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Hicks v. Colvin

United States District Court, W.D. Missouri, Western Division

September 26, 2016

EMILY HICKS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          ROBERT E. LARSEN United States Magistrate Judge.

         Plaintiff Emily Hicks seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Titles II and XVI of the Social Security Act (“the Act”). Plaintiff argues that the ALJ erred in (1) failing to consider third party observations in determining credibility and residual functional capacity, (2) failing to consider plaintiff's obesity in assessing plaintiff's residual functional capacity, (3) relying on plaintiff's exaggerated appearance during the hearing in determining that her testimony was not credible, and (4) finding at step five that plaintiff could perform substantial gainful activity. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.

         I. BACKGROUND

         On July 23, 2009, plaintiff applied for disability benefits alleging that she had been disabled since January 18, 2006. Plaintiff's disability stems primarily from fibromyalgia and migraine headaches. Plaintiff's application was denied on November 10, 2009. On March 16, 2011, a hearing was held before an Administrative Law Judge. At the conclusion of that hearing, Administrative Law Judge Gorge Bock decided to have a rheumatologist review plaintiff's records. A second hearing was held on September 21, 2011, during which Dr. Ann Winkler testified. On October 11, 2011, the ALJ found that plaintiff was not under a “disability” as defined in the Act. On December 3, 2012, the Appeals Council denied plaintiff's request for review.

         Plaintiff appealed to the Federal District Court, and her case was remanded on March 10, 2014, for further consideration on the ground that the ALJ failed to consider the statements of plaintiff's parents. An administrative hearing was held on December 11, 2014. On January 15, 2015, the ALJ again found plaintiff not disabled.

         II. STANDARD FOR JUDICIAL REVIEW

         Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final decision” of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).

         Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. “[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).

         III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS

         An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F.Supp.2d 974 (W.D. Mo. 2000).

         The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:

1. Is the claimant performing substantial gainful activity?
Yes = not disabled. No = go to next step.
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?
No = not disabled. Yes = go to next step.
3. Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any other work?
Yes = disabled. No = not disabled.

         IV. THE RECORD

         The record consists of the testimony of plaintiff, vocational expert Stella Doering, and medical expert Dr. Ann Winkler, in addition to documentary evidence admitted at the hearing.

         A. ADMINISTRATIVE REPORTS

         The record contains the following administrative reports:

         Earnings Record

         The record establishes that plaintiff earned the following income, shown in both actual and indexed figures, from 1984 through 2014:

Year

Actual Earnings

Indexed Earnings

1984

$ 1, 224.85

$ 2, 706.16

1985

1, 815.30

3, 846.80

1986

1, 456.27

2, 997.02

1987

1, 667.94

3, 226.85

1988

3, 146.13

5, 800.91

1989

3, 177.05

5, 634.81

1990

2, 937.00

4, 979.07

1991

3, 512.25

5, 740.37

1992

3, 111.12

4, 835.62

1993

4, 133.90

6, 370.54

1994

14, 405.18

21, 618.84

1995

23, 210.10

33, 490.56

1996

11, 132.37

15, 314.28

1997

23, 062.97

29, 977.45

1998

23, 889.81

29, 507.78

1999

27, 002.20

31, 591.54

2000

29, 106.14

32, 268.62

2001

26, 493.57

28, 687.80

2002

18, 931.24

20, 295.60

2003

0.00

0.00

2004

8, 593.82

8, 593.82

2005

19, 312.05

19, 312.05

2006

659.61

659.61

2007

0.00

0.00

2008

704.50

704.50

2009

0.00

0.00

2010

0.00

0.00

2011

0.00

0.00

2012

0.00

0.00

2013

0.00

0.00

2014

0.00

0.00

(Tr. At 228-229, 1321-1330).

         Function Report

         In a Function Report dated August 13, 2009, plaintiff reported that she normally gets up at 5:00 a.m.; has breakfast; goes back to sleep; gets up to have lunch; either reads, plays on the computer, or rides a stationary bike; takes an afternoon nap; gets up at 6:00 p.m.; tries to “have contact with the outside world and family;” and then goes to bed around 10:00 p.m. (Tr. at 283). She does not need special reminders to take care of personal needs, grooming, or take medication (Tr. at 285). She prepares her own meals, usually casseroles. She loves to cook, but she is only able to do it about every two or three weeks. She is able to do laundry and clean her bathroom. She cannot reach or bend to clean the shower, she uses a spray. She has difficulty washing her hair because of her shoulder pain. She has difficulty fastening her bra and dressing because of her hands.

         Plaintiff is able to drive (Tr. at 286). She tries to get out once a week for a domestic violence support group. She shops in stores for medication once every week or two for up to 10 minutes. She gets flustered using cash. She tries to do reading and writing every day. She socializes on the computer. She sometimes needs reminders to go places when she takes a lot of pain medication because it makes her “a little foggy.”

         Plaintiff's impairments affect her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember, complete tasks, and concentrate (Tr. at 288). Her impairments do not affect her ability to understand, follow instructions, use her hands, or get along with others. Unless heavily medicated, she can pay attention “forever.”

         Missouri Supplemental Questionnaire

         In this document, also dated August 13, 2009, plaintiff reported that she can use the computer for a 2- to 3-hour session, but she needs to shift, move, or get up every 5 to 15 minutes (Tr. at 310). Plaintiff stated that her costochonritis[1] does not flare up too often, but when it does it takes her breath away. She described this condition as “manageable.” Her migraines “ebb and flow.” Sometimes over-the-counter medication alleviates her migraines, but other times nothing will help and they go on for 4 days or more. “One time I had one for 3 months.” She has problems with insomnia. She also has restless leg syndrome and sleep apnea but both are controlled (Tr. at 311).

         Disability Report Appeal

         In an undated Disability Report Appeal, plaintiff noted that her conditions began worsening in October 2009 -- two months after she completed the above summarized Function Report and Missouri Supplemental Questionnaire (Tr. at 314). Beginning in October 2009, she has been in excruciating pain and she rarely gets out of bed. She sleeps 20 hours a day, and sometimes her pain causes her to toss and turn. Her doctor recently prescribed Lyrica[2] which causes extreme dizziness. Her pain level is now intolerable. “Sitting in the same position for more than a minute or two causes pain.” She now gets spontaneous pain surges.

         Plaintiff reported that she saw Dr. Clare Reardon in September 2009 and began taking prenatal vitamins “to get me ready to try to have a child, if that's what I decide --and feel able -- to do some day soon.” (Tr. at 317, 318). Plaintiff needs help feeding her cat and taking care of him. She is no longer able to open jars due to hand pain. Standing at the stove is too difficult for her. Most of the time she misses meals because she is asleep.

         Daily Activities Questionnaire - Third Party

         On August 31, 2010, plaintiff's father completed a Daily Activities Questionnaire (Tr. at 337-340). Plaintiff sleeps most of the time every day. Her mother helps her with hygiene because plaintiff cannot bathe without great difficulty. Plaintiff's parents prepare her meals. Plaintiff cannot fix anything but cereal. Plaintiff can only shop by mail order. She does no chores. She goes out of the home once or twice a month and needs someone close by to steady her if needed. She does very limited driving and does not use public transportation. She is not able to play games. She does not listen to the radio or watch television much -- she sleeps most of the time. She has only read one book all year. Plaintiff has not attended the domestic violence support group since April 2010. She has no social activities. When she takes pain medications, she has trouble concentrating and remembering. She does not attempt projects.

         Daily Activities Questionnaire - Third Party

         On September 1, 2010, plaintiff's mother completed a daily activities questionnaire (Tr. at 341-344). Plaintiff typically spends her days in bed. She takes various medications to help her sleep. She seldom bathes or washes her hair; if she puts on a bra she needs help. Plaintiff's mother prepares plaintiff's meals. Plaintiff does no cooking, no shopping, no chores. She goes out of the home once or twice a month and needs no assistance when she does; she drives a car. Plaintiff seldom watches television but seems to remember what she watches. She seldom reads, but can remember what she reads. She has no social functions. Sometimes plaintiff's medications cause her to have problems concentrating or remembering. Plaintiff has hardly been out of bed since moving in with her parents in December 2008.

         B. SUMMARY OF TESTIMONY

         There have been four administrative hearings in this case.

         March 16, 2011

         During the March 16, 2011, hearing, plaintiff testified as follows:

         At the time of this hearing, plaintiff was 42 years of age and is currently 48 (Tr. at 45-46, 412). She was 5'8” tall and weighed 250 pounds (Tr. at 49). Plaintiff receives $650 per month in spousal support (Tr. at 56). She has a masters degree in Sociology (Tr. at 46). She works 15 minutes or less per day (Tr. at 46). She does not get paid; her compensation is a free apartment that would normally rent for $600 per month (Tr. at 46). It is a senior-living tax-credit building (Tr. at 46). She “makes rounds” one time each evening between 10:00 p.m. and midnight (Tr. at 47). It is a secure building and her responsibility is to make sure the proper doors are locked and the proper lights are on (Tr. at 47). She had been doing this job for about the past 5 months (Tr. at 47).

         Before getting this “job, ” plaintiff had not worked since January 2006 (Tr. at 49). She had to stop working due to lower back pain (Tr. at 49). Plaintiff's last job was a part-time pharmacy technician (Tr. at 49).

         During most of plaintiff's day, she sleeps (Tr. at 47, 49). She is either sleeping or trying to sleep about 20 hours out of each day -- whether she is sleeping or not, she is in bed about 20 hours every day (Tr. at 49, 50). Part of the reason is pain; part is because she has insomnia which is exacerbated by her medications (Tr. at 50). Some of her medications cause her to be drowsy and “they work at cross purposes and sometimes [she's] awake all night and sometimes [she's] asleep all day and asleep all night and they do both.” (Tr. at 50). Savella for fibromyalgia keeps her awake (Tr. at 50). She takes Tamazepam at night to help her sleep, but it does not always work (Tr. at 50). Even when she cannot sleep, she is trying to sleep (Tr. at 50).

         Plaintiff has fibromyalgia which causes constant pain in her lower back and hips (Tr. at 50). She also has knee pain and foot pain, and she recently developed wrist and hand pain (Tr. at 50). She has TMJ[3] which is exacerbated by fibromyalgia, and she has neck pain (Tr. at 50-51). Plaintiff was diagnosed with fibromyalgia in 2001 or 2002 by Larry Rittle at the KU Pain Clinic (Tr. at 51). She now sees her primary care physician, Thomas Chapman, and a neurologist, Sarah Hon, for fibromyalgia (Tr. at 51). She has never seen a rheumatologist -- no one has ever referred her to one (Tr. at 51). “[U]ntil three months ago I understood that I was being treated by physicians who knew what they were doing and I still believe that they know what they're doing. I'm on the most current medication that the high-powered medication that treats fibromyalgia. I've been to pain clinics. I've -- I'm doing what fibromyalgia patients do. I just have a really severe case.” (Tr. at 51). Plaintiff is not taking narcotic pain medications (Tr. at 51-52).

         Plaintiff saw a neuropsychologist who told her she was having trouble taking in information, which is why she is having trouble with remembering -- the information is “not there to forget” (Tr. at 52). She is missing a lot of things because she is not able to pay attention (Tr. at 52).

         Plaintiff began experiencing nausea and vomiting a few months before the hearing (Tr. at 48). She had been having a lot of tests done -- colonoscopies, EEGs, x-rays, MRIs and CT scans (Tr. at 48). Plaintiff suffers from nausea and vomiting daily (Tr. at 52-53). She vomits once a day, but she feels nauseated most of the day (Tr. at 53). Sometimes just moving makes her nausea worse (Tr. at 53). That is another reason why she spends so much time lying down (Tr. at 53).

         Plaintiff takes 17 pills a day (Tr. at 57). She has been taking almost all of them for the past five years (Tr. at 57). She takes Imitrex[4] (about 9 pills every 24 days) (Tr. at 57).

         Plaintiff is able to drive, but does so infrequently (Tr. at 47). She does her own shopping sometimes (Tr. at 47). She goes to the doctor and to therapy (Tr. at 47-48). Plaintiff lives alone, but her parents help her do chores, cook, clean, and do laundry (Tr. at 53). Plaintiff only showers about once a week, sometimes less (Tr. at 54). It is difficult for her to stand long enough to shower (Tr. at 54). She can stand for about 10 minutes (Tr. at 54). She fidgets a lot when she sits for extended periods due to her hips and back (Tr. at 54). She cannot sit more than 10 minutes at a time (Tr. at 54). It takes her about 10 or 15 minutes to walk the four floors of the apartment building each evening, and then she has to sit in the office and do a report (Tr. at 54). She rides the elevator up to the fourth floor, and then she walks the rest of the way including down the stairs (Tr. at 55). Plaintiff can carry a gallon of milk but nothing heavier (Tr. at 55).

         When asked to identify her worst problem, plaintiff said it was her inability to get out of bed every day and function normally (Tr. at 55). Her pain, confusion, and memory problems all cause that (Tr. at 55).

         At the conclusion of this hearing, the ALJ indicated he would have a rheumatologist review plaintiff's records, and then he would set another hearing.

         July 25, 2011

         During the July 25, 2011, hearing, Ann Winkler, M.D., Ph.D., a rheumatologist, was to testify as a medical expert, but she had not been provided with all of plaintiff's medical records (Tr. at 62-63).

         September 21, 2011

         Plaintiff's testimony.

         Since her last testimony plaintiff had been to the hospital four times -- three emergency room visits and one over-night stay which resulted from one of the emergency room visits (Tr. at 69, 70). She was having muscle spasms in her chest, shortness of breath, and increased heart rate (Tr. at 69). North Kansas City Hospital performed a full cardiac workup and said her heart was OK -- they thought the problem was musculoskeletal (Tr. at 69). She saw her doctor the day before the hearing and learned that it was a costochondritis flare, which is inflammation of the cartilage in her ribs and sternum (Tr. at 69-70). Plaintiff went to the emergency room on June 21 or 22 after she fell in her apartment and injured her leg and ankle (Tr. at 70). They put her in an air cast and told her to use a walker, which she did for five days (Tr. at 70). She went to the emergency room a week and a half ago for her right hand -- it was swollen and she was in a lot of pain (Tr. at 70-71). She was told it was probably some kind of deep tissue bruise (Tr. at 71). Plaintiff has recovered from her fall, but she continues to have trouble grabbing something or opening bottles of water (Tr. at 71). She also has trouble typing (Tr. at 71). The trouble with her hand has actually been going on for almost a year -- she has wrist splints that are supposed to help with that but they don't (Tr. at 71).

         Plaintiff was still working as the night manager of the senior apartment building (Tr. at 72). Her job is to be on call in the evenings and on weekends, and once each evening she walks the building to check the lights and doors (Tr. at 72-73). It takes her about 20 minutes to do that (Tr. at 73). She was also receiving food stamps and was on Medicaid (Tr. at 72).

         Plaintiff worked off and on as a pharmacy technician for several years (Tr. at 73). She was on her feet most of the day (Tr. at 73). She worked as a middle school math teacher, and was also on her feet all day performing that job (Tr. at 73). Up to 2001 she was a deputy juvenile officer and domestic relations specialist for Jackson County (Tr. at 74). A domestic relations specialist manages the divorce education curriculum, and she was a conflict resolution manager -- a mediation specialist (Tr. at 74). She worked as a custody evaluator in Kansas for five or six months, going into homes to assess situations, check on children's progress in school, and make recommendations to the court (Tr. at 74-75).

         Dr. Ann Winkler.

         Dr. Winkler is a rheumatologist. She testified that plaintiff's diagnosis of fibromyalgia is accurate; however, she noted that “on several occasions, she also was tender all over, which usually suggests that there are significant psychological issues that are impacting someone in terms of their pain perception.” (Tr. at 77).

         Considering plaintiff's fibromyalgia and other physical impairments, plaintiff should be capable of performing at least light-duty work -- lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing or walking 6 hours per day, and sitting without limitation (Tr. at 78). She should be able to climb stairs occasionally but could never climb ladders, ropes or scaffolds (Tr. at 78). She should frequently be able to balance (Tr. at 78). She should occasionally be able to kneel, crouch, stoop, or bend (Tr. at 78). She has no manipulative limitations and no visual or communicative limitations (Tr. at 78). She should avoid concentrated exposure to cold, wetness, humidity, dust, fumes, odors, and gases, and should avoid unprotected heights (Tr. at 78). The evidence established that she improved with physical therapy but was not compliant (Tr. at 78). Until her psychological problems are under better control, she will likely be impacted in terms of her ability to function on a regular basis (Tr. at 78). “[S]he has had what seems like pretty severe psychological issues, [which] probably are attacking her perception of her limits and her pain.” (Tr. At 78).

         December 11, 2014

         Plaintiff's testimony.

         At the time of this hearing, plaintiff was 46 years of age (Tr. at 1196). Plaintiff was no longer working as the night manager of the apartment building (Tr. at 1197). She worked there for one year, from October of 2010, to October 2011, and received a free apartment in lieu of a paycheck (Tr. at 1197).

         Plaintiff is unable to work due to pain and, more recently, cognitive issues (Tr. at 1198). She has pain primarily in her back, hips, knees and feet (Tr. at 1199). She has difficulty remembering things; she has a lot of trouble doing things that she has done for years (Tr. at 1199).

         Plaintiff can stand in one place, if she is also moving, maybe up to 15 minutes (Tr. at 1199). She is afraid of falling; steadiness is an issue (Tr. at 1199). She can sit for 15 minutes at a time, but she does a lot of fidgeting (Tr. at 1199). Plaintiff can walk through a grocery store, if leaning on a cart, for about 30 minutes (Tr. at 1200). Her parents help her a lot with grocery shopping and laundry (Tr. at 1200). Often she is in so much pain that she doesn't leave her house, or she is so fuzzy-headed that there is no way she can drive (Tr. at 1200). Plaintiff can pick up her cat, who weighs 15 pounds (Tr. at 1200). She can cradle him and walk around with him for about 3 or 4 minutes (Tr. at 1200). If she had to lift something more than 3 or 4 times per hour, she would be limited to 5 pounds (Tr. at 1200-1201). Fibromyalgia causes muscle fatigue -- even when she holds her cat for 3 or 4 minutes, it feels like she has been doing arm exercises for 2 hours (Tr. at 1201).

         Plaintiff had carpal tunnel release surgery on both hands in the summer of 2012 which alleviated some of the tingling and other issues (Tr. at 1201). But she was told her muscles are dead so she will never have the strength back (Tr. at 1201). She used to play the piano and the clarinet, but she cannot do those things anymore (Tr. at 1201). She is capable of using a keyboard, but not for more than 5 or 10 minutes at a time (Tr. at 1201).

         Plaintiff continues to have migraines (Tr. at 1201). She started BOTOX treatment for migraines the last day of June 2014 (Tr. at 1202). She was eligible for that because her migraines were considered chronic -- more than 16 a month (Tr. at 1202). Plaintiff was having closer to 25 or 30 migraines per month (Tr. at 1202). She has only had 2 BOTOX treatments so far (Tr. at 1202). She continues to have auras every day (Tr. at 1202). She treats her migraines with sleep -- she has been taking Sumatriptan for 10 or 15 years, and she also takes Tizanidine, a muscle relaxer (Tr. at 1202). She will take Zofran with those medications and lie down for an hour or two (Tr. at 1203). Imitrex causes nausea (Tr. at 1202).

         In 2011 plaintiff was diagnosed with gastroparesis -- her stomach does not empty like it should (Tr. at 1203). That caused the chronic nausea, vomiting and diarrhea (Tr. at 1203). Plaintiff took a medication that was not approved in the United States -- her doctor recommended it and told her how to get it (Tr. at 1203). She took it for a year and a half, but it was cost-prohibitive so she stopped (Tr. at 1203). She tried several other medications, Erythromycin (antibiotic) and Reglan (treats gastroesophageal reflux disease (“GERD”)), but those did not work (Tr. at 1203). Plaintiff's symptoms caused her to use the restroom frequently (Tr. at 1203). Recently she only has diarrhea issues once every couple of weeks -- now she has constipation mostly (Tr. at 1203). Vomiting is no longer an issue (Tr. at 1204). She had lap band surgery in February 2012 which helped with some of those issues but caused new problems (Tr. at 1204).

         Plaintiff continues to have difficulty sleeping (Tr. at 1204). She feels fuzzy-headed and muddled, and she has difficulty with even simple tasks (Tr. at 1204). She gave up driving three years ago because she was so sleep-deprived that she was going to the grocery store without being aware that she had gone (Tr. at 1204). Her parents have provided transportation to doctor appointments and the grocery store -- the only two places plaintiff goes (Tr. at 1204-1205). A year ago a sleep doctor put her on Modafinil which is to keep her awake and focused during the day (Tr. at 1205). Although that medication was working well for her, a month earlier it was suspected that she may be narcoleptic and she is scheduled for testing in January (Tr. at 1205). Modafinil helped her not be asleep -- “I'm still groggy, I”m still sleepy, but I'm not asleep, which is what I think I probably was before. I mean I think that I was, was just not -- I couldn't function because I was so sleepy. I wasn't aware of what I was doing. The Modafinil improved that dramatically in that if I think I'm going to go to the grocery store, and I have somebody to go to the grocery store with, then I can actually get there and get some things purchased and get home. Prior to that, I may have come home with things I didn't use.” (Tr. at 1205-1206). Plaintiff takes naps every day for 1 to 3 hours (Tr. at 1206).

         When it gets too warm, plaintiff's asthma causes her to cough (Tr. at 1206). Cold, damp weather is difficult for her because of the fibromyalgia (Tr. at 1206). Any change in temperature causes a migraine (Tr. at 1206).

         Plaintiff can do household chores and take care of her home, but her parents help her (Tr. at 1207). She does dishes once a week (Tr. at 1207).

         Plaintiff's Imitrex (Sumatriptan) for migraines causes nausea (Tr. at 1207). Most of the medications she takes except Provigil cause drowsiness (Tr. at 1207). She sees a doctor on average once a week (Tr. at 1208). Plaintiff has trouble finding doctors that treat Medicaid patients in Clay County where she lives (Tr. at 1208-1209). Plaintiff lost her spousal support in May 2013 which has caused money problems with medications and treatments (Tr. at 1209).

         Stella Doering.

         Vocational expert Stella Doering testified at the request of the Administrative Law Judge. Plaintiff's past work consists of child welfare case worker, SVP 7, light; community and family support officer, SVP 8, sedentary; middle school teacher, SVP 7, light; pharmacy technician, SVP 3, light (Tr. at 1209-1211).

         The first hypothetical involved a person who could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk a total of 6 hours per day; sit for 6 to 8 hours per day; cannot work under extremes of temperature; cannot work under conditions where there are concentrated airborne irritants; cannot work under conditions where there is excessive wetness and humidity; cannot work above shoulder level; cannot limb ladders, ropes or scaffolds; cannot crawl, work at unprotected heights, or forcefully grasp or twist; can perform ordinary manipulation with both hands without limitation; is limited to repetitive work which is simple and unskilled, no higher than an SVP of 2 (Tr. at 1211). The vocational expert testified that such a person could not perform any of plaintiff's past relevant work (Tr. at 1211). Such a person could work as a router, DOT 222.587-038, light, SVP 2, with 1, 000 jobs in Missouri and 42, 000 in the country; a collator operator, DOT 208.685-010, light, SVP 2, with 800 in Missouri and 52, 000 in the country; or folding machine operator, DOT 208.685-014, light, SVP 2, with 1, 100 in Missouri and 43, 000 in the country (Tr. at 1211).

         The second hypothetical was the same as the first except the person would be unfocused and off task 10 to 15 percent of the time (Tr. at 1212). The vocational expert responded, “Well, the Department of Labor considers an 85 percent productivity rate to be normative, and 10 to 15 percent is within that. So, while it might reduce the numbers slightly, it would not preclude full time, competitive work.” (Tr. at 1212). If a person were off task 20 percent of the time, she could not work (Tr. at 1212).

         The third hypothetical was the same as the first except the person, due to debilitating pain, would need to take breaks 15 minutes out of every hour (Tr. At 1212). Such a person could not work (Tr. at 1212).

         If a person were to miss work 3 or more times a month, the person could not work (Tr. at 1213). If the person in the first hypothetical needed to shift positions from sitting to standing every 15 minutes, the person could still perform sedentary jobs (Tr. at 1213). If the person would need to leave the work station every 5 or 10 minutes such that it interfered with productivity, it would become problematic (Tr. at 1213).

         C. SUMMARY OF ...


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