Schade v. Colvin, Case number 4:13cv0870 TCM
| Decision Date | 22 August 2014 |
| Docket Number | Case number 4:13cv0870 TCM |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | TRACY L. SCHADE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
This action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the applications of Tracy L. Schade (Plaintiff) for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 401-433, and for supplemental security income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the undersigned by written consent of the parties. See 28 U.S.C § 636(c).
Procedural History
Plaintiff applied for DIB and SSI in February 2010, alleging she was disabled as of May 1, 2009, because of asthma and fibromyalgia. (R.1 at 124-34, 166.) Her applications were denied initially and after an April 2011 hearing before Administrative Law Judge ("ALJ") Bradley Hanan. (Id. at 16-28, 33-71, 74-81.) After reviewing additional evidence,the Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-5.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and Brenda G. Young, C.R.C.,2 testified at the administrative hearing.
Plaintiff was thirty-eight years old at the time of the hearing. (Id. at 40.) She is 5 feet tall and weighs 223 pounds. (Id.) She is divorced and has three children, ages twenty-two, thirteen, and twelve. (Id. at 40-41.) She has custody of her two youngest children. (Id. at 41.) She lives with them, her oldest child (a son), and her boyfriend. (Id.)
Plaintiff completed the eighth grade. (Id.) She was not in special education. (Id. at 42.)
She has a current driver's license and has no trouble driving. (Id. at 41.)
Plaintiff testified that she had tried returning to work in October 2009 as a housekeeper, but could not continue because she was sick. (Id. at 42, 46.) She did not apply for unemployment benefits. (Id. at 42.)
Plaintiff further testified that she has good days and bad days with her asthma. (Id. at 53.) On a good day, she can function without becoming tired or short of breath. (Id.) On a bad day, she is "wheezy" and short of breath. (Id. at 53, 54.) Walking from one end of the house to another causes her to be short of breath. (Id. at 54.) She is limited in what she can do physically. (Id.) She has approximately two good days a week and the rest are bad. (Id.at 53.) She uses a nebulizer at least twice a day. (Id. at 54.) On a bad day, she uses it every three to four hours. (Id.) Each nebulizer treatment takes approximately fifteen minutes. (Id. at 55.) The treatments generally give her immediate relief and cause side effects of shakiness and "jitteriness." (Id.) These effects last approximately forty-five minutes. (Id.)
Plaintiff takes prednisone every day. (Id. at 56.) It causes weight gain. (Id.)
Plaintiff is also being treated for fibromyalgia. (Id. at 57.) The symptoms include muscle and joint pain. (Id. at 58.) She is "very sore and sensitive to the touch." (Id.) Her thighs and chest are affected the most; her arms are sometimes affected. (Id.) Her "back is really bad." (Id.) She cannot sit for longer than forty-five minutes without her legs going numb. (Id. at 58-59.) She does not have any difficulty standing. (Id. at 59.) If, however, her back and thighs are bothering her, she has difficulty standing up and has to do so slowly. (Id.) She has carpal tunnel syndrome and sleeps with braces on her hands. (Id. at 60.) She is receiving no other treatment for it. (Id.) She is able to button her shirts, tie her shoes, and zip up a zipper. (Id. at 63.) She has migraines at least twice a week. (Id. at 61-62.) The pain is "very, very intense." (Id. at 62.) Light and sound bother her; sometimes, she vomits. (Id.) The migraines last all day. (Id.)
On a daily basis, she gets up, gets her children ready for school, either gets them on the bus or takes them to school, comes home, sits and relaxes, tries to do dishes, and tries to vacuum. (Id. at 56.) She cannot do either chore for long without needing to take a break every ten to fifteen minutes. (Id. at 56-57.) Her two daughters have started to help her with the chores. (Id. at 57.)
Plaintiff has Medicaid, as do her children. (Id. at 42-43.)
Plaintiff testified that she lost several jobs because of her asthma. (Id. at 62.)
Ms. Young, testifying without objection as a vocational expert ("VE"), was asked to assume a hypothetical individual of Plaintiff's age, education, and work experience who is limited to light exertional work at most; who cannot climb ladders, ropes, or scaffolds; who can only occasionally climb ramps and stairs; and who can occasionally stoop, kneel, crouch, and crawl. (Id. at 63, 64.) Also, this individual should avoid moderate exposure to airborne irritants and extreme cold and vibrations, and should avoid all exposure to operationally controlled moving machinery and to hazardous machinery. (Id. at 64.) Asked if this individual can perform any of Plaintiff's past relevant work, the VE replied that she cannot as Plaintiff performed it. (Id.) She can perform the job of cashier in the variety of work settings she worked at that job as defined in the Dictionary of Occupational Titles ("DOT"). (Id. at 64-65.) If this hypothetical individual is limited to moderate exposure to airborne irritants, the VE's answer would not change. (Id. at 65.)
If the hypothetical individual is limited to sedentary work, Plaintiff's past relevant work would be eliminated as she performed it and as it is generally performed. (Id.) There are, however, other jobs that this individual can perform. (Id. at 65-66.) For instance, there are jobs in telemarketing, cashier positions at the sedentary level, and small products assembly jobs. (Id. at 66.) These jobs exist in significant numbers in the national and state economies. (Id.)
If the hypothetical individual is limited to lifting no more than five pounds occasionally and cannot stand or walk for longer than ten minutes at a time, there are no jobs the individual can perform. (Id. at 67-69.) If the individual needs to use a nebulizer every three to four hours and cannot do so only on scheduled breaks, she cannot sustain employment. (Id. at 70.)
The VE stated that her testimony is consistent with the DOT or, when not, she had explained the discrepancy. (Id. at 69.)
The documentary record before the ALJ included forms completed as part of the application process, documents generated pursuant to Plaintiff's applications, records from health care providers, and assessments of her physical and mental abilities.
When applying for DIB and SSI, Plaintiff completed a Disability Report, disclosing that she had stopped working on January 5, 2010, because of her condition. (Id. at 166.) Her current medications included Ability (for anxiety and depression), Synthroid (for hypothyroidism), warfarin (to prevent blood clots), and Wellbutrin (for depression). (Id. at 167.)
Plaintiff also completed a Function Report. (Id. at 183-90.) With her boyfriend's help, she cares for her two youngest children, three dogs, and a bird. (Id. at 184.) She sometimes has difficulties sleeping when her chest is tight and she is wheezing and coughing. (Id.) Occasionally, she has difficulty remembering if she has taken her medication. (Id. at 185.) She prepares three meals a day; the length of time they require varies between five minutesand two hours depending on what she is cooking. (Id.) It takes her all day to do the laundry and, sometimes, two days to clean the house. (Id.) She shops for groceries and other items once or twice a week. (Id. at 186.) She uses a cart to lean on. (Id.) Her hobbies include reading, working puzzles, and watching television. (Id. at 187.) How well she does them depends on how she is feeling. (Id.) She goes to church on Sunday and visits her sister approximately every other week. (Id.) Her impairments adversely affect her abilities to lift, squat, bend, stand, reach, walk, kneel, talk, hear, climb stairs, complete tasks, and use her hands. (Id. at 188.) She cannot walk farther than a quarter or half a block before having to stop and rest for ten minutes. (Id.) She can pay attention for a long time. (Id.) She can follow written or spoken instructions "pretty well." (Id.) How well she handles stress depends on what kind of day she is having; she handles changes in routine okay. (Id. at 189.) Her asthma has caused her to lose several jobs because it causes her to miss too many days of work. (Id. at 190.) Because of her asthma and fibromyalgia, she suffers from depression.
Plaintiff's sister completed a Function Report on Plaintiff's behalf. (Id. at 176-82.) Her answers generally mirrored Plaintiff's. (Id.)
A list of Plaintiff's annual earnings for the years from 1993 through 2009, inclusive, identified her highest annual earnings as being $12,035,3 in 1996 . (Id. at 135.) In four years - 1993, 1998, 2002, and 2004 - she earned less than $1,000. (Id.) In five of the twelve remaining years, her earnings were between $5,000 and $10,000. (Id.) Other than in 1996,her earnings never exceeded $10,000. (Id.) In the years from 1993 to 2007, inclusive, Plaintiff worked for approximately thirty-four different employers. (Id. at 138-43.)
The relevant medical records before the ALJ are summarized below in chronological order.
Plaintiff went to the emergency room at St. Joseph Health Center in September 2002 for a non-productive cough for the past twenty-four hours, an acute onset of shortness of breath, and wheezing that had begun that morning. (Id. at 218-40.) She was diagnosed with acute dyspnea (shortness of breath) and an acute exacerbation of asthma, treated with medication, and discharged with...
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