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Avant v. Saul

United States District Court, D. Nebraska

August 28, 2019

ALICIA D. AVANT, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration[1]; Defendant.


          Joseph F. Bataillon Senior United States District Judge.

         This is an action for judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”). Alicia Avant appeals a final determination of the Commissioner denying her application for Social Security benefits. This Court has jurisdiction under 42 U.S.C. § 405(g).

         I. BACKGROUND

         A. Procedural History and Introductory Information

         On March 17, 2015, and November 9, 2015, plaintiff Alicia D. Avant filed applications for disability benefits under Titles II and XVI of the Social Security Act, respectively, alleging that she became disabled on March 14, 2014, which was later amended to September 9, 2014. Filing No. 1, Complaint (“Complaint”) at 1.[2] Following a June 28, 2017, hearing, an administrative law judge (“ALJ”) denied benefits. Filing No. 15, Social Security Transcript (“Tr. 1”) at 32-75.[3] On May 9, 2018, the Appeals Council denied review, and the ALJ's decision stands as the final decision of the Commissioner. Id. at 1-6. Avant seeks review of the ALJ's order denying benefits. Filing No. 1 at 2.

         Alicia Avant is now forty-one years old. Filing No. 15-2 Tr. at 24. She has previous relevant work experience as a phlebotomist, Certified Nursing Assistant, and general cashier/store laborer. Id. Avant has a high school education and can communicate in English. Id. Her most recent full-time employment position was at CSL Plasma, which culminated in March of 2014. Filing No. 15-7 at 222. Avant earned nominal wages as a self-employed dog breeder in 2015. Filing No. 15-2 at 46. At the time of her application for benefits, Avant contended that she was unable to work because of migraines, nerve and joint pain, depression, and palmoplantar keratoderma. Filing No. 15-3 at 95.[4]

         B. Claimant's Relevant Testimony at the ALJ Hearing

         At the hearing on June 28, 2017, Avant testified that she is a high school graduate and attended college for two years but never obtained a degree. Filing No. 15-2 at 41. The ALJ asked Avant if she possessed a certificate in any specialized vocational training beyond her college courses, and she responded that she had “a phlebotomy, a medication aide, ” but that said certificate expired because of a lack of renewal. Id. at 41-42.[5] Avant affirmed that her most recent job was in 2015 as a phlebotomist, but she was terminated “because of [her] conditions.” Id. at 42.[6] Avant acknowledged that a document in her file showed earnings at Motivating Graphics LLC and Royal Baths Manufacturing in late 2015 and 2016; this evidence is the result of identify theft for which Avant filed a police report. Id. at 43-45.

         When questioned concerning whether she was ever self-employed, Avant confirmed that she was a dog breeder in 2015, and that wages in her record from 2015 were a result of dog breeding. Id. at 46. Avant affirmed that dog breeding was intermittent, and she stated that “[dog breeding] was not planned, but I - went ahead and [sold the puppies].” Id. She subsequently testified that dog breeding was not full-time work and that she never earned significant wages from that venture. Id.

         Avant testified that she worked full-time at AMES Convenience Store from 2008- 2012, where she was a cashier and a gas station attendant. Id. at 45, 48. She acknowledged that that job required her to stand for most of the day. Id. at 47. Avant stated that she had to stock the shelves twice per week and, as the only person in the store, “[she] had to do everything.” Id. at 48. Avant declared that the heaviest thing she lifted during the course of her employment was a box of liquor bottles, which she estimated weighed greater than fifty pounds. Id.

         Avant asserted that the main reason she could not return to any of her past work, and would also be inept at any other job, was her hands. Id. at 50. When asked to describe the hand impairment, Avant stated that she experienced “constant tingling, ” “cramps where [her hands] stopped moving or working, ” that skin continuously grew (and she therefore could not bend), and that she endured stiffness in both of her hands (since she is right handed, the stiffness was worse in her right hand). Id.

         The ALJ asked Avant for examples of activities that her hand impairment prevented her from doing, and Avant expressed reluctance but testified that she was precluded from “a lot of things like combing [her] hair, wiping [herself] . . . cooking, and taking care of [her fourteen-year-old] daughter.” Id. at 50-51. Avant further testified that she lived only with her daughter and their dogs and remarked that she was embarrassed that she could only manage her housework and personal care with the help of her daughter. Id. at 51. Avant stated that, although her parents also helped out a lot, “sometimes a lot of things [didn't] get done.” Id.

         When the ALJ questioned Avant regarding her ability to prepare meals, she explained that she used to cook frequently, but that at the time of the hearing she could only cook something that was “not a whole meal, something really easy” - it had to be something small and microwavable. Id. Avant elaborated upon her cooking difficulties: she insisted that she did not have the dexterity to hold pans and other kitchen utensils and that she sometimes burned herself because she could not feel hot or cold temperatures. Id. at 51-52.[7]

         Avant testified that pain and numbness extends beyond her hands up her arms to both elbows and both shoulders, and that she regularly has shoulder pain. Id. at 52. She stated that she was incapable of lifting her arms overhead and insisted that she was fully impeded from operating a computer or typing on a keyboard. Id. at 52-53. The ALJ asked her to explain why she could not operate a computer, and Avant replied that she could not move or hold her wrists in the required positions, and she could not feel the keys on a keyboard. Id. at 53.

         Additionally, Avant declared that she had trouble operating touchscreens, as her fingers did not register. Id. The ALJ subsequently inquired about whether Avant could send text messages or make phone calls on a cell phone. Id. Avant replied that it was difficult to operate a cell phone, and she used Bluetooth, “where like when you text, you can talk . . . you press the button and talk and then it prints it out for you.” Id. at 53-54. She maintained that texting took long because she would press the screen, but her skin condition precluded the device from registering the contact. Id. at 54.

         Avant testified that her daughter accompanied her when she grocery shopped, and the heaviest thing she could pick up was a water bottle. Id. The ALJ asked Avant about limitations regarding her ability to sit or stand, and she responded that she had “generalized local pain in [her] joints” and that “[she could not] sit too long, [she could not] stand too long.” Id. Avant estimated that she could stand for fifteen minutes before she needed to sit or rest because of the pain in the back of her legs, her back, and her ankles. Id. at 54-55. She further approximated that she could continuously sit for ten minutes. Id. at 55.[8] The ALJ asked Avant if he was correct in his conclusion that she could stand for ten to fifteen minutes, and then she needed to sit for ten to fifteen minutes before she needed to stand up again, and Avant affirmed this inference. Id. Avant testified that this cycle was consistent with any activity, whether it be laundry, cooking, etc. Id.

         Avant affirmed that she could fold clothes, but that she could not button a shirt and while she could tie a shoe, “it might not stay tied, it might not be tight.” Id. at 55-56. The ALJ asked Avant to consider how much time she was on her feet during an average day, and she testified that “really pushing it” she was on her feet about an hour per day, “and [she was] really pushing it.” Id. at 56. Avant asserted that during an eight-hour workday, if she stood for a total of an hour, that did not mean she could sit for the other seven hours. Id. Rather, she testified that the maximum duration she could sit out of those eight hours was roughly thirty to forty-five minutes. Id. at 57.

         The ALJ deduced that it was harder for Avant to sit than to stand, and Avant affirmed this determination. Id. Avant testified that it was more difficult for her to sit than to stand because of pain in her leg. Id. The ALJ questioned Avant about her methods of pain relief, and she responded:

I'm learning this - all this chronic pain is kind of new to me, so I'm kind of feeling my way through it to see what's best for me. They say to move around as much as possible, so I try to do that. But if I move around too much, I get swollen hands, swollen ankles, swollen feet. So, I try to just, you know - I have a handful of stuff that I can do and - I try to do it.

Id. Avant further testified that her pain got progressively worse when she worked as a phlebotomist. Id. at 57-58. She stated that about two months into her employment, in 2011 or 2012, she was in a car accident, but she was within a ninety-day probationary period and was not supposed to miss work, so she worked through her injury because “[she] really needed the job.” Id. at 58. Avant testified to another, separate car accident in March of 2016, wherein she strained her neck. Id.

         Avant was then asked to describe her “skin issue which popped up in late '14.” Id. Regarding her skin impairment, Avant declared:

It's one hundred times worse than it was ten years ago. I just thought it was something aesthetic, you know, something that was just looking, you know, that it looks bad. But progression, the hands started to swell, the skin started to get thicker. It was just a very slow progression of things going wrong. The nails grow really funny, it's just - it was just like long, kind of long progression and then it just sped up. And now, I'm at where I'm at now.

Id. at 59. Avant testified that prior to the onset of her skin condition, she could hold or grab things with her hands and could, for example, use a computer, comb her hair, and put her hair in a ponytail. Id. Moreover, Avant stated that driving for a long period of time was difficult and affirmed that she could not drive for longer than forty-five minutes. Id. at 59-60. She testified that her hands cramped up and weakened so she could not control the steering wheel. Id. at 60. She stated that she did not have the strength to keep her hands on the steering wheel and drive and estimated that she could drive for approximately thirty to forty-five minutes. Id.

         The ALJ inquired about migraine headaches noted in the medical records, and Avant testified:

I keep a tinge of a headache every day. It's up to me to try to control it to keep it from flaring up. And if they flare up, I have - end up going to the emergency room because I can't stop the pain, the throwing up, the not being able to see, things like that.

Id. Avant testified that she constantly has a “tinge” of a headache, but that severe headaches last for three to five days. Id. at 60-61. Avant stated that “if [she] did not do what [she was] supposed to do like drink [her] water, do [her] tea, do things that all [her] neurologists [said] to do, ” then her headaches flared up “until [she] decide[d] to stop fighting it or go to the emergency room.” Id. at 61. Avant testified that it took her a few days to recover after one of the more severe headaches subsided. Id.

         Avant stated that she received treatment for her migraines, the skin disorder on her hands, the extremity pain in her arms and legs, and fibromyalgia. Id. at 61-62. Avant testified that her primary physician at the CHI Health Clinic was Dr. Drvol, and that the only doctor she saw outside of the CHI health system was her rheumatoid doctor. Id. at Avant's attorney then questioned her. Id. at 62-65. The attorney asked Avant if there was any job that she could do for forty hours per week if she had an option to sit, stand, or move around as needed, and Avant responded that she would be precluded from such full-time employment. Id. at 63. When the attorney asked Avant what would preclude her from a simple job, Avant testified:

My hands, I mean, you use your hands for everything. You don't realize how much you move your fingers, how much you move your wrist. You don't realize how much you do that until it hurts all the time to do that. So, I like to do my jobs the best that I possible can especially working in healthcare. And I don't want to be responsible for hurting someone or not doing my job properly because I couldn't do it properly.

Id. Avant stated that her hand skin condition equally impacted her feet. Id. The attorney asked Avant to describe how the skin condition affected her feet, and Avant declared:

The same as the hands, the - it's very thick. The skin just continually grows. And right now, I can't afford the medicine that might help a little bit. It will help it out a little bit, but it puts pressure points on the feet also. So, it's really hard to walk at times when the skin gets really, really thick.

Id. at 63-64. Avant testified that she experienced the foot pain every day. Id. Avant testified that it was difficult to wear shoes and that she only had two pairs; she always wore socks, could not wear heels, and was careful about what shoes she bought. Id. at 65.

         Avant stated that she relieved the pain with soaps and maintained the skin as much as she was able, but that the pain in her hands made it difficult to also maintain her feet. Id. at 64. She affirmed that at one point in time, she had a medication that consisted of “several different things” mixed in with Vaseline. Id. While the record indicated that this medication helped, Avant no longer had it because she could not afford it. Id. She testified that the medication was one hundred dollars per month and came in a four-ounce container. Id.

         Avant asserted that she could not walk long distances and testified that while she did not know the measurements, she estimated she could walk “maybe a half a block.” Id. at 65. She testified that she walked around the block near her home; she took her dog down to the end of the block and back up. Id.

         When the ALJ asked Avant whether, besides the dog and the occasional walk, she had any activities for leisure or enjoyment, Avant stated that “[she] used to garden a lot . . . but not now.” Id. Avant further testified that she had no activities she did for fun, or to get outdoors, and that she had no hobbies. Id. at 66.

         C. Claimant's Relevant Medical History

         On May 1, 2013, Avant presented at the Alegent Creighton Health Benson Medical Clinic, where Dr. Jeffry Hatcher, DO, evaluated her for dizziness following a motor vehicle accident that occurred on April 13, 2013. Filing No. 15-9 at 366.[9] Dr. Hatcher noted that Avant experienced intermittent, spontaneous lightheadedness that was relieved only with rest and time. Id. Dr. Hatcher stated that Avant also experienced short-term memory loss and was generally not feeling well; she struggled to find the words that she needed, she mumbled when she talked, and she felt that her memory was “not the greatest.” Id.[10] Dr. Hatcher assessed Avant and determined that she had post-concussion syndrome which would take another four to six weeks to resolve, and he encouraged her not to work during that time. Id. at 367. The record indicated Avant's active daily prescription medications at the time of this appointment consisted of Prilosec 40 mg, Valium 10 mg, Imitrex 200 mg (for migraines), and Ortho Tri-Cyclen (oral contraceptive/birth control). Id.

         On May 10, 2013, Avant again saw Dr. Hatcher when she presented for assessment of a headache. Id. at 369. Avant described the headache as dull, located throughout her entire head, and denied any relieving factors. Id. Dr. Hatcher noted that Avant's symptoms included blurred vision, dizziness, fever, nausea, phonophobia, and photophobia. Id. He added Tylenol 300 mg/codeine No. 3 30 mg (up to four times per day to relieve headache pain) to Avant's daily medication regimen, which at this time also included Prilosec 40 mg, Ultram 300 mg, Ibuprofen 2400 mg, Imitrex 200 mg, and Clindamycin HCl 600 mg (for ten days). Id. at 370.

         On July 31, 2013, Avant saw Dr. Hatcher for a motor vehicle accident follow-up. Avant indicated that she experienced constant, aching, bumping pain in her right wrist, and that there were no relieving factors. Id. at 374. She rated the pain severity at five out of ten. Id. Her symptoms included crepitus, decreased mobility, swelling, tenderness, weakness, bruising, difficulty sleeping, instability, limping, locking, night pain and consequential awakening, and numbness, popping, spasms, tingling in her arms and legs. Id. Dr. Hatcher noted that Avant had bursitis/tendonitis, post-concussion syndrome, neck pain, and that she dealt with ramifications from a motor vehicle accident of unspecified nature. Id. at 375. He prescribed Vicodin (Hydrocodone Bitartrate 5 mg, acetaminophen 325 mg) to be taken up to four times per day. Id. at 376.

         On August 30, 2013, Avant presented at Alegent Creighton Dermatology, where she visited Dr. Christopher Huerter, MD, a dermatologist, and complained of tightening of the skin. Filing No. 15-8 at 336. The medical record indicated that a skin exam revealed lesions that were brown, papule, and with hyperkeratotic scale located on both Avant's hands and feet. Id. at 336. Dr. Huerter noted that Avant had congenital keratoderma and prescribed Ammonium Lactate twelve percent external lotion and Tazorac ten percent external cream. Id. at 337. Dr. Huerter further noted that Avant's problems with her hands and feet were “a chronic problem” that was “becoming increasingly problematic, ” and he stated that Avant had difficulty walking because of the tenderness. Id. at 336.

         On October 15, 2013, Avant saw Derrick Anderson, MD at the Alegent Creighton Health Benson Medical Clinic for evaluation of a migraine episode that started one to four weeks prior, and remained a daily, unchanging occurrence. Filing No. 15-9 at 377. Dr. Anderson noted that Avant's pulsating, throbbing, moderate pain was located in the occipital region, radiated to the left and right neck, and that the quality of the pain was similar to Avant's prior headaches. Id. Avant's symptoms included blurred vision, ear pain, nausea, photophobia, and vomiting. Id. The record stated that Avant tried triptans and oral narcotics to alleviate the symptoms. Id.

         On November 13, 2013, Avant saw Dr. Hatcher for evaluation of a migraine and a cyst. Id. at 378-379. Dr. Hatcher noted that Avant's migraines were “a chronic problem, ” and that she was amid a seven-day, gradually worsening episode. Id. at 378. The pain, similar to that of prior headaches, was in the frontal region and did not radiate. Id. The pain was characterized as sharp and shooting with a severity level of seven out of ten. Id. Symptoms included nausea, phonophobia, photophobia, vomiting, and weight loss. Id. Dr. Hatcher also noted a large cystic mass in Avant's left axillary region. Id. at 379.[11]

         On January 15, 2014, Avant went to the emergency room at Immanuel Medical Center for evaluation of a migraine. Filing No. 15-10 at 430. Dr. Arthur Prine, MD, noted that the pain was severe and throbbing. Id. He further noted that Avant felt the precursors of nausea and a headache, so she immediately took a promethazine and Imitrex, but this provided no relief, and she consequently developed further throbbing pain in the frontal and occipital area of her head. Id. Avant received diphenhydramine HCl 25 mg and Zofran 4mg intravenously. Id.

         On February 6, 2014, Avant saw Dr. Hatcher for assessment of a headache episode that occurred daily and started about one month prior. Filing No. 15-9 at 383. Dr. Hatcher noted that the aching, sharp, shooting pain had a severity level of four out of ten and was located in the occipital region. Id. Dr. Hatcher stated that Avant's symptoms began about six months prior, lasted about six ...

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