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Garner v. U.S. Commissioner Social Security Administration

United States District Court, W.D. Louisiana, Alexandria Division

February 19, 2019

CAROL SUE GARNER, Plaintiff
v.
U.S. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant

          JAMES, JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge

         Carol Sue Garner (“Garner”) protectively filed an application for period of disability and Social Security Disability Insurance Benefits (“DIB”) on September 28, 2015. (Doc. 9-1, pp. 216-217). Garner also protectively filed an application for Supplemental Security Income (“SSI”) on September 28, 2015. (Doc. 9-1, pp. 206-215). Garner alleged a disability onset date of April 7, 2014, due to depression, anxiety, post-traumatic stress disorder (“PTSD”), osteoarthritis in all joints, and sciatica. (Doc. 9-1, p. 216). Garner's claims were initially denied by the Social Security Administration (“SSA”) on April 12, 2016, and upon reconsideration on May 12, 2016. (Doc. 9-1, pp. 76-127).[1]

         Garner's applications were heard before an administrative law judge (“ALJ”) on October 7, 2016. (Doc. 9-1, pp. 38-74). Garner appeared with Elizabeth Ann Allen, a vocational expert (“VE”). (Doc. 9-1, p. 18). Garner also appeared with Andrew S. Youngman, a non-attorney representative of Citizens Disability, LLC, and attorney Gian Barnett, also of Citizens Disability, LLC. (Doc. 9-1, p. 40). The ALJ denied Garner's claim on January 11, 2017. (Doc. 9-1, pp. 15-29). The ALJ determined that Garner was not disabled under the Social Security Act (the “Act”), finding at step five of the sequential evaluation process that she was able to make an adjustment to other work that exists in significant numbers in the national economy. (Doc. 9-1, pp. 28-29).

         On June 28, 2017, the Appeals Council denied Garner's request for review, and the ALJ's January 11, 2017 decision became the final decision of the Commissioner of Social Security (the “Commissioner”). (Doc. 9-1, p. 6).

         Proceeding in forma pauperis, Garner filed this appeal for judicial review of the Commissioner's final decision. (Doc. 1). Garner asserts the findings of the Commissioner are not based upon substantial evidence and that improper legal standards were applied. (Doc. 1). Garner's brief asserts three errors: (1) that the ALJ erred in relying on VE testimony to fulfill his step five burden without properly addressing post-hearing objections to the VE's testimony; (2) that the ALJ erred by failing to analyze the opinion evidence in accordance with the regulations, Agency policy, and Fifth Circuit precedent; and (3) that the ALJ erred by failing to consider Garner's strong work history in her credibility assessment. (Doc. 12).

         The Commissioner responded. (Doc. 13). Garner replied. (Doc. 14). Garner's appeal is now before the Court for disposition.

         I. Summary of Pertinent Facts

         A. Administrative Hearing

         At the October 7, 2016 administrative hearing, Garner testified her date of birth is November 26, 1964. (Doc. 9-1, p. 42). She is right-handed. (Doc. 9-1, p. 42). Garner has been divorced since 2005. (Doc. 9-1, p. 42). She has three adult children. (Doc. 9-1, p. 43). She resides in Anguilla, Mississippi with her boyfriend, her youngest daughter, and her daughter's boyfriend. (Doc. 9-1, p. 43). Garner testified her daughter living with her is mentally impaired and receives disability benefits. (Doc. 9-1, p. 43). Garner stated her boyfriend works. (Doc. 9-1, p. 43).

         Garner has a current driver's license. (Doc. 9-1, p. 43). She cannot drive for periods of time. (Doc. 9-1, p. 43). Garner stated that, after driving far, her back hurts and her legs go numb. (Doc. 9-1, pp. 43-44). Garner testified her medical records say her legs go numb because she has sciatica. (Doc. 9-1, p. 44). Garner received her GED and can read and write. (Doc. 9-1, p. 44). She can keep up with money, and knows how much change she should receive back. (Doc. 9-1, p. 44).

         Garner's disability onset date was April 7, 2014. (Doc. 9-1, p. 44). She has worked since the onset date of her disability. (Doc. 9-1, p. 44). Garner worked at BB's Kitchen and moved to Anguilla in May of 2015. (Doc. 9-1, pp. 44-45). She moved in with her boyfriend. (Doc. 9-1, p. 45). Garner was a cook, but could not lift pots, stand on her feet, or deal with the public. (Doc. 9-1, p. 45). Garner had income from BB's in the second quarter of 2015 in the amount of $2, 647, and from the fourth quarter in the amount of $3, 869. (Doc. 9-1, p. 45). Garner also had income from Papa T's (Taunton's) in Ferriday, and from Hines Grocery. (Doc. 9-1, p. 45). She stated she worked a couple hours per day at Hines when they needed extra help. (Doc. 9-1, p. 45). Garner was a cook and cashier for Papa T's. (Doc. 9-1, p. 46). She worked at Wal-Mart in the deli for a little while. (Doc. 9-1, p. 46). She also worked at Ray's PD, a restaurant. (Doc. 9-1, p. 46). Garner was a transportation officer at the correctional center. (Doc. 9-1, p. 46). She drove the van. (Doc. 9-1, p. 46). Garner worked at a paper company in 2001, making paper bags. (Doc. 9-1, p. 46).

         Garner testified she has back issues. (Doc. 9-1, p. 47). She had an X-ray in March of 2016 that showed slight, lower, lumbar facet joint arthropathy with mild spondylithic change. (Doc. 9-1, p. 47). She testified she has pains in her lower back, sciatica, arthritis in her back, major depression with PTSD, and anxiety disorder with homicidal tendencies. (Doc. 9-1, p. 47). Garner testified her PTSD is from past physical abuse. (Doc. 9-1, p. 47).

         Garner stated she cannot lift or cook because of her back. She testified it hurts her back and her legs go numb when she stands. (Doc. 9-1, p. 48). For her back, she takes ibuprofen 800 four times a day, and Flexeril three times a day. (Doc. 9-1, p. 48). She testified nothing is being done to fix “it” because she has no insurance and cannot afford a doctor. (Doc. 9-1, p. 48). Garner stated she did not qualify for “Obamacare” because she could not pay the premiums and did not qualify for Medicaid because she does not have small children. (Doc. 9-1, p. 48).

         Garner testified she cannot lift big pots but can lift small pots if they are not heavy. (Doc. 9-1, p. 49). She is unable to work currently as she has problems with lifting and standing for long periods of time due to her back. (Doc. 9-1, p. 49). She testified she would try a job if she was not standing as much. (Doc. 9-1, pp. 49-50).

         Garner testified she met her boyfriend online in 2015. (Doc. 9-1, p. 50). She testified she does not have a computer and used her cellphone. (Doc. 9-1, p. 50). Garner moved in with him and moved her daughter there the month before the hearing. (Doc. 9-1, p. 50). Garner testified that, with her depression, she does not want to be around anybody. (Doc. 9-1, p. 51). She cannot get out of bed on some days. (Doc. 9-1, p. 51). She stated her medicine makes her sleepy. (Doc. 9-1, p. 51). Garner stays to herself. (Doc. 9-1, p. 51). She gets nervous and frustrated with anxiety attacks. (Doc. 9-1, p. 51). Everything stresses her out, but she does not know why. (Doc. 9-1, p. 51).

         Garner treated with Life Health, with the latest visit from July. (Doc. 9-1, p. 51). Her latest report showed some changes, showing she goes outside at least three times a week, walks around and finds things to do. (Doc. 9-1, p. 51). Her report noted she is learning how to release stress before becoming stressed. (Doc. 9-1, p. 51). She confirmed, as her report showed, her stress is related to family relationships, past family issues, and past relationships. (Doc. 9-1, p. 51). She testified she had been living with her boyfriend since May 1, 2015. (Doc. 9-1, p. 52).

         Garner testified that her normal day consists of making the bed and normal housework when her boyfriend leaves for work. (Doc. 9-1, p. 52). She does some housework, then has to sit down. (Doc. 9-1, p. 52). Garner can dress herself. (Doc. 9-1, p. 52). She testified her boyfriend drives her to town to get food for the house. (Doc. 9-1, p. 52). She cooks for him when he is home. (Doc. 9-1, p. 52). But he normally only eats one a meal a day at work. (Doc. 9-1, p. 52).

         Garner testified that it is difficult to get out of bed in the morning four or five days of the week. (Doc. 9-1, p. 53). She also testified that the medications she is currently on have not led to any substantial improvement. (Doc. 9-1, p. 53). Garner stated she is on the medication “because it is the $4 plan.” (Doc. 9-1, p. 53). But if she can get approved for insurance or Medicaid, they will put her on what she needs. (Doc. 9-1, p. 53). She sees a counselor once a month and a doctor usually every three to four months. (Doc. 9-1, p. 53). Garner stated she has had severe depression for about ten years. (Doc. 9-1, p. 54). She further testified that in 2014, her onset date, depression had been ongoing for some time. (Doc. 9-1, p. 54).

         Garner stated that there are triggers to the PTSD episodes, such as being around someone arguing. (Doc. 9-1, p. 54). She will feel like she can see “him” hitting her, and she will be on the floor in the fetal position. (Doc. 9-1, p. 54). Garner testified she went through that for 24 years. (Doc. 9-1, p. 54). She testified she has had guns and knives pulled on her, and had a shotgun stuck down her throat. (Doc. 9-1, p. 55). When an episode is triggered, it takes her back to that. (Doc. 9-1, p. 55). She testified this has happened to her at work. (Doc. 9-1, p. 55).

         With her sciatica and back pain, Garner can only do things for about ten to fifteen minutes before she must sit down. (Doc. 9-1, pp. 55-56). Her back goes weak and starts hurting. (Doc. 9-1, p. 56). The only thing that will stop it is lying flat on her back. (Doc. 9-1, p. 56). Garner has fallen because of her back. (Doc. 9-1, p. 56). She stated she has fallen down the doorsteps and getting out of the bathtub. (Doc. 9-1, p. 56). Garner treats her arthritis and sciatica pain with ibuprofen 800. (Doc. 9-1, p. 57). She testified she is allergic to codeine. (Doc. 9-1, p. 57). She testified she cannot afford other treatment, such as physical therapy. (Doc. 9-1, p. 57).

         Garner stated she was not sure she could stand more than ten or fifteen minutes at a time on any job. (Doc. 9-1, p. 57). Garner further stated that when her legs go numb, she would fall down. (Doc. 9-1, p. 57). As to whether she felt she could do a job without dealing with the public where she could sit for six out of eight hours, Garner stated she normally has to sit a while and lie down a while. (Doc. 9-1, p. 58). Garner testified that sitting does not stop the back pain. (Doc. 9-1, p. 58). She must lie down for a couple of hours for her back. (Doc. 9-1, p. 58).

         The VE asked Garner about her past work. (Doc. 9-1, p. 59-60). Garner testified that she was a transportation officer at the correction center. (Doc. 9-1, p. 60). She drove inmates to court or the doctor in a van. (Doc. 9-1, p. 60). She did not manage other drivers or do dispatch. (Doc. 9-1, p. 60). The VE also asked Garner about her deli work at Wal-Mart. (Doc. 9-1, p. 61). Garner testified she sliced meat at the Wal-Mart deli. (Doc. 9-1, p. 61). She did not check out customers. (Doc. 9-1, p. 61).

         The VE testified that Garner worked as an assembler, DOT[2] number 706.684-022, SVP of 2, unskilled, light. (Doc. 9-1, p. 61). The VE testified Garner worked as a cook, DOT number 313.361-014, SVP of 7, skilled medium. (Doc. 9-1, p. 61). Garner worked as a deli clerk, DOT number 316.684-014, SVP of 3, semiskilled, light. (Doc. 9-1, p. 62). Garner also worked as a van driver, DOT number 905.663-018, SVP of 3, semiskilled, medium. (Doc. 9-1, p. 62).

         The ALJ asked the VE to assume a hypothetical individual with the same age, education, and past work experience as claimant with the following limitations: light work; occasionally climb ladders, ropes and scaffolds, limited to frequent stooping, kneeling, crouching, and crawling; occasionally exposed to workplace hazards such as moving mechanical parts and high exposed places; work in a low-stress work environment, defined as simple and routine tasks with no inflexible or fast-paced production requirements such as assembly line work and no more than occasional changes in work setting; can tolerate occasional interaction with the public and occasional interaction with coworkers; and can accept instructions and respond appropriately to supervisors with interaction occurring one or two times throughout the workday. (Doc. 9-1, p. 62-63). The ALJ asked the VE if, based on those limitations, whether any of the past work was available. (Doc. 9-1, p. 63).

         Regarding the ALJ's hypothetical, the VE testified there was no past work available to that individual. (Doc. 9-1, p. 63). The VE testified there are other jobs in the national economy such a person could perform. (Doc. 9-1, p. 63). The VE testified that the individual with such limitations could work as a cleaner, housekeeping, DOT number 323.687-014, SVP of 2, unskilled, light (929, 540 jobs in the national economy). (Doc. 9-1, p. 63). The VE further testified the individual could work as a bakery racker, DOT number 524.687-018, SVP of 1, unskilled, light (420, 520 jobs in the national economy). (Doc. 9-1, p. 63). The VE testified the individual could work as a mail clerk, DOT number 209.687-026, SVP of 2, unskilled, light (99, 190 jobs in the national economy). (Doc. 9-1, p. 63).

         The ALJ asked the VE to assume medical conditions, pain, and mental impairments caused the person to miss work four days per month. (Doc. 9-1, p. 63). The VE testified that those factors would eliminate competitive employment. (Doc. 9-1, p. 63). The ALJ also asked the VE to assume that work must allow the individual to be off task 20% of the workday in addition to regular breaks. (Doc. 9-1, p. 63). The VE testified those factors also eliminate competitive employment. (Doc. 9-1, p. 64).

         Garner's counsel asked the VE to assume, in addition to the court's assumptions of four absences even during the probationary period and 20% off task, that there would be a need for frequent breaks in addition to those normally afforded. (Doc. 9-1, p. 64-65). The VE testified that such assumptions would rule out competitive employment. (Doc. 9-1, p. 65). Garner's counsel defined frequent breaks as no less than two additional breaks each morning and two additional breaks each afternoon, lasting no less than ten minutes. (Doc. 9-1, p. 65). The VE testified her answer would be the same. (Doc. 9-1, p. 65).

         The VE testified that there are 8, 390 jobs available in the local economy for the housekeeper job. The VE acknowledged that conditions of the housekeeper job - standing, pulling, twisting, lifting - could vary from room to room. (Doc. 9-1, pp. 66-67). The VE acknowledged that the housekeeper job afforded more discretion than lower level jobs but requires standing possibly more than ten to fifteen minutes at a time. (Doc. 9-1, p. 67). Garner's counsel asked the VE to assume an individual, in addition to the court's hypothetical and all prior assumptions, could not stand for more than fifteen minutes at a time. (Doc. 9-1, p. 67). The VE testified that the individual would not be able to perform any of the available jobs she provided with those limitations. (Doc. 9-1, p. 67).

         Outside of the previous assumptions, Garner's counsel asked the VE to assume that the hypothetical individual had more than one episode of PTSD during the probationary period. (Doc. 9-1, p. 68). Garner's counsel clarified that the PTSD episode resulted in the individual being in the fetal position and whether the jobs offered would accommodate such limitation. (Doc. 9-1, p. 68). The VE testified that the answer was no. (Doc. 9-1, p. 69).

         The VE testified she has not placed anyone in the other jobs offered in the last two years, and has not analyzed these jobs during research or labor market surveys in the last couple of years. (Doc. 9-1, p. 69). The VE used OccuBrowse to derive incidents data, which comes from the Census Bureau. (Doc. 9-1, p. 70). The VE testified she is not actively engaged in any labor market research. (Doc. 9-1, p. 70). She also confirmed the DOT titles of the jobs provided were last updated in 1991, and that her software was last updated in 2016. (Doc. 9-1, p. 70). Garner's counsel objected to the incident statements offered and jobs available based on that incidents data. (Doc. 9-1, p. 7). Garner's counsel stated there were no other documents or evidence to add to her file. (Doc. 9-1, p. 71).

         Using the first hypothetical, the ALJ asked the VE whether that individual would have any transferable skills from the past employment that would transfer to sedentary. (Doc. 9-1, p. 71). The VE testified there were none. (Doc. 9-1, pp. 71-72). The ALJ also asked the VE whether there are any conflicts between the DOT requirements and the hypothetical limitations given. (Doc. 9-1, p. 72). The VE testified that the stress level and the occasional interaction ...


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