United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER OF UNITED STATES MAGISTRATE JUDGE
TERRY I. ADELMAN, Magistrate Judge.
This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves an Application for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief in Support of her Complaint, the Commissioner has filed a Brief in Support of her Answer, and Claimant has filed a Reply thereto. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I. Procedural History
On September 13, 2010, Claimant Lily Ann Yeggy filed an Application for Supplemental Security Income payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et. seq. (Tr. 216-22). Claimant states that her disability began on November 11, 2010,  as a result of seizures, bipolar, borderline personality disorder, PTSD, and fibromyalgia. (Tr. 81). On initial consideration, the Social Security Administration denied Claimant's claims for benefits. (Tr. 83-87). Claimant requested a hearing before an Administrative Law Judge ("ALJ"). On February 6, 2012, a hearing was held before the ALJ who issued an unfavorable decision on August 12, 2012. (Tr. 7-22, 31-68). After considering the unsigned memorandum attached to her request for review, the Appeals Council found no basis for changing the ALJ's decision on January17, 2014. (Tr. 1-5, 391-92).
II. Evidence Before the ALJ
A. Hearing on February 6, 2012
1. Claimant's Testimony
At the hearing on February 6, 2012, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 31-60). At the time of the hearing, Claimant was thirty-two years of age. (Tr. 37). Claimant has two children, one lives in St. James with his father, and her other son lives with her father in Rolla. (Tr. 37). She lives with her boyfriend of four months, and he pays the bills. (Tr. 48). She stands at five feet four inches and weighs 169 pounds. (Tr. 57). She has Medicaid. (Tr. 59). Her doctor told her not to drive until her seizures are under control. (Tr. 48).
Claimant testified that she has been hospitalized for two weeks twice at the Phelps County Hospital in Rolla for nervous breakdowns and once in a hospital in Georgia for a nervous breakdown. (Tr. 39-40). Claimant testified that during the third hospitalization, she received the diagnosis of bipolar. (Tr. 40). At one point she took medications for bipolar disorder but then she lost touch with her psychiatrist, and she has not been able to find another psychiatrist. She just returned to her family doctor who prescribed Klonopin and Cymbalta a couple days earlier. Claimant noted she had not been taking any psychiatric medications for a couple of years. (Tr. 40).
Claimant testified that she cannot drink due to pancreatitis. (Tr. 41). She was addicted to meth for almost a year three years ago. She has been clean for four years. (Tr. 41).
Claimant testified that she last worked for three to four months at Eagle's Stop in November 2010. (Tr. 42). She cannot work because of her seizures, and she testified that she has three to four small seizures each week and big seizures two to three times a month. (Tr. 42-43). She started experiencing seizures in December 2005. (Tr. 51). When she has a petit mal seizure, she stiffens up, quakes, and then goes limp. (Tr. 52). The seizure lasts for a couple of minutes. She comes out of the seizure pretty quickly but she has a bad headache and feels weak. She has to lie down. (Tr. 52). She testified most of the seizures take place at night. (Tr. 53). When she has a grand mal seizure, she passes out, and she has no control over her body. (Tr. 52). The seizure comes out of the blue, and she has no memory of the seizure, and it takes three days to recover from the seizure. (Tr. 53).
Claimant testified that the only difficulty she has with her mental functioning is her inability to remember things. (Tr. 54). She feels depressed pretty much all of the time. She attempted suicide two years ago after being beaten by a boyfriend and seeking help from her father. Dr. David Chang performed reconstructive surgery in December 2010. (Tr. 58). She has not had any suicidal thoughts recently. (Tr. 54). When she is feeling depressed or stressed, she goes online and talks to friends. (Tr. 55). She has never had any difficulty getting along with any of her coworkers or customers in the past at work. (Tr. 55). She becomes nervous when she is in the general public and starts feeling like she is about to have a panic attack. (Tr. 56).
Her family doctor is treating the seizures, and she is looking for another neurologist because her last neurologist stopped the overnight EEG testing due to her request to reschedule due to pain from pancreatitis. (Tr. 43). Claimant testified taking Topamax helps cut down the seizures. (Tr. 47). Dr. Beard started her on a new medication. She experiences migraine headaches after every seizure, and she has medications and sometimes has to go to the emergency room for an Imitrex shot. (Tr. 47). She testified that when she has a bipolar attack every three to four months, she has difficulty interacting with other people. (Tr. 45). She also has PTSD so she cannot handle any loud noise such as a car back firing, a door slamming, or someone yelling. (Tr. 46). She has a PTSD attack almost every day. (Tr. 46). Claimant testified that she is not in counseling because she has not been able to find a counselor. Her asthma is under control with medications including an inhaler. (Tr. 46).
During the day, Claimant spends time on the computer, cleaning the house, cleaning her room, doing general things around the house, taking care of her dog, and helping her boyfriend with his daughter. (Tr. 48). She injured her back in a recent car accident, and she had been receiving treatment but was released from treatment in order to get the settlement. (Tr. 49). She leaves the house to go grocery shopping. (Tr. 56).
The ALJ observed Claimant to be using crutches. (Tr. 50). She explained something popped in her knee the other night. (Tr. 50). The doctor prescribed a straight brace and indicated she might need surgery. (Tr. 51).
The ALJ asked Claimant to verify the five jobs, cashier, deli worker, a store clerk, and a waitress, listed on her work history report, each of the jobs lasting no more than a couple of months. (Tr. 61).
2. Testimony of Vocational Expert
Vocational Expert Barbara Meyers testified at the hearing. (Tr. 60-67).
The ALJ asked Ms. Meyers to consider that
[t]he claimant testified that she is 32 years old. She is a resident of Missouri and we don't have a vocational history so I'm going to ask you to assume a person who's able to do - well, a hypothetical person capable of performing light work with the following limitations. Frequent climbing ramps or stairs. Never climbing ladders, ropes, or scaffolds. Frequent stoop, knell, crouch, crawl. Avoided concentrated exposure to extreme cold, extreme heat, extreme wetness, extreme humidity. Avoiding concentrated exposure to extreme vibration. Concentrated exposure to irritants and chemicals. Concentrated exposure to operational control of moving machinery. And avoiding concentrated exposure to unprotected heights and hazardous machinery. Work limited to simple, routine tasks with only occasional interaction with the public. I ask whether or not there are any jobs in the economy, in the regional or national economy, that this hypothetical person could perform?
(Tr.63). Ms. Meyers indicated such hypothetical person could perform at the light and unskilled level as a retail marker with 27, 000 jobs in Missouri and 1, 5000, 000 nationally; a folding machine operator with 1, 100 jobs in Missouri and 31, 000 nationally; a collator operator, with 1, 200 jobs in Missouri and 115, 000 nationally. (Tr. 64). When asked if the individual would only be able to perform sedentary work, Ms. Meyers listed sedentary and unskilled jobs such as a document preparer with 800 jobs in Missouri and 30, 000 nationally; a circuit board assembler, with 1, 100 in Missouri and 55, 000 nationally; and a table worker with 200 jobs in Missouri and 25, 000 nationally. (Tr. 64).
The ALJ next asked Ms. Meyers to assume
if this individual could not sustain a regular eight hour a day, five day a week, 40 hour work week on a regular and continuing basis, would there by any jobs that would remain for this hypothetical claimant?
(Tr. 64-65). Ms. Meyers responded no. (Tr. 65). Ms. Meyers indicated employers customarily expect their employees not to have more than two unexcused or unscheduled absences a month and any more than two absences is generally unacceptable. She agreed if an employee exceeded those customary limits on a regular basis, this would eliminate the jobs cited and preclude work in the competitive marketplace. (Tr. 65).
Counsel asked Ms. Meyers to assume the ALJ's first hypothetical and include the further limitation "that this hypothetical person would be unable to adapt to changes in the workplace even if those are routine and would be unable to interact appropriately with the general public, and coworkers, and supervisors on a sustained basis. Could these jobs still be performed?" (Tr. 66). Ms. Meyers responded no. (Tr. 66).
The ALJ asked Ms. Meyers if the jobs she cited would be available to a person who could only tolerate occasional changes in the work setting. (Tr. 67). Ms. Meyers noted how the jobs cited are simple and unskilled jobs so there would not be a lot of changes in the work setting. The ALJ asked in such jobs, would a person be able to do the jobs if the person only had occasional interaction with coworkers or supervisors. Ms. Meyers explained the jobs cited were jobs people can do independently, these are not jobs where workers are required to work as a team. (Tr. 67).
3. Forms Completed by Claimant
In the Disability Report - Adult, Claimant reported she stopped working on July 30, 2008 after she was fired from the job. (Tr. 272-82).
In the Function Report - Adult, Claimant reported her daily activities as waking up and eating breakfast and then straightening the house. (Tr. 301). She eats dinner and then does the dishes. (Tr. 301). She can clean and do the laundry. (Tr. 303). She listed reading, watching television, and doing embroidery as her interests. (Tr. 305).
In the Report of Contact, a DDS employee noted how Claimant's family doctor is refilling psychiatric medications, and she does not receive psychiatric care. (Tr. 319).
III. Medical Records and Other Records
On December 27, 2004, Claimant was admitted to St. Vincent Health System because of eleven years of untreated auditory hallucinations. (Tr. 394). Schizoaaffective disorder is included in the final diagnosis. (Tr. 394).
In the January 21, 2005 treatment note, Dr. Felts noted how she continues to have problems with asthma but she continues to smoke a half a package of cigarettes each day. (Tr. 404).
On June 9, 2005, Claimant was hospitalized on a 96-hour hold at Phelps County Regional Medical Center from Sullivan Hospital. (Tr. 420). She reported she used to see a psychiatrist in Arkansas until a year ago when she moved to St. James and has not seen a psychiatrist but Dr. Felts, her primary care physician, prescribes her medications. After having an argument with her fiance, she felt overwhelmed and agitated and ended up cutting her wrists. She reported having a history of traumatic experiences when she experienced a lot of physical abuse by her ex-husband. She smokes a package of cigarettes a day. She took some of her cousin's pain medication, and this showed up in her urine as a tricyclic antidepressant and narcotic pain medication. (Tr. 420). She reported living with fiance in St. James and losing her job in communication research one month earlier. (Tr. 421). In the June 13 Discharge Summary, the doctor noted how lately she has gone through extra stress including having family-related problems, a problem getting along with her father, and losing her job. (Tr. 423). She cuts herself to relieve tension. (Tr. 423). The doctor noted how she showed significant improvement. (Tr. 424).
On January 23, 2008, she sought treatment in the emergency room for back pain after a seizure. (Tr. 504-05). The radiology reports showed an unremarkable spine and thoracic spine. (Tr. 506-07). The CT scan of her head showed a stable negative study, and the doctor encouraged her to have a MRI. (Tr. 508).
On February 17, 2008, she presented in the emergency room for treatment of a headache. (Tr. 501-02). A CT of her head showed no acute process. (Tr. 503).
After experiencing four seizes, she sought treatment in the emergency room on February 19, 2008. (Tr. 550). She reported having a headache, taking medication but no relief, and then having the seizures lasting fifteen to twenty minutes. (Tr. 552).
On February 20, 2008, Dr. M. Choudhary evaluated Claimant at the Rolla Neurology Pain and Sleep Center for seizures starting in December 2007. (Tr. 478). Dr. Choudhary performed an EEG and the results showed abnormality due to presence of intermittent sharp transient and isolated spikes noted bilaterally. She opined in an appropriate clinical setting, the results may be consistent with seizure disorder, and she recommended clinical correlation. (Tr. 478). Neurological examination showed Claimant to have a normal attention span and concentration. (Tr. 480). Dr. Choudhary noted how she seemed to "have generalized tonic clonic seizures as well as complex partial seizures." Dr. Choudhary continued her current medication regimen and prescribed Fioricet and increased her dosages of Depakote and Dilantin. (Tr. 480).
Claimant received treatment in the emergency room on February 21, 2008 complaining of low back pain and left knee pain after slipping on ice. (Tr. 544). The x-ray of her left knee showed mild osteoarthritis and small joint effusion. (Tr. 549).
On March 12, 2008, she sought treatment in the emergency room for seizures. (Tr. 539-41). She reported taking Dilantin but she was uncertain if she had taken her dose that day. (Tr. 541). Although she has a prescription needing to be refilled, she was unable to do so because of a problem. (Tr. 541). On March 21, Claimant presented in the emergency room for treatment after having two seizures. (Tr. 534-36). She reported having daily seizures. (Tr. 536).
In follow-up on March 5 and 18 and October 29, 2008, and February 12 and March 5, 2009, Dr. Choudhary treated Claimant. Her handwritten notes are for the most part illegible. (Tr. 473-77). Dr. Choudhary prescribed medications as treatment. (Tr. 573-77).
On January 21, 2009, Claimant presented for treatment of a headache/migraine in the emergency room. (Tr. 497-98). She returned for treatment of a seizure on February 22. (Tr.499-500).
On February 5, 2009, Dr. Thomas Spencer completed a psychological evaluation on referral to assist in the determination of Medicaid eligibility. (Tr. 1009). She reported not having any health coverage and her medications costing in excess of $1, 000 each month. She reported having diagnosis of bipolar disorder, PTDS, borderline personality disorder, and seizures. (Tr. 1009). Although she reported having three psychiatric hospitalizations, she has not had any psychiatric follow-up for the last two years since being discharged. (Tr. 1010). She reported last working in August 2008 but she was fired because she was late. (Tr. 1011). She indicated that she planned to file for disability and denied any alcohol use/abuse present and past. Her daily activities include watching television, cleaning around the house, and cooking. (Tr. 1011). Dr. Spencer included major depressive disorder, recurrent, moderate, bipolar disorder by history, and problems related to primary support system, occupation, economic, and access to health care. (Tr. 1013). Dr. Spencer opined that she has a mental illness which would interfere with her ability to engage in employment, and his prognosis is guarded. (Tr. 1013).
In follow-up on February 12 and March 5, 2009, Dr. Choudhary treated Claimant. Her handwritten notes are for the most part illegible. (Tr. 473-77, 615). Dr. Choudhary ...