Elliott v. Berryhill

          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 ...