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Price v. Colvin

United States District Court, Eastern District of Missouri, Northern Division

March 24, 2015

LORI T. PRICE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

THOMAS C. MUMMERT, III, UNITED STATES MAGISTRATE JUDGE.

This action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application of Lori T. Price (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 by the written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Plaintiff applied for SSI in August 2010, alleging she was disabled as of July 15, 2009, by bipolar disorder, chronic migraines, attention deficit hyperactivity disorder (ADHD), anxiety disorder, fibromyalgia, and poly-substance dependence. (R.[1] at 157-65, 179.) Her application was denied initially and following a hearing held in June 2012 before Administrative Law Judge (ALJ) Dina R. Loewy. (Id. at 7-21, 46-98, 103-08, 121-34, 147-50.) After reviewing additional evidence, see pages 26 to 27, infra, the Appeals Council denied her request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-4.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and Bob Hammond, a vocational expert (VE), testified at the administrative hearing.

Plaintiff, then forty-four years old, testified that she is 5 feet 6 inches tall, weighs 200 pounds, and is right-handed. (Id. at 53-54.) She is married and has four daughters, ages 22, 19, 17, and 8. (Id. at 54.) Her eight-year old is the only child living with her and is her only child with her current husband. (Id. at 54-55.) They live in a one-story house. (Id. at 55.) She does not drive because her license has been suspended for "[a]t least a couple of years" for back-owed child support. (Id.) She graduated from high school and completed three years of college.[2] (Id. at 56.) She receives Medicaid. (Id.)

Plaintiff last worked in July 2009. (Id.) She was working part-time at a restaurant and lost the job due to her depression. (Id. at 57.) She has lost other jobs because of her depression, which causes her to isolate herself and sleep a lot. (Id. at 57.) She experiences episodes of depression two or three times a month. (Id. at 84.) An episode can last between a few hours to a few days. (Id.)

Plaintiff has a felony conviction for child endangerment resulting from the presence of THC[3] in her youngest daughter's system when born. (Id. at 59-60.) The child is now happy and healthy. (Id. at 60.)

Plaintiff was diagnosed with bipolar disorder approximately two years ago. (Id. at 63-64.) She is currently taking lithium, Depakote, and Seroquel. (Id. at 65.) Plaintiff was hospitalized once for psychiatric reasons. (Id. at 67.) This was for four days in 2005 after she tried to commit suicide. (Id.) On discharge, she was in rehabilitation for thirty days. (Id. at 67-68.) She has been in rehabilitation four times, generally for marijuana. (Id. at 68.) Plaintiff testified that she stopped using marijuana a year and a half ago. (Id.) When questioned about why she was in rehabilitation last July, Plaintiff explained that she used it "a couple of times after she got out." (Id.) She has not used it since her husband threatened to leave her and take their daughter. (Id. at 69.) To ensure her abstinence, she is in counseling. (Id.)

Asked how she spends a typical day, Plaintiff testified that she reads and watches television. (Id. at 71-72.) She cooks and cleans and gets her daughter ready for school. (Id. at 72.) She has to do these chores in spurts with rests between. (Id.)

Plaintiff started having back problems six or seven months earlier. (Id.) There was no precipitating event. (Id.) The epidural injections she has received have provided no relief. (Id. at 74-75.)

Plaintiff was diagnosed with fibromyalgia approximately three years ago. (Id. at 76.) She takes Savella and Neurontin for it; both help. (Id.) She only notices the fibromyalgia when she does not take her medications. (Id.) She has taken Percocet for pain, but it causes nausea. (Id. at 77.) She was diagnosed with migraines when she was 18. (Id.) She takes medication for them. (Id. at 77-78.) She gets migraines when she is under stress, which is often. (Id. at 78.) Her medications also cause side effects of shaking, racing thoughts, and difficulty concentrating. (Id. at 80-81.) Her hyperactivity expresses itself in anger, irritability, and frustration. (Id. at 82.)

Plaintiff smokes a little over a pack of cigarettes a day. (Id. at 85.) She does not often drink alcohol. (Id.)

Plaintiff also takes medication for high blood pressure. (Id. at 86.)

Plaintiff testified that she can walk for a block and back and stand for fifteen to twenty minutes. (Id. at 89.) She has no problem sitting. (Id.) She has difficulty going up stairs. (Id.) She can lift or carry approximately twenty pounds. (Id.)

Mr. Hammond, testifying as a VE without objection, was asked to assume a hypothetical claimant of Plaintiff's age and education who can do light work and occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (Id. at 92, 93.) This claimant is limited to simple, routine tasks; must avoid concentrated exposure to hazardous machinery and unprotected heights; and must never climb ladders, ropes, or scaffolds. (Id. at 93.) He testified that this claimant can perform the work of an usher/ticket taker; an assembler II in the lighting industry; and a hand presser in the laundry industry. (Id. at 94.) If this hypothetical claimant is further restricted to only occasional interaction with the public, co-workers, or supervisors and to only occasional changes in the work setting, she cannot perform the work of an usher/ticket taker but can perform the work of the other two positions. (Id.) If this hypothetical claimant is unable to regularly and consistently engage in sustained work activity for a full eight-hour day, all three positions would be eliminated. (Id. at 95.) If the hypothetical claimant is restricted to sedentary work with the additional limitations earlier described, she can perform the work of a circuit board screener, a polisher/assembler in the eye-wear industry, and a semiconductor bonder. (Id. at 95-96.) If the claimant cannot perform fine manipulation with her hands, the assembly positions would be eliminated at the sedentary level and all but the usher/ticket taker position at the light level would be eliminated. (Id. at 96.)

Mr. Hammond further stated that his testimony was consistent with the Dictionary of Occupational Titles (DOT). (Id. at 95.)

Medical and Other Records Before the ALJ

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

When applying for SSI, [4] Plaintiff completed a Function Report. She described her daily activities as being primarily reading and watching television. (Id. at 187.) She does household chores during the commercials, but has to sit and rest when the show is on. (Id.) She makes sure her daughter, then six years old, wears appropriate clothes and eats well. (Id. at 188.) She tries to feed and water her two dogs every day and let them out several times during the day. (Id.) Her husband and daughter help. (Id.) Even when taking her medications, she wakes up several times a night. (Id.) She does not bathe daily and washes her hair once a week. (Id.) She talks with friends two or three times a week and talks with family members every day. (Id. at 191.) She walks three to four times a week. (Id.) Her impairments adversely affect her abilities to lift, squat, bend, stand, walk, kneel, hear, remember, concentrate, understand, climb stairs, and complete tasks. (Id. at 192.) She cannot lift anything heavier than ten pounds. (Id.) If she walks slowly, she can walk for four blocks before having to stop and rest for approximately fifteen minutes. (Id.) She can follow written instructions well, but has difficulty concentrating for longer than a few minutes. (Id.) Authority figures intimidate her. (Id. at 193.) She does not handle stress or changes in routine well. (Id.)

A friend of Plaintiff who has known her for twenty-three years completed a Function Report on Plaintiff's behalf. (Id. at 206-13.) Her answers were generally consistent with Plaintiff's and emphasized that Plaintiff needed motivation from others to complete any tasks, including personal hygiene tasks. (Id.) Plaintiff's husband also answered some questions about her functioning. (Id. at 229-31.) He reported that she is always sick, can walk "maybe a block, " and can lift ten pounds with one hand and twenty with both. (Id. at 229-30.) The only chores she does are laundry and the dishes. (Id. at 230.)

An earnings report lists earnings for the years 1996 to 2005 and 2007 to 2009. (Id. at 167.) Plaintiff's highest annual earnings were $10, 287, [5] in 2000. (Id.) Her earnings declined after that – $544 in 2007; $5, 758 in 2008; and $3, 557 in 2009. (Id.)

A December 2011 letter from the U.S. Department of Education informed Plaintiff that her obligation to repay her student loan was discharged based on her "total and permanent disability." (Id. at 237-40.)

The medical records before the ALJ are summarized below in chronological order, beginning when Plaintiff was seen by Janet P. Myers, D.O., in June 2009 for her complaints of migraine headaches. (Id. at 364.) Plaintiff reported that she had been diagnosed with "'tension migraines'" when she was eighteen years old and that her current migraine had started a few days earlier. (Id.) She further reported that the only medication that worked was Fioricet, [6] prescribed for her by Dr. O'Connor, but she had run out of it. (Id.) Dr. Myers diagnosed Plaintiff with cephalgia, "probably neck induced with migraine features, " and refilled her prescription for Fioricet, cautioning Plaintiff that she would not refill it again due to its dependence potential. (Id.) Dr. Myers offered to see Plaintiff for osteopathic manipulative therapy to help decrease the frequency and severity of her headaches. (Id.)

In September, Plaintiff consulted Casey Jennings, M.D., at Pike Medical Clinic (PMC) about her neck and shoulder pain. (Id. at 293.) The pain had lasted for the past ten to fifteen years, but was getting worse. (Id.) Also, she had had a cough for the past five days which was preventing her from sleeping and tension headaches that occasionally occurred several times a week. (Id.) She reported that she had tried a friend's Savella (used in the treatment of fibromyalgia), and it had helped. (Id.) She was diagnosed with sinusitis/bronchitis; chronic neck and shoulder pain possibly due to fibromyalgia; and headaches. (Id.) Her prescriptions included Cipro (an antibiotic), prednisone, Phenergan with codeine (used to treat allergy symptoms), Fioricet, Klonopin (for the treatment of anxiety), Savella, and Zanaflex (a muscle relaxer). (Id.) She was to return in three months. (Id.)

When seeing Dr. Jennings in November, Plaintiff wanted to discuss her husband's hepatitis C. (Id. at 292.) Also, she was applying for SSI and wanted to know what diagnoses to use. (Id.) Plaintiff was diagnosed with bronchitis, fibromyalgia, and hepatitis C exposure. (Id.)

Plaintiff returned to Dr. Jennings the next month to talk about her SSI application and her worsening shoulder and neck pain. (Id. at 290-91.) Also, she had pain in the right side of her face and a headache every afternoon in that area. (Id. at 291.) She requested that he dictate a general letter stating that she cannot work at all. (Id.) He declined, but told Plaintiff to get a form with specific questions that could be answered. (Id.) Plaintiff was diagnosed with sinusitis and fibromyalgia and prescribed an antibiotic, Amoxil. (Id.)

Plaintiff was seen by a provider[7] at PMC in January 2010 for her complaints of sinus pressure, headaches, runny nose, and bilateral ear pain. (Id. at 289.) She was diagnosed with acute sinusitis and prescribed an antibiotic. (Id.) Plaintiff returned to Dr. Jennings in March for treatment of a sore throat, painful ears, fatigue, and lack of appetite. (Id. at 287-88.) Her diagnoses was unchanged. (Id. at 287.) In April, she was seen at PMC for complaints of a severe headache and nausea. (Id. at 286.)

Plaintiff next saw Dr. Jennings on July 2, complaining of bilateral ear pain, lightheadedness when standing up, fatigue, and worsening migraines. (Id. at 284.) It was noted that Plaintiff "over exaggerated multi[iple] tender points, " making it difficult for him to do an examination. (Id.) She was to have lab work done to investigate her complaints of fatigue, lightheadedness, and dizziness and was given a refill of the Fioricet for her migraines. (Id.)

Plaintiff went to the emergency room at Hannibal Regional Hospital on July 14 with complaints of worsening depression during the past two weeks due to the stress of "dealing with the custody of her youngest child." (Id. at 374-91.) Her relevant medical history included depression, fibromyalgia, migraines, and hypertension. (Id. at 375.) She did not drink alcohol, but did occasionally smoke marijuana. (Id.) She did not have chronic pain. (Id. at 384.) On examination, Plaintiff was alert and oriented to person, place, and time and had a normal mood and affect. (Id. at 377.) She thought about suicide, but thoughts of her daughter prevented her from doing it. (Id. at 34, 377.) A urine drug screen was positive for barbiturates and marijuana. (Id. at 379.) Her potassium levels were critically low; consequently, Plaintiff was given potassium chloride, K-Dur. (Id. at 380, 389.) She was admitted, diagnosed with depressive disorder, treated, and discharged home within twenty-four hours after she reported that she was feeling "slightly better, " was ready to go home, and would follow up with another provider for drug and psychological treatment. (Id. at 383.)

On July 19, Plaintiff was screened at Preferred Family Healthcare (PFH) for a residential treatment program. (Id. at 255-70.) Her treatment history included four residential treatments in 2005, two of which she did not complete, and one hospitalization. (Id. at 266.) Her psychiatric status included, both in the past thirty days and during her lifetime, serious depression, serious anxiety or tension, comprehension or memory problems, serious suicidal thoughts, and medications for psychological or emotional problems. (Id. at 265.) Her drug and alcohol use included, in the past thirty days, twelve days of use of barbiturates, five days of use of cannabis, and twelve days of use of other opiates/analgesics. (Id. at 261.) During her lifetime, she had used alcohol to a point of intoxication for twenty-five years, cannabis for twenty-two years, barbiturates for twenty-four years, and other opiates/analgesics for twenty-four years. (Id.) Her major substance abuse problem was cannabis. (Id.) She had voluntarily abstained from using it for thirty-six months; this abstinence had ended at least eight years earlier. (Id.) Plaintiff's current problems included substance abuse, family members and friends, employment and financial, violence and aggression, suicide attempts, health, depression, mood swings, eating problems, anxiety, sleep, sexual, and anger. (Id. at 257.) Her current medications included trazodone (an anti-depressant), Paxil (an anti-depressant), Klonopin, Zanaflex, Savella, and metoprolol (for high blood pressure). (Id.) Randall R. Bacon, M.S., L.P.C., [8] diagnosed Plaintiff with opioid dependence; agoraphobia without a history of panic disorder; major depressive disorder, recurrent, severe, without psychotic features; ADHD; and cannabis dependence. (Id. at 269.) Her current Global Assessment of Functioning (GAF) was 48.[9] (Id. at 270.)

Plaintiff had a counseling session with Robert Parsonson, D.O., on July 21. (Id. at 275-76.) Her complaints included multiple somatic complaints, depression, anxiety, racing thoughts, irritability, and insomnia. (Id. at 275.) On the checklist format for the session notes, Dr. Parsonson circled "groomed" for appearance, "cooperative" for attitude, "pressured" for speech, and "organized" for thought. (Id.) He wrote "poor" for impulse control and judgment and "labile" for mood. (Id.) The list of symptoms under the headings for depression and anxiety were not checked. (Id. at 276.) He diagnosed Plaintiff with bipolar I disorder, mixed, and polysubstance abuse. (Id.) He prescribed Paxil, trazodone, and lithium (used to treat manic depression). (Id.) Plaintiff was to return in two weeks. (Id.)

When seen by Dr. Parsonson on August 5, Plaintiff's only concern was constipation. (Id. at 273-74.) Her attitude, appearance, and thought were as before. (Id. at 273.) Her mood was euthymic, her speech was normal, and her judgment and impulse control were fair. (Id.) Her diagnosis was depression with anxiety. (Id. at 274.) Her medications were renewed; however, the dosage of lithium was reduced. (Id.) Mellaril, an antipsychotic, was also prescribed. (Id.)

On August 13, Plaintiff was described by Dr. Parsonson as "ok." (Id. at 271-72.) The only changes to the checklist were a notation above insight, impulse control, and judgment that those abilities were, according to her history, poor. (Id. at 271.) Her diagnosis was major depressive disorder with anxiety. (Id. at 272.) Her prescriptions were refilled. (Id.) The session lasted half the time as the first two. (Id. at 271.)

Having successfully completed the residential program, Plaintiff was discharged on August 19. (Id. at 279-81.)

The next day, Plaintiff went to PMC to discuss her fibromyalgia and headaches. (Id. at 283.) Her prescriptions for Paxil, trazodone, lithium, and Neurontin (used in the ...


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