Rainey v. Colvin

          RULING AND ORDER ON MOTION TO AFFIRM AND MOTION TO REVERSE THE DECISION OF THE ACTING COMMISSIONER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Rosemary Rainey (“Plaintiff”) filed this administrative appeal under 42 U.S.C. § 405(g) against Carolyn W. Colvin, the Acting Commissioner of Social Security^[1] (“Defendant” or “the Acting Commissioner”), seeking to reverse the decision of the Social Security Administration (“SSA”) denying her claim for Title II disability insurance benefits under the Social Security Act. Complaint, dated May 2, 2016 (“Compl.”), ECF No. 1, at 1.

         Accordingly, Ms. Rainey moves for an order reversing the decision of the Acting Commissioner. Motion to Reverse the Decision of the Commissioner, dated Nov. 23, 2016 (“Mot. to Reverse”), ECF No. 18. The Acting Commissioner moves for an order affirming her decision. Motion to Affirm the Decision of the Commissioner, dated Aug. 29, 2017 (“Mot. to Affirm”), ECF No. 25.

         For the following reasons, the motion to reverse the decision of the Acting Commissioner is DENIED and the motion to affirm the decision of the Acting Commissioner is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Ms. Rainey, a fifty-five year old Connecticut resident, lives alone on the second floor of a two-story building. She alleges having been disabled since 2008 and now seeks review of denial of Title XVI benefits. All factual allegations are uncontested.

         A. Medical Evidence

         Ms. Rainey's medical history includes degenerative disc disease of the lumbar spine, depression, a bilateral knee impairment, HIV/AIDS, hepatitis C, chronic obstructive pulmonary diseases (“COPD”), heart disease, obesity, post-traumatic stress disorder (“PTSD”), and shoulder pain. See, e.g., Transcript of Administrative Record, filed Aug. 9, 2016 (“Tr.”), annexed as Exs. 1-17 of Defendant's Answer, ECF Nos. 12-1-12-17, at 483-84, 477, 674-675, 779, 534, 585, 790, 826, 390, 400, 609-210, 391, 401, 389.

         Ms. Rainey has, on multiple occasion, been treated after complaining of “chronic pain” in her left knee. Id. at 483, 477-8, 674. In October 2011, Ms. Rainey was treated for left knee pain and lower back pain. Her principle complaint was “chronic pain.” Id. at 483. An examination revealed lower back pain and muscle spasm, for which she was prescribed Tramadol, Diclofenac, and discontinued use of Naproxen because it was deemed ineffective. Id. at 484. In November 2011, she was again seen for left knee pain and diagnosed with patellar chondrolmalacia of the left knee. Id. at 477-78. In April and May 2013, Ms. Rainey complained of pain in her knees and back that registered as an eight out of ten. Id. at 481-82, 675-76.

         Medical records as early as November 2010 reflect that Ms. Rainey has a history of left knee pain, and walks with a limp. Id. at 389-90 (“[Had injury left knee years ago and now has progressive pain and joint click.”). A January 2011 x-ray of Ms. Rainey's knee showed “minimal degenerative change, ” and an MRI performed in February 2011 revealed: “MCL bursitis, medial suprapatellar plica, chondromalacia in the median ridge of the patella, degenerative type thinking of the medial meniscus and tiny popliteal hernia.” Id.

         In October 2011, Ms. Rainey was referred to a physiatrist and prescribed a knee brace. Id. at 484, 839.

         Ms. Rainey was diagnosed as HIV positive in 2010; as of April 2016, Ms. Rainey was asymptomatic with an undetectable viral load. Id. at 600. She has been diagnosed as having AIDS, and placed on atovaquone as a prophylaxis against Pheumocystis jerovencii. Id. at 534, 540, 585, 591, 661-62, 674, 680, 830.

         At least twice, Ms. Rainey has had to discontinue treatment because of complications due to treatment. Id. at 604-06, 790. From September 2012 to June 2013, Ms. Rainey was treated with Pegasys, Interferon, and Ribavirin, but the treatment had to be stopped due to detectable viremia. Id. at 790. While awaiting a new treatment, almost a year later, her viral load was more than 800, 000. Id. at 826. During a second course of treatment, Ms. Rainey developed generalized pruritus. Id. at 682. According to a physician who treated Ms. Rainey, Pegasys can carry side effects of anemia, low energy, and fatigue. Id. at 601. She was hospitalized in December 2012 due to a number of symptoms and the medical record states: “the patient's ribavirin and Pegasys were placed on hold during this admission as she did have acute kidney injury and diarrhea, initially.” Id. at 605.

         Ms. Rainey was hospitalized due to issues related to COPD and other bronchial issues. Id. at 602. In addition to COPD, she also suffers from asthma and chronic bronchitis. Id. at 390, 403, 475, 609. On at least one occasion, in 2010, Ms. Rainey was referred to specialists for consultations regarding asthma and COPD. Id. at 391. In the beginning of 2013, she was hospitalized from December 29, 2012, and discharged on January 4, 2013. Id. at 602. While hospitalized, Ms. Rainey experienced a number of pulmonary traumas, which, in combination with other ailments, lead to her transfer to the intensive care unit. Id. at 602, 609.

         Ms. Rainey has suffered two heart attacks and, despite taking a long list of prescriptions, continues to experience hypertension. Id. at 609, 313, 347-78, 357-58, 366, 836, 496, 498-500, 502.

         Ms. Rainey has been diagnosed as obese. Id. at 391, 401. As early as 2010, she has been reported as having a BMI of at least 30. Id. at 149, 433, 438, 448, 456, 462, 466, 827, 832, 843. She has also been referred for nutrition therapy and intervention and met with a nutritionist. Id. at 467, 486, 528.

         And she has complained of should pain and examination has shown signs of degeneration. Id. at 390, 431, 713. On a number occasions, she visited doctors due specifically due to reported back and knee pain, id. at 492, 510, and, at other times, she complained of pain while seeking treatment for other medical issues, id. at 444, 456, 543.

         B. Procedural Background

         On September 27, 2012, Ms. Rainey applied for Title XVI benefits, alleging being disabled since January 1, 2008. Compl. ¶ 4. The application for benefits was first denied on December 18, 2012, and denied for a second time on May 3, 2013. Id. ¶ 5.

         On December 17, 2014, the SSA held a hearing; Ms. Rainey appeared, represented by counsel, before Administrative Law Judge (“ALJ”) Sharda Singh, as did Steven B. Sachs, Ph.D., an impartial vocational expert. Tr. at 20.

         Ms. Rainey testified that she is fifty-five years of age, divorced, and lives alone on the second story of an apartment building with an elevator. Id. at 81. She receives cash assistance from State Administered General Assistance (“SAGA”), which is a state-based disability benefit program administered by the Connecticut Department of Social Services (DSS). Id. at 82.

         Ms. Rainey testified that she worked full-time for eleven months in 1999 as a crew member at McDonalds. Id. at 84. Her duties would require that she stand, walk, and serve customers; she received a thirty minute break, which allowed for her to sit. Id. at 84. The work occasionally required that she lift twenty-to-thirty pounds. Id. Lifting items of any significant weight with more frequency was difficult for Ms. Rainey, because, as she described it: “the weight goes through my arms down to my back and knees.” Id. at 85. She further testified that there is no amount of weight at present that she could carry with any frequency for five hours in an eight hour day. Id. at 90.

         Dr. Mauricio Montezuma treats Ms. Rainey for the pain she experiences in her lower back. Id. at 85. Ms. Rainey described the pain as constant, with an intermittent muscle spasm “which can be sometimes excruciating, ” radiating down to her knees and causing them to burn. Id. at 86. The pain varies between five and “over a 10” on a ten point scale, with ten indicating the highest scaled pain level. Id. at 86. She would use Cyclobenzaprine to help manage the pain but testified that it did not help to alleviate the pain. Id. at 87. Walking up to thirty minutes is sufficient to cause Ms. Rainey “excruciating” pain. Id. at 88. Ms. Rainey uses the assistance of a cane when walking or standing up from a sitting position, both inside and outside of her home. Id. Similarly, she stated that, if she stands in one spot for more than fifteen to twenty minutes, her legs begin to throb, causing Ms. Rainey to feel as though she may fall. Id. at 89. She experiences pain in her knees, which she described as registering as eight on the ten point scale; they “throb with pain” consistently. Id. at 90.

         Ms. Rainey testified that, to the best of her ability, she does household chores. Id. at 94. She vacuums, does her laundry, and cooks meals, though she does so while sitting down to avoid aggravating her back and knees. Id. She does not receive assistance in completing these chores. When doing laundry, she uses a “shopping cart” to transport her laundry to the laundry facilities, which are on the same floor as her apartment. Id. at 97. Ms. Rainey also does her own shopping, although there are times, for example, when she does bulk grocery shopping, in which she receives assistance from Peter's Retreat, an organization that provides assistance to individuals living with HIV/AIDS. Id. at 94. She cleans the bathroom while on her hands and knees, to avoid standing. Id. at 98. Although she is able to dress herself, she cannot stand while putting on her pants. Id.

         She is able to navigate a grocery store with the aid of a cane; she also uses the shopping cart for support. Id. at 94-95. She also uses public transportation, but there are times when the pain in her lower back and knees is so substantial that, approximately two-to-three times monthly, she will call Peter's Retreat for transportation services. Id. at 95. Ms. Rainey sometimes also attends church.

         Ms. Rainey testified that she has been diagnosed with depression and post-traumatic stress disorder (“PTSD”). Id. at 91. She described experiencing melancholia, during which she does not want to speak to others, gets lost in her thoughts, and avoids social situations. Id. Because of these feelings, as often as four times weekly, she will put a sign on her apartment door asking not to be disturbed. Id. at 92. Once monthly, she meets with Dr. Matthew Dickinson for talk therapy, where she discusses with him how she is feeling and the medication he has prescribed to her. Id. at 92-93.

         Ms. Rainey testified that she has been diagnosed with HIV. Id. at 100. With medication, her viral load remains undetectable. Id.

         Steven Saxx also testified as a vocational expert. Id. at 101. He testified that Ms. Rainey's employment with McDonald's was as a fast food worker, unskilled, and involved light exertional work. Id. at 102. He stated that an individual of the same age, with the same education, and past work experience could lift or carry twenty pounds occasionally or ten pounds frequently; stand and walk six hours and sit for up to six hours during an eight hour day; never climb ladders, ropes, or scaffolds, but occasionally climb stairs, ramps, or balance, stoop, kneel, crouch, and crawl; and must be limited to understanding, remembering, and carrying out simple routine, repetitive, non-complex tasks could perform the tasks of a fast food worker. Id. at 104.

         Assuming the same limitations, but also assuming that such an individual would need to miss work for two days monthly, he stated that the individual could not perform the tasks of a fast food worker or any other job. Id. Finally, assuming the initial limitations and that the individual would also be “off task” for more than fifteen percent of a workday, he stated that the individual could not perform the tasks of a fast food worker or any other job. Id. at 104-05.

         After the hearing, on January 18, 2015, the Administrative Law Judge (“ALJ”) found that Ms. Rainey was not entitled to disability insurance benefits, based on the following findings:

1. The claimant has not engaged in substantial gainful activity since September 27, 2012, the application date (20 C.F.R. 416.971 et seq.).

2. The claimant has the following severe impairments: degenerative disc disease (DDD) of the lumbar spine and depression (20 C.F.R. 416.690(c)).

3. The claimant 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 (20 C.F.R. 416.920(c), 416.925 and 416, 926).

4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b) except she can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She must avoid hazards. She is limited to understanding, remembering, and carrying out simple, routine, and repetitive noncomplex tasks.

5. The claimant is capable of performing past relevant work as a Fast Food Worker. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. 416.965).

6. The claimant has not been under a disability, as defined in the Social Security Act, since September 27, 2012, the date the application was filed (20 C.F.R. 416.920(f)).

Id. at 22-29.

         Upon the Appeals Council's March 3, 2016, denial of Ms. Rainey's timely request for review of the decision, the ...