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Abby v. Colvin

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

February 9, 2015

CLINT D. ABBY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


CAROL E. JACKSON, District Judge.

This matter is before the Court for review of an adverse ruling by the Social Security Administration.

I. Procedural History

On July 13, 2011, plaintiff Clint D. Abby filed an application for supplemental security income, Title XVI, 42 U.S.C. ยงยง 1381 et seq., with an alleged onset date of April 30, 2009.[1] (Tr. 97-102). After plaintiff's application was denied on initial consideration (Tr. 50-54), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 55-57). Plaintiff and counsel appeared for a hearing on March 7, 2013. (Tr. 28-47). The ALJ issued a decision denying plaintiff's application on May 15, 2013. (Tr. 13-24). The Appeals Council denied plaintiff's request for review on January 17, 2014. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

II. Evidence Before the ALJ

A. Disability Application Documents

In his Disability Report filed on July 27, 2011 (Tr. 115-21), plaintiff listed his disabling conditions as a hernia, knee problems, arthritis in his left hand and left foot, upper and lower back pain, and depression. He stated that he stopped working on April 30, 2009 because of his conditions. He did not take any prescription medicines. The highest grade of school he completed was 9th grade. In the past, he had held positions as a bagger in a grocery store, a cook in restaurants, in packaging and assembly, as a surveyor for marketing company, and a telemarketer for a cement company. (Tr. 117, 123).

Plaintiff completed a Function Report on August 6, 2011. (Tr. 132-42). In the report, plaintiff stated that his daily activities consisted of bathing, sleeping, watching television, complaining, and taking Aleve. Uncomfortable pain affected his sleep. He prepared his own meals daily, and dusted, vacuumed, mowed, and washed dishes once or twice a month. He was able to walk, drive a car, and use public transportation. He shopped once a month, and was able to manage his bills. His hobbies included watching television, reading, and playing dominos. He stated that sitting or standing for short periods caused him back pain. He was able to follow instructions and get along with authority figures. He stated that he had used a cane, back brace, and leg brace in the past.

Plaintiff's friend, Rose Discher, completed a Third-Party Function Report in August 2011. (Tr. 143-52). Ms. Discher stated that plaintiff's daily activities consisted of watching television, talking on the phone, cleaning the house, cutting the grass, and reading. She reported that plaintiff prepared his own meals daily, but he did not have a good appetite and sometimes had an upset stomach. She stated that plaintiff went outside daily by himself. She also stated that plaintiff's conditions affected his ability to lift, climb stairs, follow instructions, concentrate, remember, and get along with others. He would get out of breath when climbing stairs or lifting furniture, he easily forgot things, and he had a short temper. Ms. Discher also reported that plaintiff had "fears of someone trying to get him in trouble." (Tr. 150). She stated that plaintiff needed to use a brace often when his back, leg, or knee pain flared up.

In his Disability Report filed on January 6, 2012 (Tr. 164-68), plaintiff reported changes in his conditions beginning on October 30, 2011. He stated he had tingling in his wrist, pain in his ankles and shoulders, headaches, constant back pain, and pain in his forearms. He also was bedridden more often than usual. He did not report any prescription medications, but continued to take Aleve.

B. Testimony at the Hearing

Plaintiff was 44 years old at the time of the hearing. (Tr. 30). He completed the ninth grade, but did not have a GED. He attended a trade school for data entry, but did not complete the program. (Tr. 30-31). In 2000, plaintiff was released from prison after serving a six-year term for first-degree assault and attempted murder. (Tr. 31). Also in 2000, he began working as a telemarketer at Advanced Promotions where he remained for two years "off and on." (Tr. 35).

Plaintiff testified that he had been seeing a chiropractor for the past 20 years for severe back problems. (Tr. 32). He also testified to having tingling pain in his left arm and pain in his legs from a fracture caused by bullets in 1986. (Tr. 32-33). The longest he could physically tolerate a work environment was for an hour and a half before he would need to sit down and take a break. He testified that he had been taking Oxycontin and Percocet for his pain as prescribed. (Tr. 40). Plaintiff testified that the pain pills caused side effects, including stomach pain, difficult bowel movement, and nausea in the mornings. (Tr. 41).

Plaintiff stated he has had mental issues for the past 20 years. He testified to seeing and hearing things, such as "shadow walkers along the walls" that cause him to barricade himself in his house and grab weapons. (Tr. 33). He began going to St. Alexis twice a week for psychological care three weeks before the hearing; he had not seen a psychologist or psychiatrist on a regular basis before then. (Tr. 33-34).

Plaintiff testified that his mental health issues began when he was a child. (Tr. 36). He stated that he was physically and sexually abused as a child, and ran away from home at the age of 15. Since 2009, his mental health problems had become worse. He stated he became more violent, paranoid, schizophrenic, and less tolerant. (Tr. 36). Plaintiff testified that he had been diagnosed with bipolar disorder and PTSD. (Tr. 37). These conditions caused him to have problems dealing with authority and coworkers. He had emotional outbursts when he was given feedback from supervisors, and had been fired from jobs. His mind also wandered "a million miles an hour, " and he disliked being told what to do. (Tr. 38-39, 41).

Plaintiff reported past problems with alcohol and marijuana. (Tr. 34). He smoked marijuana for 35 years, beginning when he was 7 years-old. He stopped smoking in August 2012. He drank a few beers a week if he could afford it. He reported drinking a 12-pack of beer every day or two in 2011. (Tr. 35).

Jeff Magrowski, Ph.D., a vocational expert, provided testimony regarding the employment opportunities for an individual of plaintiff's age, education, and no past relevant work that qualified as substantial gainful activity. (Tr. 42). The ALJ instructed the vocational expert that this hypothetical claimant had no physical restrictions; could carry out simple instructions and non-detailed tasks; could demonstrate adequate judgment to make simple work-related decision; could respond appropriately to supervisors and coworkers in a task-oriented setting where contact with others is casual and infrequent; should not work in a setting which includes constant, regular contact with the general public; and should not perform work which includes more than infrequent handling of customer complaints. The ALJ asked if there were examples of work for such an individual. Dr. Magrowski responded that jobs existed for such a person in both the local and national economy as a bagger of garments or clothing and as a laundry worker. (Tr. 43).

Plaintiff's counsel asked Dr. Magrowski if his opinion would change if the hypothetical claimant had problems with concentration that would require him or her to take a 15-minute break every hour and was off-task. (Tr. 44). Dr. Magrowski responded that such a person could not perform those identified jobs. Plaintiff's counsel asked the doctor to then assume such a person was incapable of tolerating minor affronts and had trouble moderating interpersonal behaviors three times a day to the extent that it would interfere with that person's ability to perform his or her job. (Tr. 44). Dr. Magrowski responded that there would be no work for such a person. Plaintiff's counsel then asked the vocational expert if there were any jobs for a person with the hypothetical characteristics described by the ALJ who also would need special supervision because he or she frequently became overly upset. (Tr. 45). Dr. Magrowski responded that there would be no jobs for such a person.

C. Medical Records

On November 7, 2009, plaintiff sought treatment at St. Louis University Hospital for a laceration on the left side of his forehead caused by a blunt object. (Tr. 245-58). He had experienced loss of consciousness and vomiting. Plaintiff stated he had been assaulted six days earlier. A CT scan showed a minimally displaced left lateral orbital wall fracture. There was some tissue swelling and small metallic foreign bodies were seen in the laceration. His wounds were healing and there were no signs of infection. He did not want police involvement. He reported smoking half a pack of cigarettes a day and occasional alcohol use. He was advised to continue to clean the head wound and was discharged with no follow-up arranged. On June 9, 2010, plaintiff sought treatment at St. Louis University Hospital for a swollen knee. (Tr. 259-60). He reported smoking one pack of cigarettes per day and marijuana. He was advised to take Advil as needed.

Plaintiff returned to St. Louis University Hospital in February 2011, after he was involved in a motor vehicle crash while intoxicated. (Tr. 261-93). He was uncooperative during intake, nearly hitting the intake physician. Test results returned positive for cannabis and he smelled of alcohol. All CT scans were negative. Trauma services refused to see him. His symptoms improved following intravenous fluids, Haldol, Ativan, and diphenhydramine. The next morning plaintiff had a swollen tongue and difficulty speaking. No acute intervention was deemed necessary. Exam results of plaintiff's spine based on his complaints of neck and back injury were normal with no evidence of fracture.

Dianna Moses-Nunley, Ph.D., conducted a consultative psychological examination of plaintiff on November 2, 2011. (Tr. 192-96). Dr. Moses-Nunley diagnosed plaintiff with bipolar disorder, anxiety disorder, and assigned a Global Assessment of Functioning score of 50.[2] She noted that plaintiff was guarded due to his lack of insight into his problems and distrust of mental health providers. Plaintiff was appropriately dressed and groomed at the evaluation. Dr. Moses-Nunley noted that plaintiff's social behavior seemed borderline inappropriate and overly demonstrative when he showed her his missing teeth and the outbreak of a rash on his torso. Plaintiff was ...

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