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Fossett v. Wilson

United States District Court, N.D. Alabama, Middle Division

November 21, 2014

CAROLYN W. WILSON, Acting Commissioner of Social Security, Defendant.


R. DAVID PROCTOR, District Judge.

Plaintiff Melissa Ann Fossett brings this action pursuant to Title II of Section 205(g) of the Social Security Act (the "Act"), seeking review of the decision of the Commissioner of Social Security ("Commissioner") denying her claims for a period of disability and disability insurance benefits ("DIB"). See 42 U.S.C. ยง 405(g). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

I. Proceedings Below

This action arises from Plaintiff's application for disability and DIB, dated March 12, 2010, alleging disability beginning on October 15, 2009. (Tr. 111). Plaintiff's application was initially denied by the Social Security Administration on July 14, 2010. (Tr. 47). Plaintiff subsequently requested and received a hearing before an Administrative Law Judge ("ALJ"). (Tr. 58-65, 84). The hearing was held on February 21, 2012, via video conference in Birmingham, Alabama. (Tr. 23-38). Plaintiff appeared in Gadsden, Alabama, and was accompanied by her attorney. (Tr. 23). Also present at the hearing was a vocational expert ("VE"). ( Id. ). In his decision dated April 6, 2012, the ALJ found Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act. (Tr. 19). The Appeals Council denied Plaintiff's request for review of the ALJ's decision, thereby making that decision (1) the final decision of the Commissioner, and (2) a proper subject of this court's appellate review. (Tr. 1).

At the time of the hearing, Plaintiff was forty-five years old and had completed a high school education. (Tr. 111, 116). Plaintiff previously worked as an electronics assembler and group leader of circuit board assembly. (Tr. 34). Plaintiff's last day of work was October 15, 2009; she testified she was fired because of her frequent absences. (Tr. 32, 115). Plaintiff alleges limitations due to cervical facet syndrome, degenerative disc disease with chronic back pain and headaches, SI Syndrome, and lower back sciatic nerve pain. (Tr. 26, 145). Plaintiff also has diagnoses of Diabetes Mellitus, hypertension, and past kidney stones. (Tr. 177). In her application for disability benefits, Plaintiff noted that her daily activities included cooking breakfast, lunch and dinner, taking care of her child and grandchildren, [1] and doing household chores such as washing dishes, laundry, sweeping, and vacuuming. (Tr. 133). Plaintiff further noted she was able to shop for "food and necessities." (Tr. 31, 134).

In contrast, during the hearing Plaintiff testified that she cannot sit, stand, or walk for a long period of time due to pain. (Tr. 28). She stated that she cannot lift more than ten (10) to fifteen (15) pounds, and that she has headaches everyday with one "real bad" headache each week. (Tr. 28-30). Plaintiff described the headache pain as "excruciating, " and stated that she "take[s] a Zanaflex and relax[es] back, " but that Zanaflex (as well as Lortab) make her sleepy. (Tr. 28-31). When discussing her pain with the ALJ, Plaintiff rated her pain on an average day as a nine (9) on a ten (10) point scale. (Tr. 31). In response to the ALJ's question regarding her recent ablation procedure, Plaintiff stated it only helped "a little bit." (Tr. 32). When asked about her daily activities, Plaintiff stated, "I lay around, kick back in my recliner because I'm hurting so bad I can't function. I can't even do housework." (Tr. 31). Plaintiff also represented to the ALJ that she needs assistance caring for her two step-grandchildren. (Tr. 32-33).

Plaintiff's past medical history is extensive. In 2003, she underwent anterior cervical discectomy and fusion. (Tr. 160). In 2008, she was treated for SI Syndrome with a series of injections and physical therapy, in addition to two epidural blocks for back pain. (Tr. 172, 179, 180-81, 198). During her alleged period of disability, Plaintiff regularly sought treatment from Dr. Craze at Grant Family Medicine for a variety of ailments, but most notably for complaints of headaches, which were reportedly made worse after she suffered a fall at work in 2009. (Tr. 188, 340). In records from Grant Family Medicine, Plaintiff reported experiencing "shooting pain" and swelling in her neck on November 2, 2010. (Tr. 266). Due to her recurring neck pain, Plaintiff was also seen by Marshall Medical Center North Pain Clinic[2] ("Pain Clinic") and the Spine & Neuro Center for treatment. (Tr. 250-62, 304-29).

From August 2010 through November 2011, Plaintiff received approximately eleven injections/medial branch blocks. (Tr. 250-51, 257, 259, 261, 287-88, 294, 307, 317). Records from the Pain Clinic show Plaintiff was afforded "100% relief" and her pain was "still better today than it was before." (Tr. 259-60). On another occasion, the record shows that Plaintiff again received "100% relief" for a period of "over two months, " and had "excellent relief from prior epidural steroid injections." (Tr. 252, 255). The Spine & Neuro Center records state that after receiving physical therapy and a nerve block, Plaintiff noted fifty percent (50%) relief of her pain, despite having a reoccurrence of headaches. (Tr. 313). Plaintiff has not received treatment for her alleged disability, except pain medications, since November 2011 due to inability to pay her copay. (Tr. 27).

Upon request of the Social Security Administration, Dr. Yousem Ismail saw Plaintiff for an examination on June 21, 2010. (Tr. 237). During that evaluation, Plaintiff reported that she had a spinal block in the past that "did not help much, " and had taken part in physical therapy "without much relief." (Tr. 238). Dr. Ismail noted Plaintiff's gait was normal and she did not require an assistive device to walk. (Tr. 240). Dr. Ismail further noted that "[p]roper medical evaluation, weight reduction, as well as occupational and physical rehabilitation will be beneficial for [Plaintiff]." ( Id. ).

On July 14, 2010, Dr. Robert Heilpern completed a Residual Functional Capacity assessment ("RFC") of Plaintiff. (Tr. 241). The RFC showed that Plaintiff was capable of occasionally lifting twenty (20) pounds, and frequently lifting ten (10) pounds. (Tr. 242). It was determined that Plaintiff was capable of sitting, standing/walking for a total of six (6) hours in an eight (8) hour work day. ( Id. ). Additionally, Plaintiff was capable of frequently climbing ramps/stairs, balancing, kneeling, and crawling, and found to be capable of occasionally stooping, and crouching, but never capable of climbing a ladder, rope or scaffolds. (Tr. 242-43). Based on a review of the record, Dr. Heilpern determined that Plaintiff's complaints of symptoms were only "partially credible, " because the objective evidence did not support the level of severity alleged. (Tr. 246).

At the time of the hearing, Plaintiff had not yet received a disability statement from her primary physician, Dr. Craze; however, that statement was received and reviewed before the ALJ issued his decision. (Tr. 27). In the disability statement, Dr. Craze reported that Plaintiff had been a patient since 2007, and that her "main problems include degenerative disc disease throughout her back" and her pain from that disease is "concentrated in her neck and shoulders." (Tr. 340). Dr. Craze also stated that Plaintiff's cervical discectomy in 2003 led to "persistent off and on pain." (Tr. 340). Dr. Craze added that Plaintiff has frequent headaches "arising from the back of her neck and going into her head." ( Id. ). Dr. Craze also reported that Plaintiff takes some medications that impair her ability to function. ( Id. ). Dr. Craze ended her statement by stating that Plaintiff had missed work due to her pain, which is a "chronic, long-term condition and she will have frequent flare-ups." ( Id. ).

During the hearing, the ALJ posed hypothetical questions to the VE. (Tr. 33). In the first hypothetical, the ALJ asked if a person with the same education, training, and work experience, limited to light exertion[3], could perform Plaintiff's past relevant work. The VE stated that the person could, in fact, perform the work. (Tr. 35). The ALJ then posed a second hypothetical, including the same qualities of the individual in the first hypothetical, but adding a limitation that the individual could lift and carry fifteen (15) pounds, but would require a sit or stand option.[4] Again the VE stated that the person could perform the work. (Tr. 36). In the third hypothetical, the ALJ added the elements of breaks and absences. ( Id. ). The ALJ asked the VE what the vocationally acceptable tolerance for both breaks and absences would be for an individual with the same qualities discussed in the previous hypotheticals. ( Id. ). In response, the VE stated that the individual should be on break for no more than one (1) hour total during an eight (8) hour workday, and should not miss more than ten (10) to fifteen (15) working days per year. ( Id. ). In his final hypothetical, the ALJ used the same qualities as above, but added that the individual would need to recline during an eight (8) hour workday, and asked the VE what effect that would have on her previous answers. ( Id. ). The VE stated that reclining during an eight (8) hour day would most likely not be tolerated in a work setting and that the individual would not likely be able to perform competitive work. (Tr. 37).

Based on the VE's testimony, Plaintiff's testimony, and the entirety of the record, the ALJ determined that Plaintiff's RFC renders her capable of performing past relevant work, and therefore, is not disabled as defined ...

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