United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
LAWRENCE R. LEONARD, UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Cheryl Elliott ("Plaintiff) filed a complaint, pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3), that seeks
judicial review of the final decision of the Defendant, Nancy
A. Berryhill, the Acting Commissioner of the Social Security
Administration ("the Commissioner"), which denied
Plaintiffs claim for Disability Insurance Benefits
("DIB") pursuant to Title II, and his claim for
Supplemental Social Security Income ("SSI")
pursuant to Title XVI, of the Social Security Act ("the
Act"). Both parties have filed Motions for Summary
Judgment, ECF Nos. 11 and 15, with briefs in support, ECF
Nos. 12 and 16, which are now ready for recommended
resolution.
This
action was referred to the undersigned United States
Magistrate Judge ("the undersigned") pursuant to 28
U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil
Procedure 72(b), Local Civil Rule 72, and the April 2, 2002
Standing Order on Assignment of Certain Matters to United
States Magistrate Judges. For the following reasons, the
undersigned RECOMMENDS the Plaintiffs Motion for Summary
Judgment, ECF No. 11, be DENIED, and the Commissioner's
Motion for Summary Judgment, ECF No. 15, be GRANTED.
I.
PROCEDURAL BACKGROUND
Plaintiff
filed an application for a period of disability and
disability insurance benefits on September 17, 2012, alleging
that she became disabled on January 17, 2012 due to lower
back pain, obesity, asthma, hypertension, and anxiety. R. at
11, 142-50, 164, 167-68.[1] Plaintiffs application was initially
denied on April 3, 2013, and denied again upon
reconsideration on March 5, 2014. R. at 88-98, 100-06.
Plaintiff requested a hearing in front of an administrative
law judge, which was held on September 30, 2015 before
Administrative Law Judge Jeffrey M. Jordan ("the
ALJ"). R. at 25-54. On October 22, 2015, the ALJ issued
his decision denying Plaintiffs application. R. at 8-24. On
October 11, 2016, the Appeals Council for the Office of
Disability and Adjudication ("Appeals Council")
denied Plaintiffs request for review of the ALJ's
decision, making the ALJ's decision the final decision of
the Commissioner. R. at 1-6. After exhausting her
administrative remedies, Plaintiff filed her Complaint for
judicial review of the Commissioner's final decision on
December 8, 2016.[2] ECF No. 1. The Commissioner filed an
Answer on February 3, 2017. ECF No. 7. Both parties filed
Motions for Summary Judgment, ECF Nos. 11 and 15, and
Plaintiff filed a Reply in support of her Motion, ECF No. 17,
and the matter is now ripe for recommended adjudication.
II.
RELEVANT FACTUAL BACKGROUND
In her
application, filed September 17, 2012, Plaintiff alleges
disability due to lower back pain, obesity, asthma,
hypertension, and anxiety, with a disability onset date of
January 17, 2012, later amended to March 20,
2012.[3] R. at 11, 142-50, 164, 167-68. At the time
of the ALJ's October 22, 2015 decision denying her claim
for disability insurance benefits, Plaintiff was an
English-speaking, fifty-one year old woman with a high school
education who previously worked as an administrative clerk at
the Norfolk Airport Authorities. R. at 18, 29, 47. The Court
notes, as will become relevant later, Plaintiff was born in
January, 1964. R. at 144. Therefore, at the time of her
amended alleged disability onset date on March 20, 2012, she
was forty-eight years old and thus a "younger"
person pursuant to the SSA regulations. See 20
C.F.R. § 416.963(c) (defining anyone under the age of 50
as a "younger person.")
At the
hearing held on September 30, 2015, Plaintiff appeared, was
represented by an attorney, Robert W. Gillikin, II, and
supplemented her medical records by providing additional
information via testimony. An impartial Vocational Expert
("VE"), Andrew Caporale ("the VE") also
testified. R. at 27-54. The record included the following
factual background for the ALJ to review:
Plaintiff
testified that she lived alone in Norfolk, Virginia both
during the period of alleged disability (March 20, 2012 to
March 16, 2014) and at the time of the September 30, 2015
hearing. R. at 31. She is a high school graduate who has
completed some college courses at a local community college.
R. at 29-30. Beginning in approximately January 2000 until
January 2012, Plaintiff worked as an administrative clerk at
the Norfolk Airport Authorities, R. 32-33, which the VE
characterized as a light, semi-skilled occupation as
performed by Plaintiff, R. at 47. Because of her
responsibility for receiving and distributing the mail
(including large packages), manual opening and closing of
runways, and subsequent glitches in the implementation of an
automated system, Plaintiffs duties included an appreciable
amount of physical exertion such as constant standing,
walking, lifting, etc. R. at 44-46. Plaintiff testified that
in January 2012, her employment at the Norfolk Airport
Authorities was terminated, but even if she had not been laid
off, due to her pain levels she "would have had to quit
- to leave that job. I would not have been able to stay there
and do that job." R. at 35. Beginning in approximately
2012, Plaintiff was reportedly experiencing significant pain
levels (8 or 9/10) in her lower back, legs, knee, and pain in
numbness in her hands that was affecting her ability to work,
drive, walk, stand, and sit. R. at 30, 32, 33-35, 40-41. On
March 20, 2012, Plaintiff was five feet, two inches tall and
weighed one hundred and ninety-six (196) pounds with a BM[I]
¶ 35.8. R. at 13 (citing R. at 272-300 ("Exhibit
2F")). Despite her pain, near the end of 2013, Plaintiff
attempted to return to the workforce, working in an office
and in a warehouse; however, Plaintiff lasted less than a
week at both positions due to Plaintiffs pain levels (8/9 out
of 10), and the warehouse position's requirement that
Plaintiff stand for the duration of the work day and be able
to lift things. R. at 37-39. Subsequently, however, Plaintiff
began working as an accounting tech in March 2014 and was
still in that employment at the time of the hearing before
the ALJ. R. at 31.
Medical
Records
Plaintiffs
medical history prior to the amended alleged onset date of
disability is significant for a long history of lower back
pain resulting from three automobile accidents, one in 2002,
one in June 2006, and one in November 2008. R. at 16, 233.
Plaintiff initially began pain management treatment with Dr.
Beth Winke, M.D. ("Dr. Winke") on or about December
13, 2010. R. at 16, 298-300. On or about February 21, 2011,
after reviewing an MRI of Plaintiff s thoracic spine, Dr.
Winke found moderate disc protrusion and extrusion and
performed a steroid injection for pain relief, and then a
second injection was administered on May 26, 2011. R. at 16,
294-97. At a follow-up visit on June 26, 2011, Plaintiff
reported a ninety-five percent (95%) reduction in pain. R. at
293. However, in March 2012, Plaintiff returned for an
additional injection and also for complaints of knee pain. R.
at 280-84. On March 20, 2012 (the amended onset date),
Plaintiff returned for pain management treatment with Dr.
Winke, who provided Plaintiff with prescription refills and a
brace for her right knee, the latter of which Plaintiff
testified did "not really" help. R. at 16, 35, 225,
276. At the end of April 2012, Plaintiffs health insurance
through her previous employment ran out and she was out of
treatment for approximately one year before resuming
treatment at the Park Place Medical Center ("Park
Place") which provides low-cost medical care. R. at
35-36, 225. Park Place prescribed a muscle relaxer and
ibuprofen, but that reportedly did nothing to alleviate
Plaintiffs "intense" pain. R. at 36, 313-66.
Dissatisfied with the care she was receiving at Park Place,
and having recently found employment at an accounting office,
Plaintiff began treatment at the Sentara Ambulatory Care
Center Clinic ("the Clinic") in the beginning of
2014, where Plaintiff received prescriptions for Neurontin
(brand name gabapentin) and Ultram which reduced Plaintiffs
pain levels (6 out of 10) and allowed her to return to the
workforce at a desk job on March 17, 2014. R. at 31, 36-38,
225, 570-627 ("Exhibit 12F"). The Clinic also
treated Plaintiff for the numbness and pain in her hands
beginning on March 27, 2014. R. at 40, 570-627 ("Exhibit
12F"). Plaintiff would later undergo surgery on her
right hand to alleviate her symptoms of carpal tunnel
syndrome, with a planned surgery on her left hand. R. at
42-43.
Vocational
Expert Testimony
As
previously noted, at the September 30, 2015 hearing, the VE
appeared and testified. When asked whether a hypothetical
individual with Plaintiffs age, education, and work
experience, limited to sedentary work but the ability to lift
and carry from waist to chest level, and with the additional
limitations of walking no longer than one block at a time on
a flat even surface at a slow pace, stand no longer than
fifteen minutes at a time and sit no longer than fifteen to
thirty minutes at a time before having to stand for a few
minutes, avoid climbing ladders, ropes, scaffolds, crawling,
and kneeling, perform other postural movements occasional,
avoid constant fingering, grasping, handling and reaching,
and avoid working around hazards such as moving, dangerous
machinery and unprotected heights, could perform Plaintiffs
past work, the VE answered "[n]o your honor, they could
not perform the past work." R. at 49. The VE opined that
the past work was actually performed at a light level, but
the exertional limitations described by the ALJ's
hypothetical reflected a sedentary work limitation. R. at 49.
Based on the ALJ's first (sedentary) hypothetical, the VE
stated that there were three positions available at this
sedentary level including unskilled work as an order clerk,
food and beverage, as a call-out operator, and as a
surveillance system monitor in all industries. R. at 50. For
the second hypothetical, when asked if the same three
positions were available if the first hypothetical was
slightly modified such that the individual was limited to
occasional fingering, grasping, handling, and reaching with
the right upper extremity (as opposed to "avoid[ing]
constant fingering, grasping, handling, and reaching), the VE
testified that only the position of surveillance system
monitor would be available to the hypothetical individual. R.
at 51. See also R. at 48-49 (asking the VE to assume
the hypothetical individual limitation of "avoid
constant fingering, grasping, handling, and reaching").
The VE further testified that if the first hypothetical
individual needed to lie down or rest two or more hours in an
eight hour workday, that none of the three previously
mentioned positions (order clerk, food and beverage, call-out
operator, and surveillance system monitor in all industries)
would be available because "that would exceed the
tolerance of the break periods and also limits the
person's productivity to below [eight-five] percent which
is the minimal amount of productivity that is required."
R. at 52.
Closing
Remarks
At the
end of the hearing, Plaintiff agreed to amend her request to
a closed period of disability, from March 20, 2012 until
March 16, 2014. R. at 53. Additionally, Plaintiffs counsel
gave closing remarks in support of Plaintiff s request for a
closed period of disability. Therein, Plaintiffs counsel
argued that "for the last several months of the alleged
closed period [March 20, 2012 to March 16, 2014], she would
have been disabled under the grids. Her current work capacity
is consistent with the sedentary [residual functional
capacity], in fact if she - if she wasn't working today,
she would grid out anyway given the [residual functional
capacity]." R. at 53.
III.
THE ALJ'S FINDINGS OF FACT ...