United States District Court, E.D. Missouri, Northeastern Division
INCENT L. BREYFOGLE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
This matter is before the Court for review of an adverse ruling by the Social Security Administration.
I. Procedural History
On July 20, 2010, plaintiff Vincent L. Breyfogle protectively filed an application for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of April 16, 2010. (Tr. 148-53). After plaintiff's application was denied on initial consideration (Tr. 94-98), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 109-11).
Plaintiff and counsel appeared for a hearing on May 9, 2012. (Tr. 22-76). The ALJ issued a decision denying plaintiff's application on August 21, 2012 (Tr. 13-22), and the Appeals Council denied plaintiff's request for review on May 14, 2013. (Tr. 1-4). Accordingly, the ALJ's decision stands as the Commissioner's final decision. See 42 U.S.C. § 405(g).
II. Evidence Before the ALJ
A. Disability Application Documents
In his Disability Report (Tr. 168), plaintiff listed his disabling conditions as bipolar disorder, anxiety, depression, hepatitis C, high blood pressure, fatigue, and pain. In the past, plaintiff worked as a cook, a furniture mover, and a laborer. Plaintiff reported taking Aleve for pain and headaches and Zantac for stomach pain.
In his Function Report (Tr. 188-98), plaintiff wrote that he lives in a house with a roommate. On an average day, he visits the doctor, takes care of his pet dogs, does light household chores with frequent breaks, and cooks light meals. Plaintiff goes outside every day, and shops for food, clothing, and toiletries once per week. He is able to drive and performs these errands alone. He stated that he needs reminders to go shopping, go to the doctor, groom, and take his medicine. He reported no problem with personal care, although sometimes he is fatigued and does not want to groom. His hobbies include reading and watching television. He said that he has trouble completing tasks and focusing, and estimates that he can pay attention for fifteen minutes at a time. He also struggles with following and understanding spoken instructions. He stated that he does not spend time with others, because he does not get along with other people, and feels stressed and paranoid. He stated that he is able to walk one mile before needing to rest for half an hour. He has difficulty handling changes in routine, which cause him to feel stressed.
Plaintiff's father's girlfriend, Barbara Homeyer, submitted a third-party function report on behalf of plaintiff. (Tr. 199-206). She stated that she has known plaintiff for three years, and sees him twice monthly. She wrote that plaintiff has problems with pain and nervousness, and has difficulty concentrating. She stated that plaintiff performs chores around the house, like cleaning, doing laundry, doing dishes, and mowing the lawn on a riding mower, and that he occasionally sees friends or talks on the phone with his son.
B. Hearing on May 9, 2012
At the time of the hearing, plaintiff was 44 years old, 5'10" tall, and weighed 195 pounds. He stated that he lived in a farmhouse with a roommate on his father's farm in Stoutsville, Missouri. He was separated from his wife, and he had one son who lives with plaintiff's mother. Plaintiff confirmed that he has a 10th grade education, and earned his GED. From 1991 to 1999 he worked as a cook in a restaurant. In 2007 he worked as a laborer with a furniture company. From 2007 to 2009 he was employed by two moving companies, doing work that involved moving furniture and lifting up to 100 pounds. He stopped working because arthritis in his neck and hands prevented heavy lifting. He stated that he could not find a job because he is nervous, paranoid, defensive, aggressive, and has panic attacks. He received food stamps and was on Medicaid. Plaintiff has a criminal history, and has been incarcerated three times for offenses of possession of a controlled substance, stealing, and forgery. He was released from his most recent prison term of 22 months in April 2009.
Plaintiff testified about his medical conditions, including arthritis, hepatitis C, stomach pain, hypertension, growths on his kidneys, and anxiety. He explained that he has arthritis in his hands, neck, and knees, and that his pain level varies with the weather. He was seeing a pain management doctor, who prescribed medications and gave plaintiff epidural injections in his spine. The injections briefly relieved his pain but also made him nauseous. He also received cortisone shots in his knees. Plaintiff was taking interferon and other medications for hepatitis C. He experienced side effects from these medications including depression, fatigue, and stomach problems. He explained that his stomach hurts constantly, that he vomits several times per week, and he has diarrhea several times per day. Plaintiff was on medication for his blood pressure. He was seeing a psychologist monthly for counseling. He testified that, three to four times per week, he feels so paranoid and claustrophobic that he cannot leave his house or answer the telephone. He had panic attacks daily, experienced nervousness, and wanted to be alone. Nightmares and pain caused him to wake up several times each night. He was prescribed an assortment of antidepressants and sleeping pills, but he did not take them because they didn't work and they caused negative side effects.
Plaintiff testified that he does chores on the farm, including cleaning, cutting the grass, washing the porch, feeding the dogs, cooking basic meals, doing laundry and dishes, and grocery shopping. He did not go to large stores like Target or Wal-mart because he becomes anxious when he is around lots of people. He took hour-long, naps twice a day, sleeping in a reclining position to ease his neck. In the winter he spent more time lying down because his arthritis worsens with the cold weather. He smoked half a pack of cigarettes per day. He used to drink alcohol and use illegal drugs, but he stopped. He estimated that he could stand and walk for 20 to 30 minutes at a time, lift and carry 5 to 10 pounds, and sit for about 30 minutes. He could not tightly grip or work with precision with his hands. (Tr. 33-68).
Susan Shea, M.A., an independent consultant, testified as a vocational expert. The ALJ asked Ms. Shea about the employment opportunities for a hypothetical individual with plaintiff's education, age, and past work experience, who is capable of performing light work, involving simple and routine tasks, with only occasional climbing of ramps or stairs, stooping, kneeling, crouching, crawling, never climbing ladders, ropes, or scaffolds, avoiding concentrated exposure to hazardous machinery and unprotected heights, only occasional changes in work setting, and only occasional interaction with the public and co-workers. Ms. Shea testified that such an individual would be unable to perform past work, but could be employed as cleaning/housekeeping at a light level (4, 000 positions in Missouri and 915, 000 positions nationally), a laundry worker at a light level (2, 500 positions in Missouri and 900, 000 positions nationally), and a light machine tender (7, 000 positions in Missouri and 47, 000 positions nationally). The ALJ then altered the hypothetical and asked which jobs would be available if that same individual could only occasionally use his upper left extremity for reaching overhead. Ms. Shea responded that such an individual would have the same available jobs. With the additional added limitation of only occasional supervision, Ms. Shea again responded that the job opportunities would not change.
The ALJ added to the other limitations the further limitation of sedentary work. Ms. Shea stated that the individual could do production-type jobs such as a cable worker (7, 000 positions in Missouri and 472, 000 nationally), hand assembly at the sedentary level (6, 000 positions in Missouri and 280, 000 nationally), or sedentary machine work (5, 400 positions in Missouri and 242, 000 nationally). The ALJ then asked whether jobs would be available for the same individual if he could not sustain full time work. Ms. Shea responded that there would not be any jobs available. She explained that no more than two unexcused absences are allowed per month, and no more than two five-minute breaks per hour.
Plaintiff's attorney asked Ms. Shea whether any jobs would be available if the hypothetical individual also had a "marked impairment" in his ability to interact appropriately with public, supervisors, co-workers, and respond appropriately to usual work situations. Ms. Shea responded that there would not be any jobs available. The attorney asked whether jobs would be available if the individual had a "marked impairment" in the ability to make judgments on simple work-related decisions, and she responded there would be none. (Tr. 68-76).
Medical records from the Federal Bureau of Prisons dated from 2005 to 2009 show that plaintiff was treated for depression. He was prescribed Elavil. Plaintiff did well on this medication, and felt the medication to be effective. Psychological reviews conducted in June and July 2009 found that plaintiff suffered from no significant mental health problems. However, in August of 2009, plaintiff reported that he had stopped taking Elavil because it caused weight gain and nervousness.
On June 17, 2010, plaintiff presented at the emergency room in Farmington, Missouri with acute anxiety. Plaintiff refused all diagnostic tests, stated that he wanted to leave, and was discharged. Tr. 244. In August and September of 2010, plaintiff paid several visits to Andrew Quint, M.D., at the Family Health Center in Columbia, Missouri, for treatment of hepatitis C and hypertension. Dr. Quint prescribed Lisinopril, a blood pressure medication. Tr. 248; 273; 321.
On October 19, 2010, plaintiff went to an initial psychiatric evaluation at Burrell Behavioral Health Center. He reported suffering from anxiety and depression. He stated that he was not currently taking medication. Plaintiff was assessed with a GAF of 48. Tr. 416; 421-22. Plaintiff returned to Dr. Quint on November 10, 2010, and Dr. Quint increased his dosage of Lisinopril and ordered smoking cessation counseling. Tr. 410. Plaintiff reported anxiety, and being fearful and paranoid around groups of people. Tr. 414-15.
On November 15, 2010, plaintiff met with psychologist Patrick Finder. He reported that he lived on a farm where he tended to the animals and did chores. Mr. Finder noted that plaintiff had pressured speech, and he initially believed plaintiff to be under the influence of a stimulant such as cocaine or methamphetamine, but plaintiff denied this and convinced Mr. Finder otherwise. Mr. Finder observed symptoms of severe anxiety, and plaintiff reported that he had suffered from anxiety since elementary school. Mr. Finder assessed plaintiff's GAF as 40, and remarked that, "[g]iven the severity of his psychological symptoms, it is not felt that he would be able to obtain or maintain any type of employment at this point.... He does engage in some activities on the farm but these seem to be at his own pace and with his own choosing. It is not felt that he would be able to accomplish working for another individual at this time." He also added that it was unknown how plaintiff might respond to appropriate medication. Tr. 492.
On December 9, 2010, Mark Altomari, Ph.D., conducted a mental residual functional capacity (RFC) assessment, and found no marked limitations in functioning. He assessed plaintiff as "not significantly limited" or "moderately limited" in all categories, including understanding and memory, sustained concentration and persistence, social interaction, and adaptation. Tr. 424-26. Dr. Altomari also completed a psychiatric review technique form, and noted that plaintiff suffered from major depressive disorder, bipolar disorder, and generalized anxiety disorder, with a mild degree of functional limitation in activities of daily living, a moderate degree of limitation in maintaining social functioning and concentration, persistence, or pace, and no repeated episodes of decompensation of extended duration. Tr. 427-38.
On December 24, 2010, plaintiff went to the emergency room of Hannibal Regional Hospital where he was seen by Timothy B. Raleigh, D.O. Plaintiff reported that he had pain in his neck and upper back after "wrestling a calf" two days earlier. Upon examination, plaintiff's muscles were spasming, and his left shoulder was elevated. He was prescribed Vicodin and Flexeril for the pain and spasms. Dr. Raleigh diagnosed plaintiff with torticollis, and found a degenerate change of his cervical spine. Plaintiff was discharged the same day. Tr. 577.
On February 24, 2011, plaintiff visited Joseph L. Spalding, D.O., with the Hannibal Regional Medical Group. Dr. Spalding diagnosed plaintiff with panic disorder with agoraphobia, bipolar disorder, and substance abuse in remission, with a GAF of 55. He prescribed Gabapentin and Propranolol for anxiety and hypertension. Tr. 459. On March 24, 2011, plaintiff returned to Dr. Spalding. He reported that he had taken the medications for three weeks, but then stopped because they "weren't making him feel right." He requested Valium. Dr. Spalding restarted plaintiff on Propranolol and prescribed Luvox for anxiety. Tr. 462. Plaintiff also saw Sohail Gulzar, M.D., for hypertension on March 24. He was started on Norvasc. He was also referred to Bhagirath Katbamna, M.D., for hepatitis C treatment. Tr. 465.
On April 11, 2011, plaintiff returned to Dr. Gulzar, complaining of neck strain. Upon examination, he did not appear anxious or depressed. Dr. Gulzar prescribed Tramadol for pain, and increased the Norvasc dosage. Tr. 469. Beginning in May 2011, plaintiff was seen by Dr. Katbamna for hepatitis treatment. Dr. Katbamna ordered a liver biopsy which showed mild inflamation and stage 0-1 fibrosis. He prescribed Pegasys (peginterferon alfa-2a), Ribavirin, and Victrelis. Tr. 527-28.
On May 12, 2011, plaintiff saw Dr. Gulzar for pain. He did not appear anxious or depressed. He was given Norco for pain, and Benicar for hypertension (plaintiff had discontinued use of Propranolol again). Tr. 472. He was also seen by Dr. Spalding the same day. He reported being depressed, in pain, and having trouble sleeping. Dr. Spalding wrote that plaintiff "refuses to take mood stabilizers" and complains of side effects "with virtually any medication I suggest. While he stated he can't relax, he describes how he spends his day on the farm away from people and how much he likes it." Plaintiff requested Valium, and the doctor refused. Dr. Spalding wrote, "[t]his patient consistantly [sic] tries to get Valium and I made it clear I would not do this." The doctor prescribed Paxil for anxiety, and assessed plaintiff's GAF at 55. Tr. 475.
On June 9, 2011, plaintiff saw Dr. Gulzar for pain and the degeneration of his cervical disc. Dr. Gulzar remarked that he would give plaintiff 15 more pills (Norco), after which he would not prescribe any more opioids for plaintiff. Tr. 478. On June 13, 2011, plaintiff visited Syed Imam, M.D., at the Arthur Center. He was diagnosed with bipolar disorder, with symptoms of anxiety. His GAF score was 50. Dr. Imam prescribed Ambien and Prestig. Tr. 444-57. On June 20, 2011, plaintiff saw Luvell Glanton, M.D., at the Hannibal Center, for his neck pain, which was radiating into his arms. Dr. Glanton noted that plaintiff had discontinued his use of Benicar and Paxil, but was taking Norvasc, Norco, and Ranitidine. A CT-scan of the cervical spine revealed degenerative disc disease. Dr. Glanton developed a plan to give plaintiff epidural injections. Tr. 481.
On July 20, 2011, plaintiff visited Robert W. Jackson, D.O., for evaluation of his arthritis pain. Dr. Jackson noted that plaintiff had been discharged from the Army prematurely due to knee problems and later was in a motor vehicle accident that resulted in neck injuries. He wrote that recent X-rays showed degenerative joint changes in plaintiff's cervical spine. Plaintiff reported increased pain in his extremities, especially his hands. Dr. Jackson noted no anxiety or depressed mood. He diagnosed plaintiff with chronic diffuse arthralgias and myalgias with history of osteoarthritis and chronic pain syndrome. He developed a plan to reduce plaintiff's ...