Ording v. Astrue, Civil No. 11-CV-2296 (MJD/LIB)

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Writing for the CourtLEO I. BRISBOIS
PartiesJeri Ording, Plaintiff, v. Michael J. Astrue, Commissioner of the Social Security Administration, Defendant,
Docket NumberCivil No. 11-CV-2296 (MJD/LIB)
Decision Date06 August 2012

Jeri Ording, Plaintiff,
Michael J. Astrue, Commissioner of the Social Security Administration, Defendant,

Civil No. 11-CV-2296 (MJD/LIB)


Dated: August 6, 2012


Jeri Ording1 (Plaintiff) seeks judicial review of the decision of the Commissioner of Social Security (Defendant) denying her application for disability insurance benefits (DIB) and supplemental security income (SSI). The matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. This Court has jurisdiction over the claims pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Both parties submitted motions for summary judgment. For the reasons set forth below, the Court recommends that Plaintiff's motion for summary judgment be granted in part and Defendant's motion for summary judgment be denied.


A. Procedural History

Plaintiff filed her application for DIB and Title XVI application for SSI on November 3, 20082 , alleging a disability onset date of January 1, 2000.3 (Tr. 126-34).4 Her application was

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denied initially and upon reconsideration. (Tr. 71-75, 80-83). Upon Plaintiff's request for a hearing, Administrative Law Judge George Gaffaney (ALJ) held a hearing on September 13, 2010. (Tr. 19). The ALJ denied Plaintiff's claim on December 3, 2010. (Tr. 18). The ALJ found that from the date of her application through the date of his decision, Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 18). Plaintiff sought review of the decision by the Appeals Council. (Tr. 5). Because the Appeals Council denied Plaintiff's request for review, (Tr. 1-4), the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§404.981, 416.1481.

B. Factual History

Plaintiff was 56 years old at the time that she filed her application. (Tr. 119). Although she did not graduate from high school, she has a GED. (Tr. 25). She has been married six times and has six children. (Tr. 23, 36). She has not had any substantial employment in the past 15 years. (Tr. 22-23). She lives by herself. (Tr. 26). However, she has a friend that comes over about once a month to help her clean. (Tr. 161). Although her friend, Harry Bailey, helps Plaintiff with vacuuming and laundry, (tr. 161), according to Mr. Bailey, Plaintiff is sometimes able to clean and do laundry. (Tr. 210). Plaintiff is also able to do daily chores during commercials when she is watching television. (Tr. 208). Mr. Bailey also stated that he has seen her sitting on the couch with extra pillows because of her back pain. (Tr. 161). According to Mr. Bailey, Plaintiff has no problems with personal care, though she needs to be reminded about showering from time to time. (Tr. 209-10). Plaintiff is able to prepare daily meals for herself. (Tr. 210).

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At the hearing, Plaintiff stated that she is unable to work because she is bipolar and because of lower back pain. (Tr. 26). She provided that she is only able to walk for about a block before she gets "very, very, very hurt and tired." (Tr. 26). With regard to her back, however, she provided that she has not sought much treatment because she mostly lives a sedentary life. (Tr. 30-31). She has no pain in her back when she is sitting down, but walking, bending, lifting, stretching, and even standing for lengthy periods of time give her pain. (Tr. 30-31). She also provided that she does not feel comfortable around other people, and when she is in public, she gets paranoid. (Tr. 35).

Both Plaintiff and Mr. Bailey addressed Plaintiff's difficulty in dealing with any stress. Plaintiff provides that she has a very low tolerance for stress. (Tr. 196). Mr. Bailey also stated that Plaintiff does not handle stress well at all. (Tr. 214). At the hearing Plaintiff testified that her tolerance for stress was not good, she wants to start yelling at people when she gets stressed. (Tr. 38). When asked if she could perform a full time job, she testified that "it's too stressful to have to be on a schedule like that." (Tr. 39). On her inability to handle stress, on a scale of 1 to 10, she provided that it was a 10. (Tr. 232).

Despite her impairments, she admits that she is capable of doing a variety of activities and tasks by herself. Although she doesn't always "keep the house as clean as [she] should," she is able to do some cleaning by herself. (Tr. 36, 41). She enjoys watching the food channel and sitting on her porch. (Tr. 36-37). She is capable of going to the grocery store by getting on a bus, but she only does so about once a week. (Tr. 40). Other than going to her doctor appointments and shopping once a week, she does not leave her home much. (Tr. 194).

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C. Medical Evidence for the Relevant Time Period

Plaintiff alleges that she is disabled because of physical and mental impairments. The medical history for each is discussed independently.

a. Physical Health Medical Evidence

On April 19, 2004, upon reports of low back pain, Plaintiff received an x-ray of her spine. (Tr. 395). It showed mild curvature convex right, some degenerative disc degeneration between L4-5, mild spurring and some facet spurring in the lower lumbar spine, and that the SI joints and visualized hip joints were normal. (Tr. 395). Otherwise, the findings were "essentially negative." (Tr. 395).

On August 16, 2004, Plaintiff sought treatment for right neck and shoulder pain, which she had been experiencing for three weeks. (Tr. 386). An examination of her neck and shoulders revealed "good range of motion in all directions of the neck but pain when turning to the right." (Tr. 386). Plaintiff was "tender through the upper trapezius and along the medial side of her scapula." (Tr. 386). However, she had "[f]ull range of motion of the shoulder without pain." (Tr. 386). She was advised to stop smoking and begin more regular exercise. (Tr. 387).

During a December 16, 2004, evaluation for hyperkalemia, she was found to have normal reflexes in upper and lower extremities and normal strength and coordination. (Tr. 385).

On February 21, 2005, Plaintiff experienced some right knee pain, which became worse with walking up and down stairs. (Tr. 382). She was found to have no acute injury, swelling, redness, or weakness. (Tr. 382). Upon examination of the right knee, it was found to be "[c]ompletely normal other than tenderness on the superior and medial pole of her patella." (Tr. 382). There was no "grinding, crepitus, or evidence of weakness or instability." (Tr. 382). She

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was advised about icing, anti-inflammatories, and exercise and told to seek follow-up if not better. (Tr. 382).

On February 7, 2008, Plaintiff underwent an orthopedic musculoskeletal examination with Matthew S. Harrison, M.D. (Tr. 287). She was referred for the examination because she reported that she experienced chronic intermittent low back pain. (Tr. 287). However, during the examination, she complained "primarily of her mental health issues," and did "not make much of her low back complaints." (Tr. 287). She stated that "she currently ha[d] no pain, at her worst she ha[d] no pain and at her best she ha[d] no pain." (Tr. 287). Although she informed Dr. Harrison that she believes she had "some osteoarthritis in her lumbar spine," she "denie[d] any discomfort or deformity in any of her major joints or her lower limbs." (Tr. 287).

Upon examination, Dr. Harrison found that Plaintiff's range of motion in the knees, hips, and ankles were all normal, she had "no evidence of enlargement effusion, tenderness, swelling or any evidence of deformity of the lower limbs," her low back had no evidence of deformity, and she was able to perform all stretch and reflex tests satisfactorily. (Tr. 287). She did, however, have some tenderness with deep palpation in the paralumbar muscles. (Tr. 287). Her range of motion at the low back was 80 degrees of flexion at the lumbar spine and 5 degrees of extension with side bending at 10 degrees bilaterally. (Tr. 287).

Dr. Harrison estimated that Plaintiff's ability to sit in an eight hour day was three to four hours in duration with breaks, which Plaintiff agreed with. (Tr. 287). Dr. Harrison stated that Plaintiff could only stand 15 minutes before she would need to sit, but he did not cite to any data or tests he performed to reach that conclusion and appeared to base that statement on Plaintiff's subjective complaint. (Tr. 287). He found that she had "some posterior element arthropathy in the lumbar spine but [that] this [did] not cause significant limitation to her." (Tr. 288).

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On September 19, 2008, Plaintiff underwent a physical examination by Peter A. Wodrich, M.D. (Tr. 377). During the examination, Plaintiff reported that she had been drinking 3 tall beers a day and more on the weekends. (Tr. 377). Other than some diarrhea, she had no significant complaints and had no musculoskeletal complaints, clubbing, cyanosis, or edema. (Tr. 377). Dr. Wodrich described her neck as supple without adenopathy, no carotid bruit or JVD. (Tr. 378). Dr. Wodrich recommended that she stop drinking and smoking, and increase her physical activity. (Tr. 378).

On December 29, 2008, Jeffrey D. Gorman, M.D., a state agency medical consultant, made a physical residual functional capacity assessment of Plaintiff. (Tr. 332). He found the...

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