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Ridgell v. Saul

United States District Court, D. South Carolina

August 21, 2019

Gayla Hammett Ridgell, Plaintiff,
v.
Andrew M. Saul, Commissioner of Social Security, [1] Defendant.

          ORDRER

          Kaymani D. West United States 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”) 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 for the reasons discussed herein.

         I. Relevant Background

         A. Procedural History

         On July 8, 2014, [2] Plaintiff filed an application for DIB alleging a disability onset date of June 9, 2014. Tr. 188-89. Her claim was denied initially, Tr. 88, and upon reconsideration, Tr. 107, and Plaintiff requested a hearing, Tr. 119-20. On April 25, 2017, a hearing was held before an Administrative Law Judge (“ALJ”) and testimony was taken from Plaintiff, who was represented by counsel, and from a vocational expert (“VE”). Tr. 38-76. On June 28, 2017, the ALJ issued an unfavorable decision finding Plaintiff was not disabled. Tr. 16-30. Plaintiff requested review of the decision from the Appeals Council, Tr. 169-83, and the Appeals Council denied review on April 26, 2018, making the ALJ's decision the Commissioner's final decision for purposes of judicial review, Tr. 1-6. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed June 21, 2018. ECF No. 1.

         B. Plaintiff's Background

         Born in April 1964, Plaintiff was 50 years old on her alleged onset date of June 9, 2014. Tr. 228. In her August 18, 2014 Disability Report-Adult Plaintiff noted that she completed the 12th grade and had not completed any type of specialized job training or vocational school. Tr. 233. She listed her past relevant work (“PRW”) as: law firm legal secretary (1999-2003), greenhouse supervisor (2002-2011), and Department of Agriculture egg grader (Sept. 2011-June 9, 2014). Id. Plaintiff indicated that she stopped working on June 9, 2014, because of her medical conditions of back and neck problems. Tr. 232.

         In a January 27, 2015 Disability Report-Appeal, Plaintiff indicated that as of August 15, 2014 she had a new mental limitation. Tr. 269. Plaintiff noted: “I am afraid to drive myself and extremely paranoid of riding in a vehicle since being able to begin driving. Increasing nightmares.” Id. Regarding her activities Plaintiff indicated that the injuries she sustained in the motor vehicle accident compromised her abilities and her condition was “chronic thus limiting day-to-day activities.” Tr. 272.

         In a subsequent Disability Report-Appeal dated May 28, 2015, Plaintiff indicated that she was diagnosed with PTSD on February 27, 2015. Tr. 288. She also noted that her “back injury (T-4 fracture) causes pain with any increased activity; [she is] not able to sit for long periods of time.” Id. Plaintiff also noted that she cannot return to her prior employment and her injury prevented her from seeking employment. Id. Plaintiff indicated that in February 2015 she had cancer surgically removed from her lower right leg and skin grafted from her upper right leg. Tr. 289. Plaintiff noted that she is unable to complete daily activities in a timely manner and activity-even carrying a purse-increases pain. Tr. 293.

         C. Relevant Medical History

         Plaintiff was seen on February 21, 2014 by Dr. James A. Loging of Palmetto Bone and Joint-Newberry for her complaints of left knee pain. Tr. 435. Plaintiff stated that she had been “having problems for a long time and this is gradually getting worse.” Id. Plaintiff opted to proceed with an injection rather than an arthroscopy. Id. Plaintiff returned for follow-up on June 27, 2014 and noted that the injection had helped but the pain had returned. Tr. 434. Plaintiff received another injection. Id.

         Plaintiff was involved in a motor vehicle accident (“MVA”) on June 9, 2014 and was transported via ambulance to the Newberry County Memorial Hospital with a laceration to her head and complaints of neck pain. Tr. 418. Plaintiff's laceration was sutured, and she was discharged with instructions regarding wound care and not to work the next day. Id. That same day Plaintiff was sent to Laurens County Memorial Hospital to undergo a CT scan of her head. Tr. 419. Report of the CT scan indicated that “No acute intracranial hemorrhage is seen.” Tr. 392.

         On June 16, 2014 Plaintiff was seen for follow-up at Newberry Internal Medicine for removal of sutures and continued complaints of neck pain and stiffness. Tr. 405. Plaintiff reported that she had not been taking any pain medication and was hesitant to take narcotic pain medication. Id. Plaintiff was given a course of muscle relaxers and advised not to return to work at that time due to the nature of her job. Id. Plaintiff returned on June 25, 2014 and reported that she “continues to experience some pain between her shoulder blades into the thoracic spine, but reports that the muscle spasms and cramping are much better. She no longer has a headache.” Tr. 407. Plaintiff was sent for a CT scan of her neck for further evaluation. Id.

         On June 26, 2014 Plaintiff returned to Newberry County Memorial Hospital for CT scans of her neck and thoracic spine. Tr. 412-13. There were no acute findings within the cervical spine. Tr. 412. The impression of the CT of the thoracic spine was as follows: “Mild superior end plate depression of T-4 which could be related to a mild acute or chronic compression fracture. No. other abnormality is identified.” Tr. 413.

         Plaintiff was seen on July 24, 2014 by Dr. Karl Lozanne of Columbia Neurosurgical Associates, P.A. Tr. 426-27. Plaintiff complained of neck and upper back pain. Tr. 426. Dr. Lozanne examined Plaintiff and reviewed her CT scans. He indicated that the “subtle compression of the T4 vertebral body” appeared to be a chronic condition as there was no significant loss of height, no retropulsed fragment, and no apparent signs of stenosis. Tr. 426-27. Dr. Lozanne indicated that physical therapy might be beneficial and referred her to physical therapy and for massage of the cervical and thoracic spine. Tr. 427. He also provided her with a prescription for muscle relaxers. Id.

         In a January 27, 2015 follow-up appointment with Dr. Mark A. Davis of Newberry Internal Medicine Plaintiff indicated an aversion to driving and riding in a car. Tr. 489-90. She noted she had flashbacks from the injury and difficulty sleeping. Tr. 490. On physical examination Dr. Davis noted that her station and gait were a “little bit awkward and stiff but she is stable walking. She cannot bend. She has a stiffness of her spine and lack of mobility.” Id. Dr. Davis's impression was: “1. Evolving post-traumatic stress disorder which will need to be dealt with with counseling. 2. Traumatic injury to the spine with residual disability - - I think she probably could benefit by voca rehab and continued to occupational and physical therapy.” Id.

         On April 13, 2015, Plaintiff had a Psychiatric Evaluation at Behavioral Health Services with Dr. John Steele. Tr. 501-04. Dr. Steele's initial diagnostic impression related to a clinical disorder was “Post-traumatic stress disorder, history of alcohol use disorder mild.” Tr. 503. He started Plaintiff on a trial of Zoloft 25 mg with a low-dose of Ativan 0.5 mg to take as needed for breakthrough anxiety. Id. He advised Plaintiff not to mix the Ativan with alcohol and suggested she try over-the-counter melatonin to help with insomnia. Tr. 503-04. Dr. Steele encouraged Plaintiff to begin individual counseling and provided her with a list of local counselors and he also advised her to limit her caffeine consumption to help with her anxiety. Tr. 504.

         D. Administrative Proceedings

         Plaintiff appeared with counsel for her administrative hearing in Greenwood, South Carolina on April 25, 2017. Tr. 38. VE Dr. Robert Brabham also appeared and testified. Id.

         1. Plaintiff's Testimony

         In response to questions from the ALJ Plaintiff confirmed her birthdate and address and testified that her current height and weight was 5'1” and 113 pounds. Tr. 43-44. Plaintiff testified that over the past year and a half she lost about 35 pounds due to lymphoma which she stated was “a relatively new diagnosis.” Tr. 44. Plaintiff stated that every six weeks she was having blood work done and a PET scan. As a result of her last PET scan she recently had a colonoscopy that indicated she had diverticulitis. Tr. 45. Plaintiff testified that her lymphoma diagnosis was made in October of the last year after an inconclusive biopsy of one lymph node and removal of her left lymph node. Tr. 45-46. Plaintiff confirmed that she has not done any treatment, chemotherapy, or immunotherapy for lymphoma and at this point she was being monitored. Tr. 46.

         Plaintiff testified that she lived with her husband and no one else lived at the residence. Tr. 46. She also confirmed that she had a driver's license, but she testified that she did not drive and has not driven since her accident due to PTSD. Tr. 46-47. Plaintiff confirmed that she graduated from high school, and when she worked for the USDA she “had an egg grader's license.” Tr. 47-48. Plaintiff testified that in 2002 she worked for Gregory Williams as a legal secretary. Tr. 48. Plaintiff stated that she worked for a number of years as a supervisor for Carter and Holmes Incorporated, which was an orchid nursery. Tr. 48-49. Plaintiff testified that she “ran the operation of nine greenhouses and probably around 10 to 12 employees . . . .” Tr. 49. Plaintiff confirmed she then worked for the State of South Carolina and the Department of Agriculture as an egg grader. Id. Plaintiff confirmed that she has not worked since June 9, 2014. Tr. 50. Plaintiff confirmed that she received short-term disability from the State of South Carolina but her application for long-term disability was denied. Tr. 50-51.

         When asked what prevented her from working, Plaintiff testified to back and neck pain, PTSD, and being unable to drive. Tr. 51-52. Plaintiff also testified to having Raynaud's syndrome[3] and severe headaches. Tr. 52. Other than the inability to drive, Plaintiff testified that her PTSD also affected her daily activities because she becomes frustrated and angry about not being able to do things she would have normally been able to do without any problem. Tr. 53. Plaintiff testified to difficulties with concentration and loss of sleep. Tr. 53-54. Plaintiff stated that her lymphoma caused interruptions with sleep because she cannot control her body temperature and she has “drenching night sweats and chills.” Tr. 54. Plaintiff stated that in early 2015 she started having the symptoms associated with Raynaud's syndrome and her hands and fingers will go white and numb. Id. Plaintiff testified that symptoms were random and “it can happen several times a week, sometimes it might only happen once every couple of weeks.” Id. Plaintiff stated the symptoms usually last “at least a couple hours.” Tr. 55. Plaintiff testified that since the accident she experiences headaches at least three times a week. Id. Plaintiff stated that she experiences back pain in her upper mid back and understands that she has a bone spur in that location. Id. She stated that she experiences pain in her “entire neck, but especially at the base of [her] skull.” Id. Plaintiff testified that all of her pain relates back to her motor vehicle accident. Id. Plaintiff testified that she can stand or walk for “maybe an hour at most” before needing to sit down due to back pain. Tr. 56. She stated that it was the same for sitting and described her pain as “a constant chronic pain.” Id. Plaintiff testified she could lift or carry “three to five pounds at most.” Id. As an example of something she lifted and realized that she should not have, Plaintiff identified a gallon of water. Tr. 57. Plaintiff testified that going back to the accident, her ability to stand, walk, sit, or lift has never been better than as she currently described. Id. Plaintiff testified that she takes prescription Ibuprofen or Motrin, which at 800 milligrams is a higher dosage than what is available over-the-counter. Id. Plaintiff stated that she takes acetaminophen for headaches and a prescription formulation of Excedrin Migraine tablets. Tr. 58-59. Plaintiff testified that she is not taking any medications for mental impairments currently. Tr. 59. Plaintiff stated that she “stopped taking everything that had been prescribed for [her] around July of last year because [she] had some swelling in places and [she] didn't know if the medications may have been affecting [her] somehow.” Id. Plaintiff stated that she had been prescribed Hydrocodone which is “highly addictive and so [she was] just adamant that [she's] not going to take anything more than [she has] to take.” Id.

         Plaintiff testified that on a typical day she wakes up, has coffee, and watches the news. Tr. 60. Plaintiff stated that she may do some spot sweeping or wash a few dishes. Id. She stated that her husband takes her grocery shopping and they try to coincide trips to the grocery store with her doctor's appointments. Tr. 60-61. Plaintiff stated that she has trouble with impatience when grocery shopping and standing in line. Tr. 61. She also stated she was uncomfortable being around people and crowds. Id. Plaintiff testified that her husband “does all the getting everything in the buggy, pushing the buggy, getting it out of the buggy, into the car, he does all that.” Id.

         In response to questions from her counsel Plaintiff testified that her husband is employed with SCE&G and had been with them for a number of years. Tr. 62. Plaintiff testified that before the accident, when she got home from work, she would “mow the grass, bring wood in for the fire, start[ ] the fire, . . . straighten up, clean, cook.” Id. Plaintiff stated that for outdoor chores, she has a few plants that she waters. Tr. 63. Plaintiff testified that she used to hunt and fish but can no longer do any of that. Id. Plaintiff stated that her husband helps her with cooking by lifting pots. Id. Plaintiff testified that her PTSD problems apply to driving as well as riding as a passenger and she gets very nervous, especially at intersections. Tr. 63-64. Plaintiff confirmed that her pain interferes with concentration, paying attention, and memory. Tr. 64.

         After the VE testified Plaintiff stated in closing that she wanted to return to work. Tr. 74. She testified: “I'd go back to work as an egg grader tomorrow if I could do the job, but I can't do it.” Id.

         2. VE's Testimony

         The VE testified that Plaintiff's past work is described in the Dictionary of Occupational Titles (“DOT”) as egg grader, SVP of 2, light but performed occasionally as medium, DOT number 529.687-074; greenhouse supervisor/manager, SVP of 7, medium, DOT number 405.131-010; and legal secretary, SVP of 6, sedentary, DOT number 201.362-010. Tr. 66-67. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past jobs limited to the “light exertional level, frequent climbing of ramps and stairs; occasional climbing of ladders, ropes, or scaffolds; frequent stooping, kneeling, crouching, and crawling.” Tr. 67. The ALJ asked the VE whether such an individual could perform the past work. The VE responded that the legal secretary position would be within those limits, and some egg grader positions could be light, but jobs with the Department of Agriculture would likely be medium. Tr. 67-68. The ALJ confirmed that as generally performed, the positions of legal secretary and egg grader would be available. Tr. 68. The ALJ asked about other available work with no consideration of transferable skills and the VE identified the following categories as examples: assembler/fabricator jobs, light exertion, SVP of 2, DOT number 739.687-078, with 360, 000 jobs available nationwide; hand packer jobs, light, SVP of 2, DOT number 589.687-014, with approximately 400, 000 nationwide; and production inspectors, light, SVP of 2, DOT number 529.687-114, with 200, 000 nationwide. Tr. 68-70. The VE confirmed that his testimony was consistent with the DOT. Tr. 70.

         In the ALJ's second hypothetical he changed the first hypothetical to only occasional stooping, kneeling, crouching, and crawling and added a “limitation to simple routine tasks; time off task would be accommodated by normal breaks; only occasional interaction with the public; and no driving or operation of heavy equipment.” Tr. 70-71. The ALJ asked if the hypothetical individual could perform any of the past jobs and the VE responded in the negative but stated that “the jobs that [he] cited in response to the first hypothetical continue to meet the second one as well.” Tr. 71.

         For the ALJ's third hypothetical he asked if he added either of the following two limitations-three absences a month or 20 percent time off task in addition to normal breaks- could the hypothetical individual perform any competitive employment. Tr. 71. The VE responded in the negative but noted that the limitations were not addressed in the DOT but are “addressed in some labor publications and other articles and numerous job descriptions.” Tr. 72. The ALJ noted that he was not asking about sedentary work. Id.

         Plaintiff's counsel asked, “if a person can only function for up to a third of the day, would there be any jobs in the national economy that are out there?” Tr. 73. The VE responded in the negative, noting that the ALJ had already posed 20 percent, so 33 percent would be worse. Id. Counsel asked about two-thirds of the day, and the VE again responded in the negative. Id.

         II. Discussion

         A. The Commissioner's Findings In his June 28, 2017 decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since June 9, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: spine disorder; dysfunction of major joints; and PTSD (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can frequently climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; and occasionally stoop, kneel, crouch, and crawl. The claimant can perform simple, routine tasks. The claimant's time off task can be accommodated by normal breaks. The ...

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