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Henderson v. Berryhill

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

February 27, 2017

AMANDA R. HENDERSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM AND ORDER [2]

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         Amanda Rose Henderson (“Plaintiff”) appeals the final decision of the Acting Commissioner of Social Security (“Defendant”) denying her application for supplemental security income (“SSI”) benefits under Title XVI of the Social Security Act. See 42 U.S.C. §§ 1381 et seq. Substantial evidence supports Defendant's decision, and it is therefore AFFIRMED.

         I. Background and Procedural History

         Plaintiff applied for SSI benefits on May 13, 2013, alleging that she became disabled on January 1, 2011, due to depression, learning disability, high blood pressure, anxiety, and sleep problems. (Tr. 94, 160, 202) Plaintiff's application was initially denied on January 27, 2013. (Tr. 94) Plaintiff requested a hearing before an administrative law judge (“ALJ”), and the ALJ held a hearing on May 28, 2014, at which Plaintiff testified, with counsel present. In a decision dated June 27, 2014, the ALJ found that Plaintiff was not disabled under the Act. (Tr. 19-32) Plaintiff appealed the ALJ's decision, but the Appeals Council declined review. (Tr. 1) The ALJ's decision therefore stands as the Commissioner's final decision, and the matter is properly before this Court. See 42 U.S.C. § 405(g).

         II. Evidence Before the ALJ

         The ALJ conducted one hearing in this matter. On May 28, 2014, Plaintiff appeared in person with her attorney. At the beginning of the hearing, Plaintiff's counsel advised that Plaintiff had no objections regarding any of the exhibits in the record. At the end of the hearing, counsel advised that the record need not remain open.

         A. Hearing Testimony

         1) Plaintiff's Testimony (Tr. 40-64)

         Plaintiff testified in response to questions posed by the ALJ and her attorney. Plaintiff testified that she became disabled by January 1, 2011, when she became “very depressed.” (Tr. 42) Plaintiff named a number of doctors who had treated her in the past for mental health concerns, and stated that she had been seeing her current doctor, Dr. Manikant Desai, M.D., for a “couple months.” (Tr. 45) Plaintiff indicated that her next appointment with Dr. Desai was scheduled for later that day. (Tr. 56) At the time of the hearing, Plaintiff was prescribed various medications, including Cymbalta, Buspar, Topamax, and Abilify. (Tr. 45)

         Plaintiff testified that she had been homeless in both Kansas City and St. Louis, Missouri, but had since received a “shelter plus care voucher” that allowed her to live alone in an apartment. (Tr. 44-46) Plaintiff informed the ALJ that she prepares her own meals, does her own shopping and laundry, and has no difficulty taking care of personal needs. (Tr. 47, 49, 51) Plaintiff claimed that she sleeps all but two or three hours out of the day due to depression and because she has “nothing else to do.” (Tr. 48) Plaintiff explained that she wakes up frequently during the night, but “once the daylight hits [she] can sleep all day.” (Tr. 62) Plaintiff also testified that she would miss appointments without the assistance of her caseworker. Plaintiff reported that she was let go from her last job as a certified nursing assistant because she did not want to get out of bed to attend work. (Tr. 53) Plaintiff also testified regarding the abuse she had suffered in her past. (Tr. 63-64)

         2) Medical Expert Testimony (Tr. 64-78)

         Dr. Michael Cremerius, Ph.D., a licensed psychologist, testified at the administrative hearing. Dr. Cremerius considered Plaintiff's medical records and hearing testimony. Dr. Cremerius opined that Plaintiff suffered from: (1) borderline intellectual functioning (learning disability); (2) depression; (3) post-traumatic stress disorder (“PTSD”); (4) personality disorder with borderline features; and (5) cannabis and cocaine abuse (in remission). (Tr. 65-66) Dr. Cremerius opined that none of Plaintiff's mental impairments rose to the level of any psychiatric or psychological listing. (Tr. 74)

         Dr. Cremerius found that Plaintiff generally complied with her medical direction by taking her medication and calling her providers for refills when necessary. Dr. Cremerius testified that he thought Plaintiff had moderate difficulties in the areas of concentration, persistence, or pace, but that Plaintiff could perform simple, routine tasks with occasional contact with coworkers and supervisors. Dr. Cremerius further testified that, in his opinion, working would be good for Plaintiff. (Tr. 75)

         In an exchange that is at issue herein and discussed infra, the ALJ asked Dr. Cremerius specifically about Exhibit B7-F. Exhibit B7-F contained two pages of handwritten notes by Dr. Desai, from March and April 2014. Plaintiff's attorney identified a reference to Ritalin prescribed for ADHD. (Tr. 69) The ALJ asked for clarification, and Plaintiff advised that she had taken medication for attention deficit disorder. (Tr. 70)

         Plaintiff's attorney also noted that Exhibit B7-F included a typed portion indicating a diagnosis of “schizoaffective disorder chronic.” (Tr. 68) The ALJ later asked Dr. Cremerius to clarify whether a schizoaffective diagnosis represented a substantial change in Plaintiff's history. Dr. Cremerius explained that it did not. Dr. Cremerius explained that another provider had diagnosed plaintiff as bipolar, and bipolar, schizoaffective, and depression are all mood disorders. (Tr. 73) Dr. Cremerius also explained that the schizoaffective diagnosis likely stemmed from Plaintiff's reporting hearing a soft talk or voice in the past. (Tr. 73)[3]

         Dr. Cremerius testified specifically regarding the severity of Plaintiff's mental impairments. (Tr. 74-75) Dr. Cremerius found that Plaintiff had only mild limitations in her activities of daily living, but moderate limitations in social functioning, and concentration, persistence or pace. Plaintiff's counsel specifically asked Dr. Cremerius to discuss any distinctions between moderate and marked limitations. In response, Dr. Cremerius noted that, apart from transportation problems, Plaintiff was organized and able to follow through, and that working would benefit Plaintiff. (Tr. 75, 77) Dr. Cremerius further explained that “the symptoms described across three treating sources would certainly support [Plaintiff] being able to do more routine tasks in settings that required … occasional contact with coworkers and supervisors.” (Tr. 75) Furthermore, he found that Plaintiff's symptoms were “relatively well managed, and certainly to the point that she could [do] simple routine tasks.” (Tr. 77) Dr. Cremerius explained that, in his view, Plaintiff's treatment was relatively infrequent, and “if somebody is that markedly impaired, they'd be seen a whole lot more frequently.” (Tr. 76)

         3) Vocational Expert (Tr. 80-85)

         Vocational expert (“VE”) James Israel testified in response to hypothetical questions posed by the ALJ and Plaintiff's counsel. The ALJ asked the VE to consider a hypothetical person of Plaintiff's age, education and work experience, who has no exertional limitations, but who should avoid working in environments with concentrated fumes, odors, dusts and gases, high heat and humidity. The hypothetical person could only perform “simple routine work that [would not] require teamwork type interaction with coworkers; generally limited interaction with supervisors … minimal communication needed [for] simple routine work, ” and no close interaction with the public. (Tr. 80-81)

         The VE testified that such hypothetical person could perform several jobs available in the economy, including: (1) door assembler; (2) wrapper; and (3) food sorter. (Tr. 81-82) In response to further limitations posed by the ALJ and Plaintiff's counsel, the VE testified that if the hypothetical person missed work at least twice a month, employers would soon “deem this person unreliable and would move to replace them.” (Tr. 82-83) Further, if the hypothetical person arrived late, left early, stepped away from work for additional break time unpredictably (but at least once per week), or took a daily break to cry openly, such an individual would be precluded from employment. (Tr. 83, 84)

         The VE testified that if the hypothetical person was off task 15 percent of the day, the number of viable job options would drop by 50 percent. If the hypothetical person was off track more than 15 percent of the day the VE testified that “jobs drop off precipitously.” (Tr. 83-84)

         At the close of the hearing, the ALJ noted that the ALJ might send Plaintiff to see a doctor, but that it was unlikely. Plaintiff's attorney did not raise any concerns regarding the completeness of the record, request any additional examination, or to seek expand or clarify the record. (Tr. 85-86)

         B. Plaintiff's Work History and Function Reports (Tr. 210-228)

         Although minimal, Plaintiff's past work included hardware store employee, cook, dishwasher, waitress, cashier, and certified nursing assistant. (Tr. 221) Plaintiff's function report indicates that she prepares meals for herself, does her own laundry and dishes, and drives.[4](Tr. 212-13) As to her limitations, Plaintiff stated that she needs reminders to take her medications and to perform household chores. (Tr. 212) Plaintiff stated that she does not go out in public because she does not like “being around a bunch of people.” (Tr. 213) Plaintiff also alleged that her impairments affect her ability to talk, see, complete tasks, concentrate, and understand. (Tr. 215) Plaintiff did not allege difficulties getting along with others, with memory, or with following instructions. (Id.) Finally, Plaintiff indicated that she can pay attention “for about 20 [minutes], ” and that she can sometimes follow written instructions very well. She indicated that she follows spoken instructions better than written instructions. (Id.)

         C. Other Record Evidence

         1) Medical Records

         The record before this Court does not include medical records from the time of Plaintiff's alleged onset date of January 1, 2011, through October of 2012. In October of 2012, Plaintiff began treatment at Truman Behavioral Health. Treatment notes from October 10, 2012, indicate that Plaintiff had been off her anti-depressant medication for a year prior to her initial visit. (Tr. 259) The notes also indicate that Plaintiff had intact attention, concentration and memory, and that her thought form was logical and linear. (Tr. 260) Plaintiff received diagnoses of depressive disorder and PTSD, and a Global Assessment of Functioning (“GAF”) score of 52-55.[5] (Tr. 261-62) Notes from follow-up treatment on December 5, 2012, are substantially similar. (Tr. 271)

         In April and May 2013, Plaintiff's mental health treatment transitioned to ReDiscover Mental Health. The relevant records indicate Plaintiff received treatment for PTSD and depression. (Tr. 355-91) During this time, Plaintiff was staying in a shelter for domestic violence victims. Treatment notes from ReDiscover reflect an additional diagnosis of borderline intellectual functioning. (Tr. 355) The notes identified Plaintiff's “strengths and abilities” as a client included her “ability to form and maintain relationships, ” her “ability to manage activities [of] daily living, ” and her “cheerful” attitude. (Tr. 367) Barriers to treatment included financial challenges and unstable living conditions. (Id.)

         The ReDiscover records include an unsigned mental status exam, dated April 11, 2013. (Tr. 369-71) The mental status exam reported that Plaintiff had no “organic behavioral symptoms observed by others or reported by [Plaintiff];” she was alert, awake, fully aware, and responsive during the exam; fully oriented, with appropriate affect; she had intact memory; an average fund of knowledge; and good insight and intact judgment. (Tr. 369-71)

         The ReDiscover records indicate that, on May 14, 2013, Plaintiff advised that “she would not be back for future appointments.” (Tr. 387) ReDiscover closed their chart on Plaintiff at her request.

         The administrative record also indicates that, between May 2013 and November 2013, Plaintiff sought treatment for various physical complaints such as asthma, allergic rhinitis, obesity, and back-pain/lumbago. In November of 2013, Plaintiff sought treatment at BJC Behavioral Health (“BJC”) and reported that she had not taken her psychiatric medications since April of 2013. (Tr. 461) On November 13, 2013, Plaintiff saw Dr. Rachel Morel, D.O., at BJC. Dr. Morel conducted a psychiatric evaluation. Dr. Morel diagnosed Plaintiff with depression and PTSD and prescribed medication to address her symptoms. Dr. Morel found Plaintiff's thought process to be goal directed and logical, her language and memory intact, and her attention span normal. Dr. Morel opined that “Patient is alert and oriented … with average intellect.” (Tr. 461-62) Dr. Morel assigned a GAF score of 45[6] at this visit, and again on a follow-up visit on December 12, 2013. (Tr. 462, 464) December 2013 records regarding Plaintiff's treatment for back pain, asthma, and obesity noted that Plaintiff showed “no unusual anxiety or evidence of depression.” (Tr. 557)

         In 2014, after Dr. Morel left BJC, Plaintiff commenced treatment with Dr. Muhammad Baber, M.D. Dr. Baber's treatment notes indicate that Plaintiff had received medication refills over the prior few months but had not made any appointments since December of 2013. Dr. Baber described Plaintiff as having fair concentration and memory, and estimated her intellect to be in the average range. (Tr. 466-67) Dr. Baber assigned Plaintiff a GAF score of 50. (Tr. 467)

         On April 21, 2014, Plaintiff received treatment from Dr. Manikant Desai, M.D., at BJC. Dr. Desai's treatment notes indicate a diagnosis of schizoaffective disorder and a change in Plaintiff's medication from Seroquel to Abilify. (Tr. 475) Dr. Desai's notes also indicate that Plaintiff tolerated her medications “well” and reported “no side effects”. (Id.) As noted in the transcript of the administrative hearing, some of Dr. Desai's notes are illegible.

         2) Medical ...


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