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Joe v. Saul

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

June 25, 2019

BILLY JOE. T., Plaintiff,
ANDREW M. SAUL, [1] Commissioner of the 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 30, 2015, plaintiff Billy Joe T. 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 January 1, 2007. (Tr. 171-72, 173-79, 15). After plaintiff's applications were denied on initial consideration (Tr. 77-82, 83-88), he requested a hearing from an Administrative Law Judge (ALJ).[2] (Tr. 98-99).

         Plaintiff and counsel appeared for a hearing on June 14, 2017. (Tr. 33-59). Plaintiff testified concerning his disability, daily activities, functional limitations, and past work. The ALJ also received testimony from plaintiff's case worker, Rebecca Murrah, and vocational expert Janice S. Hastert, M.S. The ALJ issued a decision denying plaintiff's applications on October 19, 2017. (Tr. 15-27). The Appeals Council denied plaintiff's request for review on June 30, 2018. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability Reports and Hearing Testimony [3]

         Plaintiff, who was born in April 1982, was 24 years old on the alleged onset date. He lived with his mother and brother and his mother's two grandchildren in his mother's home. (Tr. 38, 45-46). He had two children, ages 11 and 7, who lived with their mother. (Tr. 38). He received special education services until he left school during the 9th grade. (Tr. 37). He did not have a general education diploma. He testified that he had previously worked for a construction company, for fast food restaurants, and at Wal-Mart.[4] His mother helped him complete job applications. With the exception of the construction job, he only stayed with an employer for a month or two because he was unable to remember what he was supposed to do. (Tr. 43-44, 49). At the time of the hearing, he mowed lawns once or twice a month in exchange for an offset on his family's rent. (Tr. 39).

         When plaintiff applied for disability benefits in 2015, he listed his impairments as schizoaffective disorder, borderline intellectual functioning, Stevens-Johnson syndrome, [5]neuropathy, hypertension, indigestion, and headaches. (Tr. 77). In March 2017, his medications included Prazosin to treat schizophrenia; Trazodone for anxiety and sleep; Zoloft, Cymbalta, and Abilify for depression; benztropine to control medication side effects; gabapentin for neuropathy; and medications for acid reflux and blood pressure. (Tr. 269).

         The Field Office interviewer noted that plaintiff had difficulty with understanding and answering questions until they were simplified. He also had difficulty remembering dates and job duties. (Tr. 210). The Disability Report he completed with the help of the interviewer lists four jobs: a job in fast food from January 2010 through March 2011 for 30 hours a week; an unspecified restaurant in 2009 for 40 hours a week; work on a farm for two months in 2015; and work for a waste removal company from 2102 to 2014. (Tr. 214). This information is not consistent with earnings reports, which show that in any given year plaintiff typically worked for a number of different employers, with earnings ranging from $165 to nearly $10, 000. (Tr. 164-170, 183). Plaintiff's highest earnings occurred in 2010, when he earned $16, 500 from a total of five employers. (Tr. 165).

         Plaintiff testified that he was unable to work due to pain and tingling in his legs, his moods, his memory, and poor reading skills. His household chores included washing the dishes, which he did while sitting down, and mowing a lawn he described as “not real big.” Both tasks took him at least an hour to complete. His mother helped him do his laundry. (Tr. 46-47). He was able to prepare simple meals such as ramen noodles and Vienna sausages. He did not socialize with others, preferring to stay home. He did not attend his children's school functions because there were “too many people.” (Tr. 50). He did not attend religious services or go shopping because he was afraid “somebody will say something.” (Tr. 51). Although he had a driver's license, he limited his driving because it caused pain in his legs. (Tr. 48). He had a smart phone that he used to watch YouTube videos through an app. He did not use the internet or social media. (Tr. 49). He denied having a history of drug or alcohol use.[6] He received treatment for his psychiatric conditions from professionals at Bootheel Counseling Services.

         Case worker Rebecca Murrah, of Bootheel Counseling Services, testified that she had been providing mental health monitoring to plaintiff for about 6 months. Depending on her schedule, she saw him once a week or every other week. She made sure he took his medications, helped him with his medical appointments, made sure he took care of his personal hygiene, and assisted him with completing paperwork. Ms. Murrah testified that plaintiff needed regular reminders to take his medications, about which he had “constant” questions. She opined that he would need assistance to complete a job application and would not be able to work without assistance. (Tr. 52-54).

         Vocational expert Janice Hastert was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education, and work experience who had no exertional limitations, but was limited to simple, routine, repetitive tasks with occasional interaction with co-workers and no interaction with the general public, and who could accept supervision and adapt to changes in the work place “on a basic level.” (Tr. 56). According to Ms. Hastert, such an individual would be able to perform plaintiff's past work as a garbage collector, dishwasher, and sandwich maker. Other work available in the national economy the individual could perform included tumbler operator, shuttle spotter, and casting machine tender. All work would be precluded if the individual was unable remember and perform simple, routine, repetitive tasks and was unable to interact with co-workers, the public, or supervisors. (Tr. 57). In response to questions from plaintiff's counsel, Ms. Hastert testified that employment would also be precluded if the individual required repeated training every two or three weeks.

         B. Educational Records

         Plaintiff was identified as having speech and language delays in kindergarten. (Tr. 723-24). An individualized education plan (IEP) completed when plaintiff was in second grade identified him as “educable mentally handicapped” and in need of special education services for 50 percent of his school hours with additional speech and language services. (Tr. 703). In third grade, he was described as likeable and willing to work hard if given an incentive. He had a wonderful sense of humor and got along well with everyone. He had difficulty staying awake and staying on task. (Tr. 706). Plaintiff's scores on a test of cognitive functioning administered in the fourth grade yielded a verbal IQ of 74, a performance IQ of 67, and a full scale IQ of 69, placing him in the “mentally deficient” range. In the classroom, he had great difficulty with letter and number recognition and short-term and long-term memory. (Tr. 729). In fifth grade, he was described as likeable with a pleasant personality. (Tr. 716). His scores on the Peabody Individual Achievement Test showed weaknesses in math computation and reasoning, spelling, reading comprehension, and sight vocabulary. He showed strength in general information and, because he had an interest in science, was able to remember “some” science facts when he heard them. In seventh grade, the percentage of time plaintiff received special education services increased. (Tr. 718). He was again described as very likable, but it was noted that he was lazy and it was hard to get work out of him. (Tr. 70). He had strengths in spelling and reading recognition; he had difficulties with applying math skills, reading comprehension, basic science, and social studies facts. (Tr. 720). His scores on the Weschler Intelligence Scale for Children - III yielded a verbal IQ of 76, performance IQ of 70, and a full scale IQ of 71. (Tr. 733). His good sense of humor was noted again in eighth grade, but he was very hard to motivate and preferred to socialize or sleep than to work. (Tr. 740). He had roughly equal hours of regular and special education classes. (Tr. 739). By ninth grade, his special education hours were sharply reduced. (Tr. 744). It was noted that he was working as a roofer on a part-time basis and planned to continue in that work when he graduated. (Tr. 755). According to counsel's prehearing memorandum, plaintiff worked for one construction company for 9 years, starting at age 16. He was given simple tasks such as removing nails from wood frames, carrying lumber, and assisting other workers. (Tr. 282-83).

         C. Medical Evidence

         1. Treatment for Physical Complaints

         During the period under consideration, plaintiff received his primary medical care through SEMO Health Network, where he was treated by family nurse practitioners Tina Moore and Danielle E. Jansen.

         In October 2012, Ms. Moore gave plaintiff a prescription for Cipro to treat bronchitis, sinusitis, and an ear infection. (Tr. 682). He had a bad reaction to the Cipro and went to the emergency room. It was noted that he had a history of Stevens Johnson Syndrome in response to penicillin. (Tr. 681-82). In December 2012, Ms. Moore diagnosed plaintiff with thoracic and sciatic neuritis. (Tr. 680-81). In June 2013, plaintiff presented with anxiety, high irritability, emotional liability, depression, and sleep disturbance. (Tr. 678-80). His affect was angry and anxious. His diagnoses included dysthymic disorder and panic disorder without agoraphobia, in addition to obesity. Plaintiff was prescribed the antidepressant Cymbalta. A week later, Ms. Moore noted that plaintiff had a depressed mood with sad affect and added a diagnosis of dysthymic disorder. (Tr. 380-81). She discontinued the Cymbalta and started the antidepressant Pristiq. Throughout the remainder of 2013, Ms. Moore treated plaintiff for elevated blood pressure, pain in his low back, knees and feet, swelling in his legs, sleep disturbance, dysthymia, and panic disorder. (Tr. 377-80, 376-77, 374-76, 371-74, 369-71, 368-69, 366-68, 363-65).

         In 2014, plaintiff was prescribed the antidepressants Pristiq, followed by paroxetine, Celexa, and finally Brintellix. (Tr. 360-62, 664, 352-53). He quit smoking cigarettes and began using e-cigarettes. (Tr. 362, 354-56). With respect to physical complaints, plaintiff continued to present with elevated blood pressure, swelling in his legs after exercise, leg pain at night, spasm of the back muscles, and thoracic and sciatic neuritis.[7] (Tr. 664, 358-59, 357, 352-53, 349-51). He had his gall bladder removed in May 2014. (Tr. 664-66).

         An MRI of plaintiff's lumbar spine completed in March 2015 disclosed mild multilevel arthropathy and mild degenerative disc disease at ¶ 5-S1, without stenosis. (Tr. 415). In June 2015, Ms. Jansen noted that plaintiff had begun receiving mental health treatment at Bootheel. He had excessive thirst and nonpitting edema. (Tr. 382-84). She discontinued Brintellix and gabapentin and directed him to lower his sodium intake, increase his water intake, increase activity, and elevate his legs when possible.

         In February 2016, an ankle brachial index test was completed in response to plaintiff's complaints of swelling in his legs, numbness in the right leg, and a sensation of heat at the top of his legs. (Tr. 413). No. interpretation of the results was provided. Later in the month, plaintiff underwent a sleep study.[8] (430-47). The study found that plaintiff experienced a few respiratory events and snoring, but he did not qualify for positive pressure therapy. He was advised to achieve a normal body mass index. Imaging studies of plaintiff's left knee in May 2016 disclosed moderate partial thickness of the chondrosis and a small Baker's cyst without evidence of rupture. (Tr. 461, 463, 465). In September 2016, plaintiff sought emergency treatment for low back pain, which he rated at level 7, and an abrasion on his shoulder. (Tr. 449-55, 482-90).

         2. Treatment of Mental Health Complaints

         Beginning in March 2015, plaintiff began receiving psychiatric services from Bootheel Counseling Services, where Linda Kohler, M.D., provided medication management and psychiatric treatment. In August 2015, Bootheel began providing community support services to plaintiff as well.[9]

         On March 25, 2015, plaintiff had a crisis counseling session at Bootheel. (Tr. 546-49). He had been hospitalized at Southeast Hospital in Cape Girardeau seven days earlier on reports that he was hearing voices, and experiencing memory loss, depression, and anxiety.[10] On April 21, 2015, Dr. Kohler completed an evaluation. (Tr. 399-400). Plaintiff described episodes in which he heard his mother calling him or thought that someone was there. These experiences kept him awake at night and he slept during the day. He described himself as aggravated and irritable. He had two prior hospitalizations for self-harm. He dropped out of school in ninth grade because other students made fun of him. He reported that he had worked on chicken farms, built grain bins, and in fast food. Others told him that he just “can't comprehend” and “can't get it.” He stated that he did not know how to read. On mental status examination, Dr. Kohler noted that plaintiff was cooperative, had “much” yawning, was a little fidgety, was goal-directed in his thinking but had paucity of thought. He denied experiencing hallucinations and suicidal and homicidal ideation, and was not delusional. He was alert, but oriented only to name, and not date, day or season. His insight was “nil” and his judgment was poor. Dr. Kohler diagnosed plaintiff with schizoaffective disorder and borderline intellectual functioning. She assigned a Global Assessment of Functioning (GAF) score of 45. She discontinued his prescription for Brintellix due to its cost, and started fluoxetine and haloperidol. For the purposes of treatment planning, Dr. Kohler identified plaintiff's strength as “seeking treatment” and his weaknesses as “mood instability” and “symptoms that interfere with daily living.” (Tr. 492).

         On May 6, 2015, Dr. Kohler noted that plaintiff had stopped taking the fluoxetine because it caused somnolence and that the haloperidol had not addressed his auditory hallucinations. He was taking gabapentin for leg pain. (Tr. 397). On mental status evaluation, plaintiff had appropriate grooming, unremarkable psychomotor activity, made good eye contact, had normal word fluency and goal-directed thoughts. His judgment and insight were poor, but he was alert and oriented. Dr. Kohler discontinued fluoxetine, started Sertraline, and increased the haloperidol. His GAF remained at 45. On May 14, 2015, plaintiff reported that the sertraline helped him to “mellow” but he could not afford to fill the haloperidol prescription. (Tr. 395). His mood was improved. His mental status was unremarkable with the exception of occasional auditory hallucinations and ...

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