Carmack v. Colvin
| Decision Date | 21 March 2013 |
| Docket Number | No. 2:11CV075TIA,2:11CV075TIA |
| Parties | MARILYN CARMACK, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This cause is on appeal from an adverse ruling of the Social Security Administration. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). The suit involves an Application for Disability Insurance Benefits under Title II of the Social Security Act. Claimant has filed a Brief in Support of her Complaint; the Commissioner has filed a Brief in Support of his Answer.
Claimant Marilyn Carmack filed an Application for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 60-75).2 Claimant, who was born on October 16, 1954, initially applied for benefits on March 9, 2004, alleging a disability onset date ofDecember 2, 2003, due to severe pain in her right hip and knee as a result of avascular necrosis.3(Tr. 24). On initial consideration, the Social Security Administration denied Claimant's claims for benefits. (Tr. 24-28). Claimant requested a hearing before an Administrative Law Judge ("ALJ"). On July 21, 2006, a hearing was held before an ALJ. (Tr. 345-71). Claimant testified and was represented by counsel. (Id.). Vocational Expert Denise Waddell also testified at the hearing. (Tr. 48-49, 365-70). Thereafter, on March 27, 2007, the ALJ issued a decision denying Claimant's claims for benefits finding that although Claimant could not perform her past work as a registered nurse, she had the residual functional capacity to perform light work, and that she was not disabled as defined by the Act. (Tr. 11-19). The Appeals Council on December 7, 2007, found no basis for changing the ALJ's decision and denied Claimant's request for review of the ALJ's decision. (Tr. 7-9). On February 6, 2008, Claimant filed her Complaint in this Court. After considering the briefs of the parties, the Honorable Richard Webber remanded the case to the ALJ for further proceedings consistent with the Order of January 27, 2009. (Cause No. 2:08cv10ERW, ECF No. 14).
On May 22, 2007, Claimant filed a subsequent claim for Title II benefits alleging disability due to autoimmune disorder, bone pain, and joint problems. (Tr. 473, 478-84). The Appeals Council's action with respect to the current claim renders the subsequent claim duplicate, and so ordered the ALJ to associate the claim file and issue a new decision on the associated claims. (Tr. 424). Claimant requested a hearing before an ALJ. On August 13, 2009, a hearing was heldbefore an ALJ. (Tr. 719-42). Vocational Expert John McGowen also testified at the hearing. (Tr. 48-49, 470-72, 739-41). Thereafter, on November 23, 2009, the ALJ issued a decision denying Claimant's claims for benefits finding Claimant has the residual functional capacity to perform light work activity with occasional climbing of ladders, ropes or scaffolds, and avoiding concentrated exposure to vibration and hazards. (Tr. 381-94). The Appeals Council on August 20, 2011 found no basis for changing the ALJ's decision and denied Claimant's request for review of the ALJ's decision. (Tr. 372-75). The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
Claimant, who was represented by counsel, testified that she listed a disability on-set date of December 2, 2003, because that was when her doctor took her off work. Claimant stated that she was married, had three grown children and two grown step-children, and lived with her husband in a house. She had been a registered nurse for fourteen years. In early 2004, she tried to work in the nursing office doing paper work, but this did not work out because she could not sit, and her doctor advised her to quit. She did not work after that. Prior to her working as a nurse, she primarily raised her children. (Tr. at 349-52).
Claimant testified that "bone pain" in her lower extremities and shoulders prevented her from working. As treatment, she took pain medication and saw a doctor once every four weeks. She was also taking medication for a condition that caused her to fall asleep while standing up. Claimant said that she suffered from terrible fatigue. She stated that she was not receiving anymental health treatment. She still had a lot of pain in her right hip down to her groin and still used her crutches and a cane, because she could not bear a lot of weight on that hip. (Tr. at 352-54).
Claimant testified that on a typical day, she got up at about 5:00 a.m., went to the living room to watch the news and drink coffee, took a shower, and then went back to bed and slept for about four hours. She testified that she could do a load of laundry, load the dishwasher and drive to the grocery store six blocks away. Claimant testified that she did not engage in any activities outside the home, did not socialize with any friends, and did not have any hobbies. She said that on a good day, she could stand for forty-five minutes to one hour before having to sit down, and could sit for thirty or forty minutes before having to reposition herself. She could walk two blocks before her pain would begin to bother her. Claimant estimated that she could probably lift twenty pounds, but that she did not know because she had not really tried to lift anything. She did not know if she had the energy to do a job where she could sit most of the day and stand if she needed to and would not have to deal with lifting or carrying anything heavy. Claimant explained that her fatigue felt "like [she was] on the downhill slide from a bad Flu or something." She stated that, on average, she sat, with her feet up, in a recliner for six or seven hours each day, and that she had to sleep flat on her back to avoid hip or shoulder pain. (Tr. at 354-58).
Claimant testified that she had enjoyed her work and made good money as a nurse. She stated that she would not be able to perform the duties of a nurse at the local hospital, because she could not do patient care while she was under the influence of narcotics. Claimant testified that the medications she took slowed her mental capacities and that she tended to forget things short-term. She said that she had sought treatment from different doctors, but none had been able to treat her successfully. (Tr. at 358-60).
When asked how long she could sit during an eight-hour work day, Claimant answered that she spent a lot of time lying down and that she did not know how long she could sit and work productively. She estimated that she could stand for forty-five minutes at most, without feeling pain that would start in her groin. Claimant said that she had constant pain in her right hip, pain that was "severe" and "deep burning . . . deep in the bone," which was aggravated by sitting, standing, walking, turning over at night and laying on her hip, and bending down. She also had trouble walking on uneven ground. (Tr. at 360-62).
Claimant testified that she had no difficulty grocery shopping at her small local store, but thought she would be able to shop at a larger shopping center for only an hour "once in a while," after she had medicated herself, and with her husband along to help with the larger items. She also stated that she did not drive "that kind of a distance" to the shopping center because it was too dangerous for her to drive when on her medications. She tried not to be around people, strangers, or crowds because, if she were, she felt stressed. (Tr. at 362-64).
Claimant testified that the doctors had not suggested any physical therapy for her. She testified that she was prescribed Neurosed and Neuroprex for jerking movements that she experienced daily if she did not take the medicine. Even with the medication, the shaking did not completely go away, and approximately twelve or fourteen times per month she experienced shaking, especially when she was tired. At such times, she had difficulty keeping her balance and would hold on to furniture. She used a cane or a crutch a couple of times per week. (Tr. at 364-65).
The ALJ then asked the VE whether an individual of Claimant's age, education, and work history, who could only perform light exertional work4 with no ropes, ladders, scaffolds, vibrations, crawling, or crouching, could perform Claimant's past work. The VE responded in the negative. The VE further testified that such an individual would have no transferable skills to light work with the additional noted limitations, but that there were light unskilled jobs which the individual could perform, including mail sorter, bench assembler, and machine tender. The VE further testified that the individual would have no skills that would be transferable to sedentary work,5 but that there were sedentary unskilled jobs which the individual could perform, including production checker, order clerk, and printed circuit board assembler. The VE testified that if the individual would miss work on an average of two days per month or would have to take a total of one hour of breaks in addition to regular breaks (per day), she would not be able to not hold any job. (Tr. at 365-69).
In response to questions by Claimant's counsel, the VE testified that the person described in Dr. Dominguez's December 9, 2005 Medical Source Statement could not perform Claimant's previous work or any other full-time work, because the sitting and standing limitations imposed by Dr. Dominguez permitted only part-time work. (Tr. at 369-70).
Claimant, who was represented by counsel, testified that she is married and lives with her disabled husband. (Tr. 724). Claimant received her nursing degree from Mobley Junior College in 1992. (Tr. 725). Claimant last worked as a RN in December 2003. (Tr. 726).
The ALJ asked Claimant to explain why...
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