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Ramsey v. Berryhill

United States District Court, N.D. Florida, Panama City Division

March 19, 2018

PAMELA RAMSEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.

         This case is before the court pursuant to 42 U.S.C. § 405(g) for review of a final determination of the Commissioner of Social Security (“Commissioner”) denying Pamela Ramsey's Title II application for disabled widow's benefits under 42 U.S.C. § 402(e). The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 for all proceedings in this case, including entry of final judgment. ECF No. 10. After careful consideration of the entire record, the decision of the Commissioner is reversed and remanded for further proceedings.

         I. Procedural History and Facts

         On November 21, 2013, Plaintiff filed an application with the Social Security Administration for disabled widow's benefits under Title II of the Social Security Act and an application for Supplemental Security Income under Title XVI of the Social Security Act. Tr. 102, 215-21.[1] She later withdrew the application for SSI because the date last insured was 2007. Tr. 63-64.

         In her application for disabled widow's benefits, Plaintiff alleged that she and Paige Jackson Ramsey were married on October 30, 1993. Tr. 209. Plaintiff further alleged that her marriage ended by his death on November 15, 2013. Tr. 209, 94. She alleged a disability onset date of November 15, 2013, citing back problems, Lupus, anxiety, seizures, depression, kidney problems, leg problems, and headaches. Tr. 209, 91. Plaintiff was 54 years and six months of age when she filed the application and turned age 55 on April 25, 2014, approximately two years before issuance of the decision in this case. Plaintiff's claim for disabled widow's benefits was denied initially on March 11, 2014, and upon reconsideration on July 24, 2014. Tr. 132-39, 146-57. A hearing was held on April 18, 2016, before Administrative Law Judge (ALJ) Jim Beeby, at which Plaintiff appeared with counsel. Vocational expert Jane Colvin-Roberson also appeared and testified. Tr. 37-78.

         On June 22, 2016, The ALJ issued a decision denying Plaintiff's application. Tr. 20-36. Plaintiff sought review in the Appeals Council, which denied review on May 18, 2017. Tr. 1-5. Thus, the decision of the ALJ became the final decision of the Acting Commissioner and is ripe for review. Accordingly, Plaintiff, appearing through counsel, filed a complaint for judicial review pursuant to 42 U.S.C. §§ 1381, et seq., and 42 U.S.C. § 405(g). See ECF No. 1. Respondent filed an answer on October 17, 2017, ECF No. 11, and both parties filed memoranda in support of their positions. ECF Nos 18, 19. On Plaintiff's motion, she was given leave to reply to the Commissioner's memorandum and the reply was filed on March 15, 2018. ECF No. 22.

         A. The Hearing

         At the hearing held April 18, 2016, Plaintiff testified that she lives in subsidized housing with a caregiver due to Plaintiff's seizures. Tr. 43-44. She said she has not had a driver's license since 2000, although that date is approximate. Tr. 44. Plaintiff received a GED in 1979 and currently receives food stamps. She last worked for a doctor in 2003 as a patient receptionist checking in patients, pulling their charts, checking their insurance, taking them to treatment rooms, and doing general office work. Tr. 72. She resigned from her job in 2003 to take care of her husband who had two open heart surgeries. Tr. 46. Her back surgery also made it hard for her to work at that time. Tr. 47. In the past, she also performed the job of cashier. She has no current income. Tr. 45-46, 70-71.

         Plaintiff testified that her daily activities include drinking her coffee in the morning and straightening up the house. She eats microwave food unless her caregiver cooks. Tr. 48. Plaintiff watches television during the day. She is able to bathe and dress. Tr. 49. She testified that she can walk for about ten minutes at a time and can sit for about 30 minutes. Id. She can lift and carry about five to seven pounds without pain. Tr. 49, 62. She takes Fioricet for headaches and Phenergan for nausea, both of which are prescribed by nurse practitioner Kristine Serian. Tr. 50.

         When asked what bothers her most and keeps her from working, Plaintiff identified her seizures, which she said has been a problem for about seven years. Id. She said her seizures are unpredictable and happen about three or four times a month. Tr. 51. Sometimes the seizures are grand mal, which she said occur about twice a month. She takes Keppra for her seizures, but still has them. Tr. 50-51, 66. Plaintiff testified that after a seizure, she is confused and it takes 30 minutes to several hours to recover. Tr. 65-66, 67. Her seizures are very scary especially when she falls, so she mostly stays home. Tr. 66. She once fell through a glass coffee table during a seizure. Tr. 67. She said she does not go to the emergency room because she has no insurance. Id.

         Her next most bothersome problem that affects her ability to work is anxiety disorder, for which she said she is not treated but should be. Tr. 52. Plaintiff testified that she saw a Social Security psychologist several years ago after her husband died. Tr. 63. Plaintiff testified she learned in August of 2015 that she is at high risk for stroke due to partially occluded carotid arteries. Tr. 53.

         Plaintiff began seeing Kamel Elzawahry, M.D., in 2002 for back surgeries, neck problems, anxiety, and neuropathy in her left leg. Tr. 54. Plaintiff said she forgot to list back problems as one of her impairments when she made her application. Tr. 55. She testified that her two back surgeries were not totally successful and she still has back pain that radiates down to her legs. Id. Plaintiff said her back pain affects her when she sits, walks, and bends. Tr. 56. She testified she must lie down sometimes during the day due to pain. Tr. 57. She said her knees hurt due to severe osteoarthritis, which affects her ability to walk for any distance. Tr. 58-59. She can only manage about 10 to 20 minutes when shopping. Tr. 60. Plaintiff said she thinks she has fibromyalgia because her whole body hurts. Tr. 60-61. She testified she could not be on her feet for six hours total in a workday, and maybe not even three. Tr. 62.

         Independent vocational expert Jane Colvin-Roberson testified that Plaintiff's past work falls in the category of general office clerk, DOT #219.362-010, light, semi-skilled, SVP of 4.[2] Tr. 74. The ALJ posed a hypothetical scenario describing a person with Plaintiff's same age, education, and prior work experience, who can lift and carry, push, and pull 20 pounds occasionally and 10 pounds frequently, can sit for six hours and stand and/or walk for six hours, can never climb ladders, ropes, or scaffolds, can frequently climb ramps and stairs, and can tolerate occasional exposure to humidity, noise, vibration, hazards, fumes, odors, dusts, gases, poor ventilation, and extreme cold. This person would miss one day of work per month due to seizures. Tr. 75. The vocational expert opined that such a person could perform Plaintiff's past work, as well as that of cashier in a cafeteria or dining room, DOT #211.462-010, for which there are approximately 645, 000 jobs in the national economy; counter clerk, DOT #249.366-101, for which there are just over 72, 000 jobs in the national economy; and sales attendant, DOT #299.677-010, light exertional, SVP of 2, for which there are approximately 65, 000 jobs in the national economy, but significantly fewer for part time. Tr. 75-76.

         In a second hypothetical, the ALJ posed the additional limitation that the person would miss at least two days of work per month due to seizures. Tr. 76. The vocational expert opined that there was no work that this person could perform on a sustained basis. Id. The vocational expert testified that her testimony was not inconsistent with the DOT, but noted that the DOT does not address absenteeism issues. Her testimony on that issue was based on her experience. Tr. 76-77.

         B. The Decision of the Administrative Law Judge

         In the decision issued on June 22, 2016, the ALJ made several findings pertinent to this review. Tr. 23-31. The ALJ found that Plaintiff is the widow of a deceased insured worker and has attained the age of 50, and that the prescribed period ends on March 31, 2019. Tr. 23. The ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset date of November 15, 2013. Id. The ALJ found that Plaintiff has the following severe impairments: spine disorder, seizure disorder, and peripheral neuropathy. Id. The ALJ found that Plaintiff's headaches, fibromyalgia, lupus erythematosus, anxiety and depressive disorder are non-severe impairments, Tr. 23-24, and that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 24-25.

         The ALJ found that Plaintiff has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1576(b) and 416.967(b).[3] Tr. 25. The RFC limitations found by the ALJ are that Plaintiff can lift and carry, push and pull 20 pounds occasionally and 10 pounds frequently; can sit for six hours, and stand and/or walk for six hours with normal breaks in an eight-hour day; can never climb ladders, ropes or scaffolds; can frequently climb ramps and stairs; and can tolerate occasional exposure to humidity, noise, vibration, hazards, fumes, odors, dusts, gases, poor ventilation, and extreme cold. The ALJ determined that Plaintiff would miss one day of work per month due to her seizures. Tr. 25.

         Based on this RFC determination with stated limitations, the ALJ found that Plaintiff is capable of performing past relevant work as a general office clerk, DOT #219.362-010, light exertion, semi-skilled, SVP of 4, which does not require the performance of work-related activities precluded by the RFC. Tr. 30. The ALJ found that Plaintiff could perform this past work as it is generally performed in the national economy. Tr. 31. To the extent that the DOT lists the maximum requirements of occupations as generally performed, and does not take into account the limiting effect of non-exertional limitations such as postural or mental limitations or sit/stand options, the ALJ relied on the testimony of the vocational expert based on her experience and specific knowledge. Id.

         Finally, the ALJ found that Plaintiff has not been under a disability, as defined in the Social Security Act, from November 15, 2013, through the date of the decision, June 22, 2016. Id. Based on these findings, and the reasons set forth in the decision, the ALJ found Plaintiff is not disabled under section 1614(a)(3)(A)[4] of the Social Security Act. Tr. 48.

         II. Legal Standards ...


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