United States District Court, N.D. West Virginia, Elkins
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE.
February 17, 2017, Plaintiff Susan Ann Shoulders
(“Plaintiff”), by counsel Jan Dils, Esq., filed a
Complaint in this Court to obtain judicial review of the
final decision of Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security (“Commissioner”
or “Defendant”), pursuant to Section 205(g) of
the Social Security Act, as amended, 42 U.S.C. § 405(g).
(Compl., ECF No. 1). On April 26, 2017, the Commissioner, by
counsel Helen Campbell Altmeyer, Assistant United States
Attorney, filed an answer and the administrative record of
the proceedings. (Answer, ECF No. 6; Admin. R., ECF No. 7).
On May 25, 2017, and June 30, 2017, Plaintiff and the
Commissioner filed their respective Motions for Summary
Judgment. (Pl.'s Mot. for Summ. J. (“Pl.'s
Mot.”), ECF No. 9; Def.'s Mot. for Summ. J.
(“Def.'s Mot.”), ECF No. 13). Following
review of the motions by the parties and the administrative
record, the undersigned Magistrate Judge now issues this
Report and Recommendation to the District Judge.
January 22, 2013, Plaintiff protectively filed her first
application under Title II of the Social Security Act for a
period of disability under Title XVI of the Social Security
Act for Supplemental Security Income (“SSI”),
alleging disability that began on August 17, 2011. (R. 181).
Plaintiff's earnings record has no date last insured
listed (R. 194). This claim was initially denied on July 31,
2013 (R. 112) and denied again upon reconsideration on
November 13, 2013 (R. 120). On January 3, 2014, Plaintiff
filed a written request for a hearing (R. 123), which was
held before United States Administrative Law Judge
(“ALJ”) Karen Kostol on June 17, 2015 in
Morgantown, West Virginia. (R. 31-72). Plaintiff, represented
by Ambria Adkins at the hearing, appeared and testified, as
did Casey Vass, an impartial vocational expert.
(Id.). On July 2, 2015, the ALJ issued an
unfavorable decision to Plaintiff, finding that she was not
disabled within the meaning of the Social Security Act. (R.
15-25). On December 21, 2016, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner. (R. 1-4).
was born on January 27, 1964, was forty-nine (49) years old
when she filed her claim (R. 181), and fifty-one (51) years
old at the time of the hearing. (R. 40). She completed
eleventh grade, and never obtained a GED; Plaintiff further
testified that she was in special education classes for the
duration of her schooling. (R. 42). Plaintiff's prior
work experience included video attendant, telemarketer,
waitress, and short order cook. (R. 24). She was divorced at
the time she filed her initial claim (R. 181) and was
divorced at the time of the administrative hearing. (R. 33).
She has four children, none of whom are dependent or live
with her. (R. 222, 696). Plaintiff alleges disability based
on major depressive disorder (severe with psychotic
features), generalized anxiety disorder, polyneuropathy,
memory impairment, chronic lower extremity edema, peripheral
arterial disease, partial amputation of second and third left
toes, and exogenous obesity. (R. 289).
Relevant Medical History
issue on appeal is the ALJ's treatment of psychological
evidence; no arguments are raised as to Plaintiff's
physical conditions or limitations. Accordingly, review of
evidence is limited to psychological evidence only for
relevance and brevity.
Medical History Post-Dating Alleged Onset Date of August 17,
began receiving mental health treatment from Community Mental
Health Center (“CMHC” - Upshur County) in July of
2013. (R. 681). At her initial intake assessment, Plaintiff
reported that she was “seeking treatment for
depression.” (R. 681). Plaintiff was referred for
mental health treatment by her primary care doctor; she noted
that “[h]er family physician has prescribed her
anti-depressant medication, ” but she had never
attended therapy. Id. At that appointment, it was
noted that “Susan experiences moderate to severe
depressive symptoms daily.” Id. Plaintiff
reported that she “does not return phone calls and has
no desire to spend time with other friends or family
members.” Id. Although she “used to make
an effort to spend time with her grandchildren,  she has
not seen [them] in several months.” Id. She
has also not visited her son, who is institutionalized
“in the State hospital” as a result of
schizophrenia, in several months. (R. 682). She reported
“that she could be verbally aggressive, ” and as
a result, she tried to avoid “situations that she knew
would turn volatile.” Id.
intake appointment, Plaintiff appeared “somewhat
disheveled, ” but she was clean and appropriately
dressed. (R. 683). She reported being unable to sit still.
Id. Plaintiff was cooperative and communicative, and
appeared to be relaxed. Id. Plaintiff's speech
was observed to be “slow, ” and she appeared to
have “a hard time recalling events.” (R. 683).
Her mood was observed as “depressed and irritable,
” and her affect “flat.” Id. She
reported significant problems with concentration and being
“quite forgetful.” Id. Plaintiff
reported experiencing both auditory and visual
hallucinations. Id. Plaintiff's insight and
judgment were deemed “fair.” Id. She
reported suicidal ideations three to five (3-5) times per
week, but denied any plans or means to follow through with
September 17, 2013, Plaintiff was seen for a psychiatric
intake evaluation at United Summit Center by Linda McPherson
(“USC” - Buckhannon). (R. 694). Plaintiff stated
“I just can't stand being around people.”
Id. She reported that her moods worsened after her
mother's death in 2009, around which time she also got
divorced - there was “a lot of drama going on at th[at]
time.” Id. She reported that she would just
“rather sleep” - sometimes all night and all day
the next day. Id. She “doesn't want to be
bothered, ” does not want to talk on the phone, and
does not like to be around anyone. Id. “Things
are getting progressively worse.” Id.
Plaintiff continued to report passive suicidal thoughts.
Id. She reported feeling hopeless and useless.
Id. She noted a family history of mental conditions,
including her mother (schizophrenic), son (schizophrenic,
bipolar, mood disorder), her daughter (attempted suicide),
and her other son (suicidal and homicidal). Id.
Plaintiff was diagnosed with Major Depressive Disorder,
recurrent, severe, with psychotic features, and assigned a
Global Assessment of Functioning (“GAF”) score of
50. (R. 695). Plaintiff was directed to continue taking
Prozac, discontinue Paxil, take Tegretol, and do therapy.
December 3, 2013, Opal Fox with CMHC completed a mental
status assessment. Plaintiff was dressed appropriately with
good hygiene, cooperative, and maintained good eye contact.
(R. 692). Speech and thought processes were normal.
Id. Plaintiff's affect was normal and her mood
congruent. Id. Although Plaintiff admitted having
auditory hallucinations, she did not appear to be having any
hallucinations at that time. Id. She denied having
any delusions. Id. Plaintiff complained again of
memory problems, though Fox noted both appeared to be intact
during the interview. Id. Fox also administered the
Adult Functional Assessment and Plaintiff's scores were
as follows (R. 692): Domain I - mild self care dysfunction
(R. 685); Domain II - moderate dysfunction; Domain III -
moderate social, interpersonal, and family dysfunction (R.
685); Domain IV - marked concentration and task performance
dysfunction, moderate hallucinations, moderate poor
concentration, moderately suspicious (R. 684); and Domain V -
mild maladaptive, dangerous, and impulsive behaviors
dysfunction. (R. 685).
was diagnosed with Major Depressive Disorder, recurrent,
severe with psychotic features, and a GAF score of 50.
Id. By the next review scheduled for March 2014, the
treatment plan listed the following outcome objectives:
Plaintiff will 1) “reduce her moderate symptoms of
hallucinations, poor concentration and suspiciousness as
evidenced by the Comprehensive Clinical Assessment to a
targeting rating of mild or not present;” (R. 684); 2)
“reduce her severe symptoms of agitation as evidenced
by the Comprehensive Clinical Assessment to a targeted rating
of moderate or mild, ” (R. 685); and 3) “reduce
her mild symptoms of suicidal ideations as evidenced by the
Comprehensive Clinical Assessment to a targeting rating of
not present.” (R. 686).
case manager referred her for an evaluation because Plaintiff
had “been experiencing a significant level of symptoms
and expressed concern over her diagnosis due to family
history of mental illness and medication inefficacy.”
(R. 696). On February 10, 2014, psychologists Laura Wilson,
M.A. and Dennis Kojaza, Ph.D. completed a psychological
evaluation of Plaintiff at USC. Id. Wilson reviewed
Plaintiff's chart, conducted a clinical interview and
mental status examination, and administered the Weschler
Abbreviated Scale of Intelligence (WASI-II) and the Minnesota
Multiphasic Personality Inventory (MMPI-2). Id.
clinical interview, Plaintiff again reported a worsening of
her symptoms following her mother's death in 2009. (R.
697). She reported having “difficulty interacting with
others and can become verbally abusive towards them.”
Id. She reported that she “remains isolated at
home so that she does not have to interact with
others.” Id. She reported having “to be
prompted to take showers and to leave [her] home.”
Id. She complained of memory problems and complained
that tasks took “longer than they should, either
because she gets off track or because she does not care to
complete them.” Id. She reported being
“easily frustrated with everything” and
experiencing “rapid mood changes where she will be
happy and then snap to anger.” Id. She
reported sleeping much of the day, and prefers being asleep
to being awake. Id. “[A]t time she feels as
though someone is talking to her and she is answering . . .
she hears voices in her head and it feels as though she is
telling herself a story and prompting her throughout the
the mental status assessment, Wilson noted that Plaintiff was
clean and dressed appropriately. (R. 698). She was
cooperative, and motor skills appeared intact. Id.
Plaintiff “presented with depression and some
irritability, ” described her mood as “sad,
” and evidenced an “average” range of
emotional expression. Id. Speech was normal;
Plaintiff was appropriately oriented. Id. Although
immediate memory was intact, “delayed” memory was
“impaired as evidenced by her ability to only recall
one of the four items previously presented after a short
delay.” Id. Plaintiff also had “some
difficulty” providing specific details about her
personal history, indicative of remote memory issues.
Id. Insight and judgment were deemed
“fair.” Id. Plaintiff again reported
passive suicidal thought with no plan or intent. Id.
the WASI, Wilson noted that although Plaintiff's IQ
scores were “Borderline” or “Extremely Low,
” that was “not likely truly representative of
Susan's intellectual ability, as she exhibited some
resistance towards clarifying answers on certain subtests and
admitted that she often becomes easily frustrated with
tasks.” (R. 698).
the MMPI-2, Wilson noted that Plaintiff's “MMPI-2
profile was invalid due to significantly elevated validity
scales.” (R. 699). “Possible explanations for her
high response rate (on the deviant scale items) include:
reading problems, a plea for immediate help for significant
symptoms, and to derive secondary gains.” Id.
Wilson was able to eliminate one of those options - reading
problems - because Plaintiff's “functional
abilities and scores on the VRIN and TRIN validity scales
rule out reading problems as a contributing factor.”
Wilson did not eliminate either of the two remaining possible
explanations for the invalidity of the MMPI-2 results.
Id. Wilson also observed that regardless of the
issues with the personality inventory (MMPI), she
believed that Plaintiff nonetheless “[wa]s likely
experiencing a significant level of
depression.” Id. (emphasis added).
Like consultative examiner Morgan, Wilson also noted that
Plaintiff's “history of tumultuous relationships
and aggressive interpersonal skills may be a result of a
specific personality disorder that is not evident at this
time.” (R. 699-70). Wilson also noted that
Plaintiff's “symptoms of consistent sadness,
irritability, loss of interest, self-neglect, fleeing
suicidal ideation, and concentration problems support”
the Major Depressive Disorder diagnosis (severe) Plaintiff
was regularly assigned. (R. 699). Wilson recommended that
Plaintiff continue medication management and could also
benefit from individual therapy to address angry outbursts.
review assessment at CMHC on March 26, 2014, Plaintiff
continued to report “mild suicidal thoughts and stated
that she does not ‘want to be in this world
anymore.'” (R. 687). She reported that she and her
boyfriend broke up “because she always
‘snapped' at him.” Id. She
complained of frequent mood swings and not sleeping much at
night. Id. She reported not feeling like doing much
lately, having no energy, and needed to be told to take a
shower. Id. She reported anxiety and “picking
at her fingernails due to [the anxiety].” Id.
She does not like being around people and stated she would
like “to run away to Utah.” Id. She
continued to experience suicidal thoughts with no plan or
intent. She continued to experience suicidal thoughts with no
plan or intent. Id. Her diagnosis of Major
Depressive Disorder, recurrent, severe, with psychotic
features - “as evidenced by her suicidal ideations,
withdrawal, impulsivity, verbal aggression, hallucinations,
poor concentration, suspiciousness, depression, guilt,
anxiety, hopelessness, agitations, hyperactivity,
distractibility, loss of interest, change in appetite and
sleep difficulties.” (R. 688). She was assigned a GAF
score of 50. Id.
began treating at Bridgeport Behavioral with Dr. Salman in
May of 2014. (R. 820). Her intake evaluation noted chief
complaints were depression and anxiety since 2004 and
worsening over the years. Id. She complained of
difficulty remembering things, irritability
(“'snaps' at people”), racing thoughts,
insomnia, mood swings, crying spells, and paranoia
(“always feels like people are talking about
her.”). Id. Plaintiff was oriented, her speech
was clear, and hallucinations was marked “?
Unsure.” Id. Mood was described as
“okay, ” and affect was reactive. Id.
Occasional passive suicidal ideations were noted.
Id. A GAF score of 45 was assigned. (Axis V).
visits spanning June 2014 - May 2015 continue to document the
same - repeated complaints of poor sleep, feeling emotional,
mood swings, crying spells, and racing thoughts. Though
Plaintiff was generally cooperative, had good eye contact,
and clear speech, she also regularly evidenced a depressed or
anxious mood and labile or blunted affect, and delusions or
hallucinations were sometimes noted. On July 30, 2014
Plaintiff reported that she “no longer feels like
jumping out of [her] skin, ” but “still [was] not
[doing] good, ” and continued to complain of racing
thoughts, and feeling depressed and hopeless. (R. 817). In
August 2014 she complained of mood swings and feeling
emotional (reporting she would cry when watching television).
(R. 816). In October 2014 Plaintiff again complained of mood
swings and feeling emotional; she was frustrated with weight
gain and her medication, and wanted Risperdal switched to
something else. (R. 815).
January 13, 2015, Plaintiff “admit[ted] that she
continues to feel easily provoked [and] irritated, ”
experienced anxiety attacks, and reported a confrontation in
which she felt “agitated” and “got in in
[a] man's face and yelled at him.” (R. 814). In
February 2015 she reported sleeping better, but in terms of
moods and behaviors she was “about the same . . .
irritated by ‘people' in general, mood swings . . .
paranoia [she felt like people are talking about her], racing
thoughts, ” feeling isolated and withdrawn, and still
“snapping quickly at family and friends.” (R.
813). By March 2015 her sleep was worse again, and her
“mood swings and anxiety [we]re continuing
problems.” (R. 812). In April 2015 Plaintiff was
“not feeling good” and continued to feel
depressed and have mood swings, and reported that she
“feels more anxious lately.” (R. 811). On May 1,
2015, Plaintiff reported visual hallucinations (“having
a vivid vision of her son and the police coming in”),
feeling overwhelmed, and continued mood swings. (R. 810). On
May 29, 2015, Plaintiff reported improvement in her restless
leg syndrome, but her sleep was still “poor, ”
she was still irritable. (R. 809).
Disability Determination at the Initial
8, 2013, agency reviewer Jim Capage, Ph.D. reviewed
Plaintiff's records, evaluated listings 12.04 (affective
disorders and 12.06 (anxiety disorders), and completed a
psychiatric review technique (“PRT”) and Mental
Residual Functional Capacity (“MRFC”) assessment.
(R. 78). In his PRT, Capage found mild limitations of
Plaintiff's activities of daily living, moderate
difficulties in maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence or
pace. (R. 79). As to sustained concentration and persistence
limitations, Capage found Plaintiff had moderate limitations
in her ability to 1) carry out detailed instructions, 2)
maintain attention and concentration for extended periods, 3)
work in coordination with or in proximity to others without
being distracted by them, and 4) complete a normal workday
and workweek without interruptions from psychologically-based
symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. (R. 81-82).
As to social interaction limitations, Capage found Plaintiff
was moderately limited in the ability to 1) accept
instructions and respond appropriate to criticism from
supervisors, and 2) get along with coworkers or peers without
distracting them or exhibiting behavioral extremes.
Id. (R. 82). As to adaptation limitations, Capage
answered “Yes” to the question, “Does the
individual have adaptation limitations?” but went on to
list that Plaintiff was “not significantly
limited” or had “no evidence of limitation”
in each category of adaptive limitations. Id. Capage
added that Plaintiff's “impairments are severe, but
do not meet nor equal these listings, ” (R. 78), and
MRFC assessment indicates that the [Plaintiff] can learn and
perform at least routine 2-3 step work-related activities.
Tasks should be low stress with no fast-paced production
quotas, no supervisory responsibilities, and no complex
decision making. She can sustain basic work interactions, but
is best suited to work at tasks that do not require
cooperative endeavors in a setting that calls for no more
than occasional and superficial social interaction.
(R. 82-83). Plaintiff was found partially credible as to her
mental complaints because her “statements concerning
her [symptoms] and related functional limitations appear to
exceed that supported by the [medical evidence of record] and
are deemed not fully credible.” (R. 79). Under
“Weighing of Opinion Evidence, ” the
determination stated “[t]here is no indication that
there is medical or other opinion evidence” (R. 79);
and under “Reconciling of Source Opinion, ”
“[t]here is no indication that there is opinion
evidence from any source.” (R. 83).
Disability Determination at the Reconsideration
disability determination at reconsideration indicated
additional psychological records dated July 8, 2013 and
September 17, 2013. (R. 91). On October 30, 2013, agency
reviewer Ann Logan, Ph.D. reviewed the prior PRT and MFRC
assessments and affirmed them. (R. 93). Logan noted only that
the “[n]ew evidence [was] received and reviewed. No
change in assessment.” Id.
Consultative Examination - Mental Assessment
29, 2013, Morgan D. Morgan, M.A. completed a consultative
mental assessment of Plaintiff at the Commissioner's
request, including a mental status examination and clinical
interview. (R. 505). Morgan noted that he reviewed records
from the Tri-County Health Clinic, Southern Upshur County,
and United Hospital Center. (R. 506). Morgan recounted
Plaintiff's subjective complaints as follows:
SUBJECTIVE SYMPTOMS: The client reported history of recurrent
depressive episodes. She described her current mood as
typically depressed. She reported problems with attention,
concentration, and recall. The client reportedly frustrates
easily and displays irritability. She reported symptoms of
anhedonia, as well as a diminished libido. She reported guilt
feelings. She is an anxious individual who readily ruminates
over problems. She sometimes feels restless and apprehensive.
The client reportedly paces or picks at her nails. She has a
history of poor anger control. Relationships have often been
highly tempestuous and problematic. Her sleep is reportedly
disturbed. Her appetite is diminished. She has been losing
weight. The client reported occasional crying spells. Her
energy level is diminished. She denied any past suicide
attempts or any current plan of suicide. She denied a history
of mania, PTSD, or psychosis.
(R. 505-06). Objective symptoms observed by Morgan included
that Plaintiff appeared “somewhat tense” and
“somewhat irritated” at times, with restricted
affect. (R. 508). Her mood was dysphoric and occasionally
anxious. Id. Morgan also noted that Plaintiff was
cooperative and compliant, and her eye contact was good, with
no abnormalities noted as to posture or gait. (R. 507).
Speech and verbal responses were within normal limits.
Id. Morgan noted that Plaintiff was oriented to
time, name, and place, but was uncertain of the date.
Id. Plaintiff's insight was mildly deficient;
her judgment was within normal limits. Id.
Plaintiff's immediate and remote memory were mildly
deficient, based on results of recall tests. (R. 507-08).
Plaintiff's recent memory was moderately deficient. (R.
509). Her social functioning was moderately deficient, based
upon the assessment. Id. Her concentration was
moderately deficient, based on the Digit Span subtest of the
WAIS-IV. (R. 508). Persistence was deemed mildly deficient,
based upon presentation. (R. 509).
diagnosed Major Depressive Disorder, recurrent, moderate;
Generalized Anxiety Disorder, and “probable Personality
Disorder” with a history of Borderline Personality
features. (R. 508). Social functioning was deemed moderately
deficient, based on the results of Morgan's assessment.
(R. 509). Morgan opined that Plaintiff's prognosis was
“poor.” (R. 508).
Verification of Disability Form
at issue here, on November 11, 2014, Dr. Salman completed a
Verification of Disability form for Plaintiff pursuant to an
application for her to reside at Weston Arbors, subsidized
housing for the elderly and disabled. (R. 821-823). Unlike a
Medical Source Statement form as is typically completed by
treating physicians for the Commissioner, this “check
box”-style form solicited only a few basic questions.
(R. 822). Dr. Salman checked “Yes” to indicate
that Plaintiff had “a disability, as defined in 42
U.S.C. 423, which means [an] inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment that . . . has
lasted or can be expected to last for a continuous period of
not less than 12 months.” Id. He also checked
“Yes” to indicate that Plaintiff had “a
physical, mental, or emotional impairment that is expected to
be on long-continued and indefinite duration.”
Id. This form did not solicit or provide any space
for the completing physician to indicate functional
limitations or explain his answers to the checkbox questions,
noting that information requested included “only the
minimum information necessary to determine whether you meet
the applicable definition of disability . . . Any other
request for information about you is not relevant and may not
be asked (e.g., diagnosis, treatment plan). (R. 823).
ALJ hearing held on June 17, 2015, Plaintiff testified that
she was divorced and lived alone. (R. 41). She received food
stamps and a medical card. (R. 43).
worked in 2011 for a month or two at Jane Lew Trucking; she
left that job because she felt the people around her were
talking about her, and she could not handle the pace. (R.
45). She worked at the sports grill from November to February
of 2011. Id. She occasionally cooked and waitressed
at this job, but the majority of the time, she handled the
video game machines. (R. 49). She testified that she had to
count money and pay out money to customers, and “made a
lot of mistakes.” Id. She left that job
because her manager yelled at her, though she also had
problems with stress, anxiety and sitting still with that
job. (R. 46). Plaintiff worked for Crestview Manor Nursing
and Rehab doing housekeeping. (R. 47). She quit after two
weeks, again because she “couldn't handle the
people.” Id. Plaintiff worked for the Tele
Response Center doing telemarketing for a number of years.
asked Plaintiff what conditions she had the led her to
believe she could not work. Plaintiff testified that she
“wouldn't be able to remember” or operate a
register any longer, and cannot stay focused for long. (R.
51). She also finds it difficult to stay in one place and has
to walk constantly. Id. Moreover, she cannot be
around people as she cries a lot and “snap[s] real
attorney then questioned Plaintiff further about her
impairments. Plaintiff testified that after her toes were
amputated, she has difficulty staying balanced, both when
walking or standing still. (R. 52). She does not use any
assistive devices to walk. Id. She testified that
when she has trouble with her balance, “people make fun
of [her] because [she] look[s] like [she is] drunk, ”
and sometimes staggers. (R. 53). She continues to have
problems with edema (swelling) in her legs, which she notices
“at least once a day.” Id. She takes
Lasix for that, which her doctors took her off for a few
months due to complications with her kidneys, but she was
subsequently put back on. (R. 54). She testified that the
Lasix was helping some, but she still has to prop her legs up
every night and sometimes during the day due to the swelling.
Id. Plaintiff testified that her kidneys were being
monitored and checked every six months. (R. 55). She is also
having visual hallucinations “a few times a month,
” for which her dosage of Abilify was recently
mental health treatment, Plaintiff testified she has seen Dr.
Salman monthly for the past year for psychological issues and
also sees a therapist named Amy at the same office. (R. 56,
58). Prior to that, she was receiving counseling at United
Summit Center with Opal Fox. (R 56). Dr. Andrews also
prescribed her Prozac as well. Id. Plaintiff
currently lives in housing for senior citizens or the
disabled. Id. Although she did not meet the age
requirements, she was able to obtain housing there pursuant
to a statement from Dr. Salman that she was disabled. (R.
daily activities, Plaintiff testified that she rarely sees or
talks to her friend Faye any more. (R. 59). Now, her daughter
goes to the store with her approximately once a week, as she
“do[es not] like the people.” Id.
Plaintiff also goes out to the grocery store by herself when
she can borrow her daughter's car. (R. 60). She also goes
for walks on her own, to the store and back. Id.
When Plaintiff goes to Walmart by herself, she cannot stay
very long because she gets upset easily by the people there.
(R. 61). She has problems sleeping and takes a sleeping aid,
but still wakes up through the night and her mind races for
“about an hour.” Id. During the day,
Plaintiff testified that she spends some time with a friend
or watches television, though she “zone[s out]”
and cannot focus on what she is watching. (R. 62). She does
do some reading, and although she can read, she has problems
concentrating on what she is reading and loses her place.
Id. She tries to knit a blanket but it is taking a
long time because she can typically work on it for about half
an hour before she stops. (R. 63).
does not have problems lifting and carrying things, but does
have problems sitting for an extended period of time. (R.
63). She was prescribed medication to “make [her] more
relaxed” that helps her sit longer. (R. 63-64). She can
walk for about ten (10) minutes in one direction and ten (10)
minutes back. (R. 64). How long she can stand “depends;
[her] toes don't hit flat . . . so [she] fluctuates on
[her] standing.” Id. For that reason, she
cannot stand “even 20 minutes in one place.”
testifying at the hearing was Casey Vass, a vocational expert
(“VE”). VE Vass characterized Plaintiff's
past work as:
1. Video Attendant, DOT Code 342.667-014, unskilled, light
work with a specific vocational preparation
(“SVP”) of two (2); (R. 66).
2. Telemarketer, DOT Code 299.357-014, semi-skilled sedentary
work with an SVP of three (3); Id.
3. Waitress, DOT Code 311.477-030, semi-skilled light work
with an SVP of three (3); Id., and
4. Short Order Cook, DOT Code 313.374-014, semi-skilled light
work with an SVP of three (3). (R. 67).
clarified that the video attendant, waitress, and short order
cook work was a combination job. Id.
regards to Plaintiff's ability to return to her prior
work, VE Vass gave the following responses to the ALJ's
Q I ask that you assume an individual with the same, age,
education and past work experience as the claimant with the
following abilities. There are no exertional limitation in
this case. Said individual is capable of simple, routine, and
repetitive tasks in a low stress job, defined as having only
occasional decision making required, and occasional changes
in the work setting and no strict production quotas. Said
individual is capable of occasional interaction with the
general public, co-workers and supervisors. Can an individual
with these limitations perform any of the claimant's past
A That's out. That's out. That's out. Would only
be the - - [INAUDIBLE] No.
(R. 67). Incorporating the above hypothetical, the ALJ then
questioned VE Vass regarding Plaintiff's ability to
perform other work at varying exertional but unskilled
Q Okay. Is there other work this individual can perform?
A No exertion -- yeah, heavy, unskilled jobs?
A I would list a laborer. DOT number is 914.687-010, 94, 000
jobs in the nation; 1, 400 in the region. A lumber handler.
The DOT code is 922.687-070, 245, 000 jobs in the nation; 6,
200 in the region. Bakery worker. The DOT code is
520.585-010, 123, 800 in the nation; 3, 700 in the region.
These are unskilled, heavy jobs.
(R. 68). Finally, the ALJ questioned VE Vass about
Plaintiff's ability to work if she is completely credible
as to the severity of her condition:
Q Now, the second hypothetical. If you add a limitation that
said individual is capable than no more than medium
exertional level work. Can never climb ladders, ropes or
scaffolds. Can occasionally climb ramps or stairs, and
occasionally balance. Also, said individual must avoid