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Schwettman v. Berryhill

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

March 29, 2017

NANCY BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of Defendant's final decision denying Plaintiffs applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and for Supplemental Security Income ("SSI") under Title XVI of the Act. For the reasons set forth below, the Court affirms the decision of the Commissioner.

         I. Procedural History

         On December 4, 2012, Plaintiff protectively filed an application for DIB. (Tr. 16, 168-74) He filed an application for SSI on December 13, 2012. (Tr. 16, 175-80) In both applications he alleged disability beginning November 21, 2012. (Tr. 16, 168, 175) Plaintiff alleged that he became unable to work due to migraine headaches, anxiety, panic attacks, and bipolar disorder. (Tr. 63, 85) The applications were denied, and Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 63-82, 86-89, 92-93) On March 12, 2014, Plaintiff testified at a hearing before the ALJ. (Tr. 32-60) On April 1, 2014, the ALJ determined that Plaintiff had not been under a disability from November 21, 2012 through the date of the decision. (Tr. 16-27) Plaintiff then filed a request for review, and on September 24, 2015, the Appeals Council denied Plaintiffs request. (Tr. 1-3) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

         II. Evidence Before the ALJ

         At the March 12, 2014 hearing, Plaintiff was represented by counsel. Plaintiffs attorney delivered an opening statement, asserting that Plaintiffs mental impairments met the Listing requirements at Step 3. Counsel stated that despite treatment, Plaintiffs impairments continued to persist and worsen. (Tr. 34-36)

         Upon questioning by the ALJ, Plaintiff testified that he was born in 1965, was divorced, and lived in a trailer with his two daughters, ages 23 and 17, who moved between Plaintiff and their mother. Plaintiff graduated from high school, and he took some college courses and received vocational training in landscape horticulture. Plaintiff received food stamps and had no medical coverage. He last worked for Berry's Lawn Service in 2012, mowing and trimming lawns. Plaintiff had also worked for Workforce as a contractor performing numerous jobs at Proctor & Gamble and for Manpower as a lab supervisor, also at Proctor & Gamble. (Tr. 37-40)

         Plaintiffs disabilities included migraines, anxiety, panic disorder, and bipolar disorder. He also had asthma and problems in his neck. Plaintiff took medication for asthma, OCD, anxiety, and bipolar disorder. Plaintiff previously received disability for migraines but was able to return to work. However, he testified that he continued to have migraines every day, which caused loss of vision and numbness in his arms, hands, tongue, and nose. Plaintiff had asthma problems every morning, and he had a bulging disc in is vertebrae at CI. (Tr. 40-42)

         With regard to mental impairments, Plaintiff testified that Klonopin helped with his shaking and tremors. He could not afford another medication his physician recommended. Plaintiffs OCD caused him to straighten and neaten everything in his home. No one could cook properly for him. During a typical day, Plaintiff did not get out of his house other than the trailer court. He became irritated and angry if he left his comfort zone. His daughter brought him groceries. He could attend doctor's appointments alone when able. Plaintiff also visited with his parents and friends. When his friends visited, they watched TV. Plaintiff was not involved in any regular activities. He sometimes said hello to neighbors in the trailer park. Plaintiff stated that he did not always have issues being around people. Plaintiffs condition worsened over the past five years. He could no longer attend church because he freaked out. Other than doctors' offices, Plaintiff occasionally went to his parents' house or a convenience store. Plaintiff enjoyed cooking, and he stated he would throw things together and make cowboy dinner and tacos. He also cooked frozen food in the microwave. (Tr. 42-47)

         Plaintiffs attorney also questioned Plaintiff about his impairments. Plaintiff testified that he had problems performing his lawn care job because he was twitching, shaking, and experiencing asthma symptoms. He frequently missed work due to anxiety. He was unable to operate the trimmer because his hands would twitch and shake. Plaintiff stated that sometimes the shaking was so bad his daughters had to feed him, other times he was able to pick up the food with a fork. Plaintiff continued to have these symptoms even with medication. The tremors were worse when Plaintiff attended family functions, which he no longer did. Plaintiff also had tremors when home alone. Plaintiff could not write or hit numbers or letters on his cell phone. His OCD caused him to be irritable and always fix things. He felt better after he fixed the problems. Plaintiff also obsessed about someone coming to the door. (Tr. 47-51)

         Plaintiff testified that aside from cooking, he enjoyed watching movies. However, he was unable to watch a movie from start to finish because he had racing thoughts that caused him to lose track. Plaintiff also had difficulty sleeping because of the racing thoughts. Ambien did not help. When he was around unfamiliar people, Plaintiff had severe anxiety panic attacks. Plaintiff stated that he would freak out and become irritable and angry. He felt he could hurt someone if he did not get out of the situation. Plaintiff was unable to get along with authority figures. His anxiety and shaking would worsen. (Tr. 51-53)

         In addition, Plaintiff had problems with asthma every day. The weather aggravated Plaintiffs breathing problems. He used a nebulizer and inhaler. With regard to migraines, Plaintiff stated that they symptoms could last all day or only 20 minutes. On an average day, the migraine symptoms would come and go. With regard to medications, he only had issues with Klonopin. Plaintiff testified that he attempted to clean his trailer. He was able to sweep, do dishes, and do his own laundry. (Tr. 53-54)

         A vocational expert ("VE") also testified at the hearing. The ALJ asked the VE to assume a person who could perform a range of light work, including lifting up to 20 pounds occasionally and lifting/carrying 10 pounds frequently; standing or walking for 6 hours; sitting for up to 6 hours in an 8-hour day with normal breaks; and avoiding exposure to extreme cold and heat, wetness and humidity, and pulmonary irritants. In addition, the individual was able to understand, carry out, and remember only simple, routine, repetitive tasks involving only simple work-related decisions with few workplace changes and no interaction with the public. While this hypothetical question precluded Plaintiffs past work, the VE testified that the person could work as an electrical accessory assembler, a power screwdriver operator, and a production assembler. If the individual's OCD caused him to be only 85% as productive as an employer expected due to being off task and organizing the workspace, the jobs would be eliminated. In addition, if panic caused the person to be absent from work one or more times a month, the jobs would be unavailable. (Tr. 55-57)

         Plaintiffs attorney asked the VE to consider the first hypothetical with the further limitation of no contact with co-workers or supervisors in the workplace. In that event, the VE testified that the individual could not perform any work. If the person had trouble dealing with co-workers and supervisors and had a disruptive incident once a month on a routine basis, the individual would not be able to continue employment. Finally, if the person had tremors one to two hours a day, which made it impossible to manipulate objects with his hands in the workplace, the person would be unable to perform unskilled work. (Tr. 57-59)

         In a Function Report - Adult dated December 30, 2012, Plaintiff stated that he spent the day sitting and watching TV. He took care of his daughter and his dog. Plaintiff had problems sleeping but no problems with personal care. Plaintiff was able to cook, wash dishes, sleep, mow the lawn, and do laundry. He only went outside when needed because he was scared and shook at the prospect of going out. Plaintiff shopped for food when needed. He drove around, hung out at his house, and visited his parents. Plaintiff stated that his impairments affected his ability to talk, remember, complete tasks, concentrate, understand, use his hands, and get along with others. He could not pay attention for very long or finish what he started. He followed spoken instructions better than written instructions, but could follow written instructions well. He got along with authority figures. Plaintiff could not handle stress but could handle changes in routine pretty well. (Tr. 232-39)

         III. ...

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