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Maria v. Berryhill

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

August 31, 2017

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


          John M. Bodenhausen, UNITED STATES MAGISTRATE JUDGE

         Dylonna Marie Johnson (“Plaintiff”) appeals the decision of the Acting Commissioner of Social Security (“Defendant”) denying her application for disability benefits under Title II of the Social Security Act, see 42 U.S.C. §§ 401 et seq. This matter is fully briefed, and for the reasons discussed below, the Commissioner's decision will be reversed and remanded.[2]

         I. Background

         A. Procedural History

         On December 4, 2014, Plaintiff filed an application for disability benefits, arguing that she was precluded from working due to multiple sclerosis. (Tr. 124-27) Plaintiff alleged a disability onset date of November 22, 2013. On February 9, 2015, Plaintiff's claims were denied upon initial consideration. (Tr. 67-71) Plaintiff requested a hearing before an administrative law judge (“ALJ”) to contest the initial decision. (Tr. 75-76) Plaintiff appeared at the hearing (with counsel) on December 22, 2015, and testified concerning the nature of her disability, her functional limitations, and her past work. (Tr. 31-49, 49-52) A vocational expert (“VE”) also testified in response to the hypothetical questions posed by the ALJ. (Tr. 49-51) The VE identified Plaintiff's past work history as an administrative assistant, an insurance customer service representative, a customer service representative, and an appointment clerk. (Tr. 49) The VE testified that the hypothetical person could perform Plaintiff's past relevant work in customer service. The VE further testified that such person could also perform the duties of order caller, mail clerk, and routing clerk.

         In a decision dated April 28, 2016, the ALJ found Plaintiff not disabled. (Tr. 12-25) Based on the VE's testimony, the ALJ found that Plaintiff was not under a disability within the meaning of the Act because she could return to her past relevant work as a customer service representative.[3] The ALJ also found Plaintiff could perform the following jobs: order caller, mail clerk, and routing clerk. (Tr. 23-24, 246-48) Plaintiff sought review of the ALJ's decision before the Appeals Council of the Social Security Administration. (Tr. 1-3) On August 9, 2016, the Appeals Council denied review. Therefore, the ALJ's April 28, 2016 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).

         In her brief to this Court, Plaintiff nominally raised two issues, the ALJ's Residual Functional Capacity (“RFC”) is not supported by “some” medical evidence, and the ALJ's hypothetical question failed to capture the concrete consequences of Plaintiff's impairments. Plaintiff's challenges also require consideration of the ALJ's adverse credibility determination. The Commissioner filed a detailed brief in opposition contending that the ALJ's decision is based on substantial evidence.

         As explained below, the Court has considered the entire record in this matter. Because the decision of the Commissioner is not supported by substantial evidence, it will be reversed and remanded.

         B. Administrative Hearing Testimony[4]

An administrative hearing in this matter was held on November 22, 2015. (Tr. 31-53) At the hearing, both Plaintiff and the 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 the ALJ offered Plaintiff the opportunity to move around without asking permission. (Tr. 34)

         1) Plaintiff's Testimony (Tr. 35-48)

         Plaintiff testified that she lives in a house with her husband and four children, ages 5, 6, 8, and 13. (Tr. 37, 39) Plaintiff's husband works during the day, and with the help of her sister, her husband does most of the housework including the cooking, the laundry, and the shopping. (Tr. 38) Their youngest child has attended daycare since the age of six weeks. (Id.) Plaintiff testified that she spends 20 hours a day in bed, and she has to “[lie] down the majority of the time.” (Tr. 37, 39)

         Regarding her symptoms and medical treatment, Plaintiff described her disease process as relapse remittent, and that sometimes when she has a hand relapse, she cannot hold or grip anything. (Tr. 39) When Plaintiff has a leg relapse, she cannot walk. (Tr. 40) Plaintiff explained that she experiences these symptoms one to two times every two months, lasting two to three weeks, and she takes steroids to shorten the duration of her relapses. (Tr. 41) Plaintiff also testified that she cannot do anything in the heat. (Tr. 40) Plaintiff further testified that she has bladder problems. (Tr. 41-42) Plaintiff reported that she has bladder surgery scheduled in December 2015. (Tr. 42) A neurologist treats Plaintiff's fatigue and bladder spasms. Plaintiff also testified that she experiences headaches. (Tr. 43) Plaintiff testified that she had optic neuritis resulting in vision loss, but that her vision has been restored and her only complaint was occasional blurriness and difficulty driving at night. (Id.) Plaintiff also experiences spasms in her hands and arms. (Id.) Plaintiff testified that her medication side effects include vitamin D deficiency and pain. (Tr. 44)

         Plaintiff admitted that her daily activities have, at times, included driving her children to school, trying to clean, helping with homework, and attending church on Sundays. (Tr. 45-46) Plaintiff testified that her children help with her personal care. (Tr. 45) Although Plaintiff testified that she cannot do a lot of walking, the ALJ noted that Plaintiff reported going to New York for two days in April 2014 and walking everywhere. (Tr. 46) Plaintiff testified that a doctor recommended that she exercise so she tried exercising on a treadmill a couple of times but she stopped after throwing up. (Tr. 47-48) Her hobbies include reading books. (Tr. 47)

         Plaintiff completed two years of online college, but she quit in May 2013 due to her spasms and flare ups. (Tr. 50)

         When the ALJ inquired into the basis of her fifteen-minute sitting limitation, noting that Plaintiff had been sitting for much longer during the hearing, Plaintiff explained she stayed in her seat despite the pain. Plaintiff also testified that she needs to elevate her feet. (Tr. 51)

          2) Vocational Expert Testimony (Tr. 49-51, 234-51)

         Vocational Expert Delores Gonzalez (“VE”), a vocational rehabilitation counselor, testified regarding Plaintiff's past work, and Plaintiff's current ability to work. The VE identified Plaintiff's past work as an administrative assistant, an insurance customer service representative, a customer service representative, and an appointment clerk. (Tr. 49)

         In addition to the VE's live testimony at the hearing, the ALJ submitted interrogatories to the VE. The interrogatories included the following hypothetical question, which incorporated the limitations described in the ALJ's determination of Plaintiff's RFC:

Assume a hypothetical individual who was born on June 30, 1982, has at least a high school education and is able to communicate in English … and has work experience as described in your response … [regarding Plaintiff's past relevant work]. Assume further that this individual has the residual functional capacity (RFC) to perform light work … except:
- Change positions every 30-60 minutes as needed while remaining on task
- Never climb ropes, ladders or scaffolds but occasionally climb stairs
- Avoid concentrated exposure to extreme temperatures (heat and cold)

(Tr. 247) The VE determined that such a person would be able to perform Plaintiff's past relevant jobs within the parameters of the hypothetical as well as the following unskilled occupations with jobs existing in the national economy: order caller, mail clerk, and routing clerk. (Tr. 247-48)

         On March 19, 2016, the ALJ sent the VE's interrogatory answers to Plaintiff's counsel and informed him that counsel could submit additional evidence to the VE, submit legal argument, or provide written questions to the expert. (Tr. 250-51) The ALJ advised Plaintiff's counsel that if she did not hear from him in ten days, she would assume that he did not wish to request a supplemental hearing, to submit any written statements or records, or to question the VE. (Tr. 251) In a March 21, 2016, letter, counsel argued that the VE opined that the hypothetical individual “if allowed to change positions every 30 to 60 minutes while remaining on task, would be capable of all past work, and would also be capable of other unskilled work, but importantly indicates if she required an additional short restroom break on occasion, none of these jobs would be available, and this would represent a significant accommodation.” (Tr. 253) Specifically, counsel argued that the VE's response to this additional limitation is consistent with the finding of the treating source, and Plaintiff's significant limitations in her upper extremities would prevent Plaintiff from engaging in sustained work activity and Plaintiff's fatigue, problems with her bilateral hands and arms, headaches, and pain would further erode the available job base. (Tr. 253)

         C. Forms Completed by Plaintiff

         In a Disability Report - Adult, Plaintiff reported stopping work “because of my condition I had to take a lot of time off work for doctor visits and therapy visits. I was on the phone a lot and typed every day and with my condition I had weakness in my hands and could not basically fulfill my duties at work.” (Tr. 149)

         In a Function Report - Adult, completed on June 30, 2014, Plaintiff reported during a typical day, she wakes up the children, helps them dress for school and then drives them to school, cleans around the house, visits her grandmother and takes her to the store, picks up the children from school and helps them with homework, makes dinner, and then helps the children bathe. (Tr. 160) In response to the question regarding “for whom do you care, and what do you do for them?” Plaintiff answered: “Husband and four children. I do what a wife and mother does. Cook, clean, and take care of kids.” (Id.) Plaintiff further explained that her husband helps her take care of the children, and he assists in meal preparation. (Tr. 160-61) Plaintiff reported doing the household shopping four times a month, taking all day. (Tr. 162) Plaintiff reported reading and cooking as her interests. (Tr. 163)

         II. Medical Records and Other Records Before the ALJ[5]

         The administrative record before this Court includes medical records indicating that Plaintiff received health treatment from May 31, 2013, through January 11, 2016. The Court has reviewed the entire record. The following is a summary of pertinent portions of the medical records relevant to the matters at issue in this case.

         A. Mercy Hospital St. Louis Emergency Room (Tr. 257-412)

         Between May 31 and July 18, 2013, Plaintiff received treatment on several occasions in the emergency room at Mercy Hospital St. Louis.

         On May 31, 2013, Plaintiff reported having blurred vision with pain, and she received a supraorbital injection as treatment of an episode of right optic neuritis. A nurse observed Plaintiff to have a steady gait. Plaintiff was not interested in being admitted so she agreed to make daily visits to the emergency room to receive her intravenous injections for three days. Plaintiff presented in the emergency room on June 1, 2013, for IV steroid treatment and was admitted for further work up. An MRI of Plaintiff's brain showed multiple lesions, supporting a possible diagnosis of multiple sclerosis.

         Plaintiff returned on June 6, 2013, complaining of a headache. Plaintiff reported that her other medical problems, including hypertension and ...

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