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Jeter v. Colvin

United States District Court, D. South Carolina

December 14, 2016

Teresa A. Jeter, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.

         This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action.

         I. Relevant Background

         A. Procedural History

         On January 4, 2012, Plaintiff protectively filed for DIB under Title II of the Act, 42 U.S.C. §§ 401-433, alleging she became disabled on December 3, 2011. Tr. 124-25. After being denied initially, Tr. 87, and upon reconsideration, Tr. 97, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 119-20. The ALJ conducted a hearing on September 4, 2013, taking testimony from Plaintiff and Vocational Expert (“VE”) Leanna Hollenbeck. Tr. 26-55. Representing Plaintiff at that hearing was her attorney, Charles Edwards. Tr. 26. The ALJ denied Plaintiff's claim in a decision dated March 28, 2014. Tr. 9-21. Plaintiff requested review of this decision from the Appeals Council, Tr. 8, which denied her request on September 17, 2015, Tr. 1-6, making the ALJ's March 28, 2014 decision the Commissioner's final decision for purposes of judicial review. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed November 11, 2015. ECF No. 1.

         B. Plaintiff's Background and Relevant Medical History

         1. Background

         Plaintiff was born in December 1961 and was 49 years old as of her alleged onset date of December 3, 2011. Tr. 157. In her form Disability Report-Adult Plaintiff indicated she completed the ninth grade and her past relevant work (“PRW”) included assistant manager in a convenience store, cashier/cook at a fast food chain and in a restaurant, kitchen aide in a nursing home, meat packager in a food processing company, and sorter/material cutter at textile plants via temporary agencies. Tr. 162. Plaintiff indicated she stopped working on June 6, 2011 when she was terminated for allowing a non-employee to empty the trash. Tr. 161. Plaintiff indicated that her conditions of high blood pressure, diabetes, Hepatitis C, trigger finger right thumb, and blurred vision became severe enough for her to stop working on December 3, 2011. Id. In a subsequent Disability Report-Appeal dated March 29, 2012, Plaintiff indicated her “hands have gotten worst (sic) my thumb on my right hand don't bend at all now, and my left hand the pain has gotten more severe and it swells, my left foot swells if I stand or walk too long and also has pain and is tender.” Tr. 193. Plaintiff indicated that as a result she “can't use my hands like I use to. I drop things and my hands are weak. My left foot can't stand for a long period of time, my foot swells.” Id. In a Disability Report-Appeal dated June 20, 2012, Plaintiff's counsel reported that the “Pain in both hands has gotten much worse in the last few months. She has trouble holding on to things. She has trouble dressing herself, combing hair, brushing teeth, and tying her shoes.” Tr. 202. The Report also includes the following new condition: “She has been diagnosed with authorities (sic) in her left knee and ankle. Her left leg swells almost daily and is very painful.” Tr. 203.

         2. Relevant Medical History

         a. Matthew Fox, M.D.

         On March 22, 2012, State agency consultant Matthew Fox, M.D. completed a Physical RFC Assessment of Plaintiff in conjunction with the disability determination denying Plaintiff's claim for DIB at the initial level. Tr. 91-93. Dr. Fox found that Plaintiff could occasionally lift and carry 50 pounds, frequently lift and carry 25 pounds, stand and/or walk for a total of six hours in an eight-hour day, sit for about six hours in an eight-hour workday, and was limited in both upper extremities for pushing and/or pulling. Tr. 92. Dr. Fox indicated Plaintiff had no postural limitations, but she had manipulative limitations that included limited handling and fingering (gross and fine manipulation). Id. He indicated Plaintiff had no manipulative limitations with regard to reaching in any direction or feeling. Id. Dr. Fox indicated Plaintiff should “limit bilat handling and fingering to freq 2nd to trigger thumbs.” Id. Dr. Fox opined that Plaintiff had no visual, communicative, or environmental limitations. Tr. 92-93. As part of his additional explanation Dr. Fox concluded: “The claimant's reported limitations are partially credible. MDIs exist, but objective medical evidence does not support the severity of reported limitations. The claimant's MSK impairment is severe, but would not be expected to preclude work as described in this RFC.” Tr. 93.

         b. Adrian Corlette, M.D.

         On May 1, 2012, State agency consultant Adrian Corlette, M.D. completed a Physical RFC Assessment of Plaintiff in conjunction with the disability determination denying Plaintiff's claim for DIB at the reconsideration level. Tr. 102-04. Dr. Corlette's limitations were the same as Dr. Fox's. Id.

         c. Melanie Johnson-Bailey, M.D.

         Almost two months after the administrative hearing on September 4, 2013, Dr. Johnson-Bailey conducted a Disability Examination of Plaintiff on October 26, 2013. Tr. 337-40. Plaintiff reported having knee and ankle problems, high blood pressure, diabetes mellitus, and hepatitis C. Tr. 337. Plaintiff noted that her last job was in June 2011; she can dress and feed herself; she can stand for 20 minutes, sit for 30 minutes, and walk on level ground for 30 minutes. Tr. 338. She reported being unable to lift anything, but she can drive a vehicle and the only chore she can do is sweeping. Id. On general examination Dr. Johnson-Bailey noted that Plaintiff's left ankle was “extremely TTP [tender to palpation] with edema” and measured 11.5 inches compared to her right ankle measurement of 9.5 inches. Tr. 339. Dr. Johnson-Bailey provided the following opinion regarding Plaintiff's functional limitations:

The claimant had no functional limitations in regards to Knee and ankle problems, HBP, DM, Hep C.
Back/neck/hands/knee/ankle pain: ROM [range of motion] testing wnl [with no limits]. There were no findings to indicate functional limitation.
HBP: claimant reports uncontrolled BP, however, she had a normal BP and pulse on exam.
Hep C: Chronic medical problem. There is no evidence of liver dysfunction and MRs do not indicate she has any symptoms due to Hep C.
DM II - Not a cause of functional limitation.

Tr. 340.

         On November 1, 2013, Dr. Johnson-Bailey completed a Medical Source Statement of Ability To Do Work-Related Activities (Physical). Tr. 343-48. She indicated Plaintiff could continuously lift up to 10 pounds, and occasionally lift up to 100 pounds; continuously carry up to 10 pounds, occasionally carry 11 to 20 pounds, and never carry over 21 pounds. Tr. 343. She indicated Plaintiff could sit for one hour at one time without interruption with a total four hours in an eight-hour workday; stand for one hour without interruption with a total of three hours in an eight-hour workday; and walk for one hour uninterrupted with a total of one hour in an eight-hour workday. Tr. 344. Dr. Johnson-Bailey opined that Plaintiff could reach, handle, finger, feel, and push/pull continuously with her right and left hands; and she could operate foot controls continuously with both feet. Tr. 345. She indicated Plaintiff could frequently climb stairs and ramps; occasionally climb ladders or scaffolds; and frequently balance, stoop, kneel, crouch, and crawl. Tr. 346. Dr. Johnson-Bailey indicated Plaintiff had no hearing or visual impairments and could never tolerate exposure to unprotected heights; frequently tolerate exposure to moving mechanical parts, operating a motor vehicle, humidity and wetness, and vibrations; and could occasionally tolerate exposure to dust, odors, fumes and pulmonary irritants, extreme cold, and extreme heat. Tr. 347. Dr. Johnson-Bailey indicated Plaintiff could perform the following activities: shop; travel without a companion; ambulate without assistive devices; walk for a block at a reasonable pace on rough or uneven surfaces; use standard public transportation; climb a few steps at a reasonable pace with use of a single hand rail; prepare a simple meal and feed herself; care for her personal hygiene; and sort, handle, or use paper files. Tr. 348.

         C. Administrative Proceedings

         On September 4, 2013, Plaintiff appeared with counsel at an administrative hearing and testified regarding her application for DIB. Tr. 26. VE Leanna Hallenbeck also appeared by telephone and testified at the hearing. Tr. 28.

         1. Plaintiff's Testimony

         In response to questions from the ALJ Plaintiff testified that she was 51 years old, single, lived in an apartment with a friend, completed the eighth grade and part of the ninth, did not obtain a GED, and has not had any special job training. Tr. 31-32. Plaintiff also stated that she has a driver's license and was never in the military. Tr. 33. Plaintiff testified that she last worked on June 6, 2011, when she was terminated because she got sick and had a non-employee do her work of emptying the trash. Tr. 33-34. When asked what kept her from returning to work Plaintiff testified that she was “sickly a lot” from hepatitis and diabetes. Tr. 34. Plaintiff also testified that her hands “hurt all the time, constantly.” Id. Plaintiff stated that when she was young she had surgery on her right leg and if she stands for a long period of time her leg swells and “gives out” on her. Id. Plaintiff also testified that she has arthritis in her right knee and so far has had one injection in her knee. Id. Plaintiff testified that she is being treated at St. Luke's free medical clinic for her leg problems and after one injection in her right knee they told her to take Advil or Ibuprofen for pain. Id. She stated that she was also given pain pills after the surgery on her thumb. Tr. 34-35. Plaintiff testified that four months ago she had x-rays done on her back because of pain in her neck and between her shoulder blades. Tr. 35. Plaintiff testified that she was told she “was having spasms from a previous surgery” but “to do any more surgery could cause [her] to be paralyzed or something so [her doctor] just gave [her] pain medicine for that, Tramadol.” Id.

         In response to questions from her counsel Plaintiff testified that initially the pain in her hands started in her thumbs “but now it's just my whole hands.” Tr. 35. Plaintiff stated she was told she had osteoarthritis in both hands and trigger finger in both thumbs. Id. Plaintiff stated that she does not have to be doing anything with her hands for them to ache and “they throb all the time.” Tr. 36. Plaintiff testified that her hands are weak and she drops things and “can't pick up things with [her] fingers.” Id. Plaintiff testified that cortisone injections offer relief for a short period of time but because the pain always returns she was told she would need surgery. Id. Plaintiff confirmed that three days prior to the hearing she had surgery on her right hand and when she was scheduled to return to the doctor on September 9th to have the stiches removed he was going to look at her left hand. Id. Plaintiff testified that because of not having full use of her hands she had a hard time getting dressed, using the bathroom, and doing her hair. Id. Plaintiff stated that her daughter helps her. Id. Plaintiff's counsel noted that Plaintiff had in the past done kitchen work and asked if she had any trouble with her hands in doing that work. Id. Plaintiff testified that she is unable to lift pots and pans and has “broken many plates.” Tr. 37.

         Plaintiff testified that she was hit by a car when she was six or seven years old and her left leg and ankle are “deformed from the surgery.” Tr. 37. Plaintiff confirmed that she has a scar around her ankle and the bone protrudes out a bit but testified that “it's not painful all the time but it bothers me when I'm standing or walking and then it gives out on me.” Id. Plaintiff testified that she has hepatitis C and that since she stopped working and her health insurance was terminated on December 31, 2011, she has been unable to get treatment for her liver. Tr. 38. Plaintiff testified that the hepatitis “causes [her] to feel nauseated and sickly all the time and sometimes when [she] eat[s] something [she] get[s] sick.” Id. Plaintiff testified that when she asked the person to help her take the trash out at work it was because she “was sick and [her] hands were bothering [her].” Tr. 39. Plaintiff confirmed that she had neck surgery in 2003 and as a result she “can move it but [she] can't turn it so far . . . because it hurts and especially here recently . . . the pain has just gotten worse . . . .” Tr. 39-40. Plaintiff also confirmed that she had an injection in her knee in July 2012 that “helped it for a little while but it still hurts . . . .” Tr. 40. Plaintiff testified that she takes medication for her diabetes and her weight fluctuates but she is unsure if it is because of the diabetes or because of her liver. Id. Plaintiff stated her current weight was 182 pounds, down from 200 pounds. Id. Plaintiff stated that although she was terminated in June of 2011 she listed her onset date as December 2011 because she tried to find work after she was fired and drew unemployment compensation for a little while. Tr. 40-41. Plaintiff testified that she ...


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