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Pautler v. Berryhill

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

March 22, 2017

NANCY A. BERRYHILL[1], 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

         On August 8, 2011, plaintiff Chris Pautler protectively filed an application for supplemental security income with an alleged onset date of January 16, 2010. (Tr. 118-19, 10).[2] Plaintiff's application was denied on initial consideration on December 22, 2011, (Tr. 56-64, 67-71), and he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 74).

         Plaintiff and counsel appeared for a hearing on July 22, 2013. (Tr. 10, 86). That same day, plaintiff amended the disability onset date to February 16, 2011. (Tr. 143). The ALJ issued a decision denying plaintiff's application on August 20, 2014. (Tr. 7-31). The Appeals Council denied plaintiff's request for review on January 7, 2016. (Tr. 1-5). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability Application Documents

         In an October 27, 2011, Disability Report (Tr. 146-54), plaintiff listed his disabling conditions as severe depression, sleep apnea, irritable bowel syndrome, anxiety, and low testosterone levels. (Tr. 147). An updated report (Tr. 173-78) submitted on February 8, 2012, indicated that beginning in February 2012, plaintiff experienced worsening depression and anxiety, as well as signs of paranoia. Plaintiff also noted worsened colitis and incontinence. (Tr. 173). Plaintiff stopped working on May 31, 2008, when he was laid off. (Tr. 148). He then collected unemployment benefits for some time before he “became disabled” on January 15, 2011. Id. In the fifteen years prior to the onset of his disability, plaintiff worked as a retail manager. He stayed in that position until May 2008. (Tr. 149).[3] To treat his health conditions, doctors prescribed numerous medications including, Adderall[4] to regulate sleep, a supplement for a vitamin B deficiency, testosterone injections for his testosterone deficiency, and Zoloft[5] for depression. (Tr. 150). Plaintiff's updated disability report reflected the same prescription medications, but did not include the vitamin supplement. (Tr. 175). Additionally, the stated reasons for medications changed: Adderall was reportedly prescribed for ADHD and testosterone for managing chronic fatigue. Id.

         In a Function Report dated November 7, 2011, (Tr. 162-72), plaintiff stated that he lived in a house with his family. In response to a daily activities inquiry, plaintiff stated that after waking up he took his medications and then returned to bed for about an hour. (Tr. 162). After getting up again, he sometimes took care of his personal needs. But, sometimes he spent several consecutive days in bed, neglecting his personal care. Id. He did not list any hobbies but related that he spent most of his day watching television. (Tr. 166).

         Plaintiff reported that his health conditions did not affect his ability to dress and feed himself, and he could use the toilet without assistance. (Tr. 163). He noted that sometimes he failed to bathe and care for his hair and he seldom shaved. Id. Plaintiff attributed these personal care habits to his depression. Id. Plaintiff's mother would “gently remind” him to care for his personal hygiene and take his medications. (Tr. 164).

         Approximately once a week plaintiff “accomplish[ed] small tasks” such as laundry, housework, and yardwork. He needed encouragement to do so, due to low motivation. (Tr. 162, 164). On other days, plaintiff added, he might “just go in circles.” (Tr. 162). When it came to handling money, plaintiff could count change and use a checkbook or money orders. (Tr. 165). He could not, however, pay bills or handle a savings account, as he would become “overwhelm[ed].” (Tr. 165). Plaintiff prepared his own meals three or four times a week. (Tr. 164). He tried to make meals quickly, rather than healthfully. Id. Plaintiff left his home about two or three times each week; he was able to walk and drive alone. (Tr. 165). He shopped for clothes or groceries once every two weeks. He refrained from shopping more frequently because of his depression. Id.

         Plaintiff reported that depression has also diminished his abilities to concentrate, absorb information, and socialize, noting that in the past he enjoyed sports and school. (Tr. 163, 166). Plaintiff reported limited social interaction- whether in person, on the phone, or on the computer. (Tr. 166). He has had difficulty getting along with others, as he is “easily annoyed and impatient.” (Tr. 167). Plaintiff wrote that his “inability to communicate” manifested in “poor job function, ” and his “eventual[] termination” from a job. (Tr. 168). Plaintiff added that he experienced hearing[6] and memory difficulties, and that he struggled to complete tasks, understand, and follow instructions. (Tr. 167). He noted that his concentration, which could only persist for about fifteen to twenty minutes, limited his capacity to follow instructions. Id. Plaintiff also struggled handling stress and adapting to changes in routine. (Tr. 168). In his narrative, plaintiff attributed his disability to having been “born with the [umbilical] cord wrapped around [his] neck.” (Tr. 169).

         Plaintiff stated that he can walk a distance of only one block before requiring a ten-minute rest period. (Tr. 167). He also reported that sleep apnea reduced his daily coordination and functioning and exacerbated his depression and anxiety. (Tr. 169). He also added that irritable bowel syndrome (IBS) necessitated frequent bathroom visits. (Tr. 169).

         In a Work History Report plaintiff provided a detailed description of his prior work experience. (Tr. 155-61). Plaintiff worked as a retail manager from an unknown date until May 2008. (Tr. 156). He worked for eight hours each day, and for seven days each week, earning about $1, 200.00 weekly. Id. His job responsibilities included “ordering and maintaining sales records, ” “payroll, ” and managing staff. Id. Moreover, his duties required that he employ machines, tools, and equipment, as well as technical knowledge or skills. (Tr. 156). He also wrote and completed reports. Id. The daily physical requirements of plaintiff's position involved about 5.5 hours of walking, 5 hours of standing, 3.5 hours of climbing, 2 hours of stooping, 0.5 hours of kneeling, 1 hour of crouching, 6.5 hours of handling, grabbing, or grasping large objects, 2.5 hours of reaching, and 2 hours of writing, typing or handling small objects. Id. On a daily basis he would lift and carry boxes of stock and furniture for up to 1, 000 feet. Id. He frequently lifted objects weighing about fifty pounds or more. Id. Plaintiff supervised eight other employees in his position, and had some responsibility for hiring and firing.

         B. Testimony at Hearing

         Plaintiff testified that he lives with his 75 year old mother. He testified that his employment issues began when his former employer laid him off on May 31, 2008. (Tr. 36). He collected unemployment until January 2011. (Tr. 36). By February 16, 2011, plaintiff had ceased looking for work and collecting unemployment benefits. (Tr. 37). Plaintiff testified that he was disabled due to persistent depression, anxiety, panic attacks, chronic fatigue, and irritable bowel syndrome. (Tr. 39).

         Plaintiff testified that he used a continuous positive airway pressure machine (CPAP) for sleep apnea. (Tr. 38). When asked about medication compliance, plaintiff responded that he had stopped taking Lipitor[7] and was going to resume but his doctor was on vacation. Plaintiff stated that he was given Lipitor while in the hospital in May 2013 because doctors believed he “might have had a mini stroke.” (Tr. 38).

         Plaintiff testified that in high school he saw Jay Liss, M.D., “a couple times” for treatment of depression. (Tr. 40). Plaintiff did not see Dr. Liss for several years after that, but resumed treatment “on and off” in the mid- to late 1980's. Id. For about 2½ or 3 years preceding the hearing, plaintiff had been keeping regular appointments with Dr. Liss. (Tr. 40-41). Because of depression, plaintiff testified that feels he doesn't “have any way out” and that he doesn't “have a purpose in life because [he is] tired all the time.” (Tr. 41-42). He testified that depression had caused his inability to concentrate and follow written directions and his difficulty with reading comprehension. Id. Plaintiff reported that he had become forgetful and that lately his “memory isn't all that good.” Id. As a further consequence of depression, plaintiff testified that he does not have “any social life anymore” and that he has “lost contact with all [his] friends.” (Tr. 43). Additionally, he has days when he does not “feel like getting out of bed.” Id. Plaintiff testified that “there might [be] three days in a row” when he does not “get out of bed or take a shower or do anything.” (Tr. 45).

         Plaintiff testified that anxiety makes him feel overwhelmed at times. (Tr. 46). He could not identify specific triggers for his anxiety but he believed it sometimes arose from thinking about his responsibilities. (Tr. 46, 47). He also attributed anxiety to an incident several years earlier when he was shot during an attempted robbery. Id. That experience led to fear of leaving home and suspicion of strangers in public places. (Tr. 48).

         Plaintiff's described how chronic fatigue made him “dizzy and lightheaded.” (Tr. 46). He also complained of resulting muscle aches and difficulties walking. Id. The onset of the fatigue was generally unpredictable. Id. Although plaintiff could still drive, fatigue sometimes interfered and he would have to pull over until it passed. (Tr. 54).

         Plaintiff testified that he had sleeping difficulties for which he took Ambien.[8](Tr. 49). Nevertheless, he still struggled to fall asleep due to racing thoughts and uncomfortable positioning to accommodate his CPAP machine. (Tr. 49-50). He woke up frequently throughout the night, preventing him from getting adequate rest. Id. As a result, he might not hear an alarm and might not get out of bed until anywhere between 10:00 a.m. and 2:00 p.m. (Tr. 50, 51).

         On a typical day, plaintiff began by taking his medication-two Adderall, one Zoloft, and aspirin. Id. Because he was often still tired, he would go back to bed for another hour. Id. Upon arising, he might take a shower or take vitamin supplements or Metamucil. Id. During the afternoon and evening plaintiff cooked or ate meals. (Tr. 52). Plaintiff did not have any hobbies. Id. Instead, on a typical day he watched television or did chores such as cleaning, laundry, or mowing the lawn. Id. On occasion he shopped for groceries. Id. Plaintiff told the ALJ that he does not participate in any social activities or groups. However, in the two years preceding the hearing, he and his mother traveled to the Lake of the Ozarks several times and plaintiff went fishing there. (Tr. 43, 53-54).

         C. Vocational Specialist Interrogatories

         Following the administrative hearing, the ALJ propounded interrogatories to vocational specialist Gerald Belchick. (Tr. 198-202). The ALJ asked whether an individual born on July 25, 1962, with at least a high school education, who can communicate in English, with work experience as a retail sales manager, and who has the residual functional capacity (RFC) to perform a full range of work at all exertional levels but has nonexertional limitations of (1) routine repetitive tasks (SVP not to exceed 2), (2) occasional interaction with the public, and (3) occasional to frequent interaction with co-workers and supervisors, could perform prior past jobs and could perform any unskilled occupations with jobs that exist in the national economy. (Tr. 199-200). Belchick responded that the individual did have work experience within the past fifteen years but he could no longer perform the same position. (Tr. 198-99). He also opined that the individual could perform unskilled occupations in the national economy. (Tr. 200). Specifically, he noted that “there are a number of unskilled jobs that are simple, routine and repetitive and that do not involve frequent interaction with the public, co-workers or supervisors.” (Tr. 202). Such positions included warehouse worker, commercial laundry worker, and cleaner. (Tr. 202).

         D. Medical Records

         Pre-Onset Mental Health Records

         Jay Liss, M.D., met with plaintiff on March 19, 2009. (Tr. 220). Dr. Liss diagnosed plaintiff with depression and attention deficit disorder (ADD). Id. He wrote that plaintiff's medications included Zoloft and Adderall. Id. During that session, plaintiff told Dr. Liss that he was sleeping less. Id. Notes from June 10, 2009, reflect similar findings; but Dr. Liss added that plaintiff suffered from anxiety. (Tr. 219). On July 9, 2010, Dr. Liss wrote that plaintiff maintained the same dosage of Adderall and Zoloft and had a GAF of 60. (Tr. 218). Dr. Liss diagnosed plaintiff with ADD. Id. He further noted that plaintiff had to go to court due to a trespassing charge. Id. Records also indicate that plaintiff discussed his unemployment. Id. In his next set of meeting notes, Dr. Liss clarified that the trespassing charges were civil in nature. (Tr. 217). He also found a GAF of 60 and wrote that plaintiff had ADD and still held prescriptions for Adderall and Zoloft. Id

         During a physical exam at Barnes Jewish Hospital on November 24, 2010, plaintiff reported that he took antidepressants and Adderall (for daytime fatigue). (Tr. 231). Scott D. Groesch, M.D. wrote of plaintiff's depression that he “seem[ed] stable on current medications.” (Tr. 232).

         Post-Onset Mental Health Records

         On March 9, 2011, plaintiff again saw Dr. Groesch. (Tr. 229-30). He noted that plaintiff presented with “normal sleep, mood, energy, sense of well-being and memory.” (Tr. 229). He further wrote that plaintiff's depression was “stable on the above listed medications” (Adderall and Sertraline HCl). (Tr. 229-30). Dr. Groesch reported similar findings during a visit on March 30, 2011. (Tr. 227-28). He specifically stated that plaintiff's “depression is much improved and is followed by psychiatry.” (Tr. 227). Moreover, he reported that plaintiff was “improving” and “well-controlled on current regimen.” (Tr. 227-28).

         Plaintiff attended a psychiatric appointment with Dr. Liss on May 20, 2011. Dr. Liss's notes indicate that the two discussed plaintiff's attorneys, as well as his medications. Dr. Liss found on Axis I that plaintiff had ADD. His GAF assignment on Axis V is indecipherable. (Tr. 216). When plaintiff returned on September 16, 2011, Dr. Liss wrote that he was “feeling more depressed” and had night and day “mixed up.” (Tr. 263). In addition he wrote that plaintiff felt “worried about his mother.” Id. Again, Liss diagnosed plaintiff with ADD. Id. Plaintiff's prescription medications remained the same. Id.

         During a November 17, 2011, visit to Dr. Groesch, plaintiff complained of “ongoing depression.” (Tr. 225). At that time plaintiff maintained the same prescription regimen for his depression (Setraline HCl), but also had prescriptions for Adderall, Lipitor, and Depo-Testosterone shot. Id.

         On December 5, 2011, Lenora V. Brown, Ph. D., conducted plaintiff's psychological evaluation. (Tr. 246-50). Dr. Brown reported that she reviewed plaintiff's medical records prior to the examination and noted that his chief complaints were severe depression, sleep apnea, IBS, anxiety, and low testosterone levels. (Tr. 246). Dr. Brown began by describing each of plaintiff's presenting issues. She first noted that plaintiff had no knowledge of a diagnosis of ADD, despite its repeated mention in medical records. Id. Plaintiff reported constant symptoms of depression including “fatigue, irritability, sense of worthlessness, sadness, lack of interest in engaging in social activities, decreased concentration, ” low self-esteem, guilt about being a burden, disturbed sleep, and increased appetite with fluctuating weight. (Tr. 247). Plaintiff also told Dr. Brown that he had struggled with anxiety since high school and depression since childhood. Id. He denied any suicidal attempts, excessive alcohol consumption, drug use, or inpatient admissions. Id. His medications at the time were Straline 100 mg, once daily; Adderall 30 mg, twice daily; and testosterone injections. Id.

         Dr. Brown reported that plaintiff's grooming and hygiene appeared within normal limits. (Tr. 248). She did not observe “unusual motor activity or disturbance in gait.” Id. With respect to plaintiff's ability to relate, Dr. Brown noticed that although his eye contact was poor, he succeeded in generating “some spontaneous conversation.” Id. Plaintiff's cooperation with the examiner seemed fair and “no problems were noted in either receptive or expressive language domains.” Id. Generally, plaintiff's speech was normal and Dr. Brown related that his rate, rhythm, and volume fell within normal limits. Id. Dr. Brown further opined that while plaintiff's affect appeared within normal limits, he reported that he felt “sort of closed in.” Id. Dr. Brown's assessment of plaintiff's thought process found it generally normal-he denied paranoid ideation, as well as auditory or visual hallucinations. Id. Also, “[d]uring the evaluation he was coherent and his conversation was relevant and logical.” Id. In the sensory tests, plaintiff successfully repeated five digits forward, named the current president and governor, named the past four presidents, and identified his birthplace, birthdate, and social security number. Id. He could not name the current mayor. Id. On a series of tests involving judgment (how to react to various scenarios), calculation (performing simple calculations and a serial threes task), proverb interpretation, and similarities and differences questions, plaintiff successfully answered all questions, and Dr. Brown rated him as “fair” in each category; he completed calculations without difficulty. (Tr. 248-49).

         Next, Dr. Brown evaluated plaintiff's level of daily functioning. (Tr. 249). She reported that plaintiff told her he can pay bills and has a bank account. Id. He also stated that he can cook, use a microwave, and make a sandwich. Id. He shops for groceries once a week, and was able to perform basic chores such as laundry, vacuuming, and cleaning the bathroom. Id. Plaintiff told Dr. Brown that “[o]n average” he is “capable of doing things about once a week.” Id. In terms of his social functioning, plaintiff “reported a history of problems getting along with others in a work setting and acknowledged being terminated twice.” Id. He also noted some friction with his mother. Id. Furthermore, he only reported television as a leisure and recreation activity. Plaintiff reported that he does not always care for his personal needs due to fatigue. Id. Finally, Dr. Brown observed that plaintiff's “concentration, persistence, and pace were fair during the duration” of the evaluation. Id.

         Dr. Brown concluded that plaintiff's ability to perform activities of daily living and personal grooming were mildly impaired. Next, she found that his levels of social functioning and occupational functioning (ability to remember and carry out simple tasks, concentrate, persist for a normal period of time, and adapt to a normal workplace) were moderately impaired. (Tr. 250). She diagnosed plaintiff with depressive disorder, not otherwise specified, and assigned a GAF of 65. Id.

         On January 11, 2012, Dr. Liss took notes on plaintiff's various conditions- depression, chronic fatigue, sleep apnea, low testosterone, and ADD. (Tr. 262). He also wrote that plaintiff had been denied disability benefits. Id. Dr. Liss indicated a GAF of 45. Id.

         On February 1, 2012, Dr. Liss noted that plaintiff was applying for disability benefits. (Tr. 261). He also reported that plaintiff complained of “memory trouble” and stress. Id. Plaintiff received a GAF evaluation of 50 and a diagnosis of ADD. Id. In his April 4, 2012, evaluation, Dr. Liss reported diagnoses of ADD and depression. (Tr. 260). The notes also reflect that plaintiff discussed various legal issues with Dr. Liss during that appointment. (Tr. 260). Dr. Liss assigned a GAF of 40. Id.

         Plaintiff presented to Barnes Jewish Hospital on February 3, 2012, for a physical exam, during which he discussed his mental health complaints. (Tr. 273- 74). Plaintiff told Dr. Groesch that he had long-standing depression, for which he was seeing a psychiatrist. He noted that he took Adderall for daytime fatigue, as well as antidepressants. (Tr. 273). Of plaintiff's depression, Dr. Groesch wrote that it “seems stable on current medications, ” and associated depression treatment with improving plaintiff's generalized fatigue. (Tr. 274).

         Plaintiff met with Dr. Liss on May 31, 2012, at which time Dr. Liss diagnosed him with ADD and a thought disorder. (Tr. 259). Dr. Liss recorded several observations relating to plaintiff's ADD including “(1) poor attention, ” “(2) poor sustainability”, “(3) doesn't listen well, ” “(4) poor follow through, ” “(5) poor organization, ” and “(6) loses thought.” (Tr. 259). These notes appear to be copied from later meeting records taken on August 15, 2012. (Tr. 257). There was also some conversation about plaintiff's legal issues. Id. Dr. Liss assigned plaintiff a GAF of 50. Id.

         On June 29, 2012, Dr. Liss wrote that plaintiff was “at the lake” and diagnosed plaintiff with ADD and a thought disorder. (Tr. 258). He noted a GAF of 40. Plaintiff's prescriptions were unchanged. Id.

         Records from August 15, 2012, mirror those from May 31 noted above. (Tr. 257). Dr. Liss found that plaintiff had ADD and a GAF of 40. Id. Dr. Liss recorded the same GAF and ADD diagnosis on October 1, 2012. (Tr. 256). Topics of discussion included plaintiff's siblings and use of the CPAP machine. Id. Dr. Liss's diagnoses remained consistent on November 14, 2012. (Tr. 255).

         Plaintiff visited Barnes Jewish Hospital to follow up regarding his fatigue. (Tr. 271-74). Dr. Groesch noted that plaintiff “has some depression symptoms, ” which “are partially improved with use of the testosterone supplements.” (Tr. 271). Psychiatric evaluation also included findings of “normal sleep, mood, energy, sense of well-being and memory.” (Tr. 272). The assessment of plaintiff's psychiatric state concluded that he “seems stable on current medications, ” and will follow-up with a psychiatrist. Id.

         On December 19, 2012, plaintiff and Dr. Liss discussed plaintiff's sleep issues and weight loss. (Tr. 254). Dr. Liss found that plaintiff had ADD and a GAF of 40. Id. This assessment remained unchanged at the appointment on January 23, 2013. (Tr. 253).

         Plaintiff told Dr. Liss about his sleep apnea and overeating issues on February 1, 2013. (Tr. 252). He concluded that plaintiff had ADD and a GAF of 50. (Tr. 252). Notes from ...

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