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Herd v. Colvin

United States District Court, W.D. Missouri, Southern Division

June 15, 2015

CLIFTON HERD, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


NANETTE K. LAUGHREY, District Judge.

Plaintiff Clifton Herd appeals the Commissioner of Social Security's final decision denying his application for disability insurance benefits. The decision is affirmed.

I. Background

Herd was born in 1969. He filed his application for disability benefits in June 2010, alleging he became disabled beginning December 27, 2007, due to physical and mental health impairments. The ALJ denied his application in August 2010, but the Appeals Council vacated and remanded, instructing the ALJ to obtain evidence from a medical expert concerning Herd's thyroid cancer. A second hearing was held on Herd's application in April 2013, and Herd amended his alleged onset date to March 27, 2010. In May 2013, the ALJ for a second time denied Herd's application for benefits.

Herd's insured status expired June 30, 2010. To be eligible for disability benefits under Title II of the Act, Herd is required to show he was disabled prior to June 30, 2010. 20 C.F.R. ยง 404.130; Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009). In Herd's present appeal, he focuses on mental health issues.

A. Medical history and opinion evidence

On April 15, 2010, Herd visited Keith Eiche, Ph.D., a psychologist at the Veterans Administration hospital, reporting frustration with his medical providers and at being denied disability. Herd initially expressed a great deal of anger in the session and was not sure about pursuing therapy. Mental status examination showed psychomotor agitation, though Herd calmed as the session progressed. Herd's speech was louder than normal with an intense quality, he had an irritable mood and affect, and he had a restricted range. Dr. Eiche diagnosed depressive disorder, and advised a medication consultation with Matthew Masterson, M.D., a psychiatrist at the VA.

Herd next saw Dr. Eiche on May 11, 2010. The doctor noted Herd's thoughts were logical, linear, and goal directed. Herd showed psychomotor agitation at the beginning of the session, but Herd calmed as the session progressed. His speech had a normal rate and rhythm but was louder than normal volume, and was intense. His mood was irritable, and his affect was congruent and had restricted range. Herd denied any current homicidal or suicidal ideation. His insight, judgment, and impulse control appeared grossly intact and his eye contact was good.

Herd saw Dr. Masterson on May 12, 2010, for an initial session. Herd reported feeling paranoid, irritable, and angry most of the time. Mental status examination showed Herd presented in a very angry and intimidating way, used profanity freely, and had a hostile, angry, and intimidating affect with a restricted range. Herd's thought content was overly focused on how the VA and others had been unfair toward him; demonstrated a paranoid and rigid way of thinking; and was circumstantial and overly inclusive. It was difficult to direct Herd back to topic without increased frustration and anger. He had mildly distracted concentration, impaired judgment, and limited insight. Dr. Masterson diagnosed intermittent explosive disorder (IED), depressive disorder, and personality disorder. Dr. Masterson wrote in the treatment notes that Herd was unemployable in his current condition because his anger was so intense, "unless employed at a job where explosive anger was accepted and tolerated." [Tr. 489.] Dr. Masterson stated Herd had a rigid and inflexible approach to problem solving and interacting with others, and demonstrated symptoms consistent with a personality disorder with cluster A and C traits. Dr. Masterson prescribed carbamazepine, to be adjusted as tolerated, and clonazepam, and noted that use of sertraline in the future would be considered.

Herd's wife called Dr. Masterson's office on May 17, 2010, reporting that she had been "babysitting" Herd since he had started clonazepam and carbamazepine; and that he had been very angry, uncoordinated, unable to get his words out, and very agitated. [Tr. 484.] She had told Herd to stop taking the medications because of the side effects. Herd spoke with Dr. Masterson the same day, reporting he felt more disinhibited on his medications and more likely to say or do something when he was angry, but he said he had not been aggressive and was sleeping a little longer. Dr. Masterson stopped the clonazepam but continued the carbamazepine.

Herd called and spoke to a nurse on May 19, 2010, shouting that he was not suicidal or homicidal, but "I need to tell you how ****ing pissed off I am, " and venting for 20 minutes. [Tr. 479.] He said he was not interested in following directions from others and that he did things his own way. Herd was calmer at the end of the call, and his speech was more relaxed.

Herd spoke by phone with Dr. Masterson on May 27, 2010, reporting he was a little more irritable after being on medication for five days. He reported side effects such as feeling more fatigued, difficulty remembering or doing calculations, and sporadic sharp pains in various parts of his body. Herd agreed to Dr. Masterson's recommendation to increase his dose of carbamazepine. Dr. Masterson told Herd to continue on the medication to see if the side effects resolved, and that the medications could be changed if Herd's symptoms increased.

Herd spoke to Dr. Masterson on June 3, 2010, reporting that he was sleeping ten to twelve hours a day on the increased dose of carbamazepine. Herd said he had no energy, felt dizzy upon standing, and that his anger and irritability persisted. Dr. Masterson told Herd the side effects were from the carbamazepine and to stop taking it, and said they would discuss medication options at the next office visit.

Herd had an appointment with Dr. Masterson on June 9, 2010, and reported he had blown up on the drive there. Dr. Masterson emphasized that Herd needed to learn to identify triggers to his anger and make mental decisions to react differently. Herd acknowledged he was able to delay his anger at times, but at other times he was not. He said his physical impairments had taken away his ability to vent his frustration in positive ways. Dr. Masterson noted that Herd walked with an antalgic gait, wore a knee brace, and used a cane. Mental status examination showed Herd was less angry; had loud and forceful speech; used profanity freely; had an angry, irritable, and occasionally intimidating affect; and had a restricted range. Herd had a history of violence and domestic assault, was overly focused on how others had treated him, and demonstrated some paranoid and rigid ways of thinking. Herd's thought process was circumstantial and overly inclusive, and he was difficult to direct back to topic. Herd was mildly distracted, had limited insight, impaired judgment, and high impulsivity. Dr. Masterson ordered a trial of alprazolam.

Dr. Masterson completed a Medical Source Statement-Mental, dated July 15, 2010. He opined that Herd was markedly limited in his abilities to work in coordination with or proximity to others without being distracted by them; interact appropriately with the general public; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriately behavior and adhere to basic standards of neatness and cleanliness; and respond appropriately to changes in the work setting. He opined that Herd was extremely limited in his ability to accept instructions and respond appropriately to criticism from supervisors. He further opined that Herd was extremely limited in his ability to ...

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