United States District Court, E.D. Missouri, Eastern Division
REBECCA A. PICKLE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER OF UNITED STATES MAGISTRATE JUDGE
TERRY I. ADELMAN, Magistrate Judge.
This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves an Application for Disability Insurance Benefits under Title II of the Social Security Act. Claimant has filed a Brief in Support of her Complaint; the Commissioner has filed a Brief in Support of her Answer; and Claimant filed a Reply thereto. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I. Procedural History
Claimant Rebecca A. Pickle filed Applications for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 168-77). Claimant states that her disability began on November 2, 2007,  as a result of degenerative disc disease of lumbar 4 and lumbar 5 vertebrae. (Tr. 90). On initial consideration, the Social Security Administration denied Claimant's claims for benefits. (Tr. 90-95). Claimant requested a hearing before an Administrative Law Judge ("ALJ"). On October 22, 2009, a hearing was held before the ALJ who issued an unfavorable decision on December 22, 2009. (Tr. 28-47, 73-81). Thereafter, Claimant filed a Request for Review of Hearing Decision, and the Appeals Council granted the request for review, vacated the hearing decision, and remanded the case to the ALJ to address certain matters on March 18, 2011. (Tr. 86, 87-89). In relevant part, the Appeals Council directed the ALJ to resolve the following:
The record is unclear regarding the nature and severity of the claimant's mental impairment(s).... Specifically, the claim file does not contain an assessment from a consultative examiner, treating physician, or a medical source from the State Agency on the claimant's mental status.
... Specifically, the hearing decision indicates, in part, that the medical record for the post-February 2009 period does not show any visits to a psychiatrist, psychologist, or a therapist. A review of the records, however, shows that the claimant has been receiving mental health treatment via various medications for fluctuations in her mood from her treating physician, Philip Dean, M.D. Rationale with cited medical evidence is needed to support why the claimant's alleged mental impairment does not meet the duration requirement.
Update the medical evidence on the claimant's impairments in order to complete the administrative record... regarding consultative examination and existing medical evidence....
Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations.
Further, evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms.
Further, evaluate the claimant's mental impairment(s) in accordance with the special technique described in 20 CFR 404.1520a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas...
If warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base.
(Tr. 87-88) (internal citations omitted).
On December 5, 2011, a supplemental hearing was held before an ALJ. (Tr. 48-70). Claimant testified and was represented by counsel. (Id.). Vocational Expert Delores Gonzalez also testified at the hearing. (Tr. 61-67, 133-36). Thereafter, on March 12, 2012, the ALJ issued a decision denying Claimant's claims for benefits. (Tr. 12-21). The Appeals Council on March 21, 2013 found no basis for changing the ALJ's decision and denied Claimant's request for review of the ALJ's decision after considering the brief of representative. (Tr. 1-6, 260-63). The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
II. Evidence Before the ALJ
A. Hearing on October 22, 2009
1. Claimant's Testimony
At the hearing on October 22, 2009, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 28-47). Claimant lives in her parents home with her parents, two sisters, and her son in a single family home. (Tr. 31).
Claimant testified that she attended outpatient treatment at Alternative Behavioral Care for prescription abuse in 2006, but the ALJ noted how she needs to provide the records supporting her prescription drug abuse problem. (Tr. 34-38). She testified that she has severe back pain from a herniated disc. (Tr. 38). After she had a microdiscectomy in 2005, her pain did not improve and increasingly escalated to the point where cannot bend or stand for more than one or two hours at a time. Claimant testified that she is either on the couch 24/7 or in the emergency room. After her second surgery, she indicated that she is in bed two to three days a week. (Tr. 38). She experiences debilitating side effects from the medications such as dizziness and drowsiness. (Tr. 39). Ms. Hammond, a therapist at Psych Care Consultants, has treated her after her recent divorce and but not the last couple of months due to her loss of insurance. (Tr. 39).
In response to the ALJ noting her history of opioid dependence, Claimant explained how it was related to her back pain. (Tr. 39). Claimant can lift a gallon of milk and is able to bathe on her own. (Tr. 41). She cooks, shops for brief periods, and drives. (Tr. 41). She does her own personal finances and for exercise does some light stretching. (Tr. 42). Her hobbies include watching television, playing board games with her son, and helping her son with his homework. She has a lot of friends and family, and she visits. (Tr. 42). After picking her son up from school, she may take him to get ice cream or go to the toy store for twenty to thirty minutes. (Tr. 43).
Dr. Dean treats Claimant for failed back syndrome. (Tr. 44). Since the fall of 2008, she has had some repeated hospitalizations for treatment of depression. (Tr. 45). Claimant explained how there was some problem adjusting her depression medications, because she has problems with reactions to medications. Her use of narcotics was during a period of experiencing severe back pain. (Tr. 45).
Claimant testified that she had to give up her nursing license because of narcotics. (Tr. 45). She could not physically work as a nurse or any other kind of employment. (Tr. 46).
B. Hearing on December 5, 2011
1. Claimant's Testimony
At the hearing on December 5, 2011, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 48-70). At the outset of the hearing, counsel amended the onset date of disability to November 2, 2007 from October 15, 2007. (Tr. 50-51). Claimant lives in her parents home with her parents, and her sister. (Tr. 51). She has a nursing degree, but her license expired in 2010. (Tr. 52).
Claimant had one DUI in 2007 and received outpatient treatment for drugs at Alternative Behavioral Care in 2007. (Tr. 53). The ALJ noted that the record shows she was also treated in 2006 and 2009 for psychiatric treatment. (Tr. 54).
Claimant testified that she worked at Barnes-Jewish for three years and stopped working in November 2007. (Tr. 55). Counsel indicated that Claimant's diagnosed physical impairments include failed back syndrome, chronic pain, degenerative disc disease, and sleep disorder and her mental impairments include bipolar disorder, major depressive disorder, and anxiety. (Tr. 55-56). She is not currently being treated by a psychiatrist or psychologist, but Dr. Philip Dean, a neurologist, prescribes her pain medication and psychiatric medications. (Tr. 56). She testified that she does not have the money to pay for counseling for her mental impairments. (Tr. 56). Claimant testified that her narcotic pain medication is the lowest dose of Oxycontin. (Tr. 59). In response to the ALJ's question regarding how she is still taking narcotic pain medication even though she is addicted, Claimant explained how she has requested to be weaned off the medication. (Tr. 59-60). The ALJ reminded Claimant how her testimony is being compared to the medical records for the purpose of making a credibility determination. (Tr. 60). She has not consumed alcohol for three to four years. (Tr. 60).
Claimant testified that she can shower and dress herself, but on a bad day, she cannot shower. (Tr. 57). The ALJ noted how her testimony is differing from the testimony she provided at the previous hearing. (Tr. 57). Claimant apologized for giving only testimony as to her present condition not covering a time from her alleged onset date to the present. (Tr. 58). She spends a lot of time lying on the coach watching television and about every thirty minutes she changes her position. (Tr. 59). Claimant testified that she is not able to last eight hours without lying down. She usually has to lie down three to four times in an eight hour day. (Tr. 59).
2. Testimony of Vocational Expert
Vocational Expert Delores Gonzalez testified at the hearing. (Tr. 61-67, 133-36). Ms. Gonzalez found Claimant's records and testimony show she has work experience as a nurse. (Tr. 61). Ms. Gonzalez noted how Claimant worked as a registered nurse, classified as medium, skilled work with diabetes education as part of her job duties. (Tr. 62). Based on Claimant's testimony, the nursing skills as she performed them would have ranged from light to medium. (Tr. 64). Ms. Gonzalez listed customer service, bandaging, disinfecting, interviewing, injecting, inoculating, taking pulses, supervisory skills without managerial, clerical, computer skills as transferable work skills. (Tr. 64-65). The ALJ noted how her "medical records suggest that she is functionally limited to light exertional work. She should avoid ropes, ladders, and scaffolding. She can occasionally do stooping, crouching and crawling. She should avoid hazardous heights." (Tr. 66). The ALJ opined that "[a]lthough the claimant has not for quite a while received any type of psychiatric care, despite her allegations of a disabling mental impairment, I will extend to her the lightest possible latitude in developing her functional capacity and limit her to unskilled work." (Tr. 66). Ms. Gonzalez opined with those limitations, Claimant cannot perform any of her past relevant work. (Tr. 66).
The ALJ asked Ms Gonzalez to assume that
a hypothetical individual with the claimant's educational background, vocational profile and residual functional capacity has the ability to perform [any jobs] that exist in significant numbers on a regional and national level? If yes, please identify those jobs by providing the DOT number, the number of positions available on a regional and national level.
(Tr. 66). Ms. Gonzalez cited an order caller, a light and unskilled job with 2, 815, 240 jobs available nationally, 68, 140 available in Missouri, and 31, 070 available in the St. Louis metropolitan area; a furniture rental consultant, light and unskilled, with 416.950 jobs available nationally, 7, 310 in Missouri, and 4, 170 in the St. Louis metropolitan area; and a private company mail clerk, light and unskilled, with 131, 750 jobs available nationally, 3, 430 in Missouri, and 1, 680 in the St. Louis metropolitan area. (Tr. 66-67).
Claimant's counsel asked Ms. Gonzalez the following:
... if you assume that Ms. Pickle needs to sit and stand frequently and that she can neither sit nor stand for more than 30 minutes at a time, that she needs to lie down several times during an eight-hour day, is she still able to do these three jobs that you identified?
(Tr. 67-68). Dr. Cook opined
Well, usually people work two hours, take a short break, work another two hours, lunch hour, two hours, break, two hours. You know, if that's possible, then those jobs could be performed. The jobs that I cited were done with a sit-stand option, so the person could change positions at will, however, if the person needs to take breaks where the person would need to lie down at will, not within the parameters of the breaks that are normally given, customarily given, then the person would need to be accommodated and not be able to work competitively.
(Tr. 68). Claimant testified that two hours is the longest she has gone without taking a break to lie down. (Tr. 68).
3. Open Record
At the end of the hearing, the ALJ noted she would leave the record open for three weeks so that counsel could submit records from Barnes-Jewish evidencing her last date she worked. (Tr. 69). Counsel provided that requested documentation showing that Claimant's employment status had been inactive as of October 5, 2006 at BJC Healthcare. (Tr. 258). The evidence submitted from Lincoln County Medical Center showed she had worked as a part-time registered nurse from September 29, 2006 through December 26, 2006. (Tr. 259).
4. Forms Completed by Claimant
In the undated Disability Report - Adult, Claimant reported being unable to lift anything heavier than a carton of milk and stopping work because of her disability. (Tr. 204-12). In the undated Disability Report - Appeal, she reported being unable to work because of her severe back pain and severe depression. (Tr. 216-24). She has to lie down and elevate her left leg periodically. (Tr. 221). Claimant cooks easy meals taking no more than fifteen minutes to prepare. She spends time with her child reading and coloring and doing workbooks. During her bouts with depression, she does not visit friends or relatives. (Tr. 221).
In the Missouri Supplemental Questionnaire completed on October 19, 2009, she included as her activities playing board games, coloring, reading with her son, talking on the phone, visiting with friends, and watching movies/television. (Tr.237-44).
In the case analysis dated February 15, 2008, Ms. Otterson noted that the "[e]vidence in file reveals that hypertension has been diagnosed, and is treated with medications.... There is no evidence of end organ damage due to hypertension." (Tr. 269).
III. Medical Records
On June 15, 2005, Claimant sought treatment in the emergency room at St. Joseph Hospital West for sudden onset of symptoms of lower back pain and injury. (Tr. 416-20). Examination showed paraspinal tenderness. (Tr. 416). The doctor diagnosed her with acute lumbar strain and prescribed Flexeril and Percocet. (Tr. 417). The doctor noted how she is able to ambulate normally. (Tr. 417).
Dr. Stanley Martin treated Claimant on June 28, 2005 at the request of Dr. Hoffman for LLE pain. (Tr. 274). The neurologic examination showed her to be alert and full oriented and normal memory and attention span. Dr. Martin noted her gait to be normal and she is able to walk on heels, toes and in tandem without difficulty. (Tr. 274). The June 16, 2005, MRI showed a left L5-S1 disc herniation with an inferiorly migrated fragment, and mild degenerative changes at L4-5 and at T12-L1. (Tr. 275). Dr. Martin found she has syndrome consistent with a left S1 radiculopathy, and her symptoms are related to the disc abnormality at L5-S1. Dr. Martin recommended doing a left L5-S1 micro discectomy and offered to perform the procedure the next day, but Claimant declined wishing to wait a week until after the closing on her house. Dr. Martin noted how she is willing to accept the risk of permanent weakness or chronic pain due to the delay. (Tr. 275). On July 5, 2005, Dr. Martin performed a left L5-S1 micro-surgical discectomy. (Tr. 272-73). In follow-up treatment on July 13, Dr. Martin found her to be doing satisfactorily, and her symptoms to be consistent with inflammation of the nerve root postoperatively and prescribed Motrin 800 mg. (Tr. 271). She reported marked improvement in her LLE pain on July 28. (Tr. 270). Examination showed good strength in both lower extremities and able to walk on her heels and toes. Dr. Martin released her to part-time work as a prn nurse but limited her lifting to no more than thirty pounds and ordered physical therapy twice a week for two weeks. Dr. Martin noted she did not have to return routinely but only for further problems. (Tr. 270).
On February 1, 2006, Dr. Saaid Khjasteh noted she has a problem with narcotics. (Tr. 390-94).
On February 12, 2006, Claimant presented at the emergency room at Lincoln County Medical Center complaining of lumbar back pain starting after she lifted her thirty-five pound child a couple of days earlier. (Tr. 563-74).
In the February 15, 2006 assessment, Elizabeth Brown, a social worker at Alternative Behavior Center, Claimant reported stress in her marriage, and her spouse lives in the basement. (Tr. 379-80). Listed in the substance abuse history is narcotics, and job related problems as a result of addiction. (Tr. 380). In the assessment, Ms. Brown noted Claimant "is addressing addiction to prescription medication" and experiencing marital stress." (Tr. 383). In the Substance Abuse History, she reported using narcotics frequently. (Tr. 1391). In the Mental Health/Psychiatric Treatment History, Claimant reported she had none. (Tr. 1392). In the assessment, the Ms. Brown noted how she is addressing addiction to prescription medication and experiencing marital stress causing depressed feelings. (Tr. 1394). In the treatment plan, it is noted Claimant has employment problems and license issues due to stealing drugs. (Tr. 14223). In the February 15, 2006 Treatment Plan Review, the following is noted as goals and ...