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Ingle v. Berryhill

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

September 27, 2017

NANCY A. 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 the final decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, denying the application of Plaintiff Cassandra Ingle (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). The parties consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 7). Because I find that the decision involved legal error and was not supported by substantial evidence, I will reverse the Commissioner's denial of Plaintiff's application and remand the case for further proceedings.

         I. Factual Background

         At the hearings before the ALJ on August 22, 2013, and March 13, 2014, Plaintiff testified as follows. She has two to three seizures a month, with residual symptoms of dizziness, weakness, and wanting to sleep all the time. (Tr. 99). She stated that after she has a seizure, she usually sleeps for roughly 24 hours, and she has memory problems. (Tr. 46). She suffers from bipolar disorder and anxiety attacks and has mood swings. (Tr. 100). She has visual and auditory hallucinations. (Tr. 32-33). She gets migraine headaches at least ten times a month. (Tr. 38, 92). She has neck and back pain “all the time, ” arthritis in her hands, numbness, and tingling. (Tr. 43-45). She stated that she can only be up and about for fifteen minutes before taking a break. (Tr. 42, 95). She can sit for roughly 30 minutes at a time, if she is able to shift positions. (Tr. 42).

         The medical evidence dated after Plaintiff's alleged disability onset date shows that she sought emergency room treatment for seizures on several occasions (Tr. 661-62, 868, 842-43, 704, 812, 777, 766, 756, 908-09, 981); that she sought treatment for anxiety and panic attacks (Tr. 801-02, 833-34); that she sought treatment from a neurologist for her seizures (Tr. 676, 929-30); that she sought treatment for migraine headaches (Tr. 693-94, 676, 929-30); that she sought treatment for panic attacks and anxiety (Tr. 802, 833-34, 945-47, 957-60, 949-51); that she was assigned Global Assessment of Functioning (“GAF”) scores ranging from 36 to 55[2] (Tr. 947, 960, 951); and that she had severe, multi-level degenerative disc disease in the cervical spine (Tr. 920). Her diagnoses included pseudo-seizure, epilepsy, and other seizure-related disorders (Tr. 584, 662, 676-77, 708, 779, 814, 870, 908, 980); back pain with possible degenerative disc disease (Tr. 930-31); migraine headache (Tr. 597, 693), panic attack/anxiety disorder (Tr. 802, 834); bipolar disorder (Tr. 947, 957-60); psychotic disorder NOS (Tr. 951); and polysubstance dependence (Tr. 951, 960).

         On September 23, 2013, Plaintiff's treating neurologist, Dr. Shahid Choudhary, noted that Plaintiff had a positive straight leg raise test; cervical, thoracic, and lumbar pain with touch and palpitation, and an anxious and nervous appearance. (Tr. 930). Dr. Choudhary opined that Plaintiff could lift and carry up to 10 pounds continuously and 20 pounds occasionally; sit for two hours at a time and for up to six hours of an eight-hour workday; stand for one hour at a time and for up to two hours of an eight-hour workday; walk for 30 minutes at a time and for up to one hour of an eight-hour workday; do occasional pushing and pulling; do frequent reaching, handling, fingering, feeling, and operation of foot controls; never climb ladders, scaffolds, stairs, and ramps; occasionally balance, stoop, kneel, crouch, and crawl; never have exposure to unprotected heights or moving mechanical parts; never operate a motor vehicle; have occasional exposure to humidity and wetness, dust, odors, fumes, and pulmonary irritants, extreme cold or heat, and vibrations; and have moderate exposure to noise. (Tr. 938-42).

         On January 24, 2014, psychiatrist Dr. Salazar evaluated Plaintiff as part of her treatment and found that her mood was anxious, her thought process was tangential and at times incoherent, she had visual and auditory hallucinations, and her judgment and insight were poor; other observations were generally normal. (Tr. 949-50). Dr. Salazar assigned a GAF of 45 (indicating serious symptoms or impairments), and his diagnoses included psychotic disorder NOS, polysubstance abuse, and R/O borderline intellectual functioning. (Tr. 951).

         On August 13, 2014, Plaintiff underwent a psychological consultative examination by Amber Richardson, Ph.D. (Tr. 1010). Dr. Richardson noted that Plaintiff described severe mood swings, panic attacks when she goes to the grocery store, continuous nightmares, difficulty sleeping, and seeing and hearing spirits. (Tr. 1010). Dr. Richardson noted that Plaintiff reported experiencing seizures five or six times a month. (Tr. 1011). Plaintiff reported a history of marijuana, crack cocaine, and methamphetamine use, but stated that she had not used methamphetamines in a few months. (Tr. 1011). Dr. Richardson noted that Plaintiff had poor boundaries, appeared anxious and depressed, had thought content that was paranoid at times, and appeared to be experiencing visual hallucinations during the examination. (Tr. 1012). She found that Plaintiff “appears to experience perceptual disturbances on a frequent basis regardless of any issues with mood related symptoms” and that she “experiences moderate impairment in her ability to sustain attention and persistence in tasks and interact socially.” (Tr. 1012). Dr. Richardson opined that due to Plaintiff's paranoid ideation and internal stimuli, Plaintiff was moderately limited in her ability to make judgments on complex work-related decisions; interact appropriately with the public, supervisors, and coworkers; and respond appropriately to usual work situations and to changes in a routine work setting. (Tr. 1014-15). She also stated that Plaintiff would be limited regarding her “attention abilities as she may be distracted by perceptual disturbances.” (Tr. 1015).

         Mark Farber, M.D., testified at the hearing before the ALJ that Plaintiff's impairments include a profuse bulging disc at C-4-5-6 that might be causing her headaches; degenerative disc disease of all the cervical discs; herniated discs at ¶ 4-5, and degenerative changes of the lumbar and thoracic spine. (Tr. 104-106). He also testified that he was not sure that seizures were really what Plaintiff was having, and that she “might have some sort of pseudoseizure.” (Tr. 106).

         John Pollard, M.D., reviewed Plaintiff's medical records and testified at the hearing that Plaintiff's problems included seizures, headaches, back and neck pain, chronic obstructive pulmonary disease, and bipolar disorder. (Tr. 52-53, 55-56). Dr. Pollard stated that Plaintiff appeared to have some true seizures and some pseudoseizures. (Tr. 59-62). He also stated that based on the record, there was no way to judge how frequently she was having true seizures. (Tr. 61). He stated that she would not meet or equal the listing applicable to seizures, which requires seizures to be epileptic. (Tr. 60-62). Dr. Pollard testified that based on the frequency of the seizures he saw within the record, Plaintiff could possibly be expected to miss two to three days of work per month. (Tr. 62).

         Psychological expert Thomas England, Ph.D., reviewed Plaintiff's medical records and testified at the hearing. Dr. England testified that it appeared to him that Plaintiff's seizures were likely the result of a somatoform disorder, but that it would be helpful to have a diagnosis from Plaintiff's treating physician. (Tr. 65, 72). He also testified that substance abuse was a complicating factor in assessing Plaintiff's impairments. (Tr. 69-72, 74).

         II. Procedural Background

         On September 27, 2011, Plaintiff applied for DIB and SSI, alleging that she had been unable to work since April 28, 2011. (Tr. 317-23, 324-30). Her application was initially denied. (Tr.186-90). On December 16, 2011, she filed a Request for Hearing by Administrative Law Judge (“ALJ”). (Tr. 191-92). On September 25, 2014, following two hearings, the ALJ found Plaintiff was not under a “disability” as defined in the Act. (Tr. 12-22). On November 7, 2014, Plaintiff filed a Request for Review of Hearing Decision with the Social Security Administration's Appeals Council. (Tr. 6-8). On January 19, 2016, the Appeals Council declined to review the case. (Tr. 1-5). Plaintiff has exhausted all administrative remedies, and the decision of the ALJ stands as the final decision of the Commissioner of the Social Security Administration.

         III. Standard for Determining Disability Under the Act

         To be eligible for benefits under the Social Security Act, a claimant must prove he or she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec'y of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled a person who is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment must be “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).

         To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the Commissioner determines whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities”; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the claimant's impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ ...

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