United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of an adverse ruling by
the Social Security Administration.
January 28, 2013, plaintiff Grace Hoeber protectively filed
an application for disability insurance benefits, Title II,
42 U.S.C. §§ 401 et seq., with an alleged
onset date of September 1, 2012. (Tr. 156-62, 181). After
plaintiff's application was denied on initial
consideration (Tr. 77-90), she requested a hearing from an
Administrative Law Judge (ALJ). (Tr. 102-03).
hearing was held by video on February 27, 2014. (Tr. 29-76).
The ALJ issued a decision denying plaintiff's application
on March 7, 2014. (Tr. 8-27). The Appeals Council denied
plaintiff's request for review on May 5, 2015. (Tr. 1-6).
Accordingly, the ALJ's decision stands as the
Commissioner's final decision.
Evidence Before the ALJ
Disability Application Documents
Disability Report dated February 14, 2013 (Tr. 184-92),
plaintiff listed her disabling conditions as scoliosis,
carpal tunnel, chronic back problems, arthritis, asthma,
anxiety, chronic knee problems, depression, and nerve damage.
She reported that she stopped working on August 27, 2008, due
to her conditions. She attended special education classes
throughout her school years. She had previously worked in a
customer service position in retail, as a housekeeper and
laundry attendant in a motel, and as a sandwich maker and
cashier at a sandwich shop. Plaintiff did not list any
medications in her Disability Report.
Function Report dated March 10, 2013, (Tr. 205-12), plaintiff
stated that she lived in a hotel room with her boyfriend. In
response to a question about her daily activities, plaintiff
stated that she cleaned her residence and tried to stay busy
with cleaning and laundry, although it took her a long time
to complete chores. Her arthritis made it difficult to use
her hands or stand or walk for a long time. She was not able
to sleep during the night “at all” due to pain
all over her body. She prepared sandwiches to eat. She was
able to go out alone and did so whenever she was able to
walk. She shopped for food and clothes. She did not drive but
was able to take a bus. She was able to pay bills and count
change, but could not manage a checkbook, money orders, or
savings account. She used to enjoy fishing, cleaning,
cooking, music and shopping, but suggested she did not do so
anymore due to headaches and pain in her back, legs, sides,
and hands. She spent time with others at the store or church
or on the telephone. Plaintiff had difficulties with lifting,
squatting, bending, standing, reaching, walking, sitting,
seeing, understanding, following instructions, using her
hands, and getting along with others. She could walk 5 to 10
minutes before needing to rest for 10 to 15 minutes. She
could pay attention for 5 to 10 minutes and could not finish
things she started. She also had a lot of trouble with
reading and spelling and sometimes had trouble following
spoken instructions. She did not always get along with
authority figures but had never been fired because of
conflict with others. She could not handle changes in routine
Carter, plaintiff's boyfriend, completed a third-party
Function Report that was generally consistent with
plaintiff's report. (Tr. 194-201). In addition, he stated
that plaintiff woke up at 6:00 in the morning and spent her
day compulsively cleaning. She collected dolls and liked to
go to thrift stores. According to Mr. Carter, plaintiff found
it hard to understand “most things” and was
almost always unable to finish something she started. She
used to be able to drive a car and previously had better
comprehension and the ability to read. It seemed to him that
she was losing her independence. She sometimes had trouble
getting along with her mother and was better able to get
along with authority figures when she could work. She did not
like changes in routine and liked to plan her actions.
Testimony at Hearing
was 44 years old at the time of the hearing. (Tr. 33). She
testified that she and her boyfriend lived in a hotel room.
(Tr. 51). Her Medicaid benefits had been terminated about two
months before the hearing and she was trying to reach her
caseworker to get them restored. (Tr. 56). She received
special education services throughout her schooling. She
initially testified that she last worked in 2008 as a
sandwich maker and cashier at a fast-food restaurant. (Tr.
34). She held this job for three years before she was
incarcerated for four years. (Tr. 34-35). Her prior jobs
included working as a cashier at a thrift store and working
at a laundromat, where she did customers' laundry and
cleaned the store. While incarcerated, she initially worked
in the kitchen but experienced too much pain in her legs and
hands and was reassigned to operate a sewing machine. (Tr.
58). Later in the hearing, she testified that she had just
begun working 10 to 15 hours a week as a cashier at a dollar
store. (Tr. 59-60). She explained that she loved
dealing with customers and liked to work. (Tr. 56).
testified that chronic arthritis caused pain in her back,
legs, knees, hands and wrists. (Tr. 38). She rated her back
pain at level 10 on a 10-point scale, and stated she
experienced such pain “all day” because she was
“constantly moving [and] doing something.” (Tr.
39). She also experienced a lot of pain in her legs and knees
when walking or standing. She could walk for 10 to 15 minutes
before needing to rest for 10 to 15 minutes. (Tr. 40, 43).
She could stand for about 10 minutes before needing to sit
for about 20 minutes. (Tr. 44). When sitting, she had
tingling and tightening throughout her legs and had trouble
bending her knees. (Tr. 40). She experienced pain in her
hands and wrists when lifting or sweeping. Prioer carpal
tunnel release surgery failed to resolve the pain. (Tr. 59).
She had been prescribed splints to wear on her wrists but had
lost them when moving. (Tr. 42). When she could not
“stand it anymore, ” she took medication and lay
down for a couple of hours. (Tr. 39). Despite the pain, her
physical conditions were rarely so bad that she
“can't do anything.” She tried to get out of
the hotel every day to walk and get some air. (Tr. 52). She
took her medication with her to work at the dollar store and
used it if she experienced pain. She had received her
manager's approval to not overfill customers'
shopping bags so that she could lift them more easily. (Tr.
used two inhalers for her asthma, which was aggravated by
allergies and the fact that she smoked half a pack of
cigarettes a day. (Tr. 44-45). She had succeeded in reducing
her daily smoking from two packs and wanted to quit
also had depression, for which she had been taking medication
since her release from prison. (Tr. 46). Her symptoms
included wanting to avoid others and “throwing
fits” all the time. Medication helped but she still had
5 or 6 bad days a month. When asked to describe her most
recent “fit, ” she stated that she had come back
to the hotel room the day before and found her boyfriend and
others rolling marijuana. She threw a fit because she
didn't want any drugs around her. (Tr. 59). She also
became angry if she was concerned by something affecting her
grandchildren. (Tr. 60). She had no difficulty getting along
with her co-workers at the store and asked for her
manager's assistance whenever a customer had a complaint.
had difficulty concentrating and remembering to do things.
(Tr. 48). She could follow spoken instructions if she
completed the task right away. When following written
instructions, she often had to ask for verbal clarification.
(Tr. 49). She had difficulty completing tasks because she
became distracted. She stated that she could watch television
for about 10 or 15 minutes before she had to get up and start
moving around. (Tr. 49-50). She had been told that she had a
learning disability but did not know the specific areas of
testified that she slept about three or four hours a night.
She napped for two or three hours about two or three times a
week. (Tr. 48). Plaintiff testified that she got up about
5:00 in the morning and swept the rug, cleaned the bathroom,
and made the bed. These chores took her 45 minutes to an hour
to complete. (Tr. 51). Options for cooking were limited in
the motel room and she prepared microwave meals.
expert James Breen testified that plaintiff's past work
as a sandwich maker, laundry worker attendant, and cashier,
were all performed at the light level. (Tr. 63-74). Mr. Breen
was asked to testify about the employment opportunities for a
hypothetical person of plaintiff's age, education, and
work experience. (Tr. 65). In addition, the ALJ asked him to
assume that the hypothetical individual could perform work in
the light exertional range, with occasional postural
activities, and use both hands on a frequent basis for gross
and fine manipulation. In addition, the hypothetical
individual should avoid concentrated exposure to pulmonary
irritants, and was limited to work that was unskilled,
simple, routine, and repetitive. Finally, the individual
learned best by demonstration or with oral instruction aided
by demonstration. Mr. Breen testified that such an individual
would be able to perform all of plaintiff's past relevant
work. (Tr. 66). The additional requirement to avoid teamwork
tasks precluded plaintiff's past job as a sandwich maker,
but other jobs were available in the local and national
economy, including mail clerk, hotel housekeeper, and
cashier. (Tr. 67). Restricting the individual to sedentary
work eliminated all past relevant work, but other available
jobs included circuit board tester, importer clerk, and
charge account clerk. No competitive work would be available
if the individual also needed to nap two or three hours a
day, two or three times each work week. (Tr. 68).
Relevant Medical Records
Court has reviewed all the medical records contained in the
administrative record. The parties do not dispute the
ALJ's determination that plaintiff had the severe
impairments of depression, asthma, obesity, degenerative disc
disease of the cervical and lumbar spine, history of
bilateral carpal tunnel syndrome, and right knee joint
effusion and compartment. (Tr. 14). The sole issue raised by
plaintiff's appeal is whether the ALJ erred in
determining that plaintiff functions in the borderline
intelligence range and does not meet the requirements of
Listing 12.05C, governing intellectual disability, formerly
labeled as “mental retardation.” Accordingly, the
Court's recitation of the medical evidence is limited to
records relevant to plaintiff's intellectual functioning.
mental health evaluation was completed upon plaintiff's
intake to the Missouri Department of Corrections. (Tr. 275).
Plaintiff was determined to be within normal limits for
memory, concentration, intellect, directed thought, and
reality testing, and she was oriented as to person, place,
date, and event. No deficits or abnormalities were noted with
respect to plaintiff's speech, motor activity, mood and
affect, eye contact, cooperation, judgment or insight. She
listed reading as a method for coping with feelings of
anxiety and anger. (Tr. 276). During her incarceration she
participated in various classes, and was described as
attentive, interactive, and participating well. It was noted
that she ...