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Sharmel Sullivan v. Michael J. Astrue

November 3, 2011

SHARMEL SULLIVAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Plaintiff Sharmel A. Sullivan ("Claimant") brings this action under 42 U.S.C. §405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Claimant raises the following issues: 1) whether the ALJ improperly failed to include limits found in concentration, persistence or pace in her RFC Assessment (and in posing hypothetical questions to the Vocational Expert); 2) whether the ALJ improperly ignored evidence of the State Agency Doctor's opinions; 3) whether the ALJ's credibility finding was patently wrong; and 4) whether the ALJ properly considered evidence of Claimant's treating therapist's opinion.*fn1 For the following reasons, the Court grants Claimant's motion for summary judgment and denies the Commissioner's motion to affirm the Commissioner's decision.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially filed for DIB on March 15, 2007 and SSI on August 16, 2007, alleging a disability onset date of July 6, 2006. R. 131-36, 150-52. The Social Security Administration ("SSA") denied her application on August 24, 2007. R. 70-74. Claimant then filed a request for reconsideration, which was denied on January 14, 2008. R. 75-83. Thereafter, Claimant requested a hearing before an ALJ. R. 94-98.

On November 23, 2009, Administrative Law Judge Sherry Thompson ("ALJ") presided over a hearing at which Claimant appeared with her attorney, Ms. Revel. R. 33-66. Claimant and Richard T. Fisher, a vocational expert, testified at the hearing. On December 22, 2009, the ALJ issued a decision finding Claimant was not disabled under the Social Security Act. R. 6-22. Specifically, the ALJ found Claimant had the "residual functional capacity to perform sedentary work" and was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." R. 14, 22.

Claimant then filed for review of the ALJ's decision to the Appeals Council. R. 27-30. On October 20, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1-5. Claimant subsequently filed this action for review pursuant to 42 U.S.C. §405(g).

B. Hearing Testimony - November 23, 2009

1. Sharmel A. Sullivan - Claimant

At the time of the hearing, Claimant was twenty-eight years old. R. 36. Claimant completed education through the twelfth grade and one semester of college. R. 38. She was enrolled in special education classes beginning in second grade. Id.

Claimant's most recent employment as a packer at a warehouse ended on July 6, 2006, her alleged onset date. R. 39. Claimant has worked various temporary jobs since July 6, 2006, through a temporary agency, but she is not currently employed. R. 39-42. Past positions include newspaper and pizza deliverer, laundry room worker at a nursing home, and picker and packer at a warehouse. R. 178, 191.

Claimant testified that she has been taking indomethacin for gout in her left foot. R. 40. Even with medication, Claimant asserted her foot is swollen constantly, she has a hard time standing or walking, and sometimes the pain is so severe it wakes her up. R. 41. She can stand for no longer than "at least a couple hours, if that" and her pain is constant. R. 44, 47. Claimant keeps her leg elevated and can sit for "about two or three hours at the most," after which she needs to stand for a few seconds before she can move. R. 49-50. She struggles with concentration when she feels pain in her left foot, which occurs about three days a week. R. 58. Claimant sees Dr. Bender at Will Grundy Medical "maybe every other month" for her gout. R. 43.

Claimant sees Dr. Chung every month for treatment of bipolar disorder. R. 43-44. She testified to having "my up days and I have my low days." R. 44. On bad days, Claimant is depressed, does not want to eat or go anywhere, is very emotional, and will not answer the phone. R. 45. On her good days, Claimant is able to go to functions with her church community and friends. R. 44-45.

Claimant attends church regularly and also volunteers. R. 51. She reported no difficulties interacting with others, including strangers. R. 51. Claimant also speaks at recovery meetings to "help people out with my telling them about using drugs." R. 54. Claimant testified she stopped using drugs and drinking alcohol four years and nine months ago. R. 54-55.

Claimant is able to do household chores, including laundry, cleaning, dusting, making the bed, and washing dishes. R. 54. She knows how to operate a computer and a cell phone.

R. 56.

According to Claimant, she struggles with memory. R. 56. She has "to write everything down." R. 56. She sets an alarm to wake up in the morning in order to take her daily medication. R. 56. She receives telephone calls to remind her to attend church services and activities. R. 57.

Claimant takes 800 milligrams of Seroquel a day, 100 milligrams of Zoloft a day, and 15 milligrams of Buspar a day. R. 45. She reported no side-effects other than initial weight gain. R. 46. Claimant noted that she may not sleep for two or three days, but taking Seroquel helps her sleep. R. 50.

2. Richard Fisher - Vocational Expert ("VE")

Richard Fisher testified as a vocational expert. R. 60. The VE noted that Claimant's position as an outside deliverer was light, unskilled work with a Specific Vocational Preparation ("SVP") of 2. Id. Claimant was also employed as a hand packager, which is considered medium, unskilled work with a SVP of 2. Id. Claimant was also employed as a machine washer, which is categorized as medium, semi-skilled work with a SVP of 4. Id.

While questioning the VE, the ALJ asked whether a twenty-eight year old individual with the same education, work experience, and residual functional capacity as Claimant, limited to light work with frequent climbing of ramps and stairs, occasional climbing of ladders, ropes and scaffolds, and frequent balancing, stooping, kneeling, crouching and crawling,*fn2 could perform Claimant's past relevant work. R. 62. The VE stated that this hypothetical person would be able to perform Claimant's previous work as an outside deliverer. R. 62. The VE testified that this individual could also perform positions such as an office machine operator (except computers), photocopying machine operator, photographic machine operator, routing clerk, maid and housekeeping cleaner. R. 62-63.

Using the same hypothetical individual, the ALJ altered the question by asking whether the individual, limited to sedentary work, who had to alternate from sitting to standing after two hours and then stand for a period of five to ten minutes, and who had to elevate her left foot to stool level height approximately ten to twelve inches, could perform Claimant's past relevant work. R. 63-64. The VE stated that this hypothetical person could perform as a food or beverage order clerk, telephone quote clerk, cutter and paster for press clippings, and a microfilm document preparer. R. 64.

The ALJ then changed the hypothetical to an individual who could perform either light or sedentary work, but who has no ability to remember or organize procedures, and who has seriously limited ability to carry out short and simple instructions, such that she cannot maintain attention for a two hour setting. R. 64. The VE responded that such an individual would not be able to perform any of Claimant's past relevant work. R. 64. When asked by the ALJ if this individual could perform any work that exists in the national economy, the VE responded in the negative. R. 64.

The VE testified that customary tolerances for absences from unskilled jobs are one time per month. R. 64. He stated that reminder phone calls for employees to come in to work, while not unheard of, are not expected such that "as a new employee you wouldn't last if you required a reminder call with any frequency." R. 65.

C. Medical Evidence

1. Provena St. Joseph ...


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