United States District Court, D. Nebraska
ALICIA D. AVANT, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration; Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
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).
Procedural History and Introductory Information
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. Following a June 28, 2017,
hearing, an administrative law judge (“ALJ”)
denied benefits. Filing No. 15, Social Security Transcript
(“Tr. 1”) at 32-75. 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.
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
Claimant's Relevant Testimony at the ALJ Hearing
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. Avant affirmed that her most recent job
was in 2015 as a phlebotomist, but she was terminated
“because of [her] conditions.” Id. at
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.
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.
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.
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).
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.
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.
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.
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.
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. 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.
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.
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
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.
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.
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.
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.
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.
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.
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
Claimant's Relevant Medical History
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
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. 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).
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.
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.
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.
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.
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.
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.
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 ...