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Earnest v. Berryhill

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

June 12, 2017

TRUDY R. EARNEST, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Plaintiff Trudy R. Earnest brings this action under 42 U.S.C. § 1383(c)(3) seeking judicial review of the Commissioner's final decision denying her application for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. Because the Commissioner failed to consider the entirety of the record in determining Earnest's residual functional capacity (RFC), I will reverse the decision and remand for further proceedings.

         Procedural History

         Earnest filed her application for SSI in April 2013, claiming that she became disabled on July 1, 2007, because of fibromyalgia, allodynia, hyperalgesia, chronic pain, sacroiliac joint pain, sciatica pain and spasms, degenerative disc disease, arthritis, high RH factor, severe musculoskeletal pain, tingling and numbness in feet, shooting pain down legs, and chronic pain in joints. (Tr. 185-95, 209.) Earnest later amended her alleged onset date to March 12, 2013. (Tr. 34.)[2] On August 6, 2013, the Social Security Administration denied Earnest's claim for benefits. (Tr. 68-115.) Upon Earnest's request, a hearing was held before an administrative law judge (ALJ) on April 29, 2015, at which Earnest and a vocational expert testified. (Tr. 31-67.) The ALJ issued a written decision on June 5, 2015, denying Earnest's claim for benefits, finding that she could perform work as it exists in significant numbers in the national economy. (Tr. 17-26.) On August 2, 2016, upon review of additional evidence, the Appeals Council denied Earnest's request for review of the ALJ's decision. (Tr. 1-5.) The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

         In this action for judicial review, Earnest contends that the ALJ's decision is not supported by substantial evidence on the record as a whole. Specifically, Earnest argues that the ALJ erred by discounting the opinion of her treating nurse practitioner and failed to adequately consider her impairment of fibromyalgia when assessing her RFC. Earnest requests that the matter be remanded to the Commissioner for further consideration. For the reasons that follow, I will reverse the decision and remand for further proceedings.

         Evidence Before the ALJ

         A. Testimonial Evidence

         1. Earnest's Testimony

         At the hearing on April 29, 2015, Earnest testified in response to questions posed by the ALJ and counsel.

         At the time of the hearing, Earnest was forty-four years old. She went to school through the eleventh grade and later obtained her GED. She also trained and was certified as a certified nurse's assistant. Earnest lives in a house with her husband and two sons, who are ten and eight years old. She stands five feet, seven inches tall and weighs 200 pounds. (Tr. 36-38, 54.)

         Earnest's Work History Report shows that she worked as a line worker from 1992 to 1995. From 1996 to 1998, she worked as a caretaker. Earnest worked at Hannibal Regional Hospital from 1998 to 1999 in phlebotomy. She worked in customer service from 1999 to 2004. (Tr. 244.) Earnest testified that she stopped working in 2007 after her son was born with spina bifida. She testified that the stress brought on by that circumstance caused many mental, physical, and emotional problems, and she could not go back to work. (Tr. 42-43.)

         Earnest testified that she has been diagnosed with fibromyalgia and that the condition affects her entire body. She experiences stiffness, tingling and numbness in her hands and feet, achiness in her legs and feet, and a lot of pelvic pressure. (Tr. 45-47.) Burning and stabbing pain in her joints and sacroiliac area shoots down her legs and into her feet. (Tr. 39-40.) Earnest testified that she elevates her legs and performs certain exercises to try to alleviate the pain. She also alternates applying ice packs and heat throughout the day, and she sleeps on an ice pack at night. (Tr. 47-49.) She takes hydrocodone every four to six hours for pain and uses a TENS unit three or four times a day. (Tr. 44, 49-50.)

         Earnest testified that her fibromyalgia pain is more severe in areas where she suffered fractures from an earlier automobile accident - her left wrist, right shoulder, left ankle, and some ribs. She hardly uses her left hand because of significant pain; and her neck, shoulder, and ankle constantly pop and ache. Earnest also had cervical spine surgery in 2002 and had a plate and four screws placed in her neck. She experiences stiffness and pain in the neck area because of arthritis and has difficulty sleeping because of the condition. (Tr. 40-42.)

         Earnest testified that she experiences migraine headaches three to four times a week. They last over three hours and she sometimes experiences nausea and vomiting with the headaches. For these headaches, Earnest takes pain medication and lies down on ice packs in a dark room. She also uses her TENS unit. Earnest also has tension headaches two to three times a week. (Tr. 43-45.)

         Earnest has also been diagnosed with depression and takes medication for the condition. Earnest testified that an abusive childhood is the source of her depression. (Tr. 53-54.)

         In addition to hydrocodone, Earnest takes ibuprofen, Aleve, Savella, Prozac, and lorazepam for her impairments. (Tr. 51-52.) Her medication helps the pain for short periods, but her pain is chronic. (Tr. 58.) Earnest testified that she has many side effects from her medication, including irritable bowel syndrome, constipation, profuse sweating, anxiety, dry mouth, dry skin, and “brain fog.” (Tr. 53.)

         As to her exertional abilities, Earnest testified that she can stand for about fifteen minutes before she experiences pain. (Tr. 39.) Sitting in a straight-back chair causes pain. Earnest testified that she does not sit a lot because of pain. (Tr. 48.)[3] Lying flat on her back is most comfortable for her. (Tr. 51.) Earnest can lift two or three pounds, but she tries not to lift anything because of her neck condition. (Tr. 55.) Earnest testified that she experiences pain and gets dizzy and lightheaded if she bends, squats, or stoops. (Tr. 57.)

         As to her daily activities, Earnest testified that she goes to bed around 8:30 p.m. and wakes up every three hours because of pain. She gets up in the morning at 6:00 a.m. Her children dress and feed themselves before school. Earnest testified that she spends most of her day resting in bed. (Tr. 50-51.) Her husband does a lot of the housework and takes care of the lawn. She has an adult daughter and an aunt who help care for the children. (Tr. 38-39.) Earnest can drive but does so only when she has to and then only for short distances. For longer distances, she makes arrangements with a transportation service. She shops with her husband. Earnest has difficulty with some personal care, such as shaving her legs and brushing her hair. She bathes three or four times a week, and her husband sometimes helps her. (Tr. 55-57.)

         2. Vocational Expert Testimony

         Ira Watts, a vocational expert, testified at the hearing in response to questions posed by the ALJ and counsel.

         Mr. Watts characterized Earnest's past work as a customer service clerk as semi-skilled and light, and as a home health aide as semi-skilled and medium. The ALJ asked Mr. Watts to consider a person the same age, education, and past work as Earnest and to assume the person was limited

to lifting no more than 20 pounds occasionally, 10 pounds frequently. Sit, stand, or walk six hours in an eight-hour day. No climbing ropes, ladders, scaffolding. Only occasional climbing ramps, stairs, balance, stoop, kneel, crouch, crawl. Occasional reaching or working overhead. Occasional operation of pedals or foot controls. The work would need to be simple, repetitive and routine. Only occasional contact with coworkers and supervisors or the general public.

(Tr. 59.) Mr. Watts testified that such a person could not perform Earnest's past relevant work but could perform other work, such as light and unskilled work as an order caller, router, and inspector. (Tr. 59-60.)

         The ALJ then asked Mr. Watts to assume the same individual but that she was limited to lifting ten pounds occasionally and less than ten pounds frequently, and could stand or walk only two hours in an eight-hour workday. Mr. Watts testified that such a person could perform sedentary, unskilled work as a bonder/semi-conductor, service waiter, or dowel inspector. (Tr. 61-62.)

         The ALJ then asked Mr. Watts to assume the person from the second hypothetical to require a sit/stand option at work with a need to change position every ten to twenty minutes. Mr. Watts testified that such a person could continue to perform work as a bonder/semi-conductor and dowel tester as well as work as a wait tester and final assembler. (Tr. 63-64, 66.) Mr. Watts further testified that if this person missed work more than three or four days each month, or was off task at least twenty percent of the time, she would not be employable. (Tr. 64-65.)

         In response to counsel's questions regarding the jobs identified, Mr. Watts testified that work as a bonder/semi-conductor requires occasional use of the hands and that all other work requires frequent use of the hands. (Tr. 65-66.)

         B. Medical Evidence

         On August 1, 2008, Earnest visited her treating physician, Dr. David J. Knorr, seeking treatment for poison ivy. Routine examination showed tenderness and some ...


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