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Dace v. Saul

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

September 24, 2019

PAMELA M. DACE, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Pamela Dace seeks review of Defendant Commissioner of Social Security Andrew Saul denying her applications for Disability Insurance Benefits, and Supplemental Security Income under the Social Security Act (“Act”). Based on the following, the Court will reverse and remand the Commissioner’s decision.

         I. Procedural Background

         Plaintiff, who was born on October 19, 1976, filed protective applications for a period of disability, Disability Insurance Benefits, and Supplemental Security Income in December 2007 alleging that she was disabled as of November 9, 2004 due to a back injury, bipolar disorder, short-term memory problems, ADHD, migraines, and anxiety disorder.[1] (Tr. 129-31, 132-36). The Social Security Administration (SSA) denied Plaintiff’s applications, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (Tr. 61-62, 93-94)

         ALJ Michael Mance held a hearing in October 2009 and issued a decision denying plaintiff’s applications in March 2010. (Tr. 10-54, 68-79) Plaintiff filed a request for review with the SSA Appeals Council, which denied review in March 2010. (Tr. 7, 87) Plaintiff appealed ALJ Mance’s adverse ruling to the United District Court for the Eastern District of Missouri. See Dace v. Colvin, No. 4:12-CV-47 TIA, 2014 WL 1228894, at *22 (E.D. Mo. Mar. 25, 2014).

         In March 2014, Judge Terry Adelman issued an order reversing ALJ’s Mance’s 2010 decision. Dace, 2014 WL 1228894, at 23. The court held that substantial evidence did not support the finding that Plaintiff was able to perform work at the medium exertional level because there was “no opinion in the record from any physician regarding Claimant’s work-related limitations…[and] no opinion from any physician regarding how Claimant’s impairments affect her ability to work.” Dace v. Colvin, No. 4:12-CV-47 TIA, 2014 WL 1228894, at *22 (E.D. Mo. Mar. 25, 2014). The court reversed and remanded the case to the Commissioner for further development of the record, including a consulting physician’s “clarification and/or explanation of Claimant’s limitations and their relationship to her ability to perform work-related activities and to function in the workplace.” Id. at 23.

         In January 2012, while Plaintiff’s appeal was pending in the Eastern District, she filed a new application for Supplemental Security Income, claiming that she became disabled on March 16, 2010 as a result of: “major depression, anxiety disorder, panic disorder etc.; agoraphobia; PTSD; mental illness, IBS; degenerative disc disease.” (Tr. 1458-63, 1593) The SSA denied this application and granted her subsequent request for a hearing before an ALJ. (Tr. 1399-1406)

         ALJ Debra Denney conducted a hearing in July 2013. (Tr.1099-1195) In a decision dated September 20, 2013, she denied Plaintiff’s application. (Tr. 1203-17) Plaintiff filed a request for review of the ALJ’s decision by the SSA Appeals Council, which denied the request. (Tr. 1056)

         After the court reversed and remanded ALJ’s Mance’s 2010 decision, the Appeals Council vacated that decision and remanded the case to an ALJ “for further proceedings consistent with the order of the court.” (Tr. 1273-74) In the remand order, the Appeals Council administratively combined Plaintiff’s January 2012 application for SSI benefits, which ALJ Denney denied in the September 2013 decision. (Id.) The Appeals Council directed the ALJ to “consider that decision if necessary, consistent with applicable reopening regulations, when deciding the claim remanded by the court. (Tr. 1273)

         ALJ Bradley Harlan (hereinafter, “the ALJ”) reopened ALJ’s Denney’s September 2013 decision and considered whether Plaintiff was disabled at any time after November 9, 2004. (Tr. 1058) The ALJ conducted a hearing in 2015. (Tr. 1156-95) After the hearing, the ALJ obtained medical source statements from consulting physician Dr. Anne Winkler and consulting psychologist Dr. Karyn Perry.[2] (Tr. 1057, 2106-15, 2132-41) However, the ALJ decided not to order an consultative examination, reasoning: “the claimant’s ample treatment notes and the interrogatories completed by two impartial medical experts provide a sufficient basis for making a decision on her claims.” (Tr. 1058)

         In a decision dated January 20, 2016, the ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform a limited range of medium work. (Tr. 1070) He therefore concluded that Plaintiff “has not been under a disability, as defined in the Social Security Act, from November 9, 2004, through the date of this decision[.]” (Tr. 1087)

         Plaintiff requested review of the ALJ’s decision in February 2016. (Tr. 1394-95) On September 27, 2016, Plaintiff’s counsel forwarded to the Appeals Council a copy of a neuropsychological report completed on August 18, 2016. (Tr. 1036-44, 1583-1586) Plaintiff’s counsel followed up with a letter, dated October 3, 2016, explaining: “The claimant moved to Florida for a brief period of time and the neuropsychological report was prepared at the request of the Florida Division of Vocational rehabilitation.” (Tr. 1583) Plaintiff’s counsel stated that his office forwarded the report to the Appeals Council the same day they received it, and “[w]e were not aware until that day that this testing had been performed.” (Id.) Plaintiff’s counsel urged the Appeals Council to consider the neuropsychological report because it: (1) “could not have been submitted sooner since it was administered only on August 18”; (2) was “material to the issue at hand” in that “psychological issues were raised at the hearing”; and (3) would change the outcome of the hearing decision. (Id.)

         In May 2017, the Appeals Council considered denied Plaintiff’s request for review. (Tr. 1029-31) In regard to the newly submitted neuropsychological report, the Appeals Council stated: “The Administrative Law Judge decided the claimant’s case through January 20, 2016. This new information is about a later time. Therefore, it does not affect the decision about whether the claimant was disabled prior to January 20, 2016.” (Tr. 1029) Plaintiff has exhausted all administrative remedies, and the ALJ’s decision stands as the SSA’s final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Factual Background

         At the hearing January 2015 administrative hearing, Plaintiff testified as follows. Plaintiff was born on October 19, 1976, she was 5’ 5” tall, and weighed 272 pounds. (Tr. 1165-66) Plaintiff had a high school education and, although she completed vocational training in “dental assisting, therapeutic massage therapy, cosmetology, ” she was unable to pass the tests required for certification. (tr. 1167) Plaintiff lived alone and did not own a vehicle. (Tr. 1166)

         Plaintiff testified that she was first hospitalized for depression when she was fifteen years old. (Tr. 1171) As a child, Plaintiff also had hearing problems and would “just wake up and pus and blood…would be on my cheek, and it would be coming out of my ears.” (Tr. 1171) Plaintiff stated that her mother physically and sexually abused her. (Tr. 1171-72)

         When the ALJ asked Plaintiff to describe her panic attacks, she explained: “I sweat a lot, and everything in the room spins and I get real sick. And then, it’s like you’re in a tornado or something. You can’t hardly breathe.” (Tr. 1172) Plaintiff described an incident at her doctor’s office that occurred the previous day:

[L]ike the guy lost it at the medical place or my doctor’s office yesterday, he just suddenly lost it because I got a co-pay of 50 cents and he’s got to pay $80. And he couldn’t figure out why. And then I just walked myself into a door trying to get in – I had a panic attack. I don’t even remember getting up and walking to the door until I smacked my head into the door trying to get into the doctor’s office…..

         (Tr. 1172-73) Plaintiff “couldn’t count” how frequently these episodes occurred because “[i]t’s so much. It’s all the time. Things trigger me.” (Tr. 1173) When the ALJ asked “how long these feelings last, ” Plaintiff responded: “Sometimes it could be just an hour. Sometimes it could be weeks. Sometimes it could be days. Sometimes it’s just whatever and I can stuff it back inside and go on about my business and act like a goof ball.” (Tr. 1173)

         Plaintiff testified that her doctor “needs me to see a psychiatrist, ” but “I can’t get into a psychiatrist because they all take Medicare. And I can’t get Medicare because nobody will give me disability or nothing to work with.” (Tr. 1180) When the ALJ asked Plaintiff whether she experienced suicidal thoughts, she answered: “Well, yes I do. I got two bridges to pick from.” (Tr. 1179) Plaintiff explained that she left Bibles open around her house “so I can read Scripture so that way I can try to keep my faith and not do it. You know, it’s inhumane. They put dogs down when they’re no longer good. I don’t know why [sic] can’t do a human being.” (Tr. 1180)

         Plaintiff testified that, when she went to the grocery store or Walmart, she would ride a cart because “I feel safer and plus my back don’t hurt and I don’t have to look people in their eye [sic].” (Tr. 1174) She explained that she did not like to look people in the eye because “they know my past, and they think of me as weak. And then they run over me, which they have.” (Id.)

         Plaintiff could not remember being fired from a job, but explained that she left her most recent employment as a telemarketer because “I just kept having anxiety where I would go to the bathroom and have to puke. . . . Then I broke out in a hive [sic], and I just broke out everywhere and I had to go to the hospital.” (Id.) However, she later testified that the telemarketing company fired her but could not remember the reason why. (Tr. 1182)

         According to Plaintiff, a “state lady” recently approved her for “home health, ” and a woman named Alicia helped Plaintiff wash her hair, cook, and “she’ll visit with me because I’m alone. And healthy people don’t like sick people.” (Tr. 1177) Plaintiff also had an “advocate” from Pathways, who brought her to the hearing and acted as “my interpreter because…I’m having problems communicating with others and understanding period.” (Tr. 1179)

         At the hearing, Plaintiff was holding two pillows between the table and her torso because she underwent “bladder reconstruct” surgery the previous month. (Tr. 1175) Plaintiff explained: “It just hurts . . . . I got a mesh in there. And they’re going to have to redo it. So I have to get this all reconstructed again because I’m incontinent right now.” (Tr. 1175) Plaintiff stated she required the surgery because she was having frequent infections and “I was peeing blood, pooping blood and I’m still peeing blood, pooping blood.” (Id.)

         Plaintiff testified that stress aggravated her IBS. (Tr. 1176-77) Plaintiff stated that she had “the diarrhea problems” since she was eight years old, “but it’s getting worse as I’m older.” (Tr. 1178) When the ALJ inquired about the frequency of her diarrhea, Plaintiff did not answer the question, but stated: “A lot of time I just…lay down in the bathroom and have a hot tub, you know, not a hot tub but a hot bathtub and then have my toilet there. That way, I’m near both because sometimes it makes me puke it gets so bad.” (Tr.1176) Plaintiff kept additional “potties” in her bedroom and kitchen because “Sometimes I wake up in the middle of the night, and it bears down so hard by the time I lift myself up because I am a big woman, I will poop my pants. And if it’s right there, I might have a chance to make it.” (Tr. 1177)

         Plaintiff testified that, prior to her most recent surgery, she was able to walk about 200 feet. (Tr. 1182) Plaintiff was able to stand “about as long as it takes to make a steak” and could sit for no longer than thirty minutes. (Tr. 1183-84) When the ALJ asked Plaintiff how much weight she could lift, she answered: “Well, not very much without incontinating [PHONETIC], you know. I’d lift, and then I would be incontinent. I’d say 20, 30 pounds.” (Tr. 1184) Plaintiff added: “As I sit here now, yeah, I’m getting soaked.” (Id.) On a good night, Plaintiff would sleep from “7 o’clock at night to 5 o’clock in the morning, ” and “the worse would be that I’d be up for a couple days worrying and panicking or praying.” (Tr. 1186) Plaintiff estimated that she dressed and put on clean clothes “about every three days.” (Tr. 1187) Plaintiff stated: “I Febreze things all throughout the house, so they don’t stink. It’s cheaper because I stink sometimes.” (Tr. 1188)

         A vocational expert testified at the hearing. [ECF No. 1189-94] The ALJ asked the vocational expert to consider a hypothetical individual with Plaintiff’s age and education and no past relevant work that was limited to light exertional work with the following limitations:

This individual is unable to climb ladders, ropes, or scaffolds. This individual is to avoid all operating and controlled moving machinery, working at unprotected heights and use of any hazardous machinery. This individual is limited to occupations that involve only simple, routine repetitive tasks and a low stress job, defined as jobs that have only occasional decision making required and only occasional changes in the work setting occur, with no contact with the public and no interaction…coworkers, but contact with coworkers can still occur as long as that contact is casual and infrequent.

         (Tr. 1189) The ALJ responded that such an individual could work as a housekeeping cleaner, hand packager, or mailroom clerk. (Tr. 1189-90) However, a limitation to no contact with other people, including coworkers, would eliminate the hand packager and mail room clerk jobs and significantly reduce the number of housekeeping cleaner jobs. (Tr. 1190-91)

         In regard to unexcused and unscheduled absences, the vocational expert opined: “Two would be the absolute limit in any one month and no unexcused absences are going to be tolerated for these jobs if they’re happening with any regularity.” (Tr. 1191) When asked about frequent bathroom breaks, the vocational expert testified that “it would become an issue if [the employer knew] about it.” (Tr. 1193) When Plaintiff’s attorney asked the vocational expert what would happen if the hypothetical individual “were to arrive at work late as much as an hour one day a week ...


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