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Ferguson v. Colvin

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

September 15, 2016

MICHAEL D. FERGUSON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of Defendant's final decision denying Plaintiff's applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and for Supplemental Security Income (“SSI”) under Title XVI of the Act. For the reasons set forth below, the Court reverses the decision of the Commissioner and remands for further proceedings.

         I. Procedural History

         On May 20, 2011, Plaintiff filed an application for DIB alleging disability beginning November 1, 2009.[1] (Tr. 22, 139-42) He protectively filed an application for SSI on March 31, 2011. (Tr. 22, 657-61) Plaintiff alleged that he became unable to work due to seizures. (Tr. 103) The applications were denied, and Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”). (Tr. 116, 123-27, 651-54) Plaintiff later withdrew his request for a hearing and asked that the Disability Determinations Service reconsider his application in light of new evidence. (Tr. 48, 117-20, 650) Upon reconsideration, Plaintiff's applications were again denied, and he filed another request for a hearing by an ALJ. (Tr. 48, 101-06, 638-46) On October 23, 2013 and June 3, 2014, Plaintiff testified at hearings before the ALJ. (Tr. 664-704) On August 20, 2014, the ALJ determined that Plaintiff had not been under a disability from October 1, 2007, through the date of the decision. (Tr. 22-36) Plaintiff then filed a request for review, and on September 18, 2015, the Appeals Council denied Plaintiff's request after considering additional evidence. (Tr. 3-6) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

         II. Evidence Before the ALJ

         At the October 23, 2013 hearing, Plaintiff was represented by counsel. At the outset, the ALJ and counsel agreed that Plaintiff's alleged onset date was October 1, 2007, with a last insured date of March 31, 2010. Plaintiff's attorney stated that Plaintiff had a seizure condition which met the seizure listing and that Plaintiff's seizures continued to occur despite medication compliance. In addition, counsel stated that Plaintiff had a dramatic decline in his intellectual capacity. The ALJ planned to order a psychological consultative exam with an IQ test and other testing. (Tr. 666-74)

         Upon questioning by the ALJ, Plaintiff testified that he was 53 years old. He had a driver's license and could drive, but his doctor told him not to drive. Plaintiff had a high school diploma but did not attend college. He last worked about five years ago, helping his brother-in-law do some things around his property. Plaintiff's employment history included work as a plaster contractor for 25 years. He first worked for his uncle's plaster company and then went into business on his own for about 10 years. Plaintiff stopped working as a major plaster finisher about four or five years ago and sold most of his equipment. (Tr. 677-80)

         Plaintiff saw Dr. Conti and Dr. Renfert. He took Dilantin for seizures and Divalproex for depression. Plaintiff took his medication as prescribed and stated that the medication helped. Side effects included constant headaches and hair loss. Plaintiff testified that he experienced seizures every day. He lived with his wife. Plaintiff tried to stay busy around the house by performing household chores such as vacuuming. He could pull weeds in the yard. Plaintiff enjoyed reading Sports Illustrated magazine and the newspaper. He needed glasses to read. (Tr. 680-83)

         Plaintiff's attorney also questioned him. Plaintiff stated that he had trouble understanding and remembering articles he read. In addition, he needed reminders from his wife and daughters to groom himself. His wife became ill six months ago, and his daughter moved in to care for both parents. Plaintiff further stated that when his wife began chemotherapy treatment, they had to get rid of their dog because he was unable to care for the dog. Plaintiff stated that he could not remember to let the dog out or feed the dog. He could not remember appointments or tasks, and he testified that his daughter attended appointments and meetings with him. Other people helped him remember things. Plaintiff testified that he could not make a fist with his right hand because he burned it years ago. He could not remember which year, but he recalled that he had a seizure during the incident. Plaintiff took medication for depression, which began about three or four years ago. With regard to his seizures, Plaintiff stated that he experienced large and small seizures. He lost consciousness with the large seizures, which lasted around 15 to 20 minutes. He had these large seizures at least a couple times a week. (Tr. 683-87)

         At the second hearing held on June 3, 2014, Plaintiff's attorney submitted new evidence. The ALJ then questioned a vocational expert (“VE”), Tracy Young. The VE testified that Plaintiff previously worked as a plasterer, which was classified as a medium skilled job. However, the job was heavy to very heavy, as performed by Plaintiff. In addition, he worked as a construction laborer, which was a very heavy, unskilled job. The ALJ discussed the psychological evaluation, noting that Plaintiff's seizures produced psychological consequences and a decrease in his IQ. However, the evidence did not indicate whether the psychological deficits occurred prior to the date last insured. (Tr. 694-98)

         The ALJ then asked the VE to assume an individual of Plaintiff's age, education, and work experience. The person could perform at the light exertional level but could have no exposure to hazards, such as unprotected heights and moving mechanical parts. In addition, the person could never climb ladders or scaffolds, and he could not operate a motorized vehicle. Further, the individual was limited to understanding, remembering, and carrying out simple instructions. He retained the ability to make judgment on simple, work-related decisions but was unable to understand and remember complex instructions or make judgment on complex work-related decisions. Further, the person could only tolerate occasional change in the work setting. Given this hypothetical question, the VE stated that the person would not be able to perform any of Plaintiff's past work. However, the individual could work as a cafeteria worker, fountain server, or collator operator. (Tr. 698-99)

         For the next hypothetical, the ALJ asked the VE to assume all of the limitations in the first hypothetical, with the additional limitation that the person's performance would be about 20 percent slower than a normal person's performance. In light of this limitation, the VE testified that the person would not be able to perform the previously mentioned jobs. Further, the individual would be unable to perform any competitive employment. In addition, Plaintiff's counsel asked the VE to also assume an individual that could reach, handle and finger with one hand on an unlimited basis, but could only use the other hand rarely. The VE stated that the person could not perform any jobs the VE mentioned. The VE further testified that if twice a week the person experienced unscheduled, 30-minute long breaks, during which time he had a staring spell, the individual would be unable to perform any of those occupations. (Tr. 699-703)

         Plaintiff's wife completed a Function Report - Adult dated November 16, 2011, on behalf of Plaintiff. In the report, Plaintiff stated that a typical day included his wife giving him medication and making breakfast. Plaintiff then watched TV, read, played with the dog, and waited for his wife to return home to make lunch. In the afternoon, he waited for her to come home and make dinner, and he took his medication and watched TV before bed. Plaintiff showered while his wife was home. Plaintiff could no longer cook for himself because he had a seizure and burned his hand while cooking. He needed reminders to care for himself. In addition, his wife gave him medication twice a day because he was unable to remember to take it. Plaintiff did not cook due to seizures. He was able to fold laundry but had to be reminded to stay on task. He went outside several times a week. Plaintiff was unable to drive or go out alone due to seizures. Due to poor memory, Plaintiff could not handle money. Plaintiff explained that his memory had decreased since his seizures increased. He stated that he enjoyed watching sports and reading. He did not spend time with others because he feared having a seizure in public. He also became angry very easily. Plaintiff reported that his conditions affected his memory, ability to complete tasks, concentration, use of hands, and ability to get along with others. His dominant hand was burnt and weak. Plaintiff estimated that he could pay attention for 5 minutes and was unable to finish what he started. He could follow written instructions okay, but he had difficulty remembering spoken instructions. Plaintiff did not get along well with others, including bosses. Stress seemed to increase his seizures. (Tr. 183-90) Plaintiff had previously completed a Function Report - Adult in June of 2011, which his wife and daughter filled out. The form was essentially the same as the one Plaintiff completed 5 months later. (Tr. 194-201)

         III. ...


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