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Elizabeth anderson-Wilson v. Michael J. Astrue

January 18, 2012


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


This is a social security case referred to me upon consent of the parties and reference by District Judge Paul. Doc. 211. It is concluded that the decision of the Commissioner should be reversed and remanded.

Procedural status of the case

Plaintiff, Elizabeth Anderson-Wilson, applied for disability insurance benefits and supplemental security income benefits. Her last date of insured status for disability benefits was December 31, 2010. Plaintiff alleges disability due to fibromyalgia, low back pain secondary to degenerative disc disease, depression, anxiety, right shoulder pain, and carpal tunnel syndrome, with onset on August 10, 2005. Plaintiff was 45 years of age on July 22, 2008, the date of the commencement of the administrative hearing, has a 12th grade equivalency education, and has past relevant work as a flooring salesperson and a medical billing clerk.

The Administrative Law Judge found that Plaintiff had the residual functional capacity to do a range of medium work, limited to occasional fine fingering, access to the restroom every 2 to 2 1/2 hours, performed wearing an incontinence protection pad, and with no executive or management decision-making. R. 63. The ALJ then determined that Plaintiff can still perform her past relevant work as a flooring salesperson (light exertion, semiskilled) and a medical billing clerk (sedentary, semiskilled), can also other jobs identified by the vocational expert, and thus was not disabled. R. 70-71.

Legal standards guiding judicial review

The issue is 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). *fn1

A disability is 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?

(11th Cir. 2004) (citations omitted). The court must give "substantial deference to the Commissioner's decision." Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). "A 'substantial evidence' standard, however, does not permit a court to uphold the Secretary's decision by referring only to those parts of the record which support the ALJ. A reviewing court must view the entire record and take account of evidence in the record which detracts from the evidence relied on by the ALJ." Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). "Unless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's 'duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.' " Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (citations omitted).

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

At the first portion of the hearing, held on July 22, 2008, Plaintiff testified that she had been fired from her job in August, 2005, and when her unemployment compensation ran out, she applied for social security disability benefits. R. 821-822. She was 45 years old on the date of the hearing. R. 823. She said she was left handed and had completed her GED. Id. Plaintiff said that prior to leaving her employment, her most serious impairments were fibromyalgia and depression. R. 833. She said she also suffered from anxiety. R. 835. She said she went to the hospital in 2003 for treatment for an anxiety attack. Id. She said she also had degenerative arthritis in her shoulder. R. 836. She said she had pain in her shoulder and elbow, but that her physicians said they could not do anything about it, that it was mostly a result of fibromyalgia. R. 837-838. Plaintiff said that she also suffers from impaired ability to concentrate, and she said that she had been diagnosed with attention deficit hyperactivity disorder (ADHD). R. 839. The ALJ said that he thought that ADHD is a childhood disease, but ADD is an adult disease. R. 840. Plaintiff also testified that she suffered from severe headaches. R. 843. She said that recently, Dr. Bailey had said that her headaches were caused by neck and back problems. Id. She said she also suffers from incontinence and high blood pressure. R. 846-847. Plaintiff said that the medications she takes make her tired and nauseous. R. 848. She said that her fibromyalgia makes her extremely tired, and she cannot sleep at night. Id. She said she takes neurontin for restless leg syndrome. R. 848-849.

The hearing continued on November 20, 2008. R. 852. Plaintiff said that neurontin had been discontinued in September. R. 855. She had started taking Baclofen, which she thought was causing dizziness, weakness, headaches, nausea, and irritability. R. 855. She said she needed help when she dressed if buttons were involved. Id. She said she could prepare a simple meal and could drive a motor vehicle. R. 855-856. She said that dusting was painful in her arms, shoulder, and neck.

R. 856. She thought that it would be difficult to sweep, vacuum, or mop a room due to pain in her legs, back, and shoulders. Id. She said that washing dishes was difficult because she could not stand for very long. R. 857. She said she could remove the trash from a container and shop for groceries, by shopping was difficult. Id. She did not use a cane to walk. R. 858. During the day, Plaintiff said she watched television for a couple of hours, and had access to the internet on a computer and used the internet. R. 858-859. She said that she tried to visit her mother-in-law across the street twice a day.

R. 860. She said that in 2007, she went with her daughter to Indiana for a visit with her family and her daughter drove. R. 863. They stayed two weeks. R. 864.

Plaintiff said that her pain was a big problem, and that she felt like she had flu all of the time all over her body. R. 866. She said that it is hard for her to walk because walking creates muscle spasms and pain "all over." R. 867. She said that sometime she can go down her steps, sometimes she can cross the street to her mother-in-law's home, and sometimes she can walk to the mailbox. R. 868. She said she could sit for only about 15 to 30 minutes. Id. The most comfortable position was lying down with a heating pad. Id. She said that her hands tingled, felt "dead," and she had problems with manipulation. R. 869. She planned to have bilateral carpal tunnel syndrome surgery. Id.

Plaintiff's representative asked Plaintiff to describe how she does laundry, and she said she had a chair by the washer and puts clothing into the washer. R. 870. She said she cannot put the clothes into the dryer or remove them from the dryer, but she can fold them if someone brings them to her. Id. She could not make her bed, clean, or iron. R. 870-871.

The ALJ asked the vocational expert to assume a claimant who was 46 years old, with a general education diploma, with past relevant work as a flooring sales person, a clerk, inventory clerk, and medical billing clerk. R. 874-876. The expert categorized the flooring sales job as a light duty job, SVP 4, and the medical billing clerk job as sedentary, SVP 3.*fn3 R. 879, 881. The vocational expert was asked to assume a hypothetical person who was limited to light work, must avoid ropes and ladders, and must have a sit or stand option, up to five times an hour, for sedentary work. R. 881. The expert was further asked to assume that the person needed to have the opportunity to go to the bathroom at 2 to 2 1/2 hour intervals, could do no executive or management work, and was limited to simple, routine work at the low semi-skilled level. R. 881-882. The vocational expert said that such a person could perform Plaintiff's past relevant work as a flooring sales person and a medical billing clerk. R. 882-884. The expert said that the hypothetical person could also do light work jobs as a sales attendant or a recreation aide, or the sedentary job of surveillance system monitor. R. 885-886. The expert said that if the limitation imposed by Dr. DePaz existed, that Plaintiff can work only 20 hours a week, then there are no jobs in the national economy which she can do, and she would be unemployable. R. 889. The expert also said that if a person cannot walk up to two hours a day, he or she cannot even do sedentary work. R. 890. The ALJ noted that sedentary work only requires an ability to walk up to two hours a day, but agreed that inability to walk more than 10 feet would preclude all kinds of work. R. 890-892.

Medical evidence

A medical note dated April 19, 2001, probably from the Alachua County Health Department, states that Plaintiff had a long history of muscle pain, diagnosed as fibromyalgia, and right shoulder and low back pain. R. 522.

Plaintiff had a lumbar MRI on April 19, 2001. R. 678. At L4-5 there was marked disc desiccation, and broad left foraminal and extra-foraminal disc protrusion, but without nerve root impingement. Id. An annular tear was found at L3-4, but without disc bulge or protrusion. Id. An MRI the same day of Plaintiff's thoracic spin revealed mild degenerative changes. R. 679.

On June 4, 2001, Plaintiff complained of anxiety and back pain. R. 523. The diagnosis was anxiety, fibromyalgia, and gastritis. Id.

On November 5, 2002, Plaintiff was seen by a physician with the initials "KWK."

R. 313-314. She had been referred from vocational rehabilitation with chronic back pain. R. 313. He noted that Plaintiff had had a long history of chronic pain throughout her spine, radiating into her hips and shoulders, bilaterally. Id. He noted that she had been managed by Dr. Scott for fibromyalgia. Id. She said that she was able to tolerate work as a flooring installer due to the varied positions, but could not tolerate sitting for a prolonged period of time. Id. Multiple medications had not helped. Id. On examination, the physician found Plaintiff to be in "no acute distress," with diffuse tenderness in the paraspinal muscles and into the trapezius and hip regions, but with no motor or sensory deficits. Id. He noted that the results of MRIs were normal in the cervical, thoracic, and lumbar spinal regions, with minimal degenerative changes at L4-L5. Id. His diagnosis was fibromyalgia and chronic pain. Id. He referred her to rehabilitation medicine. R. 314. He thought that surgery for a rotator cuff tear and mild impingement was not indicated since Plaintiff had fibromyalgia. Id. The physician referred Plaintiff to Dr. Oscar DePaz for pain management and further potential rehabilitation and copied him with the report. Id. Dr. DePaz works with other physicians in Rehabilitation Medicine Associates, P.A. R. 312.

On February 13, 2003, Plaintiff had a psychological evaluation for vocational rehabilitation by Ernest J. Bordini, Ph.D., and Judith Migoya, Psy.D., a neuropsychology resident. R. 283-293. Plaintiff felt that she had never been able to reach her potential due to emotional problems and chronic pain. R. 283. Her father had been physically and emotionally abusive when she was a child, and Plaintiff ran away from home at age 14 with her boyfriend. R. 284. She obtained her GED at age 18 and she married her boyfriend at that age. Id. Her husband was in prison for years, and she raised her daughter on her own. Id. She reported that she was able to drive, cook meals, keep a checkbook, do laundry, and manage her own finances. R. 285. She admitted difficulties at work due to absenteeism, tardiness, and problems with sustaining employment in general. Id. She reported that she was uncomfortable around new people. Id. She described a history of depression and anxiety since childhood, and fair health. Id. and R. 286. She reported chronic headaches, and chronic pain in her hands, arms, shoulders, legs, fee, back, buttocks, neck, chest, and face associated with fibromyalgia. R. 287. She also complained of problems with concentration and memory. Id.

On examination, no significant pain behaviors were noted. Id. She was found to have adequate concentration and memory, both immediate and remote, on testing. Id. Her mood appeared to be anxious and depressed, and she was tearful throughout the interview. R. 288. She said her depression had grown worse over the last six months. Id. She reported moderate symptoms of depression and anxiety. Id. Her score on the depression scale was significantly elevated. R. 290. On testing, her reading ability was average. R. 289. Her somatic complaint score was elevated, "suggesting an unusual degree of concern about physical functioning and health matters and probable impairment arising from somatic symptoms." Id. It was found that her "self-image may be largely influenced by a belief that she is handicapped by her poor health." Id. It was concluded that Plaintiff's "tendency to convert psychological conflicts to physical symptoms is a contributor to her chronic physical problems." R. 292. Her score on the anxiety scale was also significantly elevated. R. 289. It was found that she "is likely to be plagued by worry to the degree that her ability to concentrate and attend are significantly compromised." Id. It was found that "[o]vert physical signs of tension and stress, such as sweaty palms, trembling hands, complaints of irregular heartbeats, and shortness of breath, are also present." Id. Plaintiff's score on the schizophrenia scale was also significantly elevated, with a predication that she would be socially isolated, and her thought processes would be marked by confusion, distraction, and difficulty in concentration. R. 290. The diagnosis was major depression, severe, recurrent; somatization disorder; anxiety disorder, NOS; borderline personality disorder; fibromyalgia, chronic fatigue syndrome, headaches, arthritis and a history of head and back injuries. R. 292. Individual psychotherapy was recommended. Id.

On February 18, 2003, Plaintiff was seen by Anuj Sharma, D.O., and Dr. DePaz.

R. 309, 307. Dr. Sharma reported that Plaintiff said that Dr. Brock had diagnosed fibromyalgia, but he thought that Plaintiff had "a very poor understanding of what fibromyalgia is." Id. He noted that her pain was "all over," and not associated with trauma. Id. Plaintiff was then working as a flooring installer and denied that she had any disability. R. 310. On examination, Dr. Sharma found that Plaintiff had pain with end stage range of motion bilaterally in the shoulders, but otherwise had full range of motion in the extremities. Id. Dr. Sharma detected "acute tender points" on palpation bilaterally at the medial epicondyle, lateral epicondyle, bicipital tendons, T2 interspaces, the greater trochanters, and the pes anserine bursa, and on the thoracic, cervical, and lumbar spine, R. 310-311, which appears to be 15 trigger points, counting each bilateral trigger point as two. Spurling's maneuver and straight leg raising were negative, and her motor strength was intact. R. 311. Dr. Sharma's diagnosis was fibromyalgia and cervical and lumbar spondylosis. Id. He said that Plaintiff's symptoms matched a diagnosis of fibromyalgia "almost perfectly." Id. He prescribed Ambien for sleep, Skelaxin for muscle relaxation, and stretching and aerobic exercises for fibromyalgia. Id.

On March 1, 2004, Plaintiff was seen by Runi A. Foster, M.D., for a pulmonary consultation. R. 383. She had been experiencing ...

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