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Smith v. Colvin

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

March 24, 2015

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


ABBIE CRITES-LEONI, Magistrate Judge.

Plaintiff Montana Smith brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and for supplemental security income (SSI) 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). For the reasons that follow, the decision of the Commissioner is affirmed.

I. Procedural History

Plaintiff applied for DIB and SSI on February 15, 2011, claiming that she became disabled on January 1, 2008, because of bipolar disorder, depression, and anxiety. (Tr. 130-33, 134-39, 173.) On initial review and on reconsideration, the Social Security Administration denied plaintiff's claims for benefits. (Tr. 66-69, 70-75, 86-89.) At plaintiff's request, a hearing was held before an administrative law judge (ALJ) on June 11, 2012, at which plaintiff and a vocational expert testified. (Tr. 32-65.) The ALJ issued a decision on July 20, 2012, denying plaintiff's claims for benefits, specifically finding that plaintiff's substance abuse was a contributing factor material to a finding of disability, and that plaintiff would be able to perform work as it exists in significant numbers in the national economy absent such abuse. (Tr. 10-27.) On August 5, 2013, the Appeals Council denied plaintiff's request for review of 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 this action for judicial review, plaintiff claims that the ALJ erred by failing to explain how the evidence supported his conclusion that substance abuse was a contributing factor material to a finding of disability. Plaintiff further claims that the ALJ improperly disregarded evidence relating to her low Global Assessment of Functioning (GAF) scores. Plaintiff requests the Court to remand the matter to the Commissioner for further consideration.

II. Testimonial Evidence Before the ALJ

A. Plaintiff's Testimony

At the hearing on June 11, 2012, plaintiff testified in response to questions posed by the ALJ and counsel.

Plaintiff was twenty-eight years of age at the time of the hearing. She attended school through the eighth grade and subsequently earned her GED. Plaintiff is single and has five children ranging in age from seven to thirteen years. (Tr. 35-36.) Plaintiff was in the process of moving from Arkansas to St. Louis. (Tr. 56-57.) The four younger children were currently staying with their grandmother or godmother in Arkansas, but were going to move to St. Louis at the beginning of the school year to live with plaintiff and her mother. Plaintiff's thirteen-year-old son lived with plaintiff. (Tr. 37-38, 59-60.)

Plaintiff's Work History Report shows that plaintiff worked as a cashier and food preparer at fast food restaurants in 2000 and 2001. In 2001 and 2002, plaintiff worked as a certified nurses' assistant (CNA); and from 2001 to 2003, she worked as a restaurant server. Plaintiff worked as a telemarketer in 2003 and 2004. In 2008, she worked as a hotel housekeeper. (Tr. 187.) Plaintiff testified that she also worked for a temporary agency through which she had other jobs for two or three weeks. Plaintiff testified that she last worked for two weeks in April 2012, but could not do the job because of her nerves. Plaintiff previously lost a job because of panic attacks. (Tr. 44-46, 54.) Plaintiff testified that the reasons she can no longer work, include that: her moods are "off balance"; she cannot be around groups of people, including her family; and her medication sedates her. (Tr. 37.)

Plaintiff testified that she suffers from mood disorders, including anxiety, manic depression, and anger issues, and that she has received treatment for such disorders since she was thirteen years old. (Tr. 38.) Plaintiff testified that treatment helped her depression, but that her anxiety has worsened. (Tr. 49-50.) Plaintiff testified that she had been buying Xanax off the street for about two years, because her prescribed medication did not help her anxiety. Plaintiff recently stopped using Xanax when she went to jail for failure to pay old fines. Plaintiff testified that she was in jail for about fifty days and had just been released a couple of days ago. Plaintiff was off of all of her medications while she was in jail. (Tr. 39, 41-42, 47-48.) Plaintiff testified that she was scheduled to begin a twelveweek therapy program in August and had to participate in the program in order to get back on her medication. Plaintiff testified that without her medication, she was beginning to have suicidal thoughts. (Tr. 48-49, 55.)

Plaintiff also testified to a history of marijuana use. Plaintiff testified that she last used the substance about one and a half years prior and had smoked marijuana about once every two weeks at a friend's house. (Tr. 38-40.) Plaintiff testified that she used marijuana for only about four months. (Tr. 47.) Plaintiff testified that she also previously drank alcohol at bars or clubs. (Tr. 39, 41.)

Plaintiff testified that she was currently on probation after having pled guilty to fraudulent use of a credit card, and that she had to participate in anger management classes as a condition of probation. (Tr. 42-43, 49.)

Plaintiff testified that before moving her things to St. Louis in May 2012, she lived by herself and spent her time in bed, depressed. Plaintiff testified that she only left her house when she started getting little jobs and that, when not working, she would stay in bed, watch television, and write. Plaintiff testified that her cousin would visit her. (Tr. 57-58.) Plaintiff testified that she stopped going to clubs and associating with friends. (Tr. 60.)

B. Vocational Expert Testimony

David Elmore, a vocational rehabilitation specialist, testified at the hearing in response to questions posed by the ALJ and counsel.

Mr. Elmore classified plaintiff's past work as a fast food worker as light to medium and unskilled; as a CNA as medium to heavy and semi-skilled; as a telemarketer as sedentary and semi-skilled; and as an order filler as light and semiskilled. (Tr. 61-62.)

The ALJ asked Mr. Elmore to assume a person plaintiff's age with plaintiff's level of education and work experience, and to further assume the person to have only non-exertional limitations as follows:

[She] can perform unskilled, standardized work involving few if any changes.
This work is simple, routine, and repetitive in nature, with one- or two-step instructions. This work is done alone and not in collaboration with others or in a team. This person requires supervision, which is simple, direct, and concrete.
And this person would have no contact with the general public, but would be able to maintain occasional contact with co-workers and supervisors. Finally, ... this individual would be limited from work involving production quotas, such as assembly line or piece work.

(Tr. 62.) Mr. Elmore testified that such a person could not perform any of plaintiff's past work but could perform work as a cleaner in a hospital or nursing home facility, of which 3, 700 such jobs exist in the State of Arkansas and 420, 000 nationally; and as a cleaner in housekeeping, of which 600 such jobs exist in the State of Arkansas and 400, 000 nationally. (Tr. 62-63.)

The ALJ then asked Mr. Elmore to assume the same individual, but that she would also experience up to three unscheduled absences each month as the result of psychologically-based symptoms. Mr. Elmore testified that no work would be possible for such an individual. (Tr. 63.)

III. Medical Evidence Before the ALJ

On January 25, 2006, plaintiff underwent a psychiatric evaluation at Mid-South Health Systems (MSHS). She reported having depression since her adolescence and that she had been hospitalized twice for depression and suicidal ideas. Plaintiff was not currently suicidal. Plaintiff reported having participated in outpatient treatment and medication therapy, which she stopped because of weight gain. Plaintiff was currently not taking any medication. Plaintiff reported her primary problems to be stress, fatigue, and sleep loss. Mental status examination showed plaintiff to be in no distress at all and to be very pleasant and businesslike. Plaintiff's mood was noted to be depressed and stressed. Dr. David D. Erby noted plaintiff's cognitive functioning to be intact and considered plaintiff to be of ...

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