United States District Court, E.D. Missouri, Eastern Division
ICKY L. MUCKEY, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER OF UNITED STATES MAGISTRATE JUDGE
JOHN M. BODENHAUSEN, Magistrate Judge.
This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves an Application for Disability Insurance Benefits under Title II of the Social Security Act. Plaintiff has filed a Brief in Support of her Complaint, and the Commissioner has filed a Brief in Support of her Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I. Procedural History
On March 5, 2010, Plaintiff Vicky L. Muckey filed an Application for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 114-21) Plaintiff states that her disability began on February 25, 2009, as a result of ADHD and bipolar disorder. On initial consideration, the Social Security Administration denied Plaintiff's claims for benefits. (Tr. 55-59) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). On May 5, 2011, a hearing was held before an ALJ. (Tr. 25-49) Plaintiff testified and was represented by counsel. (Id.) Vocational Expert Dr. Gerald Belchick, Ph.D., also testified at the hearing. (Tr. 39-45, 106-07) Thereafter, on July 13, 2011, the ALJ issued a decision denying Plaintiff's claims for benefits. (Tr. 11-19) On October 25, 2012, the Appeals Council found no basis for changing the ALJ's decision and denied her request for review. (Tr. 7-9) On June 27, 2014, the Appeals Council, after setting aside its October 25, 2012, decision, denied her request for review a second time. (Tr. 1-6, 217-19) The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
II. Evidence Before the ALJ
A. Hearing on May 5, 2011
1. Plaintiff's Testimony
At the hearing on May 5, 2011, Plaintiff testified in response to questions posed by the ALJ and counsel. (Tr. 28-39) She lives with her husband in Festus. (Tr. 28) Plaintiff has a GED and additional training as a bookkeeper from Sanford Brown College, and as a dispatcher, from Abbott Ambulance. (Tr. 29)
Plaintiff acknowledged the medical records show she helped her niece from September through December 2009, by answering the phones at her office. (Tr. 30) Plaintiff stated she possibly stopped receiving unemployment benefits is 2010. (Id.) The ALJ directed counsel to contact the unemployment office and find out when her benefits started and ceased. (Tr. 31) Plaintiff testified that during that time period she looked for secretarial jobs. (Id.)
Plaintiff testified that Dr. Malik of Psych Care Consultants has treated her for almost a year, and Dr. Malik provides medication management to her. (Tr. 33) She testified that Dr. Malik treats her for anxiety, bipolar disorder, and depression. (Tr. 34) During treatment, she complained of memory problems. (Tr. 38) Plaintiff testified that she cannot afford the $50 deductible to see the doctor. (Tr. 33) As a child, Plaintiff was treated for ADHD, and her treating doctor diagnosed her with ADHD. (Tr. 39)
Plaintiff testified she takes her medications when she remembers, but she admitted she does not take her medications consistently. (Tr. 35) Plaintiff explained how, when she forgot to take her medications for a couple of days, her husband questioned whether she had been taking her medications based on her behavior. (Tr. 36) Plaintiff testified that her doctor does not know she is not taking her medications consistently. (Id.) The only side effect from her medications is weight gain. (Tr. 37)
As to her daily activities, Plaintiff testified that she has not done much since 2009, because she feels down. (Tr. 35-36) She forgets appointments and birthdays. (Tr. 38) Plaintiff stopped working on February 25, 2009, her alleged onset date of disability, after she was fired for frequently missing work. (Tr. 34)
2. Testimony of Vocational Expert
Vocational Expert Dr. Gerald Belchick testified at the hearing. (Tr. 39-46) The ALJ noted the records and Plaintiff's testimony show she has work experience as an ambulance dispatcher, a cashier, a bookkeeper, and a receptionist/secretary. (Tr. 41) Dr. Belchick noted that Plaintiff worked as receptionist from 1995 through 1997, a semi-skilled job considered sedentary. (Tr. 42) From 1998 through 2001, she worked as a bookkeeper, a skilled job considered sedentary. Dr. Belchick noted that Plaintiff next worked as a cashier in a retail setting from 2001 through 2005, a semi-skilled job considered light. From 2005 through 2009, Plaintiff worked as a dispatcher for an ambulance service, a semi-skilled job considered sedentary. (Id.)
The ALJ noted that, although the medical records and her hearing testimony do not show Plaintiff has any physical limitations, she does have non-exertional limitations related to her mental impairments. (Tr. 42-43) Specifically, the ALJ opined Plaintiff is limited to unskilled work, and she is precluded from working in a setting which requires constant regular contact with the general public or more than infrequent handling of customer complaints. (Tr. 43) When asked whether Plaintiff could perform any of her past relevant work with those limitations, Dr. Belchick testified that all of her past relevant work would be eliminated, and there would be no transferable skills. (Id.)
Next the ALJ asked "whether a hypothetical individual with the same educational background, vocational profile, and residual functional capacity has the ability to perform any occupations that exist in significant numbers on a regional and national level?" (Tr. 43) Dr. Belchick first identified an unskilled job of assembling that can be performed at either the sedentary, light or medium exertional level. (Tr. 44) At the light level, Dr. Belchick indicated there are 3, 100 jobs locally, and nationally 400, 000 jobs available. Next, Dr. Belchick identified another unskilled job of packaging that can be performed at either the sedentary or light level, with 2, 400 jobs in the local area and about 245, 000 jobs nationally. The third unskilled job he identified was a kitchen helper with duties including mostly dishwashing, with a light level and 3, 500 jobs available locally and about120, 000 nationally. (Id.)
Plaintiff's counsel asked Dr. Belchick whether a hypothetical individual who had marked limitations in her ability to accept instruction and respond appropriately to supervisors in the work place would be able perform any of the jobs he listed. (Tr. 45) Dr. Belchick noted how marked limitations by definition would preclude the ability to perform the jobs. Next, counsel asked if the individual missed more than three days of work per month as a regular occurrence, would she be able to perform any of the jobs he listed. Dr. Belchick explained the national average is one day a month, and so absences in excess of one day a month would eliminate the jobs he cited. (Id.)
In a post hearing addendum to the record, the ALJ opined as follows:
The claimant's medical records are replete with instances of her non-compliance regarding her medication. I also note to[ sic ] that for most of her medical records she saw like Dr. Polite[ sic ]..., saw him only once basically there for an evaluation and that was it. That Dr. Data[ sic ], there basically for an evaluation and then I think she saw him once or twice after that and that was the end of that. She's now with Dr. Malick[ sic ], according to the medical records that I have so far, she's seen Dr. Malick[ sic ] once. Dr. Polite[ sic ] diagnosed the claimant with ADHD, nothing else, no depression, no anxiety, just ADHD basically at the suggestion of the claimant and began treating her for that. As I stated before, she dropped him and then moved on to Dr. Data[ sic ], also went to several people at Psych Care Consultants. As I stated before, she's now with Dr. Malick[ sic ], who is treating her only for bipolar, a panic disorder NOS. There's no indication that the claimant is being treated for depression other than bipolar symptoms. Dr. Malick[ sic ] gave the claimant a GAF of between 60 and 70. And that was by a letter dated May 17, 2010. Per the claimant's own testimony, she is extremely non-complaint and has not told her doctors such, so they're assuming that she's complaint with her medications and yet she continues to suffer all these symptoms. They are obviously not aware of the fact that these are symptoms being reported by the claimant who is not taking her medication. However, I will specifically note that in the decision. The claimant received unemployment benefits after she was fired and was out looking for secretarial jobs despite her testimony that she was just sitting around all day long and not doing anything. Up until recently, the claimant was also babysitting her incredibly young grandchild who as of 2010 was only two years old. And then between September and November of 2009, the claimant was acting as a telephone receptionist for her cousin who was starting a business. Although counsel provided, you know, question Dr. Belcheck[ sic ] regarding additional limitations due to the claimant's mental impairment, the bottom line is that the claimant would improve and according to her own testimony her husband has said that there would be improvement, she would be better if she were taking her medication. So my limitations that I have given Dr. Belcheck[ sic ] are based on the fact that the claimant ...