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Plass v. Colvin

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

September 30, 2014

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) for judicial review of defendant's final decision denying the application of Priscilla Plass for Disability Insurance Benefits under Title II of the Social Security Act and Supplemental Security Income under Title XVI of the Act. This case has been assigned to the undersigned United States Magistrate Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See 28 U.S.C. § 636(c). Plaintiff filed a Brief in support of the Complaint. [Doc. 15] Defendant filed a Brief in Support of the Answer. [Doc. 22]

Procedural History

On June 5, 2012, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income, claiming that she became unable to work due to her disabling condition on August 5, 2011. (Tr. 158-165.) These claims were denied initially. (Tr. 92-96) Following an administrative hearing, Plaintiff's claims were denied in a written opinion by an Administrative Law Judge (ALJ), dated February 22, 2013. (Tr. 11-22.) The Plaintiff then filed a request for review of the ALJ's decision with the Appeals Council of the Social Security Administration (SSA), which was denied on March 29, 2013. (Tr. 5, 1-4.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

Evidence Before the ALJ

A. ALJ Hearing

Plaintiff's administrative hearing was held on February 4, 2013. (Tr. 29.) Plaintiff was present and represented by counsel. Id . Also present was vocational expert James Israel. Id.

Plaintiff's attorney made an opening statement, in which he argued that Plaintiff suffers from bipolar effective disorder, personality disorder, and anxiety, which prevent her from sustaining the mental demands of work on an ongoing basis. (Tr. 32.)

The ALJ questioned Plaintiff, who testified that she was thirty years of age. Id . Plaintiff stated that she was single and did not have any children. (Tr. 33.)

Plaintiff testified that she had recently received an eviction notice due to failure to pay rent, but that her landlord agreed to allow her additional time to move after learning her administrative hearing had been moved up. Id.

Plaintiff has a valid driver's license, but she does not drive unless she has to because she experiences anxiety and difficulty focusing when driving; she drives once or twice a week. (Tr. 34.) Plaintiff testified that she drove herself to the hearing and it was "a little rough." (Tr. 35.)

Plaintiff stated that she graduated from high school and obtained a cosmetology license. Id.

Plaintiff testified that, since August of 2011, she worked at Steak and Shake for about three days; Jack in the Box for four to five weeks; and Hardy's for about one month. (Tr. 36.) Plaintiff explained that she had to keep a normal schedule at these positions, because too much fluctuation affected her sleep and her medication schedule. Id.

Plaintiff testified that she had been receiving Missouri Medicaid benefits for three to four years. (Tr. 37.)

Plaintiff stated that she worked as a stylist at a Great Clips on a couple occasions. Id . Plaintiff testified that the positions ended due to her mental impairments. Id . Plaintiff stated that her psychiatrist requested that her employer allow her to keep a more regular schedule, but her employer did not honor that request. Id . Plaintiff stated that she also had difficulty dealing with the public. Id . Plaintiff testified that her manager eventually told her that she should pursue other work not requiring interaction with the public. (Tr. 38.)

Plaintiff stated that she worked nights as a cook at Steak and Shake. Id . Plaintiff testified that she thought the night shift would be easier due to less people being around, but it ended up being more difficult for her. Id.

Plaintiff stated that she worked as a server at O'Charley's. (Tr. 39.) Plaintiff testified that she had to take leaves of absences from this position due to medical problems and an inability to work while taking certain medications. Id . When she returned from medical leave, Plaintiff was terminated; her supervisor told her she was too unstable to work. (Tr. 40.)

Plaintiff testified that she would be unable to perform any of her past work at the time of the hearing due to her anxiety, mood changes, and inability to interact with people. Id . Plaintiff stated that she had to take frequent breaks at her past positions to maintain her composure, and she occasionally had to leave the job site. Id.

Plaintiff's attorney next questioned Plaintiff, who testified that she experiences episodes of anxiety or panic attacks approximately four times a day for periods ranging from twenty minutes to three to four hours. (Tr. 41.) Plaintiff stated that she has to lie down and rest after experiencing an episode. Id.

Plaintiff testified that she does not bathe daily. (Tr. 42.) According to Plaintiff, she sometimes bathes only once a week, because it is a "hard task" to get in the shower. Id.

Plaintiff testified that she has crying spells up to four times a day, which last between thirty minutes and a "couple hours." Id.

Plaintiff stated that she is frequently distracted due to her anxiety; she constantly checks things, such as checking the creases in towels and checking to make sure she flushes the toilet. (Tr. 43.)

Plaintiff testified that she went to St. Anthony's in August of 2012, because she experienced a severe anxiety attack. Id . Plaintiff stated that the Klonopin[1] she takes occasionally works, and sometimes it is ineffective. Id . Plaintiff testified that she went to the hospital, because she was experiencing a panic attack along with the "rushing thoughts" of a "high mood." Id . Plaintiff described her "rushing thoughts" as making her unable to sit down or get a "clear head, " because she is thinking too much. (Tr. 44.) She indicated they occur approximately twice a week and can last for hours unless she goes to the hospital. Id.

Plaintiff stated that she would like to undergo trans-cranial magnetic stimulation ("TMS"), [2] which is a new procedure similar to electroconvulsive therapy ("ECT"), [3] but less invasive and involving no permanent side effects. Id . Plaintiff testified that Medicaid will not pay for TMS, but she is in the process of appealing this decision. (Tr. 45.) Plaintiff stated that Medicaid would pay for ECT even though it is much more expensive than TMS therapy. Id . Plaintiff testified that her psychiatrist, Dr. Steve Stromsdorfer, recommended TMS in October of 2012 because she had tried many medications and they had been ineffective. Id.

The ALJ next examined the Vocational Expert (VE), who testified that Plaintiff's past fast food work is classified as unskilled and light, although Plaintiff's testimony suggests she did some medium lifting at the positions. (Tr. 46.) Mr. Israel stated that Plaintiff's work as a server is classified as semi-skilled and light; and her work as a cosmetologist is classified as skilled and light. (Tr. 47.)

The ALJ asked the VE to assume a hypothetical claimant with Plaintiff's background and the following limitations: occupations that involve only simple, routine, and repetitive tasks in a low-stress job; only occasional decision-making required and occasional changes in the work setting; occasional judgment required on the job; no interaction with the public; only casual and infrequent interaction with co-workers; and contact with supervisory staff concerning work duties occurring no more than four times per workday when work duties are being performed up to expectations. (Tr. 48.) The VE testified that the claimant would be unable to perform any of Plaintiff's past work. Id . The VE stated that the individual would be capable of performing other jobs, such as assembler (3, 100 positions in Missouri); bulk packer (1, 700 positions in Missouri); and product inspector (1, 150 positions in Missouri). (Tr. 49.)

The ALJ next asked the VE to assume a hypothetical individual who needed contact with supervisory staff to be limited to no more than three times per workday. (Tr. 50.) The VE testified that this restriction would not affect the individual's ability to perform the jobs he listed. Id.

The ALJ asked the VE to assume a hypothetical individual who was limited to occupations where production quotas are based on end of the workday measurements only. Id . The VE testified that, of the positions he named, approximately 75 percent base production quotas on end of workday measurements. Id.

The VE testified that employers customarily tolerate no more than one unexcused absence per month. (Tr. 52.)

Plaintiff's attorney examined the VE, who testified that an individual who missed twenty percent of the workday due to unscheduled breaks, panic attacks, or crying spells, would not be capable of retaining a job. (Tr. 52-53.)

B. Relevant Medical Records

Plaintiff presented to therapist Peggy DeGroot, MA, LPC, at Comtrea, for an Initial Assessment on September 21, 2010. (Tr. 343-345.) Plaintiff reported that she had been diagnosed with bipolar disorder and anxiety, and had received treatment at Comtrea in the past. (Tr. 343.) Plaintiff was not comfortable with her current psychiatrist, and wished to resume treatment at Comtrea. Id . Plaintiff complained of mood swings and anxiety. Id . Upon examination, Plaintiff's mood was depressed and anxious; and her affect was sad and depressed. Id . Ms. DeGroot diagnosed Plaintiff with bipolar disorder, and generalized anxiety disorder; and assessed a GAF score[4] of 54.[5] (Tr. 345.) Ms. DeGroot referred Plaintiff to a psychiatrist. Id.

Plaintiff presented to psychiatrist Steve C. Stromsdorfer, M.D., on October 14, 2010, to resume psychiatric care. (Tr. 308.) Plaintiff had been receiving psychiatric care for ten years, but had to change psychiatrists when she started receiving Medicaid benefits. Id . Plaintiff reported mood swings with emphasis on prominent irritability, erratic sleep, variable energy, racing thoughts, and much conflict with relatives. Id . Plaintiff was taking Paxil, [6] Trileptal, [7] and Klonopin. Id . Plaintiff reported a history of depression and mood swings since the age of eighteen, and use of multiple psychotropic medications. Id . Plaintiff was working at Great Clips and reported no particular difficulty with doing her job, although she had lost jobs in the past due to her mood lability. (Tr. 309.) Upon mental status examination, Plaintiff's flow of thought was logical; her mood was depressed, rated as a four to five on a scale of one to ten; her anxiety level was rated as a nine; her affect was described as mildly depressed and slightly anxious without lability; and her concentration and memory were fair. Id . Dr. Stromsdorfer diagnosed Plaintiff with bipolar I disorder, [8] most recently depressed phase; with a current GAF score of 60. (Tr. 308.) Dr. Stromsdorfer decreased Plaintiff's dosage of Paxil as it was not effective, and started her on Zoloft.[9] (Tr. 309.)

Plaintiff saw Dr. Stromsdorfer approximately monthly, at which time he adjusted Plaintiff's medications. On December 16, 2010, Plaintiff's anxiety was "very high." (Tr. 306.) Dr. Stromsdorfer assessed a GAF score of 55, and adjusted Plaintiff's medications. Id . Plaintiff's mood continued ...

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