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Freeman v. Berryhill

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

March 29, 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 Cynthia D. Freeman'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 on December 3, 2014 and for SSI on February 12, 2015. In both applications, she alleged disability beginning September 23, 2013. (Tr. 27, 171, 178) Plaintiffs claims were denied on March 20, 2015 (Tr. 111-15), and she filed a request for a hearing before an ALJ (Tr. 119). On February 6, 2017, Plaintiff testified at a hearing before the ALJ. (Tr. 44-73) At the hearing, Plaintiff amended her alleged onset date of disability to December 1, 2013. (Tr. 197) In a decision dated March 15, 2017, the ALJ determined Plaintiff had not been under a disability from September 23, 2013 through the date of the decision. (Tr. 24-39) On November 21, 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.[1] (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 February 6, 2017 hearing before the ALJ, Plaintiff appeared with counsel. Plaintiff testified she had recently turned 50 years old and was a widow. She lives by herself in a one-story house, which she rents. She is approximately five feet tall and weighs approximately 180 pounds. Her kids drove her to the hearing in Cape Girardeau, but she has a driver's license and is capable of driving herself such as to the store and doctor's appointments. Plaintiff did not graduate high school but has earned a GED. She testified that her only source of income was her boyfriend who works out of town most of the time. (Tr. 51-54)

         Plaintiff testified she had not worked since November 2013 and her counsel confirmed they would amend her initial alleged onset date of September 23, 2013 to December 1, 2013. (Tr. 54-55, 197) The ALJ noted that Plaintiff bounced around from various jobs during the course of the previous 15 years. For example, she worked for the temp company Kelly Services in 2005 where she worked in multiple temp positions. She also worked part-time for the Fraternal Order of Eagles where the most she made was about $7, 700 plus tips. Starting in 2011, Plaintiff worked as a cashier and kitchen manager at the Southeast Co-Op, which was a gas station and restaurant. In addition to supervising people in the kitchen, Plaintiff also worked the cash register, helped out front when needed, and did most or all of the stocking. (Tr. 55-58)

         The ALJ then turned the questioning towards Plaintiffs medical issues. Plaintiff said she is unable to lift, write, or bend and she "[b]ascially can't do hardly any activities." Starting with her purported neck pain, she testified she has had problems with her neck "all along." Plaintiff explained she thought her hand problems were caused by her neck issues but her claims were dismissed when she had carpal tunnel surgery. She has had two surgeries on her neck: the first surgery was around 2003 and the second surgery was in April of 2015 or 2016. Both surgeries were fusions but at different levels. Plaintiff said she did not get any relief from the surgeries and within a few months of recovery she felt like she did before the surgeries. In addition to having trouble lifting things, Plaintiff also said her neck problems make it hard to breathe. She can no longer take baths like she used to and can now only take showers with difficulty. She does not cook anymore, mainly just snacks. She does not get much household cleaning done before she has to lie down. Doing laundry is hard because bending over hurts her back. (Tr. 58-62)

         Turning towards her carpal tunnel, Plaintiff testified she began having problems while working at Southeast Co-Op. She gradually noticed she was unable to feel the money at the register and could hardly lift anything. Plaintiff underwent surgery on her left hand in January 2014 and her right hand a few months later. Again, Plaintiff said these surgeries did not provide any benefit.

Q All right. Did you get some relief with those surgeries? Did they give you some benefit?
A No. No, they didn't.
Q Even for a little while at all?
A No.
Q You just pretty much again right when you recovered, the problems came right back?
A Yea.

         Plaintiff testified her hands "cripple up on [her]" and throb. Her arms will also cramp up if she tries to do something, which causes her to have to rest before trying again. Plaintiff has trouble doing "normal things," such as cutting up food. (Tr. 62-63)

         In addition to her neck and carpal tunnel, Plaintiff testified about her back and leg problems. Her legs are in pain all the time, her knees go out on her, and her hip hurts constantly. Plaintiff has sought medical treatment for these problems. MRIs have shown lower 4 and 5 disc bulges that were inoperable. Plaintiff also said she has deteriorated disc disease and arthritis. When she had surgery performed on her neck, the surgeon said her spine was bruised and he was not sure if it would ever heal. (Tr. 63-64)

         Plaintiffs counsel had previously indicated in his opening statement that Plaintiff would testify regarding one specific document in the record from a nurse practitioner against whom Plaintiff has filed a complaint with the supervising physician. (Tr. 49) Plaintiff testified that this nurse practitioner indicated "they couldn't do anything with my back until they got done with my neck." The nurse practitioner then ordered MRIs, but Plaintiff said she never heard back. At the end of that month (October), Plaintiff called and the nurse practitioner's assistant told Plaintiff that her insurance provider denied the MRIs and that the nurse practitioner would need to reinstate the order. Plaintiff said she never heard back until she called the following month (November). This time, Plaintiff says the nurse practitioner allegedly said she did not believe Plaintiff needed the MRIs. Plaintiff questioned the change in recommendation which lead to her getting upset and exchanging words with the nurse practitioner. Plaintiff then called the supervising physician to complain, and the supervising physician reissued the MRI orders. Plaintiff testified that when she went back to the nurse practitioner's office, she was dismissed. (Tr. 64-66)

         Plaintiff further testified that when reviewing her medical records, she noticed false information in the records from the nurse practitioner. For example, Plaintiff objects to a comment that she was "more worried about [her] disability than [she] was getting treatment." Further, the records state Plaintiff dropped them but she maintains the nurse practitioner dropped her. Plaintiff said she had since filed a complaint with the supervising physician but had yet to receive a response. (Tr. 66-67)

         Plaintiffs counsel next addressed Plaintiffs loss of bladder control. She testified that she has had bladder control problems since 2014 or 2015 and her current medication causes constipation. Plaintiff said she has to use the restroom more than 10 times a day. (Tr. 67-68)

         Plaintiff testified she did not believe she could work at a station/restaurant similar to her job at Southeast Co-Op because she would have to take extra breaks to use the restroom. She further stated she would miss many days of work unplanned. When asked to estimate how often in a month, she answered: "In a month? I'd probably be calling off all the time because I couldn't do - it would hurt so bad." (Tr. 68-69)

         A vocational expert ("VE") also testified at the hearing. The VE classified Plaintiffs past work as a kitchen manager and a storekeeper in the Dictionary of Occupational Titles ("DOT"). The ALJ considered a composite of the two positions to be an accurate representation of Plaintiff s past work experience. 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: no climbing of ladders, ropes, or scaffolds; no crawling; no overheard reaching with either upper extremity; frequent reaching in all other directions; and frequent handling and fingering. The VE testified that such a hypothetical individual could perform the duties of a storekeeper but not the duties of a kitchen manger. The ALJ found such limitations would eliminate the job since the hypothetical called for a composite of the two. The ALJ next asked if there were other jobs available at that light level in the national economy. The VE testified that such a hypothetical individual could work as a light, unskilled cleaner or housekeeper, of which there are at least 300, 000 jobs in the national economy, and a light, unskilled laundry worker, of which there are at least 200, 000 jobs in the national economy. The ALJ asked the VE to consider the same hypothetical individual but with occasional reaching in all directions and occasional handling and fingering. The VE said those listed jobs would not be available for such a hypothetical individual. When asked by the ALJ if there would be jobs at the light or sedentary level, the VE said there would be no applicable jobs. The ALJ next asked the VE if a hypothetical individual could miss work or leave early at least three times per week on a continuing and ongoing basis could maintain employment in the national economy without a special accommodation. The VE testified such an individual could not maintain employment. (Tr. 69-71)

         Plaintiffs counsel then asked the VE if the kitchen manager position as described is a specific vocational preparation ("SVP") rating 7. The VE testified that the work Plaintiff performed at Southeast Co-Op may not have been an SVP of 7 because it was a small kitchen, but a kitchen manager as typically performed is an SVP of 7 based on the type of work performed. The ALJ then opined that a kitchen manager is supervising cooks while also serving as a cook so would have an SVP of 6 or 7. (Tr. 71-72)

         III. ...

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