Heuer v. Astrue

• Decision Date: 23 August 2012
• Docket Number: Case No. 2:11-CV-51 NAB
• Parties: ELIZABETH J. HEUER, Plaintiff, v. MICHAEL J. ASTRUE, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

ELIZABETH J. HEUER, Plaintiff,

v.MICHAEL J. ASTRUE, Defendant.

Case No. 2:11-CV-51 NAB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Date: August 23, 2012

MEMORANDUM AND ORDER

This is an action under Title 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying Elizabeth J. Heuer's ("Heuer") applications for disability insurance benefits ("DIB") under Title II of the Social Security Act and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Heuer alleges disability due to bipolar disorder, a knee replacement, and a hysterectomy. All parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. #11.) For the reasons set forth below, the Commissioner's decision is affirmed in part, reversed in part, and remanded for further consideration.

I.PROCEDURAL BACKGROUND

On March 19, 2008, Heuer filed an application for a period of disability, seeking DIB and SSI. She alleged an onset date of September 1, 1995. (Tr. 149-50.) The Social Security Administration ("SSA") denied Heuer's claim and she filed a timely request for a hearing before an administrative law judge ("ALJ"). (Tr. 85, 108-12, 114.) The SSA granted Heuer's request and the hearing took place on February 18, 2010. (Tr. 11.) At the hearing, Heuer amended heralleged onset date to February 29, 2008. (Tr. 19.) The ALJ issued a written decision on April 9, 2010, upholding the denial of benefits. (Tr. 86-103.)

Heuer requested review of the ALJ's decision from the Appeals Council on May 10, 2010. (Tr. 8.) She submitted two pieces of additional evidence: a personal statement (Tr. 262-68) and a transcribed opinion from her treating psychiatrist (Tr. 837-60). Counsel also prepared a short brief. (Tr. 269-71.) On May 31, 2011, the Appeals Council denied Heuer's request for review. (Tr. 1-4.) The decision of the ALJ thus stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000) (citing 20 C.F.R. §§ 404.900(a)(4)-(5), 404.955, 404.981, 422.210(a)). Heuer filed this appeal on July 13, 2011. (Doc. 1.)

II.ADMINISTRATIVE RECORD

A. Hearing Testimony

The ALJ heard testimony from Heuer (Tr. 20-56) and John McGowan, a vocational expert ("VE") (Tr. 57-80). Heuer was represented by counsel. (Tr. 12.)

1. Claimant's Testimony

Heuer testified that she had completed the twelfth grade. (Tr. 55.) She did not pursue post-secondary education, and had no vocational or technical training. (Tr. 56.)

Heuer recalled being fired from a job four or five years before the hearing because she did not get along well with the other employees. (Tr. 31.) Her last job was as an office manager at the Franklin County Humane Society. (Tr. 20.) She worked on a computer, cleaned cages, walked dogs, cared for cats, and performed some maintenance work. (Tr. 20-21.) Her cleaning duties took about two hours at the start of each day. (Tr. 21.) She would sit for about three hours per day and walk for about four hours per day. Id. She sometimes had to lift animals and cages that weighed up to 50 pounds. (Tr. 20-22.) She testified that she had filled out thedescription of her job at the Humane Society contained in an adult disability report and that it was accurate. (Tr. 52-55; see also Tr. 199-200.)

In July 2006, Heuer underwent surgery for a partial knee replacement.¹ (Tr. 22.) In the months before she left the Humane Society, she missed one or two days of work every week. (Tr. 29.) She was unable to clean cages or do any lifting, and was limited to secretarial duties. Id. She testified that she left the Humane Society because she was experiencing knee pain and missing too many days of work. (Tr. 28-29.) In August 2008, she underwent surgery for a full knee replacement. (Tr. 22.)

Heuer did not recall filling out a work activity report after applying for benefits. (Tr. 43.) She testified that the report was accurate in most respects, but that the notation that she had left the Humane Society due to a breakdown following her divorce was not correct. (Tr. 44-45.) She said that she was "shocked to see that." (Tr. 45.) She denied leaving the Humane Society because of the divorce. (Tr. 42-44, 51.)

After her knee replacement, Heuer was given a walker to use. (Tr. 46-47). After her condition improved, her doctor gave her a cane to use. (Tr. 47.) She was using a cane at the time of the hearing. Id. She still used the cane after going through physical therapy. (Tr. 46.)

Heuer testified that her knee condition prevented her from sitting for longer than half an hour at one time. (Tr. 22-23.) During the ninety-minute drive on her way to the hearing, she had her roommate stop the car twice to let her get up and move because of the pain in her knee. (Tr. 35.) She could stand for fifteen minutes at a time without pain, but she would get sharp, piercing pains on the sides of her knee if she stood up for too long. (Tr. 23-24.) Sometimes after standing for a long time, her knee would buckle and she would fall. (Tr. 24.) She testified thatthese incidents started before her partial knee replacement. (Tr. 22.) One such incident occurred three days before the hearing. (Tr. 24.) She had trouble walking because it caused her knee to swell. (Tr. 25.) If she walked for too long, she would experience sharp, piercing pains in the sides of her knee and her foot would swell up. Id. She testified that she was unable to walk at a normal speed, and she had been using a cane for the past two years. (Tr. 25.)

Heuer testified that when she spent too much time walking, she would have to stay in bed the next day. (Tr. 25.) She spent up to half an hour walking between 9 o'clock in the morning and 5 o'clock in the evening. (Tr. 25-26.) She spent three or four hours lying on her bed or her couch with her leg elevated to alleviate swelling. (Tr. 26.) She also applied ice to her knee to counter the swelling, and heat packs to her knee to help with the pain. (Tr. 27.) She testified that her knee problems prevented her from vacuuming and doing the dishes. Id. They also made it difficult to cook and do laundry. (Tr. 27-28.) When she went to the store, she used an electric cart. (Tr. 28.)

Heuer testified that she had good and bad days. On good days, she could walk to the mailbox. (Tr. 22.) On bad days, she would stay in bed and not do anything. (Tr. 34.) She had two or three bad days every week. (Tr. 34.)

Heuer had gone to physical therapy for knee stiffness. (Tr. 27.) She rated the pain from her knee as being between 7-8 on a scale of 10 on an average day. (Tr. 23.) She could not bend over to pick something up, squat, kneel, or put any pressure on her knee. (Tr. 23.) She testified that she would be unable to stand for six out of eight hours because she thought her knee would buckle. (Tr. 35). Likewise, she would be unable to sit for six out of eight hours because it would cause too much knee pain. (Tr. 36.)

Heuer testified that she suffered from bipolar disorder. (Tr. 29.) During depressive episodes, she felt like she would "sink into a little hole inside [herself]" and "stare off into space." (Tr. 30.) She also spends days at a time in her room by herself. Id. During her manic episodes, she punched things and went on spending sprees. (Tr. 30.)

Heuer used oxygen at night because of difficulty sleeping. (Tr. 32.) Nevertheless, she testified that her sleep was restless and that she would wake up tired. (Tr. 32.) She had been taking valium for anxiety during the five months before the hearing, which made her sleepy during the day. (Tr. 32.)

Heuer suffered from frequent migraines that had begun five years before the hearing. (Tr. 34.) She took daily medication for them. Id. She testified that the medication helped control them, and she had migraines about once every two weeks. (Tr. 34.)

Heuer testified that she had difficulty meeting new people and making friends. (Tr. 31, 33.) She had difficulty concentrating. (Tr. 33.) Her medications prevented her from driving. (Tr. 28.)

Heuer smoked half a pack of cigarettes a day. (Tr. 48.) She testified that she had decreased her cigarette use near the start of November 2009. (Tr. 49.) She did not know why a medical record dated January 12, 2010, indicated that she smoked one pack per day. (Tr. 49.)

2. VE John McGowan's Testimony

The ALJ first asked the VE to describe each job that Heuer had worked in the past fifteen years by identifying the same or similar position in the Dictionary of Occupational Titles ("DOT"), giving the exertion level required for that position, giving the specific vocationalpreparation ("SVP") level for that position,² and identifying any differences between how Heuer actually performed the work and how the work was described in the DOT. (Tr. 57.)

The VE testified that Heuer had worked as a cashier II at three different convenience stores, which was light work with an SVP of 2. (Tr. 57.) She had worked as a receptionist, which was sedentary work with an SVP of 4. (Tr. 57-58.) She had worked as a waitress, which was light with an SVP of 3. (Tr. 58.) She had worked as an office manager at an auto shop and Sunshine Cleaning, which was sedentary with an SVP of 7. (Tr. 58.)

The VE testified that Heuer's work at the Humane Society appeared to overlap multiple job descriptions in the DOT. (Tr. 59.) The VE opined that Heuer's job duties may have included work similar to an office manager; an animal keeper, which is medium work with an SVP of 4; or an animal shelter clerk, which is sedentary work with an SVP of 3. Id. The VE declined to express an opinion about what Heuer's work actually consisted of, but did testify that the DOT's definitions were not comprehensive, a job could overlap multiple DOT categories, and even if a job title matched the DOT it was possible that the actual job was different from the DOT description. (Tr. 59-60.)

The ALJ posed two hypotheticals based on a person of Heuer's work experience,...