United States District Court, E.D. Missouri, Southeastern Division
CRYSTAL M. M., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE
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).
April 23, 2015, plaintiff Crystal M. M. protectively filed an
application for a period of disability and disability
insurance benefits, Title II, 42 U.S.C. §§ 401
et seq. On July 8, 2015, she filed an application
for supplemental security income, Title XVI, 42 U.S.C.
§§ 1381 et seq. (Tr. 162-65). In both
applications, she alleged disability beginning on February
21, 2000, which she subsequently amended to January 1, 2013.
(Tr. 196). After plaintiff's applications were denied on
initial consideration (Tr. 69-82, 83-96), she requested a
hearing from an Administrative Law Judge (ALJ). (Tr.
and counsel appeared for a video hearing on March 22, 2017.
(Tr. 36-63). Plaintiff testified concerning her disability,
daily activities, functional limitations, and past work. The
ALJ also received testimony from vocational expert Jennifer
Smidt, M.S. The ALJ issued a decision denying plaintiff's
applications on September 1, 2017. (Tr. 15-28). The Appeals
Council denied plaintiff's request for review on May 31,
2018. (Tr. 1-6). Accordingly, the ALJ's decision stands
as the Commissioner's final decision.
Evidence Before the ALJ
Disability and Function Reports and Hearing
was born in May 1977 and was 35 years old on the amended
alleged onset date. (Tr. 26). She lived with her husband who
was disabled. She completed high school with special
education classes. (Tr. 26, 41, 45, 53). She previously
worked as a home health aide, a customer service
representative, a retail “crew” member, and in
fast food. (Tr. 47, 216).
listed her impairments as uncontrolled diabetes, learning
disability, clinical depression, neuropathy, and emotional
instability. (Tr. 203). In her August 2015 Function Report
(Tr. 262-69), plaintiff stated that she was unable to work
due to pain in her legs which prevented her from standing for
long periods of time, uncontrolled blood sugar which caused
her to shake, a learning disability that affected her
comprehension of job duties, depression, and panic attacks.
Her sleep was interrupted due to pain in her legs and feet.
She was unable to count change or handle money. Her daily
activities included fixing meals, watching television,
napping, and taking care of a cat. She listed her hobbies as
“reading all the time, ” relaxing, and watching
television. (Tr. 265). She relied on her
then-fiancé's help to complete laundry, wash
dishes and cook meals. She did not do yard work. She did not
drive due to panic attacks and did not like to go out on her
own. She went shopping once a month, taking five hours to
complete the task. She had to sit to dress. She could walk
from the front door to the kitchen sink before needing to
rest for 30 minutes. She spoke on the phone with family
members and only socialized with friends who came to her
house. She had difficulty completing tasks and following
instructions and was not able to pay attention for as long as
20 minutes. She did not get along well with others, including
authority figures, and had been fired from a job due to her
inability to get along with co-workers and bosses. She did
not handle stress or changes in routine well. Plaintiff had
difficulty with lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, climbing stairs,
seeing, using her hands, completing tasks, concentrating,
understanding, following instructions, and getting along with
others. In a narrative section, she wrote that her diabetes
prevented her from engaging in much activity. She was unable
to stand or walk as a result of pain and swelling in her legs
due to neuropathy and she was unable to sit for long periods
or lift due to her lumbar spine impairment. She had anxiety
and panic attacks that made it difficult for her to get along
with others and she was uninterested in activities due to her
depression. She could not count change and had difficulty
learning work routines. In August 2015, plaintiff listed her
medications as insulin and hydrocodone. In a report completed
in November 2015 (Tr. 291-98), plaintiff stated that her
doctor had prescribed a third type of insulin to address her
diabetes and changed her medications to address increased
pain in her legs and feet. Her mental state was worse as
well, she stated, with an increase in her anxiety and
depression. She wrote that her high blood sugar caused her to
pass out and wearing shoes and socks was
“unbearable” due to increased pain. (Tr. 295). In
February 2017, she was taking gabapentin, Valium, iron,
vitamin B12, and Excedrin for Headaches in addition to her
pain and diabetes medications. (Tr. 313-14).
testified at the March 2017 hearing that she had surgery on
her lumbar spine in November 2016. (Tr. 42). Bone was removed
from her left hip to create a graft. (Tr. 52-53). As a side
effect of the surgery, she experienced swelling and pain in
her legs and feet. (Tr. 48-49). When that happened, she had
to lie down for three or four hours. (Tr. 51-52). She had
just begun a course of injections and aquatic therapy. (Tr.
42, 48). Plaintiff testified that she had been unable to
afford insulin to treat her diabetes since 2000 and was
relying on medication left over from that time. (Tr. 55-56).
Shortly before the hearing, plaintiff experienced an episode
of elevated blood sugars that required emergency
intervention. (Tr. 54). Plaintiff also testified that her
immune system was compromised due to her diabetes and she was
unable to fight off colds. (Tr. 43). In addition, she had
diabetic retinopathy. (Tr. 49). Her diabetes had also
compromised her bowel and bladder control and on two
occasions while shopping at Wal-Mart she was unable to reach
the restroom. (Tr. 49-50). Her social life was restricted
because she wanted to stay close to the bathroom. She had a
partial hysterectomy and tarsal tunnel surgery. (Tr. 43-44).
In 2012 or 2013, she was diagnosed with cardiac arrhythmia.
Her learning disabilities affected her comprehension and her
ability to count money. (Tr. 44-45). She was not presently
receiving treatment for mental health impairments. (Tr. 47).
She had occasional migraine headaches. (Tr. 53). Plaintiff
estimated that she could walk for five to ten minutes and
stand for fifteen to twenty minutes before needing to rest.
She could sit for five to ten minutes before she needed to
get up and move around. She could not lift anything heavier
than a gallon of milk. (Tr. 47). Cold weather affected her
back pain and hot weather affected her diabetes.
expert Jennifer Smidt 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 never climb ladders,
ropes, or scaffolds, could occasionally climb ramps and
stairs, and occasionally stoop, kneel, crouch, and crawl. The
person needed to work in a temperature-controlled
environment, and avoid concentrated exposure to vibration,
moving machinery and unprotected heights. Finally, the
individual was limited to unskilled work. (Tr. 57-58).
According to Ms. Smidt, such an individual would be unable to
perform plaintiff's past work as a home health care aide.
Other jobs were available in the national economy, such as
marker, routing clerk, and photocopy machine operator. (Tr.
58). These jobs would be precluded if the individual were
limited to performing sedentary work, but other jobs were
available, including callout worker, document preparer, and
administrative support worker. All work would be precluded if
the individual required occasional unscheduled disruptions of
the work day and work week due to pain or an inability to
focus. (Tr. 58-59).
records from plaintiff's high school show that she had a
learning disability in the area of mathematics, with some
difficulties with spelling and grammar structure. She had
strengths in reading comprehension and organizational skills.
She preferred small-group and one-on-one instruction. (Tr.
337). In her senior year, plaintiff successfully passed all
regular education classes with additional services from the
cross-categorical resource room, using materials from her
regular education instructors. (Tr. 335). Testing completed
during plaintiff's sophomore year yielded a Full Scale IQ
score of 73, which placed her in the borderline range of
intelligence. At the same time, however, she demonstrated
above average performance in tests of academic readiness in
all areas except mathematics. (Tr. 342-43). Her classroom
teachers reported that plaintiff was not a discipline
problem, but needed frequent teacher approval. She was
“perceived as a liar” because she had “a
habit of telling stories . . . that are absolutely false.
This behavior may more accurately be described as
fantasizing, because she appears to believe” her
stories. (Tr. 342).
the period under review, plaintiff frequently sought
treatment from the emergency department of the Poplar Bluff
Regional Medical Center. For a period of time, she received
primary care services from Chul Kim, M.D., at the Westwood
Medical Clinic. In addition, she received services from
August and November 2011, plaintiff sought emergency
treatment on four occasions for complaints of depression, a
small abscess, and abdominal pain. (Tr. 559-61, 552-57,
542-49, 535-40). She had one such visit in 2012 for anxiety.
(Tr. 524-33). She sought emergency treatment in July and
December 2013 for abdominal pain and
depression. She also had elevated glucose levels. (Tr.
490-500, 475-88, 462-68). Imaging completed on December 16,
2013, disclosed chronic cholecystitis. (Tr. 470). On January
30, 3014, plaintiff underwent laparoscopic cholecystectomy
and repair of an umbilical hernia. Her glucose level was
lower. (Tr. 363-75). At follow up on February 24, 2014, she
complained of minimal pain around her umbilical site but was
doing well overall and had good resolution of her symptoms.
(Tr. 358- 60). She denied experiencing fatigue, palpitations,
back pain or stiffness, incontinence, and joint pain or
are no records of further medical care until July 29, 2014,
when the car plaintiff was driving was struck on the
passenger side. At the emergency department, she complained
of pain in her neck and right knee. (Tr. 447-60). On
examination, she had limited range of motion of the right
knee due to pain. Imaging of the neck, cervical spine, and
right knee were unremarkable, with the exception of
straightening of the cervical spine. She was discharged with
prescriptions for Flexeril and Norco. The record contains no
mention of her glucose level. She returned to the emergency
department two days later with complaints of continued pain
in her neck and right knee. (Tr. 437-45). On examination, she
had moderate pain in the neck, right trapezius, and right
knee. She was discharged without medication and directed to
follow up with her private physician and to return to the
emergency department if her condition worsened. On August 15,
2014, she returned to the emergency department for treatment
of contact dermatitis. (Tr. 430-34). On examination, she had
full range of motion of her neck, a steady gait, and no
complaints of musculoskeletal pain. There is no indication
that her glucose levels were concerning.
August 27, 2014, Sonjay Fonn, D.O., of Midwest Neurosurgeons,
evaluated plaintiff's complaints of pain in her neck and
low back following her car accident in July 2014. (Tr.
622-35). She complained of low back pain that radiated into
her right leg with numbness and tingling and pain in her neck
with numbness and tingling in her right arm. She also
reported that she had a history of irregular heartbeat, poor
circulation, swelling in her ankles, varicose veins,
headaches, pain in her knees, and depression. On examination,
she had no edema or cyanosis, full strength and normal muscle
tone, normal gait and station, and her sensory and neurologic
exams were normal. Her mental status examination was normal.
Dr. Fonn assessed plaintiff with “signs and symptoms
suggestive of lumbar radiculopathy.” (Tr. 624).
September 18, 2014, plaintiff sought treatment at the
emergency department for complaints of dizziness and vertigo.
(Tr. 421-28). On examination, she had no spinal tenderness
and full range of motion of the neck and spine. It was noted
that plaintiff's complaints were “out of
proportion” to the examination findings. (Tr. 424). She
was diagnosed with otitis media and discharged with
prescriptions for antihistamines and antibiotics. There was
no discussion of elevated glucose levels.
October 21, 2014, plaintiff sought treatment from Chul Kim,
M.D., at the Westwood Medical Clinic. (Tr. 568-70). She
complained of low back pain following her July 2014 car
accident, nervousness, and hyperglycemia. In addition, she
stated that she experienced a racing heart beat and shortness
of breath about once a week. Her past medical history
included a partial hysterectomy in 2003 and normal 24-holter
monitoring and cardiac catheterization in 2007. She denied
experiencing tingling, palpitations, back pain, stiffness or
limitation in motion. She was taking Humalog and Levemir for
her diabetes, and the antidepressant Lexapro. On examination,
Dr. Kim noted that plaintiff looked tired. She had tenderness
in the upper abdomen and low back. She displayed a normal
gait and had no focal deficits. Her mood and affect were
normal. Dr. Kim assessed plaintiff with diabetes, anxiety,
low back pain, and PSVT. Dr. Kim prescribed Naproxen,
hydroxyzine, Celexa, and tramadol. At follow-up in November
2014, plaintiff reported that she was still depressed and
stressed, had low back pain and had had three migraine
headaches. (Tr. 571-73). Her glucose levels were lower. She
also reported that a week earlier she had sought treatment
for back pain at the emergency department where she was given
Norco without benefit. On examination, Dr. Kim noted that
plaintiff appeared well and was not in distress. With the
exception of tenderness to the low back, her examination was
unremarkable. Plaintiff was encouraged to exercise and was
prescribed gabapentin, Flexeril, and hydrocodone. In December
2014, plaintiff reported that she had pain in both feet with
numbness in her big toes, pain in her right upper abdomen
after meals, and nervousness due to stress. (Tr. 574-76). On
examination, she looked tired and had tenderness in her low
back. Her mood, affect, gait, and extremities were all
normal. Dr. Kim added diabetic peripheral neuropathy to
plaintiff's problem list and prescribed hydroxyzine,
increased plaintiff's gabapentin, and encouraged her to
diet and exercise. There is no indication of what her glucose
January 20, 2015, plaintiff went to the emergency department
seeking treatment for an upper respiratory infection and
bronchitis. (Tr. 414-19). She reported that she was seen the
previous day at another emergency room. On examination, as
relevant here, she was not in acute distress, had full range
of motion of the neck, and had no cardiovascular or
respiratory symptoms. She was given prescriptions for an
antibiotic and cough syrup with codeine. There is no mention
of elevated glucose levels. The following day, plaintiff told
Dr. Kim that she had been sick for four days. (Tr. 577-79).
She reported home glucose levels of 301 and 181. Dr. Kim
noted that plaintiff looked weak and tired and was coughing
but her examination was otherwise unremarkable. She was given
the antibiotic Zithromax.
February 23, 2015, plaintiff told Dr. Kim that her
prescriptions for Norco and gabapentin were not addressing
her low back pain and neuropathy symptoms. (Tr. 580-82). She
also reported occasional palpitations. On examination, she
did not appear in distress, her spine was normal without
deformity or tenderness, and she had a normal range of
motion. Dr. Kim prescribed increased dosages of
plaintiff's Norco and gabapentin. He noted that she had
not had the A1C blood test for two years.
March 10, 2015, plaintiff went to the emergency department
after experiencing numbness in her face while exercising.
(Tr. 401-12). On examination, she was not in acute distress
and had full range of motion of the neck and spine, without
tenderness. Her mental status was normal. A CT scan of the
head and brain was normal, while a CT scan of the cervical
spine disclosed straightening of the cervical lordosis
without significant listhesis. She was discharged with a
prescription for the steroid Medrol. There was no discussion
of her glucose levels.
March 24, 2015, plaintiff told Dr. Kim that her low back pain
persisted. (Tr. 583-85). In addition, she had woken up with
abdominal pain and nausea twice in the last week and had
painful swelling in both legs for more than 10 days. She also
reported palpitations, diarrhea, nervousness, and depression.
Her home glucose level was 100. On examination, she appeared
well and was in no distress, with normal mood and affect. She
did not display edema, clubbing, or cyanosis of the
extremities. Dr. Kim added diarrhea following cholecystectomy
to plaintiff's problem list, but ...