Lori E. v. Kijakazi
| Docket Number | 1:20-cv-00878-MSN-IDD |
| Decision Date | 07 June 2022 |
| Parties | LORI E., Plaintiff, v. KILOLO KIJAKAZI, Commissioner of Social Security, [1] Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
This matter comes before the Court on the parties' cross-motions for summary judgment (Dkt. Nos. 15 17).[2] Plaintiff Lori E. seeks judicial review of the final decision of defendant Kilolo Kijakazi, Commissioner of the Social Security Administration, finding that she is not disabled under sections 216(i) and 223(d) of the Social Security Act 42 U.S.C. § 423 (the “Act”). For the reasons stated below, the Court will DENY plaintiff's Motion for Summary Judgment (Dkt. No. 15), GRANT defendant's Motion for Summary Judgment (Dkt. No. 17), and AFFIRM the Administrative Law Judge's (“ALJ”) decision.[3]
I. Background
On December 29, 2016, plaintiff filed for disability insurance benefits with an alleged onset date of July 21, 2016. AR at 181-82. The Social Security Administration (“SSA”) denied plaintiff's application on May 18, 2017 and, on November 30, 2017, upheld that decision upon reconsideration. Id. at 195-96, 212-13.
On April 1, 2019, plaintiff appeared before ALJ Suzette Knight for a video hearing to challenge the SSA's determination. Id. at 62. Plaintiff, appearing pro se testified at that hearing as did her husband and a Vocational Expert (“VE”). Id. On June 25, 2019, the ALJ issued a decision finding that plaintiff was not disabled under the Act, even though she suffered from chronic fatigue syndrome, post viral syndrome, postural orthostatic tachycardia syndrome, [4]rheumatoid arthritis, and obesity. Id. at 34. The Appeals Council found no basis to review and affirmed the ALJ's decision. Id. at 1.
Having exhausted her administrative remedies, plaintiff filed a pro se Complaint with this Court on July 31, 2020, challenging the ALJ's decision. (Dkt. No. 1). Plaintiff filed a Motion for Summary Judgment (Dkt. No. 15) on May 12, 2021, including a Memorandum in Support of Plaintiff's Motion for Summary Judgment (Dkt. No. 18). Defendant filed a Cross-Motion for Summary Judgment (Dkt. No. 17) on June 11, 2021, along with a Memorandum in Support of Defendant's Cross-Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment (Dkt. No. 18). Accordingly, the parties' motions are ripe for disposition.
II. Evidence before the ALJ
Below is a summary of plaintiff's testimony before the ALJ and other evidence in the administrative record.
At the video hearing on April 1, 2019, plaintiff appeared pro se before the ALJ. AR at 63. Plaintiff was fifty-seven years old, 5'1” tall, and weighed 172 pounds. Id. at 74. She lived in a three-story house with her husband. Id. at 75. Her highest level of education was graduate school. Id. at 77.
Plaintiff testified that in the period immediately before her alleged onset date, she worked as a contract administrator for a nonprofit organization. Id. She confirmed that she held similar positions with other employers in different industries for the preceding ten years. Id. at 78-79. And before that, plaintiff told the ALJ she had served for more than twenty years as a senior manager in the telecommunications field, including with Nextel Wireless and AT&T. Id. at 79-82.
Plaintiff then explained that she had not applied for any jobs since her alleged onset date of July 21, 2016, because she suffers from “a very complex” neurological disease affecting her brain, autonomic function, immune system, and cardiovascular system. Id. at 83-84. In addition, plaintiff described suffering from severe orthostatic intolerance. Id. at 84. Plaintiff testified that the primary side effects from that constellation of disorders included extreme fatigue, “word-find difficulties, ” and “[s]hort-term memory problems.” Id. at 84-85. Plaintiff stated that most limiting, however, were her myalgic encephalomyelitis/chronic fatigue syndrome (“ME/CFS”) crashes which could leave plaintiff “basically bedridden for over two months.” Id. at 86. Plaintiff further testified that her inability to manage such crashes was exacerbated by the fact that only “a handful of doctors in this country, ” meaning “five to seven . . . even know anything about [ME/CFS] and can treat it.” Id. And despite this limited number of doctors capable of diagnosing and managing ME/CFS, plaintiff stated that Id. at 86.
In terms of a typical day in her life, plaintiff testified that immediately upon waking up, she takes a supplement (glutathione), drinks sixteen ounces of Pedialyte or twelve ounces of V8-branded juice, waits “about a half-hour or so” to see if she feels “strong enough to get up out of bed” and then, if she does, goes downstairs to take additional supplements. Id. at 94. After that, plaintiff stated she makes herself breakfast (always two eggs and toast), waits an additional thirty minutes, takes her second set of vitamins and medication, waits for those supplements to “kick in”, drives to a stable so that she can feed and “turn out” her pony, returns home to “sit down in the family room” and watch television or listen to the news, makes herself lunch (often a frozen meal), takes additional supplements, lies down and experiences a “mini-crash”, takes an additional supplement, returns to the stable to “bring the pony in”, feed her, and potentially “pick her hooves”, and then returns home. Id. at 95-96.
Regarding her personal care, plaintiff testified that she only is able to take a shower “every three to four days” and that although she formerly “used to get [her] hair done every six to eight weeks, ” she now only “get[s it] done maybe three or four times a year.” Id. at 96. As for household chores, plaintiff testified it would be a “good week” if she did one load of laundry but that she no longer loads or unloads the dishwasher, does not vacuum, and is unable to do more than “pick up a few groceries” and run “very limited” errands. Id. at 97.
Plaintiff's husband testified to the same effect. That is, plaintiff's husband also stated that plaintiff “can maybe do 10% of what she used to be able to do” and that if plaintiff “tries to do too much, if she presses herself to go shopping, go to the store, she usually has a crash where it might take a day[, ] [i]t might take several days for her to get back to the point where she can go out and spend those couple hours out every day.” Id. at 100-01.
In testimony from the VE, it was established that plaintiff's prior work experiences were sedentary jobs with Specific Vocational Preparation levels of eight. Id. at 104. The ALJ then described the following hypothetical person for the VE to consider: The hypothetical person had plaintiff's same vocational profile in terms of age, education, and work experience and was limited to a light exertion level, with the additional limitations that the individual could occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently balance; occasionally stoop, kneel, crouch, and crawl; occasionally work at unprotected heights; occasionally work around moving mechanical parts; and could tolerate occasional exposure to humidity, extreme cold, and extreme heat. Id. at 104-05.
The VE testified that the following positions existed in the national economy that satisfied the limitations set forth by the ALJ: routine office clerk (65, 000 jobs), administrative clerk (75, 000 jobs), and general file clerk (100, 000 jobs). Id. at 105.
The ALJ then modified the limitations placed on the hypothetical person, such that the individual could only occasionally balance; never work at unprotected heights or around moving parts; could never be exposed to extreme temperatures; could tolerate moderate noise levels and occasional exposure to pulmonary irritants; and would be off task “5% of an 8-hour workday due to fatigue” in addition to normal breaks. Id. at 106. The VE testified that the same positions existed in the national economy for such a person. Id.
The ALJ then added the further limitation that allowed the hypothetical person to stand and/or walk for no more than four hours in an eight-hour workday. Id. The VE responded that such additional restrictions would “reduce the numbers of all the positions by 10 to 15%.” Id. at 10607.
Finally, the ALJ asked the VE what impact there would be on the positions available to the hypothetical person if that person also could perform work only at the “sedentary” level. Id. at 107. The VE responded that such a person could work as a general receptionist (100, 000 positions available in the national economy), a general appointment clerk (120, 000 positions available), and an information clerk (95, 000 positions available).
The medical and administrative evidence documents the following history of plaintiff's treatment for her concurrent impairments both before and after her alleged onset date.[5]
Before her alleged onset date, plaintiff's primary source of discomfort was chronic neck and back impairments traceable to two prior automobile accidents.[6] See, e.g., id. at 492-508. On April 10, 2015, plaintiff reported to Insight Imaging with neck and back pain, including radiculopathy. Id. at 137-38. Dr. Scot A. Lebolt noted a normal examination regarding plaintiff's thoracic spine, but mild spondylosis with respect to plaintiff's cervical spine. Id. On April 23, 2015, plaintiff received a diagnosis of “lumbar facet arthropathy and lumbar foraminal stenosis” along with “cervical disc herniation and cervical...
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