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Christopher v. Colvin

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

September 2, 2016

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



         This matter is before the Court for review of an adverse ruling by the Social Security Administration.

         I. Procedural History

         Plaintiff Carol Christopher filed applications for disability insurance benefits, Title II, 42 U.S.C. §§ 401-434, and supplemental security income, Title XVI, 42 U.S.C. §§ 1381-1385, on October 12, 2010, with an alleged onset date of July 1, 2010. (Tr. 337-49). After plaintiff's applications were denied on initial consideration (Tr. 172-73), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 209-15). Plaintiff and counsel appeared for a hearing on July 12, 2012. (Tr. 122-36). The ALJ issued a decision denying plaintiff's applications on July 25, 2012. (Tr. 175-91). On September 24, 2013, the Appeals Council reversed the ALJ's decision and remanded the case back to the ALJ to further consider plaintiff's work activity, clarify the severity of plaintiff's impairments, give further consideration to the opinion of nurse practitioner Smith, further evaluate plaintiff's mental impairments, give further consideration to plaintiff's maximum residual functional capacity, and, if warranted, obtain supplemental evidence from a vocational expert. (Tr. 192-96).

         Plaintiff and counsel appeared for a supplemental video hearing in front of an ALJ on January 8, 2014. (Tr. 137-71). Based on income issues, plaintiff amended her alleged onset date to November 1, 2011. (Tr. 515-17). The ALJ issued a decision finding plaintiff not disabled and denying plaintiff's applications on February 4, 2014. (Tr. 89-106). The Appeals Council denied plaintiff's request for review on April 10, 2015. (Tr. 1-7). Accordingly, the ALJ's decision stands as the Commissioner's final decision subject to judicial review.

         II. Evidence Before the ALJ

         A. Disability Application Documents

         In a Disability Reported completed during an in-person interview on October 12, 2010 (Tr. 430-33), the interviewer noted that plaintiff looked very sad, stated she had lost 40 pounds in the last year due to irritable bowel syndrome (IBS), and left her assembly line job because of an IBS incident. Work History Reports plaintiff completed indicate that she worked on an assembly line 12 hours a day for one month in September 2010. This job required her to walk 10 hours a day, stand, stoop, and handle large objects two hours a day, reach six hours a day, and kneel half an hour a day. From March 2008 to August 2010, she worked as a CMT at nursing, boarding and group homes where she administered and charted medication, cooked food, cleaned rooms, and showered and dressed clients. From September 2007 to March 2008, plaintiff worked in retail. (Tr. 419-29, 434-45, 465-75). The heaviest weight she frequently lifted was 10 pounds.

         In a Function Report dated October 23, 2010 (Tr. 446-56), plaintiff wrote that her daily activities included waking up, drinking coffee, using the bathroom, washing dishes, cleaning the house, taking medications, going to the unemployment office, looking for jobs on a computer, preparing food, watching television, reading, talking to friends on the phone, visiting her daughter's house, and sleeping. Plaintiff did not care for other people, but took care of a pet. Since the onset of her conditions, plaintiff wrote that she did not know when she might lose control of her bowels or have an anxiety attack. Plaintiff did not need reminders to care for her personal grooming or take medications. She prepared her own meals daily, consisting of canned foods and sandwiches. Plaintiff's household chores included cleaning, laundry, washing dishes, and taking out trash on a daily or weekly basis. She went outside every day, drove a car, and could go out alone. Plaintiff shopped for groceries every two weeks for an hour and a half each trip.

         Plaintiff could independently manage her finances. However, she no longer had adequate funds to pay her bills since she stopped working full-time. Plaintiff's hobbies and interests included reading, watching television, and using a computer. She wrote that she had concentration problems, however, and did not read as often as she used to. She watched television daily. For social activities, plaintiff talked with and visited others. She did not have problems getting along with others, but was constantly afraid she would have a loss of bowel control or extreme anxiety and panic attacks. Plaintiff indicated that her conditions affected her memory and ability to concentrate. She could walk half a mile before needing to rest for fifteen minutes. Plaintiff could pay attention for fifteen minutes at a time and could follow recipes. She did not handle stress or changes in routine well and felt like she was dying when she experienced anxiety attacks.

         In an employer questionnaire from Covenant Care Services dated July 3, 2012 (Tr. 508), plaintiff's supervisor wrote that plaintiff worked as an aide or personal assistant in a home for individuals with developmental and physical disabilities. Plaintiff did not need special assistance or adaptations to do her job, although she had missed a significant amount of work due to hospitalization and frequent bouts of depression. Some of plaintiff's clients were very happy with the services she provided, while others stated that plaintiff had difficulties staying on task. She became easily confused when changes were made by her employer. Plaintiff did not have any physical limitations on her ability to work and worked well with supervisors.

         In a letter dated July 4, 2012 (Tr. 486-89), plaintiff's daughter, Erin Bradley, wrote that although plaintiff had struggled with depression and anxiety for decades, her behavior and attitude had changed markedly over the past two years after her brother's death. The most noticeable changes had been to her mother's memory and concentration. Ms. Bradley wrote that plaintiff had made a medication error at work and lost her job. Plaintiff also had trouble remembering her past employment and had forgotten one of her children's birthdays. Plaintiff had failed to keep up with her utility bills and her electricity was shut off in June.

         Irritable bowel syndrome also exacerbated her mother's anxiety. Ms. Bradley expressed disbelief over the amount of weight plaintiff had lost because of IBS and described plaintiff as “rail thin.” Plaintiff had lost her job at a nursing home when she had an accident due to IBS on the way to work. Her overall physical stamina and strength was diminished. When plaintiff took her dogs on a walk recently, she was unable to walk for more than a few minutes. Previously, plaintiff had been able to go hiking on more challenging and steep trails at state parks. Plaintiff formerly could lift people in her line of work, but no longer could lift anything heavier than groceries. Plaintiff had struggled greatly with grief, depression, and IBS since her younger brother committed suicide last March. Plaintiff's daughter felt powerless to help her.

         In an employer questionnaire from Genesis Home Care dated December 19, 2013 (Tr. 514), plaintiff's supervisor wrote that plaintiff worked as a homemaker or certified nursing assistant at the center. Plaintiff did not need any special assistance to do her job, did not have physical limitations on her ability to work, and did not have any issues with absences. When plaintiff was given instructions, she needed to have things explained to her a few times, but could complete her assigned tasks. Plaintiff worked 25 hours a week for this employer, per her request.

         B. Testimony at the Hearings

         1. July 12, 2012 Hearing

         At her initial hearing with an ALJ, plaintiff testified that she had an associate's degree in English. (Tr. 125). She stopped working full time when she had a panic attack on July 1, 2010. Plaintiff had trouble focusing and remembering the residents or their medications. She next worked full-time at Chateau Gerardo for nine months, but made medication errors and was terminated. (Tr. 126).

         Plaintiff presently worked part-time at Covenant Care as a certified nursing assistant. She did not think she could work full-time, because she was not strong enough to lift people and had constant anxiety. Plaintiff reported having anxiety since she was a child. Her mental condition became worse in 2010 because of stress from work. Quitting her job made her less stressed.

         Anxiety caused plaintiff to have irritable bowel syndrome and episodes of incontinence. (Tr. 128). Anxiety also affected her memory, making it difficult for her to remember simple things. Plaintiff had anxiety attacks weekly, causing her to feel doomed and as if she was having a heart attack. These feelings lasted five to ten minutes and depleted her energy. She sometimes took Xanax if she felt a panic attack coming, which made her sleepy. Plaintiff also had battled depression since she was a child. Plaintiff's son committed suicide in 2011, and since then plaintiff had become so depressed she was hospitalized a few times. (Tr. 130). Depression made it difficult for her to get out of bed and function. She felt worthless, guilty, and depleted of energy.

         Plaintiff reported irritable bowel syndrome to be a daily problem for her. Plaintiff had become incontinent at work once and had to leave and miss work. On another occasion she had an accident on the way to work and went home. Her employer fired her since she did not call in and report her absence. Plaintiff sometimes had severe pains in her stomach and became constipated. Plaintiff thought medication she was prescribed caused her to feel faint when she stood up too quickly. (Tr. 132). She had passed out and fallen on the floor when she woke up during the night to use the bathroom.

         Plaintiff lived in her mother's house with her brother. Plaintiff took care of household chores such as doing the dishes and sweeping while her brother did chores outside. Plaintiff went grocery shopping, but felt overwhelmed in the store and made impulsive purchases. She used to be sociable and go out with friends, but now felt nervous around others. She felt comfortable attending church services. For hobbies, plaintiff read and watched television, but report difficulties focusing on either.

         2. January 8, 2014 Hearing

         At a subsequent hearing before an ALJ, plaintiff testified that she had been seeing a psychiatrist, Dr. Sabapathypillai, once a month for five or six years. (Tr. 148-49). Plaintiff had been hospitalized three times for suicidal thoughts, which began after her son passed away in March 2011. (Tr. 149-50). Plaintiff took Abilify, Lyrica and Xanax for her mental health impairments. She also took medication for a diagnosed bipolar disorder. During depressive episodes, plaintiff felt like she wanted to die and found it difficult to maintain the normal activities of daily living. (Tr. 151-52). Once a month she did not get out of bed because of depression. Every day it was difficult for her to focus. She sometimes had racing thoughts and panic attacks. Twice a month she had hours-long crying spells.

         Plaintiff also had had fibromyalgia for more than a decade. (Tr. 153). Her symptoms from fibromyalgia included back and arm pain and fatigue. She needed to lie down when she was tired because of fibromyalgia. Plaintiff stated that she was diagnosed with irritable bowel syndrome after she had a colonoscopy. Plaintiff used the restroom approximately ten times a day. She had accidents once a month. Stress and anxiety were triggers for her irritable bowel. Driving and filling out paperwork caused her anxiety. With respect to her memory, plaintiff reported difficulties recalling addresses, names and phone numbers. (Tr. 157). Plaintiff stated that she had anxiety attacks once or twice a week. She would sit down to calm and collect herself.

         Darrell W. Taylor, Ph.D., a vocational expert, provided testimony at the hearing. Dr. Taylor first classified plaintiff's current position as a home health attendant and past position as a certified medication technician, as medium exertional and semi-skilled positions. (Tr. 162). The ALJ asked Dr. Taylor to consider an individual of plaintiff's age, education, and work experience who is limited to medium work, simple, routine and repetitive tasks, and is unable to perform tasks requiring more than superficial interaction with the public or co-workers, meaning that the individual should deal primarily with things instead of people. Dr. Taylor opined that such an individual could not perform any of plaintiff's past relevant work. However, such a person could work medium, unskilled positions as a dishwasher, hand packer, or janitor. For a second hypothetical, the ALJ asked Dr. Taylor to further assume the individual was limited to medium work activity, but capable of performing work at the semi-skilled level. (Tr. 164). Dr. Taylor testified that such a person could perform plaintiff's past work as a home health aide or CMT, in addition to the aforementioned medium, unskilled positions.

         On cross-examination, plaintiff's counsel asked the vocational expert if an individual who required redirection or retraining from a supervisor once every hour on a consistent basis would be capable of sustaining full-time work. (Tr. 166). Dr. Taylor responded in the negative, stating that this example was more representative of supported employment. In response to further questioning from plaintiff's counsel, Dr. Taylor testified that an individual who was off-task as little as 15 percent of the day on a regular or ongoing basis would soon result in termination, as he or she would be unable to meet pace and production requirements. Counsel then asked Dr. Taylor if an individual who required one additional, unscheduled 15-minute break in addition to already-provided breaks throughout the day on a consistent and ongoing basis would be able to sustain fulltime work. Dr. Taylor opined that, particularly in the unskilled positions cited, an individual would not be afforded unscheduled breaks and would be terminated. If an individual were to miss work twice a month on an ongoing basis, including during the probationary period, Dr. Taylor stated that such a person could not sustain full-time work.

         With respect to contact with co-workers and others, Dr. Taylor testified that an individual could work without contact with the public, but would inevitably have some interaction with co-workers and supervisors. If an individual was limited to interaction with co-workers for five percent of the day or less, Dr. Taylor opined that he or she would not have the opportunity to engage in full-time competitive employment. If an individual needed to be located within a 30-second walk to a bathroom due to incontinence or IBS, Dr. Taylor testified that facilities may be close, but the nearest facilities would generally be farther away in unskilled positions, particularly if the bathroom breaks were unscheduled. With respect to the “as needed” standard for an employee using the restroom, Dr. Taylor stated that such an employment condition would result in termination if the employer viewed the use as an unscheduled break. Finally, counsel inquired as to whether a person who could lift five pounds occasionally and less than five pounds frequently, must use the toilet as needed, could sit less than one hour in total or continuously for less than 15 minutes, and needed to lie down as needed would be able to work. Dr. Taylor responded that such a person would not be able to maintain competitive employment.

         C. Medical Records

         At Heartland Family Physicians on October 28, 2009 (Tr. 526), plaintiff requested a Xanax[1] refill and an increase in her Abilify[2] prescription. Plaintiff was otherwise feeling fine and had less anxiety. Cymbalta[3] seemed to be working very well for her depression. Upon objective examination, plaintiff's blood pressure was stable and she had no dizziness or shortness of breath. The medical provider increased plaintiff's Abilify, continued Xanax, and instructed plaintiff to follow up in six months.

         On November 10, 2009 (Tr. 551-52), plaintiff requested mental health services at the VA Outpatient Clinic. Initial appointments were made with Gary Helle, L.C.S.W., and Mercy Sabapathypillai, M.D. that day. It was noted that plaintiff was prescribed Cymbalta currently, but had tried selective serotonin reuptake inhibitors in the past, including Paxil, Zoloft, Wellbutrin and Prozac. Helle noted that plaintiff reported feeling depressed, had a poor appetite, had difficulty getting out of bed, and felt some anxiety. (Tr. 586-90). In the past three months, plaintiff's depression had caused memory problems, which affected her job performance. This caused her anxiety and worry. A mental status examination indicated that plaintiff was polite throughout the interview, although somewhat reserved with a somewhat depressed mood. Helle diagnosed plaintiff with recurrent, moderate major depressive disorder and assigned plaintiff a Global Assessment of Functioning (GAF) score of 65.[4]

         During her first appointment with Dr. Sabapathypillai, the psychiatrist noted that plaintiff's mother, who had Alzheimer's, and her brother lived with plaintiff. (Tr. 581-86). Plaintiff had three adult children and currently worked as a CMT at a group home in Cape Girardeau. Plaintiff's depression had worsened recently and she lost a job at a nursing home because of mistakes she made. Plaintiff stated that she took her medication every day, but had been overwhelmed and anxious about recent stressors. She made less money at her new job, and this increased her fear and anxiety regarding her financial situation. She also stated she had lost weight recently due to a loss of appetite, feeling overwhelmed, and a depressed mood. At times, plaintiff preferred to stay in bed because of a loss of interest in things she previously enjoyed, a lack of concentration and focus, and increasing guilt about her job situation. She denied suicidal thoughts even though she felt hopeless at times. Plaintiff also had excessive worry about her mother, whose memory was declining. Plaintiff was the primary caretaker for her mother.

         Plaintiff stated that she had been depressed since the age of 21. She was prescribed medications for her mental health, but quit the medications when she felt better. Plaintiff stated that she had been hospitalized for bipolar disorder four years ago, although she did not think she experienced manic or hypomanic episodes. Plaintiff denied any attempts of suicide. She had had one counseling session when she was married, but currently was not receiving any other psychiatric services. All three of plaintiff's prior marriages involved emotional or physical abuse. Plaintiff had served in the Air Force from 1976 to 1981 and had a positive military experience. She drank alcohol occasionally and smoked one pack of cigarettes per day. Dr. Sabapathypillai diagnosed plaintiff with recurrent major depressive disorder without psychotic features, fibromyalgia, and irritable bowel syndrome (IBS). The doctor assigned plaintiff a GAF score of 60, [5] added Abilify as a mood adjunctive treatment for plaintiff's depression, increased Cymbalta, discontinued Xanax, and started plaintiff on Klonopin[6] as needed for anxiety. The doctor discussed relaxation coping skills and journaling with plaintiff and recommended blood work follow-up.

         On December 9, 2009 (Tr. 581), Renee Taylor, M.S.W., L.C.S.W., attempted to call plaintiff for a depression screen follow-up, but received no answer. The social worker planned to continue to monitor plaintiff and attempt to engage her in psychotherapy. The next day plaintiff was seen by Dr. Sabapathypillai for a follow-up visit. (Tr. 578-81). According to plaintiff, she was working at a new job that she enjoyed more and found more relaxing. However, plaintiff stated that she had been feeling very restless since her last visit. When questioned about her medication, the doctor noted that plaintiff had not been taking Abilify as prescribed. She had passed out two times after taking a larger dose than prescribed. Because plaintiff had not followed the directions on the bottle, she would run out of her medication soon. Plaintiff felt that Klonopin was not helping her with her anxiety at nighttime. She continued to have psychosocial stressors from her mother's condition, her job, and finances. Mental status examination notes indicate that plaintiff was calm and cooperative at the appointment, had good eye contact and normal speech, was rocking her legs and turning around while talking, and denied suicidal ideation. Dr. Sabapathypillai discussed with plaintiff the relationship between the higher dose of Abilify and plaintiff's agitation and restlessness. She instructed plaintiff to take half the dose of Abilify that she had been taking, increased plaintiff's prescription for Klonopin, and scheduled a follow-up appointment in three months.

         Social worker Taylor contacted plaintiff by phone on January 8, 2010. (Tr. 578). Plaintiff reported that she was having no significant problems and felt more emotionally stable since seeing Dr. Sabapathypillai. Plaintiff had some anxiety because she thought she would run out of medications before seeing the doctor again. The social worker told plaintiff she would walk her through the process of ordering medication refills by phone. At plaintiff's next appointment with Dr. Sabapathypillai on March 18, 2010 (Tr. 575-77), plaintiff stated that she was feeling better since her medication adjustment. She had some anxiety over placing her mother in a nursing home when her mother's condition had worsened. Plaintiff had support from her brother at this time. Per a mental status examination, plaintiff was calm and cooperative, had good eye contact, a fine mood, and blunted affect. Dr. Sabapathypillai maintained her original diagnosis and GAF score for plaintiff's condition. Brief supportive therapy was given to plaintiff regarding the placement and care of her elderly mother. The doctor continued plaintiff's medications and instructed her to follow up in six months or sooner as needed.

         On August 17, 2010, plaintiff received medical care from Susan Joyce Smith, R.N.P. at the VA Outpatient Clinic for episodes of syncope and collapse. (Tr. 529, 566-74). Plaintiff reported profound feelings of fatigue over the past few months. She also had lost more than 30 pounds unintentionally and had significant hair loss. Plaintiff was 5'5'' and weighed 118 pounds. Plaintiff had smoked cigarettes for 35 years and expressed interest in smoking cessation. Nurse practitioner Smith noted that plaintiff appeared very tired and fatigued and had dry hair that came out easily with touch. Plaintiff stated that she was concerned she had leukemia since a family member had been diagnosed with leukemia. Laboratory studies and a chest x-ray were ordered. The only abnormalities noted in the lab results were elevated total cholesterol and low density lipoprotein cholesterol. (Tr. 568). The chest x-ray revealed moderate bilateral hyperaeration with no appreciative active infiltrate, effusion, or other acute intrathoracic process. (Tr. 532).

         At a medication management and brief psychotherapy appointment with Dr. Sabapathypillai on September 24, 2010 (Tr. 562-64), plaintiff was very shaky and anxious. She complained of IBS and frequent stools. She stated that she had run out of Clonazepam weeks ago because of an expired prescription. Since then her anxiety and bowel movements had worsened. Plaintiff had requested her primary care doctor to prescribe something for diarrhea, since over-the-counter medication did not help. The doctor's mental status examination notes indicate that plaintiff was in apparent distress, had an obvious tremor, avoided eye contact, was in a depressed and anxious mood, and denied suicidal ideation. Dr. Sabapathypillai diagnosed plaintiff with recurrent major depressive disorder and anxiety. She assigned plaintiff a GAF score of 50.[7] Because plaintiff felt Clonazepam was not strong ...

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