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Lottinville v. Colvin

United States District Court, D. Rhode Island

September 15, 2014



JOHN J. McCONNELL, Jr., District Judge.

Plaintiff Kim Eileen Lottinville brings this action for judicial review of the Social Security Commissioner's ("the Commissioner") final decision, as issued in accordance with the ruling of an Administrative Law Judge ("ALJ") denying her claim for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Social Security Act. Ms. Lottinville seeks reversal or remand of the determination that she is not entitled to Social Security (ECF No. 7), while the Commissioner seeks an affirmance of the decision. (ECF No. 9). After a thorough review, this Court finds that substantial evidence supports the Commissioner's finding that Ms. Lottinville was not disabled during the relevant time period.


Ms. Lottinville is a high school graduate who has worked in the food service industry - including rolling silverware into napkins, as a prep cook, cleaning, plating desserts, and as a fast food cashier. (Tr. at 201, 197, 496-98).[1] Her reported daily activities include taking her son to work, either working or using the computer for email or games, cooking, and cleaning, and caring for her two cats. Id. at 212-14. Ms. Lottinville takes breaks during the day because of tiredness, and asks her son to help her with things that are too far over her head for her to reach or too heavy for her to carry. Id. at 214.

Ms. Lottinville reports having pain in her right shoulder, pain in her knees, a hearing impairment, and sleep apnea, as well as anxiety and depression. Id. at 196. She uses hearing aids and a sleep apnea machine. Id. at 235. She describes having restrictions with bending, standing, kneeling, and reaching; she can only walk a short distance; she has trouble concentrating and understanding due to anxiety and confusion. Id. at 236.

Ms. Lottinville was fifty-four years old on October 1, 2008, the date she contends that her disability rendered her unable to work. Id. at 133.

A. Procedural History

On March 19, 2009, Ms. Lottinville filed an application seeking SSI and DIB benefits. Id. at 133-44. She listed the following illnesses, injuries, or conditions as limiting her ability to work: "[s]houlder injury, hearing impairment, sleep apnea, problems with knees, anxiety and depression." Id. at 196.

Her application was denied, she requested reconsideration, and it was denied upon reconsideration. Id. at 71-76. Then Ms. Lottinville requested a hearing before an ALJ. Id. at 77. Her hearing occurred in April of 2011. Id. at 25-53. Ms. Lottinville, who was represented by counsel, appeared and testified. Id. In addition, a vocational expert and two lay witnesses testified. Id.

Ms. Lottinville testified regarding her recent employment and the pain in her shoulder. Id. at 29-31. She stated that she took Tylenol for pain, Prozac for depression, and blood pressure medication. Id. at 32. She testified about the pain in her knees, use of a knee brace, ice packs, and a heating pad. Id. at 34-35. She explained that she can only handle working three hours per week, and spends her other time watching television, sleeping, and doing some housework. Id. at 35. Her sons help her with laundry and cooking. Id. at 36. After her testimony, her older son's girlfriend testified, followed by her older son. Id. at 42-48. Finally, a vocational expert testified, answering numerous hypotheticals. Id. at 49-52.

Shortly after the hearing, in an April 26, 2011 decision, the ALJ found that Ms. Lottinville was not "under a disability within the meaning of the Social Security Act from October 1, 2008 through the date of this decision." Id. at 14-24. Ms. Lottinville then sought review of the ALJ's decision by the Appeals Council, but that request was denied. Id. at 1-3.

After the Appeals Council denied Ms. Lottinville's request for review, she filed suit in this Court seeking judicial review of the Commissioner's final decision denying her DIB and SSI applications. Id. at 532-33. The Commissioner, with Ms. Lottinville's consent, notified the Court that remand of the case was necessary to assess Ms. Lottinville's "ability to perform past relevant work." Id. at 538. ( Lottinville v. Astrue, 11-cv-485-DLM, ECF No. 11). The Court remanded the case for such further administrative proceedings. Id. at 535-37, ECF No. 12, 13 in 11-cv-485.

In January 2013, a hearing was held before an ALJ; Ms. Lottinville, represented by counsel, testified, as did a vocational expert. Id. at 478-504. Ms. Lottinville testified regarding working a few hours a week at Olive Garden and living with her two sons. Id. at 483-84. Regarding her depression, she stated that she was not in counseling. Id. at 484. Ms. Lottinville explained that she could not work full-time because of pain in her shoulders, knees, hips, and trouble concentrating due to depression. Id. at 485. She stated that she was taking Naproxen for her pain and medication for depression. Id. at 486-87. Ms. Lottinville testified that she drove, bathed and dressed herself, and cooked simple meals. Id. at 488-89. She stated that she used her computer about an hour a day to check email and play games, but loses concentration. Id. at 489. She said she could stand or sit for about 45 minutes to an hour, but gets stiff. Id. at 490. When asked if she could work more than three hours per week, Ms. Lottinville explained that she could not do it as she was having trouble just working the three hours and she did so to earn money to pay for her medications. Id. at 492. When asked if she could handle collecting money at a fast food restaurant, she explained that she cannot concentrate enough to make change. Id. at 494.

The ALJ reviewed with Ms. Lottinville details regarding her prior employment. Id. at 496-99. In response to hypothetical questions from the ALJ, the vocational expert testified about Ms. Lottinville working a drive through cashier or a prep cook, or in a variety of other unskilled jobs. Id. at 499. Ms. Lottinville's attorney questioned the vocational expert, adding to the hypothetical factors such as a moderately severe limitation in concentration. Id. at 502.

In a February 12, 2013 decision, the ALJ found Ms. Lottinville not disabled or entitled to receive DIB or SSI payments. Id. at 458-470. Ms. Lottinville filed a request for review of the ALJ's decision on remand, and the Appeals Council denied that request as untimely, rendering the ALJ's February 12, 2013 decision the final decision of the Commissioner. Id. at 448-54. Having satisfied her administrative remedies, see 42 U.S.C. ยง 405(g), Ms. Lottinville timely appealed the Commissioner's final decision by filing suit in this Court. (ECF No. 1).

B. Medical History

In her application for SSI and DIB, Ms. Lottinville referenced shoulder injury, hearing impairment, sleep apnea, problems with knees, as well as anxiety and depression. (Tr. at 196). Medical records before this Court pertain to each of these conditions. See, e.g., id. at 252-301; 321-857.

In August of 2005, at age 51, Ms. Lottinville underwent surgery for a tear in her right rotator cuff. Id. at 294. Dr. Belanger of Memorial Hospital performed the surgery. Id. In December of 2005, medical records indicate that Ms. Lottinville is "feeling better" and "eager to return to light duty work." Id. at 292. At a December 2006 appointment, Ms. Lottinville said that he shoulder felt "terrific" and she had to be careful not to lift excessively. Id. at 301. She reported no pain as long as she does not lift more than about ten pounds. Id. Ms. Lottinville also stated that she "is able to do her work without difficulty." Id.

In January of 2009, Ms. Lottinville visited Memorial Hospital in Pawtucket, R.I., twice regarding her shoulder and arm. She reported left shoulder pain after shoveling snow. Id. at 325. She was diagnosed with muscle strain and shoulder pain, and discharged with prescriptions for Flexeril, Motrin, and Vicodin. Id. at 326.

On April 27, 2009, Dr. William Palumbo examined an x-ray of her right shoulder as well as both knees. Id. at 330. Ms. Lottinville complained of chronic aches and pains in her right shoulder, occasional difficulty raising her right arm above shoulder level, and inability to carry more than ten to fifteen pounds with her right arm, though she could carry a gallon of milk. Id. at 333-35. Dr. Palumbo characterized Ms. Lottinville's 2005 right rotator cuff surgery as "rather successful, " noting residual difficulty raising the right arm above shoulder level and carrying more than 15 pounds, but stated that "otherwise, she has done very well." Id. at 334. Regarding her knee pain, Dr. Palumbo stated that her obesity is causing a strain on both knees. Id.

The administrative record include a Physical Residual Functional Capacity Assessment form (a Physical "RFC" Assessment) dated May 1, 2009 completed by Dr. Alberto Tonelli. Id. at 337-344. The RFC indicates that Ms. Lottinville could occasionally lift 20 pounds, frequently lift ten pounds, and sit or stand for about six hours during an eight hour work day. Id. at 338. Dr. Tonelli noted limitation in reaching as well as hearing, and an environmental limitation of noise. Id. at 340-41. Dr. Tonelli assessed Ms. Lottinville's reported symptoms as attributable to her medically determinable impairments, but ...

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