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Phelps v. Colvin

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

September 30, 2014

DARRYL P. PHELPS, 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 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 his Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

I. Procedural History

Claimant Darryl P. Phelps filed Applications for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 187-90)[1] and for Supplemental Security Income payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et. seq. (Tr. 183-86). Claimant states that his disability began on April 29, 2009, [2] as a result of depression and bipolar. (Tr. 47). On initial consideration, the Social Security Administration denied Claimant's claims for benefits. (Tr. 50-54, 67-71). Claimant requested a hearing before an Administrative Law Judge ("ALJ"). On April 9, 2012, a hearing was held before the ALJ who issued an unfavorable decision on April 25, 2012. (Tr. 7-20, 27-44). The Appeals Council on February 6, 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. 1-5, 360-61). 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 April 9, 2012

1. Claimant's Testimony

At the hearing on April 9, 2012, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 27-44). At the time of the hearing, Claimant was forty-nine years of age. (Tr. 29). Claimant testified that he does not have a current driver's license, because he has two DWIs, and his license was revoked. (Tr. 30). He completed the seventh grade. (Tr. 30). Claimant stands at six feet and weighs 175 pounds. (Tr. 39). He has lived at the Festus Rest Home for four months. (Tr. 42).

Claimant testified that he stopped working as a truck driver about five years earlier after working as a truck driver for sixteen years. (Tr. 31, 33). He stopped working as a truck driver after his license was revoked for receiving two DWIs within five year period. (Tr. 33). Claimant testified that he could not deal with the pressure of being a truck driver. (Tr. 33). He last worked at Ryan's Steakhouse as a dishwasher for a month in 2010, and he quit because he could not physically do the job duties, and he did not get along with the other employees. (Tr. 31-32). Claimant testified that his knee and being around other people would prevent him from working at that job. (Tr. 32).

Claimant stopped drinking four or five years earlier and has had a couple of drinks since then. (Tr. 34). He received treatment at facility while incarcerated, and he has attended AA meetings. (Tr. 34).

Claimant testified that his social anxiety precludes employment because he cannot handle situations. (Tr. 35). The ALJ noted how he was shaking during the hearing. He does not like to be around people or dealing with anything. (Tr. 35).

Claimant received treatment in the form of medications for his mental problems. (Tr. 36). He acknowledged the medications, Xanax and Cymbalta, seem to help him. He sees the doctors once a month. (Tr. 36).

Six months earlier, he was hospitalized at Jefferson Memorial for treatment of his suicidal thoughts. (Tr. 37). He testified how the medications help him quite a bit, and he does not experience any side effects from the medications. After a motorcycle accident, he started having pain in his knee. He also has degenerative joint disease and back pain. (Tr. 37). He has problems sleeping at night, and as a result, he has to rest for a couple of hours during the day. (Tr. 38).

Claimant testified that he could walk for fifteen to twenty minutes and then he would experience knee pain. (Tr. 39). He can stand for ten to fifteen minutes, and then he has to sit or move around. (Tr. 39). He can sit for thirty minutes, and then he becomes uncomfortable. Claimant has problems remembering things like his doctor's appointments. (Tr. 40). His girlfriend and the employees at the rest home where he lives remind him to take his medications and keep his doctor's appointments. (Tr. 41). He testified he has problems concentrating and handling stress or pressure. (Tr. 41).

During the day, Claimant eats meals, goes outside to play cards, and takes naps. (Tr. 42). He leaves the facility four to five times a week to go to his girlfriend's house or to the store. (Tr. 43). He has been out of jail for one year serving time for failure to pay child support. (Tr. 43).

2. Forms Completed by Claimant

In the Disability Report - Adult, Claimant reported he stopped working on April 30, 2008 "[b]ecause of other reasons" and unable to get along with coworkers and the boss. (Tr. 265-). Claimant worked as a waiter/server. (Tr. 179).

In the Work History Report completed on January 4, 2010, he reported losing his truck driving job after losing his license after receiving two DWIs. (Tr. 273-84).

In the Function Report - Adult completed on January 4, 2010, Claimant reported his daily activities include leaving the halfway house "for five hours to walk to look for a job." (Tr. 285). He reported being able to clean and do laundry. (Tr. 287). When going out, he reported walking to be his means of travel. (Tr. 288). He noted he does not like to be around other people, because he gets "into arguments and fights with others." (Tr. 290).

In the Disability Report - Adult, Claimant reported he can hardly walk because of his knee. (Tr. 347-54).

In the Recent Medical Treatment, Claimant noted that he is bipolar so he is unable to be around a lot of people without becoming very anxious. (Tr. 141).

III. Medical Records and Other Records

On January 24, 2008, Claimant sought treatment in the emergency room for mild/moderate lower back pain. (Tr. 497-501, 526-29). He reported injuring his back at work while lifting a keg. (Tr. 497). The x-ray showed no acute fracture and degenerative disc change at L5-S1, and he was diagnosed with acute lumbar strain. (Tr. 500, 502, 529).

Claimant sought treatment in the emergency room for lower back pain on February 16, 2008. (Tr. 493-96, 530-32). He reported injuring his back while attempting to lift large kegs of beer at work, and he received worker's compensation treatment with Dr. Moore, including electrophysiological treatment and prescription medications. (Tr. 493). He experienced initial improvement but when he ran out of medications, the pain intensified over the last three to four days. (Tr. 493). Examination showed mild spasm right paralumbar musculature, and moderate tenderness to palpation of right paralumbar musculature. (Tr. 495). Acute low back pain is the clinical impression. (Tr. 495).

On May 29, 2008, Claimant presented in the emergency room after lacerating his finger. (Tr. 490-92, 533-35).

On July 21, 2008, Claimant presented in the emergency room for treatment of a right knee abscess. (Tr. 486-88, 536-37).

On November 16, 2008, Claimant presented in the emergency room after injuring his shoulder in a fall at work. (Tr. 473-84, 538-49). He related pain to be improved after application of immobilizer. (Tr. 474). The doctor diagnosed him with contusion of right scapula, ligamentous sprain of his right shouler, acute cervical and lumbar strain. (Tr. 477). The x-ray showed an intact right shoulder. (Tr. 461). The CT of his right shoulder showed negative for fracture. (Tr. 465, 482). The x-ray of his CT cervical spine showed degenerative change at C6-7 and otherwise intact cervical spine. (Tr. 463, 481). The x-ray of his lumbar spine showed degenerative disc change at L5-S1 with accompanying mild hypertrophy but otherwise intact lumbar spine. (Tr. 466, 485).

On November 18, 2008, Claimant reported having pain in neck and shoulder after a rail broke on a porch and he fell down nine to twelve feet. (Tr. 445, 457). Dr. Sunil Chand observed his gait to be normal and noted Claimant to be alert oriented with good insight and judgment. (Tr. 458). Dr. Chand prescribed Vicodin as treatment. (Tr. 459). In follow-up treatment on November 11, he reported some pain improvement. (Tr. 452). Dr. Chand noted Claimant to be oriented with good recall of recent and remote events and his affect to be appropriate. (Tr. 453). Examination showed knee jerks to be present. (Tr. 453). He reported shoulder being better but pain no better on December 1, 2008. (Tr. 449). Dr. Chand prescribed Darvocet. (Tr. 451). On December 8, Claimant reported improvement of his neck and back pain. (Tr. 445). Dr. Chand prescribed Darvocet. (Tr. 447). On December 16, he reported much improvement from initial injury. (Tr. 441). On January 8, 2009, Dr. Chand treated Claimant for a contusion on his shoulder, shoulder pain, and muscle pain and found him to have a full range of motion of the cervical and lumbar spine and upper and lower extremities. (Tr. 437-39).

Claimant was admitted to Southeast Missouri Mental Health Care on January 23, 2009 on a 96 hour court order initiated by a physician and discharged on January 29, 2009. (Tr. 373, 505, 653-56). Claimant reported having "a lot of shit going on." (Tr. 657). He has financial stressors due to owing $30, 000 in back child support. (Tr. 660). The nurse noted how he appeared to be of average intellect and his treatment prognosis to be good. (Tr. 660). His chief complaint is "[m]oney problem." The examiner found his reliability to be questionable. He sent some text messages containing threats of suicide to a friend so he was admitted for evaluation. Claimant reported that his text messages were misconstrued, and his main problem is his finances and outstanding child support. He admitted consuming alcohol in order to cope with the stressors he was facing. He denied any suicidal ideation and requested to go home. (Tr. 373, 505). He reported having worked at L&J Residential Care Facility for six months, but he was fired one month earlier. (Tr. 374, 506). The mental status examination showed him to be in good spirits, pleasant, and carrying on and had a normal mood and affect. (Tr. 374, 506). He received treatment for depression, right shoulder problems, nicotine withdrawal, and substance abuse/dependence. (Tr. 375, 507). The urine drug screen returned positive results for amphetamines, marijuana, benzodiazepines, and Oxycodone. It was noted that he was 100% medication compliant and at the time of discharge, his affect was brighter and his depression was lifting. (Tr. 375, 507). Discharge diagnosis included substance induced mood disorder and alcohol abuse. (Tr. 376, 508).

On June 1, 2009, Claimant sought treatment in the emergency room for low back pain and right elbow pain after car transmission falling on him after he removed the transmission from a car. (Tr. 382-84).

On July 23, 2009, Claimant presented in the emergency room for treatment of an abscess. (Tr. 553). He reported the abscess started as a bite while working and progressively worsened. (Tr. 553). He returned the next day for treatment of the insect bite. (Tr. 558). The musculaokeletal examination showed normal joint range of motion and negative ...

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