United States District Court, E.D. Missouri, Eastern Division
TOM F. WEISS, Plaintiff,
NANCY A. BERRYHILL Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE
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).
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).
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
time of the hearing, Plaintiff 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).
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
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).
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).
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.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.
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).
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.
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).
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.
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).
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).
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).
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).
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.
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.
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.
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.”
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.
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