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Turhan E. W. v. Berryhill

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

April 2, 2019

TURHAN E. W., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.



         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 September 3, 2015, plaintiff Turhan E. W. protectively filed applications for a period of disability and 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 April 15, 2013, which was later amended to September 1, 2015. (Tr. 299-300, 301-06, 225-26, 344). After plaintiff's applications were denied on initial consideration (Tr. 209-16; 217-24), he requested a hearing from an Administrative Law Judge (ALJ).[1] (Tr. 238-39).

         Plaintiff and counsel appeared for a hearing on November 7, 2017. (Tr. 69-104). Plaintiff testified concerning his disability, daily activities, functional limitations, and past work.

         The ALJ also received testimony from vocational expert Delores E. Gonzalez, M.Ed. The ALJ issued a decision denying plaintiff's applications on November 20, 2017. (Tr. 11-25). The Appeals Council denied plaintiff's request for review on January 12, 2018. (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 February 26, 1977, was 39 years old on the amended alleged onset date. He had been married and divorced twice and had two children who lived with their mothers. (Tr. 761). He served in the Air Force between 1998 and 2000, with non-combat deployments in Texas, Iraq, Iran, and Kuwait. (Tr. 330, 170, 763). He received a medical discharge in 2006. (Tr. 763). He completed an associate's degree in 2002 or 2003 and made significant progress toward a bachelor's degree. He stopped taking courses in January 2007 due to severe headaches. (Tr. 141-42). He held a number of jobs in addition to his military service, including as a catalog model, a cook, a data entry clerk, assistant retail manager, cashier, parking booth attendant, police dispatcher, office cleaner, warehouse laborer, pawn-shop associate, machine operator at a cotton gin, fork-lift operator for a roofing company, and stand-up comedian. (Tr. 143-53, 175-80). He last worked between September 2013 and January 2014, delivering newspapers, but the action of rolling and throwing newspapers caused wrist pain.[2](Tr. 143).

         When plaintiff applied for disability benefits in 2015, he listed his impairments as right wrist injury, radial nerve damage, severe head trauma, migraines, asthma, PTSD, anxiety, and “mental.” (Tr. 356). He listed his medications as amitriptyline to treat depression, gabapentin to treat nerve pain, and vitamin D3. (Tr. 359). Plaintiff testified at the November 2017 hearing that he was prescribed promethazine for nausea, the muscle relaxer tizanidine, nortriptyline for nightmares, cyclobenzaprine for back spasms, sumatriptan for migraines, and Viagra. Some of the medications caused drowsiness and blurred vision. (Tr. 166-67).

         In a Function Report completed in September 2015 (Tr. 368-78), plaintiff described his daily activities as reading scripture, walking “lightly” around his property to get some exercise, taking care of a pet, and watching television. He went to bed at 8:00 p.m. due to his medications, but his sleep was interrupted by wrist pain and headaches. He was unable to maneuver clippers to shave. He needed constant reminders to take his medications. He cooked every day if he had an appetite, spending one to two hours on the task. He frequently did not have an appetite, however, and went days without eating. He could manage household chores such as cleaning and laundry, as well as repairs such as painting and hanging blinds, but these tasks took a long time to complete because he was interrupted by headaches. He no longer did yard work because he could not maneuver a lawn mower. He was able to drive, and went shopping once a month. He managed financial accounts, counted change, and paid bills without difficulty. In response to a question about his interests and hobbies, plaintiff wrote “relaxing, ” which he was not able to do often, due to his conditions. When asked what places he went on a regular basis, plaintiff listed the gas station, barber shop, and stores. He was able to follow written and spoken instructions “thoroughly” and had no difficulty with authority figures so long as they did not “us[e] their position as power.” He believed that he handled stress very well and he “embrace[d] change.” Plaintiff had difficulty with lifting, seeing, completing tasks, concentrating, using his hands, and remembering. His medications caused blurred vision, dizziness, and drowsiness. He could walk up to 2, 000 steps before he needed to rest for the remainder of the day.

         In 1999, while plaintiff was in the Air Force, he fell from a truck onto pavement. He testified that he sustained a traumatic brain injury (TBI) and broke his right wrist. He also developed PTSD as a result of the incident.[3] According to his testimony, the brain injury caused him to be very sensitive to sound, smell, and light, which triggered his nerves and caused muscle spasms and severe headaches. As a consequence of these sensitivities, he avoided leaving the house or interacting with others. (Tr. 155-57). He had daily headaches that lasted anywhere between 10 minutes and an entire day. When he felt a headache starting, he would lay down in a quiet dark room for about 30 minutes. (Tr. 158). He estimated that he spent 20% to 30% of the day laying down. (Tr. 188-89). Since he had begun weekly acupuncture treatment, his most severe headaches lasted about 30 minutes. (Tr. 157-58, 169). The headaches also caused blurred vision and loss of appetite. (Tr. 158). He testified he had a doctor's approval to use marijuana and cannabidiol (CBD) to treat the headaches. (Tr. 158-59). He wore a TENS unit throughout the day for back spasms and used a massager about an hour a day for neck and back pain. (Tr. 169).

         Plaintiff testified that all the bones in his right wrist were broken in the fall from the truck. He was unable to type or put pressure on the wrist and or lift anything as heavy as a gallon of milk. (Tr. 156). He had difficulty grasping large objects that required him to use his entire hand rather than just his fingers. He also had nerve damage in the arm from his fingertips to his shoulder. As a consequence, he had difficulty with a number of tasks, including shaving, tooth brushing, writing, and tying shoes. He typically wore sweatshirts and sweat pants so that he did not have to manage buttons and zippers. In cold weather, he experienced numbness in the arm. (Tr. 156, 164-66).

         Plaintiff described himself as short-tempered and quick to sever ties with others. He was ordered to take anger-management classes after he was charged with domestic peace disturbance for his actions in the midst of an anxiety attack. (Tr. 161). He testified that he did not feel safe in groups due to his PTSD. He had had two flashbacks or blackouts in the past five years. He also had panic attacks. (Tr. 162-63). He testified at the hearing that he slept for 12 to 18 hours every day; he did not clean his house and rarely cooked. (Tr. 167-68).

         Vocational expert Delores Gonzalez was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education, and work experience who was limited to light work, who could frequently use his dominant (right) arm and hand to reach, handle, finger, and feel; who should never climb ladders, ropes, or scaffolds or work at unprotected heights; who was limited to no more than occasional exposure to temperature extremes, and who should not be exposed to more than moderate noise or bright, glaring lights. In addition, the individual should not be required to work in crowds. (Tr. 184). According to Ms. Gonzalez, such an individual would be able to perform plaintiff's past work as a dispatcher, assistant manager, and pawnbroker. In addition, the individual would be able to perform work as an order caller, mail clerk, and a router. The same work would be available if the individual were additionally limited to occasional interaction with the public. The individual would be unable to perform plaintiff's past relevant work if he were further limited to only occasional use of the dominant arm and hand, but there would be other work available in the national economy, such as furniture rental consultant, usher, and bus monitor. (Tr. 186). All work would be precluded if the individual also required extra breaks or displayed verbal aggression or irritability toward others. (Tr. 187).

         B. Medical Evidence

         During the period under consideration, plaintiff received treatment for pain in his right wrist and arm, pain in his low back and neck, migraines, PTSD, and possible traumatic brain injury or post-concussion syndrome. Most of his treatment was provided through Veterans Administration (VA) medical centers in Poplar Bluff and St. Louis, Missouri.

         An MRI of plaintiff's right wrist completed on February 18, 2014, showed no fracture or bone marrow signal abnormality. The joint spaces were normal without chondrosis, and the cartilage, ligaments, tendons, nerves, and carpal tunnel were all normal. (Tr. 410-11). An arthrogram of the right wrist showed no evidence of instability. (Tr. 412-13).

         Plaintiff saw nurse practitioner Loretta King, R.N., on November 25, 2014. (Tr. 497-500). Plaintiff reported that he was losing hair on his legs, which occasionally cramped. He also complained of wrist pain and requested a referral to orthopedics. Ms. King noted that plaintiff had full grip strength. Plaintiff was prescribed medication to treat a vitamin D deficiency. He had no other medications. A PTSD screen administered that day was negative; records reflect that a PTSD screen administered in March 2015 was positive. (Tr. 501, 443).

         On December 24, 2014, orthopedist Gary Miller, M.D., noted that plaintiff continued to complain of pain in the right wrist. (Tr. 448-49). He had received some relief from an injection administered at an earlier visit but had now exhausted conservative treatment. While x-rays were normal, other imaging studies were consistent with arthritis. Dr. Miller opined that plaintiff's diagnosis “would appear to be scapholunate chondrosis, ”[4] but that the proper course of treatment was unclear. A new MRI completed on February 9, 2015, was consistent with bone marrow edema.[5] (Tr. 418-19). In June 2015, the Pain Management Clinic evaluated plaintiff's right wrist pain, which plaintiff rated at level 10 on a 10-point scale. (Tr. 437-42). The pain radiated into his arm and fingers and was accompanied by numbness. It improved when he rested his hand and worsened when he wore splints. On examination, plaintiff exhibited intact sensation and grossly intact strength without focal weakness. Despite his reported level of pain, he shook hands without difficulty and did not appear to be in distress. Waddel's signs were negative.[6] A trial of gabapentin for treatment of the neuropathic component of plaintiff's pain was proposed. Plaintiff was directed to return to Orthopedics if he wanted a steroid injection.

         On March 16, 2015, plaintiff told Ms. King that he wanted to be screened for PTSD. He stated that he could not sleep and that his girlfriend said he tried to choke her while she slept, although he was not positive this incident occurred. (Tr. 487-91). Ms. King's notes reflect that plaintiff used marijuana on a daily basis since age 18; he ran or walked on a daily basis; and he ate one meal a day. Results on a screening test suggested moderate depression. Ms. King referred plaintiff to mental health services for further evaluation of PTSD, insomnia, and depression. (Tr. 443).

         Rebecca A. Stout, Ph.D., completed an initial psychological evaluation on March 23, 2015. (Tr. 483-87). Plaintiff stated that he slept two to four hours at a time, and woke up drenched in sweat. He did not recall having nightmares or dreams. He stayed awake for two to three hours before falling back to sleep. He smoked marijuana to calm down and fall back to sleep. He struggled with irritability and felt that he had a short fuse. He felt detached from others, although he made an effort to stay engaged with his two children. He had hoped to make the military his career before being discharged due to injuries. He worked as a stand-up comic, which he stated provided an outlet for stress. He described his mother as emotionally abusive and had no recall of a five-year period of his childhood. Plaintiff reported that he was having difficulty with focus, concentration and memory. Nonetheless, Dr. Stout noted, he had no desire to quit using marijuana. Plaintiff's responses to a screening test did not endorse sufficient symptoms to support a finding of PTSD. Similarly, he did not identify a clear stressor, although Dr. Stout suspected he had experienced childhood trauma. Dr. Stout proposed that plaintiff participate in time-limited treatment using cognitive-behavioral therapy. Over the course of eight sessions, plaintiff reported improvement in his mood and sleep, and he travelled out of state to perform in comedy shows. (Tr. 481-82; 478-80; 476-78; 474-76; 463-65; 458-60; 450-51; 826-27). In June 2015, Ms. King started plaintiff on amitriptyline to address his insomnia (Tr. 465), and by September 2015, plaintiff's sleep, concentration, and appetite were all within normal limits. (Tr. 827). Plaintiff's mood was “great” and stable and he had demonstrated efficacy in coping skills. Dr. Stout and plaintiff “mutually agreed on termination.”

         Three weeks after terminating with Dr. Stout, plaintiff told primary care physician Cheryll D. Rich, M.D., that he continued to have PTSD and TBI-related mental health symptoms, nightmares in particular. (Tr. 821-22). In addition, he complained of chronic wrist pain and night-time foot cramps.[7] He requested further mental health and pain management services. His reported pain level at that visit was 2 on a 10-point scale. (Tr. 823). He continued to take amitriptyline, vitamin D, and gabapentin. (Tr. 824).

         In October 2015, plaintiff told pain specialist Dale Klein, M.D., that a non-VA doctor had recommend surgery for his wrist pain but plaintiff was uncertain whether surgery would help. (Tr. 582-85). He had obtained some relief from steroid injections in the past. On examination, plaintiff had slightly decreased range of motion of the wrist, mild tenderness to palpation, full strength, and no evidence of atrophy. Dr. Klein opined that plaintiff's symptoms were most consistent with scapholunate chondrosis but noted that it was not possible to exclude tendinitis. (Tr. 584-85). Treatment options included over-the-counter analgesics, unspecified compounded medications, occupational therapy, steroid injection, and surgery. Dr. Klein recommended treatment with compounded medications and occupational therapy. He also suggested that plaintiff be seen at the traumatic brain injury clinic. Plaintiff reported that he would discuss surgery with his attorney.

         Amanda Wallace, Psy.D., assessed plaintiff's mental health needs on October 21, 2015. (Tr. 586-88). Plaintiff described feeling as though he was “in a life-or-death situation all the time, ” with anger that went “from 0-60 quickly, ” and feelings of suspicion. He awoke with night sweats more than five times a week. He was not taking his gabapentin and amitriptyline as prescribed because they made him too sleepy but continued to smoke “$10-$20 worth” of marijuana a day. He was doing stand-up ...

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