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McIntyre v. Berryhill

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

March 19, 2019

NANCY MCINTYRE, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This is an action under 42 U.S.C. § 405(g) for judicial review of Defendant's final decision denying Plaintiffs application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. For the reasons set forth below, the Court affirms the decision of the Commissioner.

         I. Procedural History

         Plaintiff protectively filed an application for DIB on May 13, 2014. (Tr. 11, 122-23) Plaintiff alleged disability beginning March 1, 2013 due to back pain, hip pain, high blood pressure, anxiety, irregular heartbeat, and depression. (Tr. 68, 122) Plaintiffs claim was denied, and Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 65, 68-75) On September 6, 2016, Plaintiff testified at a hearing before the ALJ. (Tr. 24-54) In a decision dated November 30, 2016, the ALJ determined that Plaintiff had not been under a disability from March 1, 2013 through the date of the decision. (Tr. 11-20) On October 13, 2017, the Appeals Council denied Plaintiffs request for review. (Tr. 1-3) Thus, the ALJ's decision stands as the final decision of the Commissioner.

         II. Evidence Before the ALJ

         At the September 6, 2016 hearing, Plaintiff appeared with counsel. She testified that she had been unable to work since March 1, 2013, but she did work one day a week for five hours at the Southeast Missouri Disability Alliance, making $8.75 an hour. Plaintiff cared for a mentally disabled woman by cooking, cleaning, and driving her to the grocery store, doctor, and post office. Plaintiff was 58 years old at the time of the hearing. She completed the 11th grade and had no vocational training. Plaintiff owned a small pickup truck and was able to drive. (Tr. 29-31)

         Plaintiff stated that she did not use any medical devices to relieve pain. She took ibuprofen and Tylenol. She had not been to the emergency room due to lack of insurance. Plaintiff testified that she could not afford the increased insurance rates so she did not renew her health insurance after it expired. Plaintiff had no hospital stays since March 2013, and she did not see a psychiatrist or psychologist. Her family doctor, Charles Pewitt, D.O., prescribed Lexapro. Plaintiff had not received injections for pain or attended physical therapy because she could not afford treatment. She saw Dr. Pewitt every six months. At Plaintiffs last visit, Dr. Pewitt ordered blood work for cholesterol and checked Plaintiffs blood pressure and heart. (Tr. 32-34)

         Plaintiff further testified that she was unable to work due to pain. When she stood, her legs went numb. Plaintiff stated that she mentioned the pain to Dr. Pewitt, but he ignored her. The ALJ noted that Dr. Pewitt did not document any complaints of back pain or mental health symptoms in his notes from November 2014 to December 2015. Plaintiff responded that she did complain about back pain and was considering finding a new doctor to address her back problems. (Tr. 34-35)

         Plaintiffs attorney also questioned Plaintiff regarding her pain. She testified that the top part of her back hurt when she stood up. After 10 to 15 minutes of standing, Plaintiffs leg would go numb, and her back would hurt. When Plaintiff worked, she was able to take breaks every 30 minutes during the five hour shift. Plaintiff stated that she needed to take breaks due to back pain that she had been dealing with for years. She did not believe she could work any more hours or days per week because of her pain. Plaintiff stated that she would hurt when she left her job. When she returned home, she sat in a recliner for about an hour and then started doing chores around her home. Plaintiff further testified that she experienced discomfort while sitting and that her right leg went numb. She was in pain during the hearing, and her right leg was asleep and felt like it had needles running up the leg. Plaintiff stated that resting in her recliner was most comfortable for her. (Tr. 35-38)

         With respect to her back pain, Plaintiff testified that she had not received any treatment in the past three years. Plaintiff had been prescribed Lexapro which helped with her mental health. Plaintiff stated that she previously went to the emergency room with panic attacks, but not in the past three years. However, Plaintiff continued to experience panic attacks when she was around a lot of people or when she felt as if gloom and doom was about to happen. She talked to her sister on the phone to cope with her panic attacks. Her last attack was about a month prior when talking about her mother who had passed away. Plaintiff also took medication for high blood pressure. She checked her numbers at home, and her blood pressure ran high on days when she was in pain. (Tr. 38-41)

         Plaintiff further testified that her past work included taking care of her mother through SEMO Alliance of Disability. Her mother had broken her neck and later her back, and Plaintiff did everything for her mother, including lifting her, which Plaintiff estimated to be about 100 pounds. (Tr. 43-44)

         The ALJ also questioned a vocational expert ("VE") regarding Plaintiffs ability to work. The VE noted that Plaintiffs past work was as a caregiver, listed as medium work and heavy work as performed by Plaintiff. The ALJ then asked the VE to assume a hypothetical individual of Plaintiff s age, 58 years old, with an 11th grade education and the same past work as Plaintiff. The person could perform the exertional demands of work but had nonexertional limitations. These limitations included no climbing ladders, ropes, or scaffolds; frequent stooping, kneeling, crouching, crawling, and climbing ramps and stairs; no concentrated exposure to pulmonary irritants; and avoiding hazards of dangerous unprotected heights and machinery. The individual could understand, remember, and carry out tasks and instructions; could use judgment in making work-related decisions; could interact appropriately with co-workers and supervisors; and could respond appropriately to changes in routine in a normal work setting. Given these limitations, the VE testified that the individual could perform Plaintiffs past work as a caregiver. In addition, the individual could work as a warehouse worker, housekeeper, and telemarketer. (Tr. 41-47)

         If the ALJ reduced the exertional level to medium, the individual could work as a warehouse worker, hand packager, and hospital housekeeper. The VE also testified that at the light exertional level, the available jobs would be hospital housekeeper, laundry aide, and mail sorter. (Tr. 47-48)

         Plaintiffs attorney also questioned the VE, adding the limitation of needing a 5 minute break every 30 minutes while working at the light or medium levels. The VE responded that that limitation would preclude work. If the hypothetical eliminated the break limitation but added the need to be absent two days ...


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