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Ash v. Colvin

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

September 29, 2016

LINDA ASH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JHON ROSS, UNITED STATES DISTRICT JUDGE.

         This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's final decision denying Plaintiff Linda Ash's (“Ash”) application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

         I. Background

         Plaintiff Linda Ash filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., on October 10, 2012. (Tr. 113-19) The Social Security Administration denied Ash's claim on November 30, 2012. (Tr. 11) Ash filed a request for a hearing before an administrative law judge (“ALJ”), and following a video hearing, the ALJ issued a written decision on January 24, 2014 upholding the denial of benefits. (Tr. 11-18) Ash requested review of the ALJ's decision by the Appeals Council, which the Appeals Council denied on May 20, 2015. (Tr. 1-4) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).

         Ash filed this appeal on July 20, 2015. (Doc No. 1) The Commissioner filed an Answer on September 22, 2015. (Doc. No. 7) Ash filed a brief in support of her Complaint. (Doc. No. 9) The Commissioner filed a Brief in Support of the Answer. (Doc. No. 10)

         II. Decision of the ALJ

         The ALJ determined Ash had not engaged in substantial gainful activity since September 20, 2010, the alleged onset date of disability. (Tr. 13) The ALJ found Ash had the following severe impairments: arthralgias[1] and history of peripheral vascular disease. (Tr. 14) The ALJ further found that Ash had the following non-severe impairments: irritable bowel syndrome (“IBS”), diabetes, high blood pressure, and depression. (Tr. 13). The ALJ concluded that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I. (Tr. 14)

         After considering the entire record, the ALJ determined Ash had the residual functional capacity (“RFC”) to perform light work except that she can only occasionally perform all postural activities. (Tr. 14)

         The ALJ determined that Ash is able to perform her past relevant work as a loan clerk, and this work does not require the performance of work-related activities precluded by Ash's RFC. (Tr. 16) Thus, the ALJ found Ash not disabled within the meaning of the Social Security Act. (Tr. 17)

         III. Administrative Record

         The following is a summary of the relevant evidence before the ALJ.

         A. Hearing Testimony

         The ALJ held a hearing in this matter on January 14, 2014. Ash testified and was represented by counsel. (Tr. 23-41) Vocational expert Janice Hastert also testified at the hearing. (Tr. 41-43)

         1. Plaintiff's testimony

         Ash was 64 years old at the time of the hearing. (Tr. 28) She last worked in 2010, and she performed line title research. (Tr. 28) This job required her to travel to courthouses and pull books, which required her to climb ladders. (Tr. 28) She stated that she stayed at this job for approximately six months. (Tr. 28) Ash had issues at this job due to her IBS, which would sometimes prevent her from working a full day. (Tr. 29) She stated that she has unexpected issues with her IBS about three times a week. (Tr. 30)

         Prior to her employment as a title clerk, Ash worked for a payday loan company. (Tr. 40) She had worked there for nine and a half years. (Tr. 40) At this job, she had to close the office several times to go home to clean up due to her IBS, after which she would return to the office to finish her work. (Tr. 40-41) Ash's employer dismissed her. (Tr. 40) According to Ash, she was dismissed because the payday loan company told her she “couldn't do the job.” (Tr. 40)

         Ash testified that on a typical day, she takes pain medication first thing in the morning before she makes coffee. (Tr. 32) She will lay down after making the coffee in order to allow for the pain medication to take effect. (Tr. 32) She mows her grass and takes care of “all the upkeep” of her house. (Tr. 33, 197) This upkeep includes daily cleaning, weekly laundry, and repairs as needed, all presumably around Ash's house. (Tr. 197) More specifically, Ash vacuums, mops the floors, and cleans the toilet. (Tr. 33) However, Ash often takes breaks during her chores, during which time she usually rests on her couch. (Tr. 34-35) For example, Ash can mow about half of her front yard before she needs to take a break. (Tr. 38) As a result, Ash takes anywhere from several hours to a day or two to mow her lawn. (Tr. 38) Ash also states that she does not leave her home often, and if she does, it is usually in the morning. (Tr. 33) Physically, Ash can walk about half a block before the pain “feels like [her] bones are rubbing together.” (Tr. 38) She can stand about 5 to 10 minutes, but her back hurts if she tries to stand longer. (Tr. 32)

         At the time of the hearing, Ash was receiving several medications for her conditions. Ash was taking Lantus, Pedra, and Byetta for her diabetes.[2] (Tr. 31) Ash also checked her blood sugar three times a day. Ash also takes Aleve and Tramadol in the morning for her pain and Welchol for her IBS. (Tr. 32, 36)

         2.Testimony of vocational expert

         With respect to Ash's vocational history, vocational expert Janice Hastert testified that Ash's past positions of loan clerk and title clerk were at the light exertional level. (Tr. 42)

         For the first hypothetical, the ALJ asked Hastert to determine whether someone who is limited to work at the light exertional level and who could occasionally perform various postural activities could have done Ash's past work. (Tr. 41-42) Hastert opined that the loan clerk and title clerk fall within that criterion as defined by the Dictionary of Occupational Titles (“DOT”). (Tr. 42) Hastert added that the typical break schedule for those types of jobs is as follows: a 10 to 15-minute break in the morning, half hour or hour-long lunch break, and a 10 to 15-minute break in the afternoon. (Tr. 42)

         The ALJ also asked Hastert whether the jobs of loan clerk and title clerk would allow an individual to take additional, unscheduled breaks three or four times a week in order to changes clothes or go home to change. (Tr. 42) Hastert opined that such a schedule would require accommodations from most work settings. (Tr. 42) In addition, Hastert stated that typically for most of these jobs, an employer would allow an employee to be absent eight to ten days a year, and an employee would be unable to sustain such employment if he or she was missing a couple of days every week. (Tr. 43)

         B. ...


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