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Hewitt v. Colvin

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

March 20, 2015

ERIC M. HEWITT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

ABBIE CRITES-LEONI, Magistrate Judge.

This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision denying Plaintiff Eric M. Hewitt's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and application for supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). Because the Commissioner's final decision is supported by substantial evidence on the record as a whole, it is affirmed.

I. Procedural History

On June 30, 2010, Plaintiff Eric M. Hewitt applied for disability insurance benefits (DIB) and supplemental security income (SSI), claiming he became disabled on December 29, 2009, because of anxiety, severe attention deficit hyperactivity disorder (ADHD), anger problems, and learning disability. (Tr. 137-43, 165.) Upon initial consideration, the Social Security Administration denied Hewitt's claims for benefits. (Tr. 74-75, 78-83.) At Hewitt's request, a hearing was held before an administrative law judge (ALJ) on April 23, 2012, at which Hewitt and a vocational expert testified. (Tr. 25-73.) On August 22, 2012, the ALJ issued a decision denying Hewitt's claims for benefits, finding Hewitt able to perform his past relevant work as a trash collector, and alternatively finding that Hewitt could perform other work as it exists in significant numbers in the national economy. (Tr. 8-20.) On September 27, 2013, the Appeals Council denied Hewitt's request to review the ALJ's decision. (Tr. 1-5.) The ALJ's decision is thus the final decision of the Commissioner. 42 U.S.C. § 405(g).

In the instant action for judicial review, Hewitt raises numerous claims arguing that the ALJ's decision is not supported by substantial evidence on the record as a whole. Hewitt first claims that the ALJ erred by failing to consider his bipolar disorder and borderline intellectual functioning as severe impairments, and further erred in her evaluation of the evidence when finding Hewitt's mental impairments not to meet a listed impairment. Hewitt also challenges the ALJ's determination of his residual functional capacity (RFC), arguing specifically that the ALJ erred in her credibility determination, failed to accord controlling weight to the opinion of his treating psychiatrist, and failed to provide detailed findings to support her RFC assessment. Finally, Hewitt contends that the ALJ erred in her determination that he can perform his past relevant work as a trash collector. Hewitt requests that the final decision be reversed and that he be awarded benefits or that the matter be remanded for further consideration. For the reasons that follow, the ALJ did not err in her decision.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the hearing on April 23, 2012, Hewitt testified in response to questions posed by the ALJ and counsel.

At the time of the hearing, Hewitt was twenty-five years of age. Hewitt is married and has two children, ages one and five or six years old. Hewitt lives in an apartment with his wife and one-year-old child. (Tr. 35-36.) Hewitt went to school through the ninth grade. He has not earned his GED. Hewitt can read somewhat. He has no health insurance. (Tr. 37.)

Hewitt testified that he worked for two weeks in 2004 as a trash collector. (Tr. 41-42.) Hewitt testified that this job ended because it was only temporary work. Hewitt also performed temporary work in a factory in 2006. (Tr. 62-63.) From August 2007 to December 2009, Hewitt worked as a member of a crew at a McDonald's. Hewitt testified that he was fired from this job after he became angry and pulled a knife on a coworker. (Tr. 37-38, 179.) Hewitt testified that he also argued with his manager, other coworkers, and customers when he worked at McDonald's. (Tr. 63.) Hewitt testified that he has not looked for work since being fired from McDonald's, because it is difficult for him to get around given that he does not drive and his wife works. (Tr. 40.)

Hewitt testified that he is unable to work because of severe ADHD, which makes it difficult for him to learn things and causes him to always fidget. Hewitt testified that he cannot sit or stand for long periods of time because of his need to move around. (Tr. 49-50.) Hewitt testified that his ADHD makes it difficult for him to focus and to complete tasks. Hewitt testified that he cannot follow the plot of a television show. Hewitt has difficulty reading, because he cannot sit still long enough and does not understand some of the words. (Tr. 55-56.)

Hewitt testified that he also has bipolar disorder and experiences mood swings throughout the day. Hewitt also has "really bad anger" and throws and breaks things when he gets mad. (Tr. 49-50, 57.) Hewitt has "bad days" three or four days a week during which time he sits around, stares at the walls, and ignores everyone. Hewitt lies down for a couple of hours on these days and does not leave the house. (Tr. 58-59.) Hewitt testified that he is unable to care for his one-yearold child while his wife works because of his mental instability. (Tr. 40.)

Hewitt has been seeing a psychiatrist for a couple of years and takes medication for his conditions. The medication is provided by the health center. Hewitt testified that he takes Methylphenidate (MPH) for ADHD, which helps his impairment, but does not control it. This medication causes no side effects. Hewitt testified that he takes Saphris for bipolar disorder and anger issues, which helps him sleep at night, but causes him to feel groggy in the morning. He no longer takes Seroquel for the conditions. Hewitt testified that his psychiatrist continually adjusts his medication. (Tr. 46-52.) Hewitt also testified that he has been seeing a counselor for about three months and sees him every two weeks for counseling. (Tr. 53-54.)

As to his daily activities, Hewitt testified that he gets up around 10:00 or 11:00 a.m., watches a little television, plays a video game, and helps clean the house a bit. (Tr. 45.) Hewitt testified that he sometimes has interrupted sleep because of restless legs. (Tr. 61.) Hewitt does not drive and has never driven. (Tr. 36.) Hewitt attempted six times to take the test to obtain his permit. (Tr. 56.) Hewitt testified that he does not leave the house unless he is with his wife, because he does not want to get in trouble or do something he is not supposed to do. Hewitt testified that he is not bothered by being in a store, but he does not go shopping because he forgets things. (Tr. 59-61.)

B. Testimony of Vocational Expert

Barbara Meyers, a vocational expert, testified at the hearing in response to questions posed by the ALJ and counsel.

Ms. Meyers characterized Hewitt's past employment as a fast food worker as unskilled and light, medium as performed; and as a trash collector as unskilled and medium. (Tr. 67.)

The ALJ asked Ms. Meyers to assume an individual of Hewitt's age and education and who has no exertional limitations. The ALJ asked Ms. Meyers to further assume the individual to be "limited to simple, routine tasks; only occasional changes in the working setting; only occasional interaction with public or co-workers; and only occasional supervision[.]" (Tr. 67-68.) Ms. Meyers testified that such a person could perform Hewitt's past work as a trash collector as well as other work as a laundry worker, of which 2, 200 such jobs exist in the State of Missouri and 100, 000 nationally; cleaner, of which 1, 400 such jobs exist in the State of Missouri and 69, 000 nationally; and kitchen helper, of which 15, 000 such jobs exist in the State of Missouri and 760, 000 nationally. (Tr. 68-69.)

III. Medical and Education Records Before the ALJ

Hewitt underwent an ADHD psychological assessment in May 1994 and was provisionally diagnosed with ADHD. Dysthymia, anxiety disorder, and oppositional defiant disorder were to be ruled out. Hewitt was seven years old and in the first grade. (Tr. 231-34.)

Hewitt attended Columbia Public Schools during his middle and high school years. He flunked nearly all of his classes in sixth and seventh grade. In May 2000, while in seventh grade, Hewitt obtained the following IQ scores as measured by the Wechsler Intelligence Scale for Children - Third Edition (WISC-III): verbal-76, performance-79, full scale-76, which placed him in the borderline range of intellectual functioning. Social/Emotional/Behavioral scales completed by Hewitt's teachers consistently placed Hewitt in the "clinically significant" or "at risk" range with multiple reports of threatening others, throwing tantrums, making statements against self, and being verbally and physically aggressive toward others. It was noted that Hewitt's behavior improved somewhat with medication, and specifically, MPH and Clonidine. In eighth grade, Hewitt earned grades ranging from an A- in Physical Science to a D- in Careers. (Tr. 223, 253, 255-57, 268-83.)

Columbia Public Schools reviewed Hewitt's Individual Education Plan (IEP) in May 2002. Hewitt was fifteen years of age and in the ninth grade. It was noted that results from the WISC-III administered on May 4, 2002, showed Hewitt to be functioning in the borderline range of intellectual functioning. Hewitt was noted to have been diagnosed with ADHD and to be in self-contained classrooms for all subjects except Math. During the second term of his ninth grade year, Hewitt earned a C- in Reading and D's and F's in all of his other classes. Hewitt frequently argued with his peers and needed prompting to act appropriately with them. Plans were made for Hewitt's transition into high school. (Tr. 222, 235-47.)

Hewitt withdrew from school in October 2002 because of "lack of interest." He was in the tenth grade. At the time of his withdrawal, Hewitt was earning D's and F's in all of his classes. (Tr. 221-22.)

Between November 1996 and October 2002, Hewitt was suspended from school on thirty-two occasions for harassment/intimidation, insubordination, assault third degree, truancy, vandalism, fighting, classroom disruption, sexual misconduct/harassment, and other unspecified offenses. (Tr. 224-28.)

After October 2002, the record of this case is silent until June 14, 2010, when Hewitt underwent a psychiatric evaluation at Mark Twain Behavioral Health (MTBH). Hewitt was twenty-three years of age. Hewitt reported to APRN Reghnald Westhoff that he was having a lot of problems with anger and breaks things when he is angry. Hewitt reported having had problems with severe ADHD for years and that he has difficulty calming himself down. Hewitt denied any problems with depression. Hewitt reported that he enjoyed building model cars. Mr. Westhoff noted Hewitt not to currently be taking any medications. Hewitt reported that he took Ritalin in the past and that the medication was very helpful in calming him down and helping him stay focused and control his anger. Mental status examination showed Hewitt to be oriented times three. Hewitt was noted to be casually dressed, and his grooming was clean and neat. Hewitt's speech was clear and coherent. His mood was labile and his affect anxious. Mr. Westhoff noted Hewitt's memory to be variable. Hewitt's concentration and attention were noted to be poor. Hewitt denied any visual or auditory hallucinations and denied any suicidal or homicidal thinking. Mr. Westhoff determined Hewitt's intelligence to be below average to average. Hewitt's motivation was noted to be fair and his insight fair to poor. Hewitt was given provisional diagnoses of generalized anxiety disorder (GAD) and ADHD-combined type. Mr. Westhoff assigned a Global Assessment of Functioning (GAF) score of 45, indicating serious symptoms.[1] Hewitt was given samples of Strattera and was prescribed Trazodone for sleep. He was instructed to follow up in one month. (Tr. 336-38.)

Hewitt returned to MTBH on August 30, 2010, and reported that he was not getting along with his wife. Hewitt reported that Strattera caused nausea, but he continued to want treatment for ADHD. Hewitt reported feeling "wired." Hewitt also reported that he was doing odd jobs. Hewitt's sleep and appetite were noted to be good. No aggression was noted. The efficacy of Hewitt's medication was noted to be fair. Mr. Westhoff continued Hewitt in his diagnoses of GAD and ADHD and assigned a GAF score of 55, indicating moderate symptoms. Antisocial personality disorder was to be ruled out. Hewitt was instructed to restart Strattera and to follow up with Dr. Goldman in two months. (Tr. 340.)[2]

On September 16, 2010, Michael Stacy, Ph.D., a psychological consultant with disability determinations, completed a Psychiatric Review Technique Form in which he opined that Hewitt's ADHD and GAD caused Hewitt to experience mild limitations in activities of daily living; moderate limitations in maintaining social functioning and in maintaining concentration, persistence, or pace; and resulted in no repeated episodes of decompensation of extended duration. (Tr. 341-52.)

In a Mental RFC Assessment completed that same date, Dr. Stacy opined that Hewitt was moderately limited in his ability to understand and remember detailed instructions, but otherwise was not significantly limited in the domain of Understanding and Memory. In the domain of Sustained Concentration and Persistence, Dr. Stacy opined that Hewitt was moderately limited in his ability to carry out detailed instructions and maintain attention and concentration for extended periods, but otherwise was not significantly limited. In the domain of Social Interaction, Dr. Stacy opined that Hewitt was moderately limited in his ability to interact appropriately with the general public and to accept instructions and respond appropriately to criticism from supervisors. Dr. Stacy expressed no opinion as to Hewitt's ability to get along with coworkers or peers. Dr. Stacy further opined that Hewitt was not significantly limited in his ability to ask simple questions or request assistance, or in his ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. In the domain of Adaptation, Dr. Stacy opined that Hewitt was moderately limited in his ability to respond appropriately to changes in the work setting, but otherwise was not significantly limited. Dr. Stacy concluded that Hewitt had the ability to understand and remember simple instructions; could carry out simple work instructions, maintain adequate attendance, and sustain an ordinary work routine without special supervision; could interact adequately with peers and supervisors in a setting with limited social demands; and could adapt to most usual changes common to a competitive work setting. (Tr. 353-55.)

Hewitt visited Dr. David Goldman at MTBH on October 25, 2010, and reported that Strattera did not help his condition in that he continued to feel "hyper" and "bounc[e] off the walls." Hewitt reported continued difficulty falling asleep and that he could not afford the Trazodone that was prescribed for the problem. Hewitt requested that MPH and Clonidine be prescribed, given that they were effective for him in the past. Hewitt reported his appetite to be good. No side effects from his medication were noted. Dr. Goldman determined Hewitt to have had minimal response to medication. Hewitt was noted not to exhibit any aggression. Mental status examination was normal in all respects, with Hewitt noted to exhibit a normal appearance as well as normal behavior, affect, thought processes, insight, judgment, cognition, and impulse control. Dr. Goldman diagnosed Hewitt with GAD and ADHD-combined type. Hewitt was instructed to taper off of Strattera for a period of nine days, after which MPH and Clonidine would be started. (Tr. 370.)

Four weeks later, on November 22, 2010, Hewitt reported to Dr. Goldman that he had filled his medication that same date. Hewitt reported his sleep to be good. Mental status examination was unchanged from the previous visit. Hewitt was continued in his diagnoses and was instructed to continue with his current medication regimen of MPH and Clonidine, which he had just begun. (Tr. 369.)

On January 10, 2011, Hewitt reported to Dr. Goldman that he did not think the medication was working. Hewitt also reported concerns regarding restless leg syndrome. Dr. Goldman continued in his diagnoses of GAD and ADHD and instructed Hewitt to increase his dosage of MPH. (Tr. 368.) On March 10, Hewitt reported that he was doing better, and Dr. Goldman noted that Hewitt had a good response to his medication. Mental status examination remained normal in all respects. Hewitt was continued in his diagnoses and on his current medication regimen. (Tr. 367.)

Hewitt returned to Dr. Goldman on July 26, 2011, and reported that he ran out of his medication and did not fill his last prescriptions, because he could not afford them. Hewitt reported having mood swings, which his wife confirmed. Hewitt questioned whether he had bipolar disorder. Mental status examination remained normal in all respects. Hewitt was continued on ...


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