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Ryan v. Berryhill

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

March 31, 2017

DONALD R. RYAN, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court for review of an adverse ruling by the Social Security Administration . The Court has reviewed the parties' briefs and the entire administrative record.

         I. Procedural History

         On February 9, 2011, plaintiff filed an application for Supplementary Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385 with an alleged onset date of September 30, 1994. (Tr. 86-91). The claim was denied initially on April 11, 2011; thereafter the plaintiff timely filed a written request for a hearing on May 4, 2011. (Tr. 415).

         The SSA granted plaintiff's request for review and an Administrative Law Judge (ALJ) conducted a hearing on January 12, 2012. (Tr. 10). In a decision dated February 6, 2012, the ALJ found that plaintiff was not disabled. (Tr. 7). On June 14, 2012, the Social Security Administration Appeals Council (Appeals Council) denied plaintiff's request for review. (Tr. 424). On August 3, 2012, plaintiff filed a complaint with this Court alleging: (1) the ALJ decision was incorrect because there was no substantial evidence on the record to substantiate the ALJ's findings and (2) the decision was contrary to the provisions of the Social Security Act. (4:12-cv-1380-CEJ, Doc. #1, pg. 2). On February 11, 2013, this Court granted defendant's motion to reverse the decision of the ALJ and remanded the case for further evaluation of plaintiff's claim. (Tr. 429). On April 25, 2013, the Appeals Council vacated the February 6, 2012, ALJ order and remanded the case to an ALJ to further evaluate vocational evidence in support of its finding. (Tr. 432).

         A second hearing was conducted on October 13, 2013, pursuant to the Appeals Council order. (Tr. 429). In a decision dated January 30, 2014, the ALJ found that plaintiff was not disabled. (Tr. 435). The ALJ subsequently vacated the decision on February 12, 2014, to allow the plaintiff to submit additional information. (Tr. 460). On February 28, 2014, after receiving the additional information, the ALJ again found that plaintiff was not disabled. (Tr. 316). On August 10, 2015, the Appeals Council reviewed the ALJ decision and concluded their final decision complied with the order of this Court. (Tr. 297). The Appeals Council noted that the decision was consistent with Social Security Administration regulations and supported by substantial evidence. (Tr. 297). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability Application Documents

         On February 11, 2011, plaintiff applied for Supplemental Security Income under Title XVI of the Social Security Act, benefits under other programs administered by the Social Security Administration, and medical assistance under Title XIX of the Social Security Act. (Tr. 86). Plaintiff claimed a disability onset date of September 30, 1994. (Tr. 86).

         1. February 11, 2011 - Disability Report

         In a Disability Report dated February 11, 2011, (Tr. 127-130) plaintiff described his prior disability filings and how he felt wronged by the ALJ who had denied his previous application. (Tr. 129).

         2. February 18, 2011 - Function Report

         In a Function Report dated February 18, 2011, (Tr. 139-149), plaintiff stated that he had no permanent residence. (Tr. 139). In terms of relationships, plaintiff claimed that he had trouble getting along with family, friends, and neighbors because he lacks social skills, has a third grade education[2], and suffers from a learning disability, anxiety, and depression. (Tr. 144). When asked whether his condition affects his sleep, plaintiff replied in the affirmative and explained that he cries and is depressed which results in limited sleep. (Tr. 140). When asked about his daily activities, plaintiff stated that he was depressed emotionally, and does nothing from the time he wakes up until going to bed. (Tr. 139). Plaintiff stated that he goes outdoors on a limited basis. (Tr. 142). Plaintiff attributed this to a lack of social skills and experiencing anxiety around crowds. (Tr. 142). When asked about his shopping habits, plaintiff stated that he goes to the store once a week and primarily purchases chips and soda. (Tr. 142-143).

         In terms of personal care, plaintiff's ability to dress, bathe, shave, and care for his hair were all impacted by low self-esteem. (Tr. 140). Plaintiff did not prepare his own meals and lacked an appetite. (Tr. 140-141). He had problems using the bathroom, which he attributed to being stressed and emotionally depressed. (Tr. 140). Plaintiff needed special reminders to take care of personal needs and grooming and to take medicine. (Tr. 141). Plaintiff attributed these personal care issues to lack of energy, low self-esteem, emotional disturbance, and memory lapses he suffers due to his learning disability. (Tr. 141). Plaintiff also reported that he does not handle stress or changes in routine well. (Tr. 145).

         In terms of personal responsibilities, plaintiff stated that he is unable to do house or yard work because his balance is not stable, he fears getting hurt, and he lacks education and confidence. (Tr. 142). Plaintiff reported that he has no hobbies or interests because of anxiety, emotional distress, and loss of balance. (Tr. 143). Plaintiff's “limited” activities consisted of “helping with paperwork.” (Tr. 143). Plaintiff stated that he is unable to pay bills, count change, handle a savings account, or use a checkbook which he attributes to a learning disability. (Tr. 142). Plaintiff also stated that he has a low IQ score and lacks of education. (Tr. 142).

         When asked how his condition affects him, plaintiff stated that he has trouble: lifting, squatting, bending, standing, walking, kneeling, talking, hearing, with memory, stair-climbing, using hands, completing tasks, concentrating, understanding, following instructions, and getting along with others. (Tr. 144). Plaintiff attributed all of these issues to his lack of social skills, lack of balance, hand injury, hearing loss, and poor education. (Tr. 144). Plaintiff stated that he could only walk for one block before needing a rest, but could resume walking within fifteen minutes. (Tr. 144). Plaintiff stated that he walks with a cane because his balance is not always stable. (Tr. 145).

         Plaintiff stated that he does not get along well with authority figures because he lacks social skills and has anger issues. (Tr. 145). Plaintiff stated that he has been fired or laid off because of problems getting along with people because of his learning disability, lack of education, and lack of social skills. (Tr. 145). Plaintiff could not remember the name of the employer who fired or laid him off. (Tr. 145). Plaintiff also struggles following written instructions. (Tr. 144). When asked about unusual behavior or fears, plaintiff stated that he also believes he received an unfavorable decision on his previous disability application because the judge went out of his way to harm him physically. (Tr. 145).

         3. February 18, 2011 - Third-Party Function Report

         A Third-Party Function Report was completed by Linda McMenomy on February 18, 2011. (Tr. 131-138). McMenomy identified herself as a “lady from church” in defining her relationship to plaintiff. (Tr. 131). McMenomy stated that she sees plaintiff “from time to time” to assist with mail.

         McMenomy described plaintiff as being depressed and suffering from anxiety and memory lapses. Because of depression and anxiety, plaintiff engaged in no activities during the day and had no hobbies or interests. He went outdoors only on a limited basis. McMenomy reported that plaintiff's conditions affected his sleep, appetite, and his ability to use the toilet and take care of his personal needs. She reported that plaintiff had to be reminded to take his medicine. She described plaintiff as lacking in self-esteem, motivation, and energy. McMenomy stated that plaintiff went shopping once a week to buy chips and soda. However, he became anxious when in a crowd. Plaintiff spent only a limited amount of time with other people due to a lack of social skills and because of his anger, learning disability, depression, and anxiety.

         McMenomy also stated that plaintiff is unable to pay bills, count change, handle a savings account, or use a checkbook because of his learning disability, low IQ score, lack of education and compensation. She reported that plaintiff uses a cane when becomes off-balance, although no doctor prescribed it for him. McMenomy stated that plaintiff has trouble lifting, squatting, bending, standing, walking, sitting, kneeling, talking, hearing, with memory, stair-climbing, using hands, completing tasks, concentrating, understanding, following instructions, and getting along with others. According to McMenomy, these issues stem from plaintiff's lack of social skills, lack of balance, hand injury, hearing loss and poor education. McMenomy reported that plaintiff does not get along with authority figures because he lacks social skills, cannot follow instructions, and is angry. McMenomy also stated that plaintiff has been fired or laid off from a job, which she attributed to difficulty working with people because of his learning disability, poor education, lack of social skills, and discomfort in crowds. McMenomy stated that since the denial of disability decision letter arrived, plaintiff has a high level of anger, anxiety, emotional distress, and believes the future looks grim due to the judge “basically making his funeral arrangements.” (Tr. 137).

         4. April 27, 2011 - Function Report

         In a Disability Report dated April 27, 2011, plaintiff stated that since his previous Disability Report he began to suffer increased balance issues, worsening panic attacks, increased depression, lack of focus, and memory loss. (Tr. 158-165). Plaintiff also stated that he began to suffer headaches, anger issues, and a lack of urgency. Plaintiff reported that he suffered from manic depression, paranoia, anxiety attacks, lower back pain, and had to use a cane to stay stable. Plaintiff also reported having suicidal thoughts. Plaintiff stated that he had been seeing a physician, Dr. Kamat, for four years to treat his mental condition, depression, anxiety, and panic attacks. Plaintiff noted that he had been prescribed Xanax and counseling. Plaintiff stated he also visited the Missouri Department of Social Services for a medical evaluation related to Medicaid coverage.

         5. Undated Disability Report

         In an undated Disability Report, plaintiff stated that he had suffered two head injuries which resulted in hearing and memory loss, a loss of focus, a left hand injury, a learning disability, depression and fatigue. Plaintiff stated that he stopped working on January 1, 1994, because of his condition. In his last job he swept floors, mopped and emptied trash cans. Plaintiff stated that he had been in special education classes when he was in school.[3] Plaintiff also stated that he had been seeing Dr. Kamat for physical and mental conditions since 2008 and had been prescribed Alprazolam.

         B. January 12, 2012 Hearing.

         At the hearing on January 12, 2012, plaintiff testified in response to questions posed by the ALJ and counsel. (Tr. 23). Plaintiff told the ALJ that he was 41 years old, 5'11” and weighed one-hundred and fifty pounds. (Tr. 24). Plaintiff stated that he was temporarily living with his brother; but received his mail at his parents' address. (Tr. 24). Plaintiff testified that he receives two hundred dollars a month in food stamps and has Medicaid. (Tr. 24-25).

         Plaintiff stated that he was receiving medical treatment for psychiatric issues from Dr. Kamat, who diagnosed him with bipolar disorder and generalized anxiety disorder. (Tr. 25). Plaintiff testified that he was admitted to the hospital in July of 2011 because he was suicidal. (Tr. 25). Plaintiff stated that he has had suicidal ideation all of his life. (Tr. 31). Plaintiff also suffers from depression and a learning disability. (Tr. 25). When asked about medications, plaintiff testified that he was taking Abilify, Prozac, and Xanax, all prescribed by Dr. Kamat. (Tr. 25). Plaintiff stated that the medications make his legs weak and impact his mood by making him “not calm.” (Tr. 32). Plaintiff confirmed that Dr. Kamat had diagnosed him with bipolar disorder and generalized anxiety disorder. (Tr. 25).

         Plaintiff testified that he doesn't do well with social activities. (Tr. 26). In response to questions about his educational background, plaintiff stated that he was not a high school graduate and had been in special education classes since third grade. (Tr. 26). Plaintiff also testified that he did not have a GED nor did he have any specialized work training. (Tr. 33).

         Plaintiff testified that he does not cook, unless he has a microwave. (Tr. 26). Plaintiff stated that he rarely goes to the grocery store, and if he does, it is to purchase a bag of chips or a soda. (Tr. 26). When asked about his personal hygiene, plaintiff testified that he is able to shower and clean himself regularly, but sometimes when he is depressed he does not regularly shower. (Tr. 27).

         When asked about physical ailments, plaintiff testified that when he was either eighteen or nineteen years old he cut his left hand on a piece of glass which resulted in reduced grip strength and numbness on the inside of his hand. (Tr. 27-28). Plaintiff testified that he could not hold more than a gallon of milk with his left hand because he suffers sharp, shooting pains through his fingertips. (Tr. 28). Plaintiff testified that he'd fractured his head in a fall from a roof when he was younger. He also testified that he'd been hit in the head with a baseball bat, which resulted in a complete loss of hearing in his right ear and a lengthy surgical scar. (Tr. 28-29).

         Plaintiff testified that he has daily anxiety attacks and trouble sleeping. (Tr. 29-30). Plaintiff stated that he does not read the newspaper and has trouble with reading comprehension. (Tr. 32). Plaintiff testified that he spends most of his time during the day watching television if one is available. (Tr. 31). Plaintiff stated that he did not want any friends and avoids social situations. (Tr. 30). Plaintiff also testified that he has a driver's license but he does not drive. (Tr. 30).

         During the day, plaintiff spent time with his brother and his pets but mostly watched television. (Tr. 30-32). Plaintiff stated that he had not worked in 16 years. (Tr. 33). Plaintiff testified that while he was working he had issues with management because “they knew something wasn't right” and he felt that management knew “that he wasn't as smart as they were.” (Tr. 33). Plaintiff testified that he primarily worked doing janitorial work. (Tr. 34). Plaintiff testified that he does not have a bank account, and his sole income is from food stamps. (Tr. 32).

         C. October 13, 2013 Hearing

         A second hearing was conducted on October 31, 2013, after the Court reversed the decision of the ALJ and remanded the case for further evaluation of plaintiff's claim. (Tr. 429).

         1. Plaintiff's Testimony

         At the hearing on October 13, 2013, plaintiff stated that he was 5'10” tall and weighed one-hundred and sixty pounds. He lived in an apartment with a female roommate. (Tr. 331). Plaintiff testified that had been in learning disabled classes for his entire life and that he reached the ninth grade. (Tr. 332). Plaintiff stated that he quit school because he was failing miserably. (Tr. 332).

         When asked about activities he engages in, plaintiff testified that he has no hobbies or social activities and that he didn't do much on a normal day beside watch television. (Tr. 339). Plaintiff testified that in his previous jobs he was teased because of his disability. (Tr. 343). Those jobs ended because he either got fired or quit. (Tr. 343). Plaintiff also testified that he does not have access to a computer and has never used a computer. (Tr. 348).

         Plaintiff testified that in September 2013 he had a seizure. (Tr. 336). Plaintiff stated that he had not had a seizure since. (Tr. 336). A doctor told him the seizure could occur again and prescribed medication. (Tr. 337). Plaintiff testified that he has no hearing in his right ear, he has trouble remembering things, and that he had occasional chest pains. . (Tr. 335, 337-338).

         Plaintiff stated that he has been diagnosed with bipolar disorder which makes him unable to focus. (Tr. 335). Plaintiff explained that he cannot focus on a task for more than a half hour and that his thoughts are always racing. (Tr. 335-36). Plaintiff stated that he sleeps for four hours a night at most. (Tr. 336). Plaintiff also testified that he gets panic attacks in stressful situations. (Tr. 354).

         Plaintiff stated that he was only able to lift up to 15 pounds with his left hand. (Tr. 332). He testified that he did not have any difficulty with sitting or standing, but noted that he had not walked for extended periods. (Tr. 332-333). Plaintiff stated that he does not drive because he has seizures and did not have a car. (Tr. 333). When asked about personal hygiene, plaintiff stated that he needed to be reminded to shower but was able to dress himself. (Tr. 334). Plaintiff also stated that he does no cleaning, laundry, housework, or cooking around the apartment. (Tr. 334).

         Plaintiff testified about an incident in which he was found on the side of the road and was taken to the hospital. (Tr. 344). Plaintiff stated that he had mixed up some medications which caused him to “fall out.” (Tr. 345). Plaintiff testified that he was not sure what he was taking at the time. (Tr. 346). Plaintiff testified that he left against medical advice because he felt the hospital was “just letting [him] sleep it off” and he could do that at home. (Tr. 347).

         2. Vocational Expert Testimony

         A vocational expert, Denise Weaver, also testified before the ALJ. (Tr. 350). The ALJ posed a hypothetical to Weaver asking her to assume an individual with the same restrictions as plaintiff and determine whether there was any work available in the national economy for such an individual. (Tr. 351). Weaver testified that the individual could work as a cleaner in the hospital environment, a dining room attendant, or a kitchen helper. (Tr. 350-352).

         Plaintiff's attorney expanded the hypothetical to include the assumption that the individual would also be ten percent off-task during the workday with a ten percent loss of productivity. (Tr. 352). Weaver stated that it is very possible, with ten percent off-task activity, that an employer would find, “in a probationary employee that that would not be acceptable.” (Tr. 352). Plaintiff's attorney then added the limitation of needing two extra fifteen-minute breaks throughout the day in addition to a lunch break and normal breaks through the day. (Tr. 352-353). The expert testified that the ...


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