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Tiffany L. v. Commissioner of Social Security

United States District Court, C.D. Illinois, Rock Island Division

June 17, 2019

TIFFANY L., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          Jonathan E. Hawley U.S. MAGISTRATE JUDGE

         Now before the Court is the Plaintiff's Motion for Summary Judgment (Doc. 10) and the Defendant's Motion for Summary Affirmance (Doc. 14). This matter has been referred for a report and recommendation. The Motions are fully briefed, and for the reasons stated herein, the Court recommends the Plaintiff's Motion for Summary Judgment be denied and the Defendant's Motion for Summary Affirmance be granted.[1]

         I

         Plaintiff Tiffany L. filed applications for disability insurance benefits (DIB) and supplemental security income (SSI) on June 7, 2011 and alleged disability beginning on April 5, 2011. Her claims were denied initially in October 2011 and upon reconsideration in January 2012. Tiffany filed a request for hearing before an ALJ which was held on April 29, 2013. At that hearing, Tiffany was represented by counsel, a vocational expert (VE) testified, and a medical witness testified. The ALJ issued an unfavorable decision in May 2013, and the Appeals Council (AC), upon Tiffany's request for review, remanded the claim in September 2014. The same ALJ presided over a second hearing in January 2015 and issued another unfavorable decision in that same month. Tiffany again asked the AC to review the ALJ's decision, and in June 2016 the AC remanded the claim once again.

         A third hearing was held before a different ALJ, the Honorable Shreese M. Wilson (ALJ) on October 27, 2016. At that hearing, Tiffany was represented by an attorney and a VE testified. On May 9, 2017, the ALJ issued her unfavorable Decision. On March 1, 2018, the AC issued the final decision of the Commissioner which adopted the ALJ's May 2017 findings. As the parties agree, the AC included evidence not considered by the ALJ, but that evidence is not relevant to the current appeal. Tiffany timely filed the instant civil action on March 21, 2018.

         II

         At the October 27, 2016 hearing, Tiffany was 35 years old and lived in her uncle's house with that uncle, her 14-year-old daughter, and her 22-month-old son. In an undated Form SSA-3368, Tiffany claimed the following conditions limited her ability to work: irritable bowel syndrome; degenerative disc disease - back pain; rheumatoid arthritis; asthma; abnormal muscle in left leg; depression; anxiety; and panic attacks. AR 474.

         She testified she was “kind of homeless” and “kind of stay[ed] at my uncle's.” AR 131-32. Tiffany said she took care of her two children, and her daughter helped her “a lot” with her 22-month-old son because Tiffany could hardly walk at that time. AR 132. Tiffany explained the space in her uncle's house as its own little separate area, like an apartment. She mentioned her daughter stayed at Tiffany's mother's house too for schooling purposes. Tiffany did not drive at all in the mornings because she could not get out of bed, and when she did she had to crawl. When Tiffany finally did get in the car to drive, she experienced shooting pain down her leg.

         Tiffany testified that she smoked about 15 cigarettes per day and previously used illegal substances. She went to “detox” from opiates approximately four or five months before the hearing. When asked how her bills were paid, Tiffany stated she did work for her uncle (she called it being a “personal assistant”), she picked up and cleaned up, cooked, and did laundry for him. She explained her uncle let her stay in his home until she could find somewhere to live. Tiffany had been doing that job for about a year and a half and started doing it because her uncle, a quadriplegic, needed someone to work at his home and because Tiffany's father could no longer do so and her mom asked her to do so. She testified, “I can't really do a whole lot and she, he lets me like even take a lot of breaks during work.” AR 137. She worked three to five days a week for her uncle. Her mother picked up and watched her 22-month-old while Tiffany worked. The ALJ asked whether something happened that made Tiffany think she could go back to work given that there were several years she did not work. Tiffany responded that she needed money and her mother said she would “hardly be doing anything [at her uncle's house] [.]” AR 139.

         Tiffany then testified about the back fusion surgery she had in November 2010. She stated the surgery did not relieve her symptoms and two of four screws placed in her back broke in half. She explained following the surgery, she had to relearn to walk which took three months. In response to the ALJ's question as to why Tiffany had not yet had the broken screw fixed (seen in a November 2013 MRI), Tiffany explained, “Every time we went to go schedule the surgery, I ended up getting pregnant. The last doctor in Peoria stated that I was too big, I would have to lose weight. Since then I've actually lost weight.” AR 140. Tiffany also testified that she had a MRI scheduled that very day due to pain she felt all the way down her right leg. She experienced that pain for three or four months and it became worse recently, “[b]ut the pain in the back and [her] hip, that's been at least a year.” AR 141. To relieve her back pain, Tiffany used Biofreeze, put ice on her back, and took her prescribed medications. With regard to her medications, the ALJ asked about Tiffany's asthma treatment, including the use of a nebulizer as needed and an inhaler Tiffany used up to three times per day. She said she became winded if she walked up a hill. She answered her nebulizer and inhaler helped when she became short of breath.

         Tiffany testified she recently obtained an order of protection against her son's father and she had been going to court for it. The ALJ noted the record showed Tiffany had “been in and out of treatment for some, for some depression, some anxiety . . . maybe some PTSD.” AR 147. Tiffany answered that she recently asked her primary care physician for “something for depression” because of “everything[] going on with my kid's father.” Id. She said her depressive symptoms affected her ability to work because she constantly thought about the situation with her son's father and she was stressed because she had to go to court that week. She explained before the situation with her son's father arose, she had issues with depression and anxiety but she controlled those issues “for a while.” AR 148.

         The ALJ next pointed out that in 2015 and 2016, while Tiffany was pregnant, she went to the hospital a couple of times to “detox off of Vicodin, off of some Opioid medication. At one point you're using Meth -.” Id. Tiffany explained the last time she went through a detox program, “CADS, ” was in 2015 and “whenever I went to detox this last time, I didn't know I was pregnant.” AR 149. She confirmed she went to detox in July 2016 as well. Tiffany stated at the times she used Meth or abused her medications, she was doing so because nothing relieved her pain. Thus, “of course, if I run out of my pain medicine, then I try to get something else.” Id. Tiffany also confirmed that she abused her pain medication when she took it. She said she talked to her doctor to let him know her medication was not controlling her pain, and “Actually, I have got an appointment for a pain clinic, well, a referral and I'm waiting for them to give, give me an appointment.” AR 150. She said she attended a pain clinic in the past and, “of course, I was abusing pills then and so they cut me off and told me I couldn't go there anymore.” Id. She then testified that she did not know why her “doctor now” had not referred her to a pain clinic. Id.

         The ALJ then turned to questions regarding Tiffany's ability to lift, stay on her feet, and sit. Tiffany walked the ALJ through a typical day which included the care of her son, and while at work, she sat or laid down. She said, “If I, this was anybody else besides my family I probably would have been fired a long time ago because I have called in multiple types [sic] whenever I could not work there.” AR 153. She confirmed she felt better when sober though she was “still constantly hurting with pain.” AR 156. While sober, Tiffany's ability to think, function, and figure out for herself how to do things during the day was “100 percent better.” AR 157. Tiffany stated she asked the doctor to not give her opiates.

         Upon questioning by her attorney, Tiffany confirmed she did not have irritable bowel syndrome and her symptoms turned out to be caused by the way two of her medications interacted. Her attorney also asked Tiffany about her ability to sit, walk, lift, be on her feet, and carry. Tiffany testified she missed shifts at work for her uncle due to her health problems “[t]wo, three times a month[.]” AR 160. She also thought, “[o]ne hundred percent, ” her pain had an effect on her ability to pay attention to things, concentrate, maintain her focus, or to persevere to get things done. Id. Tiffany continued that she could not focus on anything but her pain, though she still was able to get things done. She “obviously” had to go at a slower pace when doing things and the quality with which she did things was affected as a result of her pain. AR 161.

         The VE was then questioned. The ALJ asked the VE:

Initially I'd like for you to assume that we have an individual that's the same age that the Claimant is. So this individual was 30 as of the alleged onset date, and the individual's currently 35. This individual has the same at least high school education that the Claimant has, and the same work history that the Claimant has. Initially, I'd like for you to assume this individual would be limited to lifting or carrying 20 pounds occasionally, 10 pounds frequently. This individual would be able to stand or walk two total hours in an eight hour work day . . . Two hours in an eight hour work day. The individual would be able to sit the remainder of the day. This individual should never climb ladders, ropes, or scaffolds, no more than occasionally climb ramps or stairs, no more than occasionally stoop, kneel, crouch, or crawl. This individual additionally should avoid concentrated exposure to extreme cold, which I'll define as less than 50 degrees Fahrenheit. They should also avoid concentrated exposure to extreme heat, which I'll define as more than 90 degrees Fahrenheit. This individual should avoid concentrated exposure to humidity, so they need to be in a climate controlled environment. They should avoid concentrated exposure to irritants such as dust, fumes, odors, gases, and poor ventilation. This individual should avoid concentrated exposure to unprotected heights and hazardous machinery. Additionally, this individual would be limited to tasks that can be learned within 30 days that are routine and repetitive in nature. Given those limitations, would such an individual be able to return to any of the Claimant's past jobs?

AR 164-65. The VE responded in the negative but then identified jobs such an individual could perform. The ALJ then asked the VE whether the identified jobs were affected by the individual's need to alternate between sitting and standing. The VE responded in the negative. The ALJ asked whether the individual could maintain the jobs if he lost five minutes of production time every 30 minutes, or ten minutes per hour of production throughout the course of an eight hour work day. The VE testified that would affect the individual's ability to maintain the identified jobs. Finally, the ALJ asked whether the ability to maintain the jobs would be affected if the individual routinely was unable to show up for work or had unscheduled call ins for missing work twice a month on a regular basis. The VE answered in such jobs, an individual would be able to miss no more than one day per month and no more than five days in a 12 month period.

         Upon questioning by Tiffany's attorney, the VE testified that the individual's absence from work once a month “is probably tolerated, but more than that is, is not.” AR 168. The attorney then asked whether the individual could take off days throughout the initial probation period in a given job, and the VE answered that during the probationary period one should be on his best behavior and “if it looks like you're not for whatever reason they really don't have to justify it during that period.” AR 168. The attorney later asked the VE if he heard “any limitation in that first hypothetical on the doing of routine and repetitive tasks in, in ...


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