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Hayes v. Colvin

United States District Court, W.D. New York

May 23, 2014

TANYA A. HAYES, Plaintiff,
CAROLYN COLVIN, Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Plaintiff Tanya A. Hayes ("Plaintiff"), represented by counsel, brings this action pursuant to Title II of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner")[1] denying her application for Disability Insurance Benefits ("DIB"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. Procedural History

Plaintiff protectively filed an application for DIB on August 18, 2007, alleging disability since January 2, 2005, due to breathing problems, heel spurs, and carpal tunnel syndrome ("CTS"). After her application was denied, Plaintiff requested a hearing, which was held before administrative law judge Nancy Gregg Pasiecznik ("the ALJ") on August 12, 2009. T.30-62.[2] Plaintiff appeared pro se.[3] On June 23, 2010, the ALJ found Plaintiff not disabled. T.9-25. The Appeals Council denied Plaintiff's request for review on August 10, 2011, T.1-4, making the ALJ's decision the final decision of the Commissioner. Plaintiff timely filed this action.

III. Summary of the Administrative Record

A. Vocational and Non-Medical Evidence

Plaintiff, born in 1968, was 36-years-old at the time of her alleged onset date, and 41-years-old at the time of the ALJ's decision. In her application for DIB, Plaintiff stated that she had worked as a cashier, customer service representative for a bank, daycare operator, and a receptionist for a bank. T.117. Plaintiff indicated that she worked as a "bank receptionist" from 1992 to 1999; this position included typing, filing, copying, sorting mail, putting away files, and taking phone calls. Id . The job required her to walk for 1 hour, stand for 4 hours, and sit for 4 hours out of an 8-hour day. Id . In November 2007, she described job from 1992 to 1999 as a "bank file clerk", with duties of typing, filing, using fax and copy machines, ordering supplies, handling mail, taking phone calls for the department, making files, and filing. T.130. She stated that in this job she stood for 1 hour and sat for 6 hours per workday. Id . Later, she described her duties at the bank as placing information into clients' files and pulling out files when requested. T.171.

In November 2007, Plaintiff stated in other documents associated with her DIB application that her daily activities included picking up dirty clothes, cleaning and sweeping all rugs and floors, washing dishes, laundry, cleaning the bathroom, and (once a week) sweeping and mopping the bathroom. T.132. She took care of her 2-year-old. T.133, 139. She had no problems with personal care. T.133-34. She cooked meals daily, which took 30 to 45 minutes. T.134. She sometimes needed help with house work because she became short of breath. T.135. She went outside every day, and could travel by walking, riding in a car, or taking public transport. Id . She went shopping bi-weekly for about 1½ hours. T.136. She had trouble walking, climbing stairs, and using her hands. T.137. She had stabbing, aching pain in her lower arm down to her fingers and in both heels, for which she took ibuprofen, used a hand brace, and soaked her feet. T.140-42.

At the August 2009 hearing, Plaintiff testified that she was a high school graduate and was currently taking accounting courses through an online college. T.36. Her homework consisted of computer research and writing papers. T.50. She had last worked in 2005, running a daycare center. T.37. The only problem she experienced doing this job was that when one of the children was sick, she would end up getting sick. T.38. Plaintiff stated that she had started at M&T Bank as a typist, but when she left she was a file clerk. T.39-40. As a typist, she answered phones, took messages, made copies, faxed, and spoke with anyone who came to see her manager. Id.

Plaintiff testified that she had breathing problems, heel spurs, CTS, pulmonary sarcoidosis, [4] sleep apnea, and a bruised ligament in her right knee. T.41, 51-52. After a sleep study in 2001, she declined to get a continuous positive airway pressure ("CPAP") machine because she needed to be able to hear her asthmatic son if he had breathing issues during the night. T.41. She had undergone a second sleep study in May 2009, but had not yet received the results from her pulmonologist, Dr. Ventresca. T.41-42. In 2009, her asthma attacks required hospital visits three times; prior to that, the last time she had been hospitalized for asthma was in 2005. T.42-43. Her asthma was exacerbated by colds. Sometimes she could control an attack immediately with a nebulizer; other times it would take about 8 hours. T.44. She had been diagnosed with sarcoidosis in 2000, and was put on prednisone for 6 months. T.46-47. She had not experienced any recurrences of sarcoidosis recently, but she had to take prednisone for 5 days every time she got a cold. T.47.

In 2003, she was diagnosed with CTS in her right hand and was prescribed Darvocet for the pain, which made her sick. She now took ibuprofen and wore a brace as needed, usually once every couple of months if she was on the computer too long. T.48-49. Regarding her heel spurs, Plaintiff stated that if she wore sneakers with heel cushioning then walking did not really bother her. T.49. She did not need any special inserts in her shoes. She did not believe her knee injury would affect her ability to work. T.51.

Plaintiff testified that she had three children, ages 12, 10, and 4. T.36. After getting them off to school she did her own school work. T.50. She cleaned, but would get tired and need 15-to-20-minute breaks. Id . She had allowed her driver's license to expire because she did not have a car. Id . Plaintiff estimated that she could lift and carry 10 to 20 pounds. T.51. She did not have any problems sitting except for leg cramps. Id . She could stand about a half hour before her heels began to hurt. Id . She could climb a flight of stairs but would be out of breath. T.52. She could bend over to pick something off the ground. Id . Prior to her knee injury she could kneel, crouch, and squat. Id.

Vocational expert Jay Steinbrenner ("the VE") testified at the hearing. T.53-61. After reviewing the vocational documents in the file and listening to her testimony, the VE stated that Plaintiff's past relevant work was in the "light work" jobs of file clerk, customer service clerk, and daycare attendant; and in the "sedentary work" jobs of typist and receptionist in the financial banking industry. T.56-57. The ALJ provided the VE with a hypothetical individual having the same vocational profile as Plaintiff, who could lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds frequently; sit for 2 hours at a time and up to 8 hours total in an 8-hour day; stand/walk for 30 minutes at a time and up to 2 hours in an 8-hour day, with normal breaks; frequently balance and stoop; occasionally crouch, crawl, kneel, and climb stairs and ramps; perform frequent, but not constant, repetitive fingering with her right hand; and avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, persons with communicable diseases, and extremes of heat and cold. T.57-59. The VE stated that this individual could perform Plaintiff's past work as a receptionist, Dictionary of Occupational Titles ("DOT") 237.367-038. Id.

In May 2010, an earnings query showed that Plaintiff earned $23.00 through employment with H&R Block in the first quarter of 2009, and $1, 199.00 through employment with the Bob Lanier Center in the third quarter of 2009. T.109-11.

B. Medical Evidence

In 2000, after experiencing persistent wheezing and shortness of breath, Plaintiff was diagnosed with pulmonary sarcoidosis. A lung biopsy was performed on July 11, 2001, which showed bronchial mucosa with non-caseating granuloma (chronic inflammatory cells which the immune system fails to address), confirming the diagnosis. T.304, 310. Plaintiff was prescribed prednisone, which she took for less than a year. T.238. Plaintiff was hospitalized in 2003 because of severe wheezing due to her asthma, and from 2003 to 2007, she had 5 visits to the emergency room as the result of shortness of breath and wheezing. Id.

Since 2000, Plaintiff has had a sleep disorder which causes daytime drowsiness; she sleeps only about 5½ to 6 hours a night. T.258. She was diagnosed with obstructive sleep apnea ("OSA") based on a nocturnal polysomnogram performed on December 9, 2001. Id . At a checkup on December 14, 2006, Plaintiff complained about her sleep apnea and was given a referral to have another sleep study with titration performed. T.220. A request for records confirmed this study was never done. T.244. In May 2009, Plaintiff underwent a second sleep study at Millard Fillmore Hospital, T.41, but at the time of the hearing she ...

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