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Stewart v. Berryhill

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

July 21, 2017

ROBIN WESLEY STEWART, 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 (SSA). The Court has reviewed the parties' briefs and the entire administrative record.

         I. Procedural History

         On June 7, 2010, plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits. (Tr. 125). The plaintiff also filed a Title XVI application for supplemental security income on June 23, 2010. (Tr. 125). In both applications, plaintiff alleged disability beginning November 9, 2008. (Tr. 125). These claims were denied initially on August 30, 2010, and upon reconsideration on September 3, 2010. (Tr. 125). Thereafter, plaintiff filed a timely written request for hearing on September 20, 2010. (Tr. 125). In a hearing decision issued on October 17, 2011, plaintiff was found not disabled by an Administrative Law Judge (ALJ). (Tr. 137).

         On March 5, 2013, plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits. (Tr. 19). The plaintiff also protectively filed a Title XVI application for supplemental security income on March 5, 2013. (Tr. 19). In both applications, the plaintiff alleged disability beginning January 27, 2012. (Tr. 19). These claims were initially denied on June 6, 2013. Thereafter, the plaintiff filed a written request for hearing on June 13, 2013. (Tr. 19). The plaintiff appeared and testified at a hearing held on December 2, 2013. (Tr. 19). In a hearing decision issued on January 15, 2015, plaintiff was found not disabled by an ALJ. (Tr. 30). The Appeals Council denied plaintiff's request for review of the ALJ's decision on February 3, 2016. (Tr. 1).

         II. Evidence Before the ALJ

         A. Prior Explanation of Determination

         1. August 27, 2010

         On August 27, 2010, plaintiff was examined by Myra Belshe, a disability examiner for the Social Security Administration. (Tr. 121). Belshe noted that plaintiff was a forty-two-year-old with ten years of education alleging disability due to depression and a rash. Belshe reviewed reports from Phelps County Regional Medical Center, Hugh Schuetz, and Community Care Clinic. Belshe determined that plaintiff retained the ability to perform work such as a cleaner/preparer, odd-piece checker, laundry worker, and domestic.

         B. Application Summary

         1. Disability Report - Field Office

         In a Disability Report dated March 11, 2013, plaintiff alleged a disability onset date of January 27, 2012. (Tr. 263-274). Plaintiff stated that he suffered from depression, bipolar disorder, carpal tunnel, and degenerative osteoarthritis. Plaintiff reported that he stopped working on November 11, 2009 when he was laid off from his job, and he believed his condition became severe enough to keep him from working on January 27, 2012. Plaintiff had completed the ninth grade; he did not attend special education classes and he had never completed any specialized job training or vocational school. Plaintiff noted that he had received medical treatment for both physical and mental conditions and was taking a number of medications for depression, pain, sleep disorder, mood disorder and to relax his muscles.

         2. Function Report - Adult

         On March 20, 2013, plaintiff completed a Function Report. (Tr. 275-285). When asked about his daily activities, plaintiff reported that he is in pain all day. His daily activities consisted of eating meals, watching television, and taking his medicine. Plaintiff noted that his condition impacts his sleep, but he did not explain how. Plaintiff also noted that his condition impacted his ability to dress and shave once a month, his ability to bathe and care for his hair three times a month, and his ability to feed himself and use the toilet daily. Plaintiff stated that he needed special reminders to take his medicine and to take care of his personal needs and grooming. Plaintiff stated that he was able to prepare full meals and he did so daily.

         Plaintiff reported that he was able to mow the grass and do laundry for about one hour at a time. He stated that he never goes outside during the winter and only goes outside during the summer when he has to mow the lawn. Plaintiff had a valid driver's license but was unable to drive because of “DWI's.” (Tr. 283). Plaintiff went shopping for about two hours each month. Plaintiff stated that he is able to pay bills, count change, handle a savings account, and use a checkbook and money orders. His ability to handle money had not changed since his condition began.

         Plaintiff reported that his hobbies were watching television and working with his hands, but he no longer engages in them. Plaintiff stated that he socializes with others once or twice a month at his home. Plaintiff stated that he does not have any problems getting along with others. Plaintiff also stated that since his condition began he gets angry faster, his hands hurt, and sometimes he does not want to be around other people. He reported that he needed to be reminded to go places and needed someone to accompany him.

         When asked about his physical abilities, plaintiff stated that his condition affects his lifting, reaching, memory, and concentration. Plaintiff could lift no more than five pounds and could walk for half a mile before needing to rest. Plaintiff was able to follow written instructions and to fully complete tasks. Plaintiff stated that he can follow spoken instructions when he can comprehend what is being asked. He reported that he had problems with memory and concentration. Plaintiff also stated that he gets along well with authority figures and has never been fired for failing to get along with others. He reportedly did not handle stress well but was able to adequately handle changes in routine. Plaintiff concluded by stating that his hands and neck hurt constantly and that he feels worthless all of the time.

         3. Function Report - Third Party

         A function report was completed by DeLaura Shipley, plaintiff's fiancée on March 23, 2013. (Tr. 286). Shipley lived with plaintiff and has known him for seven years. She stated that plaintiff's activities included watching television, playing computer games, walking around the block, and playing with the dog. Shipley stated that plaintiff used to cook but no longer wanted to do so since the onset of his condition. His household chores consisted of mowing the lawn. Plaintiff also helped with shopping.

         Shipley also noted that plaintiff's sleep was affected as he was “up and down all night.” (Tr. 287). He needed to be reminded to take his medications and to take care of his hair. Shipley stated that plaintiff is able to pay bills, count change, and use a checkbook or money order, but he is slower handling money since the onset of his condition.

         Shipley stated that plaintiff does not spend time with others and does not go anywhere regularly because he does not like to be around people. (Tr. 290). She also stated that plaintiff has trouble getting along with people and he gets very nervous, distant, and moody.

         Shipley stated that plaintiff's condition impacts his ability to understand, use his hands, follow instructions, complete tasks, and get along with others, as well as his memory and his concentration. She stated that plaintiff can follow written instructions but does better with spoken instructions. Shipley also stated that plaintiff is usually able to get along with authority figures. She noted that plaintiff had been fired or laid off from a job because of issues getting along with individuals because they were “being a smart ass” to plaintiff. (Tr. 292). Shipley also stated that plaintiff does not handle stress well but can adequately handle changes in routine.

         Shipley stated that she had noticed unusual behavior or fears when plaintiff gets mad or moody. She reported that plaintiff had wanted to “do himself in” on several occasions. (Tr. 293).

         4. Work History Report

         On April 4, 2013, plaintiff completed a work history report. (Tr. 294). Plaintiff worked as a laborer in a factory from 2004 to 2005, as a chop saw operator in a saw mill from 2005 to 2006, as a laborer in a factory from July 2007 to October 2008, as a temporary worker through a temporary service provider during 2008, and as a laborer at a factory in 2009.

         5. Disability Report - Appeals

         In a June 21, 2013 disability report, plaintiff stated that his bipolar disorder and carpal tunnel had gotten worse. (Tr. 314-325). Plaintiff stated that he had no new physical or mental limitations, nor did he have any new illnesses, injuries, or conditions. Plaintiff reported that he had been seen by Dr. Akbar Choudhary for carpal tunnel, degenerative osteoarthritis, and sleep apnea and was treated with therapy and medication. Plaintiff also stated that he had been treated for bipolar disorder and given medication.

         Plaintiff reported that he had been given sleeping medicine, medication for depression, a mood stabilizer, a muscle relaxer, and pain medication. All of the medications caused drowsiness or dizziness. Plaintiff also reported that he had not completed any type of special job training or any vocational rehabilitation, employment or other support services.

         6. Mental Residual Functional Capacity Assessment

         On August 26, 2010, a Mental Residual Functional Capacity Assessment was conducted by Barbara Markway, Ph.D. (Tr. 342-344). Dr. Markway found that plaintiff retained the ability to understand and remember simple instructions, that he could maintain adequate attendance, and that he could sustain an ordinary routine without special supervision. She reported that plaintiff could interact adequately with peers and supervisors and that he could adapt to most changes common to a competitive work setting.

         Dr. Markway also conducted a Psychiatric Review Technique on the same date. (Tr. 345-355). She noted that plaintiff suffered from depression and alcohol abuse. Dr. Markway concluded that plaintiff required mild restriction of activities of daily living and no limitation related to repeated episodes of decompensation. She further concluded that plaintiff required moderate limitations based upon difficulties in maintaining social functioning, as well as difficulties in maintaining concentration, persistence, or pace.

         7. Disability Determination Explanation

         A Disability Determination Explanation was conducted by Sarah Jones, a disability adjudicator/examiner, on June 4, 2013. (Tr. 148-161). Jones noted that plaintiff initially filed for disability due to depression, bipolar disorder, carpal tunnel and degenerative osteoarthritis and an inability to function and/or work as of January 27, 2012. It was also noted that the plaintiff had not performed any work after the alleged onset date. Jones reviewed evidence from Thomas Spencer, Psy.D, Midwest CES, Rolla Neurology Pain and Sleep, Community Care Clinic, and Phelps County Regional Medical Center, plaintiff's work history, and other evidence provided through the administrative process.

         Jones reported that plaintiff had severe carpal tunnel syndrome, severe osteoarthrosis and allied disorders, severe affective disorders, and severe alcohol and substance abuse disorders. She found that plaintiff had mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and one or two repeated episodes of decompensation - each of extended duration. Jones found that plaintiff's statements were substantiated by the objective medical evidence and that his medically determinable impairments could reasonably be expected to produce pain. In evaluating the plaintiff's residual functional capacity (RFC), Jones noted that plaintiff did have exertional limits and that plaintiff could occasionally lift and/or carry fifty pounds. Jones further noted that plaintiff could stand or walk for six hours in an eight-hour workday, sit for six hours in an eight-hour workday, and could push or pull for an unlimited amount of time. Jones stated that plaintiff had an occasional posture limitation when climbing ladders, ropes, and scaffolds. Jones also stated that plaintiff had limited right overhead manipulative limitations. No visual or communicative limitations were found. In terms of environmental limitations, Jones found that plaintiff should avoid concentrated exposure to vibrations and hazards, such as machinery and heights.

         Jones found that plaintiff had no understanding or memory limitations. His sustained concentration and persistence ability was not significantly limited, with the exception of the ability to carry out detailed instructions, which was determined to be moderately limited. Jones determined that plaintiff had limited ability to interact appropriately with the general public. Jones concluded that plaintiff was not disabled.

         C. Hearing Testimony

         1. September 16, 2011

         At the hearing conducted on September 16, 2011, plaintiff testified in response to questions posed by the ALJ and counsel. (Tr. 82-119). Plaintiff was 43 years old at the time of the hearing and had completed ninth grade. Plaintiff had not been in special education classes but he mainly received Ds and Fs in school. Plaintiff lived in a house with his fiancée and her fifteen-year-old daughter; plaintiff did not have any children of his own.

         Plaintiff testified that the last time he worked was November 9, 2009. From 1990 through 1995, plaintiff worked as an interior and exterior house painter, a job that required lifting up to 35 pounds. Plaintiff also worked as a “band and brand picker, ” which involved taking bands out of charcoal and removing unburnt wood from kilns. (Tr. 86). After a number of absences, plaintiff stopped going to work altogether. He testified that he believed he was going to be laid off “for missing so many days.” (Tr. 87). Plaintiff explained that his frequent absences were due to his inability to “deal with people” at work. (Tr. 88). However, he acknowledged that his job as house painter was mostly solitary work. Plaintiff worked as a line operator at a pipe factory for three years. He testified that he was terminated after he turned down a promotion to senior line operator. Plaintiff explained that he refused the job because he didn't feel that he could do it.

         Plaintiff testified that he found it difficult to get out of bed at least three or four times a week. On those days, he doesn't shower or take care of himself. He does get up to eat because his medication has to be taken with food.

         Plaintiff testified that he first sought treatment in 2010 after his fiancée found him with a gun in his mouth. Plaintiff was admitted to a hospital for ninety-six hours but declined to be placed in a rehabilitation program. Plaintiff stated that he had been sober for more than a year, and that he went to Alcoholics Anonymous meetings once a week. At the time of the hearing, plaintiff was taking Lithium, Celexa, and Vistaril for his mental health problems, and Percocet, Naproxen and Baclofen for his neck and back pain. Plaintiff stated that when he takes Vistaril and Lithium, he can sleep for four to six hours. However, he claimed he was unable to sleep six or seven times a month despite taking the medicines. Plaintiff testified that he has a low energy level because the Lithium makes him feel sleepy and tired. He also described hand tremors which his therapist believed to be a side effect of Lithium. Plaintiff stated that, with the medication, his condition had improved since his suicide attempt in 2010, but he still had suicidal ideation. He testified that he had developed a suicide plan but never acted on it. Because of his suicidal urges he had to get rid of his guns.

         Plaintiff stated that he first stopped drinking alcohol at age 16 but resumed when he was 18. At the time of his suicide attempt in 2010, plaintiff had been sober for three years. However, he did drink on the day before the attempt.

         Plaintiff stated that he had become irritable since he stopped drinking.

         Plaintiff stated that, except for going to Alcoholics Anonymous meetings and doctor appointments, he rarely leaves his house. He does chores around the house but ...


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