United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER, Magistrate Judge.
This is an action under 42 U.S.C. § 1383(c)(3) for judicial review of the Commissioner's final decision denying Preston Simpson's application for supplemental security income (SSI) under Title XVI of the Social Security 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 affirmed.
I. Procedural History
Plaintiff Preston Simpson applied for SSI on April 23, 2010, claiming that he became disabled on January 1, 1993, because of depression, chemical imbalance, anxiety, and other mental conditions. (Tr. 221-27, 268.) On July 19, 2010, the Social Security Administration denied plaintiff's claim for benefits. (Tr. 123, 125-28.) At plaintiff's request, a hearing was held before an administrative law judge (ALJ) on April 12, 2012, at which plaintiff and a vocational expert testified. (Tr. 73-122.) A supplemental hearing was held on August 27, 2012, at which plaintiff and a medical expert testified. (Tr. 44-72.) On September 7, 2012, the ALJ issued a decision denying plaintiff's claim for benefits, finding plaintiff able to perform work as it exists in significant numbers in the national economy. (Tr. 25-38.) After the receipt of additional evidence, the ALJ reopened the decision and issued a supplemental decision on September 27, 2012, again finding plaintiff able to perform other work as it exists in significant numbers in the national economy. (Tr. 9-19.) On September 18, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-3.) The ALJ's determination of September 27, 2012, thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff raises numerous claims that the final decision is not supported by substantial evidence on the record as a whole. Specifically, plaintiff claims that with his multiple diagnosed mental impairments and the effects thereof, he meets a listing for a disabling mental disorder under § 12.00 of the Listings of Impairments and that the ALJ erred in finding otherwise. Plaintiff also claims that the ALJ failed to consider his learning disorder and low Global Assessment of Functioning (GAF) scores and, further, that the ALJ erred by relying on inaccurate evidence of drug use in determining his subjective complaints not to be credible. Plaintiff also contends that the ALJ erred by failing to consider a closed period of disability. Plaintiff further argues that the ALJ failed to account for his limited ability to work with others when determining his mental residual functional capacity (RFC). Finally, plaintiff contends that the ALJ erred when he failed to pose a hypothetical question to a vocational expert at the supplemental hearing. Plaintiff requests that the matter be reversed and remanded to the Commissioner for an award of benefits.
II. Testimonial Evidence Before the ALJ
A. Hearing Held on April 12, 2012
1. Plaintiff's Testimony
At the hearing on April 12, 2012, plaintiff testified in response to questions posed by the ALJ. Plaintiff was unrepresented at the hearing.
At the time of the hearing, plaintiff was thirty-one years of age. (Tr. 88.) Plaintiff has an eighth grade education and never received his GED. (Tr. 90.) Plaintiff is married and has three children, ages nine years, seven years, and five months. (Tr. 88-89.) Plaintiff lives alone in a trailer. Plaintiff receives food stamps and Medicaid assistance. (Tr. 89-90.)
In April 2010, plaintiff was released from prison after having served twelve years for the offenses of Statutory Rape, Stealing, and Child Molestation. (Tr. 91-92, 94.) Plaintiff occasionally works odd jobs, such as mowing lawns or discarding appliances, but he has had no steady employment since his release. Plaintiff testified that he worked in 2010 for Rose Concrete forming concrete molds but was fired from this job because his mood was unstable. (Tr. 91-92.) Plaintiff testified that he has applied for other jobs but has not been hired because of his status as a convicted sex offender. (Tr. 92-93.)
Plaintiff testified that he began having emotional disturbances in January 1993 when he was twelve years of age that led to criminal activity. Plaintiff testified that his emotional problems consisted of moods, depression, and anxiety and that such problems stemmed from physical, sexual, and emotional abuse he experienced as a child. (Tr. 95-96.)
Plaintiff testified that he has suffered from depression since childhood and currently experiences crying spells on occasion. Plaintiff testified that he also has anxiety but controls it by trying to keep it to himself. (Tr. 108.) Plaintiff testified to five suicide attempts and to previously being assigned to a hospital mental unit because of an attempt. (Tr. 109.) Plaintiff testified that he took medication and was counseled regularly while in prison and was referred to outside counseling upon his release. (Tr. 113.) Plaintiff testified that he has been prescribed Citalopram as an anti-depressant but has been out of this medication since January. (Tr. 103.) Plaintiff also testified that he has been prescribed Busiprone, Doxepin, Ativan, and Klonopin. (Tr. 104-05.) Plaintiff testified that taking medication "definitely" helped with his anxiety. (Tr. 109.)
Plaintiff testified that he rarely drinks and has never had a drinking problem. Plaintiff testified that he smoked marijuana and used drugs before he went to prison but currently does not use any illicit substances. (Tr. 102.)
As to his current daily activities, plaintiff testified that he has no routine regarding what time he gets up any given day. (Tr. 96.) Plaintiff testified that he generally sits around during the day, talks on the telephone with his wife or mother, and may go out looking for work if he has access to a vehicle. (Tr. 97.) Plaintiff cooks his own meals, washes his own dishes, and generally performs his own household chores. Plaintiff's mother does his laundry because he does not have a washer or dryer. Plaintiff goes to the grocery store with his mother. (Tr. 99-100.) Plaintiff testified that he may take a walk with his dog during the evening. He tries to see his son on the weekends. Plaintiff testified that he has no friends and does not like to be around people other than his family or people he has grown up with. (Tr. 98, 114-15.) Plaintiff attends church when he can but is limited because he does not have a vehicle. (Tr. 98-99.) Plaintiff testified that he no longer volunteers at an animal shelter because of transportation difficulties. (Tr. 114.) Plaintiff reads his mail and sometimes reads magazines and the Bible. (Tr. 99.) Plaintiff testified that his hobbies include fishing and building jewelry boxes and other things out of playing cards. (Tr. 101.)
2. Testimony of Vocational Expert
Susan Shea, a vocational expert, testified at the hearing in response to questions posed by the ALJ and plaintiff.
Ms. Shea testified that plaintiff had no past relevant work. (Tr. 117.)
The ALJ asked Ms. Shea to assume an individual thirty-one years of age with a limited education, no past work experience, and no exertional limitations. The ALJ asked Ms. Shea to further assume the person to be limited to simple, repetitive tasks and instructions and to be further limited to only occasional interaction with supervisors, co-workers, and the public. Ms. Shea testified that such a person could perform medium, unskilled work as a manufacturing helper, of which 11, 000 such jobs exist in the State of Missouri; laundry worker, of which 5, 300 such jobs exist in the State of Missouri; and machine feeder, of which 11, 000 such jobs exist in the State of Missouri. (Tr. 117-18.)
In response to Ms. Shea's testimony, plaintiff engaged in a colloquy whereby he averred that these jobs are not available to him as demonstrated by his failed attempts to secure employment in these or similar jobs. Plaintiff further averred that his psychological state, as well as having to report his status as a registered sex offender, prevent him from securing employment. (Tr. 120-21.)
B. Hearing Held August 27, 2012
1. Plaintiff's Testimony
Plaintiff was represented by counsel at the hearing on August 27, 2012, and testified in response to questions posed by the ALJ and counsel.
Plaintiff currently lives in a small house next door to his mother. Plaintiff receives food stamps. (Tr. 51.)
Plaintiff testified that he was fired from Rose Concrete after working only three days. Plaintiff testified that his anxiety and post-traumatic stress disorder caused him to be unable to concentrate on the job. Plaintiff testified that he could not function at the time because he had no medication or insurance when he was released from prison. (Tr. 49.)
Plaintiff testified that he has periods whereby he feels confident and feels he can accomplish anything. During such periods, plaintiff cannot sleep, has racing thoughts, and abundant energy. Plaintiff testified that he starts many projects but never finishes them because he has difficulty completing tasks. Plaintiff testified that he also experiences periods of depression whereby he does not have the energy to get out of bed and he loses interest in everything in life. Plaintiff testified that such periods have lasted up to four or five days and that his mother cares for him during these times. (Tr. 54-55.)
Plaintiff testified that he went to the hospital a few months prior because of suicidal thoughts and was given medication. (Tr. 55.) Plaintiff testified that he continues to have suicidal thoughts because he feels he is a lost cause and is misunderstood by the world. (Tr. 62, 64.) Plaintiff testified that he currently undergoes counseling and takes Celexa, Doxepin, Ativan, and Buspar, which help his condition. (Tr. 56-57, 66.) Plaintiff testified that he experiences side effects from Doxepin in that it "put[s him] out" for about fourteen hours, as though he is in a drug-induced coma, and he remains groggy when he awakens. (Tr. 64.)
Plaintiff testified that he is anxious and experiences racing thoughts in public because he feels as though everyone is watching him and he feels the need to escape the environment. Plaintiff testified that he also experiences flashbacks of traumatic events in his life. (Tr. 65-66.)
Plaintiff testified that he experienced chest pain while in prison, which his doctor attributed to anxiety. Plaintiff testified that he continues to experience such symptoms and that they could occur at any given time. (Tr. 57-58.) Plaintiff testified that the prison environment exacerbated his anxiety and depression, and he was placed in protective custody because he could not function. Plaintiff also testified to being raped in prison. (Tr. 58-59.)
Plaintiff testified that he has not smoked marijuana in months. (Tr. 61.)
As to his daily activities, plaintiff testified that he gets up, lets his dog out, prepares a cup of coffee, sweeps if necessary, and then just sits in the house. Plaintiff testified that he calls and speaks to his nine-month-old son on the telephone. (Tr. 51-52.) Plaintiff testified that he goes to the grocery store once a month but goes at night. Plaintiff testified that he drives and currently has access to a vehicle. (Tr. 53.) Plaintiff testified that he has no friends and does not trust most people. (Tr. 60-61.)
2. Testimony of Medical Expert
Dr. Kathleeen O'Brien, a licensed clinical psychologist, testified as a medical expert at the hearing in response to questions posed by the ALJ.
Dr. O'Brien testified that the medical record showed that plaintiff had a mood disorder, which is associated with Listing 12.04, and that this disorder had been referred to throughout the record as an adjustment disorder, depressant disorder, or bipolar disorder. Dr. O'Brien testified that a diagnosis of bipolar disorder was not substantiated on recent psychological testing, and that plaintiff's medications were consistent with treatment for depressive disorder or adjustment disorder. (Tr. 68-69.)
Dr. O'Brien testified that the record showed plaintiff to also have an anxiety disorder, which is associated with Listing 12.06, and that this disorder had been referred to in the record as a generalized anxiety disorder or post-traumatic stress disorder (PTSD). (Tr. 69.)
Dr. O'Brien testified that the most recent psychological evaluation assigned a diagnosis of anti-social personality disorder. Dr. O'Brien noted that this diagnosis had not been rendered previously and was most likely related to plaintiff's incarceration and childhood history of oppositional defiant disorder. Dr. O'Brien testified that such a childhood diagnosis is not applicable to the present circumstances. (Tr. 69.)
Dr. O'Brien also testified that there was evidence in the record of a learning disorder with special education, as well as a non-medical report of attention deficit hyperactivity disorder (ADHD). (Tr. 69.)
Dr. O'Brien testified that the relevant listings associated with plaintiff's mental impairments were Listings 12.04, 12.06, and 12.08. (Tr. 69.)
Dr. O'Brien testified to her opinion that plaintiff's activities of daily living were mildly impaired; that his social functioning was moderately impaired; and that his concentration, persistence, and/or pace were mildly impaired. Dr. O'Brien testified that there was no evidence of true episodes of decompensation in the record. Dr. O'Brien testified to her opinion that plaintiff's mental impairments would cause some restrictions, but none at listing level severity. To support this opinion, Dr. O'Brien testified that the record showed that plaintiff's impairments were fairly managed on an outpatient basis and that, to the extent he required emergency room treatment in July and August 2011, his condition was not considered to be severe enough to require admittance for a long stay. Dr. O'Brien also cited to evidence of plaintiff's refusal to take medication and attend counseling sessions while incarcerated. (Tr. 70-71.)
3. Vocational Expert
Margaret H. Ford, a vocational expert, was also present at the hearing on August 27, 2012. The ALJ determined not to elicit testimony from Ms. Ford, indicating that the vocational expert's testimony from the previous hearing continued to be applicable. (Tr. 71.)
When the ALJ asked counsel if there was anything further, counsel responded, "No, sir. I don't think so." The ...