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Becherer v. Colvin

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

August 26, 2014

CANDICE BECHERER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

ABBIE CRITES-LEONI, Magistrate Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of defendant's final decision denying the application of Candice Becherer for Supplemental Security Income under Title XVI of the Social Security Act. This case has been assigned to the undersigned United States Magistrate Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See 28 U.S.C. § 636(c). Plaintiff filed a Brief in support of the Complaint. (Doc. No. 12) Defendant filed a Brief in Support of the Answer. (Doc. No. 17)

Procedural History

On May 20, 2010, Plaintiff filed an application for Supplemental Security Income, claiming that she became unable to work due to her disabling condition on March 1, 2007. (Tr. 114-17) This claim was denied initially and, following an administrative hearing, Plaintiffs claim was denied in a written opinion by an Administrative Law Judge (ALJ), dated July 26, 2011. (Tr. 64, 19-36) Plaintiff then filed a request for review of the ALJ's decision with the Appeals Council of the Social Security Administration (SSA), which was denied on October 24, 2012. (Tr. 1-6) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

Evidence Before the ALJ

A. ALJ Hearing

Plaintiffs administrative hearing was held on June 6, 2011. Plaintiff was present and was represented by counsel. Also present was vocational expert Herman Litt. (Tr. 42)

In an opening statement, Plaintiff's attorney argued that Plaintiff is limited to less than sedentary work due to a combination of physical and mental impairments. (Tr. 45-46)

Plaintiff's attorney examined Plaintiff, who testified that she had not worked since 2006.

Plaintiff testified that she suffers from bipolar disorder, [1] which causes her to feel depressed and "mad" all the time. Plaintiff stated that she has difficulty with sleep, including a desire to sleep all day occasionally, and an inability to stay asleep at night. Plaintiff testified that she has problems with concentration due to bipolar disorder. (Tr. 47)

Plaintiff stated that her bipolar disorder has affected her relationships with her family and friends. Plaintiff testified that she has a hard time being around people and frequently argues with family members. Plaintiff stated that she does not leave the house by herself often.

Plaintiff testified that she spends a typical day at her home. (Tr. 48) Plaintiff stated that her bipolar disorder symptoms have affected her ability to do household activities. Plaintiff explained that she is frequently distracted while doing household chores, which makes it difficult to complete tasks. Plaintiff stated that she stays in her room all day approximately two days a week.

Plaintiff testified that she was receiving treatment for bipolar disorder at the time of the hearing. Plaintiff stated that she was taking medications, although she did not know whether the medications were prescribed specifically for bipolar disorder. Plaintiff testified that her medications caused her to feel "tired all the time." (Tr. 49)

Plaintiff testified that she experiences a constant, sharp pain in her upper and lower back. Plaintiff stated that her back pain affects her sleep, because she is unable to get comfortable. Plaintiff testified that she sleeps about four hours a night.

Plaintiff stated that she usually wakes up at approximately 4:00 a.m. and gets up and tries to move around. Plaintiff testified that she then sits down until it is time to get her children ready for school. (Tr. 50) Plaintiff stated that she has two children, who are aged sixteen and eleven. Plaintiff testified that her children are able to shower and dress independently.

Plaintiff stated that she has difficulty standing due to her back pain. Plaintiff testified that she is able to stand for about ten minutes before she has to sit down for ten to fifteen minutes to rest before standing again. Plaintiff stated that she is able to sit for ten to fifteen minutes before she has to get up or walk around due to pain. (Tr. 51) Plaintiff testified that she elevates her feet at heart level every time she sits pursuant to her doctor's orders. Plaintiff stated that she elevates her feet for ten to fifteen minutes at a time and a total of three to four hours a day. Plaintiff testified that she is able to walk for ten minutes at a time before she has to sit down due to pain. (Tr. 52) Plaintiff testified that she would be able to comfortably lift five pounds every fifteen minutes during an eight-hour workday without experiencing back pain.

Plaintiff stated that she suffers from pain in her feet, which affects her ability to walk and perform household chores. (Tr. 53) Plaintiff testified that she also experiences fatigue, which affects her ability to perform tasks.

Plaintiff testified that she would be unable to perform a full-time sit-down job due to her inability to concentrate and her need to get up and move around frequently to relieve her back and leg pain. (Tr. 54)

The ALJ then examined the vocational expert, Mr. Litt. The ALJ asked Mr. Litt to assume a hypothetical claimant with Plaintiffs background and the following limitations: light work; only occasional postural maneuvers such as balancing, stooping, kneeling, crouching, crawling, and climbing; only simple, routine, repetitive tasks not performed in a fast-paced production environment involving only simple work-related decisions and few workplace changes; and only occasional interaction with supervisors, co-workers, and the general public. (Tr. 56-57) Mr. Litt testified that the individual would be able to perform the following positions: laundry press operator (200, 000 positions nationally; 1, 500 in Missouri); office cleaner (250, 000 positions nationally; 1, 400 in Missouri); and mail clerk (290, 000 positions nationally, 1, 200 in Missouri). Mr. Litt stated that no more than two absences per month are customarily permitted by employers, and rest breaks typically consist of a fifteen-minute break in the morning and afternoon, and a thirty-minute to one-hour lunch break. Mr. Litt testified that employees are generally expected to be on task a minimum of eighty percent of the time. (Tr. 57)

Plaintiffs attorney asked Mr. Litt to assume a hypothetical claimant with the following limitations: occasionally able to maintain attention and concentration for extended periods; occasionally able to work within a schedule and maintain regular attendance; occasionally able to complete a normal workday or workweek without interruptions from psychologically-based symptoms; occasionally able to perform at a consistent pace with a standard number and length of rest periods; markedly limited in the ability to accept instructions or respond appropriately to criticism; and occasionally able to get along with co-workers or peers without distracting them. (Tr. 58-59) Mr. Litt testified that these limitations would not be tolerated in a competitive work environment. (Tr. 59)

B. Relevant Medical Records

Plaintiff presented to Pathways Community Behavioral Healthcare ("Pathways") on December 24, 2008, for an annual mental assessment. Plaintiff complained of anxiety, depression, and problems with impulse control. (Tr. 491) Upon mental status examination, Plaintiff appeared to be somewhat depressed, but her mood, affect, impulse control, thought content, attention/concentration, judgment, and insight were within normal limits. (Tr. 492) Kathilene S. Ball, MA, diagnosed Plaintiff with bipolar affective disorder and panic disorder, [2] with a GAF score[3] of 45.[4] (Tr. 498-99) Plaintiff was prescribed Xanax, [5] Geodon, [6] Trileptal, [7] and Celexa.[8] (Tr. 501)

Plaintiff saw Gregory Maynard, D.O. on March 9, 2009, for a cardiac evaluation. Plaintiff complained of chest discomfort, fatigue, and periodic shortness of breath, but reported no "new or unusual" musculoskeletal symptoms. (Tr. 305-06) Upon examination, Plaintiff's extremities were normal. Plaintiff was diagnosed with lethargy and elevated blood pressure. (Tr. 306)

Plaintiff presented to Dr. Maynard on June 4, 2009, complaining of difficulty with irritability. Plaintiff reported stress dealing with her children and reported fighting verbally with her husband. Plaintiff also complained of left lower extremity numbness to the anterior thigh for approximately one year, with no weakness. (Tr. 317) Upon examination, Plaintiff was alert and cooperative and in no distress. Plaintiff's extremities were normal. Dr. Maynard diagnosed Plaintiff with mood disorder, [9] paresthesia of the left leg, and cough. He prescribed Cymbalta[10] for Plaintiff's mood disorder. (Tr. 318-19)

Plaintiff presented to Dr. Maynard for follow-up on July 7, 2009, at which time she reported that she had stopped medications due to nausea associated with Cymbalta. Dr. Maynard prescribed Pristiq[11] for Plaintiff's mood disorder. (Tr. 322-23)

Plaintiff presented to Kimberely Ingram, LPC, for counseling on September 14, 2009. Ms. Ingram noted that Plaintiff walked with a "smooth gait."[12] Plaintiff's mood was depressed and her affect was congruent with her mood as evidenced by crying spells, slowed speech, and reported grieving over the death of a friend. Plaintiff also reported only sleeping three to four hours a night, having a reduced appetite, poor concentration, and poor memory. Ms. Ingram indicated that Plaintiff's treatment would focus on anxiety-management skills, grief therapy, and desensitization for phobia. (Tr. 481) On September 23, 2009, Plaintiff reported feeling "grouchy, " due to having pneumonia. Ms. Ingram found Plaintiff's concentration was adequate and her memory was intact. (Tr. 480) On September 30, Plaintiff's mood and affect were depressed and her sleep pattern was poor. Plaintiff's concentration was adequate and her memory was intact. (Tr. 478) On October 12, 2009, Plaintiff's mood was anxious. Plaintiff's concentration was adequate and her memory was intact. (Tr. 476) On October 21, 2009, Plaintiff's mood was depressed, and she reported that she had isolated herself in her room all week. Plaintiff's concentration was adequate and her memory was intact. Ms. Ingram recommended stress relief exercises. (Tr. 473) On November 2, 2009, Ms. Ingram noted that Plaintiff's mood was improved from the last session. (Tr. 471) On November 11, 2009, Plaintiff's mood was pleasant despite reporting significant stress the prior week due to going three days without medication. Plaintiff was making progress toward her treatment goals, as she drove to Houston with "manageable anxiety." (Tr. 469)

On November 17, 2009, Plaintiff presented to Dr. Maynard with complaints of back pain that began two weeks prior. Dr. Maynard noted that Plaintiff's back was tender to palpation, but there was no radiation to the lower extremities. Dr. Maynard prescribed Cataflam, [13] Flexeril, [14] and Ultram[15] for pain. (Tr. 247)

Plaintiff saw Ms. Ingram on December 2, 2009, at which time her mood was depressed. Plaintiff's concentration was adequate ...


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