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Westall v. Berryhill

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

March 24, 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 March 29, 2012, plaintiff Cindy Westall protectively filed an application for supplemental security income with an alleged onset date of August 1, 2010. (Tr. 168-75).[2] After plaintiff's applications were denied on initial consideration (Tr.72- 76), she requested a hearing from an Administrative Law Judge (ALJ). (Tr.87; 162-65).[3]

         Plaintiff and counsel appeared for a hearing on June 3, 2014. (Tr. 164). The ALJ issued a decision denying plaintiff's application on July 16, 2014. (Tr. 10-27). The Appeals Council denied plaintiff's request for review on November 18, 2015. (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 undated Disability Report (Tr. 202-10), plaintiff listed her disabling conditions as depression, back pain, gout, emphysema, and numb feet. An updated report submitted on July 11, 2012 indicated worsening foot pain and breathing difficulties. (Tr. 254-58). Plaintiff reported that she stopped working on August 1, 2010, when she was laid off. However, she states that her health conditions as of August 1, 2010, were sufficiently severe to prevent her from working. Plaintiff's employment history included work as a cashier, a desk clerk at a hotel, a home health aide, and a laundry worker. (Tr. 204-05). To treat her various health conditions, doctors prescribed various medications for emphysema and gout, Ambien for sleeping, [4] Effexor for depression, [5] Xanax for anxiety and depression, [6] and Vicodin for pain.[7] (Tr. 206). In her updated disability report dated April 30, 2012, plaintiff noted additional prescriptions for Percocet, [8] Morphine, and Mobic.[9] (Tr. 252).

         In a Function Report dated April 26, 2012, (Tr. 231-38), plaintiff stated that she lived in a house with her immediate family. In response to a question about her daily activities, plaintiff claimed that she generally started the day by waking her teenage children at about 6:00 AM. While the children get ready for school she takes her medications and lay down in bed with a heating pad watching television. She reported that back pain interfered with her ability to complete most chores. Her children took care of the pets, did the dishes and yard work, cleaned the home, and cared for themselves. Plaintiff stated that she starts the washing machine, but the children perform the rest of the laundry tasks. She did not prepare breakfast or lunch, because the children ate these meals at school. In the evenings and on weekends, she prepared frozen foods or sandwiches, as difficulty with bending and standing for long periods of time inhibited her ability to use the stovetop for cooking.

         Plaintiff reported that her capacity to do everyday tasks became difficult because of back and foot pain, muscle spasms, and difficulty breathing. Additionally, plaintiff's depression led to sleep issues. She could, however, go out alone to retrieve mail, drive, and shop for groceries or personal items about once a month. Moreover, she could pay bills, count change, handle a savings account, and use a checkbook or money orders. Her hobbies included watching television and, on occasion, crotchet. She had no problems with her family but had difficulty getting along with neighbors and others. Plaintiff estimated that she spent about ninety percent of her time at home. But she did not need to be accompanied when she went out. Plaintiff stated that she experienced difficulties lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, completing tasks, concentration, and getting along with others. Furthermore, she could not walk farther than one block in hot or cold temperatures without resting. If she suffered back spasms or breathing difficulties, then she had to rest for several hours before resuming walking. Plaintiff could pay attention for several hours at a time but there were times when she was unable to finish a task, conversation, a movie, or a book that she had started. She was able to follow instructions, such as a recipe, but she preferred to do things her way “and not the way someone else wants it done.” (Tr. 236).

         Plaintiff reported that she respects authority figures, such as police officers, but if she believes she or her children are “in the right” she will “go to the extreme” if necessary. (Tr. 237). Plaintiff also reported that she struggles with anger issues. She was fired from her job as a cashier in a tobacco store because she checked for identification too often and argued with customers. With regard to her ability to handle stress, she stated that she tended to hold in tension and isolate herself, which resulted in explosive behaviors and loss of temper. Finally, plaintiff added that she had struggled with grief since the death of her father in 2008.

         A third-party Function Report completed by plaintiff's husband is consistent with plaintiff's own report, although he described her emotional condition as “bipolar.” (Tr. 222-29). Additionally, in an April 2012 supplemental report, plaintiff indicated that she checks her email in the evenings for about thirty minutes. (Tr. 252).

         In a Work History Report plaintiff described her prior work experience. (Tr. 240-47). From November 2009 to July 2010, plaintiff was an in-home healthcare worker. In that position she cooked, cleaned, and did the shopping for patients. (Tr. 240). Plaintiff alleged that foot swelling interfered with her ability to perform these tasks, which required periodic walking, standing, and sitting. Prior to her home healthcare work, plaintiff worked as a cashier in a convenience store. That job required periodic walking, standing, and sitting for hours. (Tr. 242). Her prior positions as a front desk clerk at a hotel, a nursing or medical aid, and as a cashier at a liquor and department store involved many of the same duties and conditions. (Tr. 240-47). Her work at a nursing home and a residential facility, which took place “years ago, ” involved more physical labor because she had to operate Hoyer lifts and help to move patients. (Tr. 244).

         B. Testimony at Hearing

         Plaintiff testified that she quit school after the ninth grade but later completed Certified Nursing Aide training. (Tr. 38). She further recounted that she last worked in 2010 as a home health aide, and prior to that she worked for a few months as a cashier, a hotel desk clerk, and a laundry worker. When asked about her medication regimen, plaintiff responded that each day she took fifteen milligrams of morphine, “Percocet 10 325's” three times, Remeron[10] in the morning and at night, 15 milligrams of levothryoxine, an Albuterol inhaler and nebulizer, a nebulizer she could not recall, Mobic, Claritin, and a Spiriva inhaler. (Tr. 38-39). She stated that the medications sometimes made her drowsy.

         Plaintiff testified that she was unable to walk farther than a half a block without running out of breath. (Tr. 39). She also had back spasms after sitting for longer than fifteen or twenty minutes. Plaintiff believed she could lift a gallon of milk from the floor to the counter, but it could be difficult for her to lift two gallons due to back strain.

         Plaintiff stated that she lives with her daughter in a two-story home. (Tr. 40). Her daughter did most of the chores around the home, including washing the dishes. Plaintiff told the ALJ that a friend takes her to the grocery store about once a month.

         Plaintiff's testimony about her typical day mirrors the statements she made in the April 26, 2012 Function Report. (Tr. 41). Plaintiff testified that she was able to dress and bathe herself and to help her daughter prepare dinner. According to her testimony, plaintiff often spent most of the day in bed watching television. At night, she took a sleeping aid (Ambien) but she only slept for four or five hours. Plaintiff's doctors last adjusted her prescriptions for depression and anxiety several months prior to the hearing. (Tr. 42).

         The ALJ asked vocational expert John McGowan, to address plaintiff's vocational history and identify the exertional levels of her past work. (Tr. 43-48). McGowan testified that given plaintiff's age, education, and work experience, in addition to her physical limitations, she would not be able to perform her prior work. (Tr. 45). He did, however, identify jobs in the national economy that could be performed by an individual with plaintiff's limitations. (Tr. 46). Specifically, he mentioned sedentary, unskilled, direct entry positions or otherwise stated, routine assembly jobs. He noted that Missouri had 794 positions for a final assembler of optical goods and 216 positions for hand packaging and sealing of pharmaceutical supplies. (Tr. 46). The ALJ then presented the hypothetical of a person with the same physical limitations but also with a need to take routine breaks, resulting in a fifteen percent loss in daytime work hours. (Tr. 46). The expert concluded that given the corresponding reduction in production, such a person would not be employable. (Tr. 46-47). Plaintiff's counsel then inquired whether numbness in the bilateral extremities might affect one's ability to work in the aforementioned positions. McGowan said such numbness would preclude working in those positions. Also in response to counsel's questioning, McGowan testified that there would not be significant social interaction in those positions. (Tr. 47-48).

         C. Educational and Medical Records

         Education records show that plaintiff consistently struggled with her grades in her elementary school years. (Tr. 266-70). When plaintiff was in the sixth grade, her Criterion Reference Tests demonstrated “significant weaknesses” in reading and math; she scored in the 18th percentile. (Tr. 281). According to a social and behavior assessment, plaintiff did not interact well with her peers and she had become loud and threatening on a number of occasions. (Tr. 281). That assessment also remarked that plaintiff exhibited disrespect toward authority figures. (Tr. 281). When plaintiff was in middle school, the Division of Family Services placed her in Park Central Hospital. (Tr. 274, 281).

         An Individualized Education Program plan from plaintiff's seventh grade year (May 1986) illustrated that she antagonized her peers and disrupted the classroom. Often, plaintiff did not complete her work. (Tr. 276). She received failing scores in all categories on a locally-administered standardized exam. (Tr. 271). By the 1986- 87 school year, she was spending about 86 percent of her time in special education programs. (Tr. 284). In December 1986 the school suspended plaintiff for ten days due to a serious temper outburst. (Tr. 284). And in January 1987, the school district placed plaintiff in a behavior disorders program. (Tr. 275).

         Plaintiff's medical records from the onset of her disability, in August 2010, to June 2014 are extensive. Although the Court has considered the entire record, the analysis of records that do not concern plaintiff's mental conditions is condensed.

         On August 7, 2010, plaintiff underwent a psychological evaluation by Thomas J. Spencer, Psy. D. (Tr. 326-30). The evaluation was conducted for the purpose of determining Medicaid eligibility. (Tr. 326). During that consultation, plaintiff primarily complained of “emphysema, ” inability to afford her medications, and “all kinds of problems.” (Tr. 326). Plaintiff told Dr. Spencer that doctors previously diagnosed her with bipolar disorder and posttraumatic stress disorder, and that she took Xanax for anxiety. (Tr. 326). She described her mood as “alright” but asserted that her temper flared up periodically. (Tr. 326). Plaintiff also reported that she had recently begun having trouble sleeping, “but this is not typically an issue.” (Tr. 326-27). Plaintiff stated that she became anxious and depressed or “overwhelmed” when she thought of her father or grandmother. (Tr. 326, 327).

         Plaintiff's daily activities included taking her children swimming, as they were out of school at the time. She also looked for jobs and kept up with housework. Occasionally, she crocheted, sewed, or used the computer. (Tr. 328).

         When Dr. Spencer tested plaintiff's immediate memory, she recalled three out of three objects. (Tr. 329). She recalled zero out of three objects on a “recent” memory test. (Tr. 329). Dr. Spencer also assessed plaintiff's concentration. Plaintiff experienced some difficulty counting in series of three, accurately spelled “world” backwards, accurately recited five out of five numbers forward, and two out of three numbers backward. (Tr. 329). Plaintiff also correctly answered eight different arithmetic questions. (Tr. 330). Additionally, she accurately recognized two of three proverbs, three out of three sets of similar items, and three out of three social norms. (Tr. 329-30). Dr. Spencer noted that there was no obvious impairment in plaintiff's hygiene or grooming, that her eye contact was good, she showed no physical distress, and that she was “fairly cooperative.” (Tr. 328). Her flow of thought was intact and relevant, she did not demonstrate any hallucinations or delusions, but her insight and judgment were noted as “questionable.” (Tr. 329).

         From a review of plaintiff's psychiatric, medical, family, and social history, as well as her daily functioning and mental status, Dr. Spencer concluded that plaintiff had a mood disorder, posttraumatic stress disorder (by history), bipolar disorder (by history), and a GAF of 60 to 65. (Tr. 330). He further found that plaintiff had a “mental illness, albeit one that does not appear to interfere with her current ability to engage in employment suitable for her age, training, experience, and/or education.” (Tr.330).

         On October 12, 2010, plaintiff underwent an additional psychiatric evaluation conducted by Marc Maddox, PhD. (Tr. 381-91). His evaluation addressed two categories, 12.04 Affective Disorders and 12.06 Anxiety-Related Disorders. (Tr. 381). Generally, Dr. Maddox concluded that plaintiff's impairments were not severe. (Tr. 381). Under the 12.04 Affective Disorder category, Dr. Maddox found that plaintiff had a mood disorder and bipolar disorder (by history). (Tr. 384). He also noted that under the 12.06 Anxiety-Related Disorders category plaintiff struggled with posttraumatic stress disorder (by history). (Tr. 385). Dr. Maddox assessed the degree of limitation caused by these disorders within four branches: (1) restriction of activities of daily living, (2) difficulties in maintaining social functioning, (3) difficulties in maintaining concentration, persistence, or pace, (4) and repeated episodes of decompensation. (Tr. 389). In each of the first three categories, Dr. Maddox concluded that plaintiff's degree of limitation was “mild.” He further noted that she had no repeated episodes of decompensation. (Tr. 389). In his notes, Dr. Maddox wrote that at the time of application the plaintiff “did not display any obvious psych-related difficulties during the teleclaim.” He also noted that on August 3, 2010, an MER found plaintiff to have “normal speech, mood, and affect.” Dr. Maddox also described an August 4, 2010, psychological evaluation, which stated that plaintiff had “residual symptoms related to grief [and] depression surrounding her father's death, ” and that plaintiff's “speech was normal, mood was fine, affect neutral, and FOT normal.” (Tr. 391). The prior evaluation also yielded a diagnosis of mood disorder and a GAF of 60-65, as the evaluator “did not feel that [plaintiff's] impairments” would “interfere with her current ability to engage in employment.” (Tr. 391). Dr. Maddox found that plaintiff could pay attention for several hours, drive, shop, go out alone, cook simple meals, and complete simple household chores. Plaintiff told Dr. Maddox that she struggled with concentrating and getting along with others. (Tr. 391). After reviewing the prior evaluation notes and conducting his own independent evaluation, Dr. Maddox found that plaintiff's allegations were only “partially credible, ” as her activities of daily living were inconsistent with medical evaluations. He concluded that plaintiff's “[c]ondition is not severe.” (Tr. 391).

         On January 31, 2012, plaintiff visited several doctors complaining of a migraine headache. She reported to Vijay S. Sekhon, MD, with the “worst headache ever.” (Tr. 396). He conducted a brain CT scan and found no abnormalities. (Tr. 396). That same day, plaintiff also went to Rolla Family Clinic. Shaundelle Olusanya, FNP, examined her for a migraine plaintiff experienced on and off for four days. (Tr. 539). Olusanya's notes stated that “she was seen 4 days ago at RFC for a migraine headache and was given [N]ubain and Phenergan. She was reminded of the office policy that she cannot get 2 shots of [N]ubain within the same week. She was offered a shot of [T]oradol but opted to go to the ER instead.” (Tr. 539).[11] Also on that day, plaintiff appeared at Phelps County Medical Center complaining of a headache. (Tr. 483). The plaintiff underwent a lumbar puncture in addition to other diagnostic tests. (Tr. 483). Notes report that plaintiff “did not mention narcotic usage or recent visit with [primary care physician] who prescribed [T]oradol. In addition patient embellishes her story to say she only gets 160 10/325 [V]icodin when she really gets 168. Not truthful. Also demanding pain meds.” (Tr. 485). The clinical impression was that plaintiff had chronic headaches and drug seeking behavior. (Tr. 486).

         Plaintiff visited doctors at Phelps County Regional Medical Center with a sore tongue and a headache on February 9, 2012. (Tr. 476). Her general appearance was noted as “no apparent distress, ” and “alert.” (Tr. 479). Several weeks later, Frank Elders, M.D., examined plaintiff at Phelps County Regional Medical Center on February 29, 2012. (Tr. 473-75). Plaintiff told Dr. Elders that she came into the hospital because of sleep issues. (Tr. 473). Dr. Elders discharged plaintiff with clinical impression of depression. (Tr. 475).

         Pathways Outpatient employee Gene Schaefer, CSS, conducted an initial intake assessment of plaintiff on February 29, 2012. (Tr. 438-43). The presenting issues at that time included such statements as “I'm about to lose it, ” and “I've been kicking in doors”; plaintiff also presented “[a]nger control issues” because her “17 year old on has been using drugs and [plaintiff] has been confronting the people that she believes is supplying those drugs.” (Tr. 438). Plaintiff's history of domestic assault issues, an alleged assault of her mother-in-law, and threatening of a neighbor were also summarized in the report. (Tr. 438-39). Current symptoms were listed as “racing thoughts, ” that affect sleep, poor concentration, anger, blunted affect, depression, somewhat rapid speech, and weight gain. (Tr. 439). Schaefer's assessment included comments from a previous evaluation:

“[c]lient stated that she was court ordered to attend counseling due to a trespassing charge that her mother-in-law brought up against her. . . Client stated that she went into foster care at age 11 for about one month. Client stated that she received counseling during this time. Client stated that when she was in 6th grade she kicked the principal in the groin area and she was sent to a group home in Forshtye, Missouri, she was there for two years. She denied a history of impatient hospitalization.”

(Tr. 442).

         Moreover, Schaefer provided a provisional diagnosis:

“Client is a 38 year old female who has been involved in Pathways services several times. Her most recent episode of care ended in 2008. She presents today as an urgent client who is having issues with anger control, which has also been a problem in the past. She has “kicked in the door” of a home where she suspected her son[stet] was buying marijuana and also accosted staff at the Pleasure zone for selling ‘bath salts' to her son. She has previously been treated for both PTSD and MDDR. Each time she has been in treatment with us, she has eventually gone off of her meds and suffered a relapse. She continues to report symptoms that are indicative of MDDR and she also has numerous symptoms of anxiety. She is no longer reporting any flashbacks or dreams of her father's death, but readily admits that she has not dealt with that after nearly 4 years.”

(Tr. 442).

         The provisional diagnosis on Axis I was major depressive disorder (moderate) and posttraumatic stress disorder. Schaeffer evaluated her Axis V with a Global Assessment of Functioning (GAF)[12] of 50. (Tr. 443).

         Plaintiff then visited Forest City Family Practice on March 1, 2012, complaining of stress and sleep problems. (Tr. 424-25). She was prescribed Trazodone, and it was noted that plaintiff would seek additional help from Pathways. (Tr. 424).

         Pathways progress notes from March 5, 2012, by Kelsey Hansen, BA, CSS, show that plaintiff expressed frustration with her son and discussed how her medical problems had impacted her. She was asked whether she felt that speaking to a counselor would help her deal with the problems with her son and her father's death. (Tr. 450).

         Plaintiff returned to Forest City Family Practice on March 9, 2012, to acquire new sleeping medication. She reported that she had lower back pain and difficulties sleeping even though she took 100 mg of Trazodone.[13] (Tr. 422). The treating physician diagnosed plaintiff with insomnia and opined that it was likely depression related; she also recommended a follow-up psychology appointment. (Tr. 423).[14]

         Pathways notes from March 12, 2012, indicate that plaintiff's “hygiene was good, however, [plaintiff] was still wearing pajamas. [Plaintiff's] mood was tired and affect matched.” (Tr. 451). Treatment continued on March 16, 2012, when Kelsey Hansen, CSS, accompanied plaintiff to her psychiatric appointment. (Tr. 452). At that time, Hansen observed that plaintiff had good hygiene, appropriate clothing, and that her “mood was good and affect matched.” (Tr. 452). Hansen reported similar observations on March 22, 2012. (Tr. 454).

         On April 2, 2012, Pathways employee Amanda Brumley, BA, CSS, evaluated plaintiff's condition. (Tr. 455-58). She wrote that the presenting problems and situation included, lack of “motivation and energy, ” “excessive worry about her son, ” “a history of not cooperating with employers, ” “trouble with co-workers because she ‘didn't socialize, '” “numerous contacts with the police, ” inability “to express her anger appropriately, ” “struggles with change, ” and “impulsive decisions.” (Tr. 455). Her medications at the time were the muscle relaxer Flexeril, Vicodin for pain, Dulera inhaler for emphysema, Albuterol for emphysema, Ultram for inflammation, Trazodone for sleep, Xanax for anxiety, Neurontin, and Effexor for depression. (Tr. 456). Additionally, diagnoses in the notes included major depressive disorder (recurrent and moderate), as well as posttraumatic stress disorder on Axis I. Brumley indicated an Axis V GAF of 50. (Tr. 457). Hansen completed a progress note on April 12, 2012, describing plaintiff as having good hygiene, acceptable clothing, and a good mood and affect. They discussed plaintiff's prior anger management classes. (Tr. 459). A progress report from April 6 and April 17, 2012, presented similar results. (Tr. 460).

         Plaintiff continued treatment with counselors and doctors at Pathways during the spring of 2012. Denise Troy Curry, M.D., met with plaintiff regarding medication management on April 25, 2012. (Tr. 656-58). Plaintiff reported that Paxil caused headaches and that she had discontinued antidepressants. (Tr. 656).[15] Dr. Curry observed that plaintiff was “readily cooperative with [the] interview, ” “appropriately dressed and groomed, ” and had a “brighter demeanor.” (Tr. 657). She further noted that plaintiff exhibited “good verbal fluency and comprehension coupled with full abstraction capacity” indicating “average intellectual function.” (Tr. 657). Dr. Curry had an impression of major depression recurrent (severe, without psychotic features) and complicated bereavement syndrome, tolerance to sedating effects of medications, caffeinism, and inadequate sleep hygiene on Axis III, and a GAF of 59 on Axis V. (Tr. 657). Ultimately, Dr. Curry recommended an increase in Vistaril and follow-up appointments.[16] (Tr. 658).

         On April 30 and May 14, 2012, plaintiff met with Hansen to discuss plaintiff's “recent anger outbursts, ” and sleeping problems. (Tr. 654-55). On April 27 and April 30, 2012, plaintiff visited Forest City Family Practice for an evaluation of her chronic back pain, COPD, and anxiety and depression[17] in connection with her disability benefits application. (Tr. 811-14).

         Dr. Curry met with plaintiff regarding medication management on May 16, 2012. (Tr. 650-52). Plaintiff reported increased anxiety and “low mood.” (Tr. 650). Dr. Curry advised plaintiff to continue using Vistaril, begin taking Citalopram on a trial basis, and discontinue Ambien.[18] (Tr. 651). Dr. Curry documented an impression of major depression recurrent (severe without psychotic features) and complicated bereavement on Axis I and a GAF of 59 on Axis V. (Tr. 651). A June 27, 2012, counseling session focused on anxiety and anger management strategies. (Tr. 649).

         Dr. Curry met with plaintiff again on July 18, 2012. (Tr. 646-48). In her individual progress notes, Dr. Curry wrote that plaintiff came in for a follow-up, “reporting irritability” and “passive thoughts of death.” (Tr. 646). Observations included that plaintiff was “readily cooperative with interview, ” “appropriately dressed and groomed, ” “speech clear, ” an “‘overwhelmed'” mood, and generally normal assessments otherwise. (Tr. 647). On Axis I Dr. Curry found that plaintiff suffered from major depressive disorder (recurrent, severe without psychotic features), as well as complicated bereavement. Further, Dr. Curry found a GAF of 42. (Tr. 647). Dr. Curry recommended plaintiff take Invega before bedtime and Cymbalta in increasing increments.[19] (Tr. 647).

         Plaintiff visited Forest City Family Practice in the summer of 2012 for assorted medical issues including neck and back pain as well as a noted need for a psychological follow-up on July 9, 2012. (Tr. 807-10). Specifically, medical records indicate that plaintiff has a great deal of stress and “‘can't ...

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