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Greer v. Astrue

United States District Court, E.D. Missouri, Eastern Division

August 14, 2014

MATTHEW J. GREER, Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

TERRY I. ADELMAN, Magistrate Judge.

This matter is before the Court under 42 U.S.C. § 1383(c)(3) for judicial review of the denial of Plaintiff's application for Supplemental Security Income benefits under Title XVI of the Social Security Act. The case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b).

I. Procedural History

On October 20, 2010, Plaintiff protectively filed an application for Supplemental Security Income, alleging that he became unable to work on September 9, 2010 due to schizoaffective disorder, depressive type, and high blood pressure. (Tr. 12, 56, 144-52, 183) The application was denied on February 14, 2011, after which Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 52-53, 56-63) On May 9, 2012, Plaintiff testified at a hearing before the ALJ. (Tr. 29-50) In a decision dated June 29, 2012, the ALJ found that Plaintiff was not disabled. (Tr. 12-23) The Appeals Council denied Plaintiff's request for review on June 13, 2013. (Tr. 1-3) Thus, the decision of the Appeals Council stands as the final decision of the Commissioner.

II. Subjective Evidence Before the ALJ

At the hearing before the ALJ, Plaintiff was represented by counsel. Plaintiff's attorney first gave an opening statement, indicating that Plaintiff met the listings because he lived in a residential care facility and was unable to function outside of a highly supportive living arrangement. Counsel further argued that, while Plaintiff continued to use marijuana, he used it to alleviate the symptoms of schizoaffective disorder. (Tr. 31-33)

The ALJ then questioned the Plaintiff, who testified that he had been living at Lebray residential care facility for the past 7 months. He did not have a driver's license, and his caseworker, Craig Mason, drove him to the hearing. Plaintiff attended 10th grade but only completed 9th grade. He was placed in special education classes for two years during elementary school. Plaintiff had no vocational training, but he was able to read and write. Plaintiff received Medicaid benefits, and the State of Missouri paid for Plaintiff's residential care facility. Plaintiff testified that he was single and had no children. He previously worked for Colavar Landscapes for about six months in 2008. His is duties included landscaping and odd jobs such as building retaining jobs. He performed manual labor and lifted over 50 pounds but not over 100 pounds. He was fired for property damage, but Plaintiff stated he was not the culprit. (Tr. 34-37)

Plaintiff further testified that he began using marijuana when his was 13 years old. He last used about two to three months before the hearing. He had previously participated in a drug treatment program but not recently. He testified to also having used cocaine, heroin, alcohol, and prescription pain pills. He no longer used these substances. Plaintiff was questioned by police about a burglary when he was 17 years old. He also had misdemeanor charges filed against him for drugs, the most recent for marijuana possession a year prior. He stated that he previously served time in jail and was currently serving two years' unsupervised probation which began the month before. (Tr. 37-40)

Plaintiff's attorney also questioned Plaintiff, who testified that he previously lived at a dual diagnosis venue called Daybreak in the fall of 2010. He went there after a hospitalization and lived there three or four months. He left to move in with a girlfriend, but things did not work out. Plaintiff then went to Pathways in Jefferson City, and he was charged with marijuana possession at that time. He was hospitalized a couple times in April of 2011 but then moved away from the mid-Missouri area in June 2011. When Plaintiff returned to the St. Louis area, he was homeless for a week, lived with his uncle for a couple months, and then lived with his aunt while waiting to get into Lebray. Plaintiff testified that he lived at Lebray since September of 2011. He also received treatment from doctors at BJC. While Plaintiff stated he had not used marijuana for a few months, he was previously using two to three times a week while at the facility. He used marijuana to help him with sleep, stress, and mood swings. (Tr. 40-42)

Plaintiff testified that his mental health problems were a little worse when he was not using marijuana, yet some things were better. For instance, marijuana improved his sleep, and he experienced less stress and a stable mood. However, he heard more voices and experienced more paranoia when using. Despite not smoking pot for a few months, Plaintiff continued to hear voices about 10 to 20 times a day. The voices did not last for more than a couple minutes. Plaintiff also saw colors and spots that did not exist. (Tr. 42-43)

Plaintiff further stated that the workers at the facility brought him his medications and made sure he took them. He consistently took his medications since September of 2011 but testified to having problems taking medications in the past because he lost track of time. Plaintiff stated that the had problems with sleeping too much during the day because he did not sleep well at night. He slept most of the day about 50 to 75 percent of the time at the residential care facility but reported sleeping a little better lately. Plaintiff had no side effects from his medication, but his attention span was pretty low on an average day. He testified that he could only pay attention for a few minutes at a time. He also experienced depression and crying spells. He believed that he would live in the residential care facility for awhile. In addition, Plaintiff testified that he previously worked for his father doing electrical work. However, Plaintiff had problems focusing and understanding instructions. He had trouble waking up in time for work, and he was irritable due to the stress of working. (Tr. 43-46)

A vocational expert ("VE"), James Israel, also testified at the hearing. The VE stated taht Plaintiff's prior job as a construction worker involved heavy strength and semi-skilled work. Plaintiff did not work for his father long enough to acquire any skills. The ALJ then asked the VE to assume an individual of Plaintiff's age, education, and work experience who did not have any exertional, postural, manipulative, environmental, or visual limitations. However, the individual was limited to occupations that did not require written communication. Further he was limited to work involving only one or two step tasks. The jobs needed to involve minimal stress, which required only occasional decision making; occasional changes in the work setting; no interaction with the public; no interaction with co-workers; only casual contact with coworkers; and contact with supervisory staff when work duties are being performed up to expectations occurring no more than three times per workday. Given these limitations, the VE testified that the individual could not perform Plaintiff's past job because construction duties involved more complex steps and interaction with co-workers. However, the individual could perform other jobs in the national and local economy, including bulk packer, metal assembler, ad sorter. In these occupations, employers typically tolerated no more than one unexcused or unscheduled absence per month. Sometimes the third tardiness or absence would trigger the loss of a job. (Tr. 46-49)

Plaintiff's attorney also questioned the VE, asking whether an individual who was unable to concentrate for three minutes at a time, 10 to 20 times per day, was able to perform the work the VE identified. The VE responded that such person would be unable to maintain employment due to the interruptions and regrouping time needed. Additionally, if the individual missed work half the month because of symptoms, he would not be able to sustain work. (Tr. 49-50)

On November 15, 2010, Plaintiff completed a Function Report - Adult. He reported that he resided at a treatment center and spent his days eating, going to group sessions, and bathing. He did not have any problems with personal care but did report that he had difficulty sleeping and did not want to eat. Further, Plaintiff needed reminders to brush his teeth, bathe, shave, take care of himself, and take his medications. He did not prepare his own meals except cereal for breakfast. Plaintiff was able to do laundry, mow the grass, clean, and perform repairs. He also shopped for food and clothing every couple of weeks. He could not pay bills or handles a savings account. He enjoyed spending time with others every day and went to Wal-Mart on a regular basis. However, he also reported that he had trouble being around groups and also had an anger problem. His conditions affected his ability to squat, bend, kneel, hear, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. Plaintiff opined that he could walk one mile before needing to rest for 10 minutes. He could only pay attention for one minute, and he did not follow written or spoken instructions very well. Additionally, he did not get along with authority figures very well except when he had to. He was able to handle changes in routine. (Tr. 200-07)

Plaintiff's father also completed a Function Report Adult - Third Party, stating that Plaintiff seemed distant, depressed, and unmotivated. He was moody and cried. Plaintiff was able to prepare his own meals and could perform any chores. When Plaintiff was motivated, he was a good worker. When he was depressed, he was not a good worker. Plaintiff's father further reported that Plaintiff enjoyed watching TV, hanging out, and drum circles. He had no problems getting along with others, but he always slept and did not engage in life. His conditions affected his ability to understand, follow instructions, complete tasks, get along with others, and concentrate. However, he was able to finish what he started and followed instructions well. He got along well with authority figures but had been fired from a job because his boss disrespected him. Plaintiff's father stated that Plaintiff was in a good place now and seemed well. (Tr. 224-31)

Plaintiff's case manager, Meghan Devine, completed a Function Report as well, noting that she interacted with Plaintiff about one to two hours daily at Daybreak residential care facility. A typical day involved cooking breakfast, attending group sessions, watching TV, drawing, attending therapy, and reading. Ms. Devine reported that Plaintiff cooked himself a simple breakfast of eggs and toast, and he cooked meals for other clients at Daybreak. Plaintiff also did laundry, vacuumed, cleaned the bathroom, and took out trash. He was able to shop for food and clothing. However, Plaintiff could not pay bills or have a savings account because he had no income. He could not work due to mental illness. Plaintiff enjoyed drawing, watching TV, and listening to music. Plaintiff did not spend time with others because he heard voices and experienced increased anxiety. He went to Wal-Mart once a week, and he wanted to attend church and community support meetings but was too anxious in the crowds. Ms. Devine stated that Plaintiff struggled to be social due to auditory hallucinations and anxiety. He isolated himself and did not go out of the house much. His conditions affected his ability to understand, hear, follow instructions, get along with others, and concentrate. He could walk a mile and pay attention for 10 minutes. He could follow written instructions fairly well but could not follow spoken instructions due to forgetfulness or lack of motivation. He seemed to get along okay with authority figures. Further, he was not stressed often, but stress heightened his psychotic symptoms. (Tr. 232-39)

III. Medical Evidence

On September 7, 2010, Plaintiff was admitted to the Hyland Behavioral Health Center in St. Louis, Missouri with the diagnoses of schizophrenia, depression, and polysubstance abuse. Plaintiff reported hearing voices daily. Physical examination was normal. Mental status exam revealed decreased psychomotor activity, slow and monotonous speech that was tangential and circumstantial at times. Plaintiff stated that he smoked marijuana almost every day and had used heroin for two months. He had been clean for six months. Plaintiff also reported a history of cocaine use; however, he last used a few months ago. Plaintiff had been living from place to place and sleeping on the street at times. While hospitalized, Plaintiff was treated with individual and group therapy. Plaintiff still had some psychotic symptoms upon discharge, but he insisted on going to the dual diagnosis unit. Plaintiff was discharged to a facility called Daybreak in Columbia, Missouri on September 16, 2010, and Dr. Rashid Zia noted that, while Plaintiff was safe for discharge, he could have benefitted from a longer stay. (Tr. 264-267)

On October 18, 2010, a Licensed Clinical Social Worker diagnosed Plaintiff with cannabis dependence; alcohol abuse; opioid dependence - partial remission; substance induced psychotic disorder with hallucinations; and substance induced mood disorder, R/O schizoaffective disorder - depressive type. Plaintiff's Global Assessment Functioning ("GAF") over the past year was 35, with a current GAF of 32. Plaintiff stated he wanted to get clean and learn how to deal with his mental health issues without using. (Tr. 311, 339)

Psychiatric Case Notes from October 21, 2010 revealed a history of poly substance dependence and schizoaffective disorder. Plaintiff displayed symptoms of crying spells, hopelessness, worthlessness, and helplessness, as well as social phobia, muscle tension, and command psychosis. Mental Status Exam was essentially normal, although Plaintiff reported auditory hallucinations. Plaintiff requested Abilify. The examining psychiatrist assessed a GAF of 35 and advised Plaintiff to follow up in 2 months. (Tr. 337-38)

On November 4, 2010, psychiatric notes indicated that Plaintiff continued to hear voices telling him that he will never stay clean. Plaintiff also complained of anxiety with tightening muscles. He reported that the medications helped, but not enough. Mental status exam was normal. The ...


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