United States District Court, E.D. Missouri, Southeastern Division
TURHAN E. W., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration, Defendant.
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE
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).
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). (Tr. 238-39).
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.
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
Evidence Before the ALJ
Disability and Function Reports and Hearing
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.(Tr. 143).
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).
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.
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. 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.
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).
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).
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).
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.
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).
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).
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, ” but that the proper course
of treatment was unclear. A new MRI completed on February 9,
2015, was consistent with bone marrow edema. (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. 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.
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).
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.”
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. 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).
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.
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