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Tomlin v. Colvin

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

January 5, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff Michael P. Tomlin brings this action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying his application for disability insurance benefits (DIB) filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401, 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). Because the Commissioner's final decision is supported by substantial evidence on the record as a whole, it is affirmed.

I. Procedural History

On March 23, 2011, the Social Security Administration denied plaintiff's March 7, 2011, application for DIB in which he claimed he became disabled on April 15, 2010, because of chronic chostri, IgA nephropathy, reactive airway disease, memory loss, joint pain, medications, back pain, and fatigue. (Tr. 54, 59-62, 111-12, 131.) Plaintiff subsequently amended his alleged onset date to September 17, 2010. (Tr. 127.) Upon reconsideration, the SSA continued to deny plaintiff's claim. (Tr. 56.) At plaintiff's request, a hearing was held before an administrative law judge (ALJ) on August 13, 2012, at which plaintiff and a vocational expert testified. (Tr. 32-52.) On August 28, 2012, the ALJ denied plaintiff's claim for benefits, finding plaintiff able to perform other work as it exists in significant numbers in the national economy. (Tr. 11-28.) On September 27, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-6.) 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 in determining his residual functional capacity (RFC) by improperly evaluating the treatment records and by failing to include additional limitations in the RFC assessment. Plaintiff also contends that the ALJ erred in finding his subjective complaints not to be credible and by failing to accord sufficient weight to the opinion of his treating physician. Plaintiff also claims that the hypothetical question posed by the ALJ to the vocational expert did not include all of his limitations, including limitations as found by the ALJ in her written decision, and thus that the ALJ erred in relying on the expert's response to find plaintiff not disabled. Plaintiff requests that the final decision be reversed and that the matter be remanded for an award of benefits or for further consideration. For the reasons that follow, the ALJ did not err in her determination.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the hearing on August 13, 2012, plaintiff testified in response to questions posed by the ALJ and counsel. At the time of the hearing, plaintiff was forty years of age.

Plaintiff stands six feet, six inches tall and weighs 320 pounds. (Tr. 41-42.) Plaintiff lives in a condominium with his mother. (Tr. 35, 47.) Plaintiff has an associate's degree and also received training as a truck driver. (Tr. 35.) Plaintiff served in the military from 1990 to 1993. (Tr. 142.)

Plaintiff's Work History Report shows that plaintiff worked as an over-theroad truck driver from February 2003 to December 2005. From December 2005 to May 2009, plaintiff worked as driver for a repossession company. From November 2009 to February 2010, plaintiff worked as a pizza maker for Imo's Pizza. From February to May 2010, plaintiff worked as a cabaret manager. In May 2010, plaintiff worked again doing car repossession. (Tr. 142.) Plaintiff testified that he also previously performed work as an architectural draftsman, architectural engineer, telephone collection agent, and telephone salesperson. (Tr. 37-38.)

Plaintiff testified that he has degenerative disease in the spine at L4 and L5, which limits his ability to stand or sit for too long. Plaintiff testified that his back condition stopped him from continuing his job as a repossession officer because he could no longer crawl under vehicles to hook them up. Plaintiff testified that his inability to return to work is what prompted him to move back to St. Louis and receive care at the Veterans Administration (VA) hospital. (Tr. 41, 44.)

Plaintiff testified that he also has IgA nephropathy, known as Berger's disease. (Tr. 41.) Plaintiff testified that his kidneys currently function at forty-two percent and that he must start dialysis if the functioning decreases to thirty percent. Plaintiff testified that the disease makes it difficult to keep enough fluid in his system, making him susceptible to dehydration. Plaintiff testified that he was recently hospitalized for dehydration. Plaintiff must drink an "enormous amount" of fluids to keep up with his kidney function. Plaintiff testified that his kidney ailment puts additional strain on his lower back. Plaintiff testified that the kidney disease also causes extreme fatigue, and he must continually lie down for one to two hours after being up for one hour. Plaintiff cannot keep up with the fatigue, and he naps five or six times a day. (Tr. 42-43, 45.)

Plaintiff testified that he sees his doctors at least four times a month and takes medication for his conditions. Plaintiff testified that he experiences side effects from his medication, including drowsiness, night sweats, and nightmares. Plaintiff testified that the fatigue brought on by his medication adds to his general level of fatigue. (Tr. 44, 48.)

As to his exertional abilities, plaintiff testified that he can walk about 200 to 300 feet at one time at a slow pace without becoming exhausted. Plaintiff feels pressure on his spine after walking such a distance. Plaintiff can stand in one place for about thirty to forty-five minutes. He can sit for about forty-five minutes at one time. Plaintiff testified that he can lift up to eighty pounds but only about twenty pounds without pain. (Tr. 45-46.)

As to his daily activities, plaintiff testified that his mother makes him breakfast when he wakes up, after which he does the dishes. Plaintiff testified that he takes his medication during breakfast and usually falls asleep about forty-five minutes later because of its effects. Plaintiff testified that he watches television after waking up and then helps clean, eats lunch, and takes his second round of medication. Plaintiff testified that he naps again for another hour or two, after which he watches television and then takes another nap before dinner. Plaintiff takes his third round of medication with dinner, after which he naps until 8:00 or 9:00 p.m. Plaintiff testified that he then helps his mother and does odds and ends around the house until he goes to bed. Plaintiff sleeps about three or four hours at night. (Tr. 46-47.) Plaintiff testified that he sometimes prepares his own meals but that his mother usually cooks. Plaintiff occasionally cleans the dishes. Plaintiff testified that he leaves his home for doctors' visits, but otherwise does not leave more than once a month. Plaintiff does not shop and is not involved in any volunteer organizations. (Tr. 47-48.)

Plaintiff smokes one-half pack of cigarettes a day. (Tr. 48.) Plaintiff last had a drink six months prior to the hearing. (Tr. 40.)

B. Testimony of Vocational Expert

Delores Gonzalez, a vocational expert, testified at the hearing in response to questions posed by the ALJ.

Ms. Gonzalez classified plaintiff's past work as an architectural drafter and engineering drafter as sedentary and skilled; as a customer service representative and telemarketer as sedentary and semi-skilled; as a bill collector as light and semiskilled; as a cabaret manager as light and skilled; and as a pizza maker, tractortrailer truck driver, and tow truck/repossession driver as medium and semi-skilled. (Tr. 49-50.)

The ALJ asked Ms. Gonzalez to consider plaintiff to be limited to medium, unskilled work. Ms. Gonzalez testified that plaintiff could not perform any of his past relevant work but could perform other work such as motor vehicle assembler, of which 27, 030 such jobs exist in the State of Missouri and 952, 300 nationally; farm/grain worker, of which 790 such jobs exist in the State of Missouri and 233, 280 nationally; and trimmer, of which 4, 515 such jobs exist in the State of Missouri and 186, 948 nationally. (Tr. 50-51.)

III. Medical Records Before the ALJ

Plaintiff visited the VA Medical Center on July 14, 2010, as a new patient with complaints of pain in his kidneys with no burning. Plaintiff also complained of constant pain in his sternum. Plaintiff reported that his bowels were regular, and he had no arthralgias. It was noted that plaintiff had just moved from Phoenix. Dr. Rama D. Bandi noted plaintiff's current conditions to include hypertension, obesity, hyperlipidemia, nephrolithiasis, bilateral flank pain, migraines, depression, lipoma, and hematuria. Plaintiff was taking no medications. Physical examination was unremarkable. Depression screening yielded positive results. A learning assessment showed plaintiff to be forgetful but that he had a good level of understanding. Atenolol was prescribed for hypertension. Plaintiff was advised to quit smoking. Plaintiff declined to participate in a weight management program. Laboratory tests were ordered, and plaintiff was referred to Psychology for depression. In response to alcohol screening, plaintiff reported that he had had one or two drinks once a month or less during the previous year. (Tr. 450-56.)

Plaintiff visited the Psychology unit that same date for initial evaluation. Plaintiff reported having poor sleep and decreased interest. It was noted that plaintiff had been out of work for one and a half years. Plaintiff's energy and concentration were normal. Plaintiff denied any suicidal ideation. Plaintiff reported having vague feelings of anger and frustration. Plaintiff's mood was depressed and his affect edgy. Plaintiff's thought content was logical and concrete, and his judgment and insight were adequate. Plaintiff reported occasional alcohol use and denied ever drinking to excess. Plaintiff was referred to the Mental Health Clinic. (Tr. 449-50.)

Plaintiff visited Dr. Fred W. Gaskin in the Psychiatry unit at the VA on July 30, 2010. Plaintiff reported that he was an alcoholic and drank heavily until he was twenty-nine years of age and continued to drink until age thirty-six. Plaintiff reported that he had significantly decreased his drinking and had had maybe two beers in the past two months. Plaintiff reported being down and irritable and that he did not trust anyone. Plaintiff had a low mood with thoughts that he would be better off dead, but he was not suicidal. Plaintiff reported a twenty-year history of sleeping one or two hours at night. Plaintiff reported an increase in weight but no change in appetite. It was noted that plaintiff had gained twenty-four pounds within the previous month and currently weighed 308 pounds. Plaintiff reported having had various jobs and being unemployed for two months. Mental status examination showed plaintiff to be depressed and irritable. Plaintiff's memory and concentration were good, as well as his insight and judgment. Dr. Gaskin diagnosed plaintiff with depression and assigned a Global Assessment of Functioning (GAF) score of 55.[1] Bupropion was prescribed. (Tr. 439-45.)

Plaintiff returned to Dr. Gaskin on August 27 and reported not feeling any different with the medication. Plaintiff denied any medication side effects. Plaintiff was noted to be upset because he had not yet received any test results regarding his kidneys. Plaintiff's blood pressure was elevated. No edema was noted in the extremities. Plaintiff reported having fair sleep. Mental status examination showed plaintiff to be sullen and irritable but was otherwise normal. Plaintiff was instructed to increase Bupropion. (Tr. 430-34.)

Plaintiff visited Dr. Michael I. Rauchman on September 17, 2010, for a nephrology consult. Plaintiff reported having low back pain and a recent onset of lower abdominal pain. Physical examination showed mild tenderness about the right lower quadrant. No edema was noted. Upon review of recent lab results and diagnostic testing, Dr. Rauchman diagnosed plaintiff with nephrotic range proteinuria with eGFR at a value demonstrating stage 3, or moderate, kidney damage[2] with clinical presentation that strongly suggested underlying glomerulonephritis (GN) with IgA[3] "as a leading contender." Dr. Rauchman also diagnosed plaintiff with hypertension, possibly secondary to underlying GN, exacerbated by high salt intake, obesity, and progressive chronic kidney disease; and nephrolithiasis, likely idiopathic hypercalciuria. Lisinopril was added to plaintiff's medication regimen. Additional laboratory testing was ordered, and plaintiff was instructed to work with his primary care physician on smoking cessation and weight loss given the risk factors associated with chronic kidney disease. (Tr. 427-28.)

Results of a renal biopsy performed on September 29 confirmed IgA nephropathy. Dr. Rauchman noted about half of the glomeruli to be globally sclerosed with moderate tubular atrophy and interstitial fibrosis. Dr. Rauchman reported laboratory results to show a risk of progression, and he prepared a treatment regimen that included medication as well as instructions for plaintiff to attain good blood pressure control, lose weight, and stop smoking. Dr. Rauchman determined not to prescribe steroids because of concern regarding side effects and, further, because the biopsy showed chronic changes without a lot of potentially reversible inflammation. (Tr. 410-11.)

Plaintiff returned to Dr. Gaskin on October 8, 2010, and reported no change in his mood and that he continued to be irritable. Plaintiff reported a decrease in his smoking in that he was down to three or four cigarettes a day. It was noted that plaintiff's sleep was good, and he had good concentration. No change was made to plaintiff's treatment regimen. (Tr. 406-10.)

Plaintiff visited Dr. Bandi on November 10, 2010, who noted plaintiff's recent diagnosis of kidney disease. Plaintiff complained of having chronic diarrhea for over fifteen years and that he currently had bowel movements three to six times a day. Plaintiff reported the episodes to occur as soon as he eats. Plaintiff reported smoking one pack of cigarettes a day and occasional use of alcohol. Plaintiff's current medications were noted to include Atenolol, Bupropion, Lisinopril, and Venlafaxine. Physical examination was unremarkable. Dr. Bandi determined plaintiff's hypertension to be stable. Plaintiff was instructed to continue with his medication and to return in six months. (Tr. 403-06.)

Plaintiff returned to Dr. Gaskin on November 22, 2010, and reported not much change and that he continued to have a low mood. Plaintiff reported that he was forced to be more active because his mother had surgery. Dr. Gaskin noted a slight weight gain and that plaintiff currently weighed 313 pounds, but that he was not grossly obese given that he was a "big guy." Plaintiff agreed to a clinical trial of Topamax for migraines as well as to the addition of an anticonvulsant to decrease risk of seizure. Plaintiff's Bupropion and Venlafaxine were increased. Dr. Gaskin noted that such an increase may relieve some of plaintiff's gastrointestinal issues. Mental status examination showed plaintiff's mood and affect to be slightly brighter but was otherwise unchanged. (Tr. 399-403.)

On that same date, November 22, plaintiff visited Dr. Brian K. Dieckgraefe, a gastroenterologist, with complaints of chronic diarrhea and having five or six bowel movements each day during the previous six months with such episodes occurring about five minutes after eating. Plaintiff reported a history of being a severe alcoholic until age twenty-eight, but that he currently drank maybe one beer every six months. Plaintiff reported having abdominal and rectal pain with some dyspepsia, frequent reflux symptoms, dysphagia, and hematemesis. Physical examination was unremarkable. Diagnostic studies were ordered. (Tr. 395-99.)

During a follow up visit with Dr. Rauchman on November 23, plaintiff was encouraged to lose weight and stop smoking in order to reduce the risk of progression of his chronic kidney disease. Plaintiff was also encouraged to increase his fluid intake. (Tr. 394-95.)

An esophagogastroduodenoscopy performed on January 3, 2011, yielded positive findings for esophageal ulcers and gastropathy. A colonoscopy performed that same date yielded positive results for polyps and internal hemorrhoids. (Tr. ...

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