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Hutt v. Colvin

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

September 6, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         This is an action under 42 U.S.C. § 1383(c)(3) for judicial review of Defendant's final decision denying Plaintiffs application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. For the reasons set forth below, the Court affirms the decision of the Commissioner.

         I. Procedural History

         On February 28, 2012, Plaintiff protectively filed an application for Supplemental Security Income. (Tr. 11, 159-69) Plaintiff alleged that she became unable to work on October 31, 2008 due to schizophrenia, bipolar disorder, anxiety disorder, post-traumatic stress disorder ("PTSD"), agoraphobia, and asthma. (Tr. 89, 159) The application was denied, and Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 88-106, 108) On November 4, 2013, Plaintiff testified at an administrative hearing before an ALJ via video teleconference. (Tr. 29-75) Plaintiff amended her alleged onset date of disability to January 1, 2011 that same date. (Tr. 202) On January 7, 2014, the ALJ determined that Plaintiff had not been under a disability since February 28, 2012, the date the application was filed. (Tr.l 1-24) Plaintiff then filed a request for review, and on April 1, 2015, the Appeals Council denied Plaintiffs request. (Tr. 1-3) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

         II. Evidence Before the ALJ

         At the November 4, 2013 hearing before the ALJ, Plaintiff was represented by counsel. Upon questioning by the ALJ, Plaintiff testified that she was 34 years old. She weighed 170 pounds and measured 5 feet 5 inches. Plaintiff was married with four children and lived with her family in an apartment. She received child support for her two oldest children, and her husband worked. In addition, Plaintiff received food stamps and Medicaid. She applied for unemployment benefits but did not file all of her paperwork. Plaintiff completed the 10th grade and had no further education or training. She had a Facebook page, but her children primarily used it. Plaintiff stated that she did not know how to use the internet very well. (Tr. 34-38)

         Plaintiff testified that she unable to work because of her anxiety and depression. While she could get a job, she could not keep a job. She last worked about a year ago as a cook in a restaurant. She held that position for one or two months. Plaintiff went on early maternity leave and did not return to work after her baby was born. She planned to begin working for a different restaurant but the restaurant closed down. Prior to her most recent job, Plaintiff worked as a cook on and off for about five years at a sports bar and grill. She also worked for The Fulfillment Center taking and packing orders. Plaintiff quit that job because she had problems with her asthma due to dust in the warehouse. (Tr. 38-42)

         Plaintiff stated that she woke up around 6:00 or 6:30 a.m. and got her kids ready for school. Her older children took the bus to school, and Plaintiff drove her three-year-old child to and from school every day. Plaintiff spent her day caring for her nine-month-old baby. She read books to her kids and watched TV. She did not go outside frequently, but she attended her children's sporting events and parent-teacher conferences. Plaintiff testified that she had no hobbies, and she usually cooked at home. Plaintiff was able to dress, shower, and cook meals. She went grocery shopping once a month for about one or two hours. Plaintiff usually shopped for her children's clothes and shoes at Walmart. She did the dishes, laundry, and housework. She sometimes visited with her grandfather, mother-in-law, brothers, or brother-in-law and his children. Plaintiff and her husband did not do anything together. She attended funerals, but she and her family stayed home over holidays. Plaintiff smoked a pack of cigarettes a day. She drank alcohol when she was not pregnant, but very little. Plaintiff unsuccessfully tried to quit smoking with Chantix. (Tr. 42-49)

         Plaintiff was pregnant at the time of the hearing. She testified that she was not taking an antidepressant because she did not want to hurt the baby. She last took her medications five and a half months ago. Her medications included Ability and Klonopin as needed. She also used an Albuterol inhaler and a nebulizer for asthma. Plaintiff stated that the Ability and Klonopin helped, but she only took the Klonopin when she felt her anxiety coming on because it made her tired. She saw a Nurse Practitioner, Beth Brothers, for illnesses, and she saw Dr. Spalding for mental health treatment. She had not seen Dr. Spalding for four or five months because she did not always have gas money to travel. Dr. Spalding prescribed medications for Plaintiffs anxiety, depression, and bipolar disorder. Plaintiff took allergy medicine daily to avoid triggering her asthma. Plaintiff also testified to having a mitral valve prolapse. She was recently in the ER due to chest pain, which doctors attributed to anxiety. (Tr. 49-52)

         Plaintiff stated that because of her depression, there were days she wanted to do nothing. She did her best to take care of her kids on those days. When she was anxious, Plaintiff could not breathe, and she shook and sometimes had blackouts. Stress triggered her anxiety attacks. Dealing with her issues on a daily basis was stressful. She normally was not around other people, and she preferred to be at home by herself and with her children. Plaintiff became nervous and had anxiety attacks when meeting with teachers or going to the store. (Tr. 52-53)

         Plaintiffs attorney also questioned her about her symptoms. Plaintiff testified that she experienced symptoms of depression every day. She cried for no reason daily. Her mother lived with her for two years but planned to move out that week. Plaintiffs mom was helpful with the kids and the cooking. Her eleven-year-old daughter also knew how to cook. Plaintiff did not feel like cooking at least once or twice a week. In addition, Plaintiff described her bipolar disorder as feeling hyper with a burst of energy sometimes and then feeling mad at the world other times. Plaintiff experienced anxiety attacks once or twice every week or two. Her panic attacks became worse after her baby passed away in 2008. (Tr. 53-56)

         With regard to her prior jobs, Plaintiff testified that she called in or was sent home at least once a week due to anxiety attacks or crying spells. Her supervisors also spoke with her about her job performance. Plaintiff did not like being around people, and as a cook she occasionally had to interact with the public when taking food to the buffet table. She tried not to talk to anybody while working, so she did not experience problems getting along with coworkers or supervisors. Plaintiff became nervous, anxious, and teary when talking to others. Plaintiff did not talk to or interact with her husband. She believed she would need to take unscheduled breaks in a work environment. When Plaintiff last worked, she would sit down or walk outside alone if she felt anxious or upset. Some supervisors understood; others did not. Plaintiff stated that when she walked, she became short of breath. Her asthma was also worse when the pollen was high. (Tr. 56-59)

         A vocational expert ("VE") also testified at the hearing. Plaintiffs attorney objected to the VE's qualifications to testify as to the number of jobs existing locally, regionally, or nationally. The ALJ took the objection under advisement. The VE testified that Plaintiffs past jobs were as a cook and an inspector and hand packager. The ALJ then asked the VE to assume a person who could work at all exertional levels except the person must avoid concentrated exposure to extreme cold, heat, and humidity; and could tolerate no more than occasional exposure to fumes, odors, dust, gases, and poor ventilation. The individual was limited to simple, routine, and repetitive work that was unskilled, and she could have occasional, superficial contact with supervisors, coworkers, and the public. The VE stated that the person could not perform Plaintiffs past work as a cook but could perform some packaging jobs in a clean-air environment, not a factory where Plaintiff previously worked. The VE further stated that the individual could work as a hotel-motel cleaner or office cleaner, an inspector, and a hand packager. (Tr. 60-66)

         Counsel for Plaintiff also questioned the VE, asking him to consider the ALJ's hypothetical and also assume the person would call in absent once a week. Given this limitation, the VE stated that the jobs to which he testified would be eliminated. Further, if the individual required one to two unscheduled breaks in an unskilled work environment, the employer would either accommodate the situation or have reason to terminate the employee. The VE further stated that the most a worker could be off task and sustain a job in an unskilled work environment would be no more than 20 to 30 minutes, provided she could make up for the lost time by improving her performance. Additionally, a worker could only miss 1.8 to two days a month and sustain a job. The VE also stated that the cleaning jobs and the inspector/hand packager jobs required only one or two steps. (Tr. 66-74)

         On March 8, 2012, Plaintiff completed a Function Report - Adult. Her daily activities included getting kids ready for school, feeding her toddler, and laying on the couch until she needed to get up. She required help with cleaning and cooking on the days that she did not want to do anything. She was able to cook, do laundry, and clean. In addition, she shopped once or twice a month for food, kids' shoes, and clothes. Plaintiff reported that she took care of her kids but did not do anything or go anywhere unless it involved her children. She only attended her kids' sporting events. Plaintiff had problems getting along with family and friends because they made her mad easily. Her conditions affected her ability to talk, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. She believed she could walk 3 blocks before needing to rest for 10 minutes. Plaintiff could pay attention for 10 to 20 minutes. She did not ...

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