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Norton v. Colvin

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

February 13, 2015

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 May 30, 2011, plaintiff Elizabeth Ann Norton filed an application for disability insurance benefits, Title II, 42 U.S.C. ยงยง 401 et seq., with an alleged onset date of December 1, 2005, which was subsequently amended to March 12, 2008. (Tr. 123-25, 126-30, 35). After plaintiff's application was denied on initial consideration (Tr. 68-74), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 78-79).

Plaintiff and counsel appeared for a hearing on November 15, 2012. (Tr. 33-60). The ALJ issued a decision denying plaintiff's application on December 10, 2012. (Tr. 15-32). The Appeals Council denied plaintiff's request for review on January 9, 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 her Disability Report (Tr. 169-76), plaintiff listed her disabling conditions as major depressive disorder and bipolar 2 disorder. She had previously worked as a college instructor and a legislative liaison. She was prescribed psychotropic medications Bupropion XL, [1] Lamotrigine, [2] Ritalin, Trazodone, [3] and Venlafaxine.[4] In addition to medication, she received therapy and electroconvulsive treatment (ECT).[5]

Plaintiff completed a Function Report on June 15, 2011. (Tr. 177-87). She lived alone. Her daily activities included making coffee, letting the dogs out, watching television, using the laptop for email and browsing, eating, and sleeping for two or three hours. She occasionally tried to exercise and she reported that she did laundry, managed her checkbook, and cleaned house. She was in contact with her therapist five days a week. She occasionally saw a doctor, saw a movie, or visited her sister. Her sister brought pet food and helped her with trips to the vet or groomer.

Plaintiff stated that since becoming ill she was unable to walk her dogs, get places on time, drive long distances, or shop. She had difficulty sleeping. With respect to self-care, she reported having difficulty choosing appropriate clothing and her bathing and grooming habits were lacking. She needed reminders to comb and cut her hair. Plaintiff prepared very simple meals, such as cereal or sandwiches. She reported that her diet consisted of starches, soda, and water. With respect to household chores, she stated that she spent 15 or 20 minutes a day doing laundry, sweeping, dusting and cleaning bathrooms. Her sister cleaned the house and did laundry for her every two months. She could occasionally go out alone, but stated that she was too anxious, scared or unfocused. She did shopping in stores, by mail or online. Her sister helped her pay bills, but she could handle her bank accounts and count change. Her hobbies included watching television, listening to music, and making graphics for her sister. She tried to go to a movie with a friend once a week, but she had to talk herself into it. Plaintiff had difficulties with memory, completing tasks, concentrating, understanding, following instructions, and using her hands. She explained that it was "almost impossible" for her to complete tasks; she had to read things three or four times to understand them; often could not remember what she or others had said; her concentration was "erratic;" and it took her longer to do things on the computer. Although she thought she could pay attention for about 10 or 15 minutes, she had to read the application forms a dozen or more times to understand what she was supposed to do. She could manage short verbal instructions. She handled changes in routine poorly. She was able to be respectful to authority figures even when irritated by them. She was afraid to walk alone or with her dog; was unhappy being away from home for more than a couple of hours; and had trouble with unspecified sounds. She had difficulty falling and staying asleep.

Plaintiff's sister, Nancy Norton, completed a Third-Party Function Report on June 17, 2011. (Tr. 188-95). Ms. Norton stated that she spent at least 15 hours a week with plaintiff. She stated that plaintiff had increased her seclusion and described her daily activities as follows: "Sits in house and smokes and watches TV, takes care of dogs, goes to movie with neighbor, obsessed with computer, attends some family dinners, goes to Goodwill [and] Walgreens." Ms. Norton took the dogs to her own house when they became too much for plaintiff. Plaintiff might stay up all night because she was feeling stressed by a simple thing. Ms. Norton made appointments for and drove plaintiff to the dentist and eye doctor. Plaintiff's diet was restricted, and she no longer even heated soup in the microwave. Ms. Norton thought that plaintiff's medications affected her sense of taste. Plaintiff's lack of concentration interfered with her ability to get things done; she barely cleaned her house, and might store up her laundry and then spend all night doing it. Plaintiff, who "used to be a great driver, " hit things in the road or the garage. She forgot to pay bills or failed to do so if she had no money. Plaintiff went to a movie once a week and out to dinner once or twice a week. She used to be able to grocery shop, go to music events, drive more than 5 miles, make simple decisions, cook, and enjoy life.

B. Testimony at Hearing

Plaintiff was 54 years old at the time of the hearing on November 15, 2012. She graduated from college and obtained a Master's degree. She last worked in 2005 as a part-time instructor for a single semester at a college. She testified that she "muddled through" the semester, explaining that it was a struggle for her to manage the students and that she had trouble organizing and staying focused. (Tr. 38). For example, she was shown how to use the classroom technology but could not remember how to do so. She could manage about thirty minutes of lecturing before she broke the students into groups. She described herself as rather uncomfortable and lacking in energy. She was tired from the "whole ordeal" of preparing for class and driving to the school and she wanted to leave as quickly as possible. Before teaching, she worked for one year as a legislative liaison for the Illinois Environmental Protection Agency. (Tr. 39-40). The job required her to handle phone calls and correspondence from state legislators regarding constituent concerns. She testified that she could not "take the hours, " and missed her sisters' support. It became "harder and harder" to contain her emotions and maintain a professional demeanor.

Plaintiff testified that, in 2008, she was suffering from intractable depression and had a nervous breakdown. Her depression did not respond to medication and she was not functioning "at all." (Tr. 40-41). She was suicidal but lacked the energy to act on the feelings; she also had a strong wish not to do something that would harm others. She was hospitalized three times in 2008. The third hospitalization came about after her sixth or seventh ECT. The staff thought she might be suicidal and admitted her "without even [her] participation in the decision." (Tr. 41). In August or September 2008, plaintiff's psychiatric care was transferred to Katherine P. Buchowski, M.D.[6] Sun Smith-Forte has provided therapy to plaintiff for about 12 years, seeing her three times a week or more. (Tr. 43). In 2008, plaintiff was "probably talking to her four or five times a week."

Plaintiff testified that, following her release from the hospital in 2008, she was unable to take care of herself. One of her sisters moved in with her to take care of meals, the house, and plaintiff's dog. She slept quite a bit and had a great deal of trouble getting up and staying up; it was also a struggle for her to shower and dress. Eventually, her sister made her leave the house to run an errand with her, a trip that plaintiff described as "taxing." (Tr. 44).

In response to questions from the ALJ, plaintiff acknowledged that she had been to Texas once between 2008 and 2010; she could not recall whether she had been to California. She also acknowledged that she told her psychiatrist that she was selfemployed as an artist. (Tr. 45). However, she did not earn any money as an artist. The records reflect that she claimed to have been commissioned to do a painting. (Tr. 46). She testified that it was more accurate to say that she was asked to do a painting; there was no commitment of money and she never finished it. She also added text to photographs for a friend, but she required a lot of help to finish the project. The ALJ pressed plaintiff, noting that in 2009 she had told her psychiatrist that she was getting commissions to do artwork. (Tr. 47). Plaintiff stated that she found it hard to acknowledge that, despite advantages and opportunities, she was not accomplishing anything. When people asked her to work on projects, she had great hopes but, over time, she had a better grasp of her limits. The last time she produced significant work was in 2003. (Tr. 53). When challenged that she had been dishonest with her psychiatrist, plaintiff testified that she was trying to convince herself that she was functioning. (Tr. 47-48). She did not want her psychiatrist to think she was "giving in to [her] limitations" and she "was not raised to look like [she] was having a hard time and so [was] pretty good at it." (Tr. 50-51).

The ALJ asked plaintiff if she had been "going to parties, " citing a notation in July 2008. Plaintiff vaguely recalled that she had attended a party. She also stated that she had a birthday party that her sisters had arranged for her. (Tr. 48). Plaintiff attended yoga three times a week for seven or eight months, but stopped because she became self-conscious, it was hard to focus, and she was "so tired." (Tr. 49).

Plaintiff did not think she would have been able to work between 2008 and 2010 because she had difficulty staying focused and keeping her emotions under control. Earlier in her career she had panic attacks and crying spells while teaching. In 2008, she had required her sister's assistance in managing her home, preparing meals, and doing laundry. She still found it difficult to pay bills, because she needed reminders and then found it hard to focus sufficiently to write a check. She had difficulty reading, and she got lost when driving. She had applied to a local art store for a job, and brought home a job application from Goodwill but never completed it.

The ALJ asked Robin A. Cook, Ph.D., a vocational expert, to classify plaintiff's past work in accordance with the Dictionary of Occupational Titles and Selected Characteristics of Occupation. (Tr. 54). Dr. Cook testified that because plaintiff did not work at her past positions for one year of full-time work, she did not meet any Specific Vocational Preparation (SVP) levels. (Tr. 54-55). Dr. Cook also testified that an individual with plaintiff's education who was limited to performing unskilled work with no more than infrequent handling of customer complaints would be unable to perform plaintiff's past relevant work, but could work as an industrial cleaner, kitchen helper, or housekeeping cleaner. (Tr. 55-56). Plaintiff's counsel asked Dr. Cook to assume that the individual had marked limitations in the ability to maintain attention, concentration, and focus on work duties, and the ability to sustain employment for more than 6 months without decompensation. Dr. Cook was asked to further assume that the individual had moderate limitations in several abilities, including the ability to maintain a schedule and be punctual; to understand, remember and carry out simple instructions and procedures; to complete a normal workweek without interruption from psychological symptoms; to maintain appropriate behavior in interaction with others and respond appropriately to criticism, changes in routine, and stress; and to demonstrate reliability.[7] Such a person would not be able to work. (Tr. 58).

C. Medical Records

On March 12, 2008, plaintiff was admitted to St. Mary's Health Center with complaints of depression, which began in September 2007. (Tr. 238-40). She reported that she had crying spells, impaired concentration, loss of interest and energy, and social withdrawal. She had poor appetite and had lost 5 to 10 pounds over the prior two months. She agreed to hospitalization when she began to have suicidal thoughts. She had been hospitalized 25 years earlier when she was working on her Master's degree. During that hospitalization, she was diagnosed with bipolar disorder and started taking Lithium. She had other periods of depression but this episode was the most severe that she had experienced. She has also been treated with Lamictal, Abilify, [8] Trazadone, and Effexor. Plaintiff reported that she had spent two years teaching high school and then taught at Hofstra College for 10 years. Since that time, she worked only part-time, if at all, and was living on inherited money. She appeared depressed and somewhat forlorn. She was cooperative and well oriented. Her diagnosis at admission was bipolar, depressed, and she was assigned a Global Assessment of Functioning score of 30. Plaintiff was discharged on March 19, 2008, after she denied suicidal ideation and declined ECT. Her sister agreed that plaintiff could stay with her after discharge and her treating psychiatrist, Dr. Adam Sky, agreed to discharge plaintiff with instructions to follow up with him in two days. (Tr. 236-37).

Plaintiff was readmitted to St. Mary's Health Center on May 30, 2008, following her seventh ECT. (Tr. 229-32). Dr. Sky noted that plaintiff had increasing tearfulness, anxiety and depression. She stated that she "can't take it anymore" and it was felt that she needed additional treatment and observation. (Tr. 230-31). She reported feeling hopeless and very disappointed in herself for ending up in the hospital. Dr. Sky noted that the ECT treatments had produced marginal results, although her sister had seen some improvement. Her current medications included Venlafaxine, Bupropion, and Trazadone. She had been treated in the past with Fluoxetine, [9] Lithium, and Depakote.[10] The plan was to continue her medications and ECT. Dr. Sky said he would also talk with plaintiff's sister, whom he viewed as "a pretty good barometer" as to how plaintiff was doing. On June 1st, Dr. Sky noted that plaintiff was ...

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