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Allen I. v. Saul

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

November 5, 2019

GREGORY ALLEN I., Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of the 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 May 8, 2014, plaintiff Gregory Allen I. 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 June 30, 2006.[2] (Tr. 297-300, 303-09, 363). Plaintiff subsequently amended the alleged onset date to March 26, 2014. (Tr. 78). After plaintiff's applications were denied on initial consideration (Tr. 169-73), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 178). Following a hearing on March 17, 2016 (Tr. 82-112), the ALJ issued an unfavorable decision. (Tr. 143-63). Plaintiff appealed this decision and, on May 25, 2017, the Appeals Council remanded the case to the ALJ with instructions.[3] (Tr. 164-68).

         Plaintiff and counsel appeared before the same ALJ for a second hearing on March 20, 2018. (Tr. 36-81). Plaintiff testified concerning his disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Susan Shea, M.A. The ALJ issued a decision denying plaintiff's applications on May 4, 2018. (Tr. 12-35). The Appeals Council denied plaintiff's request for review on August 10, 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 in February 1962, was 52 years old on the amended alleged onset date. He graduated from high school after completing a vocational program in electronics. (Tr. 383). Following a brief period in the military, plaintiff returned to his parents' home.[4] (Tr. 102). After his mother died in December 2012, plaintiff assumed primary care for his father until early 2014, when his father died. (Tr. 88-89). In April 2014, plaintiff moved into a one-bedroom house paid for by the Department of Mental Health through the Supported Community Living Program. (Tr. 46, 87). He received mental health and case management services through the Community Counseling Center and New Visions. (Tr. 93). He last worked in late 2014 at a Dollar Tree store and earned a total of $147 in the final quarter of the year. (Tr. 88, 18).

         At his hearing in March 2016, he testified that he was unable to keep jobs for very long due to his mental health issues and that he had had “100 jobs in [his] lifetime.”[5] (Tr. 89). He had confrontations with “smart ass young punks” and “bosses that aren't capable of earning my respect.” He was fired once after “confronting a known shoplifter too aggressively, allegedly.” (Tr. 99, 55-56). Several bosses had given him second and third chances but he “blew it” and had lost “an awful lot of good jobs.” (Tr. 97). He had worked as a welder fabricator, a machinist apprentice, a trailer mechanic, and a stocker and cashier for a grocery store. (Tr. 103-07, 46-47). Earnings records from 1980 through 2015 show that he earned less than $7, 500 during most years. (Tr. 310).

         When plaintiff applied for disability benefits in 2014, he listed his impairments as depression; anxiety; borderline personality disorder; paranoid psychotic; arthritis in the knees, ankle, and feet; and insomnia. He also became easily fatigued in the heat. (Tr. 113). In May 2013, his medications included Ambien, Benadryl, Klonopin, and Restoril for sleep; Mirapex for restless leg syndrome; Paxil for depression; and Vistaril for anxiety. He also took meloxicam for arthritis and a cholesterol medication. (Tr. 385). In August 2015, plaintiff reported that he was also prescribed trazodone for depression and insomnia. (Tr. 434).

         In his May 2014 Function Report (Tr. 402-12), plaintiff stated that he was unable to work due to arthritis which limited the number of hours he could be on his feet and his inability to tolerate heat. But, he wrote, his mental health issues made it impossible for him to maintain employment. He had insomnia and ate one meal a day. He was indifferent to his appearance and showered about once a week. He was able to handle his household chores and took care of his dog. He did not drive because he did not have a license and relied on a bicycle for transportation.[6] He shopped in stores as needed. He had no difficulty managing financial accounts. He stated that he socialized often but offered no description of his social activities and stated that he did not go anywhere on a regular basis. He had difficulty getting along with others, especially authority figures, and had been fired due to his anger issues. He needed antianxiety medication to cope with stress and managed changes in routine only when the change “improves efficiency.” He had a strong sense of impending doom and was plagued by almost constant “hateful violent thoughts.” (Tr. 408). Plaintiff had difficulties with squatting, standing, walking, kneeling, climbing stairs, completing tasks, concentrating, understanding, and getting along with others. He followed written, but not spoken, instructions well.

         Plaintiff described his typical day as walking his dog, running errands, and then working on projects at home, including fixing up an old truck and doing yard work. (Tr. 95). He had a basement shop in which he made models. (Tr. 48). He had strongly negative feelings about his neighborhood. (Tr. 56-57).

         At the March 2016 hearing, plaintiff testified that he was kept from working by arthritis in his lower legs. (Tr. 89). His feet, which had caused him the most pain, improved after surgery to remove bone spurs. At the time of the hearing, his primary physical problem was knee pain, for which he took meloxicam. Cortisone shots had not provided much relief. He used his bicycle for transportation and typically rode 20 or 30 miles a week.[7] (Tr. 89-92). He walked his dog about 45 minutes a day. At the subsequent hearing in March 2018, plaintiff stated that his arthritis limited how long he could stand but did not interfere with his ability to do grocery shopping or manage his household chores. (Tr. 46). He still walked his dog and relied on his bicycle for transportation. At his present level of activity his knee pain was managed with Tylenol and aspirin but he would need to resume taking meloxicam if he had to spend more time on his feet. (Tr. 47).

         Plaintiff stated that his mental health conditions and insomnia are his primary impairments. (Tr. 95, 97, 59). Following his father's death in 2014, he became scared by his thoughts and requested “an in-depth psychological evaluation.” (Tr. 93, 71-72). He described difficulty managing his anger in dealing with a neighbor he described as “crazy” and a “true sociopath.” (Tr. 97, 93). At his hearing in March 2018, he described feeling “homicidal hate and rage, ” which he attributed to the conditions in his neighborhood. (Tr. 56-57). Plaintiff testified that for three years he had been sleeping less than two hours a night. (Tr. 59). Plaintiff had been sober since sometime in late 2014. (Tr. 96, 68).

         The ALJ received testimony from vocational experts at both hearings. In March 2016, Dolores Gonzalez, M.Ed., was asked to testify about the employment opportunities for a hypothetical person who was closely approaching advanced age, with a high school education, with plaintiff's work history who was limited to medium work, who could occasionally climb ladders, ropes, and scaffolds and was limited to simple, routine, repetitive tasks, involving only simple decisions and few workplace changes in an environment without fast-paced quotas. Ms. Gonzalez was also asked to assume that the individual was limited to occasional interaction with co-workers and no interaction with the general public. (Tr. 108). According to Ms. Gonzalez, such an individual would not be able to perform plaintiff's past work as a welder, machinist, trailer mechanic, stocker, and cashier. (Tr. 104-07, 108). Other work available in the national economy the individual could perform included cleaner II, dump-truck driver, and salvage laborer. The individual would not be able to work as a dump-truck driver if he were further restricted to only occasional kneeling and use of foot controls, but he could work as a cleaner II, salvage laborer, and stubber. All work would be precluded if the individual consistently missed three or more work days each month or had a thirty percent reduction in the ability to maintain socially appropriate behavior with coworkers and supervisors. (Tr. 108-10).

         At the second hearing in March 2018, Susan Shea, M.A., testified that the hypothetical individual, now assumed to be of advanced age but still able to perform medium work, could not perform plaintiff's past relevant work as a machinist apprentice but could work as a laundry worker, machine feeder, and hand packager. (Tr. 61, 64-65). If limited to light work and assumed to be approaching advanced age, the same individual could work as a cleaner or housekeeper, small product assembler, and light machine tender. (Tr. 65-66). No. work would be available if the individual were off task 20% of the day, missed two or more days of work per month due to mental health issues, was limited to interacting with others for no more than 10% of the day, or was verbally or physically inappropriate in the workplace. (Tr. 66-67).

         B. Medical Evidence

         Plaintiff challenges the ALJ's evaluation of medical opinions regarding limitations caused by his mental impairments. Accordingly, the following review of the medical evidence focuses primarily on the treatment plaintiff received for those impairments.

         Plaintiff's primary care physician, Mark Kasten, M.D., listed depression, anxiety, and anger issues among the conditions for which he was treating plaintiff in 2011. Plaintiff's medications included Zoloft for depression, buspirone for anxiety, Invega, [8] Ambien for insomnia, and Mirapex for restless leg syndrome. (Tr. 480-82; 478-79). In November 2011, plaintiff told psychiatrist Kishore Khot, M.D., of the Community Counseling Center (CCC), that he stopped taking Zoloft and Invega because he did not believe they were helping. (Tr. 498). Dr. Khot noted that plaintiff's mood and affect were both anxious. He did not have suicidal or homicidal ideation or overt psychosis and he was alert and oriented. His diagnosis was generalized anxiety disorder with restless legs syndrome as a relevant medical condition. Dr. Khot reviewed anxiety-management skills with plaintiff and officially discontinued Invega and Zoloft. A month later, however, plaintiff called CCC and asked for a prescription for Zoloft, stating that he had been calling in sick to work and had suicidal thoughts. (Tr. 495). He had resumed taking some Zoloft he had on hand. He was given appointments to see nurse Daniela Kantcheva, APRN, but he did not keep appointments on December 29, 2011, or January 17, 2012. (Tr. 495). By the time he saw Dr. Khot in March 2012, plaintiff had changed his mind yet again and did not want to take Zoloft or other antidepressants because they caused him to sweat. (Tr. 492). He reported that he had lost his job at a supermarket because he yelled at a customer who had previously shoplifted.

         In April 2012, plaintiff went to the emergency room at Southeast Missouri Hospital with flank pain that was diagnosed as kidney stones.[9] (Tr. 623-31). At follow-up with Dr. Kasten on May 1, 2012, plaintiff reported that he was anxious and had suicidal thoughts and sleep disturbance. (Tr. 473-75). On June 25, 2012, Dr. Khot noted that plaintiff was feeling more anxious. (Tr. 496). Plaintiff reported that he was looking for work. On mental status examination, plaintiff's mood and affect were both anxious, he was alert and oriented, with normal speech, and he did not have suicidal or homicidal ideation or overt psychosis. Dr. Khot continued plaintiff's prescriptions for buspirone and Ambien and added Vistaril as needed for anxiety. Dr. Khot also warned him not to double up on his Mirapex prescription to treat his restless legs syndrome.

         In August 2012, plaintiff told Dr. Kasten that he had stopped drinking and complained of increasing stomach pain. (Tr. 470-72). A CT scan of the abdomen disclosed tiny nonobstructive renal calculi and colon diverticulosis. (Tr. 605). Two benign polyps were removed during a colonoscopy in December 2012. (Tr. 604). In the autumn of 2012, plaintiff had injections to his knees and feet to treat joint pain. (Tr. 538-39; 468-69; 466-67).

         Plaintiff failed to keep an appointment with Dr. Khot in September 2012. In October, plaintiff continued to present with anxious mood and affect and was still looking for work. (Tr. 488). Plaintiff did not return to CCC until early 2014.

         Plaintiff had bone spurs removed from his feet in January and February 2013. (Tr. 462-65, 530-31, 535-37, 533-34, 528-39). In September 2013, Dr. Kasten noted that plaintiff was awakening 5 times a night and had difficulty falling asleep. (Tr. 458-61). On mental status examination, plaintiff was oriented but had poor judgment and insight. Plaintiff was prescribed Ambien and Restoril for insomnia. A sleep study in October 2013 disclosed a 69% sleep efficiency, with a 56-minute delay in sleep onset, 12 awakenings, and 112 arousals. Plaintiff's sleep pattern was not due to significant obstructive sleep apnea. (Tr. 597-98). It was recommended that plaintiff lose weight to reduce snoring and receive treatment for his restless legs syndrome and insomnia.

         On February 25, 2014, plaintiff met with Daniela Kantcheva, APRN, at CCC. (Tr. 487). He reported that he had been off his medication since 2012. He stated that he wanted psychological testing and supportive therapy before resuming medication. On mental status examination, plaintiff had appropriate affect and mood, logical thought processes, and fair insight and judgment. He was alert and oriented and denied experiencing suicidal ideation, homicidal ideation, or hallucinations.[10] Ms. Kantcheva diagnosed plaintiff with major depression, recurrent, in partial remission, and referred him to New Vision Counseling for testing and supportive counseling.

         Georgette Johnson, Psy.D., of New Vision Counseling, completed a psychological evaluation on March 26, 2014. (Tr. 501-09). Plaintiff reported that he had never married or had any long-term intimate relationships. He had a small group of friends with whom he socialized. He had a history of conflict with others, especially in work settings. His present conflict with the next-door neighbor caused him considerable anguish, including hostile thoughts, hypervigilance, and paranoid ideation. He had recently reenrolled in outpatient services at CCC and would receive targeted case management services. Plaintiff's history of mood and emotional disturbance began when he was 13, with a period of severe depression and suicidal thinking in 1994. At present, he was severely depressed, with frequent episodes of crying, feelings of hopelessness, low self-esteem, irritability, suicidal ideation, homicidal thoughts, and agitation with explosive anger. He also had severe anxiety with panic attacks. He cried profusely during the evaluation at the thought of losing his pet. Dr. Johnson noted that plaintiff “was not reassuring about his risk of self-harm” in the future and that he experienced homicidal and suicidal thoughts on a recurring basis. (Tr. 508). On mental status examination, plaintiff was alert and oriented, with fair eye contact and blunted affect, and depressed and anxious mood. He appeared agitated, distraught, and considerably uptight. He was not overtly psychotic but had paranoid thinking and persecutory beliefs, some of which might have been reality-based. He had mild to moderate impairments in both recent and remote memory. His cognitive functioning was in the average to high-average range with adequate abstract reasoning potential. He was responsive, cooperative, and generally friendly. His judgment was fair. Plaintiff was presently taking Restoril, Lipitor, and Klonopin.[11] He was not taking prescribed Synthroid or Meloxicam.

         Plaintiff underwent four hours of psychological testing with Dr. Johnson, who administered the Personality Assessment Inventory (PAI), the Minnesota Multiphasic Personality Inventory (MMPI-2d ed.), and Adult Sentence Completion. (Tr. 510-13). In a report dated April 27, 2014, Dr. Johnson noted that plaintiff's scores on the PAI indicated clinically significant and severe ranges of anxiety, depression, and suicidal ideation, with significant symptoms of reality impairment and a possible thought disorder, paranoid interactions, and characteristics that reflected a borderline personality disorder. Plaintiff's scores on the MMPI suggested that he was hostile, distrustful, irritable, self-centered, highly sensitive to criticism from others, and likely to infer that others were hostile and had negative intentions.[12] Dr. Johnson diagnosed plaintiff with: (1) major depressive disorder, recurrent, severe with psychotic features; rule out bipolar disorder, schizoaffective disorder, schizophrenia, and delusional disorder; (2) generalized anxiety disorder with features of panic disorder; rule out panic ...


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