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Gregory v. Commissioner of Social Security

United States District Court, D. South Carolina

July 29, 2014

Terry Grant Gregory, Plaintiff,
Commissioner of Social Security, Defendant.


KAYMANI D. WEST, Magistrate Judge.

This social security matter is before the court pursuant to 28 U.S.C. § 636(c) and Local Civil Rule 83.VII.02 (D.S.C.) for final adjudication, with the consent of the parties, of Plaintiff's petition for judicial review. Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision the Commissioner of Social Security ("Commissioner"), denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to the Social Security Act ("the Act"). Having carefully considered the parties' submissions and the applicable law, the court affirms the Commissioner's decision, as discussed herein.

I. Relevant Background

A. Procedural History

On October 4, 2009, Plaintiff filed applications for DIB and SSI alleging a disability onset date of December 8, 2008. Tr. 161-65.[1] After being denied both initially and on reconsideration, Tr. 69-72, 92-103, 108-109, on January 31, 2011, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 10-68. On August 23, 2011, the ALJ conducted a hearing, taking testimony from Plaintiff. Tr. 10-68. The ALJ issued a decision on October 25, 2011, denying Plaintiff's claims. Tr. 76-86. The Appeals Council subsequently denied Plaintiff's request for review, thereby making the ALJ's decision the Commissioner's final administrative decision for purposes of judicial review. Tr. 1-7. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on July 22, 2013. ECF No. 1.

B. Plaintiff's Background

Plaintiff was born on April 13, 1967, and was 41 years old as of her alleged onset date of December 8, 2008. Tr. 18-21; 85. She completed high school and obtained an Emergency Medical Technician ("EMT") Certificate after completing an eight-month program. Tr. 17. Plaintiff worked as an EMT at Sumter Regional Hospital for nearly 20 years. Tr. 18-19. Additionally, Plaintiff worked for Stewart Emergency Medical from 2000 to 2003, and as a part-time sales associate with Belk for less than a year in 2000. Tr. 20-21. In 2007, Plaintiff was out of work on long term disability with her EMT job, but she returned to work after a tornado hit her town. Tr. 22. Upon her return, Plaintiff worked in an office position and was able to make her own hours and lie down as needed. Later, a private company bought the hospital's ambulance service, and the new company terminated Plaintiff because she could not perform the normal work of an EMT or "couldn't get on the truck and do [her] duties." Tr. 22.

C. The Administrative Hearing

1. Plaintiff's Testimony

Plaintiff and her counsel appeared at her administrative hearing on August 23, 2011. See Tr. 10-68. Plaintiff's alleged onset date was December 8, 2008, which was the last time she worked as an EMT. Tr. 18-21.

Plaintiff testified that she was 44 years old. Tr. 17. Plaintiff testified that she has a driver's license, but she has problems driving. Id. Specifically, Plaintiff testified that she can drive for 30 minute intervals but then has to stop driving due to pain in her back, hip, and knee. Id. Plaintiff is five feet three inches tall, and weighed 186 pounds at the time of the hearing. Tr. 18. She testified that she had been trying to lose weight to help with her back pain and had lost 18 pounds in the six months preceding the hearing. Id. However, she testified that there had been no difference in the pain since the weight loss. Id.

In her work as an EMT, Plaintiff would work in shifts, and two EMTs were assigned to a truck. Tr. 19. Plaintiff would have to lift half a gurney, and her shift co-worker would lift the other half. Id. The gurney alone weighed 75 pounds, and the average individual on the gurney weighed 200 pounds. Tr. 19-20. Accordingly, Plaintiff would bear approximately 135 pounds of weight when lifting a patient on a gurney. Tr. 20.

At the time of the hearing, Plaintiff's doctor was Melissa Vaughn, but Dr. Vaughn had referred Plaintiff to Dr. Ash. Tr. 22. Plaintiff testified that she is unable to work because she cannot stand or sit for long periods of time and often lies down for at least 30 minutes. Tr. 23. Additionally, Plaintiff puts a TENs unit on her lower back. Id. Plaintiff testified that she was also experiencing hip pain that travelled into her left leg and sometimes into her knee and foot. Tr. 24. She claimed to have sleep problems because she is unable to lie for long periods of time and can only sleep for three to four hours a night. Tr. 24, 43. Plaintiff testified that her back pain is constant and is a "burning, stabbing sensation." Tr. 25. Plaintiff testified that her hip pain was separate from her back pain and it hurts off and on but particularly hurts when it rains and when she is on her feet. Id.

Plaintiff testified that she is unable to walk her dogs on a leash and only walks outside with them in the yard. Tr. 25. She testified that she is only able to walk for five or ten minutes at a time. Tr. 28. She claimed to rarely shop anymore and only goes to the store for something simple-her husband does most of the shopping and house cleaning. Id. Plaintiff indicated she was able to perform "light duty" cleaning and was able to lift "[a]bout a gallon of milk." Id. Plaintiff testified that she is only able to sit in 20 minute intervals and avoids going out to dinner. Tr. 29. Plaintiff testified that she is able to wipe kitchen counters, do some light cooking, and wash some dishes. Tr. 37-38. She can work on tasks for 30 minute intervals. Tr. 38. Plaintiff can fold the laundry, but her husband has to sweep, mop, or clean the bathroom. Tr. 39. Prior to her injuries, Plaintiff testified that she would work overtime, travel, go camping, and ride horses. Tr. 39-40.

Plaintiff testified that she also has pain in her neck and hands, and sometimes her hands go numb or have a burning feeling. Tr. 30. She testified that her hands will go numb approximately twice a month for about an hour each time. Id. Plaintiff experiences neck pain five to six times monthly. Tr. 31. She describes her right knee pain as constant and indicated that the knee will lock up if she does not stand up or straighten it out. Id. Plaintiff testified that if she does not stop driving and move then her knee will lock up. Id.

Plaintiff takes ten to 16 milligrams of Vicodin and Lorcet four or five times daily for her pain. Tr. 32-33. Additionally, she takes Soma, a muscle relaxer, twice a day. Tr. 33. She testified that the Soma makes her sleepy and groggy, and Vicodin causes her to feel light-headed. Tr. 33-34. She claims she is disorganized and depressed all the time. Tr. 34. She also claims to have concentration problems. Tr. 35. Plaintiff is taking Prozac and Klonopin for depression, but she thinks her depression has not improved but has worsened since taking her medications. Tr. 36. Plaintiff cannot pick up her four-year old granddaughter. Tr. 36. She claims she is emotional and does not get out much. Tr. 36-37. She testified that her condition has hurt her marriage. Tr. 37. Plaintiff testified that she takes two different kinds of blood pressure pills. Tr. 41.

Plaintiff testified that two or three times a week her blood pressure causes her to have a headache or feel flushed. Tr. 41. Plaintiff testified that she has flare-ups twice a month from ischemic colitis. Tr. 42. The flare-ups can last a couple days, and Plaintiff takes Bentyl, an anti-spasmodic medication, for the ischemic colitis. Tr. 42-43.

2. Vocational Expert Testimony

Vocational Expert ("VE"), Kristin Cicero, also testified at the administrative hearing. Tr. 51-66. The VE stated that Plaintiff's past relevant work ("PRW") was classified by the Dictionary of Occupational Titles ("DOT") as medium-skilled work, with an SVP [specific vocational preparation] of five. Tr. 55. The VE found that the PRW was generally performed at the very heavy exertional level because of the lifting that is involved, though the DOT defined the position as a medium exertional level. Tr. 55-56. Specifically, the VE testified that she had "worked with a lot of EMTs, and they all described the job as being very heavy." Tr. 55.

The ALJ posed a hypothetical question regarding an individual who was the same age as Plaintiff with the same education and work experience who "could perform light work as defined in the regulations, in that individual could frequently climb stairs, could occasionally climb ladders, could frequently balance and frequently stoop. The individual should only occasionally kneel, frequently crouch, and occasionally crawl." Tr. 56. The VE found that a person with such limitations would be unable to perform Plaintiff's PRW. Tr. 57. The ALJ then asked whether there were other jobs in the regional or national economy the person in hypothetical one could perform with no loud noise as an additional condition. Tr. 57.

The VE identified the following other jobs that would be available: (1) cashier; unskilled, light exertional level, SVP: 2; DOT number 211.462.010; 3.5 million jobs nationally and 57, 000 positions in the state economy; (2) officer helper; light exertional level, unskilled, SVP: 2; DOT number 239.567-010; 1, 200 positions in the state economy and approximately 93, 000 positions nationally; and (3) ticket taker positions; unskilled, SVP: 2; generally performed at the light exertional level; DOT number 344.667-010; 1, 200 positions in the state economy and in excess of 100, 000 in the national economy. Tr. 57. The VE opined that Plaintiff does not have directly transferrable skills and would need additional training. Tr. 58.

The ALJ posed a second hypothetical of a person of Plaintiff's "age, education, work experience limited to sedentary work, as sedentary is defined by the regulations. The same limitations as in applied in hypothetical one apply in hypothetical two." Tr. 58. When asked if there were other jobs available, the VE identified the following positions: (1) lens inserter, sedentary, unskilled, SVP: 2, DOT number 713.687-026; 1, 500 positions in the state economy and 45, 000 jobs in the national economy, (2) order clerk, sedentary, unskilled, SVP: 2, DOT number 209.567-014; 1, 600 jobs in the state economy and 220, 000 jobs in the national economy, (3) visual inspector, sedentary, unskilled, SVP: 2, DOT number 669.687-014; 2, 500 jobs in the state economy and 40, 000 jobs in the national economy. Tr. 59-60. Under this same hypothetical with the same limitations, when asked if there would be jobs available if "the individual would be off-task one-third of the time, " the VE responded "no." Tr. 60.

The VE answered affirmatively when Plaintiff's counsel asked whether the lens inserter position required "fine manipulation." Tr. 61. However, an order clerk would not require "fine manipulation" but would require use of a writing utensil. Tr. 61-62. Plaintiff's counsel posed a hypothetical question of whether an individual "who had some difficulty with gross manipulation-dropping things, has some tingling, numbness in their right upper extremities, particularly on the right side where there has been a previous carpal tunnel release and the individual is right-hand dominant-how would that affect the ability to do those three jobs[]." Tr. 62-63. The VE responded that such an individual would not be able to maintain persistence and pace, and "would not be able to maintain employment...[but] it would depend on when the numbness was happening." Tr. 63. Further, the VE testified that if the numbness was happening at work and the individual essentially could not use her hands because of the numbness, "then that would absolutely preclude them from being able to maintain those jobs." Id.

Plaintiff's counsel posed another hypothetical: "If the individual needed what's called a sit/stand option, where the individual would not be able to sit more than about 20 minutes at a time, could not stand or walk more than about 10 or 15 minutes at a time, how would that affect the jobs you listed in response to hypotheticals one or two?" Tr. 63-64. The VE responded that it would eliminate the cashier, office helper, and ticket taker positions but not eliminate the other sedentary jobs-it would just decrease them in number by about 50%. Tr. 64. Plaintiff's counsel also asked how any of the jobs the VE listed would be affected by an individual's difficulty with focus due to side effects from pain and side effects from medications such as grogginess and need of a 30 to 45 minute nap. Tr. 65. The VE responded that all jobs would be eliminated if the person needed to take a nap while at work. Id. Finally, the VE responded that an individual would be unable to perform any work if she had "difficulty consistently and independently persisting at and completing tasks in a timely manner due to her preoccupation with pain and her depression, prognosis guarded." Tr. 66.

II. Discussion

A. The ALJ's Findings

In her October 25, 2011 decision, the ALJ made the following findings of fact and conclusions of law:

1. Claimant meets the insured status requirements of the Social Security Act through December 31, 2015.

2. Claimant has not engaged in substantial gainful activity since December 8, 2008, the alleged onset date ...

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