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Kerns v. Colvin

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

July 27, 2016

MEGAN MICHELLE KERNS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Megan Michelle Kerns, Plaintiff, represented by Steve Wolf, LAW OFFICE OF STEVE WOLF, LLC.

          Carolyn W. Colvin, Defendant, represented by Jane Rund, OFFICE OF U.S. ATTORNEY.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOHN M. BODENHAUSEN, Magistrate Judge.

         This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves an Application for Supplemental Security Income. Plaintiff has filed a Brief in Support of her Complaint, and the Commissioner has filed a Brief in Support of her Answer. The case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b).

         I. Procedural History

         On June 16, 2011, Plaintiff Megan Michelle Kerns ("Plaintiff") filed an Application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (Tr. 196-201)[1]Plaintiff claimed that her disability began on April 19, 2007, as a result of injuries she sustained in a serious car accident. On initial consideration, the Social Security Administration denied Plaintiff's claims for benefits. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on March 14, 2014. (Tr. 28-61) Plaintiff testified and was represented by counsel. (Id.) Vocational Expert Denise Weaver also testified at the hearing. (Tr. 57-60, 74-75, 163-64) Thereafter, on April 7, 2014, the ALJ issued a decision denying Plaintiff's claims for benefits. (Tr. 8-19) In support of her administrative appeal, Plaintiff submitted a brief and a document from Victoria Dow, M.D., described as a "Request for Medical Advice, " dated February 14, 2012. (Tr. 5, 296-302, 661-64) The Appeals Council considered these documents but found no basis for changing the ALJ's decision and denied Plaintiff's request for review on July 23, 2015. The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

         II. Evidence Before the ALJ

         A. Hearing on March 14, 2014[2]

         1. Plaintiff's Testimony

         At the hearing on March 14, 2014, Plaintiff testified in response to questions posed by the ALJ and counsel. (Tr. 31-67) Plaintiff testified that she is single and lives with her mother and her two-year old son. (Tr. 48, 50) Plaintiff testified that she did not complete high school because she was depressed and using a walker after her accident. (Tr. 31, 35) Plaintiff has one child, a son, who was almost two years old at the time of the hearing before the ALJ. (Tr. 50)

         At the outset of the hearing, Plaintiff stated that she could not walk very long and that even sitting bothered her. The ALJ offered to have Plaintiff get up and move around during the hearing so long as she stayed close to the microphone. (Tr. 36)

         Plaintiff testified that after a car accident on April 19, 2007, she was hospitalized and had a series of six surgeries including jaw reconstruction surgery, facial reconstruction surgery, lumbar surgery with two rods and eight screws inserted in her back, and spinal fusion surgery from T11-L3. (Tr. 32, 34) Plaintiff also sustained burn injuries on her left shoulder and buttocks requiring skin grafts. (Tr. 33) After completing inpatient rehabilitation, Plaintiff received outpatient rehabilitation. (Id.)

         Plaintiff testified to significant residual physical difficulties including bilateral foot drop and spasms in her legs. (Tr. 35) In 2011, Plaintiff had right foot surgery, a tendon transfusion. (Tr. 38) Plaintiff wears leg braces to straighten her foot and to enable her to wear shoes. (Tr. 39) Plaintiff testified that her bilateral foot drop and leg conditions have not improved. (Tr. 42-43) To alleviate her pain, Plaintiff reportedly reclines in a horizontal position for twenty minutes. (Tr. 45)

         As result of her injuries, Plaintiff testified that she can only sit or stand for five minutes at a time before her legs turn purple and start tingling. (Tr. 35, 38, 59) When sitting, Plaintiff noted that she has to elevate her legs to waist level and switch positions. (Tr. 35, 38, 52) Plaintiff testified that she also has balance problems caused by her spinal cord injury. Plaintiff testified that she can remain in a seated position for four hours and stand in a stationary position for two hours in an eight-hour workday. (Tr. 46) Plaintiff testified that she cannot bend over or squat. (Tr. 35, 38, 52) Plaintiff's foot drop prevent her from driving a car because she cannot push the foot pedals. (Tr. 37) Plaintiff testified that she walks slowly and she needs to use a hand rail to go up stairs. Plaintiff can walk a block in five minutes but then she would need to rest. (Tr. 47) Plaintiff cannot shop for more than thirty minutes to an hour, and she must use a cart for balance. (Tr. 55-56) Cold or hot weather exacerbates Plaintiff's conditions. (Tr. 57)

         Plaintiff lives with her mother at her mother's house. (Tr. 48) Plaintiff testified that she would not be able to live alone because she needs help taking care of her son. (Tr. 49) Typically Plaintiff spends the day at home, and she helps around the house by doing the laundry and the dishes. (Id.) While watching her son, Plaintiff is able to sit down and take breaks. (Tr. 54)

         Plaintiff testified that she is unable to work because of the injuries she sustained in the car accident. (Tr. 50)

         The ALJ questioned Plaintiff about the function report wherein she reported that she watched her three-year old nephew while her sister worked during the day. (Id.) Plaintiff explained that she would keep the children in one room with closed doors. (Tr. 51) Plaintiff testified that she can occasionally lift her twenty-five pound son but she would need to hold onto something to maintain her balance. The ALJ noted a possible discrepancy in that Plaintiff reported she shopped with her sister for food and household items once a week for thirty minutes to an hour, but she testified that she could only walk a block in five minutes. (Tr. 56) Plaintiff explained that she would push the shopping cart to help her with balance, and she could shop for thirty minutes. (Id.) Plaintiff testified that if she shopped at a mall, she would use a motorized cart because shopping at the mall requires more walking. (Tr. 58)

         The ALJ noted that, although Plaintiff dropped out of high school in the twelfth grade, she completed nearly two years of schooling after her car accident. (Tr. 60)

         Plaintiff testified that her mother encouraged her to file for disability. (Tr. 62) Plaintiff indicated that she has never looked for work or gone through vocational rehabilitation. (Id.) Plaintiff explained that she does not have a primary care physician because there is nothing doctors can do to improve her permanent conditions. (Tr. 64-65) Plaintiff testified that her physical therapist indicated that her conditions would become worse as she aged. (Tr. 60)

         2. Testimony of Vocational Expert

         Vocational Expert Ms. Denise Weaver ("VE"), a rehabilitation counselor, testified at the hearing. (Tr. 67-74, 163-64)

         The ALJ asked the VE to consider several hypothetical questions based on Plaintiff's condition. The ALJ first asked the VE to assume a hypothetical individual similar to Plaintiff in age, education, and no past work experience who could perform work at the sedentary level with occasional lifting up to ten pounds; frequent lifting and carrying of less than ten pounds; standing and walking two hours; and sitting six hours. There would be a sit/stand option allowing the individual to change her position at least every thirty minutes for a few minutes while remaining at the work station. Further, the individual could not operate foot controls and could not perform work requiring climbing on ropes, ladders, or scaffolds, with no more than occasional climbing on ramps and stairs, stooping, kneeling, crouching, or crawling. The individual would have to avoid all exposure to temperature extremes and concentrated exposure to work hazards such as unprotected heights and dangerous moving machinery. (Id.) The ALJ further noted that the individual would need some kind of device or a wall to hold onto when walking more than five minutes. (Tr. 69)

         The VE indicated that such an individual could perform jobs including working as a document preparer, a dowel inspector in the woodworking environment, and a patcher in the household appliance industry. The VE noted that the sit/stand option is not set forth in the DOT, but she used her professional experience to determine the tasks required in the three positions she cited would allow for such option. (Id.) The VE further explained that because the positions are primarily clerical positions, the individual would be able to use a cane or a wall for balancing. (Tr. 70)

         Next the ALJ changed the limitations in the hypothetical as follows: "walking was reduced to no more than one hour out of an eight-hour workday, five minutes at a time, and standing two and a half hours out of an eight-hour workday, 20 minutes at a time. But less than occasional stooping or bending, which I would further define as not more than... 5 percent of the workday." (Id.) The VE indicated that such individual could still perform the jobs she cited in response to the first hypothetical.

         When asked about the hypothetical individual's need to elevate her legs at least waist high when sitting, the VE noted that this would have to be an accommodation given by the employer, and questioned whether an employer would permit such an accommodation for a probationary employee. (Id.)

         Plaintiff's counsel also posed a question to the VE. Plaintiff's counsel changed the limitations in the hypothetical so that the individual was only able to sit for ten minutes and then had to leave the work station to move around for five to ten minutes before returning to the work station. (Tr. 72) The VE indicated that a probationary employee would not be able to retain employment. (Tr. 73)

         B. Forms Completed by Plaintiff

         In a Disability Report - Adult form completed on June 16, 2011, Plaintiff reported that she has never worked. (Tr. 213-19) In a Function Report - Adult form completed on July 27, 2011, Plaintiff reported her injuries limit her ability to work because she has balance issues and a dropped foot, and she cannot walk, sit, or stand for a long period of time. (Tr. 234) Plaintiff listed taking care of her three-year old nephew during the work day, cleaning the house, preparing easy meals, and watching television as her daily activities. (Tr. 235) Plaintiff reported that she can complete household chores including doing the dishes, laundry, and other chores. (Tr. 236) Plaintiff uses a brace/splint prescribed by a doctor in 2007, to assist in getting her foot in a shoe. (Tr. 240)[3]

         In a Disability Report - Appeal form, Plaintiff did not allege any worsening or new impairments since she filed her last disability report on June 16, 2011. (Tr. 248) Plaintiff explained that she struggles with walking "since I have drop foot on both my feet. I have to wear braces that go to my knees to help me walk better and to get my shoes on.... I can not walk long distances or up and down any inclines." (Tr. 250) Plaintiff further indicated that she has to keep her feet elevated because of her poor blood flow, and she cannot sit for extended periods of time.

         C. Medical Records and Other Records

         1. General History

         The medical evidence in the record shows that Plaintiff has a history of spinal cord injury with residual bilateral foot drop and left humerus fracture. (Tr. 311-660) Although the undersigned has carefully considered all of the evidence in the administrative record in determining whether the Commissioner's adverse decision is supported by substantial evidence, only the medical records relevant to the ALJ's decision and the issues raised by Plaintiff on this appeal are discussed.

         2. St. Louis Children's Hospital (Tr. 487-527)

         Between April 20, 2007, and May 15, 2007, Plaintiff was hospitalized at St. Louis Children's Hospital after being seriously injured in a car accident. Plaintiff was an unrestrained front seat passenger in a roll-over accident. She was ejected from the vehicle and then trapped underneath for ten minutes.

         ACT scan showed Plaintiff had a pulmonary contusion, right pneumothorax, small left pneumothorax, right distal oblique humerus fracture with significant displacement angulation, fractures of the right superior-inferior ramus, widening of the pubic symphysis, nondisplaced sacroiliac fracture, a large scalp evulsion, left orbital fracture, L1 vertebral fracture with evulsion and compression into the canal. A CT scan of Plaintiff's head showed no acute intracranial process; a large scalp laceration; depressed left zygomatic arch fracture with osseous fragments in her left orbit; a left mid face fracture; a fracture of the lateral wall of the right maxillary sinus; and a fracture of the right mandibular ramus. A CT scan of Plaintiff's chest showed bilateral pulmonary contusions; sternal fracture; traumatic pancreatic injury; multiple right rib fractures; right L2 transverse process fracture; and multiple pelvic fractures. A CT scan of Plaintiff's cervical spine showed straightening with no fracture or listthesis. An MRI of Plaintiff's spine revealed a burst fracture at L1 with 50% retropulsion into the spinal canal causing compression of the conus medullaris with cord signal abnormality. Plaintiff also suffered a large degloving scalp laceration, and her left buttock and left shoulder had full-thickness skin burns.

         On April 24, 2007, Dr. Albert Woo performed an open reduction and internal fixation to repair Plaintiff's left complex fracture. The next day, Dr. Matthew Dobbs performed a intramedullary nail fixation of Plaintiff's left humeral shaft fracture.

         On April 29, 2007, Dr. Jeffrey Leonard performed a thoracolumbar posterior spinal fusion, a L1 laminectomy, and an autograft.

         On May 6, 2007, Dr. Gregory Borschel performed a debridement and split-thickness skin grafting to Plaintiff's left back and left buttocks.

         Plaintiff's discharge diagnoses included motor vehicle collision poly trauma; paraplegia; L1 fracture; spinal cord compression; multiple facial, rib; sternal fractures; left humerus fracture; pelvic fracture; and left buttock and left shoulder full-thickness skin burns. Upon discharge, Plaintiff was transferred to Rankin Jordan Hospital for rehabilitation. On June 7 and August 9, 2007, Plaintiff returned to St. ...


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