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Hoeber v. Colvin

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

September 2, 2016

GRACE HOEBER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for review of an adverse ruling by the Social Security Administration.

         I. Procedural History

         On 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.[1] (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).

         A 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.

         II. Evidence Before the ALJ

         A. Disability Application Documents

         In a 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.

         In a 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 or stress.

         Randy 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.

         B. Testimony at Hearing

         Plaintiff 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.[2] (Tr. 59-60). She explained that she loved dealing with customers and liked to work. (Tr. 56).

         Plaintiff 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. 61).

         Plaintiff 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 completely.

         Plaintiff 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. (Tr. 62).

         Plaintiff 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 difficulty.

         Plaintiff 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.

         Vocational 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).

         C. Relevant Medical Records

         The 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.

         A 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 ...


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