Rivett v. Colvin

JOANN RIVETT, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security¹

No. 2:11-0111

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NORTHEASTERN DIVISION

October 8, 2014

To: The Honorable John T. Nixon, Senior District Judge

REPORT AND RECOMMENDATION

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Disability Insurance Benefits ("DIB"), as provided by the Social Security Act.

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is not supported by substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff's motion for "judgment on the pleadings" (Docket Entry No. 9) should be GRANTED to the extent that the case should be remanded as provided herein.

I. INTRODUCTION

In July 2006, the plaintiff protectively filed an application for DIB, alleging a disability onset date of October 15, 2005, due to anxiety, depression, fibromyalgia, sleep apnea, calcium deficiency, and irritable bowel syndrome. (Tr. 13, 129, 212-17, 239-54.) Her application was denied initially and upon reconsideration. (Tr. 91-92, 121-23, 126-29.) The plaintiff appeared and testified at a hearing before Administrative Law Judge George L. Evans, III, ("ALJ") on November 18, 2008. (Tr. 73-90.) On April 15, 2009, the ALJ entered an unfavorable decision. (Tr. 106-15.) The plaintiff filed a request for review of the ALJ's hearing decision, and on October 26, 2009, the Appeals Council entered an order remanding the case to the ALJ. (Tr. 117-20.) The Appeals Council's order specified several reasons for remand, including "new and material evidence" from the Department of Veterans Affairs ("VA"), "indicat[ing] that the [plaintiff] was granted entitlement to individual unemployability at the 100 percent rate effective September 15, 2008 due to fibromyalgia." (Tr. 118.)

Upon remand, a second hearing was held before the ALJ on May 25, 2011 (tr. 31-72), and the ALJ entered a second unfavorable decision on June 3, 2011. (Tr. 13-25.) On September 12, 2011, the Appeals Council denied the plaintiff's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.)

II. BACKGROUND

The plaintiff was born on January 12, 1958 (tr. 239), and she was 47 years old as of her alleged disability onset date. She is married with no children, attended but did not complete college,and served in the United States Air Force.² (Tr. 34, 38, 212-13, 269.) She has worked in military and civilian jobs as an administrative assistant, personnel clerk, and personnel clerk supervisor. (Tr. 38, 66, 269-76.) She was medically discharged from the military in November 2005 with service connected disabilities including, inter alia, fibromyalgia, sleep apnea, and major depressive disorder. (Tr. 21, 204-11.) In January 2009, she was awarded individual unemployability benefits by the VA at the 100% rate effective September 15, 2008.³ (Tr. 93-102.)

A. Chronological Background: Procedural Developments and Medical Records

The plaintiff received the majority of her medical care at VA clinics and hospitals. (Tr. 382-418, 474-85, 498-520, 578-777, 867-1120.) She received frequent treatment for fibromyalgia as well as osteoarthritis primarily in her feet, hips, and spine. (Tr. 100-01, 206-08, 400-18, 474-80, 507-14, 548-72, 580-603, 627-777, 988-89.) She also received treatment for sleep apnea and bunions, and she had arthroscopic knee surgery in 2011. (Tr. 387, 406-09, 413-18, 474-79, 508-13, 580-603, 612-13, 649-50, 668-70, 694-95, 839, 882, 943, 999-1113, 1115-20.)

On February 22, 2011, Dr. Horace Watson, an orthopaedic specialist, performed a consultative physical examination. (Tr. 839.) The plaintiff reported experiencing "chronic pain" in her neck, low back, lower extremities, shoulders, elbows, wrists, knees, and feet. Id. Onexamination, she demonstrated full range of motion in her spine and joint extremities with 5/5 motor function in her extremities, negative straight leg raises, no muscular atrophy or weakness, and normal deep tendon reflexes. Id. She had 50% range of motion of the metatarsophalangeal joint of her great toe on both feet. Id. Dr. Watson completed an assessment of the plaintiff's physical ability to do work-related activities in which he opined that she could lift/carry up to twenty pounds occasionally and ten pounds frequently; sit, stand, or walk for three hours each in an eight-hour workday; occasionally use her hands to reach, handle, finger, feel, push, and pull; occasionally use her feet to operate foot controls; occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl; but never climb ladders or scaffolds. (Tr. 833-36.) He also opined that she could never be exposed to unprotected heights or moving mechanical parts; could occasionally operate a motor vehicle; and could occasionally be exposed to humidity, wetness, dust, odors, fumes, pulmonary irritants, and extreme temperatures. (Tr. 837.)

In addition to her physical impairments, the plaintiff also received psychiatric treatment for depression. (Tr. 362-65, 429-32, 443-47, 488-97.) In 2005, she was assigned a Global Assessment of Functioning ("GAF") score of 45, indicating serious symptomatology. (Tr. 400-04.) In September 2006, her treating psychologist, Dr. Stephen Moore, diagnosed her with major depressive disorder. (Tr. 488, 493-94.) In December 2006, Dr. Moore described her "multiple medical and psychiatric problems" as "chronic in nature" and opined that it would be "difficult for her to handle the cognitive, physical and psycho-social aspects of civilian employment." (Tr. 488.) Dr. Moore completed an assessment of the plaintiff's mental limitations and opined that she had "poor" abilities in a number of work-related areas, including social functioning, concentration, persistence, and pace,and the ability to adapt. (Tr. 489-91.) DDS psychological consultants opined that the plaintiff had no more than mild to moderate mental limitations. (Tr. 448-73, 521-38, 825-31.)

B. Hearing Testimony

At the second hearing held on May 25, 2011, the plaintiff was represented by counsel, and the plaintiff and the vocational expert ("VE"), Katharine Bradford, testified. (Tr. 31-72.) The plaintiff testified that she worked in administrative positions while in the Air Force and that she was "denied a promotion because of [her] inabilities to do [her] duties." (Tr. 38-39.) She explained that "medical people and [her] supervisors in consensus determined that [she] couldn't perform the responsibilities of [her] job" and that "they thought it was in [her] best interest to go for a medical retirement." (Tr. 40.) She said that, in the six months before her retirement, she "did not miss any significant amount of work" but that she "[was not] functional at work." (Tr. 44.) She testified that, after retiring from the military, she attempted to work as a cashier at Lowe's for two months but was unable to perform the work. (Tr. 42-43.) She testified that she receives approximately $2,600 a month in benefits from the VA. (Tr. 35, 48.)

The plaintiff testified that fibromyalgia, osteoarthritis, depression, and sleep apnea prevent her from being able to work. (Tr. 41-42.) She explained that fibromyalgia causes extreme pain in her joints, particularly in her hands, shoulders, knees, and hips. (Tr. 50.) She related that it is "extremely painful" to squat or lift and that it is painful to sweep, vacuum, mop, carry laundry, or wash dishes. Id. The plaintiff said that she tries to exercise but is not able to do so consistently due to pain and that she also has difficulty handwriting, typing, and using a computer mouse. (Tr. 51-52, 57.) She testified that she takes a nap "almost every single day" due to physical fatigue caused bysleep apnea and side effects from her medications. (Tr. 56.) She said that she has a driver's license and is able to drive and that her hobbies include making greeting cards, reading, bird watching, and gardening. (Tr. 35-37.) The plaintiff testified that "towards the end of [her] military career . . . she started becoming depressed and . . . emotionally unstable and incapable of doing [her] job." (Tr. 54.) She said that she does not trust people and does not like being around people and that she has difficulty concentrating. (Tr. 53-54.) She related that she receives mental health therapy and takes antidepressant medication. (Tr. 54.)

The VE classified the plaintiff's past work as a "supervisor, personnel clerk" as sedentary and skilled; her past work as a personnel clerk as sedentary and semi-skilled; and her past work as an administrative assistant as sedentary and skilled. (Tr. 66.) The ALJ asked the VE a series of hypothetical questions, which taken together, describe an individual with the residual functional capacity to perform work at the light exertional level, who must be able to sit or stand at will, can occasionally bend, stoop, or reach overhead, can never climb or crawl, cannot perform frequent fine manipulation with the upper extremities, cannot perform frequent operation of foot controls, and is limited to jobs that are not dependent on close interaction with the public, coworkers, or supervisors. (Tr. 66-68.) The VE testified that a person with these limitations could not perform the plaintiff's past relevant work but could work at the light, unskilled level as an assembler, inspector, and machine tender. (Tr. 67-69.) The plaintiff's attorney asked whether adding limitations precluding frequent handling or frequent gross manipulation would affect the availability of jobs, and the VE testified that these limitations would preclude any unskilled work. (Tr. 69-70.) The VE also testified that a person who regularly needed to take 1-2...