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Vernessia andrews v. Michael J. Astrue

November 15, 2011

VERNESSIA ANDREWS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: William C. Sherrill, Jr. United States Magistrate Judge

MEMORANDUM OPINION

This is a social security case referred to me for ruling, upon consent of the parties, doc. 9, and an order of reassignment. Doc. 11.

Procedural status of the case

Plaintiff filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on August 10, 2006.

R. 151. Plaintiff alleged disability beginning on November 27, 2005, in both applications. R. 14. The applications were initially denied, and after a hearing held on February 10, 2009, the Administrative Law Judge found Plaintiff suffered from the following severe impairments: carpal tunnel syndrome, right wrist fracture with residual hand dysfunction and tendonitis, and left eye disorder. R. 16.*fn1 The ALJ found that although Plaintiff was incapable of performing her past relevant work, she could perform other work (ticket taker, ticketer, and demonstrator) which existed in significant numbers in the national economy and, therefore, was not disabled. R. 17.

Legal standards guiding judicial review

This court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A). Both the "impairment" and the "inability" must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 1272, 152 L.Ed.2d 330 (2002).

The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(a)-(f):

1. Is the individual currently engaged in substantial gainful activity?

2. Does the individual have any severe impairments?

3. Does the individual have any severe impairments that meet or equal those listed in Appendix 1 of 20 C.F.R. Part 404?

4. Does the individual have any impairments which prevent past relevant work?

5. Do the individual's impairments prevent other work?

A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. If the claimant carries this burden, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy. Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must prove that he or she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).

Evidence from the administrative hearing*fn2

Plaintiff was born on June 5, 1956, and was 49 years of age on the alleged disability onset date, R. 21, but was 52 at the time of the hearing. R. 28, 110, 133. Plaintiff lives with her husband and her mother-in-law, and provides limited care for her mother-in-law such as driving her "back and forth to her doctor's appointments." R. 27. Plaintiff completed the eleventh grade and has no other vocational training. R. 28. Plaintiff has past relevant work as a factory worker in the clothing industry, R. 29, and the last time she did that work was in 2004. R. 30. She was able to draw unemployment after the factory closed and she looked for work until she broke her arm. Id.

Plaintiff broke her arm on November 27, 2005, and ultimately had surgery three times for her wrist.*fn3 R. 30-31. Plaintiff said she has not experienced any improvement.

R. 32. She said she can "piddle around" the house with her right hand, "and try to keep it clean a little bit and I get my husband to take the clothes to the laundry room for me and, you know, use my left arm." Id. Plaintiff is right-handed, but is able to "do a little straightening up and pick up the clothes with [her] left hand and everything." Id. Her mother-in-law does most of the cooking. Id. Plaintiff is able to drive a vehicle and uses her left hand to do so because "it puts a strain on [her] right arm to try to hold that steering wheel because right where the plate was in, the bone just aches all the time." Id. Plaintiff drives her mother-in-law to the grocery store and her mother-in-law picks out what she wants and handles the shopping.*fn4 R. 35-36.

Plaintiff said that she has pain when she tries to use her right hand and has "to take some kind of pain tablets, like, Tylenol or BC and quit doing anything for a whole day because it hurts so bad I can't even move it and it's stiff." R. 38. Plaintiff said on an average day, her pain is a seven on a scale of zero to ten, with ten being the worst possible pain. Id. It may sometimes go "up to eight." Id. When her arm "gets to hurting real bad," Plaintiff said that Dr. Williams has given her a prescription for Darvocet, but Plaintiff said she does not have insurance to buy it. R. 40-41.

Plaintiff also complained of eye pain and headaches. R. 33, 39. Plaintiff said she has had headaches all her life. R. 33. When she gets a headache, she takes between two and four "BC's" and has to go "lay down where it's dark, take a[n] ice pack and put it on my head and sleep until the next day or all night where there's no noise or nothing." R. 33. Plaintiff said she had surgery on her left eye when she was "about 11 years old and it was supposed to correct" the eye problem, but did not. R. 39. Plaintiff explained her eye problem was the source of her headaches and said, "My left eye where it went crossed when I was three years old and it pulled the strength out of my eyes by using it." R. 38-39.*fn5 She said that she still has "pain an[d] headaches real bad." R. 39. Because of her headaches, she had to miss work a lot, as much as three or four days a month. R. 34, 39-40. Plaintiff said her vision is okay in her right eye, but she has no vision in her left eye. R. 40. Nevertheless, she passed her driver's test and eye examinations and is able to drive safely. Id.

The ALJ took evidence from Charles Heartsill, a vocational expert, at the hearing. R. 42-49.*fn6 Mr. Heartsill concluded that Plaintiff could not perform her past work, R. 45, but could work as a ticketer, ticket taker, and demonstrator. R. 46-47. Mr. Heartsill also acknowledged that, hypothetically, if an individual experience distracting pain such that the individual was "not able to perform adequate work tasks," this "would preclude the capacity to continue work on a consistent, continuous basis." R. 48. This hypothetical was taken verbatim from a statement by Dr. Williams, Plaintiff's treating physician, which is the basis for the central issue in this case. When first asked this hypothetical, Mr. Heartsill first asked whether Dr. Williams had clarified to what degree pain distracted from work. Id.

Medical Evidence

Plaintiff's medical records from 1991 note that she had headaches and has had them since childhood, "before starting to school." R. 220. The diagnosis was that the "headaches do not appear eye related." Id. She reported reading was not a problem, but she said she had some blurriness. R. 222. She had had a nerve cut in her eye to straighten it. Id. The record indicated Plaintiff "has had migraines all her life" and then had them two to three times a week. Id. A neurological referral was recommended. Id.

On November 27, 2005, Plaintiff fell and was seen in the emergency room of Doctors Memorial Hospital in Bonifay, Florida. R. 226. An x-ray of her right wrist revealed a "fracture on the distal radius at the metaphyseal level" with comminution.*fn7 R. 228. The carpal bones were maintained and the ulna appeared to be intact. Id. A splint and sling were applied and Plaintiff was told to contact Dr. Gilmore the next morning. R. 227. Toradol*fn8 was prescribed. Id.

On January 25, 2006, Plaintiff was seen in the Department of Health for complaints of right arm pain. R. 234. She said that she tripped and fell about two months earlier and was told to contact the doctor's office. Id. Plaintiff said that she did so, but "was unable to afford $1500 that they wanted up front when she called them so she decided to give it some time and see if it would get better on her own because to her knowledge it was not broken." Id. Plaintiff said she wore a splint on the wrist for a couple of weeks as instructed, but she is hoping to start a new job soon and was "having difficulty with ongoing pain and limited motion in that wrist, that is on the Rt. side." Id. After noting the problems with her wrist and reviewing the x-ray films Plaintiff brought with her (which showed overlapping carpal bones on the ulna side), Plaintiff was advised that her problem could not be fixed there. Id. She was ...


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