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Weiss v. Berryhill

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

March 20, 2017

TOM F. WEISS, Plaintiff,
NANCY A. BERRYHILL Acting Commissioner of Social Security,[1] Defendant.



         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the application of Tom F. Weiss (“Plaintiff” or “Weiss”) for Disability Insurance Benefits (“DIB”) and a period of disability under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a brief in support of the Complaint (Doc. No. 16), Defendant has filed a brief in support of the Answer (Doc. No. 23) and Plaintiff has filed his Reply (Doc. No. 24). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. No. 8).


         Plaintiff filed his applications for DIB, period of disability and SSI in early 2012. (Tr. 134-151). Plaintiff was initially denied on July 10, 2012. (Tr. 59-67). A Disability Determination Explanation was sent on that date to Plaintiff, signed by single decision maker (‘SDM”) Terri Stendeback, with consulting evaluations by Robert Cottone, Ph.D., and Michael Ditmore, M.D. Id. . Plaintiff filed a Request for Hearing before an Administrative Law Judge (“ALJ”) on August 23, 2012. (Tr. 90). That hearing took place on February 13, 2014, with participation by Plaintiff's counsel and Delores Gonzalez, a vocational expert. (Tr. 37-57).

         Subsequent to the hearing, Plaintiff's counsel requested an additional thirty days to submit additional evidence into the record, though it appears that counsel chose not to supplement the record at that point after reviewing the additional evidence. (Tr. 226-227). The ALJ found Plaintiff not disabled and entered a decision to that effect on May 21, 2014 (Tr. 20-36). Plaintiff in turn filed a Request for Review of Hearing Decision/Order on June 11, 2014, putting the matter in front of the Appeals Council. (Tr. 19). On July 30, 2015, the Appeals Council denied Plaintiff's request for review (Tr. 15-18). Additional evidence was admitted to the record and the decision of the Appeals Council reopened, although it again denied the request for review on October 29, 2014. (Tr. 1-7). As such, the ALJ's decision stands as the final decision of the Commissioner. This suit followed.


         A. Testimony

         At the time of the hearing, Plaintiff[2] was a 50 year-old man born in Poland, who came to the United States at around age 20. (Tr. 40, 143). He is a naturalized citizen. (Tr. 40). He is a college graduate, having attended Maryville University. Id. Plaintiff's primary employment has been as a mortgage banker, which included both working for established companies and attempting to start his own mortgage banking company. (Tr. 41-44). Weiss has claimed an initial onset date for his disability of April 1, 2011. (Tr. 143, 146). He has not engaged in substantial gainful activity since that date. (Tr. 25). Plaintiff did file for unemployment after the alleged onset, and stated in April 2012 that he continued his efforts to get a job. (Tr. 157-159, 192).

         Plaintiff cited a number of physical and mental conditions which he alleged limited his ability to work: Short-term memory loss, hypertension, bipolar disorder, “extreme” diabetes, peripheral neuropathy in his hands and feet, shortness of breath, a heart attack in 2009, inability to see at night, fibromyalgia, and “asthma and damage to lungs.” (Tr. 175). Determining Plaintiff's social and medical history of record is somewhat problematic because the reports differ as described more fully below. Both parties appear to at least acknowledge that Plaintiff may be an unreliable witness, although the Commissioner views this as grounds for finding Plaintiff's claims lacking in credibility, while Plaintiff's counsel argues that the inconsistencies are themselves evidence of his cognitive issues.

         At the hearing in front of the ALJ, Plaintiff testified that he had “heart problems” and a stroke while in Europe in 1999, and that he spent two years out of work recovering. (Tr. 40-41). He also stated that he had a heart attack in the United States in approximately 2006, and a second stroke seven or eight months after that. (Tr. 44-45). Plaintiff also testified at the ALJ hearing that he suffers from high blood pressure, which is normally controlled by medication but can get up to 220/140 and remain at that level. (Tr. 48).

         Plaintiff also testified at the hearing that he has “extreme diabetes, ” with “high sugar levels of 500.” Plaintiff stated that he was taking medication to treat his diabetes in the form of “three shots a day each week.” (Tr. 47). Plaintiff represented in connection with his application that his medications included insulin shots. (Tr. 224). However, it appears that no one ever prescribed insulin for Plaintiff; and the only mention of insulin is less than six months before the hearing when Plaintiff refused to be treated with it. (Tr. 322).

         At the hearing, Plaintiff stated that he had joint pain since approximately 2010, describing his joints to feel like they are “on fire” and sometimes preventing him from getting out of bed. (Tr. 47). He stated that he had ultrasounds and “over 100 x-rays” related to the pain.[3]Id. When asked further about the pain, he stated that he has numbness and tingling in his hands and feet, generally on the left side of his body. (Tr. 49).

         Plaintiff's description of his physical pain is tied to his mental health issues. He states that he is bipolar. (Tr. 50). He described both the physical pain and mood swings as coming on three to four times a day, causing him to stay in bed for extended periods. Id. Plaintiff also described losing chunks of time, saying that “sometimes three weeks pass by and you just wake up and it's dark. And you didn't realize that, you know, three weeks out of your life are gone.” Id. Plaintiff stated that he saw a psychiatrist who told him that sometimes he has “a break with reality, and [he] think[s] that it's now, but it's actually the past.” (Tr. 53). He stated that the medications he was taking for depression and mood swings helped him on a temporary basis. (Tr. 50-51).

         Plaintiff also testified that he has trouble focusing and concentrating, and that he has memory loss. He alleged that these issues caused him to take “two or three years” to complete a task that “used to take [him] an hour to do[.]” (Tr. 53). He also stated that his lack of memory contributed to the loss of jobs described below, his inability to keep appointments, and his tendency to either fail to take his medications or take an extra dose. Id.

         B. Medical Records

         On September 29 2009, Plaintiff began seeing Carla Enyart, M.S., L.P.C., for testing related to possible bipolar disorder. (Tr. 369-76). Based on his intake sheet, it appears that Plaintiff was referred for testing by his primary care physician, Dr. Wan-In Lin Koo, D.O. (Tr. 370-371). He continued seeing Enyart through October 22, 2009 for approximately five visits. Enyart's session notes appear to cast doubts as to whether Plaintiff is bipolar, positing the possibility that he had depression, mood swings and Attention Deficit Hyperactivity Disorder. (Tr. 374). In his initial screening form, Plaintiff indicated that he “often” had racing thoughts and feelings of being overwhelmed, and “sometimes” had (among other things) difficulty concentrating, pounding of the heart, butterflies in his stomach, fear of being alone or isolated and unexpected panic spells. (Tr. 372-373). Plaintiff stated that he “never” had tingling or numbness in his toes or fingers. (Tr. 372). During Plaintiff's first office visit, Enyart noted that his concentration appeared to be impaired and he appeared anxious. (Tr. 374).

         On January 5, 2010, Plaintiff saw Dr. Koo and he complained of generalized body aches. (Tr. 379). Dr. Koo diagnosed Plaintiff with bilateral hip pain, paresthesia of the lower extremity, multifocal joint pain, mixed hyperlipidemia, hyperglycemia, bipolar disorder and post-nasal drainage. Id. The notes state that the hyperglycemia and hyperlipidemia were diagnosed in 2008, a mole was noted in May 2009, and the bipolar diagnosis was entered in July of 2009, prior to the referral to Enyart for testing. Id. No mention is made of any previous strokes or heart attacks. He had blood pressure of 120/72, and weighed 212 pounds. (Tr. 380). The only notes regarding medications are Zyrtec for the post-nasal drip and discontinuance of Strattera (an ADHD medication) after two and a half months. (Tr 382-383). Dr. Koo ordered a number of lab tests during this visit, but no results are included in the records.

         On October 6, 2010, Plaintiff saw Dr. Koo for a physical, where he reported “[f]eeling fine.” (Tr. 279). He told Dr. Koo that he had refurbished his $3.5 million Wildwood home, sold it within a week but then revoked the contract. (Tr. 279). He reported that his mood had been fine, and Dr. Koo noted that he was alert and oriented. Id. His blood pressure was 135/74 at this visit. (Tr. 281).

         On March 8, 2011, Dr. Koo again saw Plaintiff for knee and joint pain, and to get labs. (Tr. 271). Plaintiff reported to Dr. Koo that he had been moody and “changes [his] mind frequently, ” including selling his Wildwood home (for $1.6 million in this telling) and then changing his mind that evening. (Tr. 271). Plaintiff also reported being “more forgetful.” Id. Dr. Koo added a diagnosis of new-onset diabetes, after the subsequent lab work showed a blood glucose level of 203 mg/dL. (Tr. 272, 275). Plaintiff was also referred to a psychiatrist to address the reported mood swings and memory loss, although he indicated that he did not want to take daily medication. (Tr. 272). His blood pressure at this visit was 136/72. (Tr. 271).

         On April 8, 2011, Plaintiff was seen by Roula Al-Dahhak, M.D., for sensory and motor nerve conduction studies. (Tr. 417, 244). Dr. Al-Dahhak recorded an impression of mild demyelinating neuropathy. (Tr. 259, 418). Dr. Al-Dahhak prescribed gabapentin and recommended a follow-up study within six month, although there is no record of a second test. (Tr. 259). Plaintiff reported that his symptoms (numbness, tingling and weakness in left hand, tingling in his left lower leg) started two months prior. (Tr. 260). He also reported pain in his neck and joints, starting approximately eight months earlier. Id. Additionally, Plaintiff reported that within the previous 90 days, he had experienced changes in vision, dizziness and light-headedness. (Tr. 261). His blood pressure was 120/70 at this visit, and he was alert, awake, responsive, oriented and attentive. (Tr. 261-262). All of his reflexes and muscle strength tests were normal. (Tr. 262).

         On May 2, 2011, Plaintiff contacted Dr. Koo for a “Medication Refill.” (Tr. 386). A table listing apparent test results from a prior, March 2011 visit shows a blood glucose level of 203. (Tr. 387). He was also diagnosed with diabetic peripheral neuropathy, pursuant to the nerve conduction studies. (Tr. 386). A series of telephone conversations are memorialized in these records, during which Dr. Koo asked what blood sugar and blood pressure readings Plaintiff had at home, to which Plaintiff claimed to have lost his notes, and Dr. Koo stated that “[i]f he checked his blood pressure and blood sugars, he must have some idea what [h]is numbers are.” (Tr. 387-88). Plaintiff then told Dr. Koo's office that his blood sugars were “about 200 fasting” and his blood pressure was “approximately” 140/90. (Tr. 388). Based on these reports, Dr. Koo increased Plaintiff's apparently preexisting prescriptions for metformin and ramipril for his diabetes and hypertension, respectively. He also mandated that Plaintiff check his blood pressure daily, check his blood sugars twice daily, and report back the results in one week. Id. No record of those reports are in the transcript. The after-visit summary reveals “discontinued” medications of venlafaxine (generally used to treat depression or fibromyalgia), simvastatin (for cholesterol) and gabapentin (for nerve pain). (Tr. 390).

         The next record from Dr. Koo also reflects a telephone encounter, this time on February 24, 2012, again for medication refills. Dr. Koo's notes reflect that he had not seen Plaintiff for approximately 10 months. (Tr. 393). The notes also suggest that Plaintiff apparently “ha[d]n't taken any of his meds in months[.]” Id. Dr. Koo restarted him on gabapentin, metformin and ramipril. Id. Plaintiff was scheduled for an appointment on February 28, 2012, at which point Dr. Koo planned to discuss restarting the venlafaxine and simvastatin for Plaintiff's bipolar disorder and heart disease, respectively. No records reflecting such a visit are included in the transcript. However, on March 1, 2012, Dr. Koo received a questionnaire, apparently asking about Plaintiff's limitations and impairments. (Tr. 398). Dr. Koo seems to have declined to fill out the questionnaire and suggested that a Physical Medicine and Rehabilitation specialist see him. Id.

         Plaintiff was next seen by Dr. Koo on April 16, 2012, complaining of leg pain, problems taking deep breaths, and memory loss. (Tr. 402). Apparently, Dr. Koo had previously sent a letter of termination to Plaintiff, which Plaintiff denied receiving. (Tr. 403). The termination was due to his noncompliance. (Tr. 412). Plaintiff stated that he “[u]nderstands that he has been noncompliant with his medical care, and states that he will establish care with a new PCP as soon as possible.” (Tr. 403). Plaintiff also told Dr. Koo that he “[h]asn't been taking all of his medications for at least a few weeks now.” Id. Plaintiff stated that he had numbness and weakness in both legs, left worse than right, as well as shortness of breath and “heart coming out of [his] chest” when running or walking. Id. Plaintiff claimed that he had been having mood swings, depression, anxiety and forgetfulness. (Tr. 403). However, Plaintiff was reported as alert and oriented during the exam. Id. Plaintiff also reported that he had been evaluated at St. John's Mercy Hospital, including head imaging, in January 2012. Id. There is no record of such an evaluation in the transcript, and in fact Mercy responded to the Disability Determinations record request stating that it had no records for Plaintiff from April 2010 to March 2012. (Tr. 290, 294). At the office visit, Plaintiff had a blood pressure of 120/78, causing Dr. Koo to discontinue the prescription of ramipril. Id. Dr. Koo also ordered a number of blood and urine tests, which showed hyperlipidemia, elevated BUN/creatinine, and blood glucose levels of 289 mg/dL. (Tr. 408).

         On June 25, 2012, Plaintiff underwent a Consultative Examination by Dr. Inna Lee Park, M.D. (Tr. 297). Plaintiff's chief complaints were listed as hypertension, diabetes, coronary artery disease, asthma, lung problems, fibromyalgia, bipolar disorder and memory problems. Id. Plaintiff claimed to have been “hospitalized two or three times a year for the last five years” due to malignant hypertension, the last of which was in March 2012 in Lake St. Louis with a blood pressure reading of 220/180. (Tr. 297, 299). He claims at least some of these hospitalizations were at St. John's. Id. He also estimated his medication compliance rate at about 90%, due to sometimes forgetting to take his medication. (Tr. 297). Plaintiff also told Dr. Park that he had been diagnosed as diabetic approximately four years prior, and that an eye doctor had told him he had diabetic changes in his eyes. (Tr. 297-298). He attributed some of the numbness and tingling in his left arm and leg to diabetic neuropathy and some to a stroke. (Tr. 298). Plaintiff claimed that he checks his blood sugar three times a day with a range from 229 to 560, averaging about 280. Id. He claimed to have coronary artery disease, having had a myocardial infarction (heart attack) in 2004 while in the Czech Republic. Id. The notes also contain mention of an MI in 2009 (Tr. 297, 299). Plaintiff claimed that he had his last stress test in 2011. Id. Plaintiff claimed to have a pulmonary function test in 2011, which resulted in a diagnosis of asthma, and that he had been treated for pneumonia in 2011. Id. As to the fibromyalgia, Plaintiff claims to have had x-rays done two years before, which showed arthritis in his joints. (Tr. 298). Dr. Park noted that Plaintiff did not seem to understand the symptoms of fibromyalgia, “as his response to my questions is somewhat variable.” (Tr. 298-299). He stated that his fibromyalgia causes pain, numbness and tingling in his joints. (Tr. 299). Plaintiff stated to Dr. Park that he had a stroke in 2008 or 2009 which left him hospitalized for three days and affected the left side of his body. Id. During the examination, Dr. Park reports that Plaintiff was alert, not drowsy, with good knowledge of his medical issues, that his lungs were clear, a normal range of motion and could “squat 100 percent recovering on his own.” (Tr. 299-300). Her examination found decreased sensation to light touch from mid-calf to toe on the left and decreased proprioception at both toes. (Tr. 300).

         On the same day, Plaintiff also underwent a consultative examination for his psychological claims conducted by Kimberly Buffkins, Psy.D. (Tr. 308). Dr. Buffkins described Plaintiff as a “fair historian.” Id. Plaintiff told her that he had been seen by a psychiatrist and had received mental health counseling from 2010 until January or February of 2012. (Tr. 308). He reported feeling depressed 90 percent of the day, every day, but also stated that he sometimes has manic episodes where he “talk[s] nonstop, ” needs only an hour or two of sleep and feels “on top of the world[.]” Id. Plaintiff also describes impaired judgment during these manic episodes, including giving away $200, 000, selling his car to pay an electric bill and crashing a car. (Tr. 308-309). He also states that he has been divorced four time, and that he “lost 10 jobs in the past 5 years.” (Tr. 309). In this interview, Plaintiff stated that he had a “history of heart attack and stroke in 2007/2008 with subsequent memory problems[.]” Id. Dr. Buffkins found him to be alert on the day of the examination, cooperative and calm, tearful at times, mildly depressed with a slightly flat affect, and a logical, relevant thought process. (Tr. 309-310). His responses to the orientation and cognition tasks were mixed, giving only three numbers when asked to remember a six-digit span. (Tr. 310). He was able to complete simple calculation and was able to recall his birthplace, birthdate and social security number without issue, but could only name two past presidents when asked for four. Id. Plaintiff stated that he lives with friends and does not do household chores, pay bills, cook or shop for groceries, although he does drive. Id. He stated that he gets along with family, friends and people in general. Id. Dr. Buffkins reported that Plaintiff's concentration was fair, and that his persistence and pace were adequate. (Tr. 311). She rated his prognosis as fair, with a chance to improve if given appropriate interventions, and that he appeared “capable of managing supplemental funds.” Id.

         Subsequently, Plaintiff established care at the People's Health Center on February 20, 2013. (Tr. 350). The examination noted that he was negative for fatigue, negative for chest pain, negative for vision changes and vision loss. Id. The notes also state that he was “negative for depression and psychiatric symptoms[, ]” was oriented and demonstrated “appropriate” mood and affect. (Tr. 351-352). He was diagnosed with Type II diabetes, although he was advised that he should go to the emergency room if he had chest pain, shortness of breath, extremity numbness or tingling. (Tr. 352). He was placed back on metformin and told to test his blood sugar three times a day. Id. Tests conducted that day showed a blood glucose level of 165 mg/dL. (Tr. 157).

         Plaintiff had a nurse visit at People's Health Center on April 11, 2013 to review his test results. (Tr. 324). His blood pressure was elevated at 149/91. He stated that he was at a ...

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