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Gribble v. Colvin

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

February 26, 2015

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


THOMAS C. MUMMERT, III, Magistrate Judge.

This 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application of David Gribble (Plaintiff) for supplemental security income (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381-1383b, is before the undersigned Magistrate Judge pursuant to the written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Plaintiff applied for SSI in August 2010, alleging he was disabled as of October 8, 2009, [1] by bipolar disorder, depression, anxiety, and a left shoulder problem.[2] (R.[3] at 168-72, 189.) His application was denied initially, on reconsideration, and following a June 2012 video hearing before Administrative Law Judge (ALJ) Thomas Cheffins. (Id. at 5-18, 68-97, 103-05, 109-11.) The Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-3.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and Michael Lala, C.R.C., [4] testified at the administrative hearing.

Plaintiff testified that he was then 45 years old and lives in a one-story house with his mother, sister, brother-in-law, and their three children. (Id. at 32, 33.) The household income is from his sister's wages and his mother's fixed income. (Id. at 35.) He is 5 feet 8 inches tall and weighs 165 pounds. (Id. at 33.) He is right handed. (Id. at 34.) He completed the tenth grade and never obtained a General Equivalency Degree (GED). (Id.) He completed training as a truck driver, but his commercial driver's license is no longer valid. (Id.)

Plaintiff stopped working in 2007 due to problems with his shoulders. (Id. at 36-37.) He testified that his most serious health problems currently are the herniated disc in his neck, pain in his shoulders, and shortness of breath. (Id. at 37.)

The longest job Plaintiff has held was doing auto body work. (Id.) He cannot remember how long he held that job, but it was full-time work. (Id. at 38.) He was "pretty sure" it lasted longer than six months. (Id.) This job required that he grind out welds, put body filler in, prime, and prep all the doors on ambulances. (Id. at 62-63.)

Plaintiff was incarcerated from 2000 to 2004 for child support. (Id. at 37, 56.) He was also incarcerated in the late 80s or early 90s for burglary and stolen property. (Id. at 57.)

Plaintiff has received no medical care since moving to Missouri because he just recently got his Medicaid coverage switched from Ohio to Missouri and had to have his medical records sent from Ohio. (Id. at 39, 41-42.) He moved to Missouri after his mother became sick.[5] (Id. at 43.) He now has Medicaid and has appointments for both his physical and mental health. (Id.) He was also going to have restarted the medication that he had been placed on when in an Ohio psychiatric hospital in July 2011. (Id. at 42-43.) He thought he had been out of his medications for six or seven months. (Id. at 44.)

To try to relieve his shoulder and neck pain, he has been taking over-the-counter medications and using heating pads and ice packs. (Id. at 44-45.) He is in constant pain, but the intensity varies with the weather. (Id. at 45.) He had surgery on his left shoulder, but it did not help. (Id. at 53.)

Asked about how he spends his day, Plaintiff explained that he does not do a lot. (Id. at 46.) He might see friends. (Id.) He does not do a lot of walking because he gets short of breath. (Id. at 46, 47.) He tries to avoid lifting anything because he does not want to hurt his shoulders and neck. (Id. at 46.) On a good day, he cannot stand for longer than thirty minutes before having to sit down and lean back. (Id. at 48.) He cannot sit comfortably for a long period of time, even in a padded office chair. (Id. at 49.) He cannot raise his arms far above his head. (Id. at 50.) His hands become numb, causing him to lose his grip and drop things. (Id.) When this happens, he has to rub his hands. (Id. at 51.)

Also, Plaintiff becomes very nervous and shakes when he is around people. (Id. at 52.) He is frequently depressed. (Id. at 53.)

After the ALJ noted that Plaintiff refused to stop smoking, Plaintiff testified that he has "slowed down." (Id. at 56.) He has gone from two to three packs of cigarettes a day to five or six cigarettes. (Id.) Asked about a reference in an evaluation report to Plaintiff having abstained from drugs for four years and a July 2010 urine drug screen that tested positive for marijuana, Plaintiff was unable to explain the inconsistency. (Id. at 59.) Plaintiff did remember telling a doctor in July 2011 that he was using alcohol and cocaine again. (Id. at 60.) He was going through a rough time then. (Id.) Now, he only occasionally has a beer and does not use cocaine or marijuana. (Id.)

Mr. Lala, testifying without objection as a vocational expert (VE), classified Plaintiff's past job as an auto body worker helper as medium, unskilled and with a specific vocational preparation (SVP) level of two. (Id. at 62.) The Dictionary of Occupational Titles (DOT) number is 807.687-010. (Id.)

He was then asked to assume a claimant of Plaintiff's age, education, and past work experience who can perform work at the medium exertional level with additional limitations of not climbing ladders, ropes, or scaffolds; occasionally reaching overhead with the left upper extremity; and being restricted to work involving simple to moderately complex tasks with occasional interaction with coworkers and the public. (Id. at 63.) The VE replied that this claimant can perform Plaintiff's past relevant work. (Id. at 64.)

If the hypothetical claimant is limited to work at the light exertional level but has the other limitations of the first hypothetical, the claimant cannot perform Plaintiff's past relevant work. (Id.) This person can, however, work as a plastic hospital products assembler, bench assembler, or agricultural bench assembler. (Id. at 65.) If the hypothetical claimant's non-exertional limitations are restrictions to work involving only simple routine and repetitive tasks and the other descriptions remained, this claimant will be able to perform these three jobs. (Id.)

The VE further stated that his testimony is consistent with the DOT and with his training, education, and experience in the field. (Id.)

Medical and Other Records Before the ALJ

The documentary record before the ALJ included forms completed as part of the application process, documents generated pursuant to Plaintiff's application, records from health care providers, and assessments of his physical and mental abilities.

When applying for SSI, Plaintiff completed a Disability Report, stating that he had stopped working on June 1, 2007, because of his condition. (Id. at 189.) He had a job in 2005 doing auto body work for eight hours a day, five days a week. (Id. at 190.) His earnings for that job totaled $8, 351. (Id.) He did not otherwise describe the work.

On a Function Report, Plaintiff described his daily activities as including fixing lunch, watching television, playing with his children, and visiting with friends. (Id. at 254.) His pain interferes with his sleep. (Id.) He needs to be reminded of appointments and to take his medications. (Id. at 255.) He has no problem with taking care of his personal hygiene. (Id.) He can pay bills, count change, and handle a savings account. (Id. at 257.) His impairments adversely affect his abilities to lift, understand, remember, walk, reach, and concentrate. (Id. at 258.) They do not affect his abilities to, among other things, stand, sit, use his hands, or complete tasks. (Id.)

The relevant medical records before the ALJ are summarized below in chronological order and begin with those of the Ohio Department of Rehabilitation and Correction.

When undergoing a mental health evaluation in January 2000, Plaintiff complained of high stress, sleeplessness, and restlessness since arrival at the correctional institution one month earlier to serve a sentence imposed on a guilty plea to burglary. (Id. at 281-83, 409-11, 433.) He was worried about his pregnant fiance and was not sure he needed mental health services. (Id.) He started drinking at 14 and drank heavily from 27 to 31. (Id.) He smoked approximately one ounce of marijuana a week, and estimated this to be 40 to 50 joints. (Id.) He had used cocaine and acid, but not a lot and not for the past year. (Id.) The psychologist, George E. North, Ph.D., diagnosed Plaintiff with dysthymia and personality disorder. (Id. at 282.) His current Global Assessment of Functioning (GAF) was 55.[6] (Id. at 283.) A psychiatric consultation was recommended. (Id. at 433.)

The following month, Plaintiff referred himself for mental health services for complaints of insomnia, feelings of depression, and decreased concentration and energy. (Id. at 464-65.) He was diagnosed with an adjustment disorder, depressed mood, and dysthmic disorder and prescribed Paxil. (Id. at 463.)

In March, Plaintiff was prescribed clonidine (for high blood pressure) and Remeron (an antidepressant). (Id. at 336-49.) His current GAF was in the 61 to 70 range.[7] (Id. at 425.) In September, Plaintiff complained of being on edge and not sleeping well. (Id. at 447.) His Remeron was increased. (Id.) In December, he was doing okay; his depression was stable and he had been off medications for two weeks. (Id. at 441-42.)

In January 2001, Plaintiff admitted he was noncompliant with his medication and stated he did not feel like he needed it anymore. (Id. at 439-40.) He appeared to be stable. (Id. at 439.) His name was removed from mental health caseload. (Id.) In March, Plaintiff requested to be placed back on the mental health caseload as he was having difficulties with mood and sleep and with getting along with others. (Id. at 431.) He was not referred to a psychologist because he walked out of the room during the interview without explanation, his need for services seemed marginal, and his past medication compliance was not very good. (Id. at 431, 435.) In August, Plaintiff reportedly was not getting depressed, not having trouble with inmates or staff, and not having personal problems. (Id. at 430.)

Throughout his incarceration, Plaintiff was prescribed Motrin and Midrin for migraines. (See id. at 273-80, 285-91, 295-97.)

When released, in October 2002, Plaintiff was taking no medications and reportedly had no current medical problems. (Id. at 272.)

Plaintiff was again incarcerated in February 2004. (Id. at 379-80.) On a medical screening form, his list of current health problems included only migraines and pain in his left shoulder. (Id.) He had an IQ score of 102 on a GAMA test.[8] (Id. at 491, 494.) During his confinement, Plaintiff was diagnosed with migraine headaches, which were treated with ibuprofen and Midrin. (Id. at 360-65.) He was released in June 2004. (Id. at 371.)

In February 2006, Plaintiff went to the Paulding County Hospital (PCH) emergency room for complaints of a migraine headache for the past three days accompanied by nausea and some light sensitivity and unrelieved by Tylenol. (Id. at 919-20.) The pain was a ten on a ten-point scale. (Id. at 919.) After being given Toradol (a nonsteroidal anti-inflammatory drug (NSAID)), Phenergan (an antihistamine), and Nubain (an opioid pain medication), his pain was reduced to a four or five and he was discharged home. (Id. at 920.)

Plaintiff returned to the PCH emergency room on April 29 after having left-sided chest pain for the past hour. (Id. at 557-61, 870-72, 921-28.) The pain was a ten on a ten-point scale. (Id. at 559.) He was noted to be in severe distress. (Id.) On examination, he had a regular rate and rhythm to his heart and no murmurs, gallops, or rubs. (Id. at 560.) He was placed on oxygen and given intravenous drugs to help with his hyperventilation and breathing. (Id.) An electrocardiogram (EKG) showed a normal sinus rhythm with a baseline variation caused by Plaintiff's shaking. (Id.) A cardiac profile was normal; a chest x-ray showed no acute disease. (Id.) Another EKG was later given, showing sinus bradycardia with no ischemic changes. (Id.) Plaintiff was admitted for observation, and then left against medical advice. (Id. at 560-61, 923.)

He returned, however, the next day. (Id. at 929-35.) His pain was primarily in the epigastric region and lower substernal area. (Id. at 929.) It did not radiate, but was a ten. (Id.) He had a normal EKG and negative lab work, urine drug screen, and urinalysis. (Id. at 929, 932-35.) He was given Lidocaine, Maalox, Demerol, and Phenergan and discharged home with prescriptions for Zantac and with instructions to also take over-the-counter Maalox and to see his primary care physician in one week. (Id. at 930-31.)

Plaintiff was seen in July at the emergency room of Van Wert County Hospital for complaints of pain in his left eye after being hit in the face with carpet as he was moving it. (Id. at 504-11.) He was diagnosed with an acute corneal abrasion to his left eye, treated with eye drops, and discharged with a prescription for Vicodin (a combination of acetaminophen and hydrocodone). (Id. at 507.)

In January 2007, Plaintiff was seen at the PCH emergency room for complaints of left shoulder pain after being struck with a beam the night before. (Id. at 795, 936-38.) He was tender over the upper and posterior portion of the shoulder and held his left arm against his chest. (Id. at 936.) X-rays taken of Plaintiff's left shoulder were negative. (Id. at 795, 938.) X-rays taken of his cervical spine showed degenerative changes. (Id. at 795.) He was diagnosed with a contusion of the left shoulder; given prescriptions for Toradol, Aleve (a NSAID), and Darvocet[9]; and told to alternate the application of ice and heat to the shoulder and to return in four days. (Id. at 936-37.) Plaintiff did return, reporting that the Darvocet was not working. (Id. at 939-41.) He was not taking the Aleve, as he had been instructed. (Id. at 939.) He had a weak grip in his left hand and described some numbness and tingling in the fingers. (Id.) A magnetic resonance imaging (MRI) of the shoulder was scheduled. (Id.) If positive, Plaintiff was to be referred to an orthopedic doctor. (Id.) His diagnosis was left brachial neuritis and contusion of the left shoulder. (Id. at 940.)

The MRI, taken the next day, revealed arthritic changes of the acromioclavicular (AC) joint with capsular hypertrophy and inflammatory edema infiltrating the bony structures about the joint margins and rotator cuff tendonitis with possible subtle partial thickness intrasubstance tear supraspinatous. (Id. at 942.)

Plaintiff was admitted on March 14 to Defiance Regional Medical Center (DRMC) after going to the emergency room with complaints of increasing depression and passive suicidal thoughts. (Id. at 512-19, 636-48, 708-20, 1062-63.) Lately, he had been drinking until he passed out. (Id. at 515.) He had an eight-year old child and a seventeen-year old daughter. (Id.) On admission, he had "marked psychomotor retardation, " poor eye contact, a monotone and slow speech, a flat affect, an "intensively depressed" mood, and guarded insight and judgment. (Id. at 513.) He was oriented to time, place, and person. (Id.) He could recall past and present events. (Id.) He had no hallucinations or delusions. (Id.) His intelligence seemed average. (Id.) He felt hopeless, worthless, and guilty. (Id.) He had little energy and a poor appetite. He was diagnosed by the admitting psychiatrist, Melchor Mercado, M.D., with bipolar disorder, not otherwise specified, rule out major depressive disorder, alcohol abuse, and rule out substance induced mood disorder. (Id.) His GAF was 40.[10] (Id.) He was started on lithium (an antidepressant) and Lamictal (an anticonvulsant). (Id.) The lithium dosage was later increased. (Id. at 512.) The next day, he was quiet, calm, and had fair eye contact. (Id. at 516.) A recreational therapy assessment listed his hobbies as working on cars and doing carpentry work. (Id. at 1062.) Later in the day, he developed a headache and was given Darvocet. (Id. at 517.) He slept without interruption. (Id. at 518.) On March 16, he requested to be discharged so he could return to his job as a maintenance worker. (Id. at 512.) He was to be followed up at the Maumee Valley Guidance Center; however, this required a Defiance County address and he did not have one. (Id. at 512, 518.) He declined to go to the Paulding County Mental Health Center and could not afford to pay full price at Maumee. (Id. at 518-19.) Consequently, he was discharged without follow-up. (Id. at 519.)

Complaining of abdominal and epigastric pain after taking three Advil the night before, Plaintiff went to the PCH emergency room on May 26. (Id. at 943-47.) He had a full range of motion in his extremities and normal x-rays of the chest and abdomen. (Id. at 944, 947.) He was given Maalox, Lidocaine, and Donnatal (a barbiturate); diagnosed with ...

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