United States District Court, N.D. Florida, Panama City Division
MEMORANDUM OPINION AND ORDER
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.
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.
Procedural History and Facts
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. She later
withdrew the application for SSI because the date last
insured was 2007. Tr. 63-64.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
The Decision of the Administrative Law Judge
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.
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). 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.
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
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) of the Social Security Act.
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