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Alfich v. Colvin

United States District Court, M.D. Tennessee, Nashville Division

November 20, 2014

MYRNA ALFICH
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security.

REPORT AND RECOMMENDATION

JULIET GRIFFIN, Magistrate Judge.

To: The Honorable Todd J. Campbell, District Judge

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Supplemental Security Income benefits ("SSI"), as provided by the Social Security Act.

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g) and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 12) should be DENIED.

I. INTRODUCTION

On September 30, 2010, the plaintiff protectively filed for SSI, alleging disability due to bipolar disorder with an onset date of November 1, 2001. (Tr. 12, 119-24, 129, 133.) She later alleged disability due to pain in her back, neck, shoulders, hips, and knees. (Tr. 17, 37-40, 147-55, 214.) Her application was denied initially and upon reconsideration. (Tr. 52-58, 62-65.) The plaintiff testified at a hearing before Administrative Law Judge Scott Shimer ("ALJ") on August 30, 2012, and amended her alleged onset date to February 22, 2011. (Tr. 12, 29-51.) The ALJ entered an unfavorable decision on September 21, 2012 (tr. 12-24), and on December 24, 2013, the Appeals Council denied the plaintiff's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3.)

II. BACKGROUND

The plaintiff was born on November 2, 1959, and she was 50 years old as of her application date. (Tr. 37.) She obtained her GED and has worked as a cashier on a part-time basis. (Tr. 33-35.)

A. Chronological Background: Procedural Developments and Medical Records

In a Function Report dated December 12, 2010 (tr. 147-55), the plaintiff reported that she did not like dealing with people, had periods of depression and crying, and was "slow" and "absent minded" with poor sleep due to "restlessness" and "nervousness." (Tr. 147-48.) She related that she took care of a disabled veteran and was able to prepare meals, pay bills, wash laundry, clean, go outside "occasionally, " use public transportation, and shop. (Tr. 148-50.) She explained that she was able to perform chores around the house and yard depending on her mood, pain, and depression. (Tr. 149.) She indicated that she did not have hobbies and did not spend time with other people but that she could follow written or spoken directions. (Tr. 151-52.) In addition to her mental impairments, the plaintiff alleged that, due to back and knee pain, she could not lift more than ten pounds, squat, bend, stand longer than ten minutes, or walk more than half a block. (Tr. 152.)

The plaintiff underwent a psychological consultative examination by Dr. Mark Langgut, Ph.D, on January 12, 2011. (Tr. 178-83.) She told Dr. Langgut that she "hurt all over" and complained of depression, anxiety, poor concentration, and insomnia. (Tr. 178.) She indicated that she had received outpatient mental health treatment in the past but was not currently taking medication or pursuing therapy. (Tr. 179.) She related that she was not working because there were "no jobs[, ]... [n]obody calls[, ]... [and] I'm too old." Id. She said that she was able to cook, clean, shop, wash laundry, and "provide care for her disable[d] boyfriend." (Tr. 180.) She told Dr. Langgut that she was "basically homeless" and stayed with her boyfriend or another friend. Id. She said that she talked to her mother on the phone but otherwise had "minimal contact with her family." Id.

According to Dr. Langgut, the plaintiff described having "moderate depression with depressive symptoms of hopelessness, lethargy and sleep problems and decreased concentration" that had "become worse and more intense over the past ten years." Id. He described the plaintiff as "cooperative and friendly although negativistic and preoccupied" and found no evidence of delusions, obsessive ideas, phobias, or hallucinations. (Tr. 180-81.) The plaintiff demonstrated "mild ruminative ideation, " and Dr. Langgut described her insight as "impaired" and noted that she "gave evidence of variable memory abilities." (Tr. 181.) He diagnosed her with dysthymic disorder; anxiety disorder, not otherwise specified ("NOS"); alcohol abuse-status unknown; and personality disorder with dependent features. (Tr. 182.) He opined that she would not be able to manage funds "[d]ue to questionable use of alcohol and significant mood dysregulation" as well as "[i]mpairments in judgment, reasoning and comprehension." (Tr. 181.)

On February 10, 2011, Dr. Terry Travis, a Disability Determination Services ("DDS") nonexamining consultative physician, completed a Psychiatric Review Technique ("PRT") and mental Residual Functional Capacity ("RFC") assessment. (Tr. 184-201.) In the PRT, Dr. Travis found that the plaintiff had dysthymic disorder; anxiety disorder, NOS; substance addiction disorder; and a personality disorder evidenced by pathological dependence, passivity, or aggressivity. (Tr. 187, 189, 191-92.) Dr. Travis opined that the plaintiff had moderate limitations in the areas of maintaining social functioning and maintaining concentration, persistence, or pace as well as mild restriction of the activities of daily living and no episodes of decompensation. (Tr. 194.)

In the mental RFC assessment, Dr. Travis opined that the plaintiff was moderately limited in her ability to: (1) maintain attention and concentration for extended periods; (2) work in coordination with or proximity to others without being distracted by them; (3) interact appropriately with the general public; (4) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; (5) respond appropriately to changes in the work setting; and (6) complete a normal workday and workweek without interruptions from psychologically based symptoms. (Tr. 198-99.) Dr. Travis further explained that the plaintiff:

is cognitively intact and can learn instructions. She is able to relate appropriately but reports anxiety around others. She is able to function consistently at a reasonable rate within a schedule. She is able to adapt to circumstances. She is able to do multistep tasks in a work setting that does not involve routine interaction with others.

(Tr. 200.)

On February 22, 2011, Dr. Anand Lal completed a consultative examination of the plaintiff. (Tr. 202-12.) The plaintiff reported having a history of bipolar disorder and difficulty sleeping and said that, although she had taken medication in the past, she was unable to afford it and had not taken medication in the past four years. (Tr. 202.) She also reported having pain in her low back, neck, shoulders, right knee, and right foot. (Tr. 202-03.) Upon physical examination, the plaintiff demonstrated decreased range of motion in her cervical spine, bilateral shoulders, lumbar spine, and bilateral knees as well as a positive straight leg raise test. (Tr. 205-09.) Her handgrip strength was 3-4 out of 5 bilaterally with normal fine and gross manipulation. (Tr. 209-10.) Dr. Lal observed that the plaintiff ambulated with a normal gait, did not use an assistive walking device, did not have difficulty getting on and off the exam table, and was able to perform the tandem, heel, and toe walks without difficulty. Id. However, she had moderate difficulty squatting and rising and was unable to hop on either leg. (Tr. 210-11.) She had no focal deficits and intact nerves, reflexes, and sensation. (Tr. 211.) A mental status examination showed no apparent cognitive difficulties with normal speech and affect and "no signs of depression or anxiety." Id. Dr. Lal diagnosed her with a history of bipolar disorder, chronic low back pain, status post low back surgery, right lumbar radiculopathy, osteoarthritis of the right knee, and cervical osteoarthritis. Id. He opined that she would be able to manage funds if granted disability benefits. Id.

On March 2, 2011, Dr. Reynaldo Gotanco, a DDS nonexamining consultative physician, reviewed the results of Dr. Lal's consultative examination and completed a physical RFC assessment. (Tr. 213-20.) Dr. Gotanco opined that the plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and/or walk about six hours and sit about six hours in an eight hour workday, push and/or pull in unlimited amounts, and occasionally climb, kneel, crouch, and crawl. (Tr. 214-15.)

The plaintiff received primary care treatment at West Wilson Family Practice from July 2011 until May 2012.[1] (Tr. 225-34.) During this time she was treated for chronic back pain, depression, and anxiety. Id. In July 2011, she reported experiencing depression over the recent, sudden death of her fiance. (Tr. 231.) She also received treatment in April and May 2012 at the Charis Health Center for nausea, vomiting, constipation, and abdominal pain shooting into her chest. (Tr. 235-37.) She was diagnosed with gastritis and anxiety and treated with Nexium and Phenergan. Id.

From August 2011 until June 2012, the plaintiff received psychiatric treatment at Cumberland Mental Health Center ("Cumberland")[2] primarily under the care of Terre Ament, an advanced practice nurse. (Tr. 238-80.) At her intake interview, the plaintiff reported that she experienced "nervousness, poor sleep, depression, pain/aches, low motivation, mood swings, " and "long periods of months when she had decreased need for sleep with increased energy, racing thoughts, goal directed behavior, and irratibility." (Tr. 240-41.) She said that, before her fiance died in May, she was "finally happy" and enjoyed playing games on the computer, taking walks, going to the movies, and dancing. (Tr. 242.) A mental status examination showed that she was anxious with pressured speech and a dysthymic mood but was otherwise normal. (Tr. 246-47.) Ms. Ament diagnosed her with bipolar I disorder, most recent episode mixed, severe with psychotic features, and assigned her a Global Assessment of Functioning ("GAF") score of 45.[3] (Tr. 249-50.)

During her course of treatment with Ms. Ament, the plaintiff continued to complain of depression, mood swings, irratibility, and poor sleep. (Tr. 252, 257, 261, 265, 270.) During mental status examinations, the plaintiff occasionally presented with a flat or irritable affect and/or a dysthymic mood but otherwise had an appropriate affect, appropriate appearance, normal speech, normal thought content, organized thought process, and normal memory. (Tr. 252-53, 257-58, 261-62, 265-66, 270-71.) Ms. Ament prescribed a number of different medications to treat depression, anxiety, and poor sleep, including Xanax, Seroquel, Neurontin, Viibryd, Prozac, Trileptal, Ambien, and Geodon. (Tr. 250-51, 255, 258, 262, 266, 271.) When the plaintiff overused Xanax and ran out on one occasion, Ms. Ament discontinued it and refused to prescribe it again despite the plaintiff's requests. (Tr. 252, 265.)

On August 20, 2012, Ms. Ament completed a "Physician/Nurse Practitioner Statement" in which she indicated that the plaintiff's current diagnosis was bipolar I disorder, severe with psychotic features, and that she was being treated with Geodon, Prozac, Neurontin, and Ambien. (Tr. 281.) Ms. Ament opined that the plaintiff was not capable of maintaining employment but was capable of managing her own funds and living alone and/or without supervision. Id.

B. Hearing Testimony

At the hearing on August 30, 2012, the plaintiff was represented by counsel, and the plaintiff and the vocational expert ("VE"), Pedro Roman, testified. (Tr. 29-51.) The plaintiff testified that she has a GED, lives alone, and has worked at several jobs as a cashier on a part-time basis. (Tr. 33-36.) She said that she was fired from her last cashier job after a "couple of weeks" because her employer said "that [she] couldn't multitask well enough." (Tr. 33-34, 42-43.)

The plaintiff testified that she has mood swings, panic attacks, feelings of worthlessness, racing thoughts, and problems concentrating. (Tr. 40-43.) She testified that she has mood swings "every day" and that she "[does not] like being around a lot of people." (Tr. 40, 42.) She said that her medication "doesn't really work" and that, on a "bad day, " she does not get out of bed. (Tr. 40, 43.) She said that she also has "chronic back problems, " including having had microdiscectomy surgery in the 1990's, and described her back pain as "constant" and "[m]inor to severe" with "[b]ad shooting pains up and down" her back and right leg. (Tr. 37.) She explained that her hips and knees are "real bad" and that it hurts to turn her back, raise her arms over her head, or lift heavy objects such as a gallon of milk. (Tr. 38.) She explained that she uses over the counter pain medication and takes hot baths to relieve her pain. (Tr. 38-39.) She estimated that she is able to sit 10-15 minutes or stand ten minutes at a time and cannot walk a city block without experiencing shortness of breath. (Tr. 40.)

The VE testified that his testimony was consistent with the Dictionary of Occupational Titles and determined that none of the plaintiff's previous jobs qualified as past relevant work. (Tr. 47, 49.) The ALJ asked the VE whether a hypothetical person with the plaintiff's age, education, and lack of past relevant work experience would be able to obtain work if she was restricted to no more than light exertional level work; could occasionally balance, stoop, kneel, crouch, and crawl; could occasionally climb ramps and stairs but could not climb ladders, ropes, or scaffolding; could occasionally come in contact with the general public; and could perform "simple, routine, repetitive-type tasks and maybe some lower-level detail tasks but not complex tasks." (Tr. 47.) The VE replied that a person with these limitations could work as a pricing tagger, inspector/hand packager, and small parts assembler. (Tr. 47-48.) The VE testified that these jobs would permit an average of ten absences per year and would not be available to a person who had trouble concentrating to the extent that she would be off task 10-20% of the workday. (Tr. 48.) In response to questioning from the plaintiff's attorney, the VE testified that a person who was unable to understand, remember, and carry out simple instructions on a sustained basis would be unable to perform any job. (Tr. 49.)

III. THE ALJ'S FINDINGS

The ALJ issued an unfavorable ruling on September 21, 2012. (Tr. 12-24.) Based upon the record, the ALJ ...


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