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Penn v. Colvin

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

September 29, 2014

ANTHONY W. PENN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ABBIE CRITES-LEONI, Magistrate Judge.

This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision denying Anthony W. Penn's applications for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed.

I. Procedural History

Plaintiff Anthony W. Penn applied for SSI in March and May 2011, claiming that he became disabled on June 1, 2009. (Tr. 154-58, 164-70.) In his application for DIB, filed in March 2011, plaintiff claimed he became disabled on July 1, 2009. (Tr. 159-63.) Plaintiff subsequently amended his alleged onset date to February 16, 2010. (Tr. 184.) Plaintiff claimed that he was disabled and limited in his ability to work, because of back injury/arthritis, degenerative disc disease, chronic obstructive pulmonary disease, depression, methicillin-resistant staphylococcus aureus (MRSA) staph infection, headaches, chronic bronchitis, memory loss, compression fracture at L3, bulging discs, right sided sciatica, hepatitis C, and abdominal pain. (Tr. 194.) On May 11, 2011, the Social Security Administration denied plaintiff's claims for benefits. (Tr. 81-84, 87-93.) Upon plaintiff's request, a hearing was held before an Administrative Law Judge (ALJ) on April 4, 2012, at which plaintiff and a vocational expert testified. (Tr. 27-67.) On May 8, 2012, the ALJ issued a decision denying plaintiff's claims for benefits, finding plaintiff able to perform his past relevant work as a janitor and assembler. (Tr. 6-22.) On January 29, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-4.) The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

In the instant action for judicial review, plaintiff claims that the ALJ's decision is not supported by substantial evidence on the record as a whole, arguing that the ALJ erred by according little weight to the opinion of his treating physician, Dr. Cramp. Plaintiff requests that the matter be reversed and remanded to the Commissioner for an award of benefits, or for further proceedings.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the administrative hearing on April 4, 2012, plaintiff testified in response to questions posed by the ALJ and counsel.

At the time of the hearing, plaintiff was thirty-eight years of age. Plaintiff completed the ninth grade and did not receive his GED. Plaintiff stands five feet, ten inches tall and weighs 240 pounds. (Tr. 35-36.) Plaintiff lives in a mobile home with his girlfriend and his eighteen-year-old son. Plaintiff also has a fourteen-year-old daughter who lives nearby with an aunt and uncle. (Tr. 33-34.) Plaintiff received unemployment benefits from early 2009 to April 2010. (Tr. 37.)

Plaintiff's Work History Report shows that plaintiff worked as a shoe builder from 1988 to 1989 and as a builder in a pallet factory from 1989 to 1990. From 1995 to 1997, plaintiff worked as a laborer at a tree farm. From 1998 to 2000, plaintiff worked intermittently as a mechanic at an automotive repair shop. From 1999 to 2000, plaintiff worked as an assembler at a factory. From January to June 2006, plaintiff worked as a janitor at a nursing home. From 2006 to June 2009, plaintiff worked as a supervisor in custom cabinet making. (Tr. 206.) Plaintiff testified that he was "let go" from this last job, because he was missing work on account of his back condition and the treatment he was receiving for hepatitis C. Plaintiff testified that his boss decided to let him go so he could receive unemployment compensation. Plaintiff testified that he never tried to return to this work nor has he looked for work since February 2010. (Tr. 36-38.)

Plaintiff testified that he is unable to work, because of pain in his low back that radiates to his legs. Plaintiff testified that he broke his back in 2002, but was not bothered by it until 2007. (Tr. 38-39.) Plaintiff testified that he took medication in order to go to work, but eventually experienced too much pain, took too much medication, and could no longer work. Plaintiff testified that he no longer lifts things or mows the yard, because of the pain and that the pain worsens with moving the wrong way, sleeping in the wrong position, and reaching down. Plaintiff testified that, for two or three years, he has experienced pain every day at a level nine on a scale of one to ten. Plaintiff testified that the pain improves when he lies down and lowers to a level seven with medication. (Tr. 39-41.) Epidural steroid injections provide temporary relief. Plaintiff testified that his doctor told him in 2010 that he was disabled and should not engage in any lifting. (Tr. 42-43.)

Plaintiff testified that he also experiences intermittent abdominal pain every day, which is at a level six with pain medication. Plaintiff testified that testing showed him to have ulcers and a hiatal hernia. (Tr. 38, 44-45.)

Plaintiff testified that he is depressed, because he can no longer do the things he used to do. Plaintiff testified that he has crying spells twice a month, as well as difficulty with concentration. Plaintiff testified that he sometimes wants to "give up, " but will not because of his children. (Tr. 57-58.)

Plaintiff testified that he takes medication for pain, depression, inflammation, muscle spasms, and liver function; he also takes ibuprofen for headaches. Plaintiff testified that he experiences constipation, nervousness, and an inability to concentrate as side effects from his medication but that he does not pay attention to them. (Tr. 42-43, 56-57.)

Plaintiff testified that treatment for hepatitis C affected his mind and his memory, and he feels that he has not recovered from it. Plaintiff testified that the virus is no longer detected in blood tests, but he continues to experience pain in the liver area. (Tr. 45-46.)

Plaintiff testified that he also has chronic bronchitis for which he takes antibiotics and a heart condition for which he wore a holter monitor for diagnosis. Plaintiff testified that his doctor suggested that he take heart medication, but he determined to wait until the condition worsens. (Tr. 46-47.)

As to his exertional abilities, plaintiff testified that he can sit for thirty minutes at one time and for a total of up to two-and-a-half hours in an eight-hour day. Plaintiff testified that he can stand for forty-five minutes to an hour at one time and for a total of up to two hours in an eight-hour day. Plaintiff testified that he can walk up to three blocks and comfortably lift five pounds. Plaintiff testified that he sometimes drops things, because of occasional numbness in his hands. (Tr. 52-53.)

As to his daily activities, plaintiff testified that he gets up in the morning at 9:00 a.m. and prepares some instant coffee. Plaintiff testified that he then sits in a soft chair for two to three hours. Plaintiff testified that it takes him that long to wake up, because he has no motivation or energy. Plaintiff cooks meals once or twice a week and performs housework at his own pace, such as cleaning the counter and washing dishes, taking breaks while doing so. Plaintiff does laundry once a week without difficulty. Plaintiff testified that he can button and zip his pants, but his balance problems make it difficult to put them on. Plaintiff also has difficulty bathing due to problems with balance and bending over. (Tr. 47-48, 52.) Plaintiff testified that he does not shop because of lack of money, but he accompanies his girlfriend to the grocery store. Plaintiff testified that he sometimes sits in the car while his girlfriend shops, because he has difficulty walking around and pushing carts. (Tr. 49.) Plaintiff testified that he likes to fish, but had not gone fishing this year because of leg pain. Plaintiff watches movies and football, but must change positions between standing and sitting while doing so. Plaintiff testified that his family lives nearby and that he visits with them four days a week. Plaintiff does not attend church or belong to any social groups. (Tr. 50-51.)

Plaintiff testified to a history of illicit drug use and related behavior, but further testified that he underwent treatment in January 2010 and last used such substances in February 2010. (Tr. 56.)

B. Testimony of Vocational Expert

Jeffrey McGrosky, a vocational expert (VE), testified at the hearing in response to questions posed by the ALJ and counsel.

The VE classified plaintiff's past work as an assembler as light-to-medium and unskilled; as a janitor as light and unskilled; as a tree farm laborer as mediumto-heavy and unskilled; as a mechanic as heavy and semi-skilled; and as a supervisor at a cabinet shop as medium-to-heavy and skilled. (Tr. 62-63.)

The ALJ asked the VE to assume an individual of plaintiff's age, education, and work experience who was able to perform a full range of work at the light exertional level except that he was limited to occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolding; frequently balancing; and occasionally stooping, kneeling, crouching, and crawling. The ALJ further instructed that the person needed to avoid concentrated exposure to vibration and hazards, such as moving machinery and unprotected heights; and was limited to understanding, remembering, and carrying out simple instructions. The VE testified that such a person could perform plaintiff's past relevant work as a janitor and as an assembler. (Tr. 63.)

The ALJ then asked the VE to assume the same individual but that he was limited to sedentary work and to only occasional balancing instead of frequent. The VE testified that such a person could not perform any of plaintiff's past relevant work. The VE testified that such a person could perform other work such as table worker, of which 500 such jobs exist in the State of Missouri and 20, 000 nationally; surveillance system monitor, of which 300 such jobs exist in the State of Missouri and 10, 000 nationally; and order clerk, of which 1, 000 such jobs exist in the State of Missouri and 50, 000 nationally. (Tr. 63-64.)

The ALJ then asked the VE to assume that the individual from the second hypothetical needed a sit-stand option to change positions every thirty minutes. The VE testified that such a person could continue to perform sedentary work as previously testified, but would be unable to perform any full time work if he continually needed to lie down for two hours during the workday. (Tr. 64-65.)

In response to counsel's question, the VE testified that an individual would be terminated from employment if he repeatedly missed at least three days of work each month. (Tr. 65.)

III. Medical Evidence Before the ALJ

Plaintiff visited Dr. Glenn L. Gordon on July 11, 2008, who noted plaintiff's history of gastro esophageal reflux disease, posterior wall ulcers, erosive gastritis, reactive duodenitis, and hepatitis C virus (HCV) with stage I fibrosis. Dr. Gordon also reviewed a psychiatric evaluation that was unremarkable with no recommended treatment noted. A plan was put in place for treatment of plaintiff's HCV with Ribavirin and PEG Intron, which plaintiff began on July 19. (Tr. 281, 318-20.)

Blood tests dated July 27, August 10 and 28, 2008, yielded positive results for the presence of HCV. (Tr. 305, 308.) On August 28, Dr. Gordon gave plaintiff samples of Lexapro for mood swings, irritability, and anxiety, which were noted to be side effects of HCV treatment. It was also noted that plaintiff's current medications included Darvocet.[1] (Tr. 280-81, 317.)

Plaintiff visited Dr. Jeffrey Cramp at Montgomery City Medical Clinic (MCMC) on September 8, 2008, with complaints regarding a possible spider bite. Plaintiff also complained of depression and increased back and abdominal pain. Plaintiff requested an analgesic. Plaintiff was prescribed medication for the spider bite as well as OxyIR[2] for pain. Citalopram[3] was also prescribed. Plaintiff was instructed to discontinue Lexapro. (Tr. 522.)

On October 16, 2008, plaintiff returned to Dr. Cramp and complained of increased low back pain. Plaintiff reported taking two or three Percocet at work and that he is tolerating the pain. Plaintiff requested that he be permitted to continue with Percocet until the completion of his HCV treatment. Plaintiff appeared to be in pain and moved about slowly. Tenderness to palpation was noted about the lumbosacral region, and limited range of motion was noted about the lumbosacral spine in all planes. Straight leg raising was negative. No muscle spasms were noted. Plaintiff was diagnosed with chronic low back pain and HCV under treatment. Plaintiff was prescribed Percocet. An MRI of the lumbar spine was discussed, however, plaintiff indicated that he wanted to wait. (Tr. 520.)

Plaintiff visited Dr. Gordon on November 24, 2008, who noted plaintiff's current medications to be Darvocet, Nexium, Peg Intron Redipen, milk thistle, Percocet, and an antidepressant prescribed by Dr. Cramp. It was noted that plaintiff failed to appear for a scheduled appointment on September 29, but reported in the interim that his irritability had improved. Plaintiff currently reported that his depression was stable and that he was having no problems. Plaintiff reported having chest or abdominal pain on the left side at a level five on a scale of one to ten, but that such pain appeared to be related to diet. Dr. Gordon noted plaintiff to be doing well overall and instructed him to return for follow up in three months. (Tr. 277-79.)

Plaintiff visited MCMC on December 1, 2008, for a refill of Percocet and for examination of a possible spider bite. Plaintiff was diagnosed with cellulitis, and it was questioned whether MRSA was present. Antibiotic ointment was prescribed. It was noted that Dr. Cramp was treating plaintiff's chronic pain condition. (Tr. 519.) Plaintiff's prescription for Percocet was refilled on December 9. Plaintiff was also restarted on Lexapro for depression with instruction to discontinue Citalopram. (Tr. 518.)

Plaintiff returned to Dr. Cramp at MCMC on December 23, 2008, who noted plaintiff to no longer be under treatment for HCV. Plaintiff reported being depressed and having insomnia. Plaintiff had been laid off from work. Dr. Cramp prescribed Paxil[4] and Percocet as well as medication for sleep. Dr. Cramp advised plaintiff that he could ...

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