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Carla L.P. v. Berryhill

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

May 21, 2019

CARLA L.P., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         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 August 4, 2015, plaintiff Carla P. protectively filed applications for a period of disability and disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of May 1, 2014. (Tr. 164-65, 166-74). After plaintiff's applications were denied on initial consideration (Tr. 86-90), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 92-93, 94-95).

         Plaintiff and counsel appeared for a hearing on August 23, 2017. (Tr. 25-61). Plaintiff testified concerning her disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Mary Kathleen Schauwecker, M.S. The ALJ issued a decision denying plaintiff's applications on November 8, 2017. (Tr. 10-24). The Appeals Council denied plaintiff's request for review on May 21, 2018. (Tr. 1-4). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability and Function Reports and Hearing Testimony

         Plaintiff, who was born in February 1960, was 54 years old on the alleged onset date and lived with her husband and adopted grandson. (Tr. 62, 229-30, 436-37). She completed high school and received training as a cosmetologist. (Tr. 229-30). She previously worked as an unemployment case manager, a receptionist, a customer service representative, an adult-store manager, and a tax preparer. (Tr. 196, 41-44).

         Plaintiff listed her impairments as spinal stenosis, bulging discs, arthritis in her lower back, fibromyalgia, thickening of her lower back, depression, balance issues, and blood pooling in her feet. (Tr. 194). In her September 2015 Function Report (Tr. 229-36), plaintiff described her daily activities as having coffee, sitting outside in nice weather, getting dressed, and doing some light chores. She also made sure her son got up to go to school, prepared simple meals, and took care of the family dogs. She listed her hobbies as crocheting, reading and watching television. She used to be able to crochet for hours, but now was limited to 30 minutes a day because her hands got tired. She was unable to sleep without medication because her “brain and body [would] not shut down.” (Tr. 230). She had difficulty with dressing and needed to use a shower chair. She had a driver's license and went grocery shopping once a week for two hours. She could walk one block before needing to rest for 15 minutes. She was able to manage financial accounts, but had difficulty with subtraction due to her conditions. She spoke on the phone with her daughter about three times a week and visited her daughter's home about once a month. She had difficulty completing tasks and following instructions and was able to pay attention for about 30 minutes. She got along well with others, including authority figures. She did not handle stress or changes in routine well. She used a cane and wore glasses. Plaintiff had difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, using her hands, remembering, completing tasks, concentrating, understanding, and following instructions. In March 2016, plaintiff listed her medications as gabapentin for nerve pain, venlafaxine for depression, oxybutynin for bladder control, and amitriptyline for sleep. (Tr. 277). In June 2017, she was also taking tramadol and acetaminophen #3 and had changed antidepressants. (Tr. 280). A third-party Function Report completed by plaintiff's daughter Edith Springer was consistent with plaintiff's report. (Tr. 240-47).

         Plaintiff testified at the August 2017 hearing that she lacked sensation in her feet, which caused her to have poor balance. (Tr. 29). She also had pain in her low back that radiated into her legs and right foot plus arthritis in her hips. (Tr. 30-31). Her fibromyalgia caused pain in her arms and upper back and occasional clumsiness. (Tr. 33). On her worst days, plaintiff did not get up until noon and she found it difficult to focus. Two or three times a week, she was able to get up about 8:00 in the morning and do chores such as laundry and dishes. Her husband worked a night shift so she prepared supper at 2:00 in the afternoon. She rested when he left for work at 5:00. (Tr. 34-36). Three days a week she skipped showering due to a combination of fatigue and pain. (Tr. 37). She no longer left her home very often. She was a deacon in her church and had been very active, but she stopped going in 2015 because she worried about falling on the steps into the church. (Tr. 54).

         Plaintiff testified about the pain treatment she received. She had a steroid injection in December 2014 but it proved ineffective and her doctor decided against further injections. (Tr. 45-46). Her medications had been increased to the highest dosages without completely relieving her pain. She used a heating pad “every day, every night.” She had been told that a TENS unit was not likely to provide relief. (Tr. 47-48).

         Plaintiff testified that her ability to focus was diminished, impairing her ability to complete chores like laundry. She no longer read books. (Tr. 48-49). As recently as 2014, she had been proficient with the tax-preparation software she used for her job, but the following season had been unable use the computer without assistance.[1] (Tr. 50-51). At the time of the hearing, she had not used the home computer for two or three weeks because she had forgotten how to do so. (Tr. 48-49). She could no longer focus enough to drive. (Tr. 60).

         Plaintiff testified that her depression began after she was diagnosed with fibromyalgia. (Tr. 52). She took medication but still had days when she was more depressed and avoided other people.

         Vocational expert Kathleen Schauwecker 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 medium work, who could never climb ladders, ropes, or scaffolds, could occasionally climb ramps and stairs, and occasionally stoop, kneel, crouch, and crawl. In addition, the individual could occasionally reach overhead with her right arm, and frequently handle, finger and feel. The person needed to avoid exposure to vibration, moving machinery and unprotected heights. (Tr. 57). According to Ms. Schauwecker, such an individual would be able to perform plaintiff's past work as a tax preparer, receptionist, employment training specialist, order clerk, and manager of a retail store. Her past relevant work as a retail manager and employment training specialist would be precluded if the individual needed to use a cane to walk. In response to a question from plaintiff's counsel, Ms. Schauwecker testified that all past relevant work would be precluded for an individual who could occasionally lift 10 pounds, frequently lift less than 10 pounds, stand or walk for two hours, sit for six hours, occasionally climb ramps and stairs, occasionally stoop, kneel, crouch or crawl, frequently balance, and avoid exposure to all hazards, who was further limited to simple, routine tasks. All work would be precluded, regardless of exertional level, if the individual missed work two or more days a month due to her impairments or were off-task 20 percent of the day. (Tr. 58-59).

         B. Medical Evidence

         1. Medical Records

         On May 19, 2014, plaintiff sought emergency treatment for worsening back pain with numbness and tingling in her legs. Radiology studies indicated mild to moderate spondylosis of the lumbar spine and degenerative changes. She was diagnosed with sciatica and given hydrocodone. (Tr. 490-99). Within a few days, plaintiff established care with physician Jennifer R. Wisdom-Behounek, M.D., for treatment of back pain and fibromyalgia. (Tr. 364-67). On examination, plaintiff had moderate tenderness to ...


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