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Baker v. Colvin

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

January 12, 2015

PHYLLIS BAKER,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security.

REPORT AND RECOMMENDATION

JULIET GRIFFIN, Magistrate Judge.

To: The Honorable Aleta A. Trauger, 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 ("SSI") and Disability Insurance Benefits ("DIB") 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. 14) should be DENIED.

I. INTRODUCTION

In June 2010, the plaintiff protectively filed for SSI and DIB, alleging a disability onset date of April 1, 2008, due to bipolar disorder, obesity, and problems with her knees and back. (Tr. 11, 147-52, 163, 167.) Her applications were denied initially and upon reconsideration. (Tr. 83-88, 95-100.) The plaintiff appeared and testified at a hearing before Administrative Law Judge Frank Gregori ("ALJ") on October 18, 2012 (tr. 31-78), and on December 7, 2012, the ALJ entered an unfavorable decision. (Tr. 11-23.) On March 27, 2014, the Appeals Council denied the plaintiff's request for review of the hearing decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.)

II. BACKGROUND

The plaintiff was born on September 28, 1964, and she was 43 years old as of her alleged disability onset date. (Tr. 41.) She attended college but did not graduate and has worked as a cashier and factory worker. (Tr. 42-48, 68-69.)

A. Chronological Background: Procedural Developments and Medical Records

From February to September 2010, the plaintiff was treated by Dr. Michael Rhodes for a number of ailments including bilateral knee pain, low back pain, muscle spasms, hypertension, morbid obesity, and attention deficit hyperactivity disorder ("ADHD"). (Tr. 243-79.) Dr. Rhodes prescribed, inter alia, Adderall, Ambien, Celexa, Lortab, Seroquel, and Soma.[1] Id. On February 18, 2010, the plaintiff went to an emergency room reporting that Dr. Rhodes had told her that she needed a blood transfusion. (Tr. 213-39.) She was diagnosed with anemia secondary to blood loss, B12 deficiency, iron deficiency, hypertension, and chronic pain problems. (Tr. 213.) She was given vitamin B12 and a blood transfusion and discharged in stable condition on February 22, 2010. Id.

The plaintiff presented to Centerstone Community Mental Health Care Center ("Centerstone") on April 15, 2010, where she was evaluated by John Demarco, M.A. (Tr. 327-33.) The plaintiff reported that she was homeless, had attempted suicide in the past, and had a history of substance abuse. (Tr. 327, 329-30.) She denied that she was currently using drugs or alcohol and reported that she was in full sustained remission. (Tr. 329-30.) She reported that her symptoms included irritability, "crying spells, poor sleep because of worrisome thoughts, poor self-image, [and] lack of energy, motivation, and hope." (Tr. 330.) Mr. Demarco diagnosed her with alcohol and cocaine dependence and noted that her presentation was consistent with depressive disorder, not otherwise specified ("NOS"). (Tr. 331-32.) He also completed a Tennessee Clinically Related Group ("CRG") Form in which he assigned the plaintiff a Global Assessment of Functioning ("GAF") score of 41[2] and opined that she had moderate limitations in the areas of activities of daily living and maintaining concentration, task performance, and pace as well as marked limitations in the areas of interpersonal functioning and adaptation to change. (Tr. 323-24, 411.)

The plaintiff continued mental health treatment at Centerstone from April 2010 until April 2011. (Tr. 326, 334-411.) She frequently cancelled or missed scheduled appointments. (Tr. 345, 348, 351, 353-54, 363, 373, 376, 379, 386-88, 407-08.) In June 2010, she reported that she had not used marijuana or cocaine since 2007 and had approximately one drink of alcohol per month. (Tr. 338.) She reported that she had attempted suicide three times. (Tr. 339.) She was diagnosed with bipolar I disorder, most recent episode mixed, severe without psychotic features; cocaine dependence; and alcohol dependence; and she was prescribed Risperdal.[3] (Tr. 339-40.) In October 2010, she reported that she "might have to start looking for some type of work" but that she "[did] not want to risk the chance of messing up her chances for her disability." (Tr. 364.) In December 2010, she reported that she had applied for jobs but "ha[d] not heard from anyone." (Tr. 355.) At that time, she was taken off Risperdal and started on Fanapt.[4] (Tr. 357-58.)

On December 21, 2010, Dr. Lloyd Huang, a Tennessee Disability Determination Services ("DDS") consultative physician, physically examined the plaintiff. (Tr. 280-83.) The plaintiff complained of a history of chronic low back pain and knee pain that had started one or two years earlier. (Tr. 280.) She rated her back pain as an 8 out of 10 on the pain scale and described it as "aching pain without radiation." Id. She told Dr. Huang that she had "daily bilateral knee pain" and that her knees "give out at times." Id. She related that she had gastric bypass surgery in 2004 and had been hospitalized with "severe anemia." Id. She denied using alcohol. Id.

Dr. Huang noted that the plaintiff was 5'10" tall and weighed 348 pounds. (Tr. 281.) Upon physical examination, she had normal range of motion in her cervical spine, shoulders, elbows, wrists, hips, knees, and ankles with normal handgrip strength and negative straight leg raises to 60 degrees. Id. Her lumbar spine extension was 20 degrees with flexion to 80 degrees. Id. She had normal range of motion of the right knee with mild crepitus and, in her left knee, she had normal extension with flexion reduced to 90 degrees. Id. Dr. Huang observed that she was able to get on and off the exam table without difficulty, ambulated with a "minimal" limp, and was able to perform the squat-and-rise maneuver with moderate difficulty. Id. X-rays of her lumbar spine showed "[m]ild degenerative disc disease, primarily at L5-S1, " and an x-ray of her left knee showed "[s]evere degenerative joint disease." (Tr. 282.)

Dr. Huang diagnosed the plaintiff with "[m]assive morbid obesity;" "[s]tatus post gastric bypass;" "[m]alabsorption syndrome with resultant B12 and iron-deficiency anemia;" "[l]ow back pain, mild degenerative disc disease;" "[d]egenerative joint disease of the knees, severe;" and "[b]ipolar affective disorder." Id. He opined that the severe degenerative joint disease of her knees was "related to her morbid obesity" and that "[h]er gastric bypass appear[ed] to be complicated by malabsorption resulting in anemia, which should be correctible [ sic ] with medication." Id. He opined that she could lift twenty pounds occasionally and ten pounds frequently, stand and walk for 3-4 hours in an eight-hour workday, and sit five hours in an eight-hour workday, and he added that "[p]erhaps vocational rehabilitation or educational opportunities for sedentary work would be helpful." Id.

On January 3, 2011, Dr. Thomas Pettigrew, Ed. D., performed a psychological evaluation of the plaintiff. (Tr. 284-87.) The plaintiff alleged that she was disabled due to bipolar disorder and attention deficit disorder ("ADD"). (Tr. 284.) Dr. Pettigrew noted the plaintiff's height and weight and observed that she was "casually dressed, cleaned and well-groomed." Id. He observed that she "exhibited no pain behavior and maintained a stable and euthymic affect" throughout the evaluation. Id. The plaintiff reported that her previous jobs were "factory work" and that she last worked in 2008. Id. She said that she stopped working because she was "not able to stand up and do that work and... can't deal with the people." Id. She also reported that she was "angry all the time, " and experienced panic attacks. (Tr. 285.) Dr. Pettigrew observed that, when asked to describe her psychological symptoms, the plaintiff "responded in a rather flippant manner, ah panic attacks and I stay angry and I hear voices. I am just crazy!'" Id. When asked whether her condition improved or worsened from time to time, the plaintiff responded that, "I don't have no energy and I don't want to do nothing. I just sit!" Id. She told Dr. Pettigrew that she did not drink alcohol except "maybe" on a holiday because she did not "like the taste of alcohol, " and she "denied that she ha[d] ever used or experimented with any illegal drug." Id.

During a mental status examination, the plaintiff "maintained a composed demeanor and euthymic affect." Id. She was alert and oriented, and her speech was "clearly articulated and fluent without pressured speech, flight of ideas, grandiosity or tangentiality." Id. Her thought was "linear and organized with no bizarre, unusual or delusional content." Id. Her affect was "stable without tearing, overt crying, irritability, lability or anger, " and she demonstrated no signs of mania or agitation. (Tr. 286.) Dr. Pettigrew observed that her answers to questions "revealed consistently adequate comprehension and ability to develop, organize and express her thought[s]." She demonstrated intact memory, average attention, and average concentration, and she was able to solve mental calculations effectively.

The plaintiff told Dr. Pettigrew that she lived with her mother and 18-year-old son and that she was able to bathe, dress, and groom herself as well as drive, shop, manage money, and wash laundry and dishes. Id. She said that her mother usually went shopping with her and that she attended church and watched television. Id. Dr. Pettigrew opined that the plaintiff was in the borderline range of intelligence with an IQ of 71-84 and had "no specific cognitive deficits." Id. He did not give a mental diagnosis but opined that:

[The plaintiff] is able to understand, remember and carryout [ sic ] simple verbal instructions. She appeared composed throughout the interview and showed no signs of anxiety, depression, hyperactivity, distractibility, mania, agitation or any form of psychosis. Her receptive and expressive language skills are adequate. She tolerated the examination process well and maintained socially appropriate behavior. She is considered capable of managing disability funds.

Id.

On January 24, 2011, Dr. Edward Sachs, Ph.D., a nonexamining DDS psychological consultant, completed a Psychiatric Review Technique ("PRT"). (Tr. 288-301.) Dr. Sachs found that the plaintiff had ADHD, which was treated with Adderall (tr. 289), and opined that she experienced mild functional limitations in the areas of the activities of daily living; maintaining social functioning; and maintaining concentration, persistence or pace; with no episodes of decompensation.[5] (Tr. 298.)

On February 2, 2011, a nonexamining DDS medical consultant completed a physical Residual Functional Capacity ("RFC") assessment (tr. 302-11) and opined that the plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and/or walk four hours in an eight-hour workday, sit about six hours in an eight-hour workday, and occasionally push and/or pull with her left lower extremity. (Tr. 303.) The consultant opined that the plaintiff could never climb ladders, ropes, or scaffolds and could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.[6] (Tr. 304.)

In March 2011, the plaintiff told her case manager at Centerstone that she no longer needed case management. (Tr. 350.) In April, she reported that Fanapt "was good" but that she had run out of medication a couple of months prior and had "a tendency to stop taking meds when she start[ed] feeling better." (Tr. 346.) She said that she "plan[ned] to [continue] meds from now on" and that she "felt more stable while taking [F]anapt." Id. On July 11, 2011, the plaintiff was discharged from Centerstone due to a lapse in service. (Tr. 344.) At the time of her discharge, her diagnosis was bipolar I disorder, most recent episode mixed, severe without psychotic features, and alcohol dependence. (Tr. 326.) Her assigned GAF score remained 41. Id.

B. Hearing Testimony

At the hearing on October 18, 2012, the plaintiff was represented by counsel, and the plaintiff and a vocational expert ("VE"), Pedro Roman, testified. (Tr. 31-78.) The plaintiff testified that she is 5'10" tall and weighs 338 pounds. (Tr. 52.) She said that she is able to drive but that her driver's license was suspended for non-payment of traffic tickets. (Tr. 53.) She testified that she attended college but did not graduate and has not worked since 2008. (Tr. 42-43.) She reported that she had worked several different times at an electronics factory where she tested stoves on an assembly line. (Tr. 43-48.) She said that, on one occasion, she stopped working after she "passed out" while working on the assembly line and that, on a different occasion, she was let go due to lack of work. (Tr. 45-47.) She said that she also worked in quality control at an electronics factory and as a fast-food restaurant cashier. (Tr. 47-48.) She also recounted that she once took care of a family friend who was ill for approximately three weeks. (Tr. 62.)

The plaintiff testified that she cannot work due to pain in her knees, legs, and back. (Tr. 50.) She said that her knees hurt due to her weight and that it hurts to stand for long periods of time. (Tr. 50, 57.) She said that her left knee was "worse" than her right knee and "gives out" and that she also has pain in her left foot "continuously." (Tr. 50-51, 57.) She said that her back pain starts in her low back and goes down her left leg into the heel of her left foot. (Tr. 58.) She also said that she has muscle spasms in her legs and back and has difficulty walking up and down stairs. (Tr. 58-59.) She estimated that she can sit for 15-20 minutes before needing to stand up, walk for five minutes at a time, and stand for ten minutes before needing to sit down. (Tr. 60-61.)

The plaintiff testified that she also experiences panic attacks, anxiety, mood swings, and irritability. (Tr. 62-63.) She said that she is "irritable a lot" and feels like she "want[s] to be dead." Id. She said that she lies in bed in pain "most every day" and frequently isolates herself from her family. (Tr. 63.) She explained that she "feel[s] like... a burden because [she] can't get up and do what everybody else [does]." Id. She testified that she no longer goes to Centerstone because she does not have insurance. (Tr. 52.) She said that, when she was being treated at Centerstone, she frequently missed appointments because she "just didn't feel like getting up out of the bed." (Tr. 61.) She indicated that she takes Ibuprofen and blood pressure medication but previously took Adderall, Lortab, Soma, Ambien, and Seroquel, although she can longer afford these medicines without insurance. (Tr. 49-50, 59.)

The ALJ asked the plaintiff why she told Dr. Huang that she did not use alcohol, and she replied:

Well, because I really don't just use alcohol. When you go to treatment they want you to say - to get in there you got to really have a bad problem, so I just told them that I had a bad problem with alcohol, which it really wasn't alcohol. It was the cocaine.

(Tr. 54.) The ALJ then asked whether she had denied using drugs and alcohol to Dr. Pettigrew. She replied:

A: Yes I did, because at the time I wasn't having a problem with that.
Q: But you told Dr. Pettigrew you've never used drugs or alcohol.
A: Yes, and -
Q: Is that true?
A: Yes it's ...

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