try physical therapy (Tr. 35-36). Lipp testified that she participated in physical therapy for five or six weeks, but it made her symptoms worse; she "got to the point where [she] couldn't even make it, drive home from the physical therapist, [she] was in so much pain" (Tr. 36-37). Dr. Kraenzle then sent Lipp to a neurosurgeon. The neurosurgeon referred her to a pain management clinic, where she underwent a series of injections. The injections did not help her pain, and in December 2004, Lipp had her first surgery (Tr. 37-40). According to Lipp, the first surgery "didn't fix the problem" and "didn't help anything" (Tr. 33, 40). Lipp testified that, after her first surgery, she continued to suffer from back pain, leg pains, and "shooting pains" down her legs; that she was unable to put on her own socks; and that her husband "was more or less dressing [her]" (Tr. 33).

         As of the May 15, 2014 hearing, none of Lipp's treating physicians had limited her activities, other than instructing her to "do what you can do." (Tr. 29). She testified that she still experiences back pain and "shooting pains in [her] bottom" (Tr. 40). Lipp is able to clean her house, although it usually takes her all day, working an hour or so at a time (Tr. 41). Lipp also testified that her pain continues to prevent her from performing a job, even if a job allowed her to sit intermittently and stand intermittently (Tr. 42). Lipp had stopped taking Vicodin a few weeks prior to the May 15, 2014 hearing, but was still taking muscle relaxers-which cause her fatigue but no other side effects-because her neck and shoulders were bothering her (Tr. 42-43).

         2. Testimony of the Vocational Expert

         Dr. Magrowski classified Lipp's past work as "a medium job" and "unskilled with an SVP of ...


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