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Alic v. Colvin

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

September 30, 2016

RABIJA ALIC, Plaintiff,
v.
CAROLYN COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          JOHN A. 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's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

         I. Background

         Plaintiff Rabija Alic (“Alic”) filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., in 2010. (Tr. 42-43) The Social Security Administration denied Alic's claim. (Tr. 44-50) Alic filed a timely request for a hearing before an administrative law judge (“ALJ”), and following a hearing, the ALJ issued a written decision on January 11, 2012 upholding the denial of benefits. (Tr. 6-21) That opinion was appealed to this Court, and by Order of Remand issued August 8, 2014, the ALJ's decision was reversed. (Tr. 870-904; 4:13-cv-638-TCM). United States Magistrate Judge Mummert found that the ALJ failed to accept or reject a specific finding by one of Alic's physicians, and failed to identify specific Dictionary of Occupational Title (“DOT”) codes for the jobs identified as Alic's past relevant work. Judge Mummert also found that the ALJ did not address whether Alic can perform her past relevant work at the necessary language level in light of her Bosnian eighth grade education and inability to read English. (Tr. 902-03)

         Following a second hearing, the ALJ issued a new unfavorable decision on April 27, 2015. (Tr. 819-38) The ALJ decision became final on June 27, 2015 and is now before this Court for judicial review.

         II. Decision of the ALJ

         The ALJ determined that Alic had not engaged in substantial gainful activity since March 27, 2010, which is the alleged onset date of disability. (Tr. 824) The ALJ found that Alic had the following severe impairments: lumbar degenerative disc disease and coronary disease but 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 1. (Tr. 824-25) After considering the entire record, the ALJ determined that Alic has the residual functional capacity (“RFC”) to perform the full range of light work, as defined in 20 C.F.R. § 404.1567(b). (Tr. 826)

         The ALJ found that Alic is able to perform her past relevant work as a packer, housekeeper, and sewing machine operator.[1] (Tr. 831) Thus, the ALJ found Alic not disabled within the meaning of the Social Security Act. (Tr. 833) The ALJ also made an alternative finding that Alic would be able to work as a mail clerk, electrical assembler, or office helper. (Tr. 832)

         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 February 4, 2015. Alic testified and was represented by counsel. (Tr. 841-49) She testified with the aid of an interpreter. (Tr. 841) A vocational expert did not testify at the hearing, but rather submitted vocational interrogatories to the ALJ. (Tr. 986-88)

         1. Alic's Testimony

         Alic was 54 years old at the time of the hearing. (Tr. 841) She was born in Srebrenica, Bosnia, and came to the United States in 2001. (Tr. 842) At the time of the hearing, Alic was living with her son and daughter-in-law. Id. She has undergone eight years of schooling in Bosnia. Id. She is unable to read or write English. (Tr. 843) She does not have a driver's license. Id.

         Alic testified that she is able to lift a gallon of milk with her right hand but not her left hand because she has a pacemaker. (Tr. 844) She is able to stand for “maybe 15 minutes” before she has to sit down. Id. She can sit “around 10 minutes” before she has to get up and change positions. Id. She is able to walk for “maybe 15 minutes” before she has to take a break. Id.

         Alic stated that she has difficulty taking a shower and getting dressed because of her left arm. (Tr. 845) Her daughter-in-law has to be there when Alic takes a shower, and Alic is not allowed to close the door to the bathroom. Id. She does not do any cooking around the house, and she tries to clean the house but is unable to finish, so she must call her daughter-in-law to finish it. Id.

         Next, Alic testified about her back problems. Alic testified that her spine is damaged, and that she was told of a problem with a bone in her back. (Tr. 846) She experiences pain going from her right hip down her leg, and the pain has also started in her left leg. Id. However, she states the pain is worse on her right side. Id.

         Alic also stated that she has received treatment for depression. (Tr. 846) She witnessed the Bosnian War and recounted her experiences during the war, including food and water shortages. Id. Alic said that she once saw, after leaving home to fetch water with another woman, three bodies that had been decapitated. (Tr. 846-67) Alic stated that she continues to have thoughts about her experiences during the war and now has trouble sleeping because of them. (Tr. 847) She also takes sleeping pills and will have nightmares about the war. Id.

         Alic also suffers from heart problems. She has a pacemaker and high blood pressure. (Tr. 848) She tires easily. (Tr. 849)

         2.Vocational Interrogatory of Vocational Expert

         Vocational expert Jenifer Teixeira was given a list of questions by the ALJ in an interrogatory on February 11, 2015, to which Ms. Teixeira responded on February 18, 2015. (979-88)

         For the hypothetical, the ALJ asked Ms. Teixeira to assume an individual of Alic's age, education, work experience, and ability to communicate in English as defined in 20 C.F.R. § 404.1564 and 20 C.F.R. § 416.964, who has the RFC to perform the full range of light work as defined in 20 C.F.R. § 404.1567(b) and 20 C.F.R. § 416.967(b). Id. The ALJ then asked Ms. Teixeira whether this individual could perform any of Alic's past jobs as actually performed or as normally performed in the national economy. Id. Ms. Teixeira opined that the hypothetical individual would be able to perform past work as a housekeeper, packer, and sewing machine operator. (Tr. 987) Ms. Teixeira further opined that the individual would not be able to perform as a home health aide because that position is at the medium exertion level. Id.

         Next, the ALJ asked whether the individual could perform any unskilled occupations with jobs that exist in the national economy. (Tr. 981) Ms. Teixeira opined that the individual could work as a mail clerk, DOT number 209.687-026, specific vocational preparation (“SVP”) of 2, light work; 2, 850 such jobs are estimated to exist in Missouri and 119, 960 nationally. (Tr. 987) Second, such a person could work as an electrical assembler, DOT number 729.687-010, SVP of 2, light work; 2, 740 such jobs are estimated to exist in Missouri and 180, 440 nationally. Id. Third, such a person ...


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