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Ford v. Berryhill

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

September 8, 2017

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



         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the application of Beverly Ann Ford (“Plaintiff”) for Supplemental Security Income benefits under 42 U.S.C. §§ 401 et seq. (“the Act”). Plaintiff has filed a brief in support of the Complaint. (ECF No. 16) The Commissioner filed a brief in support of the Answer and Plaintiff filed a reply brief. (ECF Nos. 22 and 24) The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (ECF No. 8) For the reasons stated below, the Commissioner's decision is reversed and the matter is remanded.


         I.Relevant Procedural History

         In August 2013, Plaintiff filed an application for disability benefits, claiming that her disability began on October 1, 2009.[2] (Tr. 140)[3] On September 23, 2013, the Commissioner denied Plaintiff's claims upon initial consideration. (Tr. 63)

         Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 90) Plaintiff appeared at the hearing with counsel on September 11, 2014, and testified concerning the nature of her disability, her daily activities, functional limitations, and past work. (Tr. 28-60) The ALJ also received testimony from Darrell W. Taylor, Ph.D., a vocational expert (“VE”). Dr. Taylor offered opinions as to Plaintiff's ability to return to her past work, as well as her ability to secure other work in the national economy, based upon several hypothetical questions. (Tr. 52-58) The ALJ issued a decision on February 13, 2015 (“the Decision”), finding that Plaintiff was not disabled. (Tr. 10-22)

         Plaintiff sought review of the ALJ's decision before the Appeals Council of the Social Security Administration. (Tr. 6-9) On April 19, 2016, the Appeals Council denied review of Plaintiff's claims, making the February 2015 decision of the ALJ the final decision of the Commissioner. (Tr. 1-5) Plaintiff has therefore exhausted her administrative remedies. See 42 U.S.C. § 405(g).

         In her brief to this Court, Plaintiff contends that the ALJ's decision is not supported by substantial evidence for two independent reasons. First, Plaintiff contends that that the ALJ improperly relied on the VE's testimony. More specifically, Plaintiff contends that the VE's testimony conflicts with the Dictionary of Occupational Titles (“DOT”) and its companion Selected Characteristics of Occupations (“SCO”), and the ALJ did not adequately resolve the conflicts. Second, Plaintiff argues that the ALJ erred in failing to consider whether to treat Plaintiff as “approaching advanced age” rather than a “younger person” under the Medical-Vocational Guidelines. (ECF No. 16 at 5, 9)

         II.Plaintiff's Disability and Function Reports and Hearing Testimony

         Plaintiff was born August 18, 1965. (Tr. 218) She was therefore 47 years old when she filed the present application for disability benefits, and was 49 years, 5 months and 26 days old on the day the ALJ issued his Decision. She is divorced with two adult children. (Tr. 33) She served approximately two years in the Illinois Department of Corrections between June 2011 and June 2013 for passing bad checks. (Tr. 39)

         Plaintiff can speak, read and understand English, completed high school and trained as a Certified Nurse Assistant. (Tr. 33, 209, 211) Plaintiff's relevant job history includes managing a snack bar at Wal-Mart, making food at a Casey's General Store, working as a cashier at a truck stop, repackaging products in a factory, and working on a cereal-packaging line. (Tr. 34-38) At the hearing, Plaintiff testified that she lost the Wal-Mart job due to absenteeism related to mental and family problems. (Tr. 35) She testified that she lost the truck stop job for being accused of stealing “some things that I did not take, ” but since she was not formally charged she regarded it as “conflict with the manager.” (Tr. 36) Plaintiff testified at the hearing that she left her last job, which was with Gilster-Mary Lee, due to absenteeism caused by back problems.[4] (Tr. 38)

         Plaintiff described her medical conditions as including major depression, schizoaffective disorder, bipolar depression, back problems, and hepatitis C. (Tr. 210) At the hearing, she described her back pain as her worst problem, followed by her mental health issues and hepatitis. (Tr. 38-39) Plaintiff explained that she had a “spacer” surgically inserted at the T12 vertebra, and that she has “a lot of problems with bending and standing for very long, or actually even sitting in one spot for very long.” (Tr. 38) Although the back surgery occurred in 2003, she continued working for several years. (Tr. 40) Plaintiff described her back pain as making it difficult to straighten up from a bent-over position, and that she usually needs help in going from a seated position to standing. (Id.) She also described intermittent feelings of numbness in her legs. (Id.) Plaintiff represented that she falls frequently (approximately a dozen times in the prior year), and that her doctor thought it was related to the back surgery. (Tr. 39-40, 50) As of the hearing, Plaintiff had recently begun using a cane for stability. (Tr. 40) She stated that she did not have any symptoms from the hepatitis, other than possibly some pain. (Tr. 46) Her history of mental illness, discussed at more length below, includes reports of auditory hallucinations (in the form of largely unintelligible voices) which can persist for minutes or days, as well as suicidal thoughts. (Tr. 41-44) She also reports random crying on a “good” day, and not getting out of bed at all on a “bad” day. (Tr. 50-51)

         At the time of the hearing, Plaintiff was primarily living alone. (Tr. 33) She was receiving Medicaid benefits at that time. (Tr. 34) She did not have a driver's license, having lost it due to “driving someone else's vehicle and got pulled over for a headlight out. And they found a marijuana pipe in the car.” (Tr. 45) Plaintiff shopped for groceries monthly with her son. (Tr. 45-46) On her 2011 Function Report, [5] Plaintiff stated that she went outside every day; at the 2014 hearing she stated that it was once or twice per month. (Tr. 46, 183) Plaintiff's testimony indicates that she did not have many friends and did not socialize much. (Tr. 48-49) In her 2011 Function Report, Plaintiff stated that she cooked daily (although it would usually be simple means such as sandwiches and frozen dinners) and had no issues with personal care or money management. (Tr. 182-183) At the hearing, Plaintiff stated that she washed the silverware and did laundry with assistance from her son. (Tr. 49-50)

         At the hearing, Dr. Taylor was asked hypothetical questions about an individual of Plaintiff's age, education, work experience, with a residual functional capacity (“RFC”) as follows: she could lift and carry 20 pounds occasionally and 10 pounds frequently; she could sit for six hours in an eight-hour day; she could stand or walk for six hours in an eight-hour day with a cane for assistance while walking but not while standing; she could not climb ladders, ropes or scaffolds; and she could only occasionally balance, kneel, crouch, crawl, stoop climb ramps or climb stairs; she could frequently reach, but not overhead with her left arm; and she would be able to handle simple and routine tasks that involve working primarily with things rather than people, which can be performed independently in a non-public setting, and that would involve no more than occasional interaction with coworkers and supervisors. (Tr. 54-55)

         Dr. Taylor, the VE, testified that such an individual would not be able to perform Plaintiff's past work. (Id.) The VE explained that such an individual, even with the use of a cane, would still be able to perform other work, such as a hand packer (DOT 920.687-030), production worker assembler (DOT 559.687-034) or a surveillance system monitor (DOT 379.367-010). Dr. Taylor testified that there were approximately 32, 000 hand packer positions nationally, as well as 14, 000 assembler positions and 18, 000 surveillance monitor jobs. (Id.) Each of these jobs is rated at the sedentary exertional level, and has a specific vocational preparation level of 2 (i.e. unskilled). (Id.)

         The ALJ specifically asked the VE whether there were any conflicts between his testimony that someone in Plaintiff's position could perform these jobs and the information about these jobs contained in the DOT and its companion SCO. (Tr. 56) Dr. Taylor replied that his testimony was consistent with the DOT, except regarding use of a cane and what an acceptable absence rate would be, for which he cited his own job analysis and professional experience. (Id.)

         III. Medical Evidence

         The administrative record before this Court includes medical records from several sources, including hospitals and the Illinois Department of Corrections. They are summarized in pertinent part here.

         On November 30, 2009, Plaintiff went to the Southeast Missouri Hospital emergency room for coughing and difficulty breathing. (Tr. 283) She was not taking any medications at the time. (Id.) Plaintiff was noted as having no neck, back or upper extremity pain. (Tr. 285) She was diagnosed with an upper respiratory infection and bronchitis. (Tr. 285-286)

         On January 11, 2010, Plaintiff was again seen at the Southeast Missouri Hospital emergency room for treatment of an infected scratch on her face. (Tr. 276) She was not recorded as taking any medications at the time. (Id.) Plaintiff was noted as having a normal, steady gait and no neck, back or upper extremity pain. (Tr. 276, 279)

         Plaintiff was seen at Southeast Missouri Hospital on February 23, 2011, complaining of aching lower back pain radiating down her right leg. (Tr. 265) She stated that she had fallen over a dog while feeding goats the day before. (Tr. 267) Plaintiff was observed as having a steady, normal gait. (Tr. 265) She was given injections of Norflex and morphine, prescriptions for Vicodin and Flexeril and was discharged approximately an hour after presenting. (Tr. 266)

         Plaintiff was again seen at Southeast Missouri Hospital on February 28, 2011, reporting that she had run out of her psychiatric medication a month prior and was having suicidal ideation and auditory hallucinations. (Tr. 258, 262) She was admitted to the psychiatric unit, although the record does not clearly indicate when she was discharged. (Tr. 262)

         On or about March 9, 2011, Plaintiff was seen by Dr. James Kerr, D.O., for psychological care at the Community Counseling Center. (Tr. 306) Dr. Kerr recorded clinical impressions of bipolar disorder not otherwise specified (elsewhere noted as “with psychotic features”), marijuana and benzodiazepine abuse, borderline personality disorder and hepatitis C. (Tr. 308) Plaintiff was prescribed Risperdal, Lamictal, doxepin and Ambien. (Tr. 306)

         On April 19, 2011, Plaintiff was admitted to Southeast Missouri Hospital, reporting that she was hearing voices telling her to harm herself. (Tr. 323) She had apparently been accused of stealing her roommate's pain medication, and was concerned that it would result in further imprisonment. (Id.) Dr. John Lake, M.D., examined Plaintiff and recorded diagnoses of schizoaffective disorder with a history of opiate abuse, as well as borderline personality disorder. (Tr. 324) Dr. Lake substituted Trilafon for Risperdal, and doxepin and Ambien were discontinued in favor of Lunesta and Remeron. (Id.) Plaintiff was discharged on April 22, 2011. (Tr. 320)

         On May 12, 2011, Plaintiff again saw Dr. Kerr. (Tr. 311) It does not appear that he altered her medication regimen in any significant way, and set her for a three-month follow-up appointment. (Id.)

         On May 23, 2011, Plaintiff was again seen at Southeast Missouri Hospital's emergency department, this time for left arm pain that “feels like a pulled muscle.” (Tr. 316) She displayed some limitation in her range of motion in her left shoulder. (Tr. 317) An x-ray of her shoulder was unremarkable. (Tr. 319) She denied any depression. (Tr. 316) Plaintiff was diagnosed with tendonitis, prescribed Norco and ibuprofen and discharged. (Tr. 318)

         During her time in the Illinois Department of Corrections, Plaintiff was seen several times by health services. She was taking Risperdal and Lamictal for most of her stay, although the physicians discontinued the Risperdal in November 2012 (Tr. 415, 418, 451, 453, 454, 459, 462-464, 487) During her incarceration, Plaintiff appears to have had an episode of suicidal feelings which resolved. (Tr. 429) She also had several episodes of back pain, always treated with over-the-counter pain relievers, sometimes supplemented with robaxin or methylprednisolone. (Tr. 430, 456, 460, 468, 469) For one particularly prolonged episode of back pain, Plaintiff was given Toradol. (Tr. 470) Plaintiff's hepatitis was monitored but apparently untreated.

         On July 15, 2013, Plaintiff returned to Southeast Missouri Hospital complaining of lower back pain. (Tr. 355) Plaintiff stated that she had fallen the night before. (Tr. 359) An x-ray of the lumbar spine revealed no acute issues, showing only the prior fusion. (Tr. 362) She was noted as having full muscle strength and was diagnosed with a muscle strain. (Tr. 357-358)

         On July 25, 2013, Plaintiff was seen by therapist Michael Hester at Community Counseling Center at the insistence of her parole officer. (Tr. 377) At that time, she denied any suicidal ideation and had current complaints of anxiety and depression. (Id.) Plaintiff also stated that the auditory hallucinations had “tapered off over the last few years.” (Id.) She reported approximately ten psychiatric hospitalizations, as well as four to five suicide attempts between 2000 and 2009. (Tr. 378) Plaintiff reported that she had run out of the Lamictal she had been taking in prison the month before. (Id.) Despite this, she displayed a normal mood, logical and coherent thought processes, and apparently normal intelligence and memory. (Tr. 380) Mr. Hester noted that Plaintiff's anxiety “does not seem severe enough to meet diagnostic criteria.” (Id.) He found that Plaintiff met the ...

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