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Tarkington v. Berryhill

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

March 13, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         Debra Ann Tarkington (“Plaintiff”) appeals the decision of the Acting Commissioner of Social Security (“Defendant”) denying her applications for disability benefits under Title II of the Social Security Act, see 42 U.S.C. §§ 401 et seq., and supplemental security income under Title XVI, see 42 U.S.C. §§ 1381 et seq. Substantial evidence supports the Commissioner's decision, and therefore it is AFFIRMED. See 42 U.S.C. § 405(g).

         I. Background

         A. Procedural History

          On April 30, 2013, Plaintiff filed applications for disability benefits, arguing that she was precluded from working due to the combined effect of autoimmune hepatitis, lupus, and fibromyalgia. (Tr. 90) On July 31, 2013, Plaintiff's claims were denied upon initial consideration. (Tr. 105-109) Plaintiff requested a hearing before an administrative law judge (“ALJ”) to contest the initial decision. (Tr. 111-12) Plaintiff appeared at the hearing (with counsel) on August 12, 2014, and testified concerning the nature of her disability, her functional limitations, and her past work. (Tr. 26-76) A vocational expert (“VE”) also testified. (Tr. 61-76) The VE testified about the nature of Plaintiff's past work, and opined as to Plaintiff's ability to secure other work in the national economy, based upon Plaintiff's functional limitations, age, and education. (Id.) In a decision dated August 27, 2014, the ALJ found Plaintiff not disabled.

         Plaintiff sought review of the ALJ's decision before the Appeals Council of the Social Security Administration. (Tr. 4) On September 18, 2015, the Appeals Council denied review. (Tr. 1-3) Therefore, the ALJ's August 2014 decision is the final decision of the Commissioner. Plaintiff has exhausted her administrative remedies, and her appeal is properly before this Court. See 42 U.S.C. § 405(g).

         B. Administrative Hearing Testimony

         An administrative hearing in this matter was held on August 12, 2014. (Tr. 26) At the hearing, both Plaintiff and a vocational expert (“VE”) testified. Both witnesses were questioned by the ALJ and by Plaintiff's attorney. At the outset of the hearing, Plaintiff's counsel noted no objections to the proposed exhibits, and specifically noted that Plaintiff was not alleging any listing. (Tr. 26-27)

         1) Plaintiff's Testimony (Tr. 28-66)

         Plaintiff began her testimony by discussing the onset of her autoimmune hepatitis. (Tr. 28-29) Plaintiff described her past work, which included working at a restaurant in 2012, after her alleged onset date.[3] (Tr. 31-33) Plaintiff acknowledged that she stopped working at the restaurant for reasons other than her disability, rather the restaurant closed in January of 2013. (Tr. 32) After the restaurant closed, Plaintiff received unemployment benefits, and she applied for other jobs as a condition of receiving such benefits. (Tr. 33-34)

         Regarding her symptoms, Plaintiff testified that she “hurt[s] all the time.” (Tr. 43) Plaintiff claimed that water hurts her body, which impairs her ability to take a shower or a bath. (Id.) Plaintiff also testified that she has trouble sleeping, because she “can't get comfortable, ” and “can't lay straight on [her] back, [or her] stomach.” (Tr. 45) Plaintiff further testified that she drops things, like coffee, or food dishes. (Tr. 47)

         Plaintiff admitted that her daily activities have, at times, included taking care of household chores, including changing sheets, washing dishes, and preparing meals. (Tr. 44-46) Plaintiff testified that she takes care of her minor son, including doing his laundry, making meals, and attending school functions such as parent/teacher conferences. (Tr. 44-45)

         In response to questioning by her attorney, Plaintiff represented that: her pain is between a seven and an eight (on a ten-point scale) on a daily basis; she has to nap every day; she naps “[a]lmost all day long;” and when she is not napping, she “lay[s] in bed” watching movies and listening to music.” (Tr. 48-51) Plaintiff also testified that, due to her depression and the fact that her medications have made her gain substantial amounts of weight, she “do[esn't] really go out of [her] house very often.” (Tr. 52) Plaintiff also discussed hallucinations that she had in January of 2012. (Tr. 52-53) Plaintiff clarified that she does not have such hallucinations on a “normal” basis. (Tr. 52) Finally, Plaintiff also testified-in response to medical records showing that she was treated for substance abuse, including marijuana-that she had never used marijuana, notwithstanding the medical records. (Tr. 53-54)

         As to her physical limitations, Plaintiff stated that she cannot sit in the same position “for too long;” that she always has pain when she sits; that she cannot stand for the twenty minutes required to do the dishes-she has to sit down “two or three times;” that she has problems walking to the grocery store directly behind her apartment complex; and that she has problems bending, climbing ladders, squatting, and “reaching high.” (Tr. 54-58)

          2) Vocational Expert Testimony (Tr. 61-75)

         A vocational expert (“VE”) testified regarding Plaintiff's past work, and Plaintiff's current ability to work. In connection with the VE's testimony, the ALJ sought clarification from Plaintiff concerning the exertional requirements of her past work at a deli and as a waitress. Plaintiff estimated that she had been required to lift up to fifty-pound pans of food, but clarified that the pans she had to lift were more than the weight of her nineteen pound granddaughter. (Tr. 62-65) The VE estimated that Plaintiff's job required medium-level exertion, as that term is defined in social security law. (Tr. 66)

         The ALJ asked the VE a series of hypothetical questions to determine whether someone with Plaintiff's age, education, work experience, and specific functional limitations would be able to find a job in the local or national economy. (Tr. 67-70) The VE responded that such a hypothetical person would be able to perform the job duties of a patcher, a touch up screener, and a charge account clerk. (Tr. 69-70) Plaintiff's counsel also questioned the VE. Counsel asked whether a need to lie down during the work day would erode the available job base, and whether someone without a high school education would be able to perform the representative jobs. The VE advised that, depending on the circumstances (e.g., timing and frequency), the need to lie down could preclude employment and would be viewed as an accommodation. Regarding education, the VE stated, inter alia, that the jobs identified could be performed by someone without a high school education. (Tr. 71-73)

         C. Forms Completed by Plaintiff

         In her Function Report - Adult, completed on May 11, 2013, Plaintiff reported being able to clean, do laundry and dishes, prepare meals, and shop for food.

         D. Relevant Medical Evidence

         Plaintiff appears to have suffered from autoimmune hepatitis since at least December of 2011, when she was hospitalized for several days due to jaundice, fatigue, and general malaise. Multiple tests and imaging done during this time, including a liver biopsy, showed abnormal findings consistent with the diagnosis of autoimmune hepatitis. (Tr. 259-95, 307) At the same time, however, Plaintiff's autoimmune disorder appears to have improved and stabilized with the initiation of-and periodic adjustment to-her medication regimen. (Tr. 259-61)

         As to Plaintiff's alleged musculoskeletal impairments, repeated examinations have been unremarkable. (See Tr. 259-95, 301-07, 413-566) For example, objective imaging has shown no more than grade I anterolisthesis of L5 with spondylolysis. (Tr. 468, 572) Bone density testing was normal. (Tr. 462) On examination in July of 2012, Plaintiff had a normal gait, full strength throughout her body, no sensory deficits, and full reflexes. (Tr. 326)

         As to her mental impairments, Plaintiff did not see a mental health professional at the time of the administrative hearing, and her prior treatment with mental health professionals lasted for only a couple of months. In May of 2013, Plaintiff was evaluated at Pathways Behavioral Health, and diagnosed with major depressive disorder, recurrent, (Tr. 378), but she appears to have only received treatment until June of 2013. (Tr. 404) (Wellness Plan dated June 17, 2013)

         E. ALJ's Decision

         In evaluating Plaintiff's impairments, and whether Plaintiff was entitled to disability benefits, the ALJ followed the five-step analysis required by the Commissioner's regulations. At step one, the ALJ found Plaintiff was not engaged in substantial gainful activity from the time of her alleged disability onset. (Tr. 11) The ALJ noted that Plaintiff worked at a restaurant after her alleged onset date, and continued working until that restaurant went out of business in January of 2013. (Tr. 11, 17, 32) The ALJ found, however, that Plaintiff's income from that work, when averaged out over a year, did not amount to “substantial gainful activity” under the Social Security Act. (Tr. 11) The ALJ expressly noted that the evidence of Plaintiff working after her alleged onset date called into question the credibility of Plaintiff's testimony that she is too disabled to work. (Id.)

         At step two, the ALJ found that Plaintiff suffered from the following severe impairments: (1) autoimmune hepatitis; (2) autoimmune deficiency disorder; and (3) spondylolysis.[4] (Tr. 12) The ALJ found Plaintiff's depression to be a non-severe impairment because it “does not cause more than minimal limitation in [Plaintiff's] ability to perform basic mental work activities.” (Id.) In arriving at this conclusion, the ALJ noted that: Plaintiff admitted she did not see a mental health professional at the time; and although Plaintiff took depression medication, she received treatment for only a couple of months. (Id.) In making her finding regarding Plaintiff's depression, the ALJ also considered Plaintiff's alleged mental disorders in the context of the Commissioner's four broad functional areas, based on the evidence of record, including the opinion of a psychological consultant. (Tr. 12-13) Plaintiff had only mild limitations in the functional areas of: (1) activities of daily living; (2) social functioning; and (3) concentration, persistence, or pace. (Tr. 12) Regarding the fourth area, the ALJ found that Plaintiff had no episodes of decompensation of an extended duration. (Tr. 13)

         At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Tr. 13)

         As part of his analysis, the ALJ evaluated Plaintiff's credibility and the relevant opinion evidence. Regarding credibility, the ALJ found Plaintiff “not entirely credible, ” in her hearing testimony and assertions of disabling symptoms and functional limitations. (Tr. 14) This finding was largely based on the ALJ's view that: the objective evidence did not support the level of disability that Plaintiff was claiming; Plaintiff's daily activities did not support allegations of total disability; and Plaintiff's work history weighed against her credibility. (Tr. 15-17) The ALJ thought it relevant that Plaintiff was able to work at a restaurant, after her alleged disability onset, and that she stopped working for a non-medical reason-the restaurant closed. (Id.)

         The ALJ gave great weight to the opinions of state agency medical consultant, Dr. Kenneth Smith, M.D. (Tr. 16) Dr. Smith, who reviewed Plaintiff's medical records, opined that Plaintiff had some moderate exertional limitations, which are broadly consistent with the RFC found by the ALJ, which is described below. (Tr. 85-86) Dr. Smith thought Plaintiff fully capable of performing at least some work. (Tr. 87)

         At step two, the ALJ considered and gave great weight to the opinions of state agency psychological consultant, Dr. Charles W. Watson, Psy.D.[5] (Tr. 13, 82-84) Dr. Watson found Plaintiff's affective and anxiety disorders to be non-severe, and that she had only mild limitations in the four primary functional areas. (Tr. 84)

         The record does not appear to include any other medical or psychological opinion evidence.[6] The ALJ noted that the record lacked “any opinions from [Plaintiff's] treating physicians indicating that [she] is disabled or … has limitations greater than those determined in the residual functional capacity. Given [Plaintiff's] allegations of totally disabling symptoms, one might expect to see some indication in the treatment records of restrictions placed on [her] by her treating doctor.” (Tr. 17)

         The ALJ also considered an affidavit submitted by Plaintiff's adult daughter in support of Plaintiff's applications. (Tr. 257-58) The ALJ concluded that “[s]ignificant weight cannot be given to this third party report because it … is simply not consistent with the preponderance of objective findings, opinions, and observations by the medical doctors in this case.” (Tr. 17)

         Based on the medical evidence, Plaintiff's credibility, and the opinion evidence of record, the ALJ formulated the following RFC:

[Plaintiff is capable of performing] light work … except she can lift and/or carry twenty pounds occasionally and ten pounds frequently. She can stand and walk for three hours out of an eight-hour workday and sit for six or more hours out of an eight-hour workday. She can climb ramps and stairs occasionally, but never ladders, ropes, or scaffolds. She is limited to occasional balancing, stooping, kneeling, crouching, and crawling. She must avoid concentrated exposure to temperature extremes, unprotected heights, fast moving machinery, and vibration. She is limited to unskilled work consisting of one-to-two step instructions.

(Tr. 13)

         At steps four and five, the ALJ relied on the VE's hearing testimony. At step four, the ALJ found that Plaintiff could not return to her past work. (Tr. 18) At step five, the ALJ found that, considering Plaintiff's age, education, work experience, and residual functional capacity, Plaintiff is capable of making a transition to other work in the national economy. (Tr. 18) The ALJ found Plaintiff capable of working as a patcher, a touch up screener, or a charge account clerk. (Tr. 19) Accordingly, the ALJ found Plaintiff not disabled. (Id.)

         II. Issues Before the Court

         In her opening brief, Plaintiff lists some eight separate arguments in support of her claim that the ALJ's decision lacks substantial evidentiary support in the record as a whole.[7] Because many of her arguments overlap and require consideration of related legal ...

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