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Mosteller v. Colvin

United States District Court, N.D. Illinois, Eastern Division

August 28, 2014



JEFFREY T. GILBERT, Magistrate Judge.

Claimant Melynda Mosteller ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision of Respondent Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), denying her applications for disability insurance benefits. This matter is before the court on the parties' cross-motions for summary judgment [DE##43, 45]. Claimant argues that the decision of the Administrative Law Judge ("ALJ") denying her applications for disability insurance benefits should be reversed or, alternatively, should be vacated and this case should be remanded to the Social Security Administration ("SSA") for further proceedings. In support of her motion for summary judgment, Claimant raises the following issues: (1) whether the ALJ erred in finding that Claimant's impairments did not meet or medically equal a listing; and (2) whether the ALJ sufficiently considered Claimant's limitations when making his residual functional capacity ("RFC") determination.

For the reasons discussed herein, Claimant's motion for summary judgment [DE#43] is denied. The Commissioner's motion for summary judgment [DE#45] is granted, and the decision of the Commissioner is affirmed.


A. Procedural History

Claimant filed an application for disability insurance benefits on September 22, 2006, alleging a disability onset date beginning November 1, 2004. R. 101-06. The SSA denied the application on February 9, 2007, and again upon reconsideration on August 1, 2007. R. 59-60. Claimant filed a timely request for an administrative hearing (R. 74), which was held before an ALJ on March 17, 2009 (R. 20-58). Claimant personally appeared and testified at the hearing, and she was represented by counsel. R. 20-58. Billie Swaytek, Claimant's sister, and Cheryl R. Hoiseth[2], a vocational expert ("VE"), also testified. Id. Claimant's mother appeared by telephone but did not testify. Id.

The ALJ issued a written decision on May 6, 2009, finding Claimant not disabled under the Social Security Act and therefore denying benefits. R. 9-19. The Social Security Appeals Council denied Claimant's request for review on January 14, 2011, leaving the ALJ's decision as the final decision of the Commissioner. R. 1-3. Claimant seeks review in this Court pursuant to 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

B. Hearing Testimony

1. Claimant Melynda Mosteller

Claimant was 36 years old at the time of the hearing. R. 24. She was single and had four children. R. 24. She had a high school education. R. 25.

Claimant testified that she had not worked since November 1, 2004. R. 25. She last worked as a secretary from April 2004 until November 2004. She answered phones, set up appointments, and managed accounts payable and receivable. R. 25-26. She performed the job sitting down and reported she was able to sit, but not for long periods of time, and sometimes she needed to get up and walk around to readjust herself. R. 27, 30. Prior to that, Claimant was a crew leader at a Culver's fast food restaurant for 6-12 months, where she lifted heavy objects such as syrup, meat, and custard. R. 26-27. Claimant worked briefly at a deli counter in 1997, but left because she could not lift heavy meats. R. 29. She also worked as a cashier at a gas station for a few months until the gas station closed. R. 27-28. Claimant had shifts as a server at her sister's restaurants from 1997-1999 and 2001-2002. R. 26-29.

Claimant testified that diverticulosis, diverticulitis, cerebral palsy on the right side of her body, and arthritis on the left side of her body interfered with her ability to work. R. 29. She reported having "ten percent" cerebral palsy on the right side of her body and "no muscle control over the right side." R. 29. As a result, she could not use her right side to do anything. R. 43. She testified that the muscles on her left side had to "overpower" the right side and, consequently, her left side was an inch larger than her right. R. 43, 44.

Claimant testified that she had stabbing pain on her left side at a level of 9 out of 10. R. 43. She took one or two Norco pills every four to six hours as needed and took medication for her nerves. R. 31, 32. She had also received epidural shots in her back at one point, but reported that the shots offered no relief. R. 33. She reported that her left hand was numb and that she woke up screaming and crying four nights per week because she experienced pain shooting into her fingers. R. 45. She only slept three or four hours per night, and she would try to nap for a couple hours during the day but would sometimes just lay awake in pain. R. 33, 40-41. In the past, she took Ambien, but it did not help. R. 40-41.

Claimant testified that she suffered from stomach and bowel problems and that she had to take eight Imodium four hours prior to leaving her home to go anywhere. R. 30, 32. She testified that the Imodium did not always work and she might end up going to the bathroom on herself anyway. R. 30, 32. She wore a patch on her arm to treat her chronic stomach pains. R. 31-32. She testified that the patch did not always work and so she was required to take additional pain medication because she would otherwise be "doubled over on the couch." R. 32.

Claimant testified that she had depression. R. 30. She took 100 milligrams of amitriptyline once per day and an antidepressant, but they did not help. R. 31, 46. She reported very bad anxiety which occurred suddenly and for no reason. R. 30, 47. The anxiety caused her to feel dizzy and as though she were about to have a heart attack. R. 47. She took two milligrams of Ativan up to three times per day as needed. R. 33. She stated that her pain and depression affected her ability to concentrate. R. 47.

Claimant testified that she could not lift more than ten pounds because of degenerative disc disease in her neck and shoulder. R. 30-31. She had difficulty walking due to knee pain. R. 43-44. She reported needing a knee replacement, but said she was too young to get it done. R. 44. She had severe left ankle swelling which required her to prop her leg up on a pillow throughout the day. R. 44.

Claimant testified that she was 5'3" tall and weighed more than 200 pounds. R. 31. She stated that her obesity put "an even bigger toll" on her body. R. 45. She had difficulty dressing and sometimes required her son to put on her shoes and socks. R. 46. She reported difficulty bending and said she could not kneel, crawl, or stoop. R. 46. She had difficulty going up and down stairs and slept on the couch so she did not have to go upstairs to use the bathroom. R. 49.

Claimant testified that she received help with her daily activities from her family. R. 34. She did not do anything around the house. R. 48. Her son did the laundry and her boyfriend's mother cleaned. R. 34. She initially said that could not drive to the store alone, but later stated she was able to shop and that she occasionally drove. R. 34, 48.

2. Billie Swaytek

Ms. Swaytek testified that she saw Claimant weekly. R. 36. She believed Claimant's situation had worsened over the previous year because Claimant began to struggle with simple things such as getting around on a daily basis, functioning, and picking up her children. R. 36. She observed Claimant get "brushed off" by many doctors, which was "frustrating." R. 37.

Ms. Swaytek testified that it had been at least six or seven years since Claimant worked in her restaurants. R. 36. She further stated that Claimant "wasn't even really hired" and did not keep a regular schedule because she was unreliable and missed work often. R. 36-37, 38. Claimant did not have a specific job that she was supposed to do. R. 37. Rather, Ms. Swaytek "used her where she was able to be used" and assigned Claimant tasks such as answering phones, running plates, and rolling silverware. R. 38. Ms. Swaytek let Claimant do things she would not let her regular employees do in order to accommodate Claimant's limitations. R. 38.

3. Cheryl R. Hoiseth, Vocational Expert

The VE testified that Claimant's work at Culver's and at the gas station were light and unskilled. R. 52. She stated she was not clear whether Claimant's work at her sister's restaurant was actually a job or an accommodated situation, but that in any event, bartending and waitressing were light and semi-skilled. R. 52. She said that Claimant's secretarial job did not last long enough for Claimant to acquire the skills outlined in the Dictionary of Occupational Titles. R. 52.

The ALJ explained that the state agency physicians assessed Claimant's residual functional capacity ("RFC") as allowing light and sedentary work, subject to postural limitations against climbing ladders, ropes, or scaffolds; no more than occasional balancing, kneeling, stooping, crouching, crawling, and climbing of ramps and stairs; and some limitations in the ability to perform activities within a schedule, maintain regular attendance within customary tolerances, and sustain an ordinary routine without supervision. The VE testified that a person with the above-described RFC and the same age, education, and work experience as Claimant would be able to do all of Claimant's past relevant work except for the cashier position. R. 53. The VE testified that, if further limited to unskilled work, the person would be able to work as an office helper, information clerk, and sales attendant. R. 53-54.

The ALJ asked the VE whether Claimant would be able to perform any jobs if the ALJ fully credited Claimant's hearing testimony regarding her physical and mental limitations. R. 54. The VE stated that the limitations to which Claimant testified would rule out work. R. 54.

C. Medical Evidence

Claimant's Treating Physicians

1. Abdominal Pain and Chronic Diarrhea

Claimant sought treatment at Good Samaritan Hospital on August 3, 2004, complaining of abdominal pain, reflux, and changes in her bowel habits. R. 209-214. Dr. Rafi Ali performed a colonoscopy and esophagogastroduodenoscopy with biopsy and found mild sigmoid diverticulosis. Id. Claimant returned to Dr. Ali on March 17, 2006, complaining of chronic diarrhea. R. 204-08. Dr. Ali performed another colonoscopy with biopsy and found scattered diverticula throughout the colon and moderate diverticulosis. Id. A March 31, 2006 CT scan revealed uncomplicated colonic diverticulosis. R. 517.

Claimant went to the emergency room at Central DuPage Hospital in July, September, and December 2006, each time complaining of abdominal pain and diarrhea. R. 237-58, 260-73, 570-75. CT scans of Claimant's abdomen, pelvis, and liver showed sigmoid diverticulitis and an ovarian cyst. Id. Claimant received IV antibiotics and was improved upon discharge. Id.

Claimant returned to the emergency room on March 7, 2007, complaining of abdominal pain, diarrhea, vomiting, cramping, and headache. R. 360-76. Claimant underwent an aircontract upper gastrointestinal and small bowel follow-through which showed a more rapid than normal transit time through the small bowel. Id. Her principal diagnosis upon discharge was diverticulitis. Id.

Claimant followed up with her primary care physician, Dr. Melody Derrick, on March 17, 2008. R. 600-01. Claimant complained of severe abdominal pain and diarrhea and reported taking eight Imodium tablets per day. Id. Dr. Derrick ordered a new CT scan to look more closely at Claimant's suspected irritable bowel syndrome and pain issues. Id. The CT scan was unremarkable. R. 653.

Dr. Darran Moxon performed a colonoscopy on April 24, 2008. R. 664. Dr. Moxon observed multiple diverticula in the sigmoid colon and large amounts of semisolid stool along the way to the cecum. Id. He concluded that, based on the large amounts of stool left in her colon, Claimant did not have pathologic diarrhea. Id. He opined that Claimant's abdominal pain was instead probably due to her not going to the bathroom completely, so he placed her on a daily bowel cleanser regimen to help her have two to three complete bowel movements per day. Id. He stated that Claimant should not be on Norco, needed to quit smoking, and needed to lose 50 pounds. Id.

Claimant returned to Dr. Derrick on May 1, 2008 and reported that the bowel cleanser Dr. Moxon prescribed caused her to have diarrhea every ten minutes. R. 819-22. Dr. Derrick opined that Claimant was in a chronic cycle of having overflow diarrhea due to constipation, which also caused Claimant's abdominal pain. Id. She suggested that Claimant's Imodium and Norco intake made the constipation worse, thereby causing more overflow diarrhea. Id.

On January 20, 2009, Dr. Derrick noted that Claimant did not agree with Dr. Moxon's overflow diarrhea diagnosis, did not take the prescribed bowel cleanser, and was still ...

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