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Wiese v. Colvin

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

September 5, 2014

JOSEPH C. WIESE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


TERRY I. ADELMAN, Magistrate Judge.

This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves applications for Disability Insurance Benefits under Title II of the Social Security Act and for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief in Support of his Complaint; the Commissioner has filed a Brief in Support of her Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

I. Procedural History

On August 31, 2010, Claimant filed Applications for Supplemental Security Income payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et. seq. (Tr. 206-09) and for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 210-16)[1] alleging disability since April 30, 2010[2] due to arthritis, degenerative disc disease, bipolar, depression, hip problems, fibromyalgia, and pinched nerves in his neck. (Tr. 94). The applications were denied (Tr. 53-57), and Claimant subsequently requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 101-02). On September 7, 2011 a hearing was held before an ALJ and on May 8, 2012, a supplemental hearing was held. (Tr. 30-53, 54-72). Claimant testified and was represented by counsel. (Id.). Dr. John Pollard, the medical expert, and Vocational Expert Gail Leonhardt also testified at the supplemental hearing. (Tr. 56-65, 68-71, 195-96, 201-02). In a decision dated July 27, 2012, the ALJ found that Claimant had not been under a disability as defined by the Social Security Act. (Tr. 8-24). After considering the letter from Dr. John Small, the Appeals Council denied Claimant's Request for Review on March 26, 2013. (Tr. 2-7). Thus, the ALJ's decision is the final decision of the Commissioner.

II. Evidence Before the ALJ

A. Hearing on September 7, 2011

At the hearing on September 7, 2011, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 30-53). His date of birth is September 13, 1974. (Tr. 37). He lives in an apartment through public assistance. (Tr. 49). He does not have a driver's license, and his parents take him shopping. (Tr. 50). Claimant lost his license due to his failure to pay child support. (Tr. 51).

Claimant testified that Dr. John Collins of the Kirksville Complete Family Medicine treats for his episodes of abscesses in his anal, scrotum, and groin areas. (Tr. 37). He explained that the abscesses start with a lump and then the area around it turns red and feverish and a pocket of infection forms and then comes to a head and starts to drain. (Tr. 38). Claimant testified that the abscess occurs within a week time period unless the abscess is lanced open and drained. The open pocket underneath the skin created by the abscess reinfects and has to be reopened. (Tr. 38). He is treated with an antibiotic. (Tr. 40). When the abscess is located in his groin, scrotum, or anal area, sitting increases the pain, and lying down in his underwear with a wash clothe helps alleviate the pain. (Tr. 39). Claimant indicated that he may go a month without an abscess, but then he has two in another month, and he has no way of projecting when he will have one. (Tr. 39). He testified the abscesses will be reoccurring. (Tr. 40). He was hospitalized once to drain an abscess in June, 2010. (Tr. 41). The severe pain from the abscesses interferes with his sleep. (Tr. 43). He takes hydrocodone to alleviate his pain and experiences no side effects from the medication. (Tr. 43).

His problems with his cysts started in 1998 when Claimant had a pilonidal cyst. (Tr. 45). Claimant acknowledged that he had worked with his cyst problem. (Tr. 45).

Claimant last worked at Four Quarters Construction doing house remodeling in December, 2007. (Tr. 45). He stopped working due to his physical conditions including his back and neck pain, fibromyalgia, arthritis, and degenerative disc disease. (Tr. 46). The cysts had something to do with his no longer working, because he was missing a lot of work due to loss of sleep. In 2007, Claimant testified that he had two to three cysts. (Tr. 46). He indicated that he had shared his cyst problems with his friend, Sean Fratheim. (Tr. 47). The ALJ noted how Claimant failed to list his cyst problem on his applications as a disabling condition preventing him from working. (Tr. 47).[3]

Claimant testified that he learned four months earlier that he has diabetes. (Tr. 40). He is depressed, and he experiences manic states. (Tr. 41). Claimant takes medications for his mental health conditions. (Tr. 42). Cindy Mayberry has treated him for at least six months. He was hospitalized at Hannibal Regional for treatment. (Tr. 42). Claimant has an inhaler for his breathing problem. (Tr. 45).

In a six-month time period, Claimant testified that he would have to miss work a couple days each month due to the lack of sleep. (Tr. 44). He has an abscess every two to three months. (Tr. 44). Claimant testified if he had an abscess flaring up he would not be able to work, because he could not sit all day. (Tr. 40)

Claimant spends most of the day watching television, and he sometimes attends a 12-step meeting with a friend. (Tr. 44). He last consumed alcohol on February 17, 2005. (Tr. 44).

At the end of the hearing, the ALJ noted he would schedule a supplemental hearing with a medical expert to address if his diabetes causes the cysts. (Tr. 52).

B. Supplemental Hearing on May June, 2012

At the hearing on June 8, 2012, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 54-72). Dr. John Pollard, the medical expert, testified that Claimant had perianal abscesses drained in May 2010, October 2010, and May 2011 and was seen in April 2012 for an anal fissure and a colonoscopy was done on August 10 to rule out inflammatory bowel disease. (Tr. 59). The colonoscopy was negative except for a polyp which was removed. Dr. Collins wrote a letter in March 2012 opining that Claimant has dozens of perianal abscesses, but Dr. Pollard noted this is not reflected in the record. (Tr. 59).

Dr. Pollard testified that he is not able to determine the cause of the abscesses but noted that the colonoscopy in August 2010 ruled out inflammatory disease as a cause. (Tr. 62). Dr. Pollard opined individuals with diabetes tend to get infections and if the abscess does not drain spontaneously, a surgeon would incise and drain the abscess. An individual with an infection would have pain. (Tr. 62). Dr. Pollard opined that the reoccurring abscesses would impose some work-related limitations such as he could not sit for six hours and would need to get up and move around. (Tr. 64). Dr. Pollard further opined that his pushing/pulling would be unlimited; he could occasionally crawl, stoop, or bend; and he should avoid extreme cold and noxious fumes because of his diagnosis of bronchial asthma. (Tr. 64).

Claimant testified that he has had four or five abscesses since the last hearing. (Tr. 66). The shortest period of time for recovery from an abscess is over two weeks. (Tr. 68).

2. Testimony of Vocational Expert

Vocational Expert Gail Leonhardt testified in response to the ALJ's questions. (Tr. 68-71).

The ALJ asked Ms. Leonhardt to assume that an individual 35-37 years of age with a high school education, no relevant past work for purposes of my question. I'd like you to assume that the individual is able to perform a full range of light exertional work, as that term is defined, with the following additional limitations. With respect to sitting they would be limited to two hours of sitting in an eight-hour day. The individual would need to avoid environments containing extreme cold, heat, or concentrated exposure to smoke, fumes, dust, gases.... Please tell us, in your opinion, would the hypothetical individual I described be able to perform any unskilled occupations that exist in the national, regional, or local economy?

(Tr. 69-70). Ms. Leonhardt opined that Claimant could work as a sales attendant, a light, unskilled job where there are 4, 037 jobs available in the four-state region and 88, 015 jobs available nationally. (Tr. 70). In addition, such individual would be able to perform work as an office helper, a light, unskilled job where there are 10, 866 jobs available in the four-state region and 224, 097 jobs available nationally. Ms. Leonhardt further opined that Claimant could work as a production assembler, a light, unskilled job where there are 1, 920 jobs available in the four-state region and 40, 998 jobs available nationally. (Tr. 70).

The ALJ next asked Ms. Leonhardt to assume his previous question but "the individual is also limited to performing simple and repetitive tasks, would that change you response any to my first question?" (Tr. 71). Ms. Leonhardt responded no. Then the ALJ asked if he were to add "the following limitation, the individual would miss a period of one to two weeks of being able to report and perform work, and that one to two weeks would be missed on an average of every one or two months, would that change your response any to my first question?" (Tr. 71). Ms. Leonhardt indicated that would change her response inasmuch as this limitation would make sustaining employability unfeasible. (Tr. 71).

3. Forms Completed by Claimant

In the Disability Report - Adult, Claimant noted he stopped working on December 28, 2007 because of his conditions and indicated on January 14, 2007, his conditions caused him to make changes in his work activity. (Tr. 256).

In the Function Report Adult, Claimant reported doing the dishes and the laundry, cleaning, watching television, going to meetings, reading, and cooking as his daily activities unless he is down for the day. (Tr. 267, 269). He listed going to meetings, talking on the phone, and emailing as his social activities. (Tr. 271).

In the Function Report Adult - Third Party, Sean Fratheim, a friend, reported Claimant attends recovery group three to four times a week. (Tr. 286-93).

III. Medical Records

The April 2, 2009 MRI of his cervical spine showed at C3-C4 moderate to severe left foraminal stenosis secondary to degenerative disease. (Tr. 504). The MRI of his lumbar spine had normal findings. (Tr. 505).

On September 3, 2009, Claimant was voluntarily admitted to the University of Missouri Health Care due to symptoms of depression and suicidal thoughts after presenting himself to the emergency department. (Tr. 429, 435). He reported multiple stressors including homelessness, losing custody of his children, having his assets auctioned off to pay for child support, end of relationship with girlfriend, having to move multiple times, no transportation, and ongoing poor physical health. (Tr. 429, 435). He reported being disabled and unable to work because of his arthritis, fibromyalgia, and degenerative disc problems. (Tr. 429). At the time of admission, Claimant was placed on suicide observation and seizure precautions and his assessed GAF score was 35. (Tr. 430). A neurological examination showed bilateral suboccipital tenderness with reproduction upon palpitation. He complained of multiple stressors primarily related to financial problems, homelessness, and lack of employment. His mood and behavior continued to improve throughout the hospitalization, and he reported that he was feeling better. (Tr. 430). Claimant reported smoking cigarettes. (Tr. 437). During the neurology consultation, the doctor found the examination to be remarkable for bilateral suboccipital tenderness with reproduction of the headache. (Tr. 441). At the time of discharge, his assessed GAF score was 85, and he was referred to outpatient treatment as follow-up treatment. (Tr. 430).

On March 31, 2010, Claimant received treatment in the emergency room at Moberly Regional Medical Center for groin pain and headache. (Tr. 303-05).

In the April 1, 2010 assessment, the treating doctor noted Claimant to be able to perform all activities of daily living without assistance. (Tr. 306).

On May 21, 2010, Claimant sought treatment in the emergency room at Northeast Regional Medical Center for abscess in groin and scrotum. (Tr. 325). The emergency room doctor requested Claimant be seen by Dr. David Kermode for consultation. (Tr. 331). Claimant reported having a history of pilonidal cyst and a past medical history of degenerative joint disease, arthritis, depression, bipolar disorder, and fibromyalgia. (Tr. 331). Dr. Kermode recommended draining the abscess under anesthesia. (Tr. 332).

On May 23, 2010, Dr. Kermode drained a perianal abscess and placed a Penrose drain. (Tr. 328). Dr. Kermode noted Claimant had some inappropriate behavior throughout his hospitalization including exposing himself on numerous occasions to hospital staff. (Tr. 329). He opined that Claimant has other issues that need to be addressed from a mental health standpoint. Examination showed Claimant to have greatly improved from his initial presentation to the emergency room. (Tr. 329). The operative report included the diagnosis of perianal abscess, right groin. (Tr. 340). Dr. Kermode drained Claimant's perianal abscess under anesthesia. (Tr. 340). Dr. Kermode noted he would hospitalize Claimant over night for pain control. (Tr. 341). The radiology report of post drainage of right perirectal abscess showed no abscess cavity fluid collections remain. (Tr. 338).

On May 27, 2010, Claimant returned to the emergency room and reported having increased pain and bleeding. (Tr. 342-44).

Claimant was treated status post drainage of an abscess in the perianal region on June 4, 2010. (Tr. 319). Dr. Kermode examined him and found he had made a remarkable recovery. (Tr. 319). On June 11, Dr. Kermode noted that although the Penrose drain was to be removed during treatment, Claimant removed the drain a week earlier due to discomfort. (Tr. 320). After removing the drain, he sought treatment in the emergency room because he thought there might be persistent abscess fluid and after being told this was not the case, he returned for follow-up treatment as prescribed. Examination showed the area to be healing well, and Dr. Kermode opened an abscess within the anal canal. Dr. Kermode found there to be no evidence of persistent abscesses or of abnormality. Dr. Kermode prescribed Augmentin for another week and prescribed Lortab and noted would schedule Claimant for a colonoscopy to determine whether he has inflammatory bowel disease or other precipitating problem leading to the development of this abscess. (Tr.320). In follow-up ...

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