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Covey v. Berryhill

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

March 18, 2019

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is an action under 42 U.S.C. § 405(g) and 1383(c)(3) for judicial review of the Commissioner of Social Security's final decision denying Plaintiff Peggy Sue Covey's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act") and for Supplemental Security Income ("SSI") under Title XVI of the Act. Because the Appeals Council denied Plaintiffs Request for Review, the decision by the Administrative Law Judge ("ALJ") is the final decision of the Commissioner. For the reasons set forth below, the Court affirms the decision of the Commissioner.

         I. Procedural History

         Plaintiff protectively filed an application for DIB and for SSI on February 24, 2014. (Tr. 341-45, 346-51) In both applications, she alleged disability beginning July 18, 2010. (Tr. 341, 346) Plaintiff subsequently amended the alleged onset date for her disability to April 26, 2013.[1](Tr. 366) Plaintiffs claims were denied on June 2, 2014 (Tr. 279-83), and she filed a request for a hearing before an ALJ (Tr. 286-90). On May 17, 2016, Plaintiff testified at a hearing before the ALJ. (Tr. 184-224) In a decision dated August 2, 2016, the ALJ determined Plaintiff had not been under a disability from April 26, 2013 through the date of the decision. (Tr. 8-26) On September 11, 2017, the Appeals Council denied Plaintiffs request for review. (Tr. 1-4) The Appeals Council specifically noted it did not consider the additional medical evidence Plaintiff submitted because it found such evidence did not relate to the time period at issue. (Tr. 2) Accordingly, the Appeals Council found that Plaintiffs reasons and additional medical evidence did not provide a basis for changing the ALJ's decision. (Tr. 1) Thus, the ALJ's decision stands as the final decision of the Commissioner.

         II. Evidence Before the ALJ

         At the May 17, 2016 hearing before the ALJ, Plaintiff appeared with counsel. Plaintiff testified she completed high school. She was recently divorced and lived by herself. Plaintiff has two children (22 and 18 years old). She had been on Medicaid off and on since 2006. The last day she worked was July 18, 2010. (Tr. 186, 189-91)

         Plaintiff previously worked for a freight broker. Specifically, her job involved communicating with customers via phone and fax machine to help move freight on railroad trains across the country. This job did not involve much lifting, mainly paper. The freight broker job did not involve much walking but rather consisted mostly of sitting for "eight, nine hours a day." (Tr. 191-92) She left the freight broker job after she moved to find a new job closer to home. This job was as a transportation consultant, which was similar to her previous job. Plaintiff then worked as a pay day lender, primarily handling car loans and interviewing customers. This job required more standing than prior jobs (about half standing and half sitting) because she worked at a counter with a register. Plaintiff worked at this job until she suffered a stroke in 2010. (Tr. 191-93)

         Plaintiff testified that she experienced ongoing complaints related to her stroke. She began having migraines for which she sought medical treatment. She began taking home injections of medications which lessened the frequency of her migraines but she continues to experience them about once a week. Plaintiff said her migraines interfere with her ability to do activities of daily life. When a migraine starts, she has to go lay down in the dark for a little while or get the injections. Ibuprofen usually helps as well. She says it normally takes her about an hour-and-a-half to recover after a migraine. Plaintiff thinks stress causes the migraines. (Tr. 194-95, 199)

         In addition to migraines, Plaintiff complained of what she called "flashers." She testified the sensation begins as a small flash of light that then moves in a circular pattern of multicolored flashing lights that, on occasion, can persist for two hours. Her neurologist refers to this sensation as "visual disturbances" in medical records. She has experienced "flashers" consistently since 2010, initially about 10 times a month and now roughly 8 times a month, and they typically last 20-25 minutes. Plaintiff stated she does not take any specific medication related to the "flashers," rather she normally sits still until they stop. Plaintiff referenced one specific instance where she experienced a "flasher" attack while driving, which required her to pull over and wait for clarity. She further testified about another vision interruption that causes her to see only half of what she is looking at, such as text or even faces, until she blinks or moves her heard. Plaintiff said this symptom is residual of the stroke and it affects her ability to read. (Tr. 195-98)

         Plaintiff testified she has slowed down doing everything since her stroke. She can still drive, but she does not drive alone (usually with her mother) and does not drive very far from home. If she needs to go far, she will call for medical transportation. (Tr. 198-99)

         A couple of weeks before the hearing, Plaintiff underwent surgery to repair her left rotator cuff. She had experienced problems with her collar bone since about 2010. Plaintiff believed her shoulder problem began after an incident where she and her mother went into a neighbor's storm cellar during a bad storm and the door hit her. She also suggests her shoulder problems could be the result of a car accident when she was in high school in 1985 or "it's just life . . . my life has got me here." Plaintiff testified that on a scale of one to ten beginning in 2010, her left shoulder pain has been eight or eight-and-a-half continuously. Further, she said she had suffered pain and swelling in her right collar bone area for years. (Tr. 199-201)

         Since the prior hearing before a different ALJ, Plaintiff underwent four surgeries for bilateral carpal tunnel repair (two surgeries on each hand). She also experiences trigger thumb release on both hands. Plaintiff is right-handed. She testified her right hand locks up on occasion and she has to wait until it eases up and unfreezes. Plaintiff stated her right arm is much weaker since her stroke, her grip is weaker, and she has pain like pins and needles every day. She takes medication that makes her hand feel cold and numb. Plaintiff thinks the heaviest thing she could lift if a gallon of milk. The pain in her hand causes her difficulty in writing, typing, and cooking. Plaintiff thinks the most she can lift with her left hand is a pound because she primarily uses it to support her right "so together with them both, I can get things done . . . just not as good as I used to be." (Tr. 202-04)

         Plaintiff lives alone but her mother lives close by. She has been diagnosed with sleep apnea, which affects her ability to rest at night. Plaintiff uses a continuous positive airway pressure ("CPAP") machine to help her sleep at night. She testified she recently took part in a study and was recommended she use an oxygen machine, but she did not want to pursue that treatment yet. (Tr. 204-05)

         Plaintiff testified about undergoing a discectomy and fusion neck surgery on December 22, 2014. Before the surgery, she had objective abnormalities at multiple levels of her cervical spine. Plaintiff said she continues to have pain and complaints related to her neck despite hoping the surgery would alleviate her problems. She was continuing to receive pain management at the time of the hearing once or twice a month, including injections and other medications. The injections immediately relieve her sciatic nerves, but she said the relief did not last long, usually a couple of weeks if she was lucky. On a scale of one to ten, Plaintiff testified her daily average neck pain is a seven. Certain activities cause her pain to increase, which include sitting too long, washing dishes at a counter for very long, cooking, and generally anything that requires her to be hunched over. (Tr. 205-07)

         Plaintiff testified she has sought treatment for Morton's Neuromas and osteoarthritis of her feet. Her left foot is more painful. She was prescribed supports to wear on both feet. Her left ankle separates, which prevents her from putting that foot down until it slowly comes together. (Tr. 207-08)

         Plaintiff also has problems with her weight. The morning of the hearing, she weighed 340 pounds. Plaintiff stated her health conditions interfere with her ability to exercise and lose weight. She can stand for only about 10 minutes comfortably before her hips start to burn and she has to move. Plaintiff has difficulty walking for long stretches. For example, she testified she hurts by the time she enters her local Walmart and reaches the back of the store and typically has to sit down on a bench in the middle of the store. Plaintiff testified her hip pain (sacroiliitis) has bothered her really bad for five years. On a scale of one to ten, she stated her hip pain is a nine. For instance, Plaintiff said that during the hearing she sat half off the chair because her right side sciatic nerve was hurting and getting off of it provided some relief. She said that, at home, she can only sit comfortably for about five minutes before she needs to change positions. Plaintiff testified that one of the activities she does when at home is taking her small dog outside. Because she trained her dog to stay in the yard, she says she normally stays by the door and watches as he relieves himself. (Tr. 208-12)

         Plaintiffs counsel asked specific questions related to the physical activities and positions she is capable of doing. Plaintiff said kneeling down would hurt tremendously, principally her hips, neck, knees, and ankles. She said she cannot bend at the waist as it pulls on her spine at the neck. Plaintiff cited a previous yard sale she held and how it shocked her spine to squat and pick things up. If something is on the ground at home, she will sometimes squat to pick it up. Other times, she will sit and pick it up so as not to bend at the waist. Plaintiff also utilizes a grabbing device. If she was on the ground, Plaintiff testified she would need to crawl to find something to pull herself up on. (Tr. 212-13)

         Plaintiff testified about her current medications. She initially stated she was not aware of any side effects to her medications. She has been on Gabapentin for a long time. She takes a muscle relaxer, Baclofen, which can make her drowsy. A pain medication also can cause drowsiness, which she conceded was a side effect. Plaintiff testified she needs to take one or two naps during the day, usually once for about an hour-and-a-half and once for about 20 minutes. (Tr. 213-14)

         When asked by counsel if she has good days and bad days, Plaintiff responded she had mostly bad days. A good day would consist of her mother coming over for coffee before getting dressed and going out to a thrift store and walking around. Plaintiff said she has maybe six good days in a month. Most days are bad days because of her pain. During a bad day, she gets up but wants to get back in bed because of the pain. (Tr. 214-15)

         Lastly, Plaintiff testified her spine, neck, shoulder, and hip pains would interfere with working a job similar to her prior clerical work experience. (Tr. 215)

         A vocational expert ("VE") also testified at the hearing. The VE classified Plaintiffs past work in helping people transporting different types of things as an expediter in the Dictionary of Occupational Titles ("DOT"). Her other job would be classified as a loan clerk under DOT. (Tr. 215-17)

         The ALJ asked the VE to assume a hypothetical individual of Plaintiff s age, education, and work history with the following range of light work: lifting 20 pounds occasionally, 10 pounds frequently; standing and walking a total of six hours in eight; sitting total of six hours in eight; no ladders, ropes, or scaffolds; occasional balancing, kneeling, crouching, crawling, stooping, ramps and stairs; no overhead reaching with non-dominant left hand and no overhead pass (due to Plaintiffs neck problems); frequent reaching with non-dominant left in other directions other than overhead; frequent bilateral handling and fingering; and no left-leg controls. The ALJ specifically noted he saw a big difference between, for example, operating a foot pedal on a sewing machine and a leg control that would require range of motion at the ankle, knee, and hip in order to operate like a lever. The VE testified such a hypothetical individual could work as a loan clerk and expediter. The ALJ asked if such a hypothetical individual could perform the work as Plaintiff performed them, but the VE clarified it would be generally as the job titles do not match Plaintiff s past work experience exactly. (Tr. 217-18)

         The ALJ asked about a second hypothetical individual who had the same characteristics as the first except for a maximum weight of 10 pounds and standing and walking a total of two hours in eight rather than six. The VE testified such a hypothetical individual could work as an expediter in the national economy. The VE initially said a loan clerk performing as Plaintiff testified during the hearing would be classified as a light job, but he ...

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