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McAlister v. Colvin

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

March 18, 2015

REBECCA D. McALISTER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, District Judge.

This is an action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for judicial review of the Commissioner's final decision denying Rebecca D. McAlister's application for supplemental security income (SSI) under Title XVI of the Social Security Act. 42 U.S.C. §§ 1381 et seq. McAlister claims she is disabled due to a combination of impairments including a learning disability, migraines, bipolar disorder, depression, sleep apnea, fatigue and back pain. After a hearing, the Administrative Law Judge concluded that McAlister is not disabled. Because I conclude that the ALJ's decision is supported by substantial evidence in the record as a whole, I will affirm the decision.

I. Procedural History

McAlister filed her application on February 16, 2011. She alleged a disability onset date of October 1, 2010. When her application was denied, she requested a hearing before an administrative law judge. She then appeared at an administrative hearing on July 11, 2012, where she was represented by counsel. McAlister and a vocational expert testified at the hearing.

After the hearing, the ALJ denied McAlister's application in a decision dated November 9, 2012, and McAlister appealed to the Appeals Council. On December 13, 2013, the Council denied her request for review. The ALJ's decision thereby became the final decision of the Commissioner. Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008).

McAlister now appeals to this court. She argues that: (1) the ALJ erred in not according controlling weight to the opinion of her treating physician Dr. David Goldman; (2) the ALJ erred in finding that her mental impairments do not meet a listing under sections 12.04 or 12.06 of 20 C.F.R. pt. 404, supt. P, app. 1; and (3) the ALJ's credibility determination is "patently erroneous." McAlister claims these mistakes led to a decision by the ALJ that was not supported by substantial evidence in the record and should be reversed or remanded for further evaluation.

II. Evidence before the Administrative Law Judge

Prior Disability Decision

In addition to the disability application currently at issue, McAlister previously filed applications for disability insurance benefits and supplemental security income on May 9, 2005. These claims were dismissed by an ALJ in an Order of Dismissal dated August 31, 2007, due to McAlister's failure to appear at the scheduled hearing.

Function Reports

In support of her application, McAlister completed a function report in February 2011. She reported that she lived with her boyfriend, Ron Bruce. She wrote that her daily activities consisted of watching television, taking naps, cooking her own meals, bathing, and going to the store or to a family member's house for a visit. She reported that she feeds the pet cat and changes its litter box. She wrote that she has a sleep disorder due to her conditions but has no problem with personal care and needs no reminders to take care of personal needs or grooming. She wrote that she does need reminders to take medicine. McAlister checked boxes indicating that she is able to do laundry, mop, sweep, clean dishes and occasionally help in the yard. She reported that she goes outside daily and is able to go out alone, and when she goes out she walks, drives a car, or rides in a car. She wrote that she goes shopping once a month for about an hour and is able to pay bills and count change.

Socially, McAlister reported that she regularly goes to her family members' homes, and she spends time with others on the phone, on the computer, and in person. Since the onset of her condition, McAlister wrote that she forgets things, doesn't understand things very well, and has occasional problems following instructions, particularly spoken instructions. She also has difficulty getting along with other people, particularly her family, and since the onset of her condition she stays more to herself. She reported that she has no problem with authority figures and does what she is told to do but was fired from her job at McDonald's for not getting along with others. She reported that she has difficulty handling stress and changes in routine. In a Missouri supplemental questionnaire, McAlister noted that she has never had a valid driver's license because she could not pass the test. (Transcript at 157-167).

McAlister's boyfriend, Ron Bruce, completed a third party function report for her in February 2011 that largely coincides with hers. He wrote that he had known McAlister for 16 years and her daily activities include watching television, playing computer games and talking to people on the computer. She also helps him care for their cat. He reported that since the onset of her condition, McAlister has trouble understanding instructions, gets upset over small things, and has a lack of motivation. She needs to be reminded to take her medicine but is able to prepare meals by herself and can do household chores like cleaning and laundry. He reported that she goes outside "all the time, " can go out alone, walk, drive a car, and ride in a car. She shops once a month for an hour, can count change and can pay bills "as long as she knows how much to pay."

He wrote that since the onset of her condition McAlister tends to lose money more or forget where she put it. For social activities, Bruce wrote that she spends time with others on the computer and phone and regularly goes to family members' houses, although she has trouble getting along with them. Since the onset of her condition, Bruce reported that McAlister has become less social, she has trouble understanding and completing tasks, gets distracted easily, and has trouble remembering things. He wrote that McAlister does not follow written instructions very well "if you don't show her and explain" and spoken instructions must be repeated to her often. Bruce reported that while McAlister has no problems with authority figures, she was fired for not getting along with others at her job. He wrote that under stress she will cry "or go hide" and if there are changes to her routine "she will shut down and not talk like she is in a daze." (Tr. 168-175).

High School Transcript

McAlister's high school transcript from South Shelby High School for the 1998-99 school year indicates she completed 6.5 of 7.0 credits attempted and had a GPA of 1.64 for the year. (Tr. 176).

Medical Records

General

From July 12 to September 20, 2010, there are outpatient discharge notes from McAlister's regular prenatal visits to Hannibal Regional Hospital. (Tr. 249-259).

On October 4, 2010, McAlister was seen by Dr. Aziz Doumit at the Hannibal Regional Hospital emergency room for vaginal bleeding two days after giving birth to her son. Dr. Doumit's report states that McAlister is "a well appearing, well-nourished individual" whose hygiene is good and who is dressed to season. The report notes that her mood and manner are appropriate. (Tr. 228-244)

On November 20, 2010, McAlister presented at the Hannibal Regional Hospital complaining of an insect bite. The hospital notes indicate that she did not report feeling sad, anxious, overwhelmed, or helpless. It describes her affect as calm and appropriate. (Tr. 222-27).

Migraines

Once in May and twice in July 2010, McAlister presented at Hannibal Regional Hospital complaining of a migraine headache. Twice she was given intravenous Phenergen and discharged. Once, she was given intravenous Compazine and discharged. During her second July visit, the hospital notes state McAlister reported several times that her headaches may have developed "secondary to multiple verbal disputes with her significant other." (Tr. 260-68, 270-292).

Mental Health History

McAlister was seen by nurse practitioner Mary Chapel at the Hannibal Clinic on August 3, 2010. She complained of a one-week history of frequent crying and mood swings. The report notes McAlister stated she had been diagnosed with bipolar and placed on Carbatrol three years previously but she had not taken any of the medication for "some time." (Tr. 671).

On September 3, McAlister was seen at the Community Health Center for complaints that she was crying all the time. The report from this visit notes that she is pregnant; another note states that she was told to return after the birth of her child. (Tr. 218-219). On October 26, 2010, McAlister was again seen at the Community Health Center. The clinic report from the visit indicates McAlister was on medication for her migraines. Her chief complaint is listed as "needs to get back on med." At this visit she was referred to counseling and prescribed Depakote for bipolar disorder. Her affect, mood and memory are listed as normal. (Tr. 217).

On March 16, 2011, clinical psychologist Dr. Frank Froman provided McAlister with a Mental Status Examination at the request of Disability Determinations of Jefferson City, Missouri. His report indicates he spent 45 minutes with McAlister, and she was "casually and neatly attired and of excellent hygiene." Froman reported that McAlister was in special education throughout school and has completed the eighth grade. When she was in ninth grade, because of the severity of her learning problems, the principal said it would be better to drop out because her needs were taking too much of the teacher's time. Froman's report indicates McAlister complained of migraines and sleeping problems. She told him she takes Trazodone to sleep, ibuprofen for pain, hydroxyzine, and Depakote for bipolar disorder.

Froman noted that McAlister

... presented in a slightly anxious and somewhat odd fashion. She had the characteristic stare of one who was slightly schizoidal. Her ability to relate was just fair. She was nervous but presented with clear speech. I often had to clarify questions for her, since things had to be presented quite concretely.

Froman reported that McAlister socializes minimally, does not have a drivers' license and for hobbies she plays on the computer and walks in the park with her boyfriend. He further reported that she could name no current presidents except Clinton and knew no large cities except Quincy and Chicago. She incorrectly added 9 plus 6, could not multiply, subtract or perform serial 7s.

Froman noted that McAlister alleged she was given Ritalin when she was younger for ADHD and has never been able to focus. She reported suffering episodically from down moods during which she can be "nasty and mean spirited." Her medication does not fully alleviate her down moods. Froman noted that without prior documentation it was unclear as to whether McAlister still suffers from a true bipolar disorder.

In his report, Froman concluded that McAlister has low borderline to high mentally retarded intellectual functions; functional illiteracy; a history of migraines; moderately severe psychological issues and a GAF of 50. He reported:

Rebecca appears to function at a fairly slow rate, and it is doubtful that she would be able to perform one or two step assemblies at or even near a competitive rate. Her ability to relate effectively to coworkers and supervisors is limited by considerable lack of confidence, distrust with others, and a sense of alienation and distance. In addition, it appears that she has few, if any, executive skills. She also appears to be ill formed as a person, with a very weakened character structure and an almost non-existent self concept.
She is not able to understand any but the most simple and straight forward oral instructions. She is unable to read, unable to manage benefits, and appears unlikely to be able to withstand the stress associated with customary employment until such time as she might be "work hardened, " and in a developmental training program that would allow her to learn competitive skills, and ultimately "get on her feet."
(Tr. 293-96).

After Froman's examination, Margaret Sullivan, PhD, completed a Psychiatric Review Technique for McAlister on April 6, 2011. She concluded that McAlister suffers from medically determinable impairments of ADHD and borderline cognition, as well as bipolar disorder, but the impairments do not precisely satisfy the diagnostic criteria listed on the form. She reported that these impairments cause a mild restriction in the activities of daily living, moderate difficulties in maintaining social function and concentration, persistence or pace, but no repeated episodes of decompensation. In her written notes, Sullivan reported that notes from McAlister's ER visits in 2010 show no depression or anxiety, and report normal mood, affect and mentation. Sullivan noted that at a November 20, 2010 visit to the ER for an insect bite, McAlister denied feeling sad or anxious, over-whelmed and/or hopeless, and mental status showed her affect was calm and appropriate. She noted McAlister has a "significant legal history with incarceration and probation." She went on to summarize much of Dr. Froman's report. Finally, she noted that McAlister's mental status examination in the ER showed her function was not as impaired as her clinical mental status examination indicated. Sullivan noted that in the past, McAlister has been successful at minimally skilled tasks in an environment that restricts her social contact. (Tr. 297-307).

On November 21, 2011, an initial psychosocial/clinical assessment for the Missouri Department of Mental Health, Division of Comprehensive Psychiatric Services was completed by Emilee Hill, MEC, LPC, RASAC II. The report states McAlister was referred to the Community Psychiatric Rehabilitation Program (CPRP) by Mark Twain Behavioral Health (MTBH) and is signed by staff members at MTBH, including psychiatrist Dr. David E. Goldman. The report states McAlister presented to her interview with "adequate hygiene." The report notes that McAlister states she has problems with asthma, migraines, sleeping disorder, seizures, blindness in her right eye and scoliosis. She is on multiple medications and has been having seizures, with her most recent one occurring a month prior to the assessment. McAlister stated she experiences seizures once a month. McAlister reported she has trouble sleeping and has problems with anxiety and depressed mood, but denied problems with anger. The report indicates McAlister's interview behavior was cooperative, her flow of thought was normal, and she stated her mood was "good, " which was congruent with her affect. The report notes that her intellect appears slightly below normal, though her insight and judgment appear fair with regard to the importance of her treatment.

The report lists McAlister's diagnoses as bipolar disorder, post-traumatic stress disorder and learning disorder. It also states she has asthma, migraines, seizures, blindness in her right eye, and scoliosis. She has moderate occupational problems, severe economic problems, mild legal problems and moderate problems with daily living skills. It lists her GAF (Axis V) as "[c]urrent 55, past 65." The report states McAlister has a driver's license and that McAlister indicated she enjoys doing crosswords, playing on the computer and reading. She stated she has a lot of friends and listed approximately nine first names. The report notes that McAlister is motivated for treatment and recognizes the importance of treating her symptoms. She carries a medication list with her. (Tr. 332-37).

A Missouri Department of Mental Health Individual Treatment and Rehabilitation Plan was also created for McAlister on November 21, 2011. It recommends her participation in the CPRP and states that she will learn to manage the symptoms of her mental illness by taking medications, following treatment recommendations, developing coping skills and building supportive relationships. The plan states McAlister will see Dr. David Goldman for a psychiatric evaluation and attend psychiatric appointments and other MTBH appointments, and take medications as prescribed. (Tr. 349-352).

From December 2, 2011, to March 30, 2012, the medical records indicate McAlister met regularly with Genia Perry, CSS/MS/CMA, a community support specialist with MTBH. She met with Perry as part of what appears to be a complete and integrated program of counseling and psychiatric services provided to her by MTBH. Perry completed progress notes documenting her meetings with McAlister. Those notes consistently indicate that although McAlister generally responds appropriately to the support provided, her "limited intellectual functioning" interferes with her ability to grasp concepts, identify and discuss issues in her life, and follow through with suitable solutions. Perry reported that McAlister struggles with attaching emotions to the appropriate source. The notes indicate McAlister kept a list of her medications in her purse and was able to properly discuss her medications upon referencing the list. (Tr. 310-329).

It appears that as part of her program with MTBH, McAlister also had several therapy sessions with Janice Winn, MED/PLPC during January, February, and March 2012. Notes from these sessions indicate McAlister, for the most part, was "clean" and able to discuss her concerns and stressors in an appropriate manner. (Tr. 344-48).

The medical records indicate that McAlister began seeing her treating psychiatrist, Dr. David Goldman of MTBH in early 2012. His January 9, 2012 report, from what appears to have been their first meeting, states that McAlister is on various medications including Hydroxyzine, Prochlorperazine, Depakote, Trazodone, Meloxicam, and Carbatrol. Goldman's notes indicate McAlister was polite, cooperative and conversant. She maintained good eye contact and was oriented to person, place, time and situation, but she was unable to name the current president. She could spell "world" backward correctly, with minor hesitation; after five minutes, she recalled three words she was given correctly and in the same order that they were originally presented. She stated her main goal for the appointment was to get back on her medication. Goldman reported his impressions as:

Axis I: Bipolar disorder type I most recent episode mixed, moderate
Axis II: Deferred
Axis III: Seizure disorder; migraine headaches; sleep disorder NOS (insomnia); current GI distress that is being evaluated by her family physician.
Axis IV: Severe
Axis V: 45

He noted that McAlister's Depakote and Trazodone medication doses would be adjusted upward by him, and McAlister would follow-up with him in 3-4 weeks and would continue to follow up with her family practice physician and neurologist. On January 30, 2012, Goldman completed a psychiatric progress note for McAlister. She reported to him that she was doing well, and he continued her current medication regimen of Trazodone and Depakote. Goldman completed another psychiatric progress note on March 19, 2012 in which he reported he was increasing her Depakote level. (Tr. 341-43).

A quarterly review of McAlister's progress was held by MTBH on January 17, 2012. The quarterly review report notes that McAlister has continued to schedule and attend all psychiatric appointments on her own and has not identified or verbalized any difficulties in association with these responsibilities. She has continued to participate in all nursing clinics associated with her psychiatric appointments. She has identified depression and anger as her primary symptoms but denied any recent major concerns in association with anxiety. (Tr. 330-31).

Seizure History

On July 22, 2011 McAlister was seen by the Hannibal Regional Medical Group for complaints of seizures. The group's report notes that she complained of having a seizure on July 20 lasting thirty minutes, accompanied by a loss of awareness, and followed by confusion, drowsiness, headache and weakness. The report states that according to McAlister, she was diagnosed with seizures in 2007 and was sent to Columbia, Missouri for evaluation but failed to make it to her follow-up appointment because her husband would not let her go. She had one seizure during a 2007 pregnancy, was seen by Dr. Hosley and placed on Topamax, which she only took for 30 days. She had not had a seizure since that time. (Tr. 438-39).

Three days later, on July 25, 2011, McAlister presented at Hannibal Regional Hospital for recurrent seizure activity. She reported having had four seizures that day. (Tr. 397-424). McAlister attended a follow-up appointment at Hannibal Regional Medical Group on August 8, 2011 for her complaint of seizures. McAlister stated she had not had a seizure since her last appointment. (Tr. 442-45).

On August 31, 2011, McAlister was seen by neurologist Brett Hosley in consultation for her reported seizures. Dr. Hosley's notes state that the information McAlister gave him during the consultation "differ[ed] from one point in the examination to the next. It also differ[ed] from what previous records indicate." He noted that when he tried to get more details about her seizures she again gave him varying and inconsistent information. According to his report, McAlister claimed she first had seizures in 2006. She told Hosley that she had been having episodes about every two to three weeks since the onset of the seizures, but she also told him, conflictingly, that she had not had any seizures while taking certain medication. Additionally, Hosley's report notes that the emergency department records indicated McAlister said she had not had a seizure for over a year prior to a seizure she had in July 2011. Hosley reported McAlister stated she also has intermittent migraines.

McAlister also told Hosley that she was put on Topamax for seizures right after her first episode in 2006. She was switched to another medicine shortly afterward due to pregnancy but then ran out of that medicine in 2007. Hosley reported that the Hannibal Regional Hospital notes indicated McAlister reported a seizure on July 20, then four seizures on July 25. Hosley's report indicates McAlister told him she had not been taking any of her medicines like she was supposed to and has difficulty taking medicine. She had not taken Depakote for her bipolar disorder for four weeks.

Dr. Hosley reported that McAlister's mental status was within normal limits for her age but she had a "somewhat blunted affect." Dr. Hosley ordered an EEG, an MRI scan of McAlister's brain, started her on Carbatrol and recommended she contact Mark Twain Mental Health for a psychiatric evaluation. (Tr. 683-89).

On September 5, 2011, McAlister was seen at the Hannibal Regional Hospital for complaints of dizziness. It was determined that she was having a reaction to Carbatrol. She was ordered to stop her ...


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