Anello v. Berryhill

          ORDER ON MOTION TO DISMISS FOURTH AMENDED COMPLAINT RE: DKT. NO. 88

          DONNA M. RYU UNITED STATES MAGISTRATE JUDGE.

         Pro se Plaintiff Maria Jesus Anello filed a fourth amended complaint against her former employer, the United States Social Security Administration (“SSA”), alleging claims stemming from her employment and 2011 retirement. [Docket No. 85 (Fourth Am. Compl).] The government now moves to dismiss the fourth amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). [Docket No. 88.] The court held a hearing on January 9, 2020. For the following reasons, the motion is granted in part and denied in part. Ms. Anello's disability discrimination and failure to accommodate claims are dismissed with prejudice.

         I. BACKGROUND

         A. Allegations in the Fourth Amended Complaint

         Ms. Anello makes the following allegations in the Fourth Amended Complaint: Ms. Anello started working as a Service Representative (“SR”) for the SSA at is Santa Rosa Field Office in August 2001. FAC 2 ¶ 4. After filing for “[Federal Employee Retirement System (“FERS”)] disability in July 2011, she “separated from Service” on January 12, 2012. Id. at 2 ¶ 4; 5 ¶ 10. Ms. Anello describes her job responsibilities as follows:

The position is one of direct service to the public. SRs screen claimants/beneficiaries who come to the local SSA office for various reasons and either interview them or we refer interviews involving new claims for benefits to a Claims Representative, who interviews them. Service Representatives (SRs) take care of post-entitlement actions for these office visitors and those who call the office seeking to have their business taken care of by phone. SRs also open, handle and respond to incoming U.S. mail from beneficiaries[ ] to satisfy claimant requests for information and assistance and review voice mail messages and return those calls.

Id. at 2 ¶ 2. She alleges that the “functions of [her] position also included” the following:

[T]raining my coworkers on the procedures for locking, inspecting, ordering, and mailing the applications for Social Security Cards to Wilkes-Barre Data Center, with required procedures and confirmation. Transferring the earnings from fraudulent Social Security Numbers, to the new and correct SS numbers for individuals with the necessary proofs, following up with the correct procedures, I also corrected records and processed non receipts of benefits, and placed in pay or retained payments for prisoners, with different rules for Disability, Social Security Supplemental Income, or for concurrent benefits.

[ ] This included faxing and calling the different prisons to have beneficiaries placed correctly in pay if released or suspending benefits. I also entered the wages for working beneficiaries so they would not have overpayments or underpayments, documenting and sending back the paperwork with prepaid envelopes. I corrected mistakes with names, birthdates, and gender for SSN applications, and changing the sex in the record, and last names of same sex marriages, among many other things. I followed up with different tasks and processes, and responded promptly to all the requests from different agencies, beneficiaries, coworkers and managers, using all automated programs like Bene Verifications, Wages Earnings, Eview, Mail, Phone messages, Reconsiderations, etc.

Id. at 7-8, ¶¶ 15-16.

         Ms. Anello alleges that she had a number of “essential job function[s].” First, she alleges that “[t]yping or keyboarding was an essential job function, ” but that the SR position “is not an intense keyboarding/data entry position” and that “typing for hours at a time was not an essential job function.” Id. at 2 ¶ 2. According to Ms. Anello, “maybe around 30% of the time I needed to type, mostly entering Social Security numbers.” Id. at 4 ¶ 6. Other essential functions included “answering the phones, research, filing, printing information for claimants, calculate benefits, working at the front desk, etc.” Id. at 6 ¶ 13. Ms. Anello also alleges that “[a] key essential job function of the position was knowledge of the entitlement requirements of the programs that SSA administered and knowledge of the software programs used to enter claimant program information onto the system, ” which “was accomplished through interviews” conducted in person and by telephone. Id. at 8 ¶ 17. Additionally, Ms. Anello alleges that the physical requirements of the job were “mainly the ability to type on the computer to enter the customer's SSN to retrieve systems data needed to service and assist the customer.” Id. According to Ms. Anello, “[t]he SR job required little lifting or carrying.” Id.^[1]

         Ms. Anello alleges that when she was hired, she “had the following disabilities: permanent atrial fibrillations, open heart surgery for mitral stenosis, hypothyroidism, and a history of strokes.” Id. at 2 ¶ 1. On March 30, 2010, she requested a reasonable accommodation of her preexisting heart condition in the form of “turning [her] desk around in the way it was for 9 years, with the recommendation letters of [her] doctors and the support of the Union, months in advance of [an office] remodeling with both desks available at the time.” Id. at 3. In response, after the desk was “installed facing the wrong direction, ” Ms. Anello received a “small mirror.” Id. Ms. Anello alleges that “[t]he mirror was not an effective accommodation for [her] heart condition, as it increased [her] anxiety, and ultimately damaged [her] left fingers, hand, elbow, and neck, ” and that if she had received her requested accommodation of turning her desk, “[she] would have been able to perform the essential functions of [her] job without undue hardship to the agency, and without getting injured.” Id.

         On August 2, 2010, Ms. Anello “suffered a work related injury ‘sprain of left hand/wrist', later developing ramifications to [her] elbow's ulnar nerve, and neck, [and] after months of painful nerve tests, therapies, 86 doctor visits, various medications, which produced terrible secondary effects, on May 26th 2011, [she] was found to have Reflex Sympathetic Dystrophy/Complex Regional Pain Syndrome (RSD/CRPS).” Id. at 3 ¶ 2. Ms. Anello's “physical impairment severely limited one or more of [her] major life activities . . .” Id. at 4 ¶ 4. She alleges, “sometimes I couldn't drive because of the secondary effects of the medications. I was in constant pain, sometimes I couldn't be touched, or hugged, the pain was terrible. Other times the pain started without any stimulus; it was in those moments I needed to immediately take some pain medication.” Id.

         Prior to her RSD/CRPS diagnosis, Ms. Anello's doctor provided a work status report on December 27, 2010, “with modified activity for work and home to support a reasonable accommodation of having to rest from strenuously typing every 20 minutes, and hourly 5 minutes rests until 2/28/2011.” Id. at 4 ¶ 6; Fourth Am. Compl. Ex. 4 (Dec. 27, 2010 Work Status Report). After receiving the December 27, 2010 Work Status Report, which provided for 5-minute breaks every hour, Ms. Anello was able to take her pain medication when needed. She alleges that she “was mostly aware of when [she] was going to have the terrible pain, and for that reason [she] was taking [her] medication every hour and a half, marking it in [her] calendar.” Fourth Am. Compl. 4 ¶ 6. Other times “the terrible causalgia pain [would] not follow a pattern, ” and “would get worst with the stress, the tension, the irrational demands from management that wouldn't let [her] finish [her] job.” Id. Ms. Anello had to ask to take leave, sometimes unpaid, if she “had extreme causalgia pain, or bloating of [her] left arm.” Id. at 5 ¶ 8.

         Ms. Anello received three additional Work Status Reports with restrictions. On May 26, 2011, Ms. Anello's physicians provided revised restrictions that limited her as follows:

• Repetitive left hand motions continuously no more than 20 minute(s) at one time, for no more than 40 cumulative minutes per hour.

• Gripping/grasping left hand continuously no more than 5 minute(s) at one time, for no more than 20 cumulative minutes per hour.

• Lift/carry no more than 5 pounds.

Id. at 5 ¶ 10; Fourth Am. Compl. Ex. 6 at 1 (May 26, 2011 Work Status Report). She received revised restrictions on June 28, 2011 that further limited repetitive motions with her left hand, gripping/grasping, and lifting/carrying, as follows:

• Repetitive left hand motions continuously no more than 5 minute(s) at one time, for no more than 15 cumulative minutes per hour.

• Gripping/grasping left hand continuously no more than 1 minute(s) at one time.

• Lift/carry no more than 2 pounds.

         Fourth Am. Compl. Ex. 6 at 2 (June 28, 2011 Work Status Report). She received a final set of restrictions on June 29, 2011 which stated that she was “placed on modified activity at work and at home from 6/29/2011 through 9/30/2011” and that limited motions for both hands:

• Repetitive right hand motions continuously no more than 10 minute(s) at one time, for no more than 30 cumulative minutes per hour.

• Repetitive left hand motions continuously no more than 5 minute(s) at one time, for no more than 15 cumulative minutes per hour.

• Gripping/grasping right hand continuously no more than 5 minute(s) at one time, for no more than 15 cumulative minutes per hour.

• Gripping/grasping left hand continuously no more than 1 ...