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Schmelzle v. Berryhill

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

July 31, 2018

JOHN D. SCHMELZLE, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court for review of an adverse ruling by the Social Security Administration. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         I. Procedural History

         On October 17, 2014, plaintiff John D. Schmelzle protectively filed applications for disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of May 3, 2013.[1] (Tr. 207-08, 209-14; see also Tr. 141, 142). Plaintiff subsequently amended his alleged onset date to October 8, 2014. (Tr. 293). After plaintiff's applications were denied on initial consideration (Tr. 145-50), he requested a hearing before an Administrative Law Judge (ALJ). (Tr. 151-52).

         Plaintiff and counsel appeared for a hearing on May 19, 2016. (Tr. 45-63). Plaintiff testified concerning his disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Jacqueline R. Bethell, MS. The ALJ issued a decision denying plaintiff's applications on July 14, 2016. (Tr. 22-36). The Appeals Council denied plaintiff's request for review on June 23, 2017. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability and Function Reports and Hearing Testimony

         Plaintiff, who was born on November 12, 1968, was 45 years old on the amended alleged onset date. He completed high school with some special education classes and received training in building trades while in prison. (Tr. 236, 45). Between 2000 and 2009, plaintiff worked as a custom cabinet builder. (Tr. 244). He was incarcerated from May 2010 to June 2011. (Tr. 85). He worked for an auto parts business in 2012 and 2013, cleaning and fueling trucks and loading salvaged auto parts for shipment. (Tr. 246). He returned to custom woodworking in early 2013. (Tr. 45-46). That job ended on May 3, 2013 when he was incarcerated “due to [a] bipolar episode.” Disability Report; but see Function Report (stating he was fired from job after being arrested following an altercation with his wife) (Tr. 236, 254).

         Plaintiff listed his impairments as bipolar disorder, attention deficit hyperactivity disorder (ADHD), anxiety disorder, obsessive compulsive disorder, antisocial personality, a gunshot wound to his left hand, carpal tunnel, rotator cuff problems, and dyslexia. (Tr. 235). He was prescribed medications for the treatment of bipolar disorder, mood disorder, depression, ADHD, poor sleep, and high cholesterol, in addition to an anti-inflammatory for musculoskeletal pain. (Tr. 239).

         Plaintiff stated in his December 2014 function report that he lived with his sister and brother-in-law. (Tr. 249-56). His daily activities consisted of smoking, drinking coffee, and sitting. He did laundry, washed dishes, and mowed grass. He did not prepare his own meals and ate only one meal a day. He no longer cared about his appearance, leaving it to others to remind him to take care of his grooming and personal hygiene. He slept about two hours a night. He was capable of managing his finances. He had pain in his shoulders and lacked strength and feeling in his left hand and thus could no longer participate in his former hobbies of hunting, fishing, and woodwork. He was able to walk without restriction. He stated that he was always aware of his surroundings but did not pay attention. He could concentrate for 15 to 30 minutes at a time, but had difficulty finishing what he started and could follow spoken instructions more easily than written instructions. He did not like being around other people and did not get along with authority figures or handle changes in routine well. Plaintiff had difficulties with lifting, reaching, memory, completing tasks, concentrating, following instructions, and getting along with others. The Field Office interviewer did not note any unusual behaviors. (Tr. 233).

         Robyn Schmelzle, plaintiff's estranged wife, completed a third-party function report in December 2014. (Tr. 260-67). She had known plaintiff since 2011. She described him as “not social” and “not motivated for any activity;” indeed, she said, he spent his days looking out the window, watching television, and drinking coffee. She reported that he only slept two hours a night and was depressed to the point that he did not care about eating or his appearance. According to his wife, plaintiff could not lift more than 10 pounds without shoulder pain. He had no grip or dexterity in his hands and could no longer do things like cook. In addition, he could not control his temper and so was unable to tolerate being around others. He argued with others “all the time because he thinks he's always right” and became angry if someone told him how to do something. (Tr. 264-65). He needed reminders to go places and was unable to concentrate for more than a few minutes. He misread written instructions and forgot half of any verbal instructions. In response to stress, he became angry, caused arguments, and threw things. She also described some idiosyncrasies; for example, he was a hoarder and would not use the washer and dryer for fear that they would break. He also believed that there was always someone out to get him and he was “afraid to get old.” In a narrative section, Ms. Schmelzle wrote that plaintiff had suffered abuse as a child and “cause[s] problems with everyone around him.” (Tr. 267).

         Plaintiff testified at the May 2016 hearing that he moved to his sister's house after separating from his wife in 2013. His sister restricted him to the lower level of her split-level house because she did not want him around the children who lived in the home. (Tr. 55, 62-64). He spent the days walking around in the woods or sitting and staring at the wall. He did not watch television and denied knowing how to use the internet or social media, although his wife previously set up a social media account for him. His sister bought his groceries and counted his pills to make sure he was taking his medication. His driver's license was revoked for unpaid child support and he relied on his mother and sister to drive him places. (Tr. 60-61). He no longer did any household chores or yard work. (Tr. 62-63).

         Plaintiff testified that the first two fingers of his left hand were shot off in an accident in 1993. The fingers were reattached but he said that he had no sensation in the fingers and was unable to bend them. As a consequence, his left forearm was atrophied and he could not use his left hand to grip or lift anything heavier than a shoe or coffee cup. In addition, he had undergone carpal tunnel surgery on his left wrist. He had pain in both shoulders, especially when reaching overhead with his left arm. Despite his impairments, plaintiff had been employed by a friend to load trucks. He explained to the ALJ that he used his right arm to pick up the items and then slid them into the truck. (Tr. 47-49, 57-59).

         With respect to his mental conditions, plaintiff stated that he did not like to be in public places because he had anxiety “all the time.” When he was around other people, he got headaches, became extremely nervous or irritable, and was likely to lash out or fight. He stated it was “safer” for everyone if he avoided interacting with other people. (Tr. 50-52). He had lost his last job due to constant arguing with his boss about being given instructions. His sleep patterns fluctuated between sleeping “all the time” or not at all. In the three days before the hearing he had slept only two hours. (Tr. 52-53, 57-58). His weight also fluctuated.[2] (Tr. 57). He took medications to stabilize his mood and was seeing a counselor. (Tr. 56-57).

         Vocational expert Jacqueline Bethell was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education and work experience who was able to perform light work; who could lift or carry 20 pounds occasionally and 10 pounds frequently; who could sit for six hours in an eight-hour day, stand or walk for six hours in an eight-hour day; could frequently reach, handle and finger; and who was restricted from crawling and climbing ladders, ropes or scaffolds; and who needed to avoid hazardous conditions. In addition, this individual was limited to performing simple and routine tasks, with occasional interaction with supervisors and coworkers, in an environment in which the individual would not be around members of the public or be required to interact with the public on the employer's behalf. (Tr. 64-65). According to Ms. Bethell, such an individual would be able to perform work that was available in the national economy such as office helper, labeler, or mail clerk. (Tr. 66-67). When asked to assume that the individual was restricted to only occasional fingering, in addition to requiring no public contact, Ms. Bethell testified that these three occupations and, indeed, all other unskilled light positions would be ruled out. (Tr. 67-68). There were sedentary positions without public contact that did not require more than occasional fingering, such as surveillance system monitor and cutter and paster, [3] but they were not widely available. (Tr. 69-70). Furthermore, these jobs would not be available if, for 20 percent of the time, the hypothetical individual was unable to accept instructions or criticism, get along with peers without distracting them, maintain basic standards of appropriate behavior and grooming, and get along with the general public. (Tr. 70). Finally, there would be no work available in the national economy if the hypothetical individual was absent from work two or more days per month or made threats of violence. (Tr. 73).

         B. Medical Evidence

         Plaintiff received mental health treatment from East Central Mo Behavioral Health Services (BHS) as a condition of probation.[4] Catherine Browning, DNP, PMHNP, provided medication management and Dennis Campbell, MSPSY, provided counseling.[5] He also received primary medical care from Mark Tucker, DO, [6] and surgery for carpal tunnel syndrome from Christopher M. Bieniek, MD.

         Plaintiff had eight appointments for medication management with Ms. Browning between July 17, 2014, and February 10, 2016. (Tr. 315-19, 320-24, 325-29, 358-62, 363-68, 369-73, 374-79, 394-98). The treatment notes state that he had multiple incarcerations for assault and firearm charges and was barred by the terms of his probation and an ex parte order from living with his new wife and her children. (Tr. 315); see also Tr. 330 (plaintiff reported spending 11 of his adult years in prison for violence and assault); 397 (noting history of 300 assault charges). His aggressive tendencies were exacerbated by alcohol, which he stopped using in September 2013. (Tr. 316, 85). The treatment notes for each session state that plaintiff had the following symptoms: anxiety, compulsive behaviors, depression, hyperactivity, obsessive thoughts, poor concentration, and racing thoughts. In addition, plaintiff's mental status at every session was agitated, guarded and cooperative, with a disheveled appearance. His mood was anxious, depressed, and irritable, and his affect was anxious and sad. He avoided eye contact. His speech was pushed and rapid. While his flow of thought was logical, the content of his thoughts included anxieties, hopelessness, and worthlessness. He had no delusions or hallucinations, was well oriented, and had fair insight and judgment. For each of the first six sessions, plaintiff was assigned a Global Assessment of Functioning (GAF) score of 41;[7] thereafter, BHS discontinued using the GAF. (Tr. 376-77, 397). His diagnoses were bipolar disorder, most recent episode depressed, and history of alcohol dependence. Throughout the period under review, plaintiff was prescribed medications for depression, [8] mood stabilization and aggression, [9] and ADHD[10] in addition to trazadone for sleep, and benztropine for control of extrapyramidal symptoms.

         The medical record begins with a session on July 17, 2014. Ms. Browning noted that plaintiff had reconciled with his wife and was living in the family home. (Tr. 315-19). He was trying to spend time outside and looked healthier. He had completed an application for Medicaid. Ms. Browning directed plaintiff to continue taking his medications and noted that, once he had Medicaid, he would be able to resume medications known to be effective for his ADHD symptoms and mood stabilization.

         Plaintiff underwent a new patient evaluation with Dr. Mark Tucker on October 8, 2014. (Tr. 305-08). He complained that he had pain in his right shoulder and was losing feeling in his hands, with his left hand “going to sleep.” He had a history of periodic migraine headaches but they had improved with his mood stabilization medication. On examination, Dr. Tucker described plaintiff as awake, alert and oriented, with stable mood, attention and focus. Plaintiff had tenderness and positive signs of rotator cuff tendinitis in his right shoulder, while his left wrist was tender over the carpal ligament and his left hand was visibly swollen. Dr. Tucker diagnosed plaintiff with rotator cuff tendinitis, for which he administered a steroid injection, and probable carpal tunnel syndrome, for which he prescribed a nonsteroidal anti-inflammatory. Dr. Tucker also agreed to refill plaintiff's prescriptions for mood stabilization and sleep, after plaintiff explained that it was difficult to get refills from Ms. Browning in a reasonable time. Blood tests revealed that he had very high lipid levels and he was started on a statin medication. (Tr. 309, 311). Dr. Tucker urged plaintiff to quit smoking.

         On October 21, 2014, Ms. Browning noted that plaintiff was “back with” with his wife. (Tr. 320-24). He continued to present multiple symptoms of ADHD, including lack of attention to detail, poor focus, poor follow-through on tasks, constant fidgeting and restlessness, poor listening, and interrupting others. He also had some aggression and needed ongoing assistance with anger management. Plaintiff agreed to a referral to services from BHS's Community Psychiatric Rehabilitation Center and “HCH” nurse.[11] Ms. Browning added Seroquel to his other medications and noted that she would consider changing plaintiff's antidepressant medication in the future.

         Imaging tests completed in October and November 2014 showed that plaintiff had mild and moderate degenerative joint disease of the right shoulder, in addition to a configuration that could contribute to impingement. He also had mild bursitis, tendinopathy, and a labral tear. (Tr. 300-02). In October, Dr. Tucker prescribed high doses of aspirin to treat the shoulder pain, and on November 25, 2014, Dr. Bieniek injected plaintiff's right shoulder. (Tr. 309-12, 314). Dr. Bieniek performed carpal tunnel release surgery on plaintiff's left wrist on December 4, 2014. (Tr. 332-47). At follow-up on December 9, 2014, Dr. Bieniek found that plaintiff's numbness was “improving nicely” and released him from care without restrictions. (Tr. 313).

         On December 1, 2014, plaintiff began individual counseling with Dennis Campbell with the goal of developing emotional regulation skills. (Tr. 330-31). He reported problems with irritability, racing thoughts, depression, and lack of restorative sleep. He stated that he slept about 10 hours a week, but he also acknowledged that he drank three pots of coffee a day. Although he was living with his wife and her children, he stated that he did not trust people and preferred to be alone. In addition, he no longer had any interest in doing things he used to enjoy, such as woodwork. He stated that his symptoms worsened when he learned that his wife was unfaithful. A few days later, Ms. Browning noted that plaintiff “appear[ed] calmer than ever.” (Tr. 325-29). He reported that his medications were working well. He still had quick mood changes which he coped with by withdrawing from others. Based on the results of an ...


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