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Svoboda v. Berryhill

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

June 19, 2018

NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.



         This matter is before the Court for review of an adverse ruling by the Social Security Administration. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         I. Procedural History

         On June 3, 2014, plaintiff Barbara Ann Svoboda filed an application for a period of disability and disability insurance benefits under Title II, 42 U.S.C. §§ 401 et seq., with an alleged onset date of October 18, 2013. (Tr. 291-92). After plaintiff's application for benefits was denied on initial consideration (Tr. 235-38), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 241-42).

         Plaintiff and counsel appeared for a hearing on March 17, 2016. (Tr. 195-226). Plaintiff and her husband testified concerning her disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Theresa Wolford, M.S. The ALJ issued a decision denying plaintiff's application on August 30, 2016. (Tr. 120-29). After receiving additional evidence submitted by plaintiff, the Appeals Council denied her request for review on August 16, 2017. (Tr. 106-12). Accordingly, the ALJ's decision stands as the Deputy Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability and Function Reports and Hearing Testimony

         Plaintiff was born on August 8, 1953, and was 60 years old on the alleged onset date. (Tr. 300). She lived with her husband in a condominium. (Tr. 313). She completed high school and cosmetology school. She worked as a hairstylist for 42 years until October 2013, when she had surgery to remove a benign tumor from her right foot. (Tr. 200-01); see also Cert. Earn. Rec. (Tr. 294-95). Plaintiff listed her impairments as poor circulation and cellulitis in her right leg, pain in her right knee, surgery to remove a tumor in right foot, varicose veins with pooling and swelling, blood clots, high cholesterol, high blood pressure, and chronic kidney failure. (Tr. 304). She was prescribed medications for the treatment of high blood pressure, high cholesterol, depression, and allergies; she also took low-dose aspirin. (Tr. 307, 358).

         Plaintiff stated in her June 2014 function report (Tr. 313-23) that she was unable to stand on her foot and right leg and that she elevated her legs during the day. Her daily activities included making the bed, unloading the dishwasher, using the computer, making phone calls, resting or napping, and watching television. She occasionally prepared dinner and cleaned the kitchen, but took rest breaks. Her ability to do housework was limited by fatigue and so her husband did most of the laundry and a friend cleaned her house, leaving plaintiff to handle occasional picking up. She stated that she had difficulty sleeping because her legs “jump[ed] at night.” (Tr. 314). Her conditions did not impair her ability to attend to her grooming or personal hygiene and she was able to drive and go out on her own. Plaintiff was able to walk for one block before she needed to rest for 10 minutes. She did grocery shopping once a week, spending 30 to 45 minutes on the task. She was capable of managing her finances and had no impairment in her ability to concentrate and follow instructions. Her hobbies included watching television, reading magazines, and talking on the phone. She used to be able to go shopping, walk in parks, go on weekend outings, and entertain. She got along well with others but found it harder to handle stress as she got older. Plaintiff had difficulties with lifting, squatting, standing, walking, sitting, and kneeling. The Field Office interviewer described plaintiff as cooperative and without observable limitations. (Tr. 301).

         Plaintiff testified at the March 2016 hearing that she had a painful lump removed from between the bones at the top of her right foot in October 2013. Following the surgery, she was unable to stand on the foot due to pain and decided that she could not return to hairdressing. She had pain up to mid-calf and tenderness in the arch of her foot. (Tr. 203-04). In addition, she had a long history of osteoarthritis in the right ankle. She had worked with the pain, using support hose and resting when she could, but the pain worsened over time. (Tr. 206). Plaintiff also testified that she had chronic kidney failure. When she learned that she had this condition, she gave up drinking soda and stopped taking all pain medication, including Tylenol. (Tr. 205-06). Finally, plaintiff had pooling blood and varicose veins in her leg. She had worn compression stockings when she was working, but still experienced pain. (Tr. 207, 212). She went to a vascular doctor in the 1990s but was told that her veins were too bad for treatment. (Tr. 208-09). She also was susceptible to cellulitis. (Tr. 209). These conditions had improved once she stopped working and was able to keep her foot above her heart, but after 45 minutes of standing, the blood pooled in her leg again. (Tr. 210-11). At the request of plaintiff's counsel, the ALJ agreed to order a consultative examination to address plaintiff's vascular problems. (Tr. 223).

         Plaintiff's husband Daniel G. Svoboda testified that he and the plaintiff had been married for 19 years. (Tr. 218). He testified that, when she was working, her leg was “beet red and hurting her like crazy” when she got home. She would spend the evening with her foot elevated. (Tr. 219). Presently, she spent about half the day in that position. The ALJ clarified that Mr. Svoboda worked during the day and so was only able to observe his wife once he got home. (Tr. 220).

         Vocational expert Theresa Wolford was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education, and work experience who was able to perform light work, who could lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently, who could sit for six hours in an eight-hour day, stand or walk for six hours in an eight-hour day, who could occasionally climb ramps and stairs, and could frequently balance, stoop, kneel, crouch and crawl. (Tr. 222). According to Ms. Wolford, such an individual would be able to perform plaintiff's past work as a hairdresser. If the same individual were limited to sedentary work with all other limitations remaining the same, that individual would not have any transferable skills from her past work. (Tr. 222-23).

         B. Medical Evidence

         1. Treatment records

         At an annual physical in February 2013, primary care physician Amita Bhalla, M.D., listed plaintiff's chronic conditions as hyperlipidemia, anxiety, benign hypertension, varicose veins, [1] scoliosis, impaired fasting glucose, and a history of colon polyps. (Tr. 407-12). Her medical history included surgical repair of a hernia, paroxysmal supraventricular tachycardia, and kidney disease. (Tr. 409, 387). Dr. Bhalla described plaintiff as having a sedentary lifestyle. On examination, she had moderately severe variscosities in both legs without indication of deep vein thrombosis. Her Body Mass. Index (BMI) was 32.14, placing her in the obese category. Dr. Bhalla prescribed medication for treatment of high blood pressure, high cholesterol, allergies, and anxiety. An EKG showed no abnormal findings. (Tr. 410).

         In September 2013, plaintiff consulted Andrew M. Rouse, M.D., regarding a lump on the top of her right foot, which was gradually getting bigger and was painful with shoe pressure and activity. (Tr. 440-41). She rated the pain at level 8 on a 10-point scale. An MRI established that plaintiff had a lipoma, measuring 2.6 cm by 2.7 cm by 9 cm, that abutted tendons and muscles in the foot. (Tr. 443-44). The MRI also disclosed subchondral cysts and marrow edema, likely related to mild osteoarthritis. On October 22, 2013, Dr. Rouse excised the lipoma. (Tr. 442). Two weeks later, Dr. Rouse described the incision as healing well and set November 21, 2013, as a tentative return-to-work date. (Tr. 427, 438). Plaintiff later asked to postpone her return to work, noting that she had pain in her feet after being up for a short period of time. (Tr. 429-30). On November 15, 2013, plaintiff reported that she felt a “pop” in the foot and had burning over the incision. (Tr. 431). On December 2, 2013, plaintiff reported that her foot kept swelling and was tender to the touch, and she found it too painful to wear shoes or compression socks. Dr. Rouse authorized her to remain off work indefinitely. (Tr. 432).

         Dr. Bhalla's findings at plaintiff's next annual physical in March 2014 did not differ significantly from the 2013 findings. (Tr. 384-96). As relevant here, Dr. Bhalla described plaintiff's varicose veins as asymptomatic and noted that she had spider veins in both legs, more so on the right side. On examination, plaintiff had a normal gait, strength and tone, and her extremities appeared normal without edema. Her Body Mass. Index (BMI) was 33.13. Plaintiff continued to take medications for the treatment of high blood pressure, high cholesterol, allergies, and anxiety. Dr. Bhalla instructed plaintiff to follow a low cholesterol diet, avoid simple carbohydrates, and exercise regularly. (Tr. 385-86).

         In June 2014, plaintiff returned to see Dr. Rouse with complaints of pain in her right foot and ankle, which worsened when she was on her feet. (Tr. 436-37). She had a lot of trouble going down steps and was worried she would lose her balance. Examination revealed tenderness in the dorsal midfoot. After reviewing x-rays, Dr. Rouse concluded that plaintiff's symptoms were consistent with early arthritis in the midfoot. He prescribed a support for her midfoot and instructed her on modifying her activities and using ice and anti-inflammatories.

         In July 2014, Dr. Bhalla noted that plaintiff was compliant with medications and diet, but was not exercising as prescribed. She denied experiencing myalgias or leg pain at that time. (Tr. 451-52). In September 2014, plaintiff continued to be noncompliant with exercise recommendations. On examination, she had intact pedal pulses and exhibited no edema. (Tr. 452-53). The same was noted in January 2015. (Tr. 454-55). At her annual physical in May 2015, however, plaintiff reported ...

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