Jester v. Colvin

• Decision Date: 10 February 2014
• Docket Number: Civil Action 2:13-cv-00376
• Parties: Valerie Sue Jester, Plaintiff v. Carolyn W. Colvin, Commissioner of Social Security, Defendant
• Court: U.S. District Court — Southern District of Ohio

Valerie Sue Jester, Plaintiff v. Carolyn W. Colvin, Commissioner of Social Security, Defendant

Civil Action 2:13-cv-00376

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: February 10, 2014

Judge Marbley

Magistrate Judge Abel

REPORT AND RECOMMENDATION

Plaintiff Valerie Sue Jester brings this action under 42 U.S.C. §§405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security denying her application for Supplemental Security Income benefits. This matter is before the Magistrate Judge for a report and recommendation on the parties' cross-motions for summary judgment.

Summary of Issues. Jester maintains that she is disabled as a result of obesity, plantar fasciitis, calcaneal spur, gastroesophageal reflux disease (GERD), hypertension, history of headaches, bipolar disorder, attention deficit disorder, and anxiety. The administrative law judge concluded that plaintiff could perform a range of sedentary work.

Plaintiff argues that the decision of the Commissioner denying benefits should be reversed because:

• The administrative law judge failed to follow the treating physician rule; and,

• The administrative law judge failed to properly evaluate plaintiff's credibility.

Procedural History. Plaintiff Valerie Sue Jester filed her application for disability insurance benefits on September 8, 2009, alleging that she became disabled on September 25, 2000, at age 25, by bipolar disorder, depression, anxiety, plantar fasciitis, and scoliosis. (R. 178-80, 205.) She later amended the application to allege disability as of September 8, 2009, when she was 34 years old. The application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. On October 14, 2011, an administrative law judge held a hearing at which plaintiff, represented by counsel, appeared and testified. (R. 34.) A vocational expert also testified. On November 25, 2011, the administrative law judge issued a decision finding that Jester was not disabled within the meaning of the Act. (R. 25.) On February 19, 2013, the Appeals Council denied plaintiff's request for review and adopted the administrative law judge's decision as the final decision of the Commissioner of Social Security. (R. 1-3.)

Age, Education, and Work Experience. Valerie Sue Jester was born July 24, 1975. (R. 178.) She has a high school education. (R. 213.) She has worked as a cashier, a waitress, a housekeeper, a sales associate and a slicer at a factory. She last worked January 23, 2002. (R. 206-05.)

Plaintiff's Testimony. The administrative law judge fairly summarized 's testimony as follows:

At hearing, the claimant testified she spends most of the day in bed due to the symptoms of her mental impairments. She also testified she experiences decreased appetite due to medication side effects anddepression. (Hearing Testimony.) In an October 2009 Function Report, the claimant described loss of motivation to perform household chores such as clearing and washing laundry. (Exhibit B4E.) However, the claimant has no problems performing personal care tasks, such as dressing, bathing, and shaving. (Exhibit B4E, Hearing Testimony.) At hearing, the claimant also testified that she enjoys hobbies such as sewing, arranging flowers, and other craft projects. . . .

[T]he claimant said she isolates herself and does not spend time with others. . . . [T]he claimant said she is able to lift up to 20 pounds, sit for 30 minutes at one time, and stand for 30 minutes at one time. . . .

[S]he testified she is able to mow her lawn, pick-up sticks, and do other yard work for up to 45 minutes at one time.

(R. 18, 20, 22.)

Medical Evidence of Record.

Physical Impairments.

Penelope A. Halliday, M.D. On June 9, 2003, Jester began receiving treatment from Dr. Halliday, a family practitioner. (R. 296.) Dr. Halliday treated plaintiff for depression, anxiety, bipolar disorder, GERD, and hypertension. (R. 299.)

Cindi Hill, M.D. On November 4, 2009, Dr. Hill, a state agency reviewing physician, completed a physical residual functional capacity assessment. Dr. Hill concluded that plaintiff could occasionally lift 50 pounds and frequently lift 25 pounds. She could stand about 6 hours in an 8-hour day. She could sit for 6 hours in an 8-hour day. She was unlimited in her ability to push and/or pull. Dr. Hill noted that as of July 2009, plaintiff reported pain in the plantar surface of both feet when walking and tenderness at the insertion of the plantar's fascia. It was recommended that she stretch,use inserts and NSAIDs. She had a normal gait and station. She experienced numbness on and off in her hands when using the computer, holding a hair dryer, and driving.

Dr. Hill opined that plaintiff could occasionally climb ramps or stairs but never climb ladders, ropes or scaffolds. She could occasionally balance. She should avoid concentrated exposure to vibration or hazards such as machinery or heights.

Dr. Hill indicated that plaintiff was diagnosed with obesity, plantar fasciitis, scoliosis, hypertension, GERD, and CTS. She complained of body aches and always being tired. (R. 561-68.)

Robert Fierman, D.P.M. On October 9, 2009, Dr. Fierman began treating plaintiff for plantar fasciitis bilaterally, greater on the left. (R. 846.) On October 19, 2009, plaintiff reported persistent pain and that stretching and wearing orthotics had not provided any improvement.

A December 2, 2009 MRI of the left ankle showed minimal ankle joint effusion, minimal edema in the soft tissues adjacent to the calcaneal attachment of the plantar fascia, and some marrrow edema consistent with plantar fasciitis. (R. 850.)

On December 4, 2009, Dr. Fierman completed a lower extremities impairment questionnaire. (R. 837-44.) Dr. Fierman diagnosed plantar fasciitis and stabbing pain in the Achilles tendon. Her prognosis was poor based on her poor response to treatment. Clinical findings included tenderness of the Achilles tendon with dorsiflexion and pain with inversion and eversion; muscle spasms in the sole of the left foot; swelling; joint warmth; joint instability; abnormal gait with pain when walking; positive straight legraising test bilaterally to 20 degrees; pain with pressure, walking, standing and sitting. (R. 837-38.) She experienced constant pain. Her weight contributed to her pain. Dr. Fierman opined that plaintiff could independently initiate and sustain ambulation and complete activity. Although he noted that plaintiff required assistance walking, she did not need a cane or a walker. Dr. Fierman indicated that pain interfered with her ability to ambulate effectively. Plaintiff could not effectively climb stairs without the help of a handrail. She could not carry out activities of daily living independently without assistance.

Dr. Fierman opined that plaintiff could sit or stand/walk for less than one hour. Plaintiff must get up and move around every hour and must wait an hour prior to sitting again. She could frequently lift and carry up to 5 pounds. She could frequently carry up to ten pounds and occasionally lift up to ten pounds. She could occasionally carry up to 20 pounds. (R. 841.)

Plaintiff required her legs to be elevated for 30 minutes 3-4 times per day because of her edema. Dr. Fierman opined that plaintiff could only tolerate low stress work based on her anxiety attacks. She required unscheduled breaks to rest at unpredictable intervals during the day every ten minutes. (R. 842-43.)

Dr. Fierman opined that plaintiff had psychological limitations. She needed to avoid wetness, noise, fumes, gases, temperature extremes, humidity, dust, and heights. She could not push, pull, kneel, bend or stoop.

John A. Mehnert, M.D. On September 9, 2010, Dr. Mehnert began treatingplaintiff for calcaneal spur and plantar fasciitis. Plaintiff described a history of Cortisone injections and physical therapy. (R. 1119.) On April 20, 2010, examination revealed pain with palpation of the plantar fascia on the left. Plaintiff received an injection. (R. 1122-23.) On June 1, 2010, plaintiff continued to report pain, and Dr. Mehnert prescribed orthotics. (R. 1126-27.)

On September 9, 2010, Dr. Mehnert completed a lower extremities impairment questionnaire. He noted that her prognosis was good. Plaintiff had tenderness in the heels and reported throbbing pain. Excessive walking or standing lead to pain. Plaintiff reported that the pain was constant. Although she could independently initiate ambulation and complete activity, he noted that it was questionable as to whether she could sustain ambulation. She did not require a device or assistance to walk. Pain did interfered with her ability to ambulate effectively, and she could not effectively climb stairs without the help of a handrail. Although Dr. Mehnert indicated that she could not carry out activities of daily living independently without assistance, she could travel to and from her house, prepare meals, and bathe and dress. Dr. Mehnert had not been able to completely relieve plaintiff's pain with medication. Dr. Mehnert opined that plaintiff could sit for 8 hours in a day. She could only stand or walk for less than 1 hour. Dr. Mehnert opined that plaintiff could occasionally lift over 50 pounds and frequently carry 5-10 pounds. Dr. Mehnert further opined that plaintiff would likely be absent from work more than three times a month. (R. 1110-17.)

On November 4, 2010, plaintiff reported ongoing foot pain, although Dr.Mehnert found her somewhat improved .(R. 1156-57.) On May 5, 2011, plaintiff reported worsening pain, and Dr. Mehnert diagnosed left metatarsalgia. (R. 1256.) On August 11, 2011, plaintiff had pain at the insertion site of the left plantar fascia and in the tarsal tunnel. Dr. Mehnert diagnosed tarsal tunnel syndrome and worsening calcaneal spur and plantar fasciitis. (R. 1258-59.)

On October 17, 201, plaintiff underwent release surgery of her tarsal tunnel and plantar fascia on the...